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Areas for Concern

Leon Brooks, CyberKnights Pty Ltd, 05 January 2003

Background, Scope and Purpose

This document addresses a presentation [more detailed mirror here] colloquially known as “MS-GPL” and described as “a presentation of Microsoft Benelux in Belgium & Luxembourg.” The slides, dated 22 November 2002, purport to be Microsoft's most recent response to the Free Software Foundation's General Product Licence (GPL).

Halloween VII mentioned achieving limited success through publicising Shared Source, and it looks like Dirk Tombeur's presentation is an attempt to leverage that success.

I have only addressed the slides entitled “Areas of Concern” since the rest of the presentation is mainly non-controversial background material. Quotes are taken literally, which means American English spelling; these comments are written in Australian English for the very simple reason that the author happily hails from Down Under and refuses to adjust his spelling to suit 5% of the world's population (at the expense of at least as many others in various Commonwealth localities).

Quoted text fragments from the slides are indented and in Courier typeface.

Image 223

The controversy starts with the image numbered 222, the slide entitled Source Licensing Debate; the second slide is entitled Areas of Concern and addresses the GPL itself.

Source Licence Debate

We'll focus on the last point:

Software innovation has been a driving factor of economic growth across all major industries.

Simple statement, too general. It's embrace-and-extend done on paper, because it includes an awful lot of software that is not particularly innovative under that blanket, and the value has been mainly to the software manufacturers, not to the customers, the end users, you.

This general statement is use to leverage considerable fear in the following slides.

Areas Of Concern – Ownership and Commercialisation

Another piece of stage-setting follows in the next slide, which is evidently discussing the GPL:

Authored by the Free Software Foundation

True. It's worth pointing out yet again that Free is as in Liberty, the FSF has no problem with people charging for software or support. They would evidently prefer that people charged for it because they were good at it, not because they had a stranglehold on it.

For protecting the individual developer

Only partly true. The main focus is on protecting the software, the Intellectual Property (IP) itself. Protection of the developer (for example against lawsuits launched by historically greedy and litigious software companies) is an implied necessary consequence of protecting the software. It is, after all, the Free Software Foundation, not the Free Programmer Foundation.

Against ownership or commercialization of software

Completely false. The GPL relies upon ownership of the software, and the GPL explicitly supports the commercialisation of software. The FSF also explicitly acknowledges the rights of authors to multi-licence (as, for example, Mozilla and MySQL AB have both done).

Microsoft's problem here is – as usual – that people won't do things their way. Microsoft is perfectly at liberty to commercialise their software using the GPL, but they'll find that their current extortionate and control-oriented business model will need considerable modification before it'll work that way.

It would greatly impact the commercialisation of my own software if I was required to subject it to unannounced inspection, removal and/or alteration by a competitor, and if I was legally unable to apply my own remote access software to it. Both of these provisions appear in the EULA for Windows XP, Microsoft's latest Operating System offering.

Microsoft would do well to learn from the two-millennia-old wisdom of a Galilean carpenter: “how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye? Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye.”

That chapter starts “Judge not, that ye be not judged,” and it is in that context that I draw attention to the immense dose of chutzpah Microsoft is expecting us to swallow while listening to them complaining about competing licencing schemes. The Windows XP EULA, for example, contradicts US privacy laws (Microsoft's promises not to abuse this power not only don't help, but have historically not been kept). Industries required to keep their customers' data private are legally obliged to avoid Windows XP and presumably any successors. If Microsoft are worried about people abandoning their software, they would do well to consider that attempts to invade and control their customers' computers represent an insoluble conflict of interest.

Areas of Concern – The Intellectual Commons

Designed to devalue software and to pull, by force, intellectual property into the commons

Again, the “value” placed on software depends on your perspective. If you are playing dog-in-the-manger with software, grudgingly doling out functionality but not control, then your software will be devalued by GPLed competitors. If you are marketing your expertise and supporting it through software, the value rests in the expertise, not in the software.

When considering this position, bear in mind that the company behind this statement is the same company that promised SpyGlass Systems a percentage-of-gross for Internet Explorer, then turned around and started giving it away for free. Microsoft also sell (not give away!) GPLed software themselves, in the form of their Services for Unix (SFU) conversion tools, designed to putty over the gaps in Windows-based services during a migration. The GPL doesn't seem to have de-commercialise Microsoft's SFU, does it?

