Open source comes of age

A succession of high-profile patent cases do the open source movement no harm at all by pushing the issue of software ownership into the mainstream
Written by Matthew Broersma, Contributor

Back in the early 1980s, some programmers were getting concerned about the way that ever-more-restrictive licensing arrangements meant that they couldn't fix broken software or make improvements. One such enthusiast was Richard Stallman, who is credited with coming up with many of the ideas that underpin what's now widely known as open source software.

Stallman and his fellow supporters of free software argued that an increasing number of restrictions were taking control of computer tools out of the hands of the user, and making it harder for programmers to innovate.

Fast forward 20 years and an issue that only stirred the wrath of a hardcore group of techies seems to be becoming increasingly important to a wider audience. This month saw BlackBerry maker RIM shell out over $600m over a software patent litigation case. The company's entire US service was put at risk by an issue that previously would have been of very little interest to most of RIM's customers: ownership of the idea behind a software application.

At the height of the case, many of RIM's customers were probably be asking themselves, how did this happen and isn't there a way to avoid it? The issue of ownership of software has become something that has the potential to impact people's lives in a very real way.

Nowadays, these kinds of problems are confronting not just programmers, but society as a whole, according to long-time open source advocate Bruce Perens. "What in 1980 was only important to someone like me is now something important to all computer users, because computers have become such an important part of most people's lives," he says.

Issues that have only recently begun to surface in the public consciousness, in high-profile events like the NTP-RIM lawsuit and the furore over Sony BMG's insidious music CDs, are exactly the sort of thing Stallman had in mind when he created the Free Software Foundation in 1985, says Perens: "We are seeing what he feared 20 years ago come true around us today."

The end result is that a lot of people who didn't think free software's politics were particularly important or relevant to them are now starting to take an interest.

Back to the 1980s
Discussions of the origins of open source are more contentious than a theological tract, but Stallman is usually credited with being the first to crystallise the ideas underlying what's generally known as open source. Stallman had been a programmer at the MIT Artificial Intelligence Lab, and there he had witnessed what he saw as the decline of the ideal of scientific collaboration amongst programmers. Part of the problem was that around that time software makers stopped distributing source code along with their products; in one incident that infuriated Stallman, he found he couldn't fix malfunctioning printer software because he didn't have access to the source.

Stallman saw the issue as one of freedom — that users should have the ability to run the program for any use, to modify it, copy it and release modified versions to the public. Moreover, in Stallman's view, it was just as important to protect the freedoms of others, meaning the modified versions should be released under the same conditions — a concept called copyleft. The concept was first implemented in the GNU Emacs General Public License in 1985, and in 1989 in the GNU General Public License (generally know as the GPL), now the most widely used free/open source licence.

"Richard was every bit as interested in collaboration as anyone who identifies with open source — he just thought of it in terms of having...

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...the freedom to do it," says Perens. "The Bazaar model does not just happen to be enabled by the GPL. Richard was certainly thinking about collaboration, and especially incremental development, when he drafted the GPL."

Copyleft is the core of Stallman's philosophy, and an important part of free software, although it isn't a necessary component of a free software licence. The concept remains contentious, not only in the business world, but among developers, many of whom prefer more permissive licences such as the BSD or MIT licences — neither of which supports copyleft.

Stallman and the FSF remain unapologetic about wanting to change the world. Computer users' liberty is at stake; the efficiencies of collaborative software development are just one of the things enabled by that liberty. The political stance makes some uncomfortable, even some of the developers whose projects have benefited most from the free software idea. Linus Torvalds is a good example of the ambivalence many feel toward the politics of free software — he was recently quoted as saying he hasn't always enjoyed the politics associated with the GPL, which covers the Linux operating system kernel. But, at the same time, Torvalds concedes "in the end, I actually think that the GPL simply is the best licence for the kernel."

Another example is David Heinemeier Hansson, who came to attention in 2005 when his programming framework, Ruby on Rails, shot to sudden popularity. Rails developed out of a proprietary project at Hansson's company, 37signals, and uses the permissive, non-copyleft MIT licence (also called the X11 licence). "Rails was born out of the pragmatic needs of a business with a desire to share some and keep some. MIT seems to fit that context better than the GPL," says Hansson. "I wasn't all that interested in trying to force people to contribute back to Rails."

Torvalds' Linux kernel was far from the only high-profile project to adopt a free software licence. Other early examples included the BIND name server, Sendmail mail transport agent, Apache Web server and the Samba networking system; a more recent addition is the Firefox Web browser. Despite wide adoption, however, the business world and the mainstream media remained resistant to the ideological framework underpinning free software, which sounded vaguely anti-capitalist to some.

There was also a problem with the term "free software" itself. The FSF tirelessly explained it meant "free as in 'free speech', not as in 'free beer' ", yet the term could still too easily be confused with freeware, software that was available without paying, but didn't necessarily give you any more liberty.

In 1998, a group of prominent software industry figures decided to do something about these problems by creating a new term, "open source", which would dump what the group called the confrontational attitude of free software, and focus on the pragmatic side of things. The engineering concept of freely available source code was apparently simpler to explain than the GPL's freedoms; according to the Open Source Institute (OSI), usage of the term "open source" shot to popularity in the press within a few weeks, and even became the majority choice in the programming community.

