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Don’t Be Cruel: The Microsoft Protocol License Agreement

When Elvis sang "Don't be Cruel," he certainly wasn't referring to contracts. But contracts, like love affairs and other personal relationships, can often make the parties involved behave harshly to each other. When the rivalry involves money, as the old saying goes, business is business ...


Sticks, Stones and the GPL

It's nice to know someone is reading my column. According to some of your letters, it seems my recent column on the GPL [Phil Albert, "A Consumer's Review of the General Public License, LinuxInsider, July 20, 2004] touched a nerve. To my critics who referred to me by names other than Phil, I can only respond with an equally mature "Same to you!" For those who prefer a more reasoned discussion, please allow me to devote this week's column to answering some of your criticism...

Dual Licensing: Having Your Cake and Eating It Too

Back in 1976, Bill Gates wrote an open letter to hobbyists. He asked, "Who can afford to do professional work for nothing? What hobbyist can put three years into programming, finding all the bugs, documenting his product, and distribute it for free?" ...


Stop ‘Forking Around’ with Software Labels

While I was handing out candy on Halloween, a trick-or-treater came to the door dressed as an open-source project. There was code everywhere and volunteer contributors were coming out of his ears. It was a clever costume, but what made it really scary was the giant fork he was carrying ...


A Vote for Open-Source Voting Machines

Richard Stallman, president of the Free Software Foundation, started a revolution over printer drivers. According to the official history, he couldn't get permission or source code to modify a printer driver to suit his needs, so he wrote the General Public License (GPL) and a compiler. Eventually, he and others wrote an operating system, too ...


Software Terminology: What’s in a Name?

I love life and I love having choices. I guess you can say I am pro-life and pro-choice. Unfortunately, for most people those labels represent the opposing sides of a very divisive issue ...

Novell’s Patent Defense: Maginot Line or Sound Legal Strategy?

France built the Maginot Line in the 1930s, a supposedly impenetrable state-of-the-art defense system to protect the country from her long time enemy, Germany. It was meant to prevent a German invasion, but the Germans simply went around it, dealing the French a humiliating defeat in the spring of 1940 ...


Mambo Lessons Come Down to Law

We can learn some lessons from reality TV. For instance, many disputes can be settled without lawyers. If your brother-in-law owes you money or your neighbor's tree drops fruit in your pool, you can simply vote them off the island. Or fire them. Either way, working it out on your own is a cheaper alternative than litigation ...


Bounty Hunters: Shootout at the Software Corral

Connoisseurs of 1960s TV might be familiar with Paladin, a Western that featured a San Francisco character with a business card that read "Have Gun, Will Travel." He was a dapper cross between a private detective and a bounty hunter who roamed through the West tracking down bad guys. He was mainly a nonviolent sort, but, dead or alive, Paladin generally got his man and won the reward...


SCO’s Woes: Too Late To Turn Back

The news is out: SCO is losing money. Fast. Considering that SCO has no revenue and lots of expenses, the news is not surprising. Raising revenue and cutting expenses might help, but neither will be easy ...


Sender ID: Shakespearean Tragedy in the Making?

With a flair for the dramatic even Shakespeare might appreciate, commentator Larry Seltzer recently predicted that Sender ID -- a spam-filter technology some call the "king of the e-mail security mountain" -- would soon be history. "It's a tragedy," Seltzer wrote. "Microsoft's uncompromising licensing attitudes show a blindness worthy of King Lear."


Time for a Court Ruling on the GPL?

Michael Newdow may not be a household name to the open-source community. The California atheist sued a Sacramento school district to prevent his third-grade daughter from having to recite or listen to the Pledge of Allegiance because it includes the words "under God." ...


CA’s Ingres Challenge: Programming on Contingency

Someone other than the client or the lawyer decides whether the client gets a benefit. Lawyers generally agree to a contingent arrangement only if the lawyer can expect more fees in a contingent recovery than under a fee arrangement. Even the best lawyers cannot win all the time. They count on winning contingencies to pay enough to fund the ones they lose. Clients only shift the risk to the lawyer if there is an uncertain outcome, or if the client does not have the money to pay on a fee basis. If the outcome is certain and the client has the money, the client would be better off with a fee arrangement. Contingent arrangements are nearly always contingent on something beyond the control of the lawyers or the clients -- otherwise they would be misnamed. In the case of contingent litigation, the risk is that the court could rule against the client. Without this uncertainty, there is no risk to shift. Programming on Contingency Like a lawyer deciding whether to take on a contingent matter, programmers deciding whether to rise to the Ingres Challenge need to take a hard look at the project. Developing a migration tool for complex databases is not a three weekend job for four teenagers on home computers. It takes a considerable investment of time and money by skilled programmers. To compete for the $300,000 prize for a tool migrating IBM DB2 data to Ingres r3, for example, you'll need a system running IBM DB2 and Ingres r3 to test the migration tool. DB2 Everyplace Enterprise Edition lists at $15,000. Add in some hardware to run it all and you're looking at $25,000 before you even start. If you're a software development house running DB2, you might have the expertise, but you would still incur the cost of taking resources away from paying customers. You'll want to do some rough estimates to ensure the project makes economic sense. Remember, you are doing this for the prize money, not just for fun. Estimates vary, but let's go with a development cost of $3.00 per line of fully debugged code. You would have to come in at about 90,000 lines of code to stay at $300,000, less the cost of tools and hardware. Migration Code Let's assume CA and most experienced programmers can estimate, within an order of magnitude, how many lines of code a migration tool would take. If the IBM DB2 migration tool would take more than 90,000 lines, experienced programmers would not even start. Even if it can be done in less than 90,000 lines, you need to take into account the number of entries. For example, even if you're one of the best programmers, if there are four entries from teams at least as competent as yours, you each have less than a 25 percent chance of beating all the others. Therefore, it doesn't make economic sense to compete unless you can produce a winning tool in 20,000 lines or so. If a migration tool could be created in 20,000 lines, wouldn't CA do it themselves for an internal cost of $60,000, or contract it out for maybe $120,000? It really doesn't matter what numbers are used. If both sides accurately estimate the costs, a contingent payment needs to be more than a guaranteed payment. Thus, it would seem that CA is either overpaying or entrants are getting a bad deal. I assume that a successful company like CA has given this a lot of thought. Who wins? Migration tools will be great for CA, who can give them to the open-source community because it benefits not from owning them, but from their mere existence. Of course, CA also can decide to own the tools by improving them and taking the modifications private. CA deserves credit for creating a buzz and arguably being the first to come up with the idea, but it just doesn't add up for the programmers. Treating the "open-source community" as a free labor pool might be a short-term solution, but as anyone who has worked for charity or political groups can tell you, volunteers are much harder to manage than employees. Plus, open-source communities tend to talk to each other. And they seem to favor licenses with copyleft provisions, which irritates so many vendors of proprietary code. Perhaps CA will find a group of skilled database tools programmers that happen to be bad businesspeople, don't mind working for free, and agree that their work product can be taken proprietary. Perhaps a new business model will be created. In any event, I would not recommend betting your salary on the long-term implications of programming on contingency. Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP. ...


