Archive for September, 2008

Community Must Value All Open Source Contributions

Brendan Scott, September 2008

Mary Gardiner has written a blog post about how to get females involved in projects.  I want to emphasise one of the points she makes:

Don’t discount what women do [‘what women do’ here used as ‘community management, documentation and similar activities’, via Geek chicks: second thoughts]

I believe there is a blind spot here for everyone in the open source community.  It is nothing for an open source company to fund development effort, and hire x coders (for some non-trivial x) but to suggest that any other contribution to the community be made is to cross the line on acceptable suggestions.  But the community does not rely on coders alone.  The best code in the world is useless if no one knows of it, or if it is hidden behind a terrible user interface, or can’t be licensed because lawmakers have outlawed it (eg  encryption code).  I have hinted at this problem in my post on FLOSS best practices.  This is what I am referring to by the references to KPIs in that post.

Because numbers are relatively easy to come by, it is comparatively easy to criticise companies for not submitting enough code to one project or another but, there are other things that a contribution to the community should be measured against. Unfortunately, the word which has filtered back to me is that managers are not assessed against these soft contributions.  It should therefore come as no surprise that companies are not committing to them.

It would be nice to see the community demand that organisations support the whole breadth of the open source community.  In this way, a more rounded view of what makes a good open source corporate citizen could be created.  This would include things such as supporting marketing, documentation or communication efforts, the making of submissions to governments or courts (or supporting compliance initiatives) and the myriad of other things which are essential to a functional community associated with either a project or with open source generally.

Controlling Windows from Command Line?????

I am trying to find out how I can move, activate, resize etc windows (managed by KDE on top of X) from the command line and am at a total loss.

I have looked at dcop, kdcop, KWin and wmctrl.  None seems to work (the main problem being that they do not see all of the open windows – even Firefox is not reported – and won’t act on what they can’t see).  I can find the window IDs well enough (xwininfo etc) but can’t find any way to either send them signals, or have X push them around – and Goggle (what’s that STFI, STFW or GTFW?) has not helped me.  Surely there is some mechanism in X to send these sort of signals to windows?

Thoughts?

Aspire One: Victorian Education Discriminating Against Linux?

Strike me pink!  Less than a week after OSIA sent its submission to a Victorian Parliamentary inquiry into how Victoria can better engage with open source, Cafuego reports some very concerning goings on to do with the Acer Aspire One, the Victorian Department of Education and Early Childhood Development and apparently discriminatory treatment by the Department of machines loaded with XP compared with those loaded with Linux (when being sold to eligible purchasers).

Somehow it seems that the Acer Aspire One loaded with Linux, a freely available operating system for which no licence fee is payable is $156* (ex GST) more expensive than exactly the same machine** loaded with Windows XP, a closed operating system for which a not-insubstantial licence fee is payable and for which additional inventory costs must be incurred (eg acquiring, tracking and managing those stupid authentication stickers).  Scotty might not be able to change the laws of physics, but someone has managed to change the laws of economics.  [Update 14/9: I have received second hand reports that the low price is a tender price to Victorian education.  That seems unlikely, given how recently the Aspire One has been released (and how long a tender process takes).  Rather, there is probably a standing purchasing arrangement that this has been brought under?]

Online prices from LWT tell a similar story.  The Acer Aspire One loaded with Linux, is $72 (ex GST) more expensive than exactly the same machine loaded with Windows XP.  Well, actually, that’s not entirely true.   The Windows XP version is not “exactly the same machine”.  That was a lie.  It’s actually a higher spec machine with a better warranty service.  (The differences for the LWT machines are:  Linux/XP: 3 Cell – up to 3 hours vs 6 cell – up to 6 to 7 hours battery life; no HDD/120GB (this may be a typo??); 3 year courier pick up vs 3 year on site warranty; case blue only vs blue or white).

Details of exactly how such steep discounts can be given are unclear at the moment.  There are suggestions that this too-good-to-be-true deal is brought to you by the Victorian Department of Education and Early Childhood Development, which is apparently paying a subsidy on the XP loaded versions (and, of course, by the gormless taxpayers of Victoria on whose behalf the Department is spending the money – cheers!).

