How Not to Kill the Golden Goose

by Pamela Jones

February 21 2005

I read Steven Henry's remarks [ ] he gave at LinuxWorld, and I believe if I had been there when he said it, I could have overcome all shyness and stood up to answer him on the spot, lawyer that he is notwithstanding. His remarks didn't make much of a media splash, so I seriously debated whether to answer him on Groklaw or not, because I am aware anything on Groklaw gets more publicity than he otherwise would receive. But I decided to answer him, finally, because his view is not unique to him, and it's important to help people who think like that to understand things better.

First, here is what he had to say, in essence: that Linux and the GPL began as an antibusiness movement, a "religion" of sorts. But now, they have bumped into money, and big business needs them both to change so they can make some money, honey, their old way. Forget about this bazaar stuff and get back into the cathedral, where they rule the roost and play by their rules. Business wants to marry proprietary and Linux, and the GPL gets in the way. And that means shove over, they are taking the GNU/Linux reins.

In their dreams.

Here's a taste of what he had to say in his own words, from the press release I received:

"To believers, open source software is a creed, but big business, believing in profit, now has a big stake in the most prominent open source software, Linux.

The anti-business “religion” that served as a unifying force for open source developers who created Linux will need to share the platform with the money interests who are now needed to penetrate the enterprise world and secure its long-term future, Steven J. Henry, a senior attorney with Wolf, Greenfield & Sacks, P.C., told the LinuxWorld Conference & Expo in Boston.

“Can religion and money coexist in the long run? More than doctrine, economics will control the evolution of Linux,” he predicted.

The new reality must be reflected in open source licenses, such as the GPL, he said.

“The business world as a whole will not embrace a vehicle which does not provide balance and flexibility and does not safeguard its intellectual property. Modifications to the GPL, the license that governs Linux users’ rights, will be necessary to assure economic soundness if the corporate world is going to make ongoing contributions to Linux,” Henry said.

Companies don’t want their proprietary rights to be threatened or to be perceived as threatened. “We ignore the elephant in the room at a price,” he said.

Companies like IBM, Hewlett-Packard and now Sun are profiting by adopting Linux while concurrently seeking to “marry” open and proprietary products. . . . The new GPL will have to address the combination of open and proprietary code better, if it is to succeed, he added.

First, let me say, piffle to this hogwash. Oh, wait. Let me try that again. That doesn't sound quite right. Although it is accurate, heaven only knows. He would like businesses to grab the golden goose's golden egg, Linux, and in so doing, kill the goose that laid it, despite it having the capability to lay many more golden eggs if they leave it alone. Could he be more wrong? Let me count the ways.

First, to phrase things more delicately, here are some of the errors in fact in his remarks:

The GPL isn't anti-business either by the way. It just likes to keep its eye on you. Here is what is accurate in his remarks:

The accurate list is a short list, in comparison, and that tells me there are misunderstandings afoot. I suggest you read Sun Microsystems' Simon Phipps' blog to get his corrections [ ] of Mr. Henry's remarks about the CDDL. Phipps also points out something fascinating:

"It's a funny old world. Do you ever wonder who was the 'architect of the landmark decision [on] the Federal Circuit ... [that] opened the door to patents for business methods'? If you'd been at LinuxWorld last week you could have met him - Steven Henry, the man who invented method patents [ ] and whose influence was the starting point for the whole software patent situation in which we find ourselves, gave a keynote. In that keynote he tried to fling FUD on the license most likely to de-claw his invention. Which was written by a company his audience probably wouldn't expect."

Here's what you find in Mr. Henry's bio:

"Steve was co-counsel to Signature Financial Group and architect of the landmark decision it won from the Federal Circuit in State Street Bank and Trust v. Signature Financial Group. That decision upheld the eligibility of most software-implemented systems for patent protection and opened the door to patents for business methods."

So, not to mock or anything, but now you know where he is coming from. Maybe what is actually needed is for some businesses to understand the GPL and Linux and Open Source methods a bit better, so they don't feel threatened. The simple truth is, it's uncomfortable to change our way of thinking, and no one likes to do it, but here is the truth: it is *business* that has to change, not Linux or the GPL.

