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Two Journalists Don't Understand Open Source and the Penguin Marches On
Thursday, December 02 2004 @ 01:44 PM EST

Well, that headline is hardly news. We've seen this inability to comprehend Free and Open Source in the mainstream media from the beginning of the SCO saga. Today's exhibit of that inability is quite funny though, an article in TechWorld, by John Ribeiro, IDG News Service and Kieren McCarthy of TechWorld, who usually does a good job. In it, they try to make fun of the Apache Foundation and just end up making themselves looked foolish. Biased too. Here is the headline:

Apache chokes on open-source philosophy
Preparing to hire full-time, paid staff. The start of a very slippery slope.

Naturally, my heart about stopped. I'm thinking, Oh no! have the heroes of the Sender ID fracas gone bad? Then I read the article. Apache is growing so fast, they need to hire some administrative staff and maybe some legal help.

From that, the two journalists cook up a silly stew from those two ingredients that goes like this:

"The ASF currently runs on a volunteer model, and any change to this strict philosophy will raise eyebrows right across the IT industry. . . .

"Incredibly, its very success may see it go down the line of the traditional software business. With Apache a leading light of the open-source approach - its Web server boasts equal billing with commercial rivals in the market - such a move would create big waves. . . .

"Paying for legal counsel is another possibility. . . .The SCO Group's legal claims against Linux made the open source community realize that it needs to be more specific about contributions' origins and getting contributor agreements and honest and clear when putting the copyright statement on the code. So lawyers, full-time admin staff, paid executives and properly drawn-up contributor contracts. My, my, my, how times do change."

Alert the media. There are people writing Open Source software who are -- gasp! -- getting paid.

There is no "strict philosophy" in Open Source that a project must be all volunteers. Where do they get that? Even Linus gets paid now to write the kernel. And did they never notice that Red Hat has both administrators, legal staff and even paid programmers? So does Novell.

This is sufficiently silly, I have to stop and ask myself, why would two otherwise sensible people write something like this? (Or, maybe one sensible person wrote a version of this article that got changed and jazzed up by the second author or a later editor?) Whoever is responsible, it shows a desire for Open Source to fail, for the model to be proven faulty. Over and over, I see this same pattern, that if you don't like something or someone, your normal logical reasoning abilities walk the plank and drown in waves of prejudice.


If you read the story as originally written by John Ribeiro, it is now clear he isn't responsible for this silly headline and the twist someone later put on his article. The Penguin Marches On

Meanwhile, Linux is booming. It's so, so good, nobody cares what Microsoft says, what SCO says, what the mainstream media says, what analysts say. Linux is just a Gotta Have It thing. In an article entitled, "Linux leads global OS revenue and unit growth -- Penguin goes from strength to strength" vnunet's Robert Jacques reports that Linux is showing remarkable growth, according to a recent research report by Gartner, who used to say silly things about Linux, too, but then woke up and smelled the coffee:

"Linux continues to be the global growth leader among operating systems in both revenue and units, according to the latest market research from Gartner.

"The analyst group noted that Linux grew its global revenue 55.7 per cent from last year, and increased units by 45.2 per cent. . . .

"'The server market is still being primarily driven by the x86 segment,' said Mike McLaughlin, principal analyst for Gartner. 'This, along with the acceptance of Linux in additional application areas in the enterprise space, will continue to drive demand.'"

"The analyst firm found that IBM held its lead based on server revenue, as its market share remained at one third in the third quarter of 2004."

55.7% is a lot. Here's another article on the stunning growth of Open Source and GNU/Linux, from CFO IT:

"And Linux itself, still the linchpin of this movement, continues to carve an ever-widening space in Corporate America, to the point where Dan Kusnetzky, vice president, system software, at research firm IDC, acknowledges, 'We published a projection in 1997 that Linux would show up as a mainstream [operating system] choice in all vertical markets around the world by the end of 2005. Our projection may have been too pessimistic. Seven years later, it's happened.' . . .

"According to figures compiled by IDC, 3.4 million Linux client operating systems were shipped in 2002, and that number is forecast to grow to more than 10 million by 2007. Gartner says shipments of Linux-based servers increased about 61.6 percent in the second quarter of this year compared with the same period last year. Those figures don't include the substantial volume of free downloads that often give Linux its initial presence in corporate environments. . . .

