Pre-class Discussion for Jan 11

• Speaking of selling your soul (er, data) to an OSP, here's your postal mail online--the last(ish) frontier? Personally I would love this service, my snail mail is all but a hassle for me at this point. But of course, there are a slew of concerns from privacy to control to reliability, which somehow, quite irrationally, I worry about less with all my online communications. --Jumpingdeeps 23:00, 10 January 2008 (EST)

Bubbling Widget Growth

Perhaps not directly relevant here, but it seems that the free software folks do not have a good answer to the challenges to generativity brought about by contingently-generative platforms that we discussed in class yesterday. The closest attempt I am aware of the GNU Affero GPL (mentioned in the Quick Guide to GPLv3), which applies to network-interactive software. Of course, Facebook et al. can simply write their own code. More importantly, the license operates at the software level, whereas the real value of sites like Facebook is the social network made possible by the software (the hourglass structure).

In an environment where most users are consumers rather than developers and therefore are less interested in ensuring that their contributions cannot be appropriated by a third party, is there hope for sustained, unconditional generativity? Rlumpau 11:11, 11 January 2008 (EST)

Normative Principles for Evaluating Free and Proprietary Software

Prof. Zittrain briefly mentions in his conclusion one solution for the legal imbalance between the free software and proprietary models: shortening the Statute of Limitations on copyright claims against free software providers. Granting that this would, by its nature, reduce the potential volume of litigation against free software providers, does it resolve the problems Prof. Zittrain identified (imbalance of litigation funds, increased identifiability of copyright violations in open source code, anonymity of authorship)? My first instinct is "no, it wouldn't," although Prof. Zittrain noted he would be writing an article about the subject, so perhaps I just haven't sufficiently thought it through.

To my mind, though, there seems no good legal resolution to this problem. The greatest difficulty seems to be that there's no effective locus of liability (or point of control, if you prefer): given that proprietary source code is not open-sourced, the only party involved with a free software project who could have knowledge of copying (or, alternatively, patent violation) is the individual code editor (who, incidentally, is almost assuredly judgment-proof). Thus, so long as there is at least one unscrupulous editor in the pool of editors working on a project - and given GNU/Linux's thousands of editors, there will almost certainly be an unscrupulous editor somewhere - a copyright or patent violation is almost certain. So who can be liable for a violation? As noted, the editors themselves are liability proof; the end-users (see SCO v. IBM) have no knowledge of violations, so if they were liable, the resulting uncertainty about the costs of using a particular product would scare them away from free software generally; and there doesn't appear to be a primary distributor of free software products, nor, if there was one, could it have any greater knowledge of violations than the end-users.

Thus, it appears to me that the only effective defense of the free software movement is blanket liability protection, but doesn't this simply invite users to steal code from proprietary products? Is there some other balance that I fail to see, or are free software and proprietary software simply irreconcilable? Kratville 09:55, 11 January 2008 (EST)

To link things up with other parts of the class, perhaps this is another instance of the Catch-22 of generativity: the more mainstream open-source software gets, the more likely you are to get bad actors. JoshuaFeasel 10:07, 11 January 2008 (EST)

If a company asserts a copyright/patent infringement claim against a free software project that is sufficiently narrow to be tracked down to a set of contributions, wouldn't those contributors be direct infringers? Almost all projects employ revision tracking systems that can match snippets of code to their authors (very similar to the history function of wiki software). But would there be a contributory/vicarious infringement claim against the larger project (e.g, the Linux kernel)? Rlumpau 11:32, 11 January 2008 (EST)

This also gets to the agency question we discussed with regards to Wikipedia: to what extent can a free software project be liable for the acts of contributors? Doctrinally, this gets into the details of how a specific project is run, but as a matter of policy, should IP claims work their way up the ladder like this? What about DMCA anti-circumvention violations?