As to the “pull by force” insinuation, that's completely false. The requirement that merged software have a compatible licence is simple common sense. Every single piece of Microsoft's software either has exactly the same requirement, or doesn't even allow as much as the GPL does!

The GPL is designed to keep Free software Free, and this clause is a necessary part of that process.

Areas of Concern – the Viral Licence

Known in the OSS community as a “viral” licence.

I can't speak for the whole community, but the GPL or software written under it generally doesn't go out summarily infecting other software, or requiring you to use other GPLed software.

Microsoft's software, their Kerberos mis-implementation being a famous example, often does force you towards using (and paying for) other Microsoft software, so Microsoft's own software has viral properties.

Of course, Microsoft's software is also famous for supporting other viral software (CodeRed, and Klez are two well-known examples) with devastating effect, but the licencing terms aren't directly responsible for that.

Areas of Concern – Terms of the Licence

The terms of the licence that the presentation mentions are basically correct, although it is worth emphasising again that Microsoft's own licences generally don't give you this much freedom.

Areas of Concern – Bad for the Industry

The GPL is fine for the individual to choose, but bad for the industry

Even if you were to accept that assertion as true (it's not), Microsoft seem to have forgotten that the industry (any industry) is made of individuals. They're claiming that what's good for the parts is not good for the whole. How can that be so?

Perhaps Microsoft are equating their own policies and practices with “the industry” and generalising from there. If that is so, the above statement would be interpreted as “The GPL is fine for the individual to choose, but bad for Microsoft as it is now.” On that score, I've got good news, Microsoft, and I've got bad news.

The good news is that the GPL is good for the industry because it allows software to compete on merit, not on factors unrelated to utility such as marketing prowess or a large stable of IP lawyers.

The bad news is that in order to compete on merit, Microsoft will have to fundamentally alter the way it markets software. Change is often painful, but the majority of the pain is going to be felt by Microsoft, not by the world at large. The GPL is here, won't go away, will change the entire industry regardless of whether you or anyone else chooses GPLed software, and those changes will be significantly for the better from the perspective of the vast majority of players in the market: the customers and end users.

Image 224

Image 224 contains two slides, addressing “the software ecosystem” and commercial software.

Areas of Concern – Software Ecosystem

The software ecosystem represents a cycle of sustained innovation

The first slide essentially confuses software manufacturing and the suppression of a free trade in ideas with “innovation”. Once you remove that confusion, it's essentially saying “the software manufacturing industry grew over the past ten years.” But of course, the past 10 years also represent the DotCom bubble (a new form of hyper space), which has now burst. Lies, damn lies and statistics.

This is especially so when you ask how much of that is really growth? The scariest thing about Bill Parish's assertions on this topic seems to be that they appear to have survived completely unrefuted and in fact generally not even challenged for the better part of a decade. If you accept his judgement, Microsoft is a company doing a duck impression, radiating serenity on the surface but paddling furiously out of sight, fighting to avoid “paying the piper” for its very survival.

The GPL places a wedge between the entities of the ecosystem

Chutzpah again, since GPLed software can be shared and improve by multiple competing entities within the ecosystem, thus drawing them together rather than splitting them apart.

Primary research results placed under the GPL are precluded from commercial use

As we've already seen, they're not. They are only precluded from direct integration with proprietary competing technologies.

The research results by their very nature are not covered by the GPL, only the specific implementation released. Microsoft and other developers are at liberty to either build a wrapper for the GPLed component, or look at the source and re-implement it in their own style and licencing terms, or, call me a revolutionary if you will, release more GPLed software.

Again, the chutzpah seems unsullied by the faintest hint of grace: research results carried out using public funding and effectively locked down by Microsoft patents or licencing are only available to one entity.

Areas of Concern – Commercial Software

GPL-based software businesses rely on hardware and services model

Again, the chutzpah: Microsoft themselves are also a GPL-reliant software business, and they also rely on hardware (mice, keyboards, joysticks) and services (MSN, Microsoft Consulting) for substantial income. GPL-based software businesses use other models as well. For example, Mandrake Linux derives their primary income from sales and donations.