Ancient Lessons and Open-Source Insurance

Sometime around 5,000 years ago, Chinese merchants learned to spread their cargo over several ships so that if one were lost, they would not lose their entire shipment. It was the birth of what we now call the insurance industry ...


Sticks, Stones and the GPL: Responding to Readers

It's nice to know someone is reading my column. According to some of your letters, it seems my recent column on the GPL [Phil Albert, "A Consumer's Review of the General Public License, LinuxInsider, July 20, 2004] touched a nerve. To my critics who referred to me by names other than Phil, I can only respond with an equally mature "Same to you!" For those who prefer a more reasoned discussion, please allow me to devote this week's column to answering some of your criticism...


Patent-Free Does Not Necessarily Mean Worry-Free

In Diamond vs. Chakrabarty, the United States Supreme Court ruled that patents could be granted for "anything under the sun that is made by the hand of man." That includes software. ...


Munich’s Migration to Linux Raises Issues

Exclusion of Warranty and Liability. It has been pointed out thatSection 11 and 12 of the GPL regarding the exclusion of warranty andliability may be unenforceable under the Standard Business ConditionsAct of Germany, since an exclusion of liability for damage resultingfrom gross negligence is invalid. What about the fact that Section 11 ofthe GPL provides that "there is no warranty for the program, to theextent allowed by law?" Legal experts have argued that under Germanlaw, even the use of such language does not help make it lessobjectionable under German law. I don't think GPL users have much toworry about, unless they are so sloppy that they include viruses in theircode (and the reader of the source code doesn't notice) or they out andout copied someone else's proprietary code. In either case, the originalauthor is liable for something, whether such code is distributed usingthe GPL or any other license. Preliminary Injunction The question of whether all of the terms of the GPL would be held upunder German law is certainly open for debate. As recently as April2004, the Munich district court granted a preliminary injunction againstSitecom Germany to enforce the GPL. Sitecom's product is a wirelessaccess router based on software licensed under the GNU-GPL. It wasdeveloped by Netfilter, a company providing security software for Linuxfirewalls. The court order reportedly stated that Sitecom did notfulfill the obligations imposed by the GNU-GPL, including not making anysource code offering or including any GPL terms with their products. After Sitecom refused to cease and desist despite warning notices,NetFilter applied for a preliminary injunction, banning Sitecom fromdistributing its product unless Sitecom applies all obligations of theGPL. So What Now? While Linux supporters are hailing this case as "the first case in whicha judicial decision has been decreed on the applicability and validityof the GNU-GPL," I suggest that they wait before popping the champagne.This judgment is, after all, only a preliminary injunction that ismeant to preserve the status quo until final judgment is made. As Spindler points out, the legal debate is just beginning. The idea ofthe open-source license is still a relatively new concept in the Germanlegal system. Sorting out these conflicting legal positions is riskybusiness, and the arguments made by legal commentators that the GPL isunenforceable should not be ignored. If they are right, Spindler suggests that one solution may be to producea German language version of the GPL that takes in account both EU andGerman law. Until then, he said he believes that governments, businesses andeven individual users may find themselves more liable than they expected. Joining the Parade With an estimated 500 German government agencies already using opensource, there is no question that Linux will continue to grow inpopularity in Europe. As it does, I expect to see many more legal issuesthat need resolution concerning how the individual copyright laws ofeach country may or may not apply to the GPL. In the meantime, perhaps Linux users should start their own parade,dancing up a storm until all the legal issues converge on some consensuson both sides. Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.


A Consumer’s Review of the General Public License

Last week, I examined the nuances of a marketplace for licenses and its relationship to a parallel marketplace for products that use those licenses. This time, for those readers who might actually be in the market for a license, let's review the one that gets the most ink -- the General Public License (GPL) ...


Understanding the Marketplace of Licenses

When J.S.G. Boggs needs money, he draws it. He draws one side of a banknote on high-quality paper, actual size, and presents it to the merchant ...

SCO Seeks To Stop Summary Judgment

"My prediction is that the court will at least ask SCO to fill in the gaps in terms of evidence," Phil Albert, a partner with San Francisco firm Townsend & Townsend told LinuxInsider. "At that point, they may try to cloud the case further by bringing up other issues." The cour...

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