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Some Good News from New Zealand - Updated
Monday, March 13 2006 @ 06:09 PM EST

Remember the Guide to Legal Issues in Using Open Source Software, commissed by New Zealand's State Services Commission, which we researched and discovered was written by a law firm with a connection to Microsoft? I called it New Zealand's "Get the Facts" style report.

I just heard from Peter Morgan, who tells me he wrote to the SSC, and he's gotten a very nice email back with some good news. It seems quite a few people wrote to them, actually, pointing out various inaccuracies, and they are planning to revise the document as a result. ComputerWorld has some reactions to the report in an article titled Proprietary software also has legal hurdles, including some words from the author of the New Zealand report:

“We didn’t use the word ‘viral’,” said John Elwood, author of the New Zealand report, at Govis. “That was one term we deliberately avoided. ‘Infection’ was just the most convenient shorthand way of describing the way the terms of an open source licence could shift to a derived product which might include some commercial code that the developer wanted to keep confidential. No negative implication was intended.”

Right. Nothing negative in that FUD. I get it. He meant "infectious" in a good sense, like an infectious smile. Not.

Peter has placed the email here, and here's the meat of it:

The State Services Commission has provided consistent advice since 2003 encouraging government agencies to consider open source software where appropriate. The SSC stands by this advice.

The Legal Issues document was only ever intended to address the legal risks, not the wider benefits, of using open source software. The guide did not contrast open source risks with the risks of using commercial software, as these risks are well understood. The document's focus on open source risk, in the narrow and specific circumstances in which that risk may arise, should not give the impression that SSC has changed its commitment to the New Zealand government using open source software. On the contrary, SSC believes the guide will help government agencies use open source software with confidence.

However, as a result of feedback from the New Zealand and international open source communities, SSC will review the document and - with input from members of the New Zealand open source community - issue in the very near future a revised version that more clearly positions the document in its correct context. We trust that this revised version will address the bulk of the feedback received.

As you can see, it's true that New Zealand has had a positive view of Open Source since at least 2003. How that particular law firm was chosen, wolf-in-the-hen-house, to write a report on Open Source legal issues is unknown but hilarious. Anyway, it didn't work in the end. When the revised document is finished, it will be posted, the email says, on New Zealand's E-Government website.

That is the thing about FUD. Once again we see, it only works in the dark.

Update:

I just heard from Peter Harrison, the President of New Zealand Open Source Society, who says I may share with you the letter [PDF] they sent to the SSC regarding the report. The PDF includes the report, but here is the letter, which will form the basis of discussions:

*********************************

New Zealand Open Source Society
C/:Unit A6, 400 Rosedale Road
Albany 13 March, 2006,

Edwin Bruce
State Services Commission
PO Box 329
WELLINGTON

Dear Sir,

The New Zealand Open Source Society (NZOSS) would like to take the opportunity to offer comment on the recently published guide entitled “Guide to Legal Issues in Using Open Source Software”. Our society is a voluntary membership organisation with over 200 members drawn from around New Zealand, including many of the leading figures of the Open Source and Free Software communities.

We believe that the current policy on the use of Open Source Software by government departments is positive and we are eager to support the State Services Commission in addressing any issues that have the potential to hinder the uptake of Open Source Software.

However we believe that the Guide to Legal Issues could be a more helpful and accurate portrayal of the situation and the legal implications that would be faced by departments who are considering Open Source Software. The report does contain helpful information, and is a starting point to addressing implications although we have several concerns that we believe need to be addressed. We outline our concerns in more detail below.

In this document we will address the following issues with the Report's recommendations:

1. Prohibition of Use
1.1.This recommendation is unsupported by evidence.

2. Warranties and indemnities.
2.1.This advice is directed solely at Open Source providers but should apply to all.
2.2.It is easier for local software companies to offer to warrant and support FOSS tools and products.

3. Incorrect Factual Information
Inaccuracies when comparing Proprietary and Open Source Software

3.1. Increased risk of faults
Risk of faults is not exclusive to Open Source Software

3.2.Exposure to intellectual property claims
There is no more exposure to IP claims with Open Source Software than Proprietary software.