"'We evaluated Linux in 1999 and didn't feel it was ready for prime time,' says Mike Jones, senior vice president and CIO at retailer Circuit City Stores in Richmond, Virginia. 'It has come a long way since then, and our confidence has increased.' So much so, in fact, that Circuit City has launched a project to roll out Linux-based point-of-sale systems from IBM at its 600 nationwide retail outlets beginning in March. The strategy is part of a 'revitalization effort' that will move its stores from customized, proprietary systems to software based on open standards, says Jones."

Meanwhile, Gartner reports, Unix is in a slow decline.

My, my. How times have changed.

Of course, it's scenarios like this that lead to sore losers filing empty lawsuits over their IP being "infringed." CIO reports that a recent ruling, in the case of Knorr-Bremse Systeme vs. Dana Corp. and Haldex Brake Products, will make it harder to make claims of patent infringement, because the decision held that a defendant is no longer to be presumed guilty unless it files a letter certifying its innocence. Those letters cost around $80,000, so sometimes companies would settle just because they couldn't afford to fight. A fight is now $80,000 cheaper:

"Now, however, the burden of proof has shifted to the accuser, which won't be able to win in court unless it can prove its charges -- for instance, by providing a defendant's e-mails, acknowledging that the system is a knockoff. That means CIOs whose shops write custom software won't be forced to settle frivolous infringement claims and won't lose their shirts before they even get to court."

There is a discernible shift in how the public now views using IP infringement lawsuits as an anticompetitive weapon. Notice this article by Tom Henderson, "Vendors: Stop threatening us." He speaks directly to Microsoft's Steve Ballmer's recent speech to Asia that Linux might have IP issues:

"Apparently, we're supposed to be living in fear.

"What we should fear is possible litigation over unlicensed, patented material that may or may not be in Linux. Each week, we're goaded into purchasing one operating system or another based upon that particular vendor's ability to indemnify us from potential litigation. . . .

"Ptui, I say. If you've got patents, play that card, and play it now. We're sick, mighty sick, of listening to it. Tell us, chapter and verse, what you think is the problem. Do it now. Stop the threats - go in to action. We're the customers, remember? Stop harassing us with vague threats.

"This chest thumping, lawyer-enriching hubris, and cold intimidation is causing this industry to slink around as though we're all guilty of something that we didn't do. If there's a license to pay, then we'll pay it. If you as vendors have manipulated the patent offices into granting a patent for something that you didn't invent, then back off. If you so thoroughly patent your future products so that no one can work with them, then you've lost compatibility, interoperability, and therefore any worth to us.

"Otherwise, we want to see the tort. If you don't send it shortly, we'll all know that your huffing and puffing is truly a breach of ethics. We'll throw your salespeople out the door and not renew licenses that we've already bought from you. You'll not be welcome here, and that's for the next ten years, because we have long memories of companies that tried to manipulate and/or coerce us."

Henderson is not alone in his disgust. Here's a snip from an article by NetworkWorld's Mark Gibbs, also in reaction to Ballmer's speech:

"But what we have here is a bigger issue than Microsoft's spin or the risk of end-user liability from using open source. That issue is the dampening effect that market uncertainty causes and the expensive and ugly legal mess that intellectual property suits cause. The only winners in these cases are lawyers and occasionally one of the flotilla of intellectual property aggregators - the companies that acquire the property to shakedown product manufacturers.

"Two things need to happen. First, we need the laws changed to make software patents less easily abused. Second, we need Microsoft to stop with the incessant spin doctoring. Enough is enough, Steve!

"I believe there is a chance for the first thing to happen. There's a lot of pressure from U.S. developers and from the European Union to create a more rational patent system. As for the second, I hold out very little hope."

Funny how the richest company in the world can't do better PR. Meanwhile, in the Now I've Seen Everything Department, take a look at the patent hustle Chinese counterfeiting companies have come up with:

"Some companies will copy or slightly modify foreign patents and file them under a kind of Chinese protection - a utility or design patent - that is not thoroughly examined under the current Chinese patent system, so they are granted quickly and easily, Xiang said.

"Part of the strategy is to profit by outlasting China's time-consuming legal appeals process when foreign companies accuse them of infringing on their intellectual property. Also, many businesses are using advances in technology in new ways to skirt copyright laws.

The result, studies say, is that counterfeiting and piracy problems in China, affecting both domestic and foreign brands, are worsening."

Folks, it's time to face it. Patent laws need to be changed.

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