ILAW: Lessig v. Matusow of Microsoft
Next up: a debate between Professor Lessig and Jason Matusow of Microsoft, on whether open source and proprietary software can peacably co-exist.
[Also see participant Frank Field's excellent notes.]
Charles Nesson: I am moderating this debate and I will pose the questions--we'll start off with Larry; he'll have fifteen minutes, and so will Jason. Jason is the shared-source initiative (SSI) director from MS.
Larry: Let's examine the differences between free, open, shared and proprietary software. Differences in the extent to which the user is empowered. Jason says there's a middle way.
Questions for each type: 1/price?, 2/good code?, 3/good for teaching others?, 4/enables strategic behavior?, 5/"destroys" intellectual property?
All open and free software teaches. Shared source also teaches in some cases.
I'll say something Dave Winer would punch me for if he were here: Proprietary software doesn't teach.
Stategic behavior: I claim free software can't be used in this way. Shared, maybe. Proprietary software, yes, it can.
Destroys IP? There was a claim made by MS in 2001 that open source "destroys" IP. Jason is very subtle and sophisticated in speaking about this. They don't make this claim anymore, very much.
Is the software "viral"? Shared and free software present a question. I want to ask Jason whether shared source software is "viral."
The key thing to recognize: both free software and proprietary software impose a condition. The condition either money or control.
Which should we prefer? Who is the "we"? Ballmer has said that Linux is a competitive challenge. Concerned about people convincing governments worldwide to adopt open software. This is an increasing movement.
Oregon has an open source software act; it hasn't proved a successful idea. Peru has pushed a similar requirement; so has Germany. [Cites Prof. Barton's study.]
Government has certain values that would point to maintaining a rich ecology.
MS has resisted this in narrow ways. Let's pick apart a statement they made:
1/"Primary stimulus for innovation is IP protection"--no, IP protection is one stimulus.
2/"GPL forbids the commercial licensing of software"--no, it forbids proprietary software.
3/"the private sector is foreclosed"--no, not all parts of the private sector, only the proprietary part of the private sector.
3/"the government shouldn't foreclose some business models"--well, if that's the principle, it shouldn't support proprietary software.
Jason: A little history: I had a funny experience in SF. I had this crazy haired cabbie who kept calling Larry "Darth Vader." I brought a present. [He gives Larry a Darth Vader cape and a light saber! Big laugh.] This may get blogged, I am not sure (chuckles).
We need to separate the topics of discussion.
[...]
I am here to talk about shared source.
There is a longstanding cycle of innovation in software: government works with academia, works with industry, works with consumers.
I would disagree with Larry that TCP/IP is what created the Internet. I would say that private networks and development had a big part of it. Much of the investment comes from private sources. People are looking for a return on that investment.
Whenever we talk about this, there is someone who says software shouldn't be commercialized. Some who say it should be indirectly commercialized. MS says it can be directly commercialized.
There's no one right way to write software. There has been amazing free software, shared software, and proprietary software. To say one model should rule all is an unfortunate generalization.
There is commercial and noncommercial open source software. Red Hat is commercializing the software. The support agreement says you cannot modify the software. At the end of the day, they are choosing to commercialize it.
In terms of Larry's lexicon: he's missing a category--commercial. The industry is moving to the middle. RealNetworks, Helix project. Shared source falls into this category.
Part of the discussion around software has been about commoditization. Traditional model: de facto standards, common functionality, and whiz bang (competitive differentiation).
How does MS look at this? We want to address innovation and also revisit old things. We want to reexamine the way people type. The other end is looking at natural language, speech recognition.
Why does source code keep coming up? I am amazed about this coming up again and again. Transparency is important. Governments are talking about it. We did a survey. 68 percent want to see and modify source code. Less than 5 percent actually have done so.
What this says is that transparency is the key. People care about the opportunity to look. Transparency increases trust. So how do we approach it? Shared source is our way to do this.
Free Software Foundation has created one widely used license. We are not going to do this one license for everything; we're doing different things with different code.
[...]
The Windows source code is available for certain people. It is shared, not open source. An approach to saying, "transparency is important." This is a balance for us.
CN: Let me try and focus the debate. Will each of you take one minute to state the question you would most like others to address.
Larry (in his Vader robe): Let me focus on the word that we agree on: "transparency." Is MS being transparent about its strategy vis-a-vis open source software? There are proposals appearing everywhere about disallowing funding of GPL. Reports by orgs with MS support.
Jason: We have been extremely transparent about our feelings about the GPL. We came right out and said that we don't like this license. Relative to governments...someone asked me about procurement preferences. My statement was that MS does not believe governments should have procurement preferences. Choose software if it works and for the cost value. We've never advocated that the DoD not use open source software; we do advocate they should understand it if they do intend to use it.
[...]
Larry: You said two things that had the word "value" in it. You said governments should make their choices based on cost value. Are you saying it comes down to money?
Jason: No.
Larry: If a developing country decides to use open software, that might reflect their values.
Jason: I agree with you up to the point that you say, "Let's legislate this."
