New Open Source Groups Form in UK and AU and a Whole Lot of Lobbying Going On

Saturday, April 24 2004 @ 02:23 PM EDT

Contributed by: PJ

I guess the international FOSS world is beginning to see the need now for groups who can speak for open source, and there are two new ones, in the UK and Australia. SCO is certainly doing its lobbying for the other side in the US and Europe, with its unfortunate (according to BayStar, even) letter to Congress and Blepp's highjinks with his suitcase in Europe. And Microsoft has been lobbying for years to present its point of view.

I heard from a US Groklaw reader, by the way, who wrote to his congressman about the SCO letter. I think you'll be interested in the letter he got back.

The reply he got included this:

"As you know, the information technology industry is engaged in an ongoing conflict over software copyrights and intellectual property, including the use of open source software. . . .

"The SCO Group, a vendor which creates and sells proprietary software, is the owner of the UNIX operating System Intellectual Property. Through a series of mergers and acquisitions, SCO has acquired ownership of the of the copyrights and core technology associated with the UNIX System. SCO has claimed that its proprietary UNIX code was illegally copied into the free Linux operating system.

"As a result, SCO has filed lawsuits against IBM for incorporating copyrighted elements of the UNIX code into its version and Linux and Red Hat for conspiracy and copyright infringement. Subsequently, SCO has announced plans to make binary run time licenses for SCO's intellectual property available to end users. The License would give end users the right to use the SCP intellectual property contained in Linux. End users who purchase this license will be held harmless against past and future copyright violations of SCO's intellectual property in binary format in Linux distributions.

"I certainly appreciate your comments regarding The SCO Group and Open Source software. While there are no Congressional hearings scheduled or legislation proposed that would address this issue, please rest assured that I will continue to monitor this situation. In addition, I have enclosed a Congressional Research Service report about intellectual property and the Open Source movement for your information."

Does it make you feel safe to know this misinformed person is "monitoring" the situation? Attached was a research paper prepared for Congress regarding the issue of a so-called conflict between open source and proprietary software, a copy of which you can find here, reference RL32268, "Intellectual Propery, Computer Software and the Open Source Movement", by John R. Thomas, Visiting Scholar in Entrepreneurship and Economic Growth Resources, Science, and Industry Division.

I wonder who decides who gets to write up such reports for Congress? That's where the spin can be spun, of course.

Mr. Thomas seems to have been trying to represent both sides' point of view. But when one side misrepresents the other side, and the author doesn't know it is a misrepresentation, or fails to clearly say so, such a compilation of views can hardly achieve an accurate picture.

At any rate, the dark side has been lobbying hard and are painting the story as a "conflict" between open and proprietary, as if it is impossible for the two to peacefully coexist. The Clash of the Titans, and all that nonsense. From the report:

"Some commentators have expressed concern that these licenses may overreach, converting proprietary programs into open source software even if only a portion of that program was derived from an open source originals.

Others have suggested that open source licenses may not be legally enforceable, which would allow users to obtain and assert intellectual property rights pertaining to software that was initially distributed as open source.

This report considers the impact of intellectual property rights upon open source software. This report commences with an introduction to the open source movement in the software industry. Next, it briefly reviews the intellectual property laws, including copyrights, patents and trade secrets. After identifying issues of interface between open source software and the intellectual property laws, this report concludes with a discussion of possible legislative issues and approaches."

Here is one part of the author's description of the SCO story:

"In turn, SCO has in part asserted that the GPL is invalid. As part of its argument, SCO has reportedly pointed to section 117 of the Copyright Act. That statute provides that 'it is not [a copyright] infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided . . . that such new copy or adaptation is for archival purposes only. . . .

"Stated differently, the Copyright Act permits users to make a backup copy of their software without fear of infringement liability.

"The GPL places limitations upon the ability of users to make copies of GPL licensed software, however. In particular, the GPL requires that individuals receiving copies of the software also receive copies of the GPL, and that persons making copies of the software be able to access the program's source code. The GPL then states that '[a]ny attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.'

SCO has taken the position that because the GPL conflicts with the Copyright Act, the GPL is preempted and therefore unenforceable."

Sound accurate to you? A followup letter was sent to this congressman, pointing out that SCO didn't sue Red Hat, but that it was the other way around, and that SCO's "ownership" of UNIX is very much contested by Novell, that proprietary software is never forced to be GPL by mistake, etc. We'll keep you posted. Here are the possible legislative proposals the report sets forth:

"Possible Legislative Issues and Approaches

"Given the wide recognition that intellectual property and the open source movement are of growing importance in the U.S. computer industry, the relationship between these fields is the subject of increasing attention. The policymakers of the 108th Congress have addressed the open source movement with respect to cybersecurity and other contexts. Should Congress choose to address this area directly, a variety of approaches are available. If the current interface between intellectual property rights and the open source movement is considered satisfactory, then no action need be taken. Indeed, growing awareness that intellectual property and open source software licenses can sometimes conflict may lead to more sophisticated treatment of intellectual property by members of the open source community, as well as continued refinement of the governing law in the courts.

