“[A]s a matter of law, the house is haunted.”
November, 2006
9
Nov 06
the GPL is not a monopoly
Nice smackdown ruling by Judge Easterbrook. For a 6 page intro to antitrust pricing law via discussion of the GPL, go read. (Yes, he does make a fundamental error about selling GPL’d software in the first paragraph or so, but otherwise, sound.)
9
Nov 06
SFLC note on MS patent pledge- revocable?!?
Obviously SFLC has a dog in this fight :) but their quickie commentary on the MS patent pledge is here.
I haven’t had time yet to read the agreement, so I have to take Brad’s word for it, but if he’s right, and the pledge is revocable at any time, then even if the rest of it were pretty solid (Brad says it isn’t) the pledge is worth approximately nothing.
As I’ve said before (and hope to get to in yet more detail this weekend) you can only depend on a company as far as you can throw their contract with you. You cannot rely on them otherwise. If this pledge is revocable (and I have only Brad’s word for that right now), you can’t depend on it, period.
9
Nov 06
Novell playing the patent game and shifting the burden of proof
Dan Winship (who needs to blog more often ;) asked in a comment on my last post:
[W]hy is the implying-that-Linux-infringes-patents thing even controversial? I thought everyone agreed that because of the way the USPTO hands out software patents like candy, that basically every program larger than “Hello World” infringes more patents than there are atoms in the observable universe.
This after I said:
[There is a] sense that Novell is now competing on unfair terms; terms that amount to a tacit acceptance that “our” code is patent infringing (if opensuse isn’t infringing, why is Novell paying so much money?)…
Dan’s question is a fair one, because I didn’t explain myself. I think what is at issue is not that Novell tacitly admitted it, but in particular the way Novell admitted it.
Past tacit admissions have always come with one of three disclaimers: (1) this admission demonstrates that the system is insane and should be reformed (e.g., the European anti-software patent movement) (2) this tacit admission comes in the context of a Mutually Assured Destruction pact (e.g., OIN) (3) the tacit admission comes in the context of a discussion of monopoly power in the software industry being compounded by a competitor’s refusal to license patents (e.g., Microsoft’s patents on Office Open XML.) In each case, the disclaimer made it clear that the patent (and not the patent infringer!) was the real source of the problem.
Novell’s admission came with none of those disclaimers, and as a result looks like a tacit acceptance not just of the patents, but of the patent system and the monopolistic patent owner. It can even be read to weaken all of these disclaimers when the rest of us use them: (1) the patent system must be sane, after all, it led to protection of all these nice volunteers, in a nice market-oriented way (2) we don’t have enough weapons for MAD (3) MS is now reasonable and the onus is on commercial GPL users to cooperate.
[This last one, IMHO, is the most damaging one; it will absolutely come out the next time MS has discussions with EU antitrust regulators, and frankly, with justification. Once you grant the legitimacy of the patent system (which antitrust regulators must do), explaining why GPL users shouldn't negotiate with MS is suddenly damn hard to do if MS is publicly willing to negotiate, no matter how false that willingness is.]
Using these disclaimers, free software potential patent infringers were effectively on the offensive- those counter arguments put the burden of proof was on MS and other large patent holders to prove that the patent system was reasonable. This move has potentially shifted the burden of proof- the question now may well be ‘why isn’t RH signing the same deal? After all, Novell did’. I suspect that MS did this deliberately (given how quickly after the deal they started discussing using this against others) but of course have no proof, and have no idea if Novell thought this through or just got caught unaware.
It will be months or years before we know if all this has actual concrete impact, or if it is just a temporary distraction. But it is there, and I suspect that a lot of people understand this, which accounts for a lot of the anger, even if they can’t fully articulate what it was that Novell ‘sold out’.
[Tangentially, you can argue that the patent system is overall valuable and correct, or at most needs to be corrected, and that hence all of these things are (overall) not a bad thing. This is certainly the position of some of erstwhile free software allies, like IBM. But the Novell agreement is still potentially a bad thing for them, too; but that's another blog post (quite possibly a blog essay ;) and hence it'll have to wait for another day.]
8
Nov 06
more thoughts on MS and Novell (with a dash of Oracle, Sun, and Ubuntu)
Havoc, slightly edited:
In proper open source, Novell (or anyone) is welcome to take my code and convince customers to buy support from them because they are a big company and I’m just some guy on the Internet. But Novell (or anyone) is not welcome to proprietarize my code. If I wanted them to take my code proprietary I’d choose a BSD license and not the GPL. I want them to compete with me on a level playing field by offering a better value.
…
In Novell’s world, if I write something and GPL it, Novell will try to convince customers to buy support from Novell instead of from me (the original author) because of some nebulous, unspecified, almost-certainly-bullshit “IP issues” hinted at by Microsoft and legitimized by Novell for the price of $348 million.
(emphasis mine)
Havoc buries this gem in the middle of his post, but he has nailed the core sentiment people have expressed- the sense that Novell is now competing on unfair terms; terms that amount to a tacit acceptance that “our” code is patent infringing (if opensuse isn’t infringing, why is Novell paying so much money?); terms which require other distributors to answer ‘when did you stop beating your wife?’‘when did you start infringing patents?’ if they want to get the same treatment. Is this a violation of our social contract? Who knows. It feels like one, though, and that is what matters when talking of trust and PR.
Are they actually license-violating? It isn’t really clear. Almost certainly it violates the spirit of GPL section 7, by creating the impression that Novell’s users are licensed and others are not. Given the complexity of the issue, though, and the inherently unsympathetic position a GPL enforcer would be cast in (effectively encouraging Novell to avoid patent laws) I’m skeptical that any judge would find that Novell has violated the GPL. Not to say it is impossible, and I’m sure very smart lawyers are looking hard at the problem, but the thing is vague enough, and the claims abstract enough, that it would probably be a crapshoot at best in court, depending on interpretations of Novell’s actions on one side and what is clearly a loophole in the GPL on the other side.
Some other notes:
- It is instructive to compare and contrast the reaction to Oracle’s move- certainly a ripoff of RH’s hard work, but done within the context of our social contract, so people saw it as validation and fair competition. In contrast, Novell tried hard to present this as validation, but that message has been overwhelmed by the other questions raised.
- Having done something very similar with OOo (arguably worse, given that it only covers the proprietary derivative and not the open source project), it takes incredible gall for Sun and Sun employees to criticize Novell on this issue. Pot, meet the kettle.
- Red Hat has spoken clearly and forcefully on the patent issue, which is to their credit. If Ubuntu wants to be taken seriously as a competitor to Novell and Red Hat, they need to step up and also make their patent position clear- are they going to sidestep the issue, as they’ve done on driver freedom? Or are they going to stand with Red Hat, and perhaps start supporting OIN? Or some other path? Whatever you think of what Novell has done, they’ve clearly forced the patent issue front and center, and the Ubuntu community should demand clarity on the situation from Canonical.
- It is clear that mature open source communities are going to have to come clearly to grips with patents, trademarks, and potentially other mechanisms of control in the near future. In the past, it has been enough to license our copyrights so as to prevent corporate defection, and hope that would be enough. If Novell’s actions force us to come completely to grips with the patent problem, and deal with it more explicitly in our licenses, they will have done us all a big favor.
3
Nov 06
china gets free legal search before the US
Sigh. China is going to get free legal search before we do. C’mon, Google, get your act in gear :)
3
Nov 06
a note on jesus and evangelical christianity
Some people were apparently offended by my post a couple weeks ago about being ‘prayed for’. That has bothered me a bit, and I want to take an opportunity to clarify that. I’m not anti-Jesus and I’m not anti-Christian, I’m just anti-assholes-in-the-name-of-Jesus. But I’m not eloquent, and didn’t convey that in my post.
In contrast, John Scalzi is an excellent writer, and he puts it really, really well today, in a discussion about Luke 6:42 and Ted Haggard:
From the outside, it looks like evangelistic core beliefs are about division, acquisition and exclusion, none of which strike me as particularly Christ-like (or for that matter particularly evangelical). I’m never going to be an evangelical Christian, but I like Jesus; he was a righteous dude. It would be nice to see more of Jesus in the loud and showy thing that is evangelical Christianity. I don’t expect it. It would still be nice to see.
[Emphasis mine.]
