![Preface vn
the case of Internet technology since its reach is so vast that it has
become an extraordinary social phenomenon.
The Internet has also brought about new forms of production
organization. As Castells has observed, though networks might be more
flexible than bureaucratic organizations, they have also proved to be less
efficient than centralized organizations in guaranteeing the coordination
of production. In the past, networks were a privileged form of inter-
personal relationships while organizations were responsible for
production. Today networks have become more efficient thanks to the
flexibility the Internet and new ICT tools offer. They are now able to
manage greater complexity and they can work alongside a centralized
organization in managing production.
What is most interesting about the open source phenomenon is the
possibility it offers to "produce" a product in a way that is completely
new and different from the way production traditionally takes place in a
company. Eric Raymond, in his work The Magic Cauldron, says that
"[t]o many people, the successes of the open-source community seem
like an implausible form of magic. High-quality software materializes
'for free', which is nice while it lasts but hardly seems sustainable in the
real world of competition and scarce resources". Products like the Linux
operating system and Apache web server software have proved these
"many people" wrong.
This completely different way of producing software inevitably leads
to a series of questions and considerations regarding the evolution and
transformation of our way of conceiving work organization, project
organization and even company organization. The Information
Revolution and development of networks have produced phenomena
such as the growing connection between elements which are often
extremely different from one another (computers, people, even smart
objects). This has lead to phenomena which cannot be planned according
to a top-down logic, but, on the contrary, "emerge" from interactions
between elements and therefore "from the bottom". The approach most
suitable for analyzing these phenomena is bottom-up thinking. With the
development of information networks, and Internet in particular, it has
been observed that not all phenomena which are developed can be](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-12-320.jpg)
![History of Open Source 5
most widely used instruments for developing software products and
continues to enjoy a large user community today.
From 1969 to 1974, Ken Thompson and his team of researchers at
Bell Labs Computing Research Department developed the first version
of the Unix operating system. An operating system is "[t]he foundation
software of a computer system, responsible for controlling and launching
the installed applications and computer peripherals."4
Unix was one of
the first products to be developed using the C programming language
and, as a consequence, was the first operating system to be developed
with the aim of being usable regardless of the type of machine/computer
it would be used on.
The source code of Unix was freely distributed during the seventies.
The source code is the series of instructions written in a language that is
easy for programmers to use, e.g. Unix's source code is written in C.
Human-readable source code must then be translated by a compiler or
assembler into the computer-readable object code in order to execute the
instructions. By distributing Unix with the source code, Bell Labs
effectively opened up the development of Unix to a wider community of
researchers and programmers. In 1975, Ken Thompson spent a year as a
visiting professor at the University of California-Berkeley. He took Unix
with him and the University became involved in the development and
debugging of Unix. The Berkeley Software Distribution (BSD)
developed versions of Unix in parallel with Bell Labs versions of Unix.
The first version of BSDUnix was released in 1979. This was covered by
what may be considered one of the first open licenses guaranteeing use,
modification and redistribution of the source code.
A fast, diffused and low-cost means of communication was still
needed to allow researchers in various universities and laboratories to
collaborate on software development projects. In 1973, Vinton Cerf and
Bob Kahn, two researchers working with DARPA (The Defense
Advanced Research Projects Agency of the US Department of Defense)
created the foundations for what would become the Internet: the
communication protocol TCP/IP (Transmission Control Protocol/Internet
Protocol). The new protocol made it possible to connect the different
computers in the network in a faster and more reliable way.](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-24-320.jpg)
![8 Open Source: A Multidisciplinary Approach
protect free access and free use. The aim of licenses is to describe in
detail what can and cannot be done by software programmers and users.
In 1988, the FSF published the first version of the General Public
License (GPL) which introduced the concept of "copyleft". The concept
of copyleft opposes the concept of copyright. Rather than protecting a
product's property rights, copyleft protects the freedom to copy,
distribute, and change a product. As Stallman explained:
The goal of GNU was to give users freedom, not just to be
popular. So we needed to use distribution terms that would
prevent GNU software from being turned into proprietary
software. The method we use is called "copyleft." Copyleft uses
copyright law, but flips it over to serve the opposite of its usual
purpose: instead of a means of privatizing software, it becomes a
means of keeping software free.5
And the preamble to the GPL states:
... [t]he licenses for most software are designed to take away your
freedom to share and change it. By contrast, the GNU General
Public License is intended to guarantee your freedom to share and
change free software~to make sure the software is free for all its
users.
The General Public License had a strong influence on the development
community because it laid down clear rules protecting the freedom of
projects developed by the Free Software Foundation. Furthermore, the
license proved that there was an alternative model for software
development which strongly opposed the commercial view of
companies. A community of voluntary software developers, the so-called
hacker community, grew around the FSF and GPL. However, the GNU
project, which mainly focused on developing a free operating system,
still depended too much on the Unix code. In order to be freed up from
the Unix constraint, a free version of the kernel had to be developed. A
kernel is the heart of an operating system that controls memory, disk,
process and task management.](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-27-320.jpg)
![History of Open Source 9
In 1990, a computer science student at the University of Helsinki,
Linus Torvalds, started to carefully study the Unix operating system.
Torvalds had a general interest in the kernels of operating systems and in
particular in multi-tasking techniques. His choice to study Unix
depended on the fact that DOS (Microsoft), a more accessible and less
expensive operating system, did not implement multi-tasking. At that
time Unix was still relatively expensive and a student could certainly not
afford it. Furthermore, the University of Helsinki could not afford to buy
enough computers using Unix for all its students. Torvalds spent much of
his time waiting for a computer to free up in the University's computer
labs and found this annoying and frustrating. Therefore, he decided to
work on developing his own Unix-like operating system. He had no idea
how he would manage such a big project, but decided to give it a try
anyway. Torvalds did not have the resources, time, tools or skills to
develop an operating system on his own. His inexperience and inability
to realistically evaluate the effort required actually proved to be an
important factor in the starting up and success of the project. Torvalds
himself later said that had he fully understood the efforts required to
carry out the project he never would have started in the first place.
His efforts initially focused on studying Minix, a Unix clone,
developed for didactic purposes by Andrew Tanenbaum at the University
of Amsterdam. Torvalds did not plan on developing the whole kernel. In
fact, much of his work at the beginning focused on developing some
simple task-switching programs, i.e. the multi-tasking that had originally
got him interested in operating systems. Torvalds diffused the news of
his project in an online newsgroup with the following message on
August 25, 1991:
Hello everybody out there using minix - I'm doing a (free)
operating system (just a hobby, won't be big and professional like
GNU) for 386(486) AT clones. This has been brewing since April,
and is starting to get ready. I'd like any feedback on things people
like/dislike in minix, [...] I'd like to know what features most
people would want. Any suggestions are welcome, but I won't
promise I'll implement them.7](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-28-320.jpg)
![16 Open Source: A Multidisciplinary Approach
the company to obtain the consensus and contribution of the best
programmers in the community. Netscape had to move fast. The fact that
Netscape was the first major company to take part in the open source
community was one of the greatest advantages the Mozilla project gave
Netscape.
Netscape wanted to be responsible for managing the Mozilla project
and so, on May 24, 1998, it registered the domain mozilla.org. A series
of support tools for the development community were provided on this
site. Netscape wanted to play an active role in the decision making
process and, therefore, had to create an efficient structure around
Mozilla. At the same time, however, this structure had to be separate
from the rest of the company. Netscape had to make a significant effort
to reach a compromise between influencing the project and allowing the
development community the freedom it needed. At the end of this initial
planning stage, Netscape was finally able to state: "the lizard [Mozilla] is
free".15
Following the foundation of the Open Source Initiative and the
beginning of the Mozilla project, hundreds of open source projects were
started and numerous companies began to directly participate in the
development and diffusion of these projects. For example, in 1999 IBM
announced that it wanted to use the Linux operating system and Apache
web server in its e-business solutions. Other companies followed IBM's
example and began to become directly or indirectly involved in the open
source community. For example, in the same year Sun Microsystems
launched a project to share the development of its own office product,
StarOffice, with the open source community. This lead to the
development of OpenOffice.org, an open source office project and
product. OpenOffice.org is a complete office suite with features
comparable to Microsoft Office features.
The involvement of companies validated open source concepts and
strategies. Companies in the IT industry were forced to start comparing
their own business model to open source software development. Even
Microsoft, regardless of its position on the market, had to begin to
carefully evaluate the open source phenomenon and study strategies to
effectively respond to the threat it posed. In fact, the "Halloween
Documents" already mentioned at the beginning of the chapter, indicated](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-35-320.jpg)
![which I have, in addition to all this, to lay before you; and that you
may hear it the more patiently, it does not concern myself.
“In a word, then,” I continued, “should happier days arrive, I hope
once more to be among you here in Rome. [pg 356]The wealth
which, thanks to your zeal, Licinius, is this day mine, can be of little
use to me in the British valley, to which, for the present, I retire.
Above all, this beautiful villa of which you speak,—why, because for
a time I am unable to occupy it, should the mansion of my fathers
stand empty, when there are others among their descendants, who
lie not under the same necessity of exile? Till I am enabled to
breathe in freedom the air of Italy, I trust Licinius will consent to let
Sextus represent me in my villa. There, too, I hope Sempronius will
permit his daughter to be. It will give pleasure to Athanasia, to think
that those halls contain the dearest of our friends. When we come
back, if ever we do so, they will not grudge to make room for us
beneath the same roof with themselves. Licinius—Sempronius—what
say you?”
They were both silent for a moment; but Sabinus was at hand to
answer for them:—“By all Olympus! I shall knock down any man
henceforth, that in my presence abuses Christianity as a destruction
of men’s hearts. Let it be, good friends, as our Caius says. I know,
Sextus, I have at least your voice upon my side. Let it be so; and,
for heaven’s sake, let it be immediately. A wedding is the very thing
to divert attention from these troubles in both kindreds.”
Our conversation was interrupted by Dromo, who told me that Silo
the jailer had come to see me, and was below in the hall. There I
found the humane man, with his little daughter in his hand, and
walked aside with him into the inner portico of the house. I told him
how the escape, for which his zeal alone was to be thanked, had
been terminated—and to what [pg 357]resolution I had now come;
—and then inquired whether no suspicion had been attached to
himself, in consequence of his absence from the Capitoline. Having
assured me that he had no reason to think so,—“The oath which I](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-56-320.jpg)
![had taken to Trajan,” said he, “prevented me from adopting the
simpler course of setting open for our dear friends the gates of the
Mammertine; and I trust that I did not offend against that oath by
acting as I did, after they had been taken away for the time from my
keeping. But both they and you must be aware of the pain which I
suffered during their confinement, and of the dangers which I have
encountered by their escape. I am resolved no more to be subject to
such struggles. I cannot preserve my faith as a Christian, and my
honour as a servant of Trajan. This very day I resign my charge in
the Mammertine; this very night, if it so please you, I am ready to
accompany you and my dear young lady, in your flight to Britain.”
I need not say with what gladness I heard this proposal. Returning
to my friends, I informed them of what I had just heard, and
perceiving now at last that there was no chance of diverting me from
my project, they entered, like true friends, into serious consultation
respecting the best method of carrying my project into execution.
The aid of Silo, who had already given such proofs both of presence
of mind, and of prudence, and courage, was regarded by them as of
the highest importance. He was shortly summoned to take part in
our deliberation, and it was resolved, that after resigning in a formal
manner the office he held, and transferring his property for the
present into the custody of Licinius, [pg 358]he should forthwith
repair to Ostium, and there hire and put in readiness, for immediate
use, a small vessel, the lightest he could find, in which the fugitive
party might transport themselves at least as far as Corsica. To this
the zealous Silo without hesitation assented. It was agreed that he
should have the mariners on their benches by the coming on of
night, and that he himself should be waiting for us by a certain
ruined tower, which stands conspicuously by the river side, about a
mile and a half above Ostium. We left it to Silo himself, to stock the
bark with any merchandise which he might deem best adapted to
deceive the superintendents of the haven.
Partly from the necessity of making provision of various kinds for this
voyage, but still more in consequence of the law-suit, with the](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-57-320.jpg)
![termination of which you have just been made acquainted, I had no
leisure that day, from which to work out unnecessary pain either for
myself or for others. I had to assist Licinius in looking over an infinity
of deeds, and to superintend the drawing out of others. In the next
place, I had to go to the Forum for the purpose of manumitting
some slaves, (such a largess being naturally expected); and while I
was occupied with this, need I tell you, that my own poor Briton was
not forgotten? Licinius having, at the joint request of Sextus and
myself, accorded that morning to the Cretan also the well-merited
gift of his liberty, Boto and Dromo were seen strutting about the
Forum together for some moments, each arrayed in that worshipful
cap which had formed the most prominent object in their day-
dreams of felicity. I shall not trouble you with need[pg 359]less
particulars. Let it suffice, that the greater part of the day was thus
spent in unavoidable business.
Towards evening, I stole privately from my kinsman’s house, being
willing to avoid a formal farewell, and repaired to Sabinus, who
received me with very lively emotion. What he dwelt upon most
fervently, however, was the probability—the certainty he seemed to
esteem it—that a persecution of this nature could not be long
persisted in by such a prince as Trajan; and the pleasure with which,
that being all at an end, he should see me come back to Rome, and
take due possession of the inheritance of my fathers. After
expatiating most fluently for some minutes on the expected delights
of that day, he paused suddenly, and then added, in a tone of some
little hesitation, “And as for me, I wonder in what state you shall find
me. Rich or poor—married or single—Centurion or Tribune—one
thing is certain, that I shall, in all circumstances, be not a little
rejoiced to see you.”
“You had better marry, my good captain,” said I.
“Marry! me to marry? I have not the least thought of such a thing.
You did not put any faith, did you, in the raillery of those waggish
fellows of yesterday?”](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-58-320.jpg)
![“A little—a very little, Sabinus.”
“Poh! poh! now you are jesting.”
“And much, very much, Sabinus, in the conscious looks of a certain
blushing Centurion, yesterday.”
“Come,” quoth he, “there is more cunning in these British eyes than
I ever should have dreamt of. Fill your cup to the brim, boy, and
since you are to leave us so speedily, I shall have no secrets for you.
I have seen service;—true, but what of that? I have kept a [pg
360]light heart in all my campaigns. But my day, it must be
confessed, begins to wear a little, a very little, towards the evening;
and, Castor! if you allow supper-time to slip over, I don’t know but
you must go to bed with a light stomach. Now or never was the
word, my boy; and the widow is mine own.”
“And Xerophrastes?” said I.
“And as for the most sagacious and venerable Xerophrastes, why, to
tell you the truth, I see nothing for him but that he should allow his
beard to curl as it pleases, drop his long cloak over his ambitious
pair of shanks, forswear moonlight, purchase for himself a dark
lantern instead, and see whether he can’t find, within the four walls
of Rome, an honest Greek, and a constant widow, to make one
blessed wedding withal. That is my advice to the Stoic—Stoic no
longer—but, if there be hoops upon a tub, the most cynical of all
Cynics.”
When it was at last necessary that I should move—“Dear Caius,” said
the Centurion, “you know the Prefect has set a price on their heads,
and I promise you it is such a temptation as no virtue, that keeps
watch beneath any common prætorian breast-plate, could well be
trusted to wrestle with. But hope, and dare. And here, take once
more this helmet, and cloak, and sword, and with them share the
password of the night.”](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-59-320.jpg)
![Sabinus then gave private orders to one of his troop, and walked
with me towards the Esquiline.—But why should I linger over what
little remains of this story? Why pain you with the parting which I
witnessed between my Athanasia and the holy Aurelius, after[pg
361]wards numbered among the martyrs of Christ?—Behold us at
last issued from the Catacombs, and mounted on the trusty horses
which our friend had caused to be waiting at no great distance from
the thicket that clothed their entrance. Behold us arrived without
interruption at the Ostian Gate of Rome.
The soldiers on guard challenged us cheerily as we came up to
them.
“The word, comrades?”
“Titus!” quoth the Centurion.
“Pass on—whom bear you with you, comrades!”
“A Christian—a Christian prisoner,” said I.
“By Jove, that’s worth gold to you, brother,” quoth the guard.
—“Open the gate there;—pass on, friends. I hope I shall have luck
one day myself.”
FINIS.