Another approach is to provide governmental assistance to the open source movement in identifying intellectual properties that might bear upon a particular open source software product. For example, the U.S. Patent and Trademark Office could, upon request by a recognized open source software publisher or organization, conduct a search of pending patent applications and issued patents in order to determine whether these patents might bear upon a particular open source software program. This capability would allow members of the open source community to become more fully informed of intellectual property rights. It should be noted, however, that a number of patent research firms already exist that could conduct such a search for a fee, at least with respect to issued patents and published patent applications.

More far-reaching legal reforms are also possible. For example, one recognized source of legal uncertainty for the software industry concerns the enforceability of open source licenses. A legislative statement concerning the status of these licenses in terms of the federal preemption doctrine might allow software firms to make decisions concerning research, investment, and other commercial activities with more confidence.

The allegedly viral nature of open source software presents another source of concern. One possible legislative response is to allow a proprietary software publisher that discovers its product contains an open source component a fixed period of time to eliminate the open source component. If the publisher removes the open source component within the stipulated grace period, then the software would remain proprietary. Any possible legal reform would be well-advised to recognize that the U.S. software industry is increasingly characterized both by rapid innovation and by a distinct community of knowledgeable users who wish to 'opt out' of the intellectual property system. The possibility of intellectual property rights, and their attendant license fees and royalties, may provide a significant incentive for firms to innovate and to distribute software. On the other hand, some computer users believe that these incentives are unnecessary, and further hope to maintain a non-proprietary environment of software distribution and development. These two trends have sometimes led to conflicts between exclusive intellectual property rights and open source software. Striking a balance between promoting innovation, on one hand, and accommodating the demands of software developers and users, on the other, forms an important component of contemporary software policy."

New groups have been formed now in the UK and Australia to represent the interests of the FOSS world. In the UK, there is the Zope UK Association, which is "the first trade organization for open source software companies within the UK, has the main aim of promoting open source in general and Zope, Plone and Python technologies in particular":

"Aidan McGuire Director of Blue Fountain Systems and the main sponsor of the event said 'Open source is growing in importance as an alternative platform for computer software development. It is important that companies who are promoting this route have a central representative body to present their views to both the Government and other key organisations.'

"Seb Bacon from Zope developer Jamkit added 'The association will provide a technical centre providing commentary, guidance and advice on all legal and regulatory developments of relevance to Zope, Plone and Python service companies.'

Paul Everitt co-founder of Zope Corporation and Director of Zope Europe Association commented 'One fundamental principle underlying the association is to provide a forum for the exchange of non-competitive information" He added "It is only by sharing information that we can hope to extend the use of Zope as an application tool into general business use.'

"Ian Cottee (aka Zobbo) Technical Director of Blue Fountain added 'As Zope moves more and more into the mainstream it was good to meet and talk to others who share our challenges and concerns.' . . .

"Andy Robinson CIO for ReportLab said 'ReportLab wholeheartedly supports the formation of a UK association for Zope and Python companies. These technologies and the applications layered on them are entering the public eye, and there will be great synergies for the firms involved by working together.'"

"Working together." How different the free and open world is, eh? The proprietary world sees competition in business like warfare, and consumers are the victims, their interests sacrificed on the altar to the company's drive to "win" the battle and "own" the market space. Anyway, after reading this report and the letter from the congressman, I discern that statements like the recent Green Hills attack on Linux and security are not happening in a vacuum. The context, in my opinion, is Microsoft's worry that it is going to lose government business to GNU/Linux systems. So there is a whole lot of lobbying going on, and SCO is part of that bigger picture.

In Australia, there is a new organization to act as spokesgroup as well:

"A newly formed, Australian-based open source advisory group aims to deliver expert advice and information on free and open source software (FOSS).

"Dubbed an open source 'think-tank', the Open Source Expert Group (OSEG) was formed primarily to advise the Australian Computer Society (ACS) on open source issues. While sponsored by the ACS, the group says it will also operate independently, acting as a repository for information on open source for all types of users.

"According to its charter, OSEG will represent 'Australian open source stakeholders' and 'stimulate debate on, and provide advice to, the Australian community on open source issues'"

And speaking of Australia, you might find this position paper on the FTA of interest. And to keep our public record complete, we need to include the news that governmental agencies in AU are said to be untouchable by SCO.