Open Legislation

Given that it's clear what the source code of democracy is - its laws - an obvious thing to try would be to apply open source techniques to the process of drawing up legislation:

"In the world of open source, your contribution, vetted and approved by your peers, gets committed into the mainline in a completely transparent and accountable process," Amanda McPherson, director of marketing Email Marketing Software - Free Demo for the Linux Foundation, told LinuxInsider.

"If Joe Citizen could impact and view the legislative process in the way a Linux developer can, I believe the result would be superior legislation," she said. "Lawmakers would be judged on results, those with the most and best to contribute could do so, and special-interest groups working selfishly would be exposed."

Moreover, there's a technology just waiting for this kind of approach:

"Laws go through all kinds of markups, changes and amendments," Leyden said. "The process has evolved from making those changes on parchment to at least using word-processing documents, but it's not that big a step to think of moving to the next generation of tools and crafting a whole piece of legislation on a wiki."

Interestingly, one of the main voices quoted in these two articles on open legislation is Eben Moglen who - quite unsurprisingly - has many insightful comments on the idea. Yet another reason to read them.

The GNU GPL Is Dead - Not

Bizarre:

The FSF should realize by now their influence is waning. Look at the plethora of alternative licenses. Now they’re really hamstringing themselves with Version 3, taking the license further and further from where industry developers are heading. Developers are still the heart of the open source community, and their support is integral to success. Are provisions concerned with patents and digital rights management really what developers want to see addressed? Do they care when Eben Moglen says "the time is rapidly approaching when the GPL is capable of leveling the monopolist to the ground?" Developers demand more freedom, not less. They want clear, practical leadership, not bombast.

Er, well, no, actually: more and more companies are adopting the GNU GPL; indeed, many that started out with dual licensing end up using just the GPL (for the full half-hour argument see hier.) The plethora of other licences represent background noise in comparison.

What's interesting is how, after years in the wilderness, RMS, the GNU GPL and the FSF all find themselves at the centre of so many debates around freedom and openness - not because they've moved there, but because the debates have moved to them.

Gagging Linus

I seem to recall that Darl McBride, the man behind SCO's suicidal strategy of suing IBM, once received a box of worms as a token of displeasure from someone. I think he would have got rather more than that had this idea gone ahead:

SCO suggested that all parties involved in the litigation be subject to a stipulated gag order. The company then stretched the definition of "involved parties" to include SCO, Columbia Law professor Eben Moglen, OSS advocate Eric Raymond, and Linus Torvalds. "Because of Mr. Torvalds' position in the technology world, his comments about SCO's evidence in this case are given particular weight in industry and popular press," argues the letter from SCO attorney Kevin P. McBride.

End of an Era

Gasp! Eben's moving on:

More than anything else, however, this is a moment to focus on the new. SFLC is a wonderful place to work, for me and I hope for all my colleagues. Great things are happening that haven’t had enough attention, because everyone has been watching GPLv3. The really innovative work is being done by the other lawyers here. They are refining organizational structures, innovating strategies for setting up “project conservancies”–a new type of shared container for multiple free software projects –which gives those projects administrative and legal advantages with minimal overhead. They are counseling young projects making astonishing new free software that’s going to be rocking business’s world three or four years from now. We’re taking risk out of projects everybody is using or is going to want to use. Helping my colleagues do that work, supporting their growth as they support their clients, is the right thing for me to do right now.

Open Source Jahrbuch 2006: Ja, Bitte

Although there's plenty written about free software and open source, there's relatively little in the form of books that try to offer a synoptic view. This makes the annual Open Source Jahrbuch, particularly valuable. As for 2004 and 2005, this year's is freely available as a PDF.

As you might expect, it is planned with a Germanic thoroughness, weighing in at 500 pages. As well as big names like Eben Moglen and Larry Lessig, it has a host of less well-known writers, who nonetheless have interesting things to say. I particularly liked the details of the famous Munich LiMux project, and the corresponding project in Vienna, WIENUX. Also good is the article on open source community building, which analyses several smaller projects.

I was pleased to see plenty of space given to both open content and open access. As readers of this blog have heard ad nauseam, there exists an important commonality between these opens, and it's gratifying to see open source's younger siblings getting some recognition here.

All-in-all, I'd go so far as to say that this is the best book on open source that has been published in the few years or so. Taken together, the whole series of Yearbooks form perhaps the most important collection of writings on open source and related areas to be found in any language.