Maybe we’ll find tomorrow this has all been a big mistake, that there’s a simple explanation to it all.  Maybe SSDs are outrageously expensive?  Tonight it looks very worrisome.  If the Department really is engaging in gobsmacking discrimination against Linux then:

(a) it shows that the value for money fit for purpose metric used by the Government is fatally flawed;

(b) it’s an excellent example of how whole of government purchasing helps create and perpetuate monopolies; and

(c) whoever within the Department thought this was a good idea should be sent to the Reflection Room with a copy of Baxter Healthcare.

In addition, it would be nice if netbook sellers dropped the pretence of trying to hide the cost of the OEM licence for XP.  Artificially offering different specs simply to hide the OEM licence price undermines effective price competition.  Rather than encouraging this practice, the government should be outlawing it, given that the industry has failed to self-regulate this disclosure.

Notes:

* This figure is based on Cafuego’s photo of the catalog posted on his blog.

** Actually, not exactly, the XP machine has more memory (1GB v 512MB) and a 120GB hard drive v 8GB flash drive on the Linux version.

Report on National Innovation Review Released

The Commonwealth Department of Innovation, Industry, Science and Research has released the report it commissioned by Venturous Australia on the Review of the National Innovation System.  I put together a submission for OSIA arguing that open source should be given much more prominence in national innovation priorities.   The report has recognised the importance of collaboration, with at least one recommendation specifically in relation to open source.

Some relevant extracts include:

Intellectual property is also critical to the creation and successful use of new knowledge – particularly the ‘cumulative’ use of knowledge as an input to further, better knowledge. In this regard, particularly in new areas of patenting such as software and business methods, there is strong evidence that existing intellectual property arrangements are hampering innovation. To address this, the central design aspects of all intellectual property needs to be managed as an aspect of economic policy. Arguably, the current threshold of inventiveness for existing patents is also too low. The inventive steps required to qualify for patents should be considerable, and the resulting patents must be well defined, so as to minimise litigation and maximise the scope for subsequent innovators.

at page xii, recurring in recommendation 7.2

On the other hand, there is one area in which it is clear that there will be substantial spillovers from software development.  Where firms develop open source software and donate the code from their development back to the open source project, this will generate clear spillovers for the rest of the community which will be able to access their developments. It is hard to think of a more straightforward case for government support. The Panel accordingly recommends that R&D on open source programs should qualify for the multiple sale test. Given the pervasiveness of positive spillovers, it may also be cost beneficial to relax somewhat the degree of technical risk required in relation to open source software.

(at page 109, see also recommendation 8.7)

Professional practitioners and beneficiaries of the IP system should be closely involved in IP policy making. However, IP policy is economic policy. It should make the same transition as competition policy did in the 1980s and 90s to being managed as such.

Australian governments should open publishing as far as possible.  Material released for public information by Australian governments a creative commons licence.

To the maximum extent practicable, information, research and content funded by Australian governments – including national collections – should be made freely available over the internet as part of the global public commons. This should be done whilst the Australian Government encourages other countries to reciprocate by making their own contributions to the global digital pubic commons.

(Recommendations 7.3, 7.8 and 7.14)

Developers: Legal Tips for Young Players – Contracts

Brendan Scott – September 2008

In this series of posts we look at a number of generic legal issues which are relevant to developers, and especially to open source developers working for themselves or in small or medium enterprises.

What are contracts for?

People think of contracts as setting out rights and obligations of the parties to the contract.  In one sense, this is their point.  However, it ignores the process – negotiation – by which one arrives at a finished contract.  During negotiation, each side seeks to clarify what it is obliged to do, and what it wants the other party to do.  This process can often reveal unstated assumptions of one, or both parties.  Typically each party has agreed on a certain outcome but has not necessarily gone into the details of how that outcome will be achieved.  In some cases the outcome presupposes that one or the other of the parties must do certain things during the course of the contract – which they hadn’t realised they’d have to do (or perhaps that the contract is dependent upon some third party doing something).  The process of negotiation fleshes out the details surrounding the deal and identifies dependencies.

Engaging a lawyer will help to identify these details.  While this is part of the lawyer’s training, the mere process of having to explain the commercial deal to the lawyer makes you think about what these details are or should be.   A lawyer can also assist in identifying strategic issues that you may not have thought of.  For example, often there can be substantial issues in transitioning into or out of a relationship.  If these are not covered in the agreement you take you luck at the time.  If you happen to be on less than amicable terms with the counter party, you may rue an inadequate disengagement process.