PRINTED BY WILLIAM BLACKWOOD AND SONS, EDINBURGH.](https://image.slidesharecdn.com/938110-250621041224-4693b8fd/85/Open-Source-A-Multidisciplinary-Approach-Series-On-Technology-Management-Moreno-Muffatto-60-320.jpg)
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- 5. SERIES ON TECHNOLOGY MANAGEMENT - VOL 10 OPEN SOURCE A Multidisciplinary Approach Moreno Muffatto Imperial College Press
- 6. OPEN SOURCE A Multidisciplinary Approach
- 7. Series on Technology Management Series Editor: J. Tidd (Univ. of Sussex, UK) ISSN 0219-9823 Published Vol.1 Engines of Prosperity Templates for the Information Age by G. R. Ungson (Univ. of Oregon, USA) & J. D. Trudel (The Trudel Group, USA) Vol. 2 The Knowledge Enterprise Implementation of Intelligent Business Strategies edited by J. Friso den Hertog (MERIT, Maastricht University and Altuition bv, 's Hertogenbosch, The Netherlands) & E. Huizenga (Altuition bv, 's Hertogenbosch, The Netherlands) Vol. 3 From Knowledge Management to Strategic Competence Measuring Technological, Market and Organisational Innovation (2nd Edition) edited by J. Tidd (Univ. of Sussex, UK) Vol. 4 Japanese Cost Management edited by Y. Monden (Univ. ofTsukuba, Japan) Vol. 5 R&D Strategy on Organisation Managing Technical Change in Dynamic Contexts by V. Chiesa (Univ. degli Studi di Milano, Italy) Vol. 6 Social Interaction and Organisational Change Aston Perspectives on Innovation Networks edited by O. Jones (Aston Univ., UK), S. Conway (Aston Univ., UK) & F. Steward (Aston Univ., UK) Vol. 7 Innovation Management in the Knowledge Economy edited by B. Dankbaar (Univ. ofNijmegen, The Netherlands) Vol. 8 Digital Innovation Innovation Processes in Virtual Clusters and Digital Regions edited by G. Passiante (Univ. ofLecce, Italy), V. Elia (Univ. ofLecce, Italy) & T. Massari (Univ. ofLecce, Italy) Vol. 9 Service Innovation Organisational Responses to Technological Opportunities and Market Imperatives edited by J. Tidd (Univ. of Sussex, UK) & F. M. Hull (Fordham Univ., USA) Vol. 10 Open Source A Multidisciplinary Approach by Moreno Muffatto (University of Padua, Italy)
- 8. SERIES ON TECHNOLOGY MANAGEMENT-VOL 10 OPEN SOURCE A Multidisciphnary Approach Moreno Muffatto University of Padua, Italy [CP Imperial College Press
- 9. Published by Imperial College Press 57 Shelton Street Covent Garden London WC2H 9HE Distributed by World Scientific Publishing Co. Pte. Ltd. 5 Toh Tuck Link, Singapore 596224 USA office: 27 Warren Street, Suite 401-402, Hackensack, NJ 07601 UK office: 57 Shelton Street, Covent Garden, London WC2H 9HE Library of Congress Cataloging-in-Publication Data Muffatto, Moreno. Open source : a multidisciplinary approach / by Moreno Muffatto. p. cm. - (Series on technology management; v. 10) ISBN 1-86094-665-8 Includes bibliographical references. 1. Open source software. I. Title. QA76.76.S46M95 2006 005.3-dc22 2006045782 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. Copyright © 2006 by Imperial College Press All rights reserved. This book, or parts thereof, may not be reproduced in anyform or by any means, electronic or mechanical, including photocopying, recording or any information storage and retrieval system now known or to be invented, without written permission from the Publisher. For photocopying of material in this volume, please pay a copying fee through the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, USA. In this case permission to photocopy is not required from the publisher. Printed in Singapore by World Scientific Printers (S) Pte Ltd
- 10. Preface When I first came across the open source software phenomenon, I had no idea I would find it interesting enough to dedicate significant time and energy to writing a book about it. But I did, and in retrospect it's hard for me to say whether writing this book was more work or pleasure. The final product is a work, but writing it was certainly a pleasure. In some ways I've done what many programmers who voluntarily contribute to the development of open source software do: created something useful with a passion together with others who share the same interest. The open source phenomenon basically started as a protest against proprietary commercial software and yet it is now under the widespread scrutiny of companies and governments. Millions of programmers make up the open source community, and universities, companies and governments around the world have become indirectly and directly involved in the phenomenon. Why has open source software attracted all of this attention? Can it offer a new economically sustainable software development model? What are the social implications of this new model? Can it be exported to fields outside the software industry? There is no doubt that the open source phenomenon has attracted attention because it brings together many of the other phenomenon that affect all of our lives daily: the digital revolution and economics of digital products, the controversies over intellectual property rights, the Internet, new ways of organizing the production of products and services, etc.. These phenomena bring up issues that can be studied from technological, economic, legal and sociological points of view. V
- 11. VI Open Source: A Multidisciplinary Approach Software is a digital product. There are certain characteristics of digital products that make them different from physical goods. Digital products are easy to copy and the results are as perfect as the originals. They are easy to transfer quickly to any part of the world, overcoming national borders, customs, etc. Finally, they can easily be modified to produce a new version of the original. Software is not the only product in the digital revolution. On the contrary, literary and artistic works, once they are put into digital format, take on the characteristics of digital products. The widespread evolution of digital products in many different fields has led to a heated debate on the protection of intellectual property. Copyright and patent law were developed in an era when the products being invented were physical products and the works created were in a physical format. Clearly it becomes difficult to apply these laws in the same way to information goods and digital products. There have been two opposite reactions to this problem. On the one hand, the open source community has exploited copyright law and uses it to protect the freedoms to reproduce, modify and re-use software. On the other hand, commercial software companies are turning more and more to software patents to protect their intellectual property. The open source community is not alone in promoting the philosophy of openness and free access. This philosophy is spreading to other areas of knowledge and human creativity and invention. New forms of intellectual property rights protection are being applied to music, photography, educational materials, etc., as is the case of the creative commons licenses. The basic idea behind this concept of openness is that sharing one's own work on the web not only offers greater opportunities for diffusion but for collaborating with peers on improving the work as well. Internet potentially means the "death of distance", openness, freedom of access and expression, non-exclusiveness, no control, and democracy. Not all of these concepts have proven to hold true and, therefore, continue to be a sort of promise of what the Internet can still become. As the sociologist Manuel Castells has pointed out, the Internet was created in the context of a pre-existing need for being connected and for flexibility. The Internet is above all a tool for social communication. Many technologies are social constructions, but this is especially true in
- 12. Preface vn the case of Internet technology since its reach is so vast that it has become an extraordinary social phenomenon. The Internet has also brought about new forms of production organization. As Castells has observed, though networks might be more flexible than bureaucratic organizations, they have also proved to be less efficient than centralized organizations in guaranteeing the coordination of production. In the past, networks were a privileged form of inter- personal relationships while organizations were responsible for production. Today networks have become more efficient thanks to the flexibility the Internet and new ICT tools offer. They are now able to manage greater complexity and they can work alongside a centralized organization in managing production. What is most interesting about the open source phenomenon is the possibility it offers to "produce" a product in a way that is completely new and different from the way production traditionally takes place in a company. Eric Raymond, in his work The Magic Cauldron, says that "[t]o many people, the successes of the open-source community seem like an implausible form of magic. High-quality software materializes 'for free', which is nice while it lasts but hardly seems sustainable in the real world of competition and scarce resources". Products like the Linux operating system and Apache web server software have proved these "many people" wrong. This completely different way of producing software inevitably leads to a series of questions and considerations regarding the evolution and transformation of our way of conceiving work organization, project organization and even company organization. The Information Revolution and development of networks have produced phenomena such as the growing connection between elements which are often extremely different from one another (computers, people, even smart objects). This has lead to phenomena which cannot be planned according to a top-down logic, but, on the contrary, "emerge" from interactions between elements and therefore "from the bottom". The approach most suitable for analyzing these phenomena is bottom-up thinking. With the development of information networks, and Internet in particular, it has been observed that not all phenomena which are developed can be
- 13. Vlll Open Source: A Multidisciplinary Approach designed and planned. In other words, networks involve social structures which make phenomena, to a certain degree, "emergent". The way programmers in the open source community work may also lead us to re-think how we define work, or at least intellectual work. Their involvement in the open source community is voluntary and they dedicate their free time to doing the "work" of programming. The boundaries between work and pleasure are blurred. Linus Torvalds, the creator of the original Linux kernel, stated: "Linux was a hobby". Or in Raymond's words: "You need to care. You need to play. You need to be willing to explore". We could even go so far as to speak of a new work ethic based on passion, freedom, openness, and the social value of what one does. In many ways, writing this book I too have been influenced by this new ethic. Like programmers in the open source community, writing this book has been a mix of work and play, and a job I have done with a great passion. Finally, again like the programmers, I hope to have made a useful and interesting contribution to the general community. I did not embark on this journey alone. First of all, I must thank Matteo Faldani, co-author of a book in Italian on open source software (Open Source. Strategies, organization, perspectives, II Mulino, Bologna, 2004). Matteo researched many of the more technical aspects of open source software that appear, in an updated version, in this book as well. I would especially like to thank Sarah Guth, an ESL teacher at the University of Padua. She initially became involved in the project when I asked her to help me translate the book. However, she was soon affected by my own passion and enthusiasm. She proved to be a precious companion in this journey, helping me not only translate but better develop concepts that were still not clear in the book. She also helped me carefully check the facts and figures in this book doing her own research. Finally, I must thank many of the students in my courses who over the past two years have contributed to the contents of this book with their suggestions, research and papers. I never could have completed the book without the precious help of these people. Nonetheless, I assume all responsibility for the contents in the book. The open source phenomenon is still quite young and is changing and evolving at a very fast speed. Therefore, there is no way around the fact
- 14. Preface IX that some of the information in this book will become quickly outdated. Nonetheless, I hope that readers find the book useful and a stimulus for further research on this, what I consider to be, extremely interesting phenomenon. Moreno Muffatto University of Padua
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- 16. Contents Preface v Chapter 1 History of Open Source 1 1.1 Introduction 1 1.2 The Age of Pioneers 4 1.3 The Beginnings of the Open Source Movement 6 1.4 Diffusion 11 1.5 Institutionalization 13 1.6 Recent Developments 18 Chapter 2 Software and Intellectual Property Rights 23 2.1 What is Software? 24 2.2 Why Do Intellectual Property Rights Exist? 26 2.3 Types of IPR and How They are Applied to Software 28 2.4 Categories of Software 34 2.5 Copyright and Open Source Software Licenses 39 2.6 Open Source Software and Patents 45 Chapter 3 The Organization of the Open Source Community 49 3.1 "Who" is the Open Source Community? 50 3.2 Demographics 56 3.3 The Motivating Factors of Individuals and Organizations 57 xi