Why do I say that? Because, for starters, Linux doesn't need business; business needs Linux. Thanks to the GPL, it is a success already, as Martin Fink pointed out at LinuxWorld, and that is why businesses want to use it. And they are right to use it. But like any tool, you need to read the manual that comes with it, and use it the way the creators intended if you wish to get the best result. The manual for FOSS is the license that comes with the code, plus the methods and ethics of the community that backs and supports it. Those programmers are software's lifeblood [ ]. I wrote [ ] about it some time back:

GNU/Linux, in contrast, is a gift to the world. Here, it says, need some nice software? Help yourself. Just help the next guy, will you, so we can build up a nice pile of great software we can all enjoy? And if you want the software in a more convenient form, we can sell you some and you can hire us to take care of any problems you may run into, if you want to. You can donate too, to make sure this kind of software gets written. Or you can hire someone to write software precisely matching your needs. Your own monogrammed version. Impractical? Unrealistic? You could say that twenty years ago, maybe even ten. Nobody writes software for free, Gates once opined. But they did write it. They still do.

And now Microsoft's empire is in danger of crumbling, because for the first time, some folks made some competing software they can't buy off. It can't buy the folks who made it, either, because they value some things more than money. But, you may say, maybe the businesses jumping on the Linux bandstand will sell out? They might, some of them. But FOSS doesn't much care. It has a life of its own, and its life just doesn't depend on what businesses do.

The FOSS community has given the world free software, in both the free as in freedom and free as in beer sense. They did it because they believed in it, and because it was a challenge, and because it was fun. It's particularly fun because of the way it's developed, using the Internet to make it possible for the world's best coders to interact meaningfully and easily from wherever they happen to live. As a result, the code is better than you can get from galley slaves, being whipped to row faster, because projects like Linux attract the very best volunteers. It's a system of development based on trust and sharing of ideas and knowledge, which leads to very rapid progress and excellence of code.

The days when any one company could dominate the software space are coming to an end, and an inglorious end [ ] I might say, with viruses and spyware [ ] and costly upgrades and EULAs that treat you like a criminal [ ] up to your eyeballs. How do you like it? The Firefox story tells you, or it should, that your customers are fed up with your ways. Jim Louderback says [,1759,1764441,00.asp ] ZiffDavis websites report 20% of all their hits are from Firefox now:

"They are feeling the heat up in Redmond from Firefox, Opera and more. Amazingly, over the past few months we've seen Firefox users grow to almost one in five at our sites--and that's the norm across the web. They're really feeling the heat up in Redmond--so much so that a secret summit just took place where fast-track fixes were discussed."

Fed up, do you hear me? Fed up means fed up. We are fed up with proprietary software, and how it treats us as end users. Period.

Of course, old-fashioned businesses don't get it yet. They still want to try to balkanize Linux, and ruin it the way they ruined Unix. That's what proprietary companies always do. All that cut-throat competition ruins software, you know. And even if you don't understand that yet, we, the customer, have it figured out now. So you had best get this clear or it will be *you* that doesn't succeed.

Linux is impervious to business. It will continue right on, and thanks to the GPL, there isn't a thing you can do to stop it. You can either go with the flow, or you can isolate yourself. I'm sorry to break it to you, but you can't succeed with GNU/Linux software, if you don't get with the full program. And do you know why? I'll break it down into very simple terms. It's because we, your customers, know how to use software now. There was only one generation of ignorant users. Microsoft got all of them. But that is so over. We are escaping, one by one. No, we usually help all our family members and friends to make their getaway too. No company can take advantage of inexperienced users again. We get it now.

And part of what we get is that freedom and transparency and open standards matter. I am not a programmer. But I care about being able to look at the code. And I do look at it. I look regularly to see what is going on. Proprietary software feels different to me. I can breathe in GNU/Linux. I feel it. One of the very first articles [ ] I ever wrote on Groklaw was about this feeling and the need to trust your software:

Business customers are people too. And people are sick and tired of snoopware and viruses and backdoors and all the other things you can't fix or even understand in proprietary software. Linux frees you from those worries. You can learn whatever you want, fix whatever breaks or change whatever you want to make it do something just a bit different, or hire someone to do it for you.

