Politech: FC: CEI's Jim Delong replies to his critics on Linux suitability

[Declan McCullagh <declan () well com>]

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Subject: Comments on the Comments
Date: Mon, 23 Sep 2002 16:16:34 -0400
From: "James V. Delong" <JDeLong () cei org>
To: "Declan McCullagh (E-mail)" <declan () well com>

 Declan

 My piece on the NYT editorial provoked considerable response --  next 
time, I will just look for a hornets nest and poke a stick in it.  There 
are too many comments to answer individually, so I will comment generally.
 Viral

An easy one:  some objected to characterizing GPL as viral.   I agree that 
a less-loaded term would be better, and would like to have 
one.  Replicational , maybe?
Fees

Several comments claim that one can indeed charge for GPLed software, 
sometimes pointing to a clause early in the license allowing a charge to 
distribute.   I disagree.  The GPL allows you to charge a fee for the 
physical act of transferring a copy.   You may also offer warranty 
protection for a fee.  But you cannot charge for the software itself or 
inhibit its further distribution, which means that the person to whom you 
sell it is then free to distribute it at no cost, so you can sell only one 
copy to an enterprise.  Also, under standard legal doctrines, if you 
charged so much for the act of transfer ($1,000 to ship a disk, for 
example), the license could be enforced against you on the grounds that you 
were engaging in a subterfuge.  (Commercial distributors of Linux are 
engaged in an elaborate system of selling warranties and services, not the 
software itself.)
Writing Aps

The part provoking the most reaction was my comment about the legal risk of 
writing aps for Linux.  I tried to phrase this carefully, but clearly I did 
not phrase it carefully enough.  The point is a legal one more than a 
programming one.  Let me try to explain my thought more clearly.
As I understand it (those who said he s certainly not a programmer are 
absolutely correct), an application calls up various libraries from the 
OS.  Would this be considered incorporating code in a way that would put 
the ap under the GPL?  No one knows for certain, but in response to the 
problem the open source movement created the Lesser GPL, which clearly 
allows such use.  But a program writer must be very sure about the licenses 
that cover the libraries he wants to tap, and, as several comments noted, 
there are other licenses at work here. Also, use of the LGPL is disfavored 
by the FSF.
In addition, code-writers have a problem common to all writers.  Once 
something is in your head, it is difficult to be sure that it is not 
reappearing when you write.  (Ask Doris Kearns.)  It would be very easy for 
a writer to insert code that is actually lifted from a GPL'ed program, 
totally inadvertently.  The penalty for doing so could be drastic loss of 
the entire program.  Were I a software company lawyer, I would be nervous 
about having people familiar with Linux working on proprietary 
programs.  This issue is made more difficult by uncertainties under 
copyright law about when a work is derivative, an important term in the 
GPL.  (I would be interested in knowing whether companies like Oracle and 
IBM separate the staff working on Linux from that working on proprietary 
programs.)
There are also a lot of cross purposes at work here.  My critics for the 
most part want to create proprietary programs to run on Linux.  But the 
motives of the originators of the GPL were anti-proprietary.  It is far 
from clear that this segment of the open source movement will acquiesce in 
any  shift to a mixed system if they can do anything about it, and the 
licenses give them legal leverage.  Risk is exacerbated because of the 
cloud of legal uncertainty surrounding the GPL.  Who can enforce it (or, 
perhaps more important, who cannot)?  How will the many ambiguities get 
resolved?  For a proprietary program, issues can be resolved by 
contract.  For the GPL, this is impossible; the title is too clouded.
Many commenters are, in my view, naive about the functioning of the legal 
system.  They assume that decisions on these licensing issues will be 
rendered quickly by  judges of great intellect and high character.  I have 
bad news  -- the legal system is a tottering mess.  Anyone investing in ap 
writing must consider the possibility of a now-wealthy tobacco plaintiffs 
lawyer filing a class action in a Mississippi county where the judge is his 
brother in law, and he can assert that all these big companies are stealing 
software that belongs to the people.  If you do not think this is a real 
risk, check out the asbestos litigation now going on in West Virginia.
So, while companies are indeed writing aps, they are running legal risks 
that are not trivial.   They have good reasons for doing so, and they find 
the risks acceptable, but they are real.  (It is also worth noting that Red 
Hat s 10K filed with the SEC comments that the dearth of third party 
programs is a major problem.)
In my view, it is a tribute to the virtues of Linux that it has come so far 
despite these problems.
Communitarian Model

There is powerful appeal to the idea of a community of researchers working 
on the cutting edge and freely sharing information with each other.  This 
story applies not just to Linux but to numerous other areas.  It is, as 
some commenters noted, the history of science.
The line people usually try to draw is between fundamental and applied 
research.  Fundamental research is supported by universities, governments, 
and often the researchers themselves because its practical import is 
unclear and support by customers unlikely.  Applied research, we 
think,  can and should be funded through market mechanisms.
I think it is necessary to draw this line with respect to Linux.  As it 
expands, it gets into areas where more of the work necessary is not at the 
cutting edge, and thus cannot run solely on the intellectual interest of 
the programmers.  Also, once commercialization comes into play, it is 
difficult to run a system that mixes volunteers and paid workers.  The Red 
Hat 10K points to the movement s heavy dependence on a few named 
programmers, and on the programming community generally, and the loss if 
they were to become unavailable.  It also reveals that its officers are 
paid as much as $400K, plus stock options.  Sooner or later, the 
programmers will notice the discrepancy, especially if their forbearance 
does not result in an intellectual contribution to the software community 
but simply in lower prices to the world at large, or more pay for the 
marketing executives.
Other Programs

Some pointed out that it is misleading to focus on the GPL when there are 
many other open programs available.  This is a valid point, especially 
because some of these, such as the BSD, do indeed foster mixed systems of 
open and proprietary models.
Convergence

Many people defended the quality of Linux and the ability it affords to fix 
problems oneself or by putting a query out to the world at large (without 
waiting forever for some damn tech support desk).
I have no argument with these points.  As I noted in the original piece, 
open code has many virtues.  The focus of my thought was rather different 
while the open approach has virtues, so does the proprietary approach.  The 
best overall system will encompass both, I think, and it is important that 
governments not go off half-cocked.  I intended to defend the proprietary 
model more than attack the open source idea.


Best,

Jim


James V. DeLong
Senior Fellow - Project on Technology & Innovation
Competitive Enterprise Institute
1001 Connecticut Ave., NW - Suite 1250
Washington, DC 20036
(202) 331-1010 TEL       (202) 331-0640 FAX
jdelong () cei org        http://www.cei.org/sections/section38.cfm




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