- 17. xii Open Source: A Multidisciplinary Approach 3.3.1 Motivations for individuals 58 3.3.2 Motivations for organizations 62 3.3.3 Motivations for society 63 3.4 Organization of the Open Source Community 64 Chapter 4 Software Development Models 71 4.1 The Software Development Process 72 4.2 Software Development Process Models 73 4.2.1 The Build and Fix Model 73 4.2.2 The Waterfall Model 74 4.2.3 The Iterative Development Model 76 4.2.4 The Evolutionary Model 77 4.2.5 The Prototyping Model 78 4.2.6 The Spiral Model 79 4.3 Classification and Comparison of the Models 80 4.4 The Microsoft Model: Synch and Stabilize 83 4.5 Comparison between Synch and Stabilize and the Open Source Software Development Process 86 Chapter 5 Open Source Products and Software Quality 91 5.1 Open Source Software Projects 91 5.2 Open Source Software Products 95 5.3 Evaluating the Quality of Software 99 5.4 Evaluating Software Quality: the Capability Maturity Model 101 5.5 Evaluating Open Source Products 105 Chapter 6 Strategies and Business Models Ill 6.1 Evolution ofthelCT Industry 112 6.2 Increasing Returns and the Diffusion of Open Source Products 118
- 18. Contents xiii 6.3 Company Strategy Towards Open Source Software 121 6.4 Can Open Source Software Lead to New Business Models? 125 Chapter 7 Government Policies Towards Open Source Software 133 7.1 Factors in Favour of Governments Adopting Open Source Software 133 7.2 Limiting Factors for the Adoption of Open Source Software 137 7.3 What Role Should Governments Play in Supporting and/or Adopting Open Source Software? 140 7.4 Government Policies Toward Open Source Software in Various Countries 143 7.4.1 European countries 144 7.4.2 Asian countries 153 7.4.3 American countries 157 Chapter 8 New Trends in Work Organization 163 8.1 Work Organization: The Open Source Community versus Commercial Companies 163 8.2 Changes in Organizational Models 167 8.3 Changes in the Way People Work 173 8.3.1 Time and place 174 8.3.2 Work autonomy 176 8.3.3 Creativity, passion and quality of work 178 8.3.4 Work ethic 181 8.4 Towards New Organizational Models 182 8.5 Impact on Social Capital 186 Chapter 9 Open Source as a Complex Adaptive System 189 9.1 Complexity and Complex Systems 189
- 19. xiv Open Source: A Multidisciplinary Approach 9.2 What are Complex Adaptive Systems? 192 9.3 The Key Processes in Complex Adaptive Systems 193 9.3.1 Variation 194 9.3.2 Interaction 195 9.3.3 Selection 197 9.4 Open Source as a Complex Adaptive System 199 Chapter 10 Developments 207 10.1 Extension of the Concept of Openness 208 10.1.1 Peer-to-peer production 208 10.1.2 Open content 209 10.1.3 Knowledge organization 211 10.1.4 Knowledge diffusion 211 10.1.5 Peer collection 213 10.1.6 Peer accreditation 215 10.1.7 Peer production 217 10.2 Copyleft Applied to Non-Software Products 219 10.2.1 Creative Commons 221 10.2.2 Public Library of Science (PloS) 224 10.2.3 Other projects 225 10.3 Conclusions and Open Questions 227 References 231
- 20. Chapter 1 History of Open Source 1.1 Introduction Open source software (OSS) is not a new concept. Although the term open source was coined just a few years ago, the concepts behind this particular way of developing software have existed since a long time. One of the pioneers in this field, Richard Stallman, remembers how software was developed several decades ago with these words: When I started working at the MIT Artificial Intelligence Lab in 1971, I became part of a software-sharing community that had existed for many years. Sharing of software was not limited to our particular community; it is as old as computers, just as sharing of recipes is as old as cooking. But we did it more than most. This was not only the case at universities. In the 1960s, IBM and others sold their first large-scale commercial computers with free software. "Free" meant that the source code was free and available and, therefore, the software could be improved and modified. In other words, hardware was the product being sold, not software. By the mid-1970s this began to change. Software became a commercial proprietary product that could not be redistributed or modified. As a result of this change software could no longer be freely shared by programmers as it had been in previous times. Stallman was not happy with this evolution and wanted to take software development back to its former status by creating a new 1
- 21. 2 Open Source: A Multidisciplinary Approach software sharing community. For this reason he left MIT. Several years later, he explained his choice to leave his post at MIT: In January 1984 I quit my job at MIT and began writing GNU software. Leaving MIT was necessary so that MIT would not be able to interfere with distributing GNU as free software. If I had remained on the staff, MIT could have claimed to own the work, and could have imposed their own distribution terms, or even turned the work into a proprietary software package. I had no intention of doing a large amount of work only to see it become useless for its intended purpose: creating a new software-sharing community.' Stallman would probably have just been a visionary had others not latched on to his ideas obtaining unexpected results. This was the case, for example, of Linus Torvalds and his creation Linux. Torvalds himself was surprised by the success of Linux: Linux today has millions of users, thousands of developers, and a growing market. It is used in embedded systems; it is used to control robotic devices; it has flown on the space shuttle. I'd like to say that I knew this would happen, that it's all part of the plan for world domination. But honestly this has all taken me a bit by surprise. I was much more aware of the transition from one Linux user to one hundred Linux users than the transition from one hundred to one million users.2 What is even more noteworthy is that software developers and hackers were not the only ones interested in this new phenomenon. So-called free software also caught the attention of companies and institutions. The most surprising reaction was the fact that Microsoft saw free software, or what came to be defined as open source software, as a threat to its own business. In 1998, Microsoft carried out a careful study of open source software that was reported in a series of originally confidential documents that the open source community baptized the "Halloween Documents". In these documents Microsoft concluded the following:
- 22. History of Open Source 3 In recent years, corresponding to the growth of Internet, OSS projects have acquired the depth & complexity traditionally associated with commercial projects such as Operating Systems and mission critical servers. Consequently, OSS poses a direct, short-term revenue and platform threat to Microsoft - particularly in the server space. Additionally, the intrinsic parallelism and free idea exchange in OSS has benefits that are not replicable with our current licensing model and therefore present a long term developer mindshare threat. The Linux OS is the highest visibility product of the Open Source Software process. Linux represents a best-of-breed UNIX, that is trusted in mission critical applications, and - due to it's open source code - has a long term credibility which exceeds many other competitive OS's. Linux poses a significant near-term revenue threat to Windows NT Server in the commodity file, print and network services businesses.3 These documents made it clear that by 1998 the open source community had become more than just a large community of hackers developing software, but rather was beginning to pose a threat to one of the most important software company in the world. Our journey into the world of open source software will begin with the history of the open source phenomenon. In this chapter we will take a look at the main historical events that mark steps in the development of the community and its products. The history of OSS can be divided into four main stages: the age of the pioneers, the beginnings of the open source movement, the diffusion stage and the institutionalization stage. Specific events define and characterize each stage and show how the attention given to this type of software and the importance it took on grew in each stage. As I write this book, on the one hand OSS is becoming more and more diffused and on the other hand it is under the attack of lawsuits. Companies that use or support OSS are being brought to courts by those who want to defend the ways of developing and distributing proprietary software. The aim of these court cases is to reduce the momentum OSS has achieved in recent years.
- 23. 4 Open Source: A Multidisciplinary Approach 1.2 The Age of Pioneers In the sixties and seventies the knowledge and tools regarding information technologies and software development belonged to a small community of researchers. Software was developed at universities in close contact with the research laboratories of a few large companies. The software that was developed was distributed freely without any limitations, respecting academic traditions of sharing knowledge. In other words, software was considered, as was scientific research, to be a public good. Free access to research results was an essential characteristic of software that could not be renounced. These researchers were able to collaborate thanks to a very important tool: Arpanet, the antecedent to Internet. This network linked the various communities developing software and facilitated the sharing of programs and knowledge. Sharing and exchange were what kept technological innovation in motion. New software and hardware were developed at a very fast speed. However, fast development and the lack of any form of standardization meant that software products and computers were often incompatible. However, since these new software products needed to be tried out and used in very different operational settings, researchers had to deal with the boring and tiresome task of translating large amounts of software. Manual translation was the only way to achieve the best possible compatibility with each single system. In order to avoid wasting time translating, specific projects were undertaken to develop software that could be compatible with other software or hardware. The laboratories at Bell (AT&T) developed some software products that could easily be used on different hardware platforms. The efforts to develop products that were universal and independent of the system being used involved developing programming languages as well. Programming languages are the basic tool used to write the codes that computers must interpret to execute any given task. In 1972, Dennis Ritchie developed a programming language called "C". C was a multi- platform language, or, in other words, it could be used regardless of the specific hardware or software. This language quickly became one of the
- 24. History of Open Source 5 most widely used instruments for developing software products and continues to enjoy a large user community today. From 1969 to 1974, Ken Thompson and his team of researchers at Bell Labs Computing Research Department developed the first version of the Unix operating system. An operating system is "[t]he foundation software of a computer system, responsible for controlling and launching the installed applications and computer peripherals."4 Unix was one of the first products to be developed using the C programming language and, as a consequence, was the first operating system to be developed with the aim of being usable regardless of the type of machine/computer it would be used on. The source code of Unix was freely distributed during the seventies. The source code is the series of instructions written in a language that is easy for programmers to use, e.g. Unix's source code is written in C. Human-readable source code must then be translated by a compiler or assembler into the computer-readable object code in order to execute the instructions. By distributing Unix with the source code, Bell Labs effectively opened up the development of Unix to a wider community of researchers and programmers. In 1975, Ken Thompson spent a year as a visiting professor at the University of California-Berkeley. He took Unix with him and the University became involved in the development and debugging of Unix. The Berkeley Software Distribution (BSD) developed versions of Unix in parallel with Bell Labs versions of Unix. The first version of BSDUnix was released in 1979. This was covered by what may be considered one of the first open licenses guaranteeing use, modification and redistribution of the source code. A fast, diffused and low-cost means of communication was still needed to allow researchers in various universities and laboratories to collaborate on software development projects. In 1973, Vinton Cerf and Bob Kahn, two researchers working with DARPA (The Defense Advanced Research Projects Agency of the US Department of Defense) created the foundations for what would become the Internet: the communication protocol TCP/IP (Transmission Control Protocol/Internet Protocol). The new protocol made it possible to connect the different computers in the network in a faster and more reliable way.