Contracts and Timing

Rule 1 – Get advice before you sign, not after

This may seem like simple advice, but it happens from time to time that someone asks for an explanation of an agreement that they’ve just entered into.   When getting advice on a contract, the earlier the better.  Once you have signed a contract, there is usually little that a lawyer can do to help you (if it’s a rubbish contract).  They may be able to tell you how bad a mistake you’ve made, but you may not want to engage (and pay) them for that privilege. This is particularly bad in contracts which determine ownership of something (because when you sign the ownership changes).

Getting advice immediately before you sign is better than after – but not much.  It is usually difficult (although not necessarily impossible) to retrieve a position which has been negotiated away earlier.   This is because certain avenues of approach to strategic issues which are raised by the contract can be closed off in the course of negotiation.

Rule 2 – Sign the contract before you perform it, not after.

A practice sometimes honoured in the breach, is to sign the contract before you start performing it (or, worse, after you’ve completed it).  Often there is much goodwill between the parties, so they may be willing to begin performing the contract before they have signed – or even finished negotiating it.  As you get further into performance, one of the parties will be increasingly at risk if the negotiations break down – and therefore will lose leverage to negotiate an appropriate outcome.  For example, imagine you engage a builder to renovate your home, but have them start before the contract is finalised.  If you find some aspect of the contract which you cannot resolve you may discover that the builder abandons the job just after they’ve removed your roof and you will be with no quick means of engaging a third party (or if you have tendered for the work the other tenderers may want to raise their prices).

Rule 3 – Have a contract

In addition to being somewhat self serving, this advice is actually in your interests too.  Having a contract doesn’t necessarily mean that you have something in writing nicely formatted and prettily presented.  Rather, it means that, to the best you are able given the circumstances both you and the other party have a clear understanding of what is involved.  It is, of course, better if this is in writing and better still if you both sign and date it.  The reason writing is a good idea is that people’s memories are fundamentally flawed and you can be guaranteed that, as time goes on, your understanding of the deal and the other party’s will gradually drift away from each other until they are unrecognisable.  Having a written contract avoids the risks from a poor memory by having something that doesn’t change all that much over time.

If you do have a contract write it working from generics to specifics (“You must buy me a coffee.<generic obligation>  You must ensure it is a regular cappuccino from the cafe on the corner.  You must deliver it to me, still warm, at 9am on Friday.  You must ensure that, at the time you deliver it to me at least 25% of the contents of the cup are milk froth” <specific details>).  That way if, for whatever reason, you don’t get down to details, then at least your headline concerns are covered to some extent (“You must buy me a coffee.”) and the other obligations might be able to be filled in by context.

Rule 4 – If you don’t have a contract keep a record

Keeping a record of (eg making a written note of) your own understanding of what you’re required to do is still better than nothing, especially if it is dated.  A court will pay more attention to a contemporaneous document, than to the recollections of either party after the fact.  In addition, making a note may also help you to identify some of the details that you would have uncovered during the negotiation process as described above.

More on records in my next post…

Why Non Commercial Licences are Bad

Brendan Scott, September 2008

In this post I work through one example in an attempt to illustrate why purpose based restrictions in “open” licences are a Bad Thing(tm).  Let me state here that “bad” is meant as “less than optimal”, not bad in any absolute sense.  An otherwise open licence with a non commercial restriction will generally be “good” compared with closed licences for example.

Example – The Cure for Cancer

Let’s say that one night (while doing the washing up) you stumble across the cure for cancer (the Cure).   Being a relatively normal human being, you want to share this with the world to save people.  Let’s say you get a monopoly from the State over the Cure and you now need to think about how to licence it.  If  you are a mercenary type, you would start charging money for the use of the Cure.  All else being equal, the imposition of a licence fee will exclude some part of the community from being able to access the Cure (ie those people who can’t afford the fee).

Let’s assume instead that you chose to licence it at no cost, but on some licence terms.  In this scenario there may still be people who can’t afford a cure (if, for example there are other costs in delivering the Cure to them).   The people who will receive the Cure in this scenario are those who are determined by the licence terms.  If you were to chose licence terms which prohibited commercial use then you would limit the people who get the Cure.   I can’t see any reason why someone would do this, except to be able to charge extra to that group of people who would otherwise gain access through commercial means.* Anyone who can see another a reason please add a comment below!