Patently Odd

I came across this story on LWN.net:

The Software Freedom Law Center (SFLC), provider of pro-bono legal services to protect and advance Free and Open Source Software, today filed a brief with the United States Supreme Court arguing against the patenting of software.

In the case Microsoft v. AT&T, the Supreme Court will decide whether U.S. patents can apply to software that is copied and distributed overseas. The Court of Appeals for the Federal Circuit, a specialized patent court known for allowing patents on software and business methods, originally decided in favor of AT&T, expanding the international reach of U.S. software patents.

Well, to coin a phrase, I bloody well hope not.

But aside from the worrying implications of this kind of extra-territoriality, and the fact that the Software Freedom Law Center is supporting Microsoft in this case, I found the following statement from the amicus brief a little odd:

One could not send or receive e-mail, surf the World Wide Web, perform a Google search or take advantage of many of the other benefits offered by the Internet without Free and Open Source Software, which also includes the Linux operating system that is today’s strongest competitor to Petitioner’s Windows operating system.

Er, sorry Eben, that wouldn't be the GNU/Linux operating system, by any chance? You remember, the one that Richard can get a little funny about when he sees it described as the Linux operating system...?

GPLv3: What Richard Stallman Said

More than anyone else, Richard Stallman is driving the GPLv3 debate (although Eben Moglen is clearly another crucially important figure). What follows is a transcript of a short interview that took place on 6 October, 2006. In it, RMS talked about the issues that lie behind the GPLv3, and gave his thoughts on the concerns expressed by the Linux coders, some of which were raised in the posting below.

Could you give a little background to the drafting of the GNU GPLv3?

The purpose of the GNU GPL is to defend for all users the freedoms that define free software. It doesn't make sense in terms of open source. It's the result of implementing the philosophy of free software in the most strong way that we can. So all the version of the GPL have prevented middlemen from restricting subsequent users by changing the licence. Some free software licences permit that, for example the X11 licence permits that. The various BSD licences permit that. But the GPL was specifically designed not to permit that - you cannot add restrictions making the program non free.

Now, what we didn't have 15 years ago was the threat of making the program effectively non free by technical restrictions placed around it. That's what Tivoisation is. Tivoisation means taking a free program and distributing a binary of it, and also providing the source, because the GPL requires that. But when the user changes the source code and compiles it and then tries to install the changed program he discovers that that's impossible because the machine is designed not to let him.

The result of this is that freedom number 1, the freedom to study the source code and change it so the program does what you want, has become a sham. Tivoisation is essentially a way to formally comply with the requirement, but not in substance.

So we've come to the conclusion that this is more than just a minor issue. That this will be common, probably the usual case, if we don't do something to stop it. And therefore we've decided to do what is necessary so that our software will not be Tivoised. Our purpose is to deliver freedom to the user.

Why do you think there has been such an outcry in some quarters recently?

I don't know. A few people are upset.

A few people including most of the key kernel coders...

Their business. That's their program and they can decide whether to use this licence.

Seems clear they will stick with GPLv2?

I hope not, but if they do it's up to them.

If that happens, is that going to cause any problems for GNU?

It won't cause any problems for us, only for the public. The problem it will cause is Tivoisation. It will cause the problem that users don't have the freedoms that they should have. And that's a very big problem, but it's not a problem specifically for us, it's a problem for everyone. The problem is that many people will get machines in which Linux has been Tivoised. Which means that for practical purposes it won't be free for them.

If that happens, would you put more effort into the Hurd?

I don't think so, and the reason is that wouldn't achieve much unless we convinced everyone to switch to the Hurd from Linux, and that isn't too likely. The Hurd still has some technical problems, and who knows if it would ever become a competitor. But suppose somebody wanted to Tivoise, and he had available the Hurd and Linux to choose from, and Linux permits Tivoisation and the Hurd doesn't: the solution would be to use Linux.

Some people make the argument that if GPLv3 is applied to Linux, companies might simply adopt a different operating system for their products.

I don't think so.

You don't think they might use BSD or Windows?

They might, who knows? I don't think it's very likely, but the main point is it's no use giving up on a fight because you might lose, not when the fight is for something very important like freedom.

Is there anything you can do to assuage concerns of the kernel coders without giving up your principles?

I don't know. If they would just speak with us. we can explore that possibility.

Are they not doing that?