Software innovation does not traditionally come from hardware or services companies

Like Apple? <sarcasm>No, of course not. Silly me. Nor, come to think of it, have Sun, SGI, Hewlett Packard, Samsung, IBM or Wang ever invented their own software.</sarcasm> Sometimes I wonder what the weather is like on Planet Microsoft.

All software companies must now carry significant legal overhead to protect again GPL “infection”

Pardon the slanted language, but to read this one would think that it was a new problem, that insurance had never covered the case of including other people's software. The observation that early versions of Microsoft's Windows NT OS were “spelling-error compatible” with Digital Equipment Corporation's (DEC, now part of Hewlett Pacquard) MICA variant of VMS should lay that idea to rest.

If you steal software, you have a problem, whether that stealing consists of disassembly of proprietary code, hiring away the authors of proprietary code, outright theft of proprietary source, or concealment of the original of incorporated GPLed (or BSDed) source, you have broken the law.

It should be noted that the company behind the slides has been successfully challenged in court over every single one of those violations. Their mandatory BSD acknowledgements, for example, had to wait until the release of Windows XP before they saw the light of day.

Venture capital financing showing extreme caution around GPL

Largely due to the intensive propagation of misinformation such as these slides, no doubt. I would hope that intelligent venture capitalists, learning from history, would refuse to support ventures based on code that they had little or no control over. GPLed software, of course, underwrites complete access not only to what they started with, but to updated versions of the same piece of software.

GPL potentially breaks down the open standards process | GPL implementations result in unlimited sub-licencing of intellectual property

This is a fairly clear indication that the author of the slide either didn't understand or seeks to conceal the meaning of the word “open” in the phrase “open standards process.” If private IP is involved in the standard, then it isn't open, it's closed. A GPL or similar implementation is the only sure way of guaranteeing the open-ness of the standard.

Destroys incentives to bring new, interesting technologies to the standards process

This is a subtle and powerful falsehood. Bear in mind that it is being used in the context of “the open standards process” so we're discussing technologies which can be brought to “the open standards process” even though the word “open” has here been omitted. Of course, private IP has no place in an open standard, only public, readily available, open IP.

Another way to put this is that the impact of the GPL is to destroy incentives to pollute open standards with closed IP. Hooray! Good news! Let's do it!

Image 226

Image 226 contains a single slide dealing with government policy towards the GPL.

Areas of Concern – the Value of Quality

Procurement | Mandatory preferences for either Open Source or GPL software removes the value of quality

Ooh, look, the BSD-licenced software on which hundreds of components of Microsoft's Windows XP are based gets a serve from Microsoft. I'm tempted to find someone with a copy of Encarta and see if it's got an entry for “gratitude” at all.

A mandatory preference for GPLed software would have the reverse effect, since the end users are now in a position to audit, monitor and improve the quality of the software themselves, powers not generally available to them under a proprietary licencing situation. It also means that changing suppliers doesn't have to mean changing to different more-or-less incompatible software, since a new supplier can simply take up where the other left off.

Areas of Concern – the Commercialisation (again)

R&D | Government funded research released under the GPL can never be commercialised

As we saw above, this is a direct lie. GPLed research implementations provide a flying start for those not so selfish about their code (typically, one would expect, smaller and startup competitors to an established monopoly or ogliopoly in any field). And the implementation is not the research.

Areas of Concern – Public Domain licencing

True public-domain licencing would look more like the BSD license

No, on two counts. True public domain software would not require acknowledgement of authorship, and if the software is to remain public domain, not absorbed and polluted by widespread incompatible implementations with private IP, the licence has to resemble the GPL.

Areas of Concern – Strong IP protection as incentive

Software Industry Growth | Strong IP protections [sic] provides significant incentive for local software companies to invest in R&D

Strong IP protection provides a significant barrier to entry of local software companies into the market at all, except on the wings of a large, powerful, controlling market entity. <sarcasm>No names come to mind.</sarcasm>

Areas of Concern – Procurement preferences harming local industry

Procurement preferences against commercial software companies will harm local industry

No, they will make specific marketing methodologies difficult to sustain, and clear the way for others which are more useful to the procurers.