Some commentators have suggested a rule of strict liability for security flaws in software. How would this work for free software? Security flaws often come about not from a bug in any specific piece of code, but from a certain combination of pieces. When the problem cannot be pinned down to any one contributor, how should the law treat it? JoshuaFeasel 12:08, 11 January 2008 (EST)

• There are several commercial distributors of free software products, like Red Hat, Novell/SUSE, and perhaps Canonical. Red Hat already provides an "Intellectual Property Warranty" through the Open Source Assurance Program that promises to replace infringing software. Novell offers a similar program that includes indemnification from SCO-like claims. I think the larger point is that individual actors can quite easily tailor their exposure to free-software related risk through existing market tools (e.g., insurance). Of course, that would drive up the total cost of using free software, but as Benkler points out, companies like Amazon and Google probably choose GNU/Linux not because it's cheaper, but because it meets their needs better. Rlumpau 10:09, 11 January 2008 (EST)
  • On this topic, Network Appliances sued Sun for patent infringement shortly after Sun open-sourced its ZFS file system. For many free/open source software projects, plaintiffs do not suffer for lack of people to sue. JoshuaFeasel 10:52, 11 January 2008 (EST)
  • Now see, there's a mechanism I failed to consider; if we make only end-users liable, and provide them with insurance, perhaps the problem is obviated. However, if SCO wins and these lawsuits become more rampant, the presumption would be that insurance costs would rise substantially, perhaps prohibitively. I mean, if on the basis of a single infraction you can sue every single company that has used GNU/Linux, that's a LOT of potential damages that the insurer must cover. Kratville 12:39, 11 January 2008 (EST)
    • Right, I don't think end users will or should be liable. I think what the insurance/indemnification policies are aimed at is the fear of some businesses that the software they rely on will become unavailable. As for upstream liability, for most of the larger projects (that is, those worth suing) there are gatekeepers (cf. our discussion of editors and bureaucrats on Wikipedia) that perhaps could be responsible. Of course, such strict liability would have significant chilling effects. Rlumpau 13:47, 11 January 2008 (EST)
• Also, to nitpick: they're not "editors." Perhaps "developers" or "coders" is a better term. Rlumpau 10:10, 11 January 2008 (EST)
  • Sorry about that :) Kratville 12:39, 11 January 2008 (EST)

A Quick Guide to GPLv3

• Full text of GPLv3
• Client alert on GPLv3 that I helped draft.

Rlumpau 09:43, 11 January 2008 (EST)

If I'm reading the guide right, it says that any DRM built into software written with code protected by GPL is not considered a TPM, and therefore writing more software that breaks the DRM does not implicate the DMCA. Does this mean that any DRM built into devices like TiVo that run GPLed software can be broken without any sort of DMCA liability? --NikaE 13:11, 11 January 2008 (EST)

If the software is licensed under GPLv3 (TiVo isn't), and if this provision is legally enforceable, it would seem so. TiVo is worried about GPLv3, but apparently more because of the "right to tinker" provisions. JoshuaFeasel 13:47, 11 January 2008 (EST)

If one believes that the license is enforceable and if the software used is GPLv3, then probably. Rlumpau 13:48, 11 January 2008 (EST)

• Some stats on GPLv3 adoption. KDE is trying to relicense to v3. Rlumpau 13:52, 11 January 2008 (EST)

Some Confusing or Loaded Words and Phrases that are Worth Avoiding

Obviously, Mr. Stallman (the author of this section) is something of a zealot. Among other things, he clearly wants to distinguish himself and his free software movement from the "less idealistic" open source movement, and this entire section exudes an "us-against-them" attitude. But, hypothetically, if copyleft were unavailable and the free software users of GPL licenses were forced into other models, would they stop coding altogether? Or would they simply shift to Stallman's detested "open source" model? If - as I happen to think is the case - they would probably just adopt open source as the least of all available evils and continue their work, isn't it universally economically advantageous to eliminate copyleft, as that would encourage profit-motivated coders to work on previously-copylefted software, while still permitting those who otherwise would have worked on free software to modify the same open source code and release their changes (with source) free of charge? Kratville 10:05, 11 January 2008 (EST)

• "Universally" is a strong word. It would be economically advantageous to the profit-motivated coders, but disadvantageous to all those coders who had worked on the open-source software prior to its appropriation by a profit-minded coder who adds a (perhaps trivial) patch and declares his version proprietary. It might also be disadvantageous to users who want the software but cannot afford the cost, and disadvantageous to society as a whole if those users would provide a net benefit.

