Punishment

William H. Page and Seldon J. Childers cite my podcast interview with Jeremy Allison in an article for the Northwestern University Law Review. part 1 part 2.

"The Samba license formed under the order in the European Microsoft case, in contrast, is both significant and perilous for global antitrust policy. It provides critical protocols and documentation to Microsoft’s most important rival in the server market, a rival, moreover, whose development methods are focused on the analysis of those very protocols."

True, but the license is, as mentioned in the article, the result of a settlement with the European Commission. It's "perilous" to perpetrators, not to the software business in general. If Steve Ballmer got caught selling crack, and ended up with community service under a plea bargain, yes, he could end up having to clean up in front of the beer store.

You can't have it both ways: if "Intellectual Property" should be treated like actual property, then you put it at risk when you use it in a crime. The European Commission isn't picking on a US-based company for no reason here. In fact, the Commission generally advocates for expansions of exclusive rights in information that tend to benefit US-based companies at the expense of Europe. And in this case, the Commission didn't even limit Microsoft's use of the patent system. It only limited the company's ability to make vague anticompetitive threats based on unspecified parts of a large patent portfolio, and handed over some protocol information that Samba was in the process of working out anyway.

A common-sense patent regime would limit the tools available to future software monopolists, and might make the next antitrust action unnecessary.

Meanwhile, this Monday morning, some Red Hat patent lawyer is looking at this useful weekend hack from Dave Jones and considering filing for a "defensive" patent, one that has no bearing on Dave's incentive to come up with the next kernel tweak, but that might help deter troll raids or patent Ragnarok. Don't people have better things to do?

Tim Lee links back to my earlier piece on GPL/patent gamesmanship. This paper on patent invalidation from Joseph Scott Miller makes an essential point on real-world patent cases: if you're defending a patent suit from a troll, and you have the necessary prior art to invalidate the patent, the best move for you is not to fight it out and finish the patent off, unless you're just trying to impress Matt Asay. Instead, you pay the troll a token, undisclosed amount for a license and make the patent a nusiance to your competitors. This is why Trend Micro can brag that its weak virus scanning patent hasn't lost in court.

Defendants are usually better off becoming a troll's allies, but should the troll accept the offer? Depends on the strength of the patent and the projected revenue stream from the victim. In the case of an open source defendant, you can treat the patent as weaker, since it's more likely to attract outside research help. And the projected revenue stream is smaller, since an open source defendant is limited in its ability to raise prices to pay an ongoing license fee. The open source vendor's customers aren't locked in enough to pay more for no benefit.

Open Invention Network is halfway to the convergence of a troll company and a GPL patent pool. But because the investors are actually in the software business, OIN can't go as whole hog with actually making money as the true bastard spawn of troll and open source pool could. Buy up some patents, license them to the relevant open source projects to take them and their users out of the picture, and target the proprietary infringers.

In the US, we're stuck with a cheap dollar and high oil prices, which means that the Sovereign Wealth Funds of oil-producing countries are in an ideal position to accumulate US paper assets such as software patents. We're closer to Europe's situation than it might appear. When you're paying $7 a gallon for gas, and the money goes to snap up patent portfolios that restrict your work, defenders of Qatari troll companies are going to look pretty silly, whether or not the trolls strike a bargain with the open source types.

Syndicated 2008-06-24 19:17:30 from dmarti's blog

Web element grabbing

If you administer anything, you're either web-scraping or your're already in the carpal tunnel ward. How many have a script that visits every application's supposedly all-in-one "dashboard" to grab the one piece of information you need?

I've written my share of yeechy pattern matches. (Bad enough that I actually invented the Reverse Bastard Copyleft: "You can do anything with this script that you want, as long as you claim YOU wrote it.")

In the Media, we have a similar problem: partner sites and multiple content management systems. When I need to get the weekly kernel article from LWN, it's view source, cut, paste. In the never-ending quest to get things organized around here, I ran into this useful article from Sean M. Burke, and now I should be able to do more things like:

element ArticleText http://lwn.net/Articles/287056/ | xsel

Here's the script: element

I think this will be useful when I'm building chunks of stuff to incorporate into a CMS-built page. Instead of having to look at validator output for the whole final page (if your pages validate they throw you out of the Mainstream Media) I'll be able to build my thing in a simple template, validate the page, then extract the right chunk and pass it on.

Syndicated 2008-06-23 16:29:45 from dmarti's blog

Measuring open source adoption the hard way

Microsoft is sponsoring an open source measurement project—one that has inventoried a total of 1300 computers.

But despite the sheer number of projects that want to measure open source adoption, the numbers are bogus, because it's not in the interest of the people who have the data to release it.

The more interesting the customer, and the more that customer deploys, the less they'll talk about it. Banks are especially wary of talking about their software habits. Wall Street becoming Linux stronghold" is still news now, almost ten years after Linux broke investment banks's "no eating in the data center" rule by eating Sun's lunch there.

Now, of course, with a steady drumbeat of legal threats (usually phrased something like, "we just want you to compensate us for our Intellectual Property and work together") Linux and free software users have even more reason to keep quiet. And it's not all patent trolls, who tend to be relatively sane and revenue-maximizing. You get wackos. After all, it's still hard to even pin SCO's CEO down on what he claims customers are infringing. Give one "we use Linux" quote to one news site, and it's "On information and belief" in a lawsuit against you. The publicity isn't worth it.

Jay Lyman at the 451 Group says Microsoft has "changed" but it's a big company, companies change back, and companies have partner companies. Sure, they're not suing their customers, but they bankrolled SCO. The threat is there no matter how much happy friendly working together PR you put on it.

