Shuttle Diplomacy Between Allchin and Stallman

I really like what Richard has to say, and certainly have many reservations about some of Microsoft's business practices, but at the same time, I have been disappointed by how quick members of the free software and open source communities have been to assume the worst in Jim's remarks. As Tevye says in Fiddler on the Roof, if we live by an "eye for an eye and a tooth for a tooth...before long, the whole world will be blind and toothless."

In particular I have been concerned that Jim's actual words as reported by Bloomberg:

"Open source is an intellectual-property destroyer.... I can't imagine something that could be worse than this for the software business and the intellectual-property business.... I'm an American, I believe in the American Way. I worry if the government encourages open source, and I don't think we've done enough education of policy makers to understand the threat."

I met for two hours with Jim Allchin last Friday, because I wanted to ask him face to face what he meant, and read his body language to see if this was a calculated course of FUD on the part of Microsoft, as many people have concluded, or a legitimate misunderstanding of a few remarks taken out of context.

I persuaded Jim to let me tape part of our conversation, and I'll be publishing it later this week, after I have a chance to have the tape transcribed. However, that will take a few days, and I wanted to share some of what I observed while this issue is still hot. One quick way to do that is to publish a couple of the comments I sent to Richard after reviewing a draft of his response.

Richard Stallman wrote:

> 
> Microsoft describes the GNU General Public License (GNU GPL) as an
> "open source" license, and says it is against the American Way.

Jim would counter, if given the chance, that he did not say GPL is against the American Way. What he said originally was (and repeated to me with some amplification on Friday) was on the order of "I'm an American. Microsoft is an American company. We pay taxes. I don't see why government-funded software should be put out under a license that prevents us from using that software." He says he's supportive of other licenses like the BSD or Apache license for government, because he realizes the value of the "software commons" (though he admits that Microsoft hasn't been as consistent as it should about contributing or about publicizing what they do contribute). But he believes that the ability of commercial companies to add value to public domain software is a good thing, and is happy to argue that point.

As you know, while I feel that Microsoft has often not been a good citizen, and deserves a good bit of the opprobrium heaped on them, I agree with his general point. (I know you don't.) I believe that when a software author wants to create software that will be free, and remain free, without any non-free extensions, the GPL is absolutely the right license. But I believe that in many cases, where the goal is not freedom (as you define it), but the optimum benefit for the most people, a license that is more friendly to add-on commercial activity that may not be free actually has better results.

I think Jim has some reasonable basis for his comments if he clearly limits them to saying that government sponsored software should be released under a free software license that allows both free software and proprietary software efforts to make use of it. I honestly believe that was what he meant to say, and that that this is not just part of a calculated FUD campaign. He clearly regrets how it came out, and how it's being characterised.

Just as there are cases where the software author wants to keep his or her software free, there are other cases where he or she wishes to keep it proprietary. And there are many cases where the authors don't care if derivative works are free or proprietary, and want their work to be available to all. (For example, the X Consortium's work was very much conceived in this way. Similarly, in putting his work into the public domain, Tim Berners-Lee also made this choice.) And there are also caseswhere ownership is potentially ambiguous. For example, as recently reported in slashdot at http://slashdot.org/askslashdot/01/02/24/2217254.shtml, here's a case in which the actual software author, working under contract to the government, persuaded his immediate superiors to use the GPL, but now the higher ups are questioning that decision. (In this particular case, it seems to me that it's water under the bridge, and the license should be honored. But it also seems to me that it illustrates the reasons why govt agencies might be concerned about the GPL and would prefer to fulfill their obligations to the public with a less aggressive open source license.)

Now that I've got your dander up, I want to suggest the point I'd make (and will gladly make in counterpoint to your piece when you publish it): that if we accept that Jim is right, and that no government software should be published under the GPL, because that places restrictions that make it useless to some of the citizens who paid for it, we *can make a similar case that no government software should be released under a proprietary license*. This would suggest that all government sponsored software should be released into the public domain, or under a BSD or Apache-style license, so that it could be used freely by either free software or proprietary software projects.

Now, I understand that that position likely doesn't meet your objectives. But it is worth thinking on as a strategic position, especially for open source advocates.

At the end of the day, my even more pragmatic assessment is that if you look at the entire spectrum of possible ways that software is created by the government, we're going to have to allow a plethora of licenses. For example, if there is a government project to extend Linux (e.g. http://www.nsa.gov/selinux/), it would naturally be under the GPL. There will likely be other pieces of software that get licenses in a proprietary way. But the vast majority should be put into the public domain, or under a "copy-central" license like BSD or Apache. I'd be rather happy if we could score that point!

Another element of Allchin's comments, which you may not agree with, but perhaps can understand as a distinct point of view is that he has some concerns about US software competitiveness, and that free software licenses give a leg up to software industries in other countries. This was another piece of the backdrop to the "I'm an American" comments. Now, for many of us, who have an internationalist bent, this is not an issue. But I can certainly understand that there are people who share his view, and can accept this as a reason for his comments that is very distinct from a suggestion that free software is "un-American", as most of us took them at first blush.

I also commented on this bit from Richard:

>  Nobody is forced to join our club, but those who wish to participate must offer 
> us the same cooperation they receive from us.  That makes the system fair.

To which I replied:

This is a very compelling statement of the position. And I completely agree with it when that is the intention of the author. But when (as in the case I cited above, an individual programmer working on contract gets software released under GPL because the people who funded the work don't understand its consequences, as in the slashdot story cited above ("Since neither of my immediate corporate nor military superiors really understand the GPL, they've all agreed to license the software under it"), the morality of that position is compromised. I would like to see an attempt made to eschew GPL software obtained in this way. It creates the kind of animosity and lack of understanding that was demonstrated in the current brouhaha.

It seems to me that this is a classic case where people have strongly held views on both sides but aren't talking to each other to try to understand the reasons for those views. If Jim isn't saying "open source is un-American" but "use public domain or BSD-style licenses for government supported software", we need to have a very different kind of debate. What are the goals of government support for software development? To what extent are those goals supported or compromised by particular licenses?

There are further complications that occur when a project is building on an existing code-base, because you have to consider not only the intentions and licensing choices of the current project, but of the base projects. This is why, it seems to me, that there is no simple answer, and that we will end up with a full range of licenses, from public domain through GPL through proprietary, for government-funded software development. Which is all the more reason why we need to have substantial debate about the effects of the various choices that people may want to make.

P.S. Since this piece was originally posted, I've had a lot of followup discussion with readers. I'm behind schedule on getting the tape itself transcribed because there were significant portions that were inaudible to the transcriptionist that I need to personally review to see if I can make them out.

Tim O'Reilly is the founder and CEO of O'Reilly Media, Inc., thought by many to be the best computer book publisher in the world. In addition to Foo Camps ("Friends of O'Reilly" Camps, which gave rise to the "un-conference" movement), O'Reilly Media also hosts conferences on technology topics, including the Web 2.0 Summit, the Web 2.0 Expo, the O'Reilly Open Source Convention, the Gov 2.0 Summit, and the Gov 2.0 Expo. Tim's blog, the O'Reilly Radar, "watches the alpha geeks" to determine emerging technology trends, and serves as a platform for advocacy about issues of importance to the technical community. Tim's long-term vision for his company is to change the world by spreading the knowledge of innovators. In addition to O'Reilly Media, Tim is a founder of Safari Books Online, a pioneering subscription service for accessing books online, and O'Reilly AlphaTech Ventures, an early-stage venture firm.

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