SCN: Open source

[Steve]

x-no-archive:  yes

=========================

In the free-software world, people obey the rules because they 
believe in them. In the music industry, the rip-off is a way of life.  

(Andrew Leonard, Salon.com)---About halfway through Donald K. 
Rosenberg's new book on open-source software, "Open Source: The 
Unauthorized White Papers," I hit the chapters on licensing. I 
brewed another pot of coffee and made sure I had a pile of large 
needles close by to stab myself with. Learning about licensing is a 
dirty, dangerous job -- but if you care about free software, you really 
need to read the fine print.  

Yes, open-source licenses are boring, complicated, obtuse and 
multiplying in number faster than porn spam. But they are also the 
heart of the flourishing open-source software scene. The way they 
are used, or more to the point, the way they are not abused, is worth 
paying close attention to. Particularly if you are part of an industry 
like, say, the music business, where there currently seems to be a 
wee problem of copyright violation.  

Never mind the endless, mind-numbing subtleties. You don't really 
want or need to know that the Sun Community Source License treats 
derivative rights (the right to make new software programs based on 
the original source code) differently than the Mozilla Public License. 
You don't have to care that there are actually two versions of 
Richard Stallman's famous GPL -- the strict, original version 
untrammeled by compromise, and the more industry-friendly LGPL. 
Once you've had the basic parameters explained -- on this side, the 
side of ideological purity, there is the GPL, and on that side, the side 
of lenient pragmatism, there are the BSD-style licenses -- you know 
more than enough to stay, in the words of hacker Eric Raymond, "fat, 
dumb, and happy."  

But the longer I puzzled over the various licenses described by 
Rosenberg, and the longer I mulled over a brilliant essay on the 
potential legal enforceability of such licenses by Steve Lee, the 
more I began to be amazed at the deep structural weirdness that 
clings to the world of open-source licensing. Open-source licenses 
are the practical foundation of the open-source infrastructure -- and 
yet at the same time they are almost abstractly irrelevant. For all 
their carefully crafted clauses, all their painstaking attempts 
(particularly in the cases of the licenses concocted by commercial 
companies) to balance various interests, and all the endless digital 
hot air that has been expended in holier-than-thou license flame 
wars, not a single one of these licenses has yet been tested in 
court. No one knows if they will actually work.  

We know the software works. But do the licenses really ensure 
survival in an ever more litigious age? We have no idea. And yet 
free software is thriving. How is that? One answer is that it's not the 
legal standing of licenses that makes people respect them -- it's the 
consensus that the rules the licenses codify are essentially fair.  

That's the lesson that the entertainment industry needs to have 
drummed into its collective behind. It's well established that nobody 
trusts record companies. So despite the hundreds of millions of 
dollars spent trying to prop up copyright through legislation, 
lobbying and lawsuits, nothing seems to work.  

The record companies need to take a different approach. They must 
create a system that people will believe in. Force won't work -- in the 
digital age, it can't work. And while a good license that's part of a fair 
system can't enforce ethical behavior, it can, in significant ways, 
encourage it.  

I once asked Bill Joy, co-founder of Sun Microsystems, whether his 
opinion on the merits of licensing had changed because of Sun's 
experience with Microsoft and Java. Sun has historically been a 
proponent of aggressively licensing its hardware and software to 
other companies. But Microsoft licensed Java from Sun, and then 
promptly proceeded to write its own version of the programming 
language that was incompatible with Sun's. Did that sour Sun on the 
merits of licensing?  

No, said Joy. "They [Microsoft] were going to do whatever they 
wanted. It's quite clear that the law doesn't matter much to them -- 
what difference does it make if we license it to them or not? They 
would have done what they wanted anyway."  

Sun's experience is just another example of how licenses are only 
as good as the faith that people put into them. And yet, more virtual 
blood has been shed on the topic of licenses in the free-software 
community than on practically any other subject. Nothing is surer to 
enrage hackers than a corporate license that appears designed to 
take advantage of developer volunteerism. And just let the merest 
whiff of the accusation surface in a place like Slashdot that some 
tiny software company has violated the terms of the GPL. The troops 
mobilize! The e-mail bombings begin! The press, attracted by the 
hubbub, generates its own frenzy. And invariably, the offending 
company scrambles to cover its butt -- no one needs that kind of bad 
publicity.  

