Posts Tagged 'floss'



Release of IFOSSLR Vol 2, Issue 1

Release of IFOSSLR Vol 2, Issue 1

The next edition of the International Free and Open Source Software Law Review is out [disclosure, I’m on the editorial committee] and it’s a great read.  I can wholeheartedly recommend the articles in this edition.  I wasn’t a reviewer of any of them for this edition so the first time I saw them was when I downloaded this edition.  They’re good.  It’s pretty rare I pick up a legal journal and add pretty much every article to my ‘to read’ list.

Moreover, even if you’re not a lawyer, this edition has some things which will be of practical interest to you.

Get it here.

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The Patent War of All Against All

The Patent War of All Against All

“Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man. For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and therefore the notion of time is to be considered in the nature of war, as it is in the nature of weather. For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together: so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary. All other time is PEACE.”

Hobbes, Leviathan, Chapter XIII, paragraph 8

Glyn Moody has written a post about a system called U-Prove.  Glyn notes that the software is being licensed under a BSD licence and notes that is a good thing, but then observes that there is a patent encumbrance on the code, and indicates this is a bad thing.    In a comment, Sam Ramji refers off to this article of mine, kindly remarking it is a ‘good post’.

The essence of Glyn’s argument is that the OSP does not preserve the freedom of free software, so it is not sufficient.  Sam appears to be adopting my comments to the effect that it’s hard to single out one company for the patent blame game.

In the context of free software patents are problematic.  In the ideal world patents on software wouldn’t exist and there wouldn’t be a problem.  However, they do exist.  Moreover, part of the reason they exist is because of a variation of mutually assured destruction – many businesses believe they need to acquire patents in order to defend against other patents.*  Jonathan Schwartz sets out some of the sad, tawdry circumstances in which this logic plays out here.

I think it is a non trivial problem to find wording which preserves just the defensive potential of patents (which, is actually their offensive potential limited to specific circumstances of exercise)  while preserving freedom when licensing software.  Some of the more detailed free software licences attempt this.   It is, I think, a more difficult problem to craft such wording to apply to standards – because standards purport to be agreed by some collection of people, while freedom requires that everyone be permitted to pursue their own goals.   Thus, any ‘promise’ or ‘covenant’** which is limited to an agreed specification must necessarily be inconsistent with freedom in a way qualitatively different to a patent clause in an open source licence.   Moreover, any wording which applies to a particular version of a specification will be inconsistent with the evolution of that specification.  In short, promises made in relation to specifications are likely to always be problematic (the best to hope for is a disclaimer  – per W3C).

Therefore, if the words themselves are likely inadequate, the issue of who is saying the words, and what one can reasonably read into them becomes much more important.  In the OSP post that Sam refers to I explicitly reference  another, earlier, article on the OSP which calls this issue out.  With this in mind, I note that Microsoft has recently chosen to specifically draw out the Linux/open source angle in its cross licensing deals with Amazon[3] and IO Data[4].  It didn’t need to, but presumably chose to.  It seems reasonable to conclude this is signaling.  These are grounds that would justify a reasonable person finding the OSP inadequate.

If Microsoft wants people like Glyn to trust them, they should perhaps incline against, rather than toward making the will to contend by battle […] sufficiently known.

Notes:

* This, by the way, is much the same argument used by Hobbes in favour of the need for a common power to counter the war of all against all (hence the quote above).  In this case however the common power (parliament) rather than saving us from a state of war of all against all has plunged some of us into a version of it.

** (I distrust these words – if it is a licence why not call it that, but perhaps they are US terms of art?)

[3] ‘said Horacio Gutierrez, corporate vice president and deputy general counsel, in the news release. “Microsoft’s patent portfolio is the largest and strongest in the software industry, and this agreement demonstrates … our ability to reach pragmatic solutions to IP issues regardless of whether proprietary or open source software is involved.”  The press release is here, it doesn’t fall over itself as much as the IO Data one below.