“NC” does not Promote Philanthropy

You might not be interested so much in licensing for a fee, but might want to encourage other people to provide the Cure to others for free.  Alternatively, you might not want to see third parties profiting from something that you have decided to give away for free.  By adding a non-commercial restriction in these cases you would exclude those people who might provide the Cure to others in the course of commerce.  This would, for example, cover medical practitioners, the vast majority of whom charge for their services.  A non commercial restriction would eliminate from the distribution chain exactly the people who would be most important to delivery of the Cure to the general citizenry.

Any delivery of the Cure will have a cost.  At the very least there is an opportunity cost involved when someone chooses to provide the Cure to others in preference to doing something else.  If a person is prohibited from being compensated for their cost, then their provision of the Cure to others will actually cause them a loss.**  Regardless of whether the cost is large or small, this will restrict the scope of the people to whom the Cure will be provided (some people may shoulder a small cost for a small number of recipients, but as the number of recipients grows even small per unit costs will become unsustainable).  A non-commercial restriction doesn’t encourage others to participate in philanthropy. Rather, it simply limits the number of people who will be willing to distribute the Cure.  By trying to prevent third party intermediaries from benefiting from the Cure, a non-commercial licence throws the baby out with the bathwater.  The only thing that can be said for it is that it is self defeating.

Somewhat counter-intuitively, the way you prevent third parties from gaining an unconscionable profit from your invention is to adopt something along the lines of an open source licence.  An open source licence would permit commercial entities to sell the Cure (and probably make a profit in the short term) but the licence terms preserve a free market for the Cure.  Over time other commercial entities would also begin selling it.  Economic theory says that, in these conditions, the price that they charge will (over time) be the cost to them of selling the Cure.  This is the ideal solution – distributors have the opportunity to make a profit in the short term so they start distributing the Cure.  Over time however, price pressure from other distributors forces their prices down.  In the long run distributors are still able to cover their costs and the number of distributors is maximised.  Indeed, in this case the only time a distributor can charge above their cost is where they are providing some added value (until others start competing on that value add).  In this case the choice of a share-alike style licence will work to preserve the same market dynamics in respect of the incremental improvements.

It is also important to note that those involved in commercial activity are the ones most likely to be able to identify what needs improvement (through feedback from their customers) and to pay for incremental improvements to be made.  By excluding them you not only have a direct impact on distribution and implementation of the Cure, you also destroy a good part of future innovations based on it.

Reasoning Applies to All Purpose Based Restrictions

I have focussed on non-commercial restrictions as they seem to be inordinately popular and also seem to be the most wide reaching in their effect.  However, the same reasoning applies to any purpose based restriction.  The effects of the restriction will be determined by the restriction itself.  For example, a prohibition on “use for celebrating the 4th of July in the year 2075” may have little practical impact on uptake in the short term (but may have some unexpected consequences around July 4, 2075).

Conclusion

I chose the title of the post, not because non-commercial licences are absolutely bad, but rather to draw attention to the fact that licences with purpose based restrictions will generally restrict the scope of the distribution of the content licensed.  I have chosen the example of a cure for cancer, because it is something which ought unequivocally be distributed among as many people as possible.   The two reasons I can see for a purpose based restriction are:

(a) to charge money for the use of the thing; and

(b) because the person has an ethical objection to the purpose (raised in note *)

I do not want to suggest that these reasons are illegitimate.  I suspect, however, that (a) is a pipe dream in the vast majority of cases.  The publishing industry promotes the idea to authors that untold riches await them if they are as covetous as possible of their “intellectual property”.  The reality though is that for every successful creator there are thousands (if not millions) of unsuccessful ones.  The probabilities are very much against any particular person (authors’ associations the world over consistently report below average income for authors).  In coveting their “intellectual property” authors consign themselves to a lifetime of anonymity – one of the worst punishments for a voice which wants to be heard.  Moreover, they miss the opportunity to make the world a better place by giving others access to their creativity.  This ideology which inspires non-commercial restrictions is an ideology in which everyone (except the owners of a distribution channel) loses.

Notes

* Actually, there is one other reason, which is that you have some ethical objection to the particular purpose.  In the case of commercial purposes most people would have trouble living in practice by such an objection (eg they would need to live in a gift economy).

** In practice a distributor will produce a number of units of the Cure in advance and must take the risk of not being able to sell them all.  In this case, even limiting them to their cost of sale will cause them a loss – if not all of the inventory is sold.


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