3.3.Obligation to distribute due to “Network Clause”
No such “Network clause” exists

4. No comparison to commercial risks to provide context
4.1.The report fails to provide adequate comparison between Open Source and Proprietary Software

5. Emotive Language
5.1.A reader of the document who was previously unfamiliar with Open Source Software would be left with a unduly negative impression of the implications associated with its use.
5.2.We note that the use of this terminology is explained by a reference to a paper by Greg Vetter 1, however we do not feel that this is an adequate justification.
5.3.The word “infect” it is not an accurate portrayal of the effects of Open Source licenses such the GPL.
5.4.We believe that there are other terms that can more accurately portray the effects of Open Source licenses without attaching overt emotional connotations.

1. Prohibition of Use. “As its standard position, all Development Agreements should prohibit the use of any open source code in the supplied software."

We believe the recommendation is unwarranted and unsupported by the evidence cited.

1.1.This recommendation should at the very least address the appropriate risks. The clause should only apply to Open Source Software that is licensed under the GPL or other license in which there is an obligation to release the source code. The clause should also only be added when the project will be released beyond Government. Even with GPL software there is no obligation to release source code to anyone except those you release binaries to.

1.2.Since the Government is not in the business of writing software for profit the potential limitations of GPL licensed code will only affect a very small percentage of Government software projects, and will have no impact on software released under one of the many nonGPL Open Source licenses. To apply a general clause which prohibits Open Source in order to mitigate a risk that applies to a small percentage of projects is not warranted.

1.3.The remaining risk faced in the event of distribution of GPL code inside a confidential project is still very low. Previous GPL enforcement lawsuits taken by The FSF (Free Software Foundation) and others have made a point of being cooperative with GPL violators. The usual remedies sought are either complying with the GPL and releasing source code, or removing the GPL source code from the project. There is very little risk of large fines or punitive enforcement actions 2.

1.4.It is therefore difficult, given the low risk of severe consequences for unintentional GPL violations, to understand why there should be a blanket ban on use of all Open Source in external contracts. Clauses which exclude Open Source Software would unquestionably be included with Request for Information and Request for Tender documents as currently occurs on the GETS procurement system. Companies reading the standard contract will believe that the standard contract is not negotiable, or at the very least will be unwilling to ask for this point to be negotiated. They will instead simply not apply for those contracts. The likely effects of this clause being included in standard contracts would be to restrict the suppliers of government contracts to nonOpen Source companies, in direct opposition to the stated aims of the State Services Commission.

2.Warranties and indemnities

"The warranties and indemnities that an agency should seek from external suppliers, where appropriate and available, include the following: A warranty that the software conforms to the supplier's specification and the agency's requirements. Suppliers will generally be unwilling to provide a more openended "fitness for purpose" warranty. A warranty that the agency's use of the software in accordance with the agreement will not breach the intellectual property rights of any third party. An indemnity from any third party's claim that its intellectual property rights have been infringed by the agency using the software in accordance with the agreement."

2.1.We agree that when procuring software that the purchasing entity seeks warranties and indemnities where appropriate. However, this advice should apply to all software providers, not just Open Source providers. This creates a secondary issue around indemnity; few if any New Zealand companies have sufficient capital to defend themselves against patent infringement claims. Since it is impossible in practice to ensure a piece of software does not infringe on any patents it means that all New Zealand software companies are in effect risking their business every time they indemnify. This is an issue for all software producers in New Zealand, not only Open Source developers. It is a failure of the patent system in New Zealand and world wide rather than an issue with Open Source Software.

2.2. It is easier for local software companies to offer to warrant and support FOSS tools and products. It is easier for us to build up an in depth understanding of these products and, as we have access to the code and documentation, to warrant that we will fix any defects. This is a major benefit to using FOSS.

3. Incorrect factual information.

We do not believe that the guide accurately deals with the relationship between Open Source and proprietary software. The second introductory paragraph states that the guide is intended to cover a “number of legal risks not posed by proprietary or commercial software”. Unfortunately the guide continues on to identify risks which are not unique to Open Source Software at all.

3.1.Increased risk of faults: The guide suggests that Open Source Software presents unique legal risk to departments and is susceptible to unique fault rates not present in proprietary software. Faults in software are not unique to Open Source Software 3. The guide does not provide any evidence to substantiate this claim, and the only studies the NZOSS is aware of suggest that Open Source Software is as good, if not better than proprietary software in terms of software bugs 4. Even assuming that some Open Source Software did have a higher fault rate than the equivalent proprietary option we do not understand how this is a legal risk.