[4] ‘...said David Kaefer, Microsoft general manager of intellectual property, in a statement announcing the latest deal. “Microsoft has a strong track record of collaboration with companies running Linux-based offerings, and this agreement is a reflection of our commitment to partner with industry leaders around the world.” In fact, on Microsoft’s press release page (at 12 March 2010) the call out comprises of the words:  “I-O Data customers will receive patent covenants for their use of devices running Linux and related open source software.”  The press release is at pains to refer to it.

Free Software is Principled

Free Software is Principled

I recall, several years back now, being in some sort of forum somewhere arguing over the implementation of anti-circumvention legislation in Australia.  I recall Rusty Russell talking about ghostscript’s [?] handling of pdf documents at the time and how it respected restrictions settings in the pdf documents.  That is, despite being able to ignore them, ghostscript’s authors decided to respect them.   In practice that would mean that most ghostscript users would also respect those settings.

By way of contrast, today, looking for information about pdf to text conversion tools I came across closed source software whose primary purpose is apparently to remove restrictions from pdf files.  In my experience free software is typically more principled than its closed source counterparts – perhaps stupidly so.

LA Funds Important Legal Research on Free Software Compliance

LA Funds Important Legal Research on Free Software Compliance

Over the past twelve months or so I’ve noticed an upswing in enquiries about free software compliance.  For example, someone might be seeking access to source code for embedded devices with Linux and/or Busybox on them.   One of the key problems for pursuing compliance is the legal concept of  “standing”.   That is, does the court think you have a right to press the claim in question?   So for example, if you see someone (A) breach a contract with someone else (B), a court will probably not let you sue A, basically because that is B’s business [1].  B might not be concerned about the breach, or B might have a relationship with A (or someone else) that might be jeopardised by suing A, so it should be up to B to make the decision about whether to proceed with a suit.  Moreover, A has not infringed a right that you have, so why should you be able to sue?  You’ve not suffered damage, so why should you be able to sue? In short, a court seeks to limit the people bringing actions to only those people whose rights have been infringed.  So,  if you, not holding copyright, see someone breaching the GPL, you can’t sue them in copyright to enforce compliance.

The term “free software compliance” is a short form of compliance with the licence terms for the free software.   In this case, the relevant person whose rights are infringed is the person who granted the licence.  That is, the person who holds the copyright in the software.  Therefore, to bring a court case would require the copyright holders to be parties to the case.  Given that copyright holders are largely concentrated overseas this presents problems for compliance within Australia.  While it is possible for foreign copyright holders to initiate and/or participate in Australian proceedings, it is not simple as the mere distance presents logistical problems.   There are other practical problems that a foreign copyright holder faces.  For example, they may be required to be present in Australia in order to give evidence.   Even where the copyright holder is in Australia they may be reluctant to pursue proceedings.  For example, they may not think it justifies the time commitment they would need to make, or they may not want to be exposed to the possibility of the award of legal costs if they are unsuccessful. I have spoken with some foreign copyright holders and generally they are happy to help, but can’t commit to spend much time helping.

This is where the Trade Practices Act (TPA) is relevant.  The TPA has a very wide concept of standing.  Practically anyone has standing to sue for a breach of the TPA.  If a competitor puts on a misleading advertisement you don’t need to have been misled in order to have it corrected.  You don’t need to show that you (or indeed anyone) suffered a loss.  The mere fact of a breach is usually enough for anyone in the community to enforce compliance with the TPA.   The TPA is therefore particularly relevant for free software compliance.  If a breach of the terms of a licence are also a breach of the TPA, then you don’t need the copyright holders in order to take action.  You can leave them out of it entirely and, instead, rely on your rights as a consumer.

Enforcement under the TPA has other benefits.  First, courts have tended to interpret the Act in a way which favours consumers (not surprising as this is the point of the legislation).  Second, the consumer protections set out in the TPA are pretty straight forward.   You may have heard of “section 52”, which provides that a person must not engage in misleading or deceptive conduct in the course of trade.   In the case of section 52 intention or knowledge is not relevant.  If someone is unintentionally misleading, they will still be caught by the section.   Finally, the TPA comes with an administrative structure for enforcing consumers’ rights in the form of the ACCC and its State and Territory equivalents.  That is, you need not even go to court in order to enforce compliance.  You can, instead, rely on consumer rights procedures (at least in the first instance – if all else fails you may still end up in court,[2] and even then the consumer body may assist you with the case – as happened up to the Federal Court in the groundbreaking Stevens v Sony case).   This may involve some education of the consumer protection people, but, ultimately it’s their job to protect consumers so they must come around sooner or later.  Essentially, vendors who do not (for example) supply source code when they are obliged to are depriving consumers of a legal entitlement.  Imagine how they would react to a vendor selling a car with a wheel missing.

Last year, I was contacted about a potential compliance issue for a router product in which Busybox was embedded (the company in question has since gone into administration).   As  is often the case, the person contacting me did not have a lot of money to spend on legal advice or drafting.   In these cases people don’t tend to contact me until they have first tried to get through to the relevant vendor, so it is usually at at least the first level of escalation.   It seemed that the best way to deal with these cases, at least initially, was to try to create some “self help” materials for people to pursue themselves, without having to engage a lawyer.   To do this, however, would mean that the initial issue of standing needed to be overcome, so I turned to the TPA.  After a short consideration I came to the view that there were profitable lines of inquiry in the TPA, but the mapping of free software to the TPA is not straight forward.  How would the research be  funded?

I was told about the Linux Australia grants system and discussed with one of the then LA committee members whether a “compliance how to” might be worth doing.   I put together two proposals to put some materials together:

http://lists.linux.org.au/pipermail/linux-aus/2009-December/017823.html
http://lists.linux.org.au/pipermail/linux-aus/2009-December/017822.html

Initially, the committee wasn’t convinced that this work would be of value to the community – see after item 5 of this post:

http://lists.linux.org.au/pipermail/linux-aus/2010-February/017896.html

In their next meeting, (last night, 3 March), the Linux Australia committee decided to go ahead and fund the first proposal I submitted (I am making a 1:1 in kind contribution of my time).  This is important research into what arguments might be raised under the TPA if someone is not complying with a free software licence (a decision on the second proposal has been deferred), so the decision is excellent news.  Only yesterday I received another referral – via the SFLC.    They wanted to be able to take it to the next stage and send something more formal to a vendor they’d contacted, but didn’t think it worth spending much money on.  Once the research phase is done, producing notices such as this will be substantially easier (because the background of what is to be said is already set out).   The outputs of the research will be public.

If you know of devices sold in Australia that you think are non compliant, send them to me, because I may as well start a list.

[apologies if you saw a draft of this up – the autosave put it up by mistake]

Notes:

[1] This is talking only about civil actions.  If there is a crime involved different issues come into play.

[2] The minority of cases end up in court.  By and large things are resolved without recourse to courts.

Jacobsen v Katzer settling?

Jacobsen v Katzer settling?

A birdy tells me this is the case.

Stay tuned.

More Busybox Suits

More Busybox Suits

Received an email from the SFLC today.  It seems that Best Buy, Samsung, Westinghouse, JVC and Western Digital are all defendants to a busybox based lawsuit initiated through the SFLC.  Complaint is here.

New Aussie Supercomputer Runs Linux

New Aussie Supercomputer Runs Linux

The fact that a new supercomputer runs Linux should hardly come as a surprise to anyone.  What else would it run? W7? ROFL.  Well, if it did run W7 I’m pretty sure someone would have been all over the reporters for the Sydney Morning Herald making sure that they mentioned it in their article “Australia’s new supercomputer outflops the lot“.  However, since it isn’t, the reporter had a discretion on what to report, and they didn’t mention what operating system it ran.   I had to look the thing up on Wikipedia, where it told me that it runs Linux – Centos actually.

It is hardly surprising that closed software systems are so prevalent in Government when Governments themselves fund extensive lobbying and marketing by their vendors.  Of course, the line item doesn’t say “marketing and lobbying”.   No, instead it reads “Ridiculously Inflated Monopoly License Fees Courtesy of the Copyright Act” (sometimes it’s just “License Fees”).  Governments need to even the playing field and support open source marketing to the same extent they subsidise closed source marketing.


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