Larry: But the government could through legislation articulate its values.
Jason: I come up to the door, until you get to legislation.
Larry: I am not advocating: "you must buy this." But rather, articulating what values will guide the purchase.
Jason: ...I would point to situations in the US--the GPL license can have complications for developers.
[...]
Larry: In the case I gave, which I thought you agreed with, the goverment would not specify what to buy.
Jason: Let me give you an example. Windows server 2003. We put in transactional file sharing. We innovate something different. We have dumped R&D into it; who declares it a commodity?
[...]
CN: Jason, what's your number one question for Larry?
Jason: I guess my question ultimately is: Is the direct commercialization of software wrong?
Larry: You have a harder question than that, right?
Jason: But I've heard you say, software patents = bad. So I want to know; IP is very important. At the end of the day, question: is the direct commercialization of software bad?
Larry: Lots of direct commercialization of software is good. Linux depends on IP protection. You can be opposed to patents without being an enemy of IP altogether.
Jason: If transparency is good, and you're going down that path...Is the relative importance of patenting going to increase? Won't you have to rely more heavily on IP?
Larry: Some say it might be better for software to be patented than copyrighted. In an ideal academic world, that might be good. But in the real world, software patents are bad. You're in favor of software patents, aren't you?
Jason: Yes; it's a defensive measure. Red Hat has started a patent practice for that reason. But I won't go down that path.
Larry: Craig Bundie [sp?] went down this path. MS has just been defensive so far, but its patents could be used differently in the future.
CN: I want to open this to the audience and faculty members. I ask that you pose questions designed to define the difference between these two debaters.
Participant: Jason, you said that you only use patents in a defensive manner--but why have them at all if you're only using them this way?
Jason: The system does exist and you do have to act. We are doing something Larry may not know. We've extended indemnification. We need to be consistent.
[...]
Reason the SCO case is so important, is because the customer is important.
Larry: SCO acquired rights, bringing suits against people using Linux.
Proposition that it's dangerous to use Linux; people will sue you. MS using this to better themselves in this battle.
Quote you pointed to before. Bill Gates in 1991: "Patents would bring industry to a standstill." Jason said you have to take the system as you find it. I agree.
Jason: To be clear, there are a number of "..." in this quote. This was a lamenting. It was: we are under attack; we have to respond.
Larry: Of course, it's no longer the case that MS is the little guy in the scenario.
Participant: How would you feel about open data formats being mandated by the government?
Jason: Bruce Perens very heavily pushes this in his discussion. There are lots of open formats. ASCI is an open standard, implemented in products. The goverment could say, "You must publish in HTML."
Why don't people do that? They tend to want the higher end products and the additional functionality.
Larry: You have no problem that the UK government says you must use MS Word?
Jason: I am opposed to this. You cannot have governments mandating either development models or products.
Renata [?]: Jason, it seems to me that transparency for you means control. What Larry wants is transparency in a different way. You want "look but don't touch." To you, transparency is about control, yes?
Jason: Shared source isn't "look but don't touch." RE transparency, let's look at security. The right people can look at it.
[...]
He is a copyright lawyer--of sorts--and he will tell you there are issues surrounding derivative works. If I do something w/others' work, I may have a concern. Different rights holders will come to you with different concerns.
[...]
CN: One of the concerns that has arisen has to do with the plight of developing nations with regard to copyright violations. Those nations may feel that as a step toward development they need to respect the rule of law. This is an argument for open source software rather than pirated software. If you credit the idea that a developing country wants to be legal and stay free of WTO trade sanction enforcement--would you endorse them going with open source?
Jason: The corporate answer would be, they still need to be free to choose the software that gives the best value for their money. But fundamentally there are a lot of question marks here that may not best be addressed in a public forum.
Larry: Is it better that they pirate and use your software, or better that they obey IP law and use open source?
Jason: I do not have a good answer for you. You do not get to live in this world where you get to say, "Let's assume...blah blah.."
Participant: Free BSD!
Larry: [Repeats question.]
Jason: This is a good question, but you're not going to get an answer today from Jason Matusow.
Larry: May I conclude one point, moderator?
Jason: It's a hung jury, this moderator.
[Writes elaborate diagram on whiteboard...]
If my compiler is GPL'd and I pull in a header, this would be a combo of the tech. If I am doing this on top of Linux, no problem.
Larry: Am I allowed to do all of this, if I don't release? A difference: with shared source I have to make a choice, but with free software I have no limitation on what I do on my machine.
Jason: On an intent level, SSI has nothing to do with stopping someone from doing what you describe. But yes, there are limitations here.
[...missed a bit...]
CN: What's the takeaway?
Larry: Is there a devil here? If there is, it may be in the details. MS either overtly tilt against this software or in the next generation, include a set of restrictions, intended or not. Option should remain for governments to embrace open source values.
Jason: We will not cease to be a company that will directly commercialize software. Relative to developing nations, IP will be important there. As connectivity continues to expand, they will want to use technologies that other countries use. They may wish to utlilize proprietary software. The bottom line should be quality.