3.2 Exposure to intellectual property claims: The guide suggests that users of Open Source Software are at unique risk of intellectual property infringement claims. The guide assumes that this is due to the lack of warranty protection available in licenses from Open Source vendors compared with the protection typically offered by proprietary licenses. We do not believe this is an accurate portrayal of the risks involved. Large Open Source providers such as Novell and IBM offer intellectual protection to their Open Source customers 5. A large number of proprietary software licenses do not offer intellectual property protection 6. In addition there are examples of patent infringement action directly affecting proprietary software users 7, while there have been no successful actions taken against Open Source projects 8.

3.3. Obligation to distribute due to “Network Clause”: The guide suggests that there are common Open Source licenses which have “Network Clauses” which will form an obligation for a organisation to distribute source code to users who use an application over the Internet. This would mean that software projects to provide services to citizens would form an obligation on the government organisation to distribute the source code to those citizens. It also suggests that there may be a “Network Clause” in the next version of the GPL. No known current Open Source license has a "Network Clause" as stated. It's currently speculation that the next version of the GPL will have an optional clause for use in remote APIs, not web sites. The concept that software licensing could force an immediate disclosure of confidential information is unheard of in the industry, and is not backed by any legal precedent that the NZOSS is aware of.

4. No comparison to commercial risks to provide context.

4.1.One of the failures of the document was to not provide context of the risks in comparison to closed source proprietary software. For example, proprietary software customers risk imprisonment and large fines in the event they break the copying and distribution infringement provisions of the Copyright Act. These penalties can occur even in the event the violation is not intentional. Government Departments may face action from proprietary vendors if they violate licenses which may include substantial financial penalties.

4.2.Using Open Source by comparison presents a much smaller scope for license violation, limited only to a specific licence, the GPL, and even then is limited to a rare set of circumstances. Violation of proprietary software licenses by comparison can result in severe penalties. By concentrating on a very specific and rare risk of GPL violation the document fails to provide that information in context: that all of the risks associated with proprietary licenses by in large do not exist for Open Source software at all.

5. Emotive Language

We believe that the language used in the document is not conducive to objective decision making. Our concern is that a reader of the document who was previously unfamiliar with Open Source Software will be left with a unduly negative impression of the legal implications associated with its use.

5.1.Our first area of concern is the language used to describe the effects of Open Source Software when it is modified or integrated with other software (either proprietary or Open Source). In particular the word “infect” 9 and the associated vocabulary of “quarantine” 10 are not appropriate choices for a document intending to offer unbiased advice to the reader.

5.2.We note that the use of this terminology is explained by a reference to a paper by Greg Vetter 11, however we do not feel that this is an adequate justification. The Vetter paper is critical of the “infectious” nature of some Open Source licenses and it is not entirely surprising that the author has chosen a word with emotive connotations to support this conclusion. The paper attempts to justify the choice of “infectious” on the basis that there are good infections such as that of “infectious laughter”. We do not agree with this premise and believe that the average reader of either the Vetter paper or the Guide would consider the negative connotations of the word “infect” such as human disease or computer viruses long before laughter came to mind. The term “quarantine” suggests the intended context is that of a disease.

5.3.The word “infect” it is not an accurate portrayal of the effects of Open Source licenses such the GPL. Infectious agents (such as viruses) are capable of replicating and infecting a host without the intervention of the host itself. By contrast, a piece of software licensed under the GPL requires human intervention in that software be deliberately copied. Furthermore, the obligation to distribute source code is limited to a few special conditions such as redistribution of GPL binaries. If you replace GPL components in software development with inhouse, commercially licensed, BSD licensed, or even in many cases, LGPLlicensed components then the obligation no longer exists for subsequently distributed works. Infectious agents are also associated strongly with the negative effects on the host. This is again in contrast to Open Source Software which are always beneficial to the host application in that it provides additional functionality.

5.4.We believe that there are other terms that can more accurately portray the effects of Open Source licenses without attaching overt emotional connotations. For example the Australian Government Information Management office uses the term “share and share alike” in its “Guide to Open Source Software for Australian Government Agencies” 12. A widely referenced paper by Larry Rosen seeks to address the use of the term 'infectious' suggesting instead the term 'inherits' to describe the effects of Open Source licenses 13.

