Legal shenanigans or not

PJ over at Groklaw.net is often a fun read. Her commentary on the SCO case has been excellent, if not loaded with biting sarcasm and witty humor. I think that this is good, as SCO deserves the derision heaped upon it for lighting off a case that their overlords appear to have asked for, without checking to see whether or not it was real enough to push.

In business as in parenting, you have to learn to pick your fights. SCO is being driven into this fight by its overlords, without any real ability on its part to say “no”. They are proxies. We have a fairly good idea of who the overlords are. Follow the money.

Unfortunately I am in disagreement with her latest article on the Novell MSFT mashup. Maybe I need to read it two or three times to let it sink in. Her thesis appears to be that this is sidestepping the intent of GPLv2. It is a set of legal shenanigans, complying with the letter and not the intent of the law.

At least, this is how I understand her post. Further, there is a little gratuitous corporate bashing in there.

I am a small business owner/operator. I have no problem calling attention to silly, counterproductive, unhelpful, ludicrous, or related behavior, on the part of companies, on the part of people in companies. I point out some large Redmond-based company’s CEO as an example someone who says and does unhelpful things (a shame as this company has some people who genuinely want to do good things in the market, and often turn a little green around the edges when these things are pointed out to them… not their fault, they are saddled with their history).

However, one of the take away messages I got from this article was this:

There’s a reason why corporate interests are not enamored of the GPL. It’s also the reason why it it matters: it has proven effective in forcing the greedy and unscrupulous to play fair with code they didn’t write but would love to get illegitimate money from somehow anyway. (It’s fine to make money from GPL code. IBM and Red Hat and many others do. But you have to respect the license, which has as its goal freedom for the code, so you are allowed to use GPL code as long as you let its authors (and everyone else) freely and without restrictions outside the four corners of the GPL itself use/study/modify your code that you write based on that code.)

Here are my objections.

First, we live in a capitalistic society, not a socialist society. Corporations are in business to make money for their owners (shareholders). This does not make them greedy. This does cause them to act in what their management team perceives as its best interests. The latter isn’t always strictly true, ego and internal politicking often gets in the way of doing the right thing for the corporation.

Second, corporations are not unscrupulous by design. They follow their management. People can be unscrupulous. Thats when Enron’s happen.

Every now and then some customer raises the objection that working with a small company is a risk, as we could go away. Perhaps. Lets ask the Enron, Worldcom, Delphi, Visteon, … customers how that goes. Oh, and in short order, lets ask the good folks at Ford. Small companies are a risk. As are large ones. Get over it. The real risk is crappy business models coupled with terrible execution and bad or non-existent revenue streams. This comes in many sizes, shapes and locations. Small isn’t bad, if anything it is far better than big. Next time you are meeting with big-name and faceless company, notice how you are there to help them meet their goals (and you are their customer!). Next time you meet with a company like us, note how we are there to figure out how to better help you. All we ask is that you pay on time (Net-30 terms are not a recommendation). But I digress … (yeah, this is a bit of a hot button with me).

On respecting the license. We do. So do most of the companies I know using GPL licensed software. However, and this is important, just because you use/write/contribute some GPL based software, doesn’t mean that all your software is or should be GPL based. We have lost revenue as a result of potential partners and customers abusing the GPL. Remember, respecting the GPL means in part freely sharing the code. Another portion of the GPL is that if you perceive value, you should pay for that value (e.g. charge for support).

I find it disingenuous that we often are asked to provide gratis support for our GPL products by people perfectly happy to acquire the software for free. You see, a large reason why the GPL based products are so popular with business, has nothing whatsoever to do with the “freedom”/libre aspect of the software. It has to do almost entirely with the fact that a) acquisition costs are lower, b) licensing and license compliance costs are lower.

Unfortunately, many in the GPLv2/v3 crowd seem to have forgotten this. You can in theory make as many copies of Redhat EL AS 4 u4 as you wish, install on as many machines as you wish, without violating the licensing terms. Redhat and other distros are betting on you wanting support contracts per machine. This is the only revenue model that GPL allows. Pamela is incorrect in stating that Redhat, IBM, and others are making money off of GPL software. They most decidedly are not. They are making money off the wrap-around services and support.

If you work for a large company making incredible revenues, maybe the loss of sales revenue associated with a particular software product won’t be such a bad thing, you can still get your salary. Also helps if you are an academic, where your pay, your base pay, is not tied to what you sell. If you are a small firm, and you get to pay yourself only when you make enough money to do so, the loss of revenue from not being able to sell something that you are required to give away can be brutal.

GPL, despite what people (who aren’t in business, and have never had to make the hard decisions we make) is not in any way, shape, or form, a business model.

I am well aware of multiple companies taking GPL software, wrapping layers around them, and selling the entire thing as a product. You would have to push them hard to get the software source for what they ship. And they would likely simply ship you the GPL layered source.

What I am saying is that GPLv2 and how people use it has not been, and will not be a pure as the driven snow, as some might like to claim. There has been tap dancing around the intent of the license for a long time, and it is IMO disingenuous to be pissed at Novell for perceived problems without being pissed off at the customers who demand free service for the free (as in beer) software they get, or the people who bundle GPL and non-GPL together in a product and sell it for lots of money.

I have no problem in bashing the misbehavior of SCO and its overlords. They deserve the derision heaped upon them. Novell also deserves derision, not for what PJ indicates, but because they allowed themselves to be played, and to be played in such a way that it causes uncertainty in the market. They got cute, not with the GPL, but by not carefully containing what they and their partner could say. And it shows.

As a result, their new-fangled partner starts spewing FUD. And Novell gets to bear the brunt of this.

This was a bad decision, at the CEO level. He didn’t ask the critical questions, make the critical hard decisions about controlling language and marketing of the deal, and allowed his company to be played, with a corresponding loss of credibility in the market, and significant loss of goodwill on the part of consumers. If I were on his board, I would ask that he start his succession plan, assuming a 6 month maximum transition.

So while I like PJ and her writing, I really appreciate Groklaw, I think she is wrong to bash on the patent side. Microsoft is spreading FUD, true to form. They too need new leadership, but this won’t happen for a decade or two, Mr Balmer is having too much fun.

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