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ADTI Has Another Study; Marbux Finds a Patent-Open Standards Primer
Friday, March 25 2005 @ 01:36 PM EST

Alexis de Tocqueville Institution President Ken Brown is singing for his supper again. According to TechWorld, ADTI has a new study coming out shortly with the insulting title, "Intellectual Property -- Left?" Apparently he is a glutton for punishment, considering the drubbing his last study sustained from everyone who is anyone. Even Microsoft said the study wasn't helpful.

The Microsoft-funded "think tank" that mistakenly reported that Linux came from Minix (Minix's author publicly corrected ADTI on that) now reports that Open Source software "may be a legal time-bomb waiting to explode into a torrent of lawsuits." Ooooh. Scary.

What is the message here? Maybe that we shouldn't use Linux in the enterprise and should use Windows instead? You think?

With his usual intellectual creativity, Mr. Brown says that the lack of any litigation so far against Free and Open Source software, (the SCO case is a contract issue, remember, according to SCO) is suspicious. After all, the proprietary software world has been in an orgy of lawsuits against one another for some time for various infringements. How could it be, this inquiring mind wants to know, that you never see those kinds of infringement lawsuits against or within the FOSS community? Or in his words:

"Certainly it is improbable (and mathematically impossible) to assume that no infringement is occurring," he writes. "Thus, we are left to conclude that infringement to date has largely been getting a 'pass'." Those involved must ask themselves when the litigation will arrive and what will trigger it, he argues.

What a novel approach. I certainly never would have thought of that. Of course, I never studied probability theory. I thought there were no infringement lawsuits because the FOSS community doesn't infringe other people's code, as a matter of principle. Also, they don't infringe code because their code is written in public, so any infringement would be immediately visible and that is, shall we say, a disinducement even to those with no ethics. Also, FOSS developers take pride in their work, and that is also a deterrent, because the writing of the code -- solving the issues that present themselves -- is the fun part. Copying someone else's code on purpose would completely take away all the fun.

Anyway, just in case his message comes from above, so to speak, and it's a foreshadowing, and there will be some manufactured litigation filed as an anticompetitive weapon, here is great resource for us all to study about patents and standards, a link Marbux found for us. That knowledge just might come in handy for a rainy day, if it ever starts raining patents. If not, as Groklaw demonstrates, you just never know when knowledge might come in handy in ways you never predicted. I'll be studying with you, so let's start cracking the books so we will be ready. I'll put the link in the Legal Links resource page too, so we can all find it again readily. I'll call it Patents and Open Standards Primer.

About that title, I gather Mr. Brown would like to paint Linux as a leftist conspiracy. I realize he is playing on words, using the Copyleft wording, but I also think it was a title deliberately chosen to leave a cloud in the air over Open Source software. I gather ADTI does not feel any compunction about throwing out insults, since they apparently have a section full of them now, where they call Open Source "open sores software" and "hybrid-source software". The page is, but I surely don't recommend it. Anyway, the point I'm making is simply this: speaking strictly for myself, Linux and FOSS and the GPL are not, to me, political issues. Groklaw is not political. I'm not political either. I just like the software. Our comment policy exiles political discussions from this site. And I feel insulted when people say such things about Linux and the FOSS community. Intel and IBM and Novell and Red Hat and any number of upstanding American corporations now support FOSS. It's a business, not politics. And according to Wall Street Technology, Linux is here to stay. Seems a bunch of rabid capitalists on the Street like to use it:

"Execs from the Chicago Mercantile Exchange, J.P. Morgan Chase, and Merrill Lynch said they've experienced price-performance improvements by up to a factor of four by replacing Unix-based systems with those based on Linux."

Linux is taking over because people can save money, and capitalists like to save money, so their businesses make a larger profit.

But there is more to it:

"Linux has been crucial to the success of J.P. Morgan's derivatives-trading business, said Scott Marcar, head of technology for global emerging markets. Linux now powers about two-thirds of the CPUs that run J.P. Morgan's business of trading derivatives, such as futures and options contracts.

"At the Chicago Mercantile Exchange, average daily trading volume on its Globex electronic-trading platform has grown to 2.5 million contracts, representing more than half of the exchange's total daily volume of trades. To help support that workload increase, the Chicago Merc began switching to Linux from Sun Solaris in late 2003, said Joseph Panfil, director of enterprise-technology services. By switching to Linux, he said, the exchange has achieved orders-of-magnitude reductions in order-execution times. 'We're going for speed as well as cost savings,' Panfil said."

So it isn't just the money saved. It's also speed. Speaking of speed comparisons, here is an article that includes some speed tests (scroll down) you might find of interest, between Solaris 10 and Red Hat Enterprise Linux 4.0. I think you'll be surprised. The Wall Street guys won't be.

Here's why Brown thinks there will be a flood of litigation:

"After a brief glance at much open source software development, it becomes readily apparent that a number of open source practices directly conflict with best practices associated with protecting intellectual property," he writes. "Both intentionally and unintentionally, users, developers, and distributors are in conflict with traditional, staid intellectual property law." Among the potential conflicts are "licensing, attribution, anonymity, derivative works, and indemnification", according to Brown."

Now we are entering an area I actually know something about. And my opinion is that the GPL is based on copyright law, the exact same law the RIAA uses to sue little girls who download their music. I don't see any conflict of law. It's how you use copyright law that makes the difference. The GPL is a license to let people know what they can legally do with covered software without having to write to the authors and get permission every time. But if you infringe it, the enforcement of the authors' rights is handled by a copyright infringement action, just like the RIAA. In short, ADTI misses again.

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