Contrast this, again, with the music business. Open-source software 
authors intend for their intellectual property to be freely 
redistributed, whereas songwriters generally do not. (Although with 
Offspring and Smashing Pumpkins giving away their albums, there 
are some clear cracks in the dike.) But despite this seemingly huge 
ethical issue, we end up with two completely different outcomes. In 
the case where the authors are giving away their software but 
putting certain conditions on what people are allowed to do with that 
software, the community of software developers is respecting the 
letter of the license. Whereas in the case where the songwriter and 
the record company are screaming, vociferously, that people should 
stop doing what they are doing with their songs, the intent of the 
author is being trampled.  

The explanation for the different outcomes, again, is that software 
developers believe both in the right of software authors to determine 
what happens to their code and in the essential fairness of the open-
source system. The point of open-source licenses is to benefit the 
user or the software developer, not to exploit them. But record 
companies don't inspire the same trust. Consumers feel ripped off 
when they pay $16 for a CD whose cost to produce is minimal. 
Artists, even if they are opposed to Napster music trading, still feel 
exploited by record companies. The system is based on each 
participant trying to get away with as much as they can -- so that's 
the way consumers behave, too.  

Open-source software and Napster-style copyright violation are, 
though different in some important ways, still both sides of the same 
coin: They are both reflections of the fact that in the digital age, it is 
absurdly easy to copy things. Open-source software hackers have 
made that fact into the foundation of the way they do business. The 
music industry sees it as a threat to all that they hold dear.  

But it's also an opportunity. If the recording industry could come up 
with a system that people believed in, they could potentially save 
themselves, at the very least, the millions that they are spending on 
legal fees. But to pull that off, the record companies are going to 
have to hope that if they treat consumers and artists fairly, people 
will act fairly to them.  

That's a radical thought -- since in some ways, being fair is patently 
anti-capitalist. It means not charging what the market will bear, not 
exploiting either consumers or artists, dividing up the pie more 
equally than ever before, and then depending on average people not 
to abuse the system. It's also a very risky business, because there 
is no guarantee that people will behave honorably.  

But it's the only way forward. There will always be a workaround to 
circumvent any security measures the record companies devise, 
and there will always be a new improved file sharing protocol to 
replace whatever the lawyers manage to shut down. Underground 
online black markets will never disappear; ones and zeroes are just 
too damn good at getting around.  

Would it work to modify the current system of copyright so that 
consumers of music would be free to trade the music, if in return 
they committed to voluntarily compensating artists when they 
benefited from such trading? Impossible to say. The current 
experiments, such as FairTunes, are too small in scale, and lack 
enough support from the big players, to make a dent in the public 
consciousness. But the open-source example suggests that, even if 
the licenses themselves aren't enforceable, the language of those 
licenses may encourage "good" behavior.  

Steve Lee chooses the Apache license as an example. The Apache 
Web server is the most widely used program on the Internet for 
enabling computers to host Web sites. The license that protects its 
use is a spinoff from the lenient BSD-style family -- an open-source 
license that says that you can do whatever you want with the code, 
even make changes to it and keep those changes proprietarily to 
yourself, as long as you give credit to the original authors of the 
code.  

But, as Lee notes, there are some significant additions to the 
Apache license that emphasize Apache's dependence on volunteer 
contributions and implicitly make the case for Apache's 
righteousness. For example, use of the Apache name is forbidden 
for any derivative software product in which code is kept proprietary. 
 
"The incentives created by the legal language of the Apache 
License," writes Lee, "serve to reinforce the cultural mechanisms ... 
For example, although the licensee is free to close the code derived 
from the Apache code base, the licensee would not be able to benefit 
from the goodwill built up around the Apache name ... Considering 
these conditions in light of the Apache License's express 
encouragement of 'voluntary contributions,' the language of the 
Apache License may provide additional incentives for the licensees 
to participate in the 'gift culture' of the open source community."  

Incentives to join the gift economy! If the music industry could figure 
out how to join in -- or if at the very least it made an honest attempt 
to join in -- wouldn't everyone stand to benefit? Perhaps profit 
margins at the biggest record companies would be tightened, but 
that's just life in the 21st century. It's time to give people licenses 
that encourage them to be good, rather than invite them to not give a 
damn.  

Copyright 2000 Salon.com 





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