[Fsfe-uk] Fwd: GPL as disruptive tech

[James Heald]

(Fwd'ing from a patents list)


Erik Josefsson wrote:

> Message from Carsten. Seems we have to speed up...
>
> //Erik
>
> -------- Original Message --------
>
> Hi!
>
> http://www.newtechusa.com/ViewPoints/DominateLate.asp
>  "Mezick's Theorem" states that open source dominance is the last phase
>    in the lifecycle of all mature horizontal software market

Thanks Erik and Carsten -- interesting article.

The notion of how Open Source can move in and commoditise a proprietary
technology has been on the radar since at least the original MS
"Halloween" memo.  But the article is a well-focussed and nice
discussion, and gives a useful bullet point-summary of some pretty
important likely consequences and responses.

What struck me as interesting to ask is the question, "How should a
policy-maker react, if they believe this memo ?" -- because it seems to
me there are two quite opposite possible responses:


Reaction A: GPL/Open/Free software could wipe billions of dollars off
company share values, destroy national champions, close down big
corporate software innovation.

Conclusion: Obstacles must be put in its way, especially software patents.


Reaction B: GPL/Open/Free software is not a threat to innovative and
vibrant sectors of the software market, but only threatens monopolistic
rent-seeking in non-competitive sectors which are stale, static,
dominated by a single leading player.

Conclusion: Livelier challenge in such sectors would be a *good* thing.
 Attempts by such monopolists to exclude competitors, either by means
of software patents, or by attempts at exclusive product-tying of lively
developing market-sectors to their old platforms, should be vigorously
resisted.


I think Reaction B is the deeper analysis, but we have our work cut out,
if we are to wean the Commission and Member States away from Reaction A.


> Konklusioner:
>    1. Software vendors with the most to lose will try to sponsor legal
>        attacks on the GPL, and not just with FUD or spin. They will
>        attack in court directly or through surrogates. I predict there
>        will be many legal assaults on the GPL. If the GPL can be
>        invalidated in court, Linux would likely become public domain.
>        Under that scenario, the vendor best prepared to embrace and
>        extend Linux could effectively own the market for the Linux
>        operating system.

In principle, I can't see any problem with GPL-enforcement.  If
copyright material is used without authorisation, the copyright owner
has a clear right to sue for all the undeserved profits made by the
infringer and (in the UK anyway) his legal costs also.

The only possible issue is anti-trust, whether the GPL's restrictions on
the linking of independent works is anti-competitive.

We talked about this a bit before Christmas in the context of the new EU
anti-trust proposals on technology licences, but this needs to have an
eye kept on it.

In any case, if the GPL were 'invalidated', all that would be directly
revoked jurisdiction-wide would be any permission to copy the code.  The
(hyopthetical) question is how Linus and others would then react.  I
think the code would likely *not* become outright public domain.
Instead the copyright-owners could refuse to relicence at all; or they
could relicense under a GPL-lite licence, eg LGPL; or they could offer a
full-price commercial licence alongside GPL.

Unlike patent rights, copyright only protects the expression of an idea,
   but cannot prevent a new independent implementation from scratch.
So it is usually seen as a much much weaker form of intellectual
property.  There can be anti-trust issues surrounding copyright -- eg
Lexis/Nexis law case reference codes in the USA; or that German
pharmaceutical distribution case.  But (as far as I am aware) there is
very little or no legal tradition for courts to impose a compulsory
commercial licensing of a copyright, in the way that they routinely do
for patents.

>  2. Software vendors with the most to lose will attempt to create
>      protocols and standards which are dependent upon underlying,
>      proprietary patents. Since patents grant a legal monopoly, such
>      patents have the effect of monopolizing the legal right to
>      implement and use the standards built upon them. This power will
>      be used as an legal weapon to prevent GPL software from gaining
>      traction. Over time, expect patent law to become perhaps the most
>      prominent weapon against the power of the GPL.

Scary stuff; and right on the mark, I think.

Conclusions 3 to 11 and the underlying discussion are also IMHO well
worth reading and considering.

Thanks again to Carsten and Erik for flagging up the article.

All best,

  James.