In Summary:

To mitigate the issues the NZOSS has with the document we respectfully submit these courses of action

1. The Prohibition of use should be reworded in a less empirical fashion that better reflects the SSC's support for Open Source Software
2. The document should state that Warranties for fitness of purpose should be obtained from all Software suppliers no matter whether proprietary or Open Source.
3. Remove those factually incorrect statements in the document that specifically assign risk to Open Source Software where those same risk are shared by Proprietary. Also define the level of real risk as much as is possible.
4. Produce a similar document that makes fair comparisons with proprietary software.
5. Reword the the document with less emotive language more in the style of the Australian model using “share and share alike” and/or “inheritable” rather than infectious.

In conclusion,

The NZOSS has consulted with its membership in order to present a unified reply to the document and this document is the result of that collaboration.

NZOSS agrees that integrating Open Source Software into a typical business IT environment containing proprietary software will present legal implications and we agree that these issues need addressing.

The NZOSS sees this response as the beginning of an open ended dialogue between the SSC and the NZOSS. In the spirit of collaboration that is the hallmark of Open Source we invite the State Services Commission to engage in a constructive dialogue with the NZOSS to address these concerns now and in the future and so improve the guide so that it can be a useful and valuable resource to the departments served by the State Services Commission.

The NZOSS would like to affirm our support of the stated position of the State Services Commission towards the use of Open Source software in Government departments. We also remain willing to assist the State Services Commission in any way possible in removing further barriers to Open Source adoption.

We look forward to working with you further to smooth the way for greater adoption of Open Source technologies in Government Enterprises.

Regards,

Matt Brown,
Graham Lauder,
David Lane,
Peter Harrison, President


1 http://opensource.mit.edu/papers/vetter2.pdf
2 http://www.gnu.org/licenses/gpl.html
3 http://www.forbes.com/forbes/2002/0513/158sidebar.html
4 http://www.theregister.co.uk/2003/07/02/open_and_closed_source_software/
5 http://www.novell.com/collateral/4613395/4613395.pdf
6 http://www.microsoft.com/technet/downloads/winsrvr/servicepacks/blockertool/eula.mspx
7 http://www.shortnews.com/shownews.cfm?id=52622
8 http://www.groklaw.net/pdf/IBM235C_copy2.pdf
9 http://dictionary.reference.com/search?q=infect
10http://dictionary.reference.com/search?q=quarantine
11http://opensource.mit.edu/papers/vetter2.pdf
12http://www.sourceit.gov.au/sourceit/oss/legal_context (Accessed 8 Mar 2006)
13http://www.rosenlaw.com/html/GPL.PDF (Accessed 8 Mar 2006)


  


Some Good News from New Zealand - Updated | 92 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic thread
Authored by: MathFox on Monday, March 13 2006 @ 06:14 PM EST
For other Legal and Open Source news.

---
When people start to comment on the form of a message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

Corrections thread
Authored by: MathFox on Monday, March 13 2006 @ 06:16 PM EST
There is no need to reply here, only when you see a mistake.

---
When people start to comment on the form of a message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

Some Good News from New Zealand
Authored by: tiger99 on Monday, March 13 2006 @ 06:24 PM EST
Great news PJ, and I hope you are feeling a lot better.

I am not sure if this NZ business was FUD or mere incompetence, and I don't suppose we will ever really know. Not that it matters, the end result is what counts.

[ Reply to This | # ]

Woolly Cardigans Thread
Authored by: fettler on Monday, March 13 2006 @ 06:24 PM EST
For those with something to unravel and share

[ Reply to This | # ]

Some Good News from New Zealand
Authored by: bigbert on Monday, March 13 2006 @ 06:40 PM EST
We all do our share here down under. I also wrote to the SSC and pointed out
that the language is a bit suspect. The issue has been taken up by Opposition
parties in Parliament as well, so no, no FUD is going to sneak in under the
radar.

Now I can return handing out Ubuntu CD's to my students ;-)

---
4c 69 6e 75 78 20 52 75 6c 65 73 21

[ Reply to This | # ]

Some Good News from New Zealand
Authored by: Hygrocybe on Monday, March 13 2006 @ 06:52 PM EST
Like a number of others, I also emailed the relevant New Zealand department and
encouraged other concerned peoople to do the same - and I believe that they
did.

I am delighted with the positive results now emerging. FUD is always
distasteful, but when it is so very, very obviously an attempt to prevent
increased use of free and open software in a country that is steadily moving in
that direction, it becomes almost impossible not to point the finger firmly at
tentacles from Redmond.