Areas of Concern – Artificial advantages

Non-commercial software will have artificial advantage over commercial if government funded R&D is covered by the GPL

This is another important and subtle confusion between “commercial” and how-Microsoft-does-things-now. There are many commercial models which work fairly for both supplier and purchaser. If you stand in Microsoft's shoes you have an unhealthy amount of control over the purchaser already, and certainly an artificially large amount of legal and financial weight to throw around that other “commercial” interests operating using a similar marketing model to yours don't have, to say nothing of commercial suppliers planning to employ one of the more customer-friendly models which the GPL enables.

Choice of Models

The recommendation that...

Governments should | Advocate that the broadest range of choices be available

...sounds equitable, but what it really means in practice is that an organisation of staggering wealth and power wants to continue its unfettered access to markets in which any bona fide competition would be quickly crushed by that organisation's resources. Minimising government intervention is good, but here is a place where one player is far too big and historically predatory to be fairly dealt with by the other players, be they other competing suppliers or the purchasers themselves. Some balance needs to be introduced against that supplier's artificial advantages.

[Governments should] Provide strong IP protection to allow individuals and organisations to benefit from their investments

This completely ignores the needs of the purchasers. Many of the purchasers' needs would be far better served by a situation in which they were not largely dependent on the goodwill of a single large supplier. The GPL has been proven to drive control back towards the customer, so it seems ideally suited to the task, even if only as a seldom-exercised but realistic “control” alternative.

There is another implication here that the GPL is somehow against IP protection, yet the GPL derives its power and authority entirely from IP protection.

What went unsaid in the slides

Quite a number of important attributes of the GPL were absent from these slides, and with good reason: they provide powerful arguments for the widespread adoption of GPL licencing.

Risk Management

Using proprietary software means exposing yourself to the risk that the company or the product line may one day cease to exist. Because the GPL guarantees you access to the source code, the software potentially lives on for as long as there are programmers.

Five years ago it may have been possible to argue that limited support watered down this advantage, but these days even my dear little home down has its own Linux Professional Association.

GPL software also removes the practical risk of an expensive software audit, and because it is often highly portable it reduces the risks associated with being tied to a specific platform or piece of hardware.

Security (National, Local and Obscurity)

The avoidance of control-oriented proprietary operating system and infrastructure software also averts most of the very real risk of having someone break your computers remotely, or make off with data stored on them.

Local security is of course enhanced by having the source in hand. This makes it practical to audit your own software for vulnerabilities specific to the exact conditions that it's deployed in, and repair any deficiencies.

The final word on security concerns obscurity. Making things secure by hiding the way it is locked down will only work as long as an attacker can't figure your methods out – after that, it's about as secure as a Western movie set. Much proprietary software approaches security this way.

If you are using Open Source software which is widely deployed, many, many people will have eyed it with a view to security, both attackers and defenders. This helps to ensure that the software is inherently robust, it's something that you can see for yourself, and at that point you can then consider layering obscurity on as an additional precaution.

The proof of the pudding really is in the eating. Check the security statistics on any day and you'll find that the vulnerabilities for GPLed software like Linux are of less catastrophic import, more rapidly dealt with, and more widely applied than Microsoft's.

Sovereignty

Sovereignty is a particularly acute point in a country whose political, religious or financial objectives might not happen to coincide with those of the United States of America, and perhaps surprisingly it is also acute in the USA since many of the “spooks” and military are somewhat averse to the idea of a private company managing their machines without warning.

Wall-to-wall customisability

Naturally, the GPL allows even the individual competent end user to modify their own software. This is not a big issue for most purchasers but can be critical for a few, where a relatively small change can make an enormous difference in useability.

Immense software developers backing GPL software

If the GPL is so bad for software developers, will somebody please explain why GPL software is being not only encouraged but actively developed by IBM, Silicon Graphics (SGI), Sun Microsystems, Netscape, Hewlett Packard and others?

Summary

Microsoft is right to fear the advance of GPLed software, for it seems that they are unwilling to alter their current mode of business to accommodate this new paradigm.

Microsoft is wrong to assume that their problems are everyone else's problems. GPL offers unprecedented opportunities to most of the players in the software arena.

Microsoft will suffer heavy damage to the remains of its credibility if it continues this unrealistic course, and will be badly prepared to continue operating as GPLed software assumes a dominant role in society -

Logan High [Utah] students have adjusted well to Linux. “I have to turn off the light to let them know it’s time to go home,” says [Russell] Weeks, who runs the computer lab after school. “Sometimes their parents come in to get them.”

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