decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
More Rebuttals to AdTI's Ken Brown by Interviewees Ilkka Tuomi and Andrew Tanenbaum
Thursday, June 10 2004 @ 03:30 AM EDT

Yet another distinguished scientist, Ilkka Tuomi, has joined the growing crowd now publicly criticizing the research results recently released by the Alexis de Tocqueville Institution on the origins of the Linux kernel. The author, Ken Brown's, "research" and methodology have been seriously brought into question. Some of the arguments in the research paper were based on Mr. Tuomi's study of the credits list of the Linux kernel, which makes his rebuttal highly significant. Tuomi says Mr. Brown reached spurious conclusions and apparently greatly misunderstood the study. He says he tried to help Mr. Brown to comprehend the study, but that he had "only limited success". Tuomi is currently Visiting Scientist at the European Commission’s Joint Research Centre, Institute for Prospective Technological Studies, Seville, Spain.

Tuomi takes the time to carefully rebut Brown's conclusions. Linus Torvalds, Richard Stallman, Andrew Tanenbaum, Dennis Ritchie, Eric Raymond, historian Peter H. Salus, and the man hired by AdTI to compare Minix and Linux code, Alexy Toptygin (who found no copied code) have all gone public with reactions or corrective information. Andrew Tanenbaum has responded a second and now a third time.

That makes it unanimous, I believe. I have yet to see even one interviewee who has not complained about being misquoted or misconstrued.

It is in Section 6 of Tuomi's paper on the history of the Linux kernel's credits list that he mentions the AdTI report:

"A recent think–tank report by Alexis de Tocqueville Institution . . . used a draft version of this paper to argue that Linux could be based on intellectual property infringements and inaccurate allocation of developer credits. The report claimed that the history of Linux is too amazing to be true, and that it is improbable that a single individual without much experience in software development could have created a full operating system in just a few months. The report implied that Linux, therefore, could be derived from earlier software code and, in particular, from the Minix operating system. The report also claimed that the analysis of the Credits file shows that Linux developers may have acted against their employers’ intellectual property policies, and that missing entries in the Credits file may indicate that Linux may include copyrighted code that has not been acknowledged. Hence, the authors of the report claimed that the future of open source software and Linux is therefore threatened by the problem of assigning authorship to specific pieces of code, and potential legal costs resulting from this. As the argument to an important extent has been based on the data presented in this paper, a few observations may be useful."

Tuomi proceeds to methodically disprove the AdTI premise.

"First, as Section 2 above pointed out, the amount of code in the first release of what later became known as the Linux operating system was rather modest. It consisted of 88 files, with median size of 37 lines of code. Based on common knowledge about software development, it therefore appears that a single computer enthusiast could well have created the first Linux version in a couple of months. In fact, by reading the original source code, it is quite clear that a single author, still in the early phases of learning to program operating systems, has produced it. From the point of view of copyright law, the first version of Linux kernel therefore cannot be defined as a derivative work. . . .

"Second, the unavailability of Credits file during the early phases of Linux development does not signal unclear authorship. The fact that the first Credits file appears only in 1994, with Linux version 1.0, has a very simple explanation. During the early phases of the development, the amount of source code was small and the developers were aware of each other’s contributions. Explicit recording of 'credits' would have made little sense, as all developers knew where each piece of software came from. . . .

"Third, the Credits files do not record authorship in any legal sense. Formal copyrights and informal moral rights for the different parts of the Linux source code are embedded in the source code. The Credits file only acts as a 'hall of fame' without any direct links between copyrighted work and authorship. The Credits file, therefore, is irrelevant from the point of view of intellectual property rights. . . .

"Fourth, the affiliations given in the Credits files do not necessarily reflect the historical affiliations of the people mentioned in the file. The Tocqueville report, for example, argued that Linux developers may have harmed their employers’ intellectual property rights by releasing software to the Linux community. To make this argument, the report shows that an employer of a person mentioned in the Credits file has adopted an intellectual property policy, according to which only software that cannot be appropriated commercially may be released as open source. This would apparently imply that the Linux developer mentioned in the Credits file might have broken the intellectual property policies of his employer by providing code to the Linux kernel, and that his managers might have acted against the interests of the firm and its owners by allowing this to happen. As the Credits file is an accumulated record of contributors and as the current addresses and affiliations of the developers have changed during the years, the policies of the current employers, however, are quite irrelevant for any discussion on historically created intellectual property. For example, Linus Torvalds remains one of the main contributors to the Linux kernel project and his name will appear in the future versions of the Credits file, independent of the intellectual property policies of his current or future employers. Microsoft, for instance, could not retrospectively create copyright policy infringements simply by hiring all the persons mentioned in the Credits file, even if this would imply that all the developers would change their affiliations to Microsoft in the future versions of the Credits file, and subsequently be required to stop producing open source software."

"The difficulty to accurately allocate credit in software development projects should not, however, be automatically interpreted as evidence of misallocated credit or intellectual property rights infringements, as the Tocqueville report, for example, has done. Software products are often based on incremental innovation where existing technologies and knowledge are recombined to create new functionality. The history of the Internet, for example, shows that authorship, indeed, is often misallocated. This fact, however, could easily be used to argue that the current intellectual property regime — and specifically software related patents — may require reconsideration. In networked and combinatorial systems, intellectual property rights probably are often granted to inventors who only partially deserve the credit. Or, to put it in another way, developers may deserve much more credit than there is intellectual property available today. One way to deal with this issue is to create explicit representations of moral authorship that are only loosely connected with current concepts of intellectual property. The Linux Credits file is an example of such an approach."

If I were Ken Brown, which happily I am not, I'd be too ashamed to show my face in public. Attacking Linus' integrity and character is like clubbing baby seals. It's gratuituously and undeservedly cruel, so all the sympathy goes to the innocent victim of the bludgeoning. People despise you for doing it. Some things just should not be done, even for money. Attacking a man the world loves and admires has to rank up there in the top ten worst PR decisions of the decade. Linus' character is known internationally, as is his work, which is open to public inspection and which has ensured his place in history. People know this man and his remarkable achievement.

If I were advising Microsoft, which happily I am not, I'd tell them to rethink this boomeranging FUD and publicly disassociate the company from this think tank's Linux "research". Not that there seems to be too much thinking going on over there. And if I were AdTI, I'd acknowledge that mistakes were made, serious factual errors, and apologize for them. It's the 21st century and the old FUD ways don't work any more. Too many internet eyeballs.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )