[TAG] The "Exhibit B" issue and OSI: today's mailing list discussion

Tue Jan 2 19:03:13 MSK 2007

On Tue, Jan 02, 2007 at 02:58:22AM -0800, Rick Moen wrote:
> 
> My guess is that there has been a bunch of behind-the-scenes coaxing,
> attempting to avert a confrontation between OSI and this growing market
> segment of insurgents who're abusing the heck out of the notion of "open
> source" and are fully aware of doing so.  OSI doesn't actually have a
> lot of strength other than moral suasion, no assets, no professional
> staff, a strong interest in avoiding conflicts that can be reasonably
> avoided.

As I see it, what OSI has - and is failing to use as effectively as it
might - is the belief of the Open Source community in their right to
define what Open Source licensing means (this is related to moral
suasion, but focuses on a slightly different perspective.) My take on
the situation, which I've spent some time exploring after Rick pointed
it out, is that a bunch of opportunistic business people are taking
advantage of a "soft", poorly-defined area of the licensing procedure,
and are trading on the forbearance that has been granted to them. It is
not a case of a mistaken understanding, or even of attempting to
redefine the meaning of Open Source for the general benefit; it is a
move designed to create a private, proprietary benefit for the companies
involved. Everything said by these companies' representatives in this
discussion supports that, in my view.

I do understand the desire to be lenient with "fellow FOSS community
members". The problem, however, is not that these companies have
"wandered from the path", or have made an innocent mistake: in my
opinion, they are grabbing a piece of something that does not belong to
them, and leveraging it as a commercially-valuable part of their
business. This is not a case for leniency or forbearance, but an
occasion for remembering the concept of adverse possession (a.k.a.
"squatters' rights"):

(Wikipedia cite)
``
In common law, adverse possession is the name given to the process by
which title to another's real property is acquired without compensation,
by, as the name suggests, holding the property in a manner that
conflicts with the true owner's rights for a specified period of time.
''

The fact that they have been allowed to trade on that leniency for this
long affects the very root of the moral suasion that OSI holds, and
*must* be strongly countered, as quickly as possible.

> Highly perceptive critic Nicholas Goodman, by the way, thinks people
> like me aren't cynical enough, and that the "Exhibit B" companies
> absolutely _do_ want to impair commercial use.[1]

That's my conclusion as well. Primarily, I see that they want to
arrogate to themselves the right to benefit from Open Source while not
"paying the costs" for doing so.

> If so, OSI yielding substantively on that point would be a huge mistake, 
> as the biggest threats to open source have always been people wanting to
> use the open source community as a free-of-charge development and PR
> house while reserving commercial rights to themselves.  I hope OSI
> doesn't cut any such deal.

If they do, they might as well pack their bags - they would have
surrendered the very reason for their own existence.

> Goodman fears[2] that continuing conflict will cause "a fork in open
> source".  By contrast, I think SugarCRM, Socialtext, et al. left us long
> ago, but want to pretend they haven't, for business / PR reasons.

I agree. These days, the ability to tag yourself/your company as "Open
Source" is a hot property, with a tremendous amount of commercial value.
I recall that when I visited a LinuxWorld show - a year after IBM jumped
on the Open Source bandwagon - they were claiming to have invested a
billion dollars in Open Source _and having recouped it all_ within that
year.

> I'm trying to not act on my gut-level reaction to the line of con-job
> rhetoric evinced throughout this discussion by Matt Asay of Alfresco
> (and OSI Board member) in his articles and blog[3], John Roberts of
> Socialtext on his GAP information (advocacy) page[4], and Ross Mayfield
> in some of his replies to me and others.  I suspect they're accustomed
> to playing deceptive spin games with published information and not
> having anyone dare (or bother) to call them on it, let alone take
> offence.  That's a typical CEO / VP trait, I notice. 

I've run into it most often in my contacts with the advertising world;
it's also a very precise fit for the categories defined by Professor
Frankfurt ("On Bullshit", http://press.princeton.edu/titles/7929.html).

Oh, and -

```
Funny thing about that: We tend to allow people to use transparent
bullshit to move onwards, when they're in an awkward spot and otherwise
trapped. Everyone knows that the excuse is devoid of merit, but nobody
comments on it. It's just social lubricant.

 -- Rick Moen, http://linuxgazette.net/130/misc/nottag/speaking.html
'''

There's a good chunk of that going on here - precisely at the time when
it must not be allowed.

> Anyhow, once the fog of lies and distortions blows away, all the really
> matters in the end is code and licensing, licensing and code.  So far,
> these firms' licensing simply sucks, so I say the rational response is
> to make crystal clear that they've defined themselves outside our
> community.  If they later want to rejoin it, that's up to them, not us.

I agree. The sooner that statement comes, and the clearer and more
definite it is, the better for the community *and* for OSI themselves.

> There remains also one other bit of unfinished business:  the malign
> role of OSI General Counsel Mark Radcliffe, docmented only by the
> amazingly effective David Berlind of ZDnet:
> http://blogs.zdnet.com/BTL/?p=4124  The whole situation is pretty 
> unhealthy.

Fascinating article - thanks for pointing it out. Important extract:

``
In hope of avoiding a conflict of interest or any sense of impropriety,
Mark Radcliffe has excused himself from the OSI's deliberations over
whether the attribution provisions in question should be approved by the
OSI. In other words, his position with the OSI when it comes to this
particular matter is irrelevant.
''

As it happens, I strongly disagree with that last sentence: his position
with the OSI is indeed the only thing that matters - when it comes to
these companies' PR. The fact that he has recused himself is *invisible*
to the public; therefore, he appears to speak with the full authority of
the OSI in the matter. It is not credible, in my perception, that either
these companies or Mark Radcliffe himself could have missed this point;
in fact, I strongly suspect them of trading on that very fact.

-- 
* Ben Okopnik * Editor-in-Chief, Linux Gazette * http://LinuxGazette.NET *