- 25. 6 Open Source: A Multidisciplinary Approach In 1979, Eric Allman, a student at the University of California Berkeley, developed Sendmail, a program for sending electronic mail over the Arpanet network. This program, which was free of any intellectual property constraints, quickly became the defacto standard for Arpanet and is still widely used for the Internet network. Up to this point in our story, software was still considered to be a mere support tool for hardware, or, in other words, a tool needed to use and, above all, spread the use of computers. Therefore, only hardware had a commercial value whereas software was basically a freely distributed knowledge product. In the late 1970s, Unix was the only portable, machine-independent, affordable operating system. AT&T began to recognize the commercial value of this software product. In 1984, a provision of the Antitrust Division of the US Department of Justice forced AT&T to separate its software products from other products. AT&T decided to focus on producing, distributing and selling Unix as a commercial product. From this point on Unix became protected by property rights and was no longer available for free to development communities outside the company. Not even the academic research departments that had participated in the development of the Unix operating system were able to easily obtain new versions of the product. In the early to mid eighties, the widespread diffusion of personal computers eventually lead to the transformation of software for personal computers from free products into commercial products. Since PC users usually did not have programming skills and depended on software to use computers, they were willing to pay for software, giving it a commercial value. 1.3 The Beginnings of the Open Source Movement The most significant consequence of the birth of a market for software proved to be the migration of the best programmers from academic research centres to the R&D laboratories of private companies. For example, at the beginning of the eighties, the company Symbolics hired almost all of MIT's Artificial Intelligence Lab's programmers. This
- 26. History of Open Source 7 move marked the growth of a software market characterized by the protection of intellectual property. The researchers who stayed on at universities had to negotiate these property rights with companies in order to obtain executable copies of some important products. Many researchers who had, up to then, directly contributed to developing these products felt frustrated by these changes. Furthermore, commercializing software meant that it couldn't be freely distributed and for academic researchers this was considered to be an obstacle to scientific research and innovation. For there to be a free exchange of information and cooperation, there had to be free access to source codes. In academic development communities the fundamental values of freedom and collaboration had not changed. Companies, on the other hand, considered any form of software sharing to be on the same level as pirating software. Outsiders were not allowed to make any changes to software protected by copyright even if the change might actually have improved the product. Frustration with the destruction of the academic development community lead Richard Stallman, then a researcher at MIT, to try to rebuild the community. Stallman wanted to change the socio-economic and legal system that was limiting software sharing. Therefore, his first aim was to oppose the software industry and the rules it applied to defend intellectual property. To do this, in 1984 Stallman started the GNU project ("GNU's not Unix") to develop a free-access operating system based on Unix with applications and development tools as well. To support the GNU project, the Free Software Foundation (FSF) was founded in 1985. The main aim of the FSF was to redevelop a series of products based on the concept of free software. For the FSF, the word "free" meant "freedom", i.e. the possibility to use programs, modify source codes and then distribute the modified versions. The word "free" did not, therefore, mean "free of charge" but rather "free access". Stallman himself clearly explained this concept: "The term free software has nothing to do with price. It is about freedom". In other words, the aim of the FSF was to protect free software from being appropriated by others and used for commercial ends. The first problem that the Free Software Foundation had to face was that, at the time, there were no software licenses that could actually
- 27. 8 Open Source: A Multidisciplinary Approach protect free access and free use. The aim of licenses is to describe in detail what can and cannot be done by software programmers and users. In 1988, the FSF published the first version of the General Public License (GPL) which introduced the concept of "copyleft". The concept of copyleft opposes the concept of copyright. Rather than protecting a product's property rights, copyleft protects the freedom to copy, distribute, and change a product. As Stallman explained: The goal of GNU was to give users freedom, not just to be popular. So we needed to use distribution terms that would prevent GNU software from being turned into proprietary software. The method we use is called "copyleft." Copyleft uses copyright law, but flips it over to serve the opposite of its usual purpose: instead of a means of privatizing software, it becomes a means of keeping software free.5 And the preamble to the GPL states: ... [t]he licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software~to make sure the software is free for all its users. The General Public License had a strong influence on the development community because it laid down clear rules protecting the freedom of projects developed by the Free Software Foundation. Furthermore, the license proved that there was an alternative model for software development which strongly opposed the commercial view of companies. A community of voluntary software developers, the so-called hacker community, grew around the FSF and GPL. However, the GNU project, which mainly focused on developing a free operating system, still depended too much on the Unix code. In order to be freed up from the Unix constraint, a free version of the kernel had to be developed. A kernel is the heart of an operating system that controls memory, disk, process and task management.
- 28. History of Open Source 9 In 1990, a computer science student at the University of Helsinki, Linus Torvalds, started to carefully study the Unix operating system. Torvalds had a general interest in the kernels of operating systems and in particular in multi-tasking techniques. His choice to study Unix depended on the fact that DOS (Microsoft), a more accessible and less expensive operating system, did not implement multi-tasking. At that time Unix was still relatively expensive and a student could certainly not afford it. Furthermore, the University of Helsinki could not afford to buy enough computers using Unix for all its students. Torvalds spent much of his time waiting for a computer to free up in the University's computer labs and found this annoying and frustrating. Therefore, he decided to work on developing his own Unix-like operating system. He had no idea how he would manage such a big project, but decided to give it a try anyway. Torvalds did not have the resources, time, tools or skills to develop an operating system on his own. His inexperience and inability to realistically evaluate the effort required actually proved to be an important factor in the starting up and success of the project. Torvalds himself later said that had he fully understood the efforts required to carry out the project he never would have started in the first place. His efforts initially focused on studying Minix, a Unix clone, developed for didactic purposes by Andrew Tanenbaum at the University of Amsterdam. Torvalds did not plan on developing the whole kernel. In fact, much of his work at the beginning focused on developing some simple task-switching programs, i.e. the multi-tasking that had originally got him interested in operating systems. Torvalds diffused the news of his project in an online newsgroup with the following message on August 25, 1991: Hello everybody out there using minix - I'm doing a (free) operating system (just a hobby, won't be big and professional like GNU) for 386(486) AT clones. This has been brewing since April, and is starting to get ready. I'd like any feedback on things people like/dislike in minix, [...] I'd like to know what features most people would want. Any suggestions are welcome, but I won't promise I'll implement them.7
- 29. 10 Open Source: A Multidisciplinary Approach Within the following month, Torvalds managed to develop a stable version of his product, which he decided to call Linux (Linus+Unix). This first version of the kernel included a simple and primitive file system but it was still incomplete. Once again, he called on the on-line community for its indispensable collaboration in helping the project evolve into a more complete form. To get help from this virtual community, Torvalds posted another message about his project on October 5, 1991, explicitly asking for help in developing his kernel. The announcement by Linus Torvalds was accompanied by this message: I'm working on a free version of a Minix look-alike for AT-386 computers. It has finally reached the stage where it's even usable (though it may not be, depending on what you want), and I am willing to put out the sources for wider distribution.... This is a program for hackers by a hacker. I've enjoyed doing it, and somebody might enjoy looking at it and even modifying it for their own needs. It is still small enough to understand, use and modify, and I'm looking forward to any comments you might have. I'm also interested in hearing from anybody who has written any of the utilities/library functions for minix. If your efforts are freely distributable (under copyright or even public domain) I'd like to hear from you so I can add them to the system.8 The response to Torvalds's message was immediate and extraordinary. A large community began to develop around the Linux project. By this time, the internet was becoming more and more diffused making the development and expansion of an online community of software developers possible. The increase in the size of the community automatically lead to an increase in productive capacity both in terms of number of projects that could be developed and the quality of the products. Collaboration between the Linux community and the Free Software Foundation lead to the development of GNU-Linux, a complete non- commercial operating system. GNU-Linux would prove to be one of the most extraordinary results created by a community of voluntary software developers.9