• It is telling that Mr. Stallman distinguishes between "free" and "free-of-charge;" the profit-minded coders have ample opportunity to offer their services as technical support for a subscription fee (I believe this is part of Red Hat's business model), and ultimately it is a macroeconomic question as to whether there is a net benefit from this action as opposed to the creation of proprietary software in its place. Eroggenkamp 10:13, 11 January 2008 (EST)
  • See, I don't think I grant any of these points, at least if we're simply talking economic advantage/disadvantage, which is how I was hoping to cabin the question (obviously, the coders of open-source software would be DISPLEASED to see their work appropriated for someone else's profit). The coders who worked on the open-source software prior to appropriation don't seem to be economically harmed; they're still free to modify the software they create, and the open-source software built upon it that their free-software compatriots would also create. They simply would not be able to modify proprietary code, but the presumption is that such code would not have existed in a copyleft regime (because the profit-seeker would never write it). Similarly, because consumers are still free to use the unpatched software (which, again, would be the software available under copyleft, since the patch-maker would not have entered the market), I don't see any harm to them. Basically, those unable to pay and open-source coders are left in the same situation they were in before, and proprietary coders and those who CAN afford their improvements are in a better situation.
  • And obviously, left out of this equation are those who, in the absence of copyleft, would switch from free-software coding to proprietary coding. I'm assuming that the number of such coders is small, but I freely admit I don't have data on that. If you think that this switch would be widespread (relative to those who go from free-software to proprietary), then a great deal of the above analysis changes. Kratville 12:33, 11 January 2008 (EST)
    • I don't think you can just ignore the fact that OSS coders would be displeased. It's at least plausible that a significant number of them would be so displeased as to stop releasing their code to the public. This would cut down on the amount and quality of free software being made available, harming the users who are unable to pay. JoshuaFeasel 12:49, 11 January 2008 (EST)
    • It's an interesting question to consider. Many hackers I know do it for the love and the satisfaction they derive from coding & contributing to a free project, but a lot of people also have strong feelings about software freedom (see, e.g., online petitions for preventing software patents in Europe). As an individual data point, I personally would not switch to working on proprietary software. Rlumpau 13:55, 11 January 2008 (EST)

• Also, I don't know whether proprietizing software will create significantly more opportunities for money-minded programmers--after all, they can already code their own proprietary version of any free software program they want. JoshuaFeasel 10:15, 11 January 2008 (EST)
  • Well, they can probably legally code a ground-up version, yes. But they're barred from creating derivative works, which is a MUCH cheaper alternative; if they were able to adopt this inexpensive option, presumably a substantially greater number of them would enter a given market. Are you really suggesting that it wouldn't have been easier for the GNU/Linux programmers if they could have used Unix code? Kratville 12:33, 11 January 2008 (EST)
    • No, it certainly would be easier to build on an established base than to start from scratch. At the time, I didn't realize you were talking about putting all free software into the public domain. Apologies. JoshuaFeasel 13:01, 11 January 2008 (EST)

• RMS is certainly a character. Zealot is one way to describe him; others call him a visionary. It's quite likely that without his uncompromising position, the software industry would be very different today. No matter what you think of him, I think his central point is that it is simply not an economics issue. The ability to profit from software, while important, is not the goal. The licenses are designed to ensure that users and developers have certain freedoms. It's much more of a normative question than profit maximization by indivudual actors. Rlumpau 10:21, 11 January 2008 (EST)

• A little RMS fun: 1 and 2 JoshuaFeasel 10:26, 11 January 2008 (EST)
  • Slightly (ok, much) more obscure humor, making fun of the standard "ed" text editor. Rlumpau 10:32, 11 January 2008 (EST)