Well done New Zealand; now if we can only get Australia to follow suit. Nice
to see the kiwis as trailblazers and it is now interesting to be an Australian
in a country that is sure to find itself in a 'catch-up' position.

---
Blackbutt, Australia

[ Reply to This | # ]

"well understood"?
Authored by: Anonymous on Monday, March 13 2006 @ 06:53 PM EST
"The guide did not contrast open source risks with the risks of using commercial software, as these risks are well understood. "

On the contrary, I think the CEO and CFO of every company I worked with assumed that all the legal risks of proprietary software were the responsibility of the software vendor, and that all the legal risks of F/OSS are the responsibility of the user.

I think the comparing and contrasting of risks (or rather non-contrast of risk --- for either F/OSS or proprietary software you can buy various degrees of indemnification) is the most important message that CXOs could hear.

Perhaps if Groklaw (PJ or one of the lawyers that hang out here) could publish a well-written for the CFO audience summarizing the how the risks of each compare, a lot of us could use that to help in internal FUD campaigns run by MCSEs (which seems to be a recent trend here).

[ Reply to This | # ]

Some Good News from New Zealand
Authored by: dyfet on Monday, March 13 2006 @ 06:55 PM EST
An excellant demonstration of how many eyes makes all bugs shallow :). It is easy for a corporation such as Microsoft to engage in deceit and sabotage against other business entities, because they have so few eyes, but we have community and the world watching for these things.

[ Reply to This | # ]

Some Good News from New Zealand
Authored by: karora on Monday, March 13 2006 @ 07:15 PM EST
Hi,

I met John Elwood (the lawyer who was primarily involved in drafting the
document) the week before last at a government IS managers seminar on Open
Source that had plenty of attendees from the State Services Commission.

He had some good points, and it is important to bear in mind that the document
was somewhat written (as lawyers often do) from a fairly paranoid ("What's
the worst that could happen") perspective.

This was a couple of days after the release of the document, and John was
presenting it to the seminar with some trepidation, as the furore was cresting
at about that time. John presented well, however, and it was clear that the
feedback had indicated to SSC and John that a revised version will be
necessary.

In fact, in discussion with SSC I found that the advice was drafted in order for
the SSC to understand the licensing issues better, specifically because they
were contracting a local company to _work_ on some open source software!

So I really do hope that the feedback has been of high quality (certainly one
submission from the NZ Open Source Society which I have seen was of very high
quality).

Anyway, John Elwood is no longer working for X (he's set up his own consultancy
"specialising in ICT contract and commercial" law.

Later today he is coming to our company to talk about these issues, which should
be very interesting. This is on his own and not under the auspices of the SSC,
following an invitation from one of our directors who was also at the open
source seminar a couple of weeks ago.


The OSS philosophy of "release early, release often" can perhaps also
apply to legal advice :-) Anyway I'm sure that all of the feedback will be
incorporated to produce a document which is valuable to all parties.

Regards,
Andrew McMillan.

---
Direct electronic missives to andrew - catalyst, net, nz

[ Reply to This | # ]

Their response to me
Authored by: The Mad Hatter r on Monday, March 13 2006 @ 07:39 PM EST


Dear Wayne,

Thank you for your feedback about the State Services Commission's Guide to Legal Issues in Using Open Source Software LINK

The State Services Commission has provided consistent advice since 2003 LINK encouraging government agencies to consider open source software where appropriate. The SSC stands by this advice.

The Legal Issues document was only ever intended to address the legal risks, not the wider benefits, of using open source software. The guide did not contrast open source risks with the risks of using commercial software, as these risks are well understood. The document's focus on open source risk, in the narrow and specific circumstances in which that risk may arise, should not give the impression that SSC has changed its commitment to the New Zealand government using open source software. On the contrary, SSC believes the guide will help government agencies use open source software with confidence.

However, as a result of feedback from the New Zealand and international open source communities, SSC will review the document and - with input from members of the New Zealand open source community - issue in the very near future a revised version that more clearly positions the document in its correct context. We trust that this revised version will address the bulk of the feedback received.

The revised document will be posted to the e-government website LINK and a media release will be issued.