People are sick of license terms that treat them like criminals, where even when you try hard to obey, you never feel free of that I allowed to do this? They love GNU/Linux because you can share with your friends and family freely, install it on as many computers as you own at home and at work. Sick of saving proof of purchase certificates under pain of a visit from the IP police and fines when they can't find that piece of paper from 1998. Sick of typing in numbers to prove they bought the software, and having software call home to validate their right to use what they bought, and companies that shove one-sided EULAs down their throats, claiming the right to monitor their hard drive for compliance. Sick of businesses that care about money for themselves first and customers a distant second. GNU/Linux opened people's eyes. It offers an escape from all of that. So they're going to notice. And they're going to care.

When I am in a proprietary environment, even if it is a very nice one, it feels entirely different, just a little bit oppressive. I was talking to a friend about it, and I explained it like this: I'm staying at somebody else's home currently. We get along great, and in fact, the house is a lot nicer than mine. Everything is very pretty and comfortable, and we're having fun. But as nice as it is, I never feel comfortable the way I do at home. Proprietary software makes me feel like that, like a guest. Well, some proprietary software makes me feel like a criminal, but other software makes me feel like an invited guest, but even that isn't enough.

GNU/Linux, though, feels like home. Why? Because I own it. I can do whatever I want with it on my own computer. No one can take it back or say I can only put it on one computer and one backup. Or that I can't share it with my friends. Or I can't look at the code and change it. Yes, sometimes I do change it. Even little old me. There's lots of information on the Internet, and it's not rocket science to do simple things. Or I ask someone how to do it. Maybe I don't want a splash screen. Or maybe I want my computer to do things just a little bit differently than the default. What matters is, I can breathe. I know there is absolutely no restriction on me, except that I hope not to ruin everything and have to reinstall fresh, but the point is, it's mine and I feel it.

Proprietary software lets me use their software, but only the way they want it used. Like staying at a friend or relative's house. They want certain things in the kitchen done a certain way, and this spice goes on the right and that one next to it, and those glasses can't go in the dish washer, and this pot has to be shined with this product, blah blah. At home, I make those decisions, and if I want to stand the little bottle of basil on its head in the spice rack or throw it in the freezer or mix it with the pepper, there is nothing but common sense to stop me. Do you understand?

I think it's important for business to understand something out of the gate. Free and open source software is better software *because* its developers didn't do it their way. Business spends most of their time, energy and money figuring out how not to share. That doesn't work with software, which is why software patents are so damaging. FOSS gets its strength from sharing. As Fink put it, and I'm working from memory, the GPL gave Linux its wings to fly. Shutting down what has been proven to work successfully isn't good business. Here's how Linus expressed [ ] the importance of an open environment and sharing ideas, in an interview with BusinessWeek, which as you may recall named him [ ] manager.htm one of the best managers of the year:

"I think, fundamentally, open source does tend to be more stable software. It's the right way to do things. I compare it to science vs. witchcraft. In science, the whole system builds on people looking at other people's results and building on top of them. In witchcraft, somebody had a small secret and guarded it -- but never allowed others to really understand it and build on it.

"Traditional software is like witchcraft. In history, witchcraft just died out. The same will happen in software. When problems get serious enough, you can't have one person or one company guarding their secrets. You have to have everybody share in knowledge. . . .

"Also it's good to copy good ideas. It should be encouraged. We don't say Einstein was a really smart guy and we should come up with a better theory of relativity. We build on top of his good ideas and have new exciting quests."

What does that mean? Lawrence Rosen, in his book "Open Source Licensing," says this on page 2-3:

"Proprietary software vendors love the software freedom provided by the BSD license, but some of them hate and fear the software freedom guaranteed by the GPL. . . .

"Programmers write source code to direct computers to perform specific tasks, while the computer itself takes care of the routine task of translating the source code into an executable program. For a computer programmer, understanding and modifying software requires access to the source code. The source code must be open -- made available for all to see -- in order that the software can be studied, changed, and improved.

"Open source code is an essential requirement for software freedom, a technical prerequisite. Software freedom is the goal; open source is the means to that goal."

It means, in short, that business needs to stop killing the golden goose that is laying the golden eggs, silly. Business sees one golden egg, Linux, and all it sees is gold, this minute, and if it needs to grab it, killing the goose to get it, so what? I know it's hard to change one's way of thinking, but this is a time when you simply must. Why? Because if you shut down the way Linux was developed in some misguided attempt to bottle it, or remove the license that made it so powerful, you will destroy it. And that's just counterproductive. Instead, you need to figure out not how Linux and the GPL need to change for you, but how you need to change for it.

