license-ish vs. Bill of Rights-ish

[Karsten M. Self]

on Tue, Dec 11, 2001 at 06:07:58PM -0400, Steve Mallett (steve at opensourcedirectory.com) wrote:
> > > All philosophy........
> > > If you were writing the GPL today...
> > >
> > > 1) having seen a big software company (Microsoft) fight off legal
> > > battles with the US Gov't [let alone you, or the FSF on your
> > > behalf], and,
> >
> > Unfair comparison.  The DoJ is susceptible to political maneuverings.
> > It's currently seized defeat from the jaws of victory.  Microsoft didn't
> > win the law, they won the politics.
> 
> Hmm.  Perhaps.  There will be pressure points (outside of the law) regardless 
> of who is fighting.   Who would be a 'fair' comparison?

My point is that MSFT tends to have an uneven history at best of success
in the courtroom.  However, they've mooted this through outmaneuvering
opponents.  They've made fools of the DoJ twice.  Stac.  Sun.




<...>

> > There are two general situations we've seen listed here:
> >
> >   - License noncompliance (particularly GPL).
> >
> >   - Confusing or misleading use of the term "open source" (which is not
> >     a registered trademark for the purposes of discussion).
> >
> > In the first case, the legal feasibility of crossing licensing terms is
> > seen as low.  Even by Microsoft (I've direct experience with this).
> 
> What do you mean by this?

Microsoft has not chosen to attack GNU/Linux or other free software
products directly on licensing terms.  They've attempted typical
moving-goalposts attacks on other aspects of free software (WINE,
Samba), and are now appearing to try to rewrite the ground rules with
dirty tricks such as SSSCA and the proposed DoJ settlement which would
allow them to bar competitive, free, technologies (again, Samba).

Licensing isn't the problem, strategy is.  This is broader than mere
contract writing.

I'm not sure what the current threat profile from Microsoft is.  I *am*
strongly convinced that the threat _is_ Microsoft, and those currently
aligned with the company.  Free software is a likely death threat to
Microsoft -- their business model is largely incompatible with a
thriving, feature-rich, and widely used free software regime.  The
company is top dog, and dependent on continued abuse of its monopoly
position to maintain itself.  

The converse isn't true -- free software isn't intrinsically threatened
by the existence of Microsoft (or any other proprietary software
vendor).  It's Microsoft that's actively seeking to kill free software's
exemplars, not the other way around.  While there are other legal
threats to free software, Microsoft is largely _the_ special case
(various Lessig warnings heeded and noted, notwithstanding).  As more
companies benefit increasingly from free software, Microsoft should find
itself less able to effect the controls necessary to propagate the
environment it needs.

To this end, the GPL is a powerful tool.  To date it's not shown itself
particularly vulnerable to machinations of Microsoft.

The danger is, as I suggested above, attacks on ground rules.  Where the
GPL has proven itself particularly resilient is where it uses the very
tools of porprietization (copyright law) to create a regime dedicated to
free software.  Judo (or ju-jitsu) law, as I and others have noted.

While I don't have any specific recommendations, it might pay to look
through changes in copyright law over the past fifteen years or so to
see if there is any additional ammunition which might be turned against
those who'd subvert the aims of free software.  I don't know that this
would be fruitful, but it's served well in the past.

Peace.

-- 
Karsten M. Self <kmself at ix.netcom.com>       http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?             Home of the brave
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