So yeah… that’s my position on Jesus and evangelical christianity. If the idea of more forgiveness and turning the other cheek offends you, then please continue to be offended by me. But if you believe in the Jesus who said this:
Do not judge, and you will not be judged. Do not condemn, and you will not be condemned. Forgive, and you will be forgiven. Give, and it will be given to you.
Then we’re pretty much on the same page, regardless of the details of whether or not I believe in an afterlife and the resurrection.
2
Nov 06
novell and MS- some open questions
I wrote nearly 1500 words on Novell and MS earlier in the evening, but I think I’ll sit on most of them for now as I think them through some more. [Disclaimer: I spoke to Nat on the phone for a bit this evening, and I used to work for Novell, left on good terms, and still have lots of friends there.] Here are the open questions from the end of that post, though:
- What will the exact terms of the patent non-assert be? (My guess: they’ll be good for individual hackers, and fixable in the future if need be- MS has nothing to fear from non-commercial hackers, and lots to gain politically by making nice with them. Whatever the terms are, it would be silly to act on them in any way until we see exactly what they are- basing action on a press release/FAQ would be insane. :)
- How will the non-assert interact with the GPL v2, and specifically with GPL/LGPL code written by Novell? (My guess: It is hard to see how this could go well, but Novell has some very smart lawyers who I assume have been thinking about this for a long time, probably playing off the fact that this is technically a positive gift to some folks and not technically a restriction on others.)
- Will MS extend similar agreements on fair, acceptable terms to everyone who seeks to commercialize open source? Or have they chosen to knight a single competitor in this space? (My guess: they will not make such an offer; this is a divide-and-hold-off tactic, seeking to put Novell on the same footing as Apple- present, with some market share, helping to hold off the antitrust crowd, but mainly harmless. Hard to blame Novell for taking the opportunity, though, even if it does establish precedent that they owe MS royalties on Linux.)
- Will Novell continue to open the interoperability code they write (like the Evolution Exchange plugin)? (My guess: they’ll continue to open it, but the omnipresent threat of MS’s patents will substantially chill commercial uptake by other vendors.)
- Does this commit MS to substantive work with ODF, or is Novell’s act of breaking ranks with Sun, IBM, etc. one-sided? (My guess: very hard to know until we see more details, but overall ODF has more to lose here- it must be seen as the choice of ‘everyone but MS’ to have a really good chance of succeeding, so this is damaging to ODF, even though it is clearly very good for Real Users.)
There is a lot to mull over here. I do think Novell’s intent here is positive, and some people are clearly overreacting. But we have to approach it with deep skepticism- any move which privileges one vendor above all others is not MS showing love for Linux, but MS showing love for a single Linux vendor, which is a very, very different thing, and we should keep that in mind. It is clearly good for Novell and MS; likely good (short term) for most users; likely ambiguously good for individual volunteer developers; very ambiguous for the free software community (if you define it to include all of our commercial partners); likely (long term) bad for users who should prefer open standards; likely ambiguously bad for Novell’s competitors. However you want to look at it, it will take a while to sort through all the ramifications, even once we have all the details that are still currently lacking.
[Later: I've seen a lot of responses; most of them lacking substance and perspective. Matt Asay's response seems to be the best of the bunch so far- says sane and substantive things about the business part of it, and doesn't go into the tricky community-impact minefield that no one is doing a good job of addressing of yet.]
2
Nov 06
gallery performance tip [was: apologies for performance problems with tieguy.org this morning]
Apologies for any performance problems with tieguy.org this morning- for some reason my gallery is getting pounded and it is bringing the whole machine to its knees. I really wish the gallery guys would focus on performance for their next release- the current situation is just abysmal :/
[Coincidentally, last night I swapped out the old planet install for venus, which helped performance a huge amount. The server would be completely hosed right now if I hadn't done that.]
[Later: holy cow. If you're running gallery, and don't do much dynamic except show hit counts, run, don't walk, to site admin> performance> guest users and jam 'full acceleration'. My load went from 5.0 to 0.1 almost immediately. ]
2
Nov 06
what I’m using for a GNOME business card
Máirín put up some cool-as-usual biz card mockups, which reminds me- I’ve picked up a couple hundred cards from moo.com of late. Fun stuff. On the back of the GNOME cards I’m using this:
GNOME is still people.
Click the picture for a larger version. Enjoy and re-use. Generated (still) with the utterly awesome metapixel.