Basically no. Just recently we have had a couple of communications with them, not yet reaching the stage of being entirely civil in tone, but at least it's a start. We've been inviting them to talk with us since before we started publishing drafts, but they have not for the most part taken up that offer. In general they've made statements to the public instead of to us. And some of them are based on misunderstandings of the draft and of our intention. They're talking to each other not to us. But it's not too late for them to start if they wish to talk to us.

Is there scope to rephrase the clause that deals with Tivoisation?

We can rephrase it in a lot of different ways. We just recently decided on a change, which is that the requirement for keys would no longer work by calling them part of the corresponding source. This is a change in the details, but the substance is the same, the aim is the same - to change that would be giving up.

The two philosophies of free software and open source in some cases lead to similar conduct - in fact, in many cases. That's why it was so easy for the people who support open source to apply their label to what we're doing. Because if you're participating in a free software project it usually doesn't matter whether your goal is to give users freedom and to establish freedom in cyberspace or just have powerful and reliable software, because either way you could do the same things. And there's no need for people to ask each other: What's your philosophy, why do you want to contribute to this project? - they just start contributing, and they work on making the software better, and they focus on that.

But there are cases where these two different philosophies lead to different results. For instance, some people have proposed what they call “open source DRM” - DRM meaning “digital restrictions management”. This is a plan to develop software to put in machines that will restrict users, and then publish the source code of this. The idea is that programmers around the world will work together making that software do its job better, that is, restrict the user more inescapably, more reliably, more powerfully. Although the source code of this software will be published, they plan to use Tivoisation to make sure that the users can't escape from their power.

Now, if your goal is to give the users freedom, restricting the users through open source is no more tolerable than restricting the users any other way, because the users have to have the freedom.

Have you tried talking to TiVo about this?

No.

You don't think it might be useful?

No, not really. And the reason is they're just the first example. If it were only that one company that were the problem, we probably wouldn't pay attention because it would be a small problem. But the idea is floating around, and there are many different plans to use it.

Couldn't you help TiVo do what they want to do with free software?

They initially did. This Tivoisation was not in the first TiVo box. The point is, it's pressure from Hollywood. And the best way to have a chance of negotiating something with those who are under the pressure is first to set up counter pressure.

The problem being that a hacked version of TiVo could circumvent any DRM?

Exactly. And the point is, DRM itself is evil. Restricting the user's freedom in other ways so that the user cannot change the software and get rid of DRM makes the software effectively not free for that user. So we have these two philosophies, and here they make a big difference. You can imagine open source DRM, and if all you care about are the philosophical values of open source, you might think it's great. If you only want software to be powerful and reliable, you might tend to apply that to software whose purpose is to go in somebody's machine and restrict it, and you might think, “Sure I'll help you make that powerful and reliable.” But if you believe in free software, and you think that the user whose machine it is should be in control of what that machine does and not somebody else, then the aim of that project becomes wrong in itself. Free software DRM makes no sense - it's a contradiction in terms.

Are you worried about the prospect of GPL projects forking?

It can happen. But again, there's no use not fighting, there's no use surrendering to this threat. It's too dangerous.

Are there any other points you'd like to make?

There are people who seem to imagine that some disaster will happen because some programs in the GNU/Linux system are using GPLv3 and some are using GPLv2, but in fact there are many programs with other licences in the system as well, and there's no problem there at all.

There are many people who would like to come across some disastrous flaw in GPLv3. If one person says he's found it, the others repeat it without stopping to make sure it is for real, because they consider it the answer to their prayers.

But you think they'll work together without problems?

I know they will, because these programs are separate programs, and the licence of one has no effect on the licence of another.

Now, I wish that everyone would switch to GPLv3 because that would give the strongest possible front to resist Tivoisation and ensure the freedom of the users. But I know that not everybody will participate, nonetheless we have to try to defend the freedom.

Happy hacking.

Update

Richard Stallman has sent me a comment on Alan Cox's reply:

While I addressed the topic you proposed--version 3 of the GNU General Public License--Alan Cox chose instead to present a misleading picture of the history of GNU and Linux.

The GNU/Linux system comes out of the effort that I began in 1983 to develop a complete free Unix-like system called GNU. GNU is the only operating system that was developed specifically to respect computer users' freedom. Since our goal was to achieve freedom as soon as possible, we utilized the scattered existing free software packages that would fit. That still left most of the components for us to write. In those years, we of the GNU Project systematically developed the essential components of this system, plus many other desirable components, ranging from libraries to text editors to games.

