Dichotomy Of Ethics - Administration

Andras Szakal noted that, on the one hand, people tout the necessity for a level playing field, but on the other, some don’t want to play in the same game.

In writing the first draft of the open source definition, Bruce Perens said he was exposed to a moral and ethical situation that affected his thinking about licenses. His neighbors attached a caveat on a circuit simulation program called Berkeley Spice. The program was never to be used by South Africa, which at the time, had an apartheid regime. The terms of the license went on after the apartheid regime fell, and a Black government assumed power. The attempt to be moral backfired. Bruce concluded that he never wanted to be part of software that was flavored by ethics, morality, politics, or religion.

Amy Marasco added that, if people look at all the things that in this society that are good, they inherently conflict.

The Legal Panel
Moderator, Steve Nunn, Vice President and COO of The Open Group
Panelists:
Lawrence E. (Larry) Rosen, Rosenlaw.com
Henry W. (Hank) Jones, III, Intersect Technology Consulting and Law Office of Henry W. Jones, III
Tony Stanco, The Center for Open Source & eGovernment, and Cyber Security Policy and Research Institute, The George Washington University
Amy Marasco, American National Standards Institute (ANSI)

Steve noted that the complexity of Open Source from a lawyer’s point of view centers on the many licenses associated with it. As of the week of June 16, he noted that there were 43 approved Open Source licenses, and the number is rising. This fact set the stage for the primary questions to be explored by panelists:
? In legal terms, what does, and what does not, fall into the category of Open Source software?
? What kind of legal roadmaps are out there (e.g., court cases, arbitrations)?
? Who decides whether an Open Source product has been handled properly? As a corollary, how do Open Source advocates know that someone is breaking the rules?
? Are there any key cases that have helped define Open Source?
? Which Open Source software license ambiguities will trigger OSS license interpretation litigation and arbitrations?

Larry Rosen of Rosenlaw.com, who is a recognized expert in Open Source licenses and has recently authored two new licenses, argued that there aren’t, in fact, enough licenses. His rationale for that statement is that the existing licenses aren’t good enough yet—not well written, not clear, not precise.

From the consumer’s point of view the bottom line on Open Source licenses is: They guarantee anyone, anywhere, for any purpose whatsoever, the right to use the software, copy it, modify it, and distribute those modifications free, or for a fee and the right to have the source code that makes those things possible. Larry’s said consumers have nothing to worry about when it comes to licenses. It is only those who intend to distribute software who have to exercise due diligence regarding the terms of the license.

Referring back to the discussion of rights-based logic, Larry reminded everyone of the uniqueness of mentioning the Bill of Rights in an Open Source conference. He emphasized that the critical point for Open Source is the desire to have the freedoms associated with that software; licenses are supposed to protect those freedoms legally.

He concluded by saying that RAND can’t be sharply defined. “Reasonable” is a subjective description He also challenged how clearly people understand and handle the concept of “non-discriminatory.” But he did admit that people with IP protected by patent or copyright had a right to make money from it. The questions are, in the face of a paradigmatic shift prompted by Open Source, “how much money should be made” and “by charging whom.” Standards organizations must change in light of the shift.

Hank Jones, both a business consultant and an attorney, described standards as a form of gamesmanship. He considers it an open secret that many companies use standards as both a defensive and an offensive weapon. Companies have been known to file patents before, during, and after standards-setting meetings.

In comparing software to real estate, he emphasized how important it is to know what’s owned. With real estate, the protection is a thorough title search to determine if there are easements with pipes or sewers, for example. People should invest the same kind of wisdom and skills in getting to know the property they call software. It is incumbent on the buyer to figure out what the opportunities and obligations are.

The key legal issues, then, come down to the following:
? As a design principal, it’s a matter of WYSIWYG versus WYDSIWGY (what you don’t see is what gets you); this is the fear of every IP manager
? Sound construction and engineering is a long-term project and design philosophy.
? Plan now for future constituents and unexpected standards-setters in software management; it isn’t just computer scientists and lawyers who get to “vote.”
? Silos are sickly; multi-disciplinary processes and teams are key to Open Source software.

He recommended that people in the audience commit to being educators in their arenas. Explain what the noise about Open Source is to colleagues. He concluded by mentioning a few tools that will make the journey easier, including metrics of litigation costs and overhauled licensing practices.

Tony Stanco dug into policy issues behind the legal issues. “The policy issues are what drive things. It tells us the reasons why these things are being done.”

Tony said it’s not useful to look backwards for guidance on Open Source because it’s so different from approaches that preceded it. Despite that oddness, major IT vendors now have Open Source strategies and Open Source software is gaining market share, so Open Source must be fulfilling some basic economic need. Tony noted that Wall Street actually “punishes” IT vendors that don’t have an Open Source strategy.

For all the wealth that the proprietary software industry has created, it has also created problems, such as monopolies and interoperability problems. The problem might be the proper balance doesn’t exist between the rights of the producers and the rights of the users. It is a system problem that must be addressed regardless of whether the approach is proprietary or Open Source.

Turning to the part of the system that addresses IPR, Tony noted that, because relationships are not based on status but rather on contract, if someone has rights, that person may give them up. One may not, however, get more rights than are allowed by the contract. He says that it is arguable therefore, that Open Source is just a reaction to IP laws that favor software producers too excessively for a correct economic solution; the market is seeking a better solution. In short, 95 years may be an appropriate length of time to protect a book, but that doesn’t apply to software. A GPL license, which essentially moves the timeline closer to zero, is the other extreme.

Amy Maracso, general counsel for ANSI, shed some light on the world of IP from the perspective of the de jure, or formal, standards setting world. ANSI’s open standards process has weathered decades of scrutiny and use, so Amy suggested that when many people refer to open standards, they really mean products of the ANSI process, or something close to it. Fundamental elements are that anyone can comment on developing standards and all stakeholder groups must be represented.

Amy then referred to her previous remarks in which she differentiated between open process, as just described, open IPR policy, and openness from a technical point of view.

Amy focused on ANSI’s patent policy, which is similar to that at ISO/IEC and the ITU. As a matter of course, patent holders of technology considered essential for implementation of a standard must provide a patent statement telling the community the terms under which they may use it. Some ANSI-accredited groups won’t accept IP in the standard; others will accept it as long as it’s provided with no compensation required.

Amy looked to the sense of RAND. The ANSI policy is that it has to be either royalty-free or RAND. The rationale behind that policy is grounded in who is participating in standards development. They are technical people and standards development organizations that are very often non-profits. They are not the kind of people who are going to make determinations about the validity of patent claims and how much the technology is worth. The policy is set up to establish a “third-party beneficiary relationship,” so that those wishing to implement the standard can say to the IP holder, “You’ve made a representation that you will license royalty-free or under reasonable and non-discriminatory terms.” They then have an avenue to pursue that outside of the standards setting process. Otherwise, technical people who develop the standards might need to bring a legal team to their meetings

ANSI has always taken the position that one-size-fits-all rules are not appropriate. Just as there are different standards-setting procedures, there are different IPR policies and it really has to be what’s best for that group.

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