I like hearing about real-world business IT success stories as much as the next media weasel, but if I were on the other side, the policy on chatty IT staff would be Shut the Fool Up. Employees, feel free to ask questions on web sites or mailing lists, but use your personal email address, and any discussion that mentions both a software choice and the company name is off limits.

So, how do you measure how much open source is out there? The obvious choice is a "popularity contest" application that checks the filesystem or the package manager.

Look at the Debian Popularity Contest. Of course, it can only measure what's installed, not what you actually use, unless you decide to mount your filesystems without the "noatime" option, but don't do that. Several companies have released open search search tools as sales tools (like this one at OpenLogic) "Look at all the open source stuff you're running and didn't know it—you need our support plan!"

But people don't run popularity contest applications on production machines. So, as much commentary as the OMG WTF M$ WANTS YOUR INSTALLED SOFTWARE LIST thread has gotten, it looks like a waste of the company's money.

Strangely enough, what might be the best open source measuring tool to come along in a while recently got released by accident. Netcraft's report on bad SSL certificates on bank and other secure web sites. (via LWN). That reveals not the OS on the outward-facing server, but the OS on the internal system on which someone ran a broken version of critical software.

Naturally, it would be irresponsible to publish today which banks are running with a bad certificate. But Netcraft now has data on companies running not just open source, but the squeaky-clean Debian distribution whose software guidelines were the basis of the "Open Source" brand in the first place.

(This might be a good one for Revealing Errors.)

Syndicated 2008-06-19 23:59:38 from dmarti's blog

Iceweasel goes 3.0 too

Debian's "Iceweasel" build of Firefox 3.0 is out. Working fine for me so far with one exception.

"There was an error launching the default action command associated with this location."

If you install Iceweasel 3.0 and get this error trying to open a URL from gnome-terminal or some other GNOME app, it looks like the answer is that Iceweasel 3.0 doesn't have a program called /usr/lib/iceweasel/firefox.

For an answer, look to the explanation at defindit.com. Both Debian and GNOME havetheir own ideas of how and where to set the user's preferred web browser, and you need to go in and set the GNOME preference in the XML files under

.gconf/desktop/gnome/url-handlers/http

and

.gconf/desktop/gnome/url-handlers/http

I'm just setting it to "iceweasel" without the pathname.

Yes, it would be nice if Debian could ship Firefox-brand Firefox, but it can't happen. The Microsoft Windows software world is too full of sneaky people on both sides of the law who would release spyware-infected Firefox builds, or "Firefox" installers full of marketing crapware. So the Mozilla Corporation needs the power of trademark law to, at least, kick spyware mongers' ads out of Google and get their sites taken down. We're going to see more of this kind of stuff when the same project finds itself releasing code both for downstream Linux distributions and for the sometimes-shady world of Windows "Freeware."

Syndicated 2008-06-19 17:00:27 from dmarti's blog

Fair use and not, again

Good comments on my previous post on news copyrights.

Jonathan Peterson writes, "even if I DO license the 5 words, I can be sued if I use those 5 words to criticize AP reporting."

I'm not an AP licensee. Why? One example: the company's reporting on energy is pretty much useless. The usual, "Republicans say, Democrats say" stenography, without the relevant facts. Look at this:

"With gasoline topping $4 a gallon, President Bush urged Congress on Wednesday to lift its long-standing ban on offshore oil and gas drilling, saying the United States needs to increase its energy production. Democrats quickly rejected the idea.

'There is no excuse for delay,' the president said in a statement in the Rose Garden. With the presidential election just months away, Bush made a pointed attack on Democrats, accusing them of obstructing his energy proposals and blaming them for high gasoline costs. His proposal echoed a call by Republican presidential candidate John McCain to open the Continental Shelf for exploration."

AP customers pay good money for this? The AP, I'm sure, gets the quotes right, word for word, but—except for which side in some Washington, DC argument said what—you don't know anything after reading the story that you didn't know before you read it.

How much oil do geologists think is under the continental shelf, and how much does the USA use in a year? Look to Wikipedia, and you get a useful fact: the country has three years' worth of proven oil reserves in the ground.

Look to the "Raising Kaine" blog and you get more useful information: there's another estimated 1.5 billion barrels under the ocean off Delaware, Maryland, Virginia, and North Carolina. Here's a useful Mainstream Media story from David Lightman at McClatchy Newspapers: "Annual American oil production is about 1.8 billion barrels, and the Interior Department estimates that as much as 19 billion barrels remain untapped in coastal areas currently off limits to drillers."

Try to run all the cars in the USA on domestic oil, even if you add in the coasts, and someone who signs a car loan today could still be making payments when the oil runs out. But the AP just gives us dueling soundbites without the information to put them in context. Sure, no Professional News Organization is going to work from Wikipedia, but they could have made their own behind-the-firewall wiki with this kind of basic stuff by now. AP's actual energy reporting stinks of corporate sloth, which is a failure smell worse than any copyright shenanigans.

The AP has no business using copyright law to defend its failure to fill in the backup information on the subject the politicians are talking about. But still—just cutting and pasting is not blogging, and it's not necessarily fair use. Being for copyright balance and the right to quote other people's writing in the context of criticism or discussion doesn't necessarily mean that mindless copying is fine.

Is this spam blog fair use? No. Would it be fair use if it just copied the headline and one sentence? No. A corporation can spew dumb bluster about copyright and still be right on a copyright issue.

Syndicated 2008-06-18 23:42:31 from dmarti's blog