- 30. History of Open Source II The work carried out by the community made it possible for Torvalds to release the first official version of the Linux operating system in 1994. During the first few years of development, the growth of the operating system was exponential; the code lines that made up Linus went from the 10,000 developed by Torvalds to 1.5 million lines in 1998. This project, which had been started to satisfy the curiosity of one single person, had managed to involve 12 million users and 120 different countries. Today Linux is one of the few free products in direct competition with an already established proprietary product, Microsoft's Windows operating system, that has managed to widen its own market share. 1.4 Diffusion Following the rapid development of the GNU-Linux system, some companies began to get involved in the project by using it and/or contributing to its development. In 1994, Bob Young and Mark Ewing founded Red Hat with the aim of improving some of the main drawbacks to Linux, namely to create a more user-friendly interface and increase the number of application programs that could be used with this new operating system.10 Red Hat provides technical assistance, documentation and training and develops more user-friendly configurations to distribute Linux to non-expert users. Red Hat is one of the most important companies involved in the development of software products in a copyleft context. Red Hat is a so- called pure player, i.e. a company whose business model is completely focused on deploying a copyleft product and related services. Only a fraction of the company's profits come from the direct sale of software packages and the value of these packages does not depend on the cost of the individual products but rather the cost of integrating the products and packaging them. The result is that the products Red Hat deploys are much cheaper than other software packages built around proprietary software products. At the same time, anyone can copy and distribute Red Hat products for free since they are protected by copyleft. Red Hat follows the evolution of the Linux operating system very closely. Every time Torvalds and his collaborators distribute a new
- 31. 12 Open Source: A Multidisciplinary Approach version of the kernel, Young and Ewing take advantage of the new release to build a more complete and operational software package based on it. Red Hat's aim is to complete the Linux platform by adding and integrating the necessary tools and most useful application programs. These additions are made in order to make the operating system actually usable for a non-expert clientele and, as a consequence, to promote the mass diffusion of Linux. By 1999, Red Hat had proved so successful that in one of the US Justice Department's various antitrust cases against Microsoft, the software giant used Red Hat's Linux system as proof that it did not have a monopoly on the operating system market. Microsoft basically involuntarily publicized and legitimized Linux and Red Hat. Red Hat then decided to widen its market by going abroad, first to Europe and then to Asia. It now occupies a significant share of the Chinese market. In 2001, Red Hat proposed a solution to one of the numerous antitrust cases by the US Justice Department against Microsoft. The solution was that the government allow Red Hat to provide the Linux operating system, office application programs and many other products for free to all American schools, private and public. In exchange, Microsoft would have to provide the necessary computers. The aim of this proposal was not to save Microsoft from being found guilty, but rather to deploy non- proprietary products in every school district in the United States. Obviously Microsoft's managers understood Red Hat's real intentions and did not accept the offer. In fact, the proposal was an attempt to open school districts to non-proprietary software and by accepting the proposal Microsoft would have risked losing its control over the market. In other words, had Microsoft accepted this solution, students and, therefore, future generations of computer users would have grown up knowing how to use non-proprietary products rather than Microsoft products. Bill Gates and the managers at Microsoft decided to face the antitrust case and the possible consequences it might have considering even a heavy fine to be the lesser of the two evils. In reality, the use of non-proprietary products and Red Hat Linux in particular is already widespread in many universities. North Carolina State University was the first in a series of universities to make an agreement with Red Hat for the supply of products to its Engineering
- 32. History of Open Source 13 Departments. Red Hat's aim is to deploy these products in all schools in order to free educational institutions from the influence of proprietary products and standards. The idea is, therefore, to establish the Linux operating system, and in general non-proprietary software, as alternative standards. As the Linux project grew, so did another project for a free product: the web server software Apache. In 1994, a group of programmers in the California Bay Area formed the Apache Group to develop a free, reliable web server. By December 1995 the group had developed and was able to release Apache 1.0. Apache had immediate success and quickly became the most popular HTTP server on the Internet. In 1999, the members of the Apache Group formed the Apache Software Foundation (ASF) to provide organizational, legal and financial support for the Apache web server. ' 1.5 Institutionalization During the mid-nineties, members of the various free software development communities began to feel the need to overcome the misunderstandings the word "free" was causing among many users. A group of programmers, many of whom had built up their reputations within the Free Software Foundation, began to work together to try and find a strategy to make the concept of free software more appealing to companies. The aim of this initiative was to avoid the widespread association of the word "free" with the meaning "free of charge". The Free Software Foundation had tried to disassociate itself from this interpretation by using the motto "free speech, not free beer". The Free Software Foundation's mission was to promote the freedom of information and research, not to destroy the commercial value of software. This misinterpretation of the word "free" was the weak point of the free software philosophy and kept many software companies from becoming involved in the community. In order to change this, companies had to believe that involvement in the free software development company had something to offer them as well.
- 33. 14 Open Source: A Multidisciplinary Approach In 1997, at a Linux Congress, Eric S. Raymond presented a paper called "The Cathedral and The Bazaar". This paper compared the commercial software development model (the cathedral) to the new development model based on a community of dispersed software developers and on the free distribution of codes (the bazaar). Raymond proposed the use of the term "open source" as the best alternative to "free". This paper marked the beginning of the study of voluntary development communities, their behaviours and the economic sustainability of this model. 1998 was a very important year in the history of the open source community and open source software. The "open source" label was decided on during a strategy session in February 1998 that included several members of the Linux community and Raymond himself. In the same month Bruce Perence and Eric Raymond founded the Open Source Initiative (OSI)12 with the main aim of creating a document that would precisely define open source software (The Open Source Definition).13 In April of the same year, the OSI officially approved the term "open source" to indicate the accessibility, efficiency, reliability, flexibility and innovation that would characterize open source software. The new definition managed to make free software much more appealing to companies even if the Free Software Foundation and the Open Source Initiative did not have the same philosophy and did not agree on the methods of software development. Regardless of these differences, however, the majority of open source projects were originally supported by and developed in collaboration with the Free Software Foundation. On January 23, 1998, an announcement was made that surprised everyone in the IT world: Netscape intended to make the source code of its browser Navigator public, i.e. to share it with the open source development community.14 Netscape Navigator was quickly losing market share to its main competitor Microsoft Explorer. Consequently, Netscape made the difficult decision to open Navigator's source code and started a project called Mozilla. The announcement created a lot of interest within the open source community and especially among the main supporters of the Open Source Initiative and the Free Software Foundation.