Other information that you might be interested in is available here:

LINK
LINK

Regards,
E-government
State Services Commission


-----Original Message-----
From: webmaster@e.govt.nz [mailto:webmaster@e.govt.nz]
Sent: Thursday, 2 March 2006 2:14 p.m.
To: ICT - E-government
Subject: Feedback on www.e.govt.nz

Email address (will be empty if none was provided): (REMOVED)

The following feedback has been provided for URL: LINK

Comments on the "Guide to Legal Issues in Using Open Source Software"

I've just finished reading the "Guide to Legal Issues in Using Open Source Software" in toto, and the document is so full of errors that I'm in shock. The impression gained is that the author did NOT read any of the software licenses discussed.

In addition this statement in section 2 that "While the use of Open Source software has many benefits, it brings with it a number of legal risks not posed by proprietary or commercial software," is also incorrect. I would refer you to the number of times that Microsoft and other large software companies have been involved in court actions recently over accusations of missappropriation of intellectual property, while open source companies have not.

In closing - the publishing of this document will make a laughing stock of the Government of New Zealand, and the document should be recalled. I would also recommend a royal commision into the writing of the document, as it appears to have been written by someone with a partisan outlook on the situation.

Regards

Wayne

---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

kudos to NZOSS
Authored by: LouS on Monday, March 13 2006 @ 09:34 PM EST
Wow - the letter from the NZOSS is wonderful: firm and substantive but calm
and polite. And very clear, organized ... A model for all such repsonses.

[ Reply to This | # ]

I just love 3.1
Authored by: Anonymous on Monday, March 13 2006 @ 10:42 PM EST
We are seeing a real mood swing, in many countries and administrations, over the
use of FOSS. The FUD seems to be slipping not sticking. I believe that the
proprietry software companies, of which Microsoft is a good example, will have
to start to swim with the tide or be swept away on a wave of their own FUD.
Realy, the old ways will need to change and I have an odd feeling that we may
see some change but it will be slow coming.


Tufty

[ Reply to This | # ]

Come on PJ, you're being unfair
Authored by: Anonymous on Monday, March 13 2006 @ 10:47 PM EST
Really now. You're asking a zebra to change it's stripes. There's no
difference here. You're asking the liars, a.k.a. "Microsoftees" to
stop lying! How unfair can you get?

You gotta cut 'em some slack. They're like heroin addicts, they can't help
themselves from lying again and again and again. Just like heroin addicts
they're not opposed to "sharing dirty needles" either, in other words,
asking their paid shills in the press to lie for them too.

[ Reply to This | # ]

Some Good News from New Zealand - Updated
Authored by: Anonymous on Monday, March 13 2006 @ 10:52 PM EST
Great News!

A really good job by all involved, well done people.

[ Reply to This | # ]

About the "Network" clause
Authored by: Malcolm on Monday, March 13 2006 @ 10:55 PM EST

I am not entirely convinced by the NZOSS (and others') claim that no license contains a "network clause", at least in effect.

The Academic Free License (v 3.0), for example, says that the Licensor will make a copy of the source code available to everybody to whom they distribute the application (section 2). Section 5 states that an external deployment (which includes making the a derivative application available over a network) must be treated as a distribution.

What is not clear to me is whether a user of an external deployment (in the terms of the AFL) is a person to whom the externally deployed has been distributed. But if they are not the target of the distribution, who is (that is, why is section 5 necessary at all).

Note that section 5 of the AFL, version 3, is intentionally omitted from version 2.1 of the same license.

[ Reply to This | # ]

Some Good News BUT
Authored by: tangomike on Monday, March 13 2006 @ 11:39 PM EST
The original paper shows that FUD is having an effect. The author(s) got these
misinterpretations and misinformation from somewhere. There's no malice in the
doc as far as I'm concerned, but in its original content it clearly would have
prevented some government agencies from looking into FOSS options.

It tells me that FOSS is still in an uphill fight against the old guard.

On the bright side, an group of engaged citizens have had a positive effect.

---
If Bill Gates had a nickel for every time Windows crashed...
Oh wait! He does!


[ Reply to This | # ]

Infection
Authored by: Anonymous on Tuesday, March 14 2006 @ 12:35 AM EST
personally I find Inherit to be a suitable replacement for infect and a lot less
emotive

[ Reply to This | # ]

That's the biggest FUD of all
Authored by: billyskank on Tuesday, March 14 2006 @ 07:08 AM EST
That the GPL forces you to disclose your confidential source code. Nobody is
forced to do anything. The most amazing thing to me is that people want to use
GPL-licenced code in their own products - to benefit from the work of others,
for free - and think the reciprocal requirement is unfair.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Infectious, quarantine?
Authored by: dwheeler on Tuesday, March 14 2006 @ 01:58 PM EST
The "infectious smile" stuff is nonsense. I've never heard of smiles being "quarantined". As noted in ComputerWorld, the term "infectious" in the computing world is ALWAYS negative, since it usually applies to (harmful) computer viruses.