Stallman and the FSF have kept their distance from the term, though Stallman has endorsed "Free/Open Source Software" (FOSS) or "Free/Libre/Open Source Software" (FLOSS).

'Free' vs. 'open source'
The difference between free software and open source software depends on who you're talking to. To many, including Perens, they are just two labels for the same thing. "Open source is how we decided to promote Richard's free software campaign to business people," he says.

If there is any particular distinction, it is that some developers take a strictly pragmatic attitude towards open source, while others — Stallman foremost amongst them — never let it be forgotten that there are moral issues at stake. One example of the...

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...distinction is the lists of licences published by the OSI and the FSF: they're both the same licences, but the FSF is careful to recommend the use of the GPL for most software, and to discourage the use of some other licences, including the popular Mozilla Public License.

A widely cited example contrasting the two different positions occurred in 2002, when Torvalds decided to use a proprietary program, BitKeeper, to develop the Linux kernel. The resulting uproar only died away last year, when BitKeeper's vendor started charging open source developers for using the program. While Torvalds saw no problem allowing a proprietary product to take such a key role in the development of such a visible open-source/free software project, Stallman saw things quite differently.

In a commentary published last April, following the withdrawal of BitKeeper, Stallman didn't mince words. "Non-free programs are dangerous to you and to your community. Don't let them get a place in your life," he wrote.

It's nice that many significant programs use free licences, he said, but just as important is the need to keep spreading the word until all software is free: "A better kernel is desirable, to be sure, but not at the expense of weakening the impetus to liberate the rest of the software world."

Such comments have kept Stallman out of the limelight, and since 1998 have helped make "open source" the more acceptable face of free software. More recently, two key issues — software patents and DRM — have begun politicising developers again. To some, Stallman's assertion that the term "open source" obscures the real goal of freedom is starting to make sense.

"For a long time I thought that the distinction between open source and free software was splitting hairs, but... this may be viewed by many as a fundamental distinction in a matter of years," says Florian Mueller, one of the leading campaigners against efforts to legitimise software patents in Europe. He believes version 3 of the GPL, now in development, "will force a number of companies and developers to come clean and show whether they want open source or truly free software".

Software patents
Software patents have become a highly contentious issue in the US, where the patentability of software has been well established since the early 1990s. It has been argued that such patents effectively establish a company's monopoly on an idea, rather than a specific implementation, as copyright does. That means even independent software innovations are subject to the patent. Stallman has compared the effect to composers being allowed to patent musical ideas.

Moreover, critics say that large IT companies such as IBM, HP, Sun and Microsoft are able to use their large arsenals of software patents to lessen the threat of competition from smaller firms.

As Bill Gates put it in a now-famous internal memo of the early 1990s: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today.... The solution is patenting as much as we can. A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high." (As quoted by Fred Warshofsky in The Patent Wars: The Battle to Own the World's Technology. ) Open source is in an even worse position to that of smaller companies, because open source projects generally aren't able to pay any royalties to larger firms.

Large companies generally don't pay royalties on software patents, since they cross-licence amongst themselves, but have recently come under...

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...attack from smaller patent-holding firms demanding large sums. Recent examples include NTP's lawsuit against RIM and Eolas' lawsuit against Microsoft over browser technology. A small Web development firm called Balthaser Online was recently granted a patent which covers most uses of rich media in Internet applications — including such widespread implementations as Java, Flash and AJAX.

Software patents began making headlines in Europe more recently when the European Commission proposed the Computer Implemented Inventions directive that would have effectively legitimised software patents across the EU. The issue became the focus of intense lobbying by large companies and software activists, and was finally scrapped by the European Parliament last year. Software patents have been granted in large numbers by the European Patent Office since the 1980s, but their enforcement is dubious since they're not accepted by some national patent offices.

Digital rights management is possibly an even more urgent matter, and is affecting users in a more obvious way. The Sony controversy attracted widespread attention, but even more insidious, according to Perens, is the fact that Apple's iTunes Music Store has now sold one billion songs — all of them initially wrapped in Apple's copy-restriction technology. "I think that the great many people walking around with iPods don't really understand the consequences yet. They don't own their record collections any more — they just sort of rent them," Perens says. "I doubt those files will be playable forever."

Open source software can't support DRM, because by definition, DRM can't be modified. This currently means that most DVDs can't be played on Linux-based systems. As more online content uses DRM, the problems will grow for open-source projects like Linux and Firefox. Further down the line, there are plans for hardware-based DRM — "trusted computing" — that will lock down entire operating systems. "For [that] vision to come true, the general-purpose personal computer must die," says OSI co-founder Eric Raymond. "As long as users can manipulate bits in ways of their own choosing, no DRM will last."

Open source's nature puts it at the front lines of the debates around DRM and software patents, both of which many see as reflecting wider social and political trends. "I think we as a society are about to find out what the freedom of information really means," says Volker Lendecke, a veteran contributor to the Samba networking project. "The four freedoms the free software movement refers to are more important than they have ever been."

Perens believes open source can help protect society by "correcting the balance" where it comes to patent, copyright and trademark law, but only if these issues are treated as matters of personal liberty, rather than mere business and legal technicalities.

"Computers are the tool by which we communicate and do so much else. Who will control that tool: ordinary people, or only big companies?" Perens says. "Open source is how we give that control to everyone. DRM is how it's taken away. Only when we treat DRM and the like as a freedom issue will we be able to deal with it effectively as a society."

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