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Opening up an open-source roadblock

If the FSF succeeds in blocking a landmark deal, the biggest losers will be software consumers, policy analyst James DeLong says.

The open-source community is being roiled by the recent deal between Microsoft and Novell, especially by their covenant not to sue each other's customers for any possible patent infringement.

In particular, the Free Software Foundation wants to use the ongoing revision of the General Public License that controls Linux and other major open-source programs to hamstring this deal and to prevent other software distributors, whether proprietary or open-source, from adopting anything similar.

It is an interesting situation, because "FSF" is not synonymous with "open-source community," even though many news reports seem to equate the two.

The FSF is often equated to a religion, and the comparison is apt. It regards proprietary software as immoral, patents as the work of the devil, digital rights management as an unacceptable infringement on freedom, and markets for intellectual creations as undesirable or irrelevant.

In contrast, Microsoft and Novell are the antithesis of religions. They are integrated into the world of commerce and day-to-day affairs. And in this world, one rule is paramount: The customers win, because they control the marketplace.

The FSF may not be required to care about these customer demands, but most other members of the open-source community cannot be so cavalier.

From this perspective, the deal between the two is dictated by a simple reality. The customers want what the deal provides. They want interoperability of open-source and proprietary programs--the ability to run both types of program in heterogeneous environments--without being required to perform the integrations for themselves. This means that open-source and proprietary software providers must create a structure that allows them to cooperate on finding technical solutions to their customers' demands. It is not possible to solve the customers' problems for open source without also solving them for proprietary companies, and vice versa.

Customers also want freedom from concern about potential intellectual property problems. They do not want to worry whether someone might come out of left field claiming the right to enjoin some mission-critical application.

The FSF may not be required to care about these customer demands, but most other members of the open-source community cannot be so cavalier. They value the freedom and sharing of the church of open source, but they all have a foot or two, and maybe a leg, in the commercial world as well. They must have, if they are to make a living in any way except flipping burgers by night to finance code writing by day.

So community members collect paychecks from computer companies that value open-source software as an adjunct to their hardware/software/services offerings, many of which are, of course, heavily dependent upon patent protection to maintain their competitive positions. Or they work for cooperative development labs funded by these companies. Community members act as selectors and packagers of open-source systems, or they sell consulting services, or they add proprietary applications, or (like Google) they use open-source software to provide end-use services, often very profitably, and again often very dependent on intellectual property, in the form of patents.

In all of these worldly roles, open-source community members must pay attention to the customers. They might not like it; they might prefer the purity of the FSF approach, but that is not the choice on offer. If you don't want to pay attention to customers, then either arrange to have rich parents, or learn to flip burgers. (What! You call this rare?) It won't even work to get a grant from a foundation--there is no customer more imperious.

Value of the deal
Given this reality--that most members of the open-source community cannot escape the commercial world and the needs of customers--the Microsoft-Novell deal has a lot to offer.

It creates a template that can be adopted by any Linux distributor.

On the intellectual property front, the deal is highly favorable to open source. Microsoft can promise indemnity against any patent violations contained in its software. It is much harder for any open-source company to promise the same, given the less-structured nature of its creation.

The FSF wants to make it impossible for industry participants to use standard market-based techniques, such as licensing, to solve the problems.

Both approaches to software will profit from the expansion of the market that always accompanies lowered transaction costs and increased interoperability, not to mention customer happiness at avoiding risks of lock-in by either type of vendor. (Who would you rather have controlling your fate--FSF President Richard Stallman or Microsoft CEO Steve Ballmer? Most people check "none of the above.")

The FSF wants to make it impossible for industry participants to use standard market-based techniques, such as licensing, to solve the problems. This will not make interoperability and intellectual property issues go away; it will just push them onto customers to solve for themselves, and the customers are already saying loudly that they do not want this. Customers want solutions, not more problems, and denying this is not "software freedom," but plain bad policy that will make open-source software platforms less attractive for enterprise customers.

It will be unfortunate if the FSF is allowed to use its control of the drafting pen in the revision of the GPL to override the interests of the other stakeholders. And if the stakeholders allow this, it will be interesting to see how they explain their acquiescence to their management, their shareholders and most of all, their customers.