And it is ALWAYS wrong forbid option A, and mandate option B, without comparing the options. This report only focuses of one kind of software (OSS), and does not compare it to the legal risks of the other kind (proprietary), so it CANNOT legitimately recommend using option B instead of option A. I have a collection of primarily OSS statistics, but many of them do contrast with proprietary software, and the only conclusion I draw is that "you should consider OSS". With no evidence that OSS is worse, this report draws sweeping and unwarranted conclusions. The only "evidence" presented by this paper that OSS is worse is its fear-mongering language; if that's your only evidence, you don't have a case.

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Some Good News from New Zealand - Updated
Authored by: karora on Tuesday, March 14 2006 @ 04:25 PM EST
Hi,

A brief update now after meeting with John Elwood last night.

I think he was a little stunned when he came to talk to us and found himself in
a standing-room only session surrounded by about 25 of our more passionate open
source developers :-)

Firstly we gave him a copy the NZOSS letter, which he hadn't seen beforehand
(well actually, firstly we gave him a _beer_ :-). NZOSS are meeting with the
State Services Commission on Friday and he will also be there, so there might be
some more comment after that, but it wasn't reasonable to get some comment on it
there.

He then talked through a new version of the advice document that he is in the
process of drafting up. This new version (even in this very early draft)
addresses most of the concerns that have been raised, and there was lots of
interesting discussion (e.g. the notion of a "derived work" is not
defined in NZ law).

The discussion was all pretty rational, and I think everyone took some good
points away from it. We made some suggestions for rewording the more
emotionally loaded terms and John tried them out for himself during the
discussion, perhaps becoming more comfortable with them.

I think it is fair to say that our hopes of the meeting were reasonably high
(especially for those of us who had previously met John) but that the meeting
exceeded those expectations. Well done!

A good session, and we're all looking forward to a new version of the document
becoming available in a reasonably short timeframe.

Regards,
Andrew McMillan

---
Direct electronic missives to andrew - catalyst, net, nz

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Bored of ‘viral’ adjective
Authored by: Anonymous on Thursday, March 16 2006 @ 06:30 AM EST
I'm finally totaly bored of the all the fuzz around the "viral" theme
around GPL.

I'm working all the time with both FLOSS and proprietary software and hardly see
any difference in practice. Or more precisely I see the difference and
product-wise I can tell that viral nature of GPL help make final product
better.

I have participated in several project which had problematic components
(proprietary libraries for reading propritary file formats) with mixed
licensing: over two decades many companies have worked on the library and of
course attached their own licenses to the changes. Several of the contributors
even required fees for ever installation. For us developers it was okay. But
then administrative department just started crying wolf: 10 people department
wasn't able timely prepare documents for next sales just because of the all the
mess with licenses involved with current two installations.

Most ironic part was when the customers were asked about the use of the
aforementioned file firmat promptly replied that they have abandoned it due to
poor support: few software companies went thru all the hustle buying new version
of library with all the latests fixes and improvements - all thanks to the bunch
of non-viral licenses...

PS The file format is part of industrial automation standard. If you you want to
sell something - you have to include its support. Go figure.

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Almost OT: M$ monopoly finding had NZ worried in 1999
Authored by: qu1j0t3 on Friday, March 17 2006 @ 08:21 PM EST
I just stumbled on the web site of ClendonFeeney, Barristers and Solicitors and presumptive competition to Chapman Tripp. :-)

ClendonFeeney collect together some articles and references on software licensing, with particular reference to Microsoft and other proprietary vendors. Of particular interest was a Computerworld article which worried about the impact of an adverse DoJ ruling against Microsoft (It was also amusing to read about the squirming of Microsoft's 'expert witness', Dr Richard Schmalensee*, when asked about the possibility of Microsoft having a monopoly):

[New Zealand's] applicable competition law is in Section 36 of the Commerce Act 1986. Section 36 deals with the abuse of a dominant position in a market.

The elements required to establish whether Microsoft is in breach of Section 36 in New Zealand are:

1. that Microsoft is a supplier in a defined market in New Zealand;
2. proof that Microsoft as a supplier holds a dominant position in that market in New Zealand; and finally
3. proof that Microsoft misused that position.

If Section 36 has been breached, our Commerce Commission has the responsibility and discretion to decide whether to prosecute Microsoft NZ under the Commerce Act 1986.

... Our Commerce Commission has not indicated that it has any intention to investigate or act on this matter. The Commission is no doubt waiting on the outcome of the U.S. case.

If our Commerce Commission chose, after a guilty verdict in the U.S., not to prosecute Microsoft NZ, Microsoft could adopt a strategy of continuing its existing conduct in the New Zealand market.

It does not take much to imagine a world where Microsoft, if allowed to act that way, would simply dissemble itself, with its many overseas operations continuing to act in the way that would then be prohibited in the U.S.

... We can therefore anticipate that the U.S. Courts would make an order that Microsoft’s U.S. corporation must in turn apply that order to its subsidiaries.

If this happens, it will be a startling illustration of how the competition law environment in countries like New Zealand can be determined by the Courts of other countries.

... A guilty verdict will force us to debate whether we are just a "company branch" country with little control over the way overseas companies compete here or whether we are still the masters of our own destiny.

That last paragraph was not intended in the way today's reader might think, that New Zealand should question reliance on the monopolist's products (in favour of, for instance open source, an even more attractive option in 2006 than in 1999). Rather, the article seemed more concerned with increases in business costs resulting from an adverse verdict.

At least today, we can more easily imagine a free market for software where consumers don't pay the price for the wrongdoing of their suppliers.

The ClendonFeeney site also links to the DoJ's Microsoft summary page.

-----------
* Dr Schmalensee, according to his CV, seems to claim antitrust and monopoly as his turf, but apparently has a blind spot when it comes to Microsoft (no doubt either the cause or the effect of them picking him as a witness). Apart from the contradictions mentioned in the article, he also has made odd statements like this:

Over the last decade numerous software products that had dominated their categories, including WordStar, VisiCalc, and dBase, saw their sales disappear rapidly in the face of innovative competition. Being popular mainly because you are popular is a precarious business.

It seems to me that last sentence is descriptive of MS itself. Certainly they aren't popular on merit. October 2001 interview with Dr Schmalensee here allows him to give some of his arguments:

Is there a role for antitrust regulators in high-tech? That is, can conduct remedies be imposed that would not impede the efficiency of a company, such as Microsoft, by putting restraints on its behavior, which would harm what it considers to be its ability to innovate?

I think there's absolutely a role. And there are a lot of things that are noncontroversial. Suppose Microsoft had actually been able to deny Netscape distribution; you can talk about dynamic competition all you want, but if you can't get the product to market and if an established firm can prevent an entrant from getting the product to consumers, that is--and ought to be--a violation.

So there are a lot of things where standard antirust principles carefully applied make sense for society. The trap the Clinton people fell into--and what the states appear to be falling into now--is trying to use antitrust, which is a fairly blunt instrument, as a tool to micromanage an industry. I just think that's not on.

Will or should antitrust get involved in the question of setting boundaries on what Microsoft can include in the operating system? Microsoft has asserted its right to improve the product, but competitors complain that they're slowly being put out of business because everything but the kitchen sink gets thrown in. For example, there's been a lot of heat about Media Player and Windows XP.

I was just at the L.A. Times and got into a debate about how Media Player is just going to destroy RealPlayer. I said, "Well, what is the rule for what features? What's the principal rule that says when something goes out? If the rule is, 'Gee, it's going to take out something that inconveniences a cuddly little company,' then we're in trouble. We need another rule."

What should be the appropriate standard, then, for deciding about something like Media Player, for example?

The argument made in the government case (against Microsoft) is that if adding a feature has the effect of suppressing competition with the OS or the platform, then that's at least a proper concern of the antitrust law. And you can worry about what the standards are, but there's no such argument about Media Player. There's a whole lot of people who say, "This is a problem, and we ought to do something to fix it." That's a danger, trying to engineer the industry and engineer the product. If you've read the District Court discussion about commingling of code, are you going to say, "Oh, I want these guys to do the engineering"? I don't think so.

In sum, Dr Schmalensee is known for his view, as expressed in the trial, that Microsoft's actions have never harmed consumers. All this is compatible with his conversative, pro-business mien. Your truth may vary.

---
I have a semicolon and I'm not afraid to use it.

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