- 34. History of Open Source 15 Netscape's group of managers had to face a series of very challenging problems. First of all, the property of some parts of Navigator were shared with other companies. Therefore, Netscape had to communicate its change in strategy and, if possible, convince the partner companies to support the Mozilla project. Netscape set a deadline, February 24, 1998, by which each partner had to communicate its decision. They could choose to participate in the Mozilla project or leave it. Since some companies backed out, Netscape had to eliminate some code. Another problem Netscape had to deal with was what license to choose to best respect the aims of the project. Mozilla needed a license that would motivate the community of volunteers to contribute to the project and at the same time protect the economic interests of Netscape. None of the licenses that existed at that time, including the open source licenses, met these requirements. Therefore, on March 5, 1998, Netscape proposed a new license created by the company itself. The license, called the Netscape Public License (NPL), was immediately presented to the open source community for feedback. Unfortunately, the reaction of the community was very negative. The community did not like the presence of some norms that reserved Netscape some special rights. One of these was the possibility Netscape would have to not share with the community some of the parts of the new code developed as a part of the Mozilla project. Netscape, believing the support of the entire open source community to be indispensable to the success of Mozilla, tried to remedy the situation. The license was reviewed and modified and on March 21, 1998 Netscape proposed a second license called the Mozilla Public License (MPL). This license was different from the NPL in that it did not reserve Netscape any particular privileges. The community accepted the MPL. This new license convinced the open source community that the Mozilla project was serious and credible. The official presentation of the project was quite unique. The location had to attract the curiosity of the community of developers, which is notoriously made up of anti-conformist and eccentric hackers. A party, open to all, to celebrate the project was held on April 1, 1998 in one of the biggest nightclubs in San Francisco. Netscape wanted the substantial and credible involvement of the open source community. The success of the Mozilla project was considered to be directly related to the ability of
- 35. 16 Open Source: A Multidisciplinary Approach the company to obtain the consensus and contribution of the best programmers in the community. Netscape had to move fast. The fact that Netscape was the first major company to take part in the open source community was one of the greatest advantages the Mozilla project gave Netscape. Netscape wanted to be responsible for managing the Mozilla project and so, on May 24, 1998, it registered the domain mozilla.org. A series of support tools for the development community were provided on this site. Netscape wanted to play an active role in the decision making process and, therefore, had to create an efficient structure around Mozilla. At the same time, however, this structure had to be separate from the rest of the company. Netscape had to make a significant effort to reach a compromise between influencing the project and allowing the development community the freedom it needed. At the end of this initial planning stage, Netscape was finally able to state: "the lizard [Mozilla] is free".15 Following the foundation of the Open Source Initiative and the beginning of the Mozilla project, hundreds of open source projects were started and numerous companies began to directly participate in the development and diffusion of these projects. For example, in 1999 IBM announced that it wanted to use the Linux operating system and Apache web server in its e-business solutions. Other companies followed IBM's example and began to become directly or indirectly involved in the open source community. For example, in the same year Sun Microsystems launched a project to share the development of its own office product, StarOffice, with the open source community. This lead to the development of OpenOffice.org, an open source office project and product. OpenOffice.org is a complete office suite with features comparable to Microsoft Office features. The involvement of companies validated open source concepts and strategies. Companies in the IT industry were forced to start comparing their own business model to open source software development. Even Microsoft, regardless of its position on the market, had to begin to carefully evaluate the open source phenomenon and study strategies to effectively respond to the threat it posed. In fact, the "Halloween Documents" already mentioned at the beginning of the chapter, indicated
- 36. History of Open Source 17 that Microsoft considered Linux to be a real threat to its own business model. Microsoft eventually announced its intention to release part of the source code of some of its proprietary software products exclusively to some governments and institutions. Table 1.1 shows the main events that played a role in the creation and evolution of open source software. Table 1.1 - Significant historical events in the development of the open source software. 1968 1969 1972 1973 1979 1984 1985 1991 1994 1995 1998 2000 2003 2004 Arpanet First version of Unix "C" language TCP/IP Sendmail AT&T starts selling Unix BSD first version GNU project is launched Free Software Foundation is launched Linux Project is launched Red Hat is founded Apache Software Foundation is launched Open Source Initiative is founded Mozilla Project is launched Linux included in IBM products Sun launches Open Office Microsoft first announcement of limited access opening of parts of Windows EU-IDA publishes Open Source Software guidelines for Governments The city of Munich announces Open Source Software adoption French Government announces large scale migration to Open Source Software (ADELE) Thanks to the open source movement, the development model that had been developed within the context of the Free Software Foundation found new outlets. The way the Open Source Initiative interpreted this
- 37. 18 Open Source: A Multidisciplinary Approach model made it possible to involve companies in open source projects, favouring the diffusion of open source products on the market. This stage in the evolution of open source software saw the creation of an efficient network of companies involved in offering support services for open source products and products complementary to open source software. Furthermore, some governments and public administrations began to show interest in the community and its products. Some governments are currently considering the possibility of using open source software in place of proprietary software to manage public information. Governments manage large quantities of information, deal with the public and have legislative power. All of these factors make the idea of government involvement in the open source community very appealing to programmers 1.6 Recent Developments The open source phenomenon has led to the creation of free, open software products that can compete with proprietary products on the market. It has also introduced a new way of developing software. However, the success of both open source products and the open source model have made the open source community the object of many legal attacks. The aim of these attacks is to limit the diffusion of open source software. On March 7, 2003 the SCO Group filed a $1 billion lawsuit in the US against IBM. It warned 1500 IBM clients that the software they were using was illegal. SCO claimed that the Linux operating system sold by IBM included Unix code that was protected by copyright. In June 2003 the amount was increased to $3 billion and then to $5 billion. IBM reacted to the lawsuit with counter-claims against SCO. This, in turn, caught the attention of many companies that were using open source code such as Red Hat. On August 4, 2003 Red Hat started legal action against SCO claiming that some of the statements made by SCO indicated that anyone using a version of Linux that was not covered by a SCO UNIX license was violating copyright. Red Hat then created the Open Source Now Fund to financially support any legal expenses
- 38. History of Open Source 19 programmers and non-profit institutions that use the GPL might incur. On September 24, 2003, Hewlett-Packard (HP) also decided to create its own fund to guarantee continued use of its products to future users. Sun Microsystems guaranteed users of its products legal protection as well. On January 13, 2004, Novell followed suit. Novell's involvement was important because this company holds the copyright on Unix. The Unix system created by AT&T was sold to Novell, which then conceded some copyright to other companies, including SCO. Novell claims that there are no parts of the Unix code in Linux, and even if there were, since Novell holds the copyright, it would give its clients permission to use Linux. Novell's decision to side with Linux could lead other companies to do the same. Following many warnings, on March 4, 2004, SCO filed lawsuits against two corporate users of Linux: AutoZone, the largest American retailer of automotive parts and accessories, and DaimlerChrysler, the automobile and truck manufacturer. On July 19, 2004, Newsforge published a article reporting an HP memo that forecasts Microsoft waging a war on free software by using software patent infringements as its weapon. The memo stated: "Microsoft is going to use the legal system to shut down open-source software".16 According to the article, Microsoft could attack not only Linux distributors but open source programmers as well. Microsoft has been spending an increasing amount of money on filing patents for even the most elemental computing components in its software products. Furthermore, Marshall Phelps, hired by Microsoft to help develop its intellectual property strategy, "...is on record as saying that Microsoft intends to spend $7bn annually on IP issues." One proposal that has been made to help avoid these legal problems in the future is that from a certain moment on only code whose origin is verified by a certificate of origin will be included in the Linux kernel. The aim is to be able to more easily and precisely retrace the names of the authors of every single part of the code that makes up the heart of Linux. Using a Developer's Certificate of Origin (DCO), every developer has to "sign" every contribution he/she makes. In addition, developers have to certify one of the following three points: • the contribution is either completely original,
- 39. 20 Open Source: A Multidisciplinary Approach • the contribution is based upon a previous work that is nonetheless covered under an open source license, • the contribution comes from someone else who has certified one of the previous two points and has not been modified from its original form. In another attempt to help avoid future legal actions by SCO or others, Pamela Jones, creator of pro-open source information site Groklaw.net, has started a project to clarify what the origins of Unix are. In her letter presenting the project on February 4, 2004, Jones states: I want to do a systematic, comprehensive, and carefully documented history timeline relating to Unix and the Linux kernel, based, with his kind permission, on Eric Levenez's Unix History timeline chart, but from the perspective of tracing the code by copyright, patents, trade secret, and trademark. The idea is that the final timeline will be a publicly-available resource, released under a Creative Commons license, that will assist the community in defending against - or better yet in deterring - future lawsuits against GNU/Linux code. On April 19, 2004 there was actually the first court ruling in favour of open source software. A three-judge panel in a Munich court ordered a preliminary injunction against the company Sitecom for violating GNU GPL. Sitecom was an open-source networking software distributed without attaching the GPL text and the source code. This ruling by a German court, which recognizes the legal validity of the GPL, could set a precedent in the history of this license. In the past, Microsoft has often questioned the legal validity GPL and, more recently, SCO has claimed that in its case against IBM it will show the weaknesses of this license. Although there are ambiguities in the license that will most likely be fought over, this case gives the community of GPL users hope for the future. Open source software is particularly vulnerable to the sorts of attacks SCO has made. SCO, and anyone else for that matter, can see the source code of open source products such as Linux whereas the open source community does not have access to the code of proprietary software.
- 40. History of Open Source 21 This puts the open source community at a disadvantage. At the heart of all these legal cases is the issue of the relationships between intellectual property rights and software. To better understand these issues, in the next chapter we will discuss what intellectual property rights are and how they have been and are being applied to software.