• It's also worth noting that the emergence of GPLv2 as the predominant free software license says something about the motivation of developers. Other, "more permissive" licenses such as the BSD family of licenses are available. Certainly, part of the explanation is that once you start contributing to a GPLd project, you can't change the license. Still, it seems that GNU/Linux is "more successful," so to speak, than the BSD projects (which, of course, are excellent software built on a different set of values). Incidentally, if you think RMS is a zealot, take a look at what Theo de Raadt (homepage) has to say. Rlumpau 10:28, 11 January 2008 (EST)
  • Again, I freely grant that devs might prefer GPL; I'm simply saying that my guess (again, admittedly with no data) is that devs who prefer GPL would, if forced, switch to open-source coding rather than abandon coding altogether (or switch to proprietary coding). Kratville 12:42, 11 January 2008 (EST)
    • This gets tricky, because many contributors to free software are programmers with day jobs at proprietary software companies. I think to many of these people, having their work made into proprietary software will feel unfair and they will decide to stop releasing their code. As Professor Zittrain noted, there is a powerful moral rights strain of thought in the free software community. JoshuaFeasel 13:08, 11 January 2008 (EST)

Microsoft Takes On the Free World

• Do Microsoft's threats demonstrate that free software is more vulnerable than proprietary software to legal action, or does the Open Invention Network suggest that the problem is less significant? Smaller, less business-oriented free software projects are less likely to get this kind of help from large corporations, but are these projects less susceptible to legal threats as well? JoshuaFeasel 09:59, 11 January 2008 (EST)
  • Perhaps the question isn't vulnerability to legal action (since it's not clear whether the suit has any merit), it's willingness to sue. I noticed that the article mentioned the Open Invention Network, which could potentially file a patent countersuit against Microsoft; but the FOSS producers have little to no incentive to file suit, whereas Microsoft has every incentive to attack competitors that may pose a threat to its near-monopoly. Eroggenkamp 10:13, 11 January 2008 (EST)
    • Willingness to sue is certainly part of it, but as we see from the GPL lawsuits article, free software advocates certainly want to enforce their own licensing terms as well. The ability to detect potential infringements probably also plays a role, along with the other factors Professor Zittrain noted. JoshuaFeasel 13:32, 11 January 2008 (EST)

Open DRM Blog Entry

• It's interesting to note the difference between RMS's and Lessig's positions. Lessig says: we should have a DRM-free world, but if we can't, we should build fair use into the DRM system. RMS says: we should have a DRM-free world, but if we can't, let's neutralize the DMCA. It seems that RMS is taking a much less compromising position (at the very least, if you break the TPM, nothing is reported to content owners and you can distribute the software that breaks TPM). Rlumpau 10:48, 11 January 2008 (EST)

• • I don't think that they fundamentally differ in their philosophies. I think that Lessig would neutralize the DMCA if he could, but that his support for fair use provisions in a DRM system is a pragmatic compromise while RMS is taking more of a hard line stance on DRM. Anna 13:45, 11 January 2008 (EST)

What This Gadget Can Do is Up to You

• It looks like other companies are warming up to the idea of open hardware. In September 2007, AMD/ATI released over 900 pages of GPU specifications; AMD is now working an on open-source driver for their recent chipsets. PDF goodness available from x.org.
  • By way of background, the consumer-grade GPU market is dominated by NVIDIA, AMD/ATI, and Intel. Until recently, most of the drivers (as distinguished from hardware specifications) for Linux have been distributed as object code without the accompanying source code. Intel has been working on free drivers for their hardware, and a number of independently created drivers are available. However, the reverse-engineering process is quite difficult without access to hardware specs, so the AMD/ATI move is excellent news for the free software community.
• Another example of free hardware is OpenMoko, an open hardware/software mobile phone platform. Unlike Google's Android and the closed iPhone, OpenMoko provides access to hardware specs.
• Perhaps this is going a little too deep, but wireless (802.11) devices present an interesting issue for open hardware proponents. Due to FCC rules, such devices may not allow end users to modify their broadcasting/receiving characteristics, so manufacturers like Intel have been looking for ways to implement these restrictions in free drivers. One way to do this is through the use of firmware, tiny programs that run directly on hardware to implement very low-level operations. The free driver invokes such low-level functions using "magic" numbers whose meaning and effect are secret. Some operating systems like OpenBSD have refused to include binary firmware (aka "blobs") on the grounds that free software that relies on closed-source software is not truly free.

Rlumpau 09:58, 11 January 2008 (EST)