One more thing. The GPL is being updated [ ], and there may well be some changes made to make it more business friendly, or not, and likely it will address the patent issue, but it won't be happening rapidly. And do know that there is no indication that Linux will ever move to the new version. That is not a given, by any means.

I asked Linux Magazine if they'd be willing to let me republish a column [ ] I wrote for Linux Magazine last October, "Protecting the Golden Goose," here on Groklaw, as part of my answer to Mr. Henry's ideas, and they graciously agreed, so here it is, and I hope you enjoy it. No, I hope if you are a business person, or a lawyer for some, you understand it.


Protecting the Golden Goose
~ by Pamela Jones

During his keynote speech [ ] at the Ottawa Linux Symposium 2004 on July 24, 2004, kernel developer Andrew Morton talked about the relationship between information technology vendors and Linux, and some of the changes that are occurring as free and open source software (FOSS) attracts great corporate interest:

"... [Y]ou shouldn't take all of this to mean that Linux is going to become some sort of buttoned-down, corporate quagmire. I don't think it will. I expect that the free software ethos, this very lofty set of principles and ethics [that] underlie our work, will continue to dominate."

Morton may be right that corporations mean to protect the free software ethos. But are they? Judging from some recent history, I think companies need to be better educated so that they understand what makes Linux what it is and why it is better.

Morton pointed out several problematic areas:

1. Incompatibility. Morton said, "We are heavily committed to standards, whether they be written or de facto, and we're committed as a matter of principle. We want to be as compatible with as much other system software as [possible], so [Linux] can be as useful as possible to as many people as possible."

Compatibility is a bedrock FOSS value, but it goes against corporate thinking. Corporations want to differentiate and lock in customers. We've already seen some vendors -- and you know who you are -- straying from the straight and narrow Linux path, adding extra features to their kernels, resulting in incompatible versions of Linux, which "by design, lock some of our users into an particular vendor's implementation of Linux," according to Morton.

2. Differentiation. IT and hardware companies tend to bypass the main-line kernel and instead "develop and test new features within the context of a partner Linux vendor's kernel." This can only lead to the Unix curse: fragmentation.

Morton continued, "I see the perfectly understandable vendor strategy of offering product differentiation as being in direct conflict with the long-term interests of Linux. It's not for me to tell vendors how to run their business, but I do urge them to find other ways to provide value to their customers. I strongly oppose the practice, and I will actively work to undermine it."

3. Regression. Hardware and software vendors are reverting to cathedral-style development. Morton quipped, "Whether it's for competitive reasons, for confidentiality, or most probably, due to time pressure, it appears to me that the flow of testing results and the promptness of getting fixes out to the rest of the world is slowing down a bit. So, I would ask the people involved in this release work to remain conscious of this, and try to keep the old golden goose laying her eggs."

Corporations will naturally be reluctant to share knowledge. We saw with the early indemnification programs a myopia about FOSS values, so much so that some even said that it didn't matter if end-users had to give up rights to modify the code, as if end-users aren't part of the development process.

Part of Linux's appeal is that anyone can improve, improvise, and innovate by looking at the code and changing it. Creativity inevitably springs from large numbers of people experimenting, combined with a low barrier to entry to sharing and contributing. Those are essential ingredients in Linux's success, SCO's ill-informed paranoia about where code comes from notwithstanding.

Unix essentially shot itself in the head when all of the Unix vendors decided to differentiate themselves and work individually and competitively to hoard the largest customer base. If Linux follows the same path, it will eat away at Linux like termites. Why?

Because pooling knowledge is better, particularly in software development, which, as Morton points out, is unlike all other kinds of engineering. You don't engineer software like you engineer a bridge. In code, progress is incremental.

This is why intellectual property laws that seek, by their very nature, to keep knowledge out of the pool, aren't working well with software.

Innovation in software happens so quickly that the shelf life of the value of that innovation is shorter than the law's term of "protection." All you end up with is a barrier to learning, preventing the rapid progress you could have had from pooling ideas and skills.

Corporations don't naturally care. But perhaps we can make them care through persistent education and by opposing balkanization, so that "the free software ethos, the very lofty set of principles and ethics which underlie our work, will continue to dominate."

[Please note the article "Protecting the Golden Goose," is copyrighted, does not come under the Creative Commons license, and may not, therefore, be republished elsewhere without permission.]

03:14 PM EST

Copyright 2005 -