In 1991, Linus Torvalds developed a kernel called Linux--initially not free software, but he freed it in 1992. At that time, the GNU system was complete except for a kernel. The combination of Linux and the GNU system was the first complete free operating system. That combination is GNU/Linux.

Cox says that Linux is not part of the GNU Project. That is true--of the kernel, Linux, that he and Torvalds have worked on. But the combined system that Cox calls "Linux" is more our work than his.

When Cox says that "FSF-copyrighted code is a minority in [GNU/Linux]", that too is misleading; he knows that just a fraction of the GNU packages' code is copyright FSF. What part do GNU packages compose in the whole system? Many are just as essential as Linux is.

In 1995, GNU packages were 28% of the system, while Linux was 3%. 28% is less than half, so that was a minority; but it is a lot more than 3%. Nowadays, after thousands of other groups have added to the system, both the GNU and Linux percentages are smaller than before; but no other project has contributed as much as the GNU Project.

Calling the combined system GNU/Linux is right because it gives the GNU Project credit for its work, but there are things more important than credit -- your freedom, for example. It is no accident that the GNU GPL existed before Linux was begun. We wrote the GPL to protect the freedom of the users of GNU, and we are revising it today so that it will protect against newer technical methods of denying that freedom. When you think about GPL issues, this is the background for them.

If the developers of Linux disagree with that goal, they are entitled to their views. They are entitled to cite their important work--Linux, the kernel--to be listened to more, but they should respect our right to cite the GNU system in the same way.

See http://www.gnu.org/gnu/gnu-linux-faq.html for more explanation.

To DRM or Not to DRM - That is the Question

Digital Rights Management - or Digital Restrictions Management as Richard Stallman likes to call it - is a hot topic at the moment. It figured largely in an interview I did with the FSF's Eben Moglen, which appeared in the Guardian last week. Here's the long version of what he had to say on DRM:

In the year 2006, the home is some real estate with appliances in it. In the year 2016, the home is a digital entertainment and data processing network with some real estate wrapped around it.

The basic question then is, who has the keys to your home? You or the people who deliver movies and pizza? The world that they are thinking about is a world in which they have the keys to your home because the computers that constitute the entertainment and data processing network which is your home work for them, rather than for you.

If you go to a commercial MIS director and you say, Mr VP, I want to put some computers inside your walls, inside your VPN, on which you don't have root, and you can't be sure what's running there. But people outside your enterprise can be absolutely certain what software is running on that device, and they can make it do whatever they think necessary. How do you feel about that? He says, No, thank you. And if we say to him, OK, how about then if we do that instead in your children's house? He says, No, thank there either.

That's what this is about for us. User's rights have no more deep meaning than who controls the computer your kid uses at night when he comes home. Who does that computer work for? Who controls what information goes in and out on that machine? Who controls who's allowed to snoop, about what? Who controls who's allowed to keep tabs, about what? Who controls who's allowed to install and change software there? Those are the question which actually determine who controls the home in 2016.

This stuff seems far away now because, unless you manage computer security for a business, you aren't fully aware of what it is to have computers you don't control part of your network. But 10 years from now, everybody will know.

Against this background, discussions about whether Sun's open source DRM solution DReaM - derived from "DRM/everywhere available", apparently - seem utterly moot. Designing open source DRM is a bit like making armaments in an energy-efficient fashion: it rather misses the point.

DRM serves one purpose, and one purpose only: to control users. It is predicated on the assumption that most people - not just a few - are criminals ready to rip off a company's crown jewels - its "IP" - at a moment's notice unless the equivalent of titanium steel bars are soldered all over the place.

I simply do not accept this. I believe that most people are honest, and the dishonest ones will find other ways to get round DRM (like stealing somebody's money to pay for it).

I believe that I am justified in making a copy of a CD, or a DVD, or a book provided it is for my own use: what that use is, is no business of the company that sold it to me. What I cannot do is make a copy that I sell to someone else for their use: clearly that takes away something from the producers. But if I make a backup copy of a DVD, or a second copy of a CD to play in the car, nobody loses anything, so I am morally quite justified in this course of action.

Until the music and film industries address the fundamental moral issues - and realise that the vast majority of their customers are decent, honest human beings, not crypto-criminals - the DRM debate will proceed on a false basis, and inevitably be largely vacuous. DRM is simply the wrong solution to the wrong problem.

Why the GPL Doesn't Need a Test Case

There was an amusing story in Groklaw yesterday, detailing the sorry end of utterly pointless legal action taken against the Free Software Foundation (FSF) on the grounds that

FSF has conspired with International Business Machines Corporation, Red Hat Inc., Novell Inc. and other individuals to “pool and cross license their copyrighted intellectual property in a predatory price fixing scheme.”

It sounded serious, didn't it? Maybe a real threat to free software and hence Civilisation As We Know It? Luckily, as the Groklaw story explains, the judge threw it out in just about every way possible.

However, welcome as this news is, it is important to note that the decision does not provide the long-awaited legal test of the GPL in the US (a court has already ruled favourably on one in Germany). Some people seem to feel that such a test case is needed to establish the legal foundation of the GPL - and with it, most of the free software world. But one person who disagrees, is Eben Moglen, General Counsel for the FSF, and somebody who should know.

As he explained to me a few weeks ago:

The stuff that people do with GPL code – like they modify it, they copy it, they give it to other people – is stuff that under the copyright law you can't do unless you have permission. So if they've got permission, or think they have permission, then the permission they have is the GPL. If they don't have that permission, they have no permission.

So the defendant in a GPL violation situation has always been in an awkward place. I go to him and I say basically, Mr So and So, you're using my client's copyrighted works, without permission, in ways that the copyright law says that you can't do. And if you don't stop, I'm going to go to a judge, and I'm going to say, judge, my copyrighted works, their infringing activity, give me an injunction, give me damages.

At this point, there are two things the defendant can do. He can stand up and say, your honour, he's right, I have no permission at all. But that's not going to lead to a good outcome. Or he can stand up and say, but your honour, I do have permission. My permission is the GPL. At which point, I'm going to say back, well, your honour, that's a nice story, but he's not following the instructions of the GPL, so he doesn't really have the shelter he claims to have.

But note that either way, the one thing he can't say is, your honour, I have this wonderful permission and it's worthless. I have this wonderful permission, and it's invalid, I have this wonderful permission and it's broken.

In other words, there is no situation in which the brokenness or otherwise of the GPL is ever an issue: whichever is true, violators are well and truly stuffed.

(If you're interested in how, against this background, the GPL is enforced in practice, Moglen has written his own lucid explanations.)

VIIV, DRM, and Fair Use: the Big One

The ever-acute Doc Searls reports on the CES keynote from Intel CEO Paul Otellini. Given Searls' position as an alpha blogger, it was inevitable that this was a live, minute-by-minute blog - and yes, it did include the obligatory moan about the missing WiFi connection.

But what is really important about this posting is that it makes plain VIIV's role as the platform that broadcasters and music companies - with indispensable help from a willing Intel and Microsoft - will use in their latest attempt to take complete control of content.

I already knew in 2000 that all this was coming. I knew because Eben Moglen, the legal brains behind the free software movement, and an extremely wise, articulate and modest man, told me so when I was writing Rebel Code:

Let's think of the Net for a change as a collection of pipes and switches, rather than thinking of it as a thing or a space.

There's a lot of data moving through those pipes, and the switches determine who gets which data, and how much they have to pay for it downstream. And of course those switches are by and large what we think of as digital computers.

The basic media company theory at the opening of the twenty-first century is to create a leak-proof pipe all the way from production studio to eyeball and eardrum. The switch that most threatens that pipe is the one that at the end. If the switch closest to your eyeball and eardrum is under your complete technical control, the whole rest of the aqueduct can be as leak-proof as you like, and it won't do them any good. And the switch is under your control, of course, if the software is free software.

So for the great VIIV plan to work, free software has to be shut out from the equation. This means no DVDs, no DRM for GNU/Linux - for the simple reason that truly free software always gives you the possibility of evading the software controls that are in place.

And for those of you who say, well, provided we have our traditional fair use rights, what's the problem? - this is the problem. Draft US legislation would effectively freeze your rights to existing technologies: had this been the case in the past, you would not have fair rights to burn MP3s from your CDs, or even videotape TV programmes.

There is no halfway house in this coming war, no compromise position: either you hand carte blanche to the film and music industries to decide what you can do with the content you buy, or else you fight for the right to decide yourself.

This is the Big One.