[Linux-aus] RE: Why short sightedness is bad for Australia

[Brendon Chase]

Just to clarify this early:

This is a commentary written by Tony Healy, a software developer who does
NOT work for ZDNet, Builder, or any part of CNET Networks.  It is not the
personal opinions of this Editor, or the company who published it.

It also had nothing to do with promotion.  It's an issue that is being put
forward at the highest political level in this country and something I have
personally covered earlier this week.  This legislation will affect the
audience it was written for, Software Developers. As always, there are two
sides to this argument, hence the commentary.

While there are many valid points in the talkback and on this list in
response to this commentary, it's only fair that I've invited a Linux
Australia spokesperson to write a reply for publication.

If anyone has any further questions feel free to contact me off list.

Thanks,
Brendon Chase
Editor
Builder AU


Hi Tony,

If you posted that article to create controversy for the promotion of 
your website, all I can say is that I'm seriously unimpressed.

Regardless of your opinions on Open Source, most of Asia including at 
nearly ten times the population of the entire USA is moving en bloc 
towards an Open Source software model. What this means in practice is 
that if Australia doesn't address it sensibly, we will simply be 
backwatered and ignored. The head-in-the-sand option won't work here.

Your comments on copyright term extensions would be reasonable in a 
world of altruists, but I don't know where tyou're going to find one of 
those. In real life, copyrights cause useful extensions of existing 
technologies to be suppressed, both by dog-in-the-manger tactics and 
almost inadvertantly as hordes of would-be inventors silently give up 
when faced with a tangled morass of overlapping patents. Extending 
their domain will simply make those problems worse.

The DMCA is a legislative patch for broken and failed business models, 
and there is already a long list of problems with it which US 
legislators are hoping to reduce (but not eliminate) with a patch on 
this patch. Its nett effect for the Australian developer community if 
applied here will be to drive development offshore to countries not 
encumbered by it.

> Open source activists don't represent the Australian software
> industry 

That's just flat-out wrong. We do represent "the Australian software 
industry" just as much as, say, MYOB does. It's insulting for a 
self-proclaimed expert on the topic to make strong and unsupported 
assertions to the contrary.

> The software industry generally means firms that develop software
> and charge for it. 

You have completely bypassed at least one entire segment of our 
industry.

Not all software is developed to be sold en masse. Quite a few 
developers turn a penny doing custom and one-off work. Often, they have 
neither the time for nor interest in taking these one-off solutions any 
further, yet by publishing them in an accessible fashion (that is, 
under an Open Source licence) they make them available for other 
devlopers - including, of course, Australian developers writing for a 
shrink-wrap market - to use as building blocks or stepping stones for 
their own creations.

> These are high value firms that create valuable IP

Well, no.

*Really* no.

These companies do not *create* IP, they *realise* it, or as the lawyers 
would say, they "engross" it, drag it out of people's heads and make 
working implementations of it.

Whether or not they charge others for the use of this concrete property 
or not is their own business, but when they use "intellectual property" 
laws to prevent others from thinking in the same space, that damages 
the entire development community and shrivels their market as a whole.

I can sit down with a bare machine and a set of Mandrake Linux CDs, and 
within an hour have a working server supplying name, web, mail 
(including viruses and anti-spam), FTP, login, file, firewalling and 
statistical services to the world and/or an intranet. Give me another 
half hour and I can turn a vaguely worded press release into a fully 
operational, dynamic and interactive web site and CMS using Plone and 
ZWiki. Including time spent lugging machines around and plugging cables 
in, it is reasonable to expect to turn AUD$2000 into a vibrant web 
presence and Internet gateway in a couple of hours. It's quite a 
profitable business for me, pleases the customers no end, and I make 
extra income from writing or customising software, "tailoring" the 
system to the customer's needs.

If I had to IP-licence and litigatively cross-check all of this before I 
used it, lots of businesses including mine would suddenly lose all hope 
of viability. The difference between the solution above and one from 
our favourite convicted monopolist is at least a fourfold price 
increase, plus all manner of arbitrary and complicated limitations on 
what the owner of the system can and can't do with it.

As things stand, I can operate with a presumption of innocence and 
simply keep an eye on the news for signs that any of my components are 
in "intellectual property" trouble - and if they are, I or anyone else 
can reasonably expect to be able to rewrite the offending subsystem to 
avoid the issue. The onus is on the entity alleging infringement to 
demonstrate a valid claim, not on me to demonstrate the invalidity of 
all possible claims.

The DMCA reverses this. One American was thrown off an airplane for 
wearing a "suspected terrorist" badge, but the point he was making - 
and which the incident amply illustrated - is that all airline 
passengers have now to some degree become terrorists by default, and 
must prove otherwise. The terrorists have won.

The DMCA is doing the same thing to American software developers. Why do 
we want to do it to our own developers? If we do, expect to see me 
start wearing a "suspected software pirate" badge.

> Open source advocate Russell, who appeared before the committee
> is actually an IBM employee. 

Rusty is an IBM employee because he wrote a number of Open Source 
packages (ever heard of iptables?) long before meeting IBM, and anyone 
who knows him would expect to have to tie him down to *prevent* him 
from testifying, regardless of who he's employed by, or not.

IBM is one of the biggest software developers in the world, and far from 
dumb, and not at all shy about following up on their pound of flesh. If 
there was a genuine issue between developers and FOSS, IBM would be 
aware of it, and wouldn't be supporting FOSS so avidly.

To try to imply that IBM would be working against the Australian 
developer community is just plain silly. They'd be working against 
themselves. Directly against themselves, in the case of AusLabs, the 
unit which employs Rusty Russell.

> Most members of the recently formed Open Source Industry Association
> are commodity firms and include booksellers, lawyers and casual
> consultants.  

And the rest. Google for software projects I've contributed to, and 
remember that I'm far from unique in this respect, many OSIA members 
have contributed far more.

What you'd have said if you were truly interested in a complete 
presentation is that OSIA members come from all walks of life. What 
we'd have said in response is that we're delighted with that 
assessment, it's what we aim for. Including those of our membership who 
develop software for a living.

> Open source activists nowadays stress that they love and support
> copyright. Technically they are correct; they use copyright to
> force restrictions on downstream users.

The key phrase which you left out was "of the software they wrote."

It never ceases to amaze me that people who can't even see source from 
MYOB or Pretzel Logic are complaining about how they can't paint 
*someone*else's* software with their own livery and abuse the source to 
it however they see fit.

Compare the restrictions in a typical EULA with those of the GPL. The 
GPL - just about the most restrictive Open Source licence available - 
is freedom and gentleness incarnate, relatively speaking.

Quoting GPL clause 5:

    You are not required to accept this License, since you have
    not signed it. However, nothing else grants you permission
    to modify or distribute the Program or its derivative works.

And what happens when a developer playing dog-in-the-manger closes down? 
Nobody dares use their "IP" because there is no company to do an 
intelligent deal with, typically just administrators who will hold out 
for as much money as they think possible and sue if you go ahead 
anyway. Until the "IP" expires, that pocket of knowledge, experiment 
and experience is effectively denied to the rest of the human race... 
where they respect "IP" laws, which the majority don't.

Now here come people wanting to make that situation worse, yet who would 
be enraged if development in the field moved to India or Romania 
because of it.

> Problems arise where government funded research is released under
> licences like the GPL. That work is available to everyone, but the
> best developers are barred from commercialising it.  

Flat wrong again. Quoting the GPL preamble:

    When we speak of free software, we are referring to freedom,
    not price. [...] if you distribute copies of such a program,
    whether gratis or for a fee, you must give the recipients
    all the rights that you have.

There's nothing wrong with charging for GPLed software, and many 
companies do (MandrakeSoft, SuSE and Red Hat, for three examples). The 
only restriction is that acquiring complete source code 
*in*addition*to* the binaries you've already purchased not be 
unreasonably expensive.

> Computer sellers such as HP and Sun use open source as a way to
> depress software prices and thus expand the markets for their
> expensive computers.  

This is a highly illogical assertion.

HP and Sun both *sell* software, and Sun also give away (for $0) certain 
other software, with and without source. If they just wanted market 
penetration, they'd give it all away for free.

In point of fact, Sun is to some extent even giving up on making their 
own hardware, and using AMD gear instead. HP is getting into 
ever-cheaper computers, competing with the likes of Dell. All of which 
makes a non sequitur out of your arguments.

> For example, scientists and academics share source code because
> it's not central to their jobs or work. 

I call bulldust.

Open Source programs like Terra are absolutely central to the work of 
many earth scientists, and they get shared around enthusiastically.

Cinematographers also share source code (cinepaint, for exampler, and 
many Maya converters and plugins), and that's absolutely central to 
their work.

> That type of software is technical and rough. It's quite
> different from the highly engineered products that business and
> home users demand.   

You mean software like OpenOffice, Mozilla, the KDE suite, The GIMP, 
QCAD and Evolution?

> There are no demands for Intel and other chip makers to provide
> the diagrams for their circuits, or for car makers to provide
> the engineering drawings for their cars.  

You need to get out more. There most certainly is such demand. There's 
an entire industry revolving around "chipping" cars, and legislation 
slated to go through the US Congress and designed to do exactly that.

> I discuss these issues further in a paper for the US public
> policy research institution, the Institute for Policy
> Innovation. (Healy, 2004)  

Ah, yes. The Open Source community has had exposure that that particular 
group of paid mouthpieces before. You need to learn a bit more about 
their history and sponsors before writing anything for them.

> One is for people and government to use public software such as
> Linux in preference to commercial software. This doesn't directly
> effect the Australian software industry one way or the other,
> although Linux is a less polished platform for commercial
> developers to target, and widespread usage would probably reduce
> the amount of third party software development. This directly
> contradicts the claims and beliefs of political backers of open
> source.       

I call bulldust again.

2/3 of all internet-visible web servers, over 3/4 of all email servers, 
the vast majority of name servers and so on. This is not the hallmark 
of "less polished" software.

Tony, when did you last install or use a Linux distribution? I have 
customers' staff who have used a Linux box for a full day without 
noticing that it was Linux. Just how much polish are you looking for?

> The second meaning is that commercial firms, including
> successful Australian firms, should disclose their technology
> to rivals by exposing their source code.  

Give me a single example of a successful Australian softweare 
development firm's source code being demanded from them by FOSS 
advocates. I'm having trouble believing that such a beast exists.

> To compete in the world economy we need strong copyright
> protections so our smaller firms can protect their innovation
> against the larger marketing and distribution engines of
> multinationals.   

This statement is also staggeringly ignorant of real-world events.

We already have strong copyright protection, to start with. The DMCA and 
other provisions entailed in the FTA have nothing to do with copyright.

For seconds, large corporations ("multinationals") have repeatedly 
demonstrated both the capability and will to crush "smaller firms" 
whose "intellectual property" stands in their way. All that the 
"intellectual property" rules effectively do in these cases is provide 
a central repository in which the crusher can conveniently fish for 
ideas. Making the rules more stringent advantages only those able and 
willing to wield the most legal muscle.

The only "small" firms to benefit so far have been what might be fairly 
termed "intellectual property pirates" or perhaps more accurately 
"highwaymen", and more colloquially "patent squatters". These companies 
acquire patents solely for the purpose of extorting royalties and 
compensation with them.

There is no development, no social or national advantage here, only a 
crime - hoarding - for which people are shot during time of war. And 
"smaller firms" are ill-equipped to deal with this now-flourishing 
(thanks to the DMCA) parasite industry.

Shall we sum up? The best points in the article are built on very shaky 
ground, and it goes downhill from there. In terms of convincing power, 
it was very well written, but in terms of technical and factual merit 
it's hopelessly lost. Many of the basic facts and assumptions fly in 
the face of observation, and the processes therein outlined contradict 
American experience - which is based on concrete reality, rather than 
theory or rhetoric.

You should probably submit an article to the Alexis de Tocqueville 
Institution as well. Their "research" techniques are similar in many 
ways to IPIs and to what I'm reading here. I was particularly impressed 
with Brown's reinterpretation of the information available to him, see 
here for a good collation, and follow the links:

    http://www.groklaw.net/article.php?story=20040611141310910

Cheers; Leon

--
http://cyberknights.com.au/     Modern tools; traditional dedication
http://plug.linux.org.au/       Vice President, Perth Linux User Group
http://slpwa.asn.au/            Committee Member, Linux Professionals WA
http://linux.org.au/            Past Committee Member, Linux Australia
http://osia.net.au/             Member, Open Source Industry Association