boomberg bloopers

[Brian Behlendorf]

On Fri, 16 Feb 2001, Seth David Schoen wrote:
> Brian Behlendorf writes:
>
> > Bullocks - you may agree or disagree with the
> > contention that swapping someone else's IP against their will is theft,
> > but you can't claim that someone who writes software and *intentionally*
> > gives it away for free is a threat to anyone.
>
> That person is a threat to the revenues of the people selling
> comparable software.  That threat is real, even though it arises from
> totally legitimate activities (from the point of view of many
> different political philosophies and legal regimes).

Good point.  There is another nuance to this, too, one that I do hear
brought up from time to time by corporate types investigating adopting
open source:  when a group of entities get together and decide to "sell" a
thing at a cost substantially lower than the cost of production, *with the
intent to affect other parties who can not make a similar unreturned
investment*, then that is usually called "price fixing", a category of
antitrust.  From a judge's eye, a group of companies working together on
Linux to commoditize the OS space might not be all that far away, morally,
from MS giving away IE for free to commoditize the browser space.  That's
why the MS stuff is such a dual-edged sword, something the slashdotters of
the world don't appreciate enough, IMHO.

Now, whether you'd still call it price fixing when this coordination is
public, and when the fruits of that labor are also available to the
targeted companies on exactly the same terms as the coordinating forces,
or whether there is no "selling" going on at all, I don't know.  I think
those factors are the only reasons why no one's yet tried to bring
antitrust charges against an open source project they are threatened by.

Until recently, I actually worried that this
"give-something-away-for-free, charge-for-something-else" mindset in the
high-tech industry was doing far more harm than good - almost every
business plan in the late 90's went on about how they'd attack the
competitors' markets by commoditizing their offerings and making money in
a derivative way.  I worried that for every business whose revenue
depended on selling a "thing", there was another VC-funded company looking
for a way to make that "thing" cost less than the cost of production to
sell some other "thing".  I think this is more than just software, this
applies to services, hardware, heck, even books - does Amazon losing $.26
for every $1 they make sound like something that other legitimate book
sellers shouldn't have a legal (or at least moral) case against?  There
was this great opinion piece in Forbes last month, thanking Jeff Bezos for
his $1B donation to literacy levels in the world by subsidizing all those
sales.

> If there were a big market for some kind of labor and a lot of people
> began to do that same labor as volunteers, or as a hobby, the people
> who did it for a living would see their livelihood threatened, even
> though the activities of the volunteers or hobbyists are totally
> legitimate.

Another angle on this, which was covered in last month's Forbes ASAP,
interestingly enough: there is a lawsuit underway waged by former
volunteers for AOL, chat room moderators who in exchange for free AOL
access spent countless hours on those rooms, building up substantial value
for AOL.  Common sense says, they were volunteers, if they ever felt like
they weren't getting adequate compensation, they could leave, right?
Well, there is this labor law going back to the beginning of the last
century that says that "individuals can not volunteer for for-profit
corporations".  This makes sense, certainly - employers could get around
minimum wage laws by asking people desparate for a job to "volunteer" for
lots of time not on their hourly wage.  However, it also should send a
chill down the spine of any corporation who has incorporated donated code
into an open source project of theirs.  Yikes!  Open source was indeed
mentioned; in fact, here it is,

  http://www.forbes.com/asap/2001/0219/077.html

other sidebars and related articles are there too, it's well worth the
read - they definitely explore the gamut, for example companies selling
USENET articles which I think is safely outside of this area (by
definition, posting to USENET implies posting with a license that the
content may be reduplicated to any USENET "node", where a "node" can be a
CDROM, web site, book, whatever - IMHO).

There's plenty of valid fertile legal ground for MS to attack OS on if
they wanted to get nasty.  Might be best to anticipate it.

	Brian