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- 42. Chapter 2 Software and Intellectual Property Rights The evolution of the open source phenomenon, as we saw in the previous chapter, demonstrates that open source software is essentially different from proprietary software. But in what ways is it different? Could we say that open source software is the opposite or the antithesis of proprietary software? We can only answer these questions if we look at the issue of Intellectual Property Rights (IPR) and software. Although IPR are applied to all products, the way they are applied in the case of software is different because software as a product is different. On the one hand, it is the result of human intellectual and creative efforts just like a book or other artistic expressions. In fact, just as copyright is applied to books and music, it is also applied to software. On the other hand, it is also a technological product with a sometimes significant economic value that induces those who have developed it or own it to protect it as much as possible. There is, in fact, much debate as to whether patents should applied to software the same way they are applied to other technological inventions. As we will see in this chapter, it is this very combination of characteristics that makes the issue of software and IPR complex. After defining software and describing its characteristics, we will focus on IPR in general, why they exist and what they protect. We will then analyze which types of IPR are most commonly used in the case of software. The last two parts of the chapter then deal with the issue of IPR and open source software in particular. 23
- 43. 24 Open Source: A Multidisciplinary Approach 2.1 What is Software? Software is a word many of us use without an in-depth understanding of what it means. One simple way to define software is to contrast it with hardware. In other words, software is the set of instructions executed by a computer whereas hardware is the physical device on which software runs. Another simple definition of software is that it is an application that performs a specific set of functions for the user, such as word processing. These two basic definitions of software highlight a fundamental distinction between two types of software: system software and application software. In very basic terms, system software supports the execution of the application programs most users use, but it is not specific to any particular application. There are two types of system software: compilers and operating systems. A compiler is the software that reads the human-readable instructions written by the programmer and translates them into a computer-readable language in order to execute the instructions. A computer's operating system, e.g. Linux or Microsoft Windows, is the software that schedules tasks, allocates storage, handles the interface to peripheral hardware and presents a default interface to the user when no application program is running. Application programs are self-contained programs that perform a specific function directly for the user, e.g. spreadsheets and word processing. To better understand how software actually works, it is helpful to think of three levels in the computing process: the instructions, the execution, the computing results. First the computer programmer writes the instructions. These human-readable instructions are what we call the source code. Since the source code cannot be read directly by a computer, a compiler translates it into the computer-readable code that is called object code. The computer's operating system then executes the instructions defined in the object code to produce the computing result. One might ask why there are two types of code, i.e. source code that must be translated into the object code a computer can understand and execute. Wouldn't it simply be easier only to use object code? The answer has to do with the differences in complexity and sophistication
- 44. Software and Intellectual Property Rights 25 between the human mind and computers. The object code is considered a low-level language because it consists almost entirely of ones and zeros or at most of a limited number of commands that have names rather than numbers. Though programmers could potentially use low-level code, writing programs that have to perform even the most basic data- processing operations would take a lot of time if written in object code. This is why high-level programming languages, such as "C", Fortran and Cobol, were developed: to help programmers write more complex instructions in less time. At this point in our explanation we have to bring users into the picture. Most software users are only interested in computing results and are not the least bit interested in the code that leads to the computing result. However, some users are. Some users want access to the source code not only to read it, but to copy and modify it as well. This is why most commercial software is sold without the source code. By offering only object code, manufacturers are essentially denying software programmers the possibility to see the instructions that make the software do what it does. Furthermore, not only is source code human readable, but it also shows how the programmer arrived at the solution for the computing task at hand. Source code often contains comments through which programmers insert information into the computer program that does not become part of the object code. All of this information can be very valuable to other programmers because it may indicate which solutions were tried and failed, how certain problems were solved and even who was involved in programming the various parts of the code. In other words, the source code records the program's history. Without this information it is basically impossible to copy, reuse or even improve a program. Basically, source code is the human accessible heart of any software program and that is why source code lies at the heart of the debate on software protection. In the following section, we will take a look at the evolution of intellectual property protection in general and then see how this directly applies to software.
- 45. 26 Open Source: A Multidisciplinary Approach 2.2 Why Do Intellectual Property Rights Exist? As has already been explained in Chapter 1, until software took on a commercial value the issue of protecting software did not even exist. Software was distributed and shared according to the same rules that govern the sharing of academic research. What changed? Why did property rights become an issue and in what way? To answer these questions, first we have to understand why and how software became a commercial good. Every good is created and can then be used. From an economic point of view, these two moments correspond to production and consumption. The incentive for manufacturers to produce a good is to make up for production costs and make a profit by selling it. In the case of physical goods, it is to the benefit of the manufacturer to sell a limited number of physical goods at a relatively high price. On the contrary, it is to the benefit of the consumer to have a theoretically unlimited number of goods at a relatively low price. As far as consumption is concerned, we can say that goods have two main properties: rivalry and excludability. A good is rival when there is competition to use the same good, and when appropriation by one person reduces the quantity of the good available to other people. This concept applies where scarcity, in the economic sense, exists, as is the case with petrol. A good is excludable when others can be prevented from appropriating or consuming the good. A car is a good example: if I use my car others can't use it and so they are excluded. Goods can be rival or non-rival and excludable or non-excludable. An important combination of these properties of goods is non-rivalry and non-excludability. If a good is non-rival and non-excludable, the number of people who can use it is theoretically unlimited and no one can impose limitations on its use, i.e. exclude others. A street sign is non-rival and non-excludable. A street sign gives information that is accessible to all regardless of how many people look at it. A street is non-excludable like the street sign, but rival like a car because the number of users at one given time is, in fact, limited. Though both the street and the street sign are public goods, the essence of the street sign is information while the street can be considered a physical good. This is an important distinction because whereas information is non-rival and non-excludable,
- 46. Software and Intellectual Property Rights 27 physical goods are" rival, even if not always excludable, as is the case of our street. How do these considerations apply to software products? Software is an information product. Theoretically information is non-rival and non- excludable because many people can use it at the same time and no one can be excluded from the information itself. Therefore, considering software to be exclusively an information product would benefit the consumer, but not the manufacturer. What costs the manufacturer the most is the development process that leads to the creation of the first copy of a software product, whereas the cost of reproducing the same software product is marginal. If there are no limitations on copying, anybody can copy and distribute software at a price that is equal to the trivial cost of reproduction. In this case, the incentive to produce the good has been lost because the manufacturer has not made up for the production costs. The solution then, from a production point of view, is to protect the information contained in software products using intellectual property rights. When software began to be a commercial good in the late 1970s and early 1980s, companies had to find a way to make software a rival and excludable good. To do this, companies turned to Intellectual Property Rights (IPR) to limit the terms of use of their software. Intellectual property rights grant authors, or in this case software companies, the possibility to control the copying, modification and distribution of their own products. This control makes software excludable inasmuch as the company can allow or prohibit access to the product. In this way, companies can distribute software at a price that is much higher than the cost of reproduction. By being able to make a profit from selling software, companies can justify the cost of developing software. What steps did companies first take to use intellectual property rights to protect their software? And in what different ways can software be considered intellectual property? We will now consider the four different ways of protecting intellectual property and how each applies to software.
- 47. 28 Open Source: A Multidisciplinary Approach 2.3 Types of IPR and How They are Applied to Software The four types of intellectual property rights generally used are: trade secret, trademark, copyright, and patent. Most of the original laws regarding intellectual property rights were first written before software became a commercial product. Therefore, first we will give a general definition of each type of IPR and then consider how each has been applied or is being applied to software. A trade secret is confidential information, including a practice, formula, method, process, program, device or technique, that a company uses to compete with other businesses for its own economic benefit. In order for this information to be considered a trade secret, considerable efforts must be made to maintain its secrecy. A classic example of trade secret is the recipe to Coca-Cola. "Having a trade secret means that you have a legal cause of action for damages, or an injunction to stop the use, if another party steals, copies or uses your trade secret without your permission."17 However, a trade secret is not registered and cannot, therefore, benefit from the protection offered by other forms of IPR, i.e. copyright and patent. In order to register a product or process, at least some information regarding it must be disclosed, thus infringing the trade secret. In the early days of computer science technologies, software was distributed freely without any limitations and was considered, as was scientific research, to be a public good. However, as we have already seen, there is no profit in selling a public good and small profits could not justify investing large amounts of money in software development. Trade secret laws worked well in the early days of computing technology because the standardized programming languages that are used today had still not been developed. The use of low-level languages required highly specialized skills that only a limited number of people had. In this scenario, it was relatively easy to keep software "secrets" within an organization. Even when software began to be distributed on a more commercial level, e.g. MS/DOS software in the early 1980s, it was done so under tight contractual control, again making it easy to control trade secret.
- 48. Software and Intellectual Property Rights 29 A trademark is a word, name, symbol or device used by a business to distinguish itself and its goods from others. The purpose of a trademark is not to prevent others from making the same goods or selling them, but rather to prevent others from using the same symbol, word or device. In theory, this should prevent the public from being deceived about the origin and quality of a product. In the case of software, well-known examples of trademark are Microsoft Windows and Microsoft Office. One of the most successful open source software projects, the Linux operating system, has high brand recognition for the trademarked name "Linux" which is often accompanied by the penguin logo Tux. Copyright protects published or unpublished literary, scientific and artistic works, such as books, software and music, that have been fixed in a tangible or material form. Copyright laws grant the author the exclusive right to copy, sell, license, distribute, modify, translate and, in general, do whatever he/she wants to with the original work. Copyright laws were created to encourage authorship by protecting copying. Though each country has its own specific copyright laws, almost all major nations follow the Berne copyright convention, which states that almost all things are copyrighted by default the moment they are written. However, in order to sue for damages, a copyright must be registered. While copyright protects the form of the work, i.e. you cannot copy it, and the overall content in the work, i.e. you cannot create derivative works based on the same set of ideas as the original, it does not prohibit anyone from creating new works by developing ideas from the original work. As we have already said, trade secret was effective in protecting proprietary software until programming languages and operating systems became more standardized in the 1980s. With standardization came an increased possibility for programmers to understand the source code of any given software program. In other words, the secret inherent in source code could no longer be protected simply by trade secret. A more effective method of protecting source was needed so companies and lawmakers turned to copyright. From a legal point of view, copyright is a contract made between an author and a user that stipulates what the user can or cannot do with the author's work. In the context of the mass distribution of software, it was
- 49. 30 Open Source: A Multidisciplinary Approach impossible for every author to stipulate this sort of contract with every user. Therefore, laws had to be made to define general norms that determined how software could be distributed and reproduced. Software copyright laws generally allow the user the sole privilege of using the software while the author keeps every other right for the commercial use of the software for him/herself. In the early 1980s the United States (1980), Australia (1981), Great Britain, France and Germany (1985) began to make specific copyright laws for software. In 1991, the European Community issued a council directive (91/250/EEC) on the protection of computer programs that states: "...Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works". In fact, the idea that source code could be considered original expression, i.e. a sort of literary work, became accepted as programming languages began to resemble human languages. At this point the problem of deciding what could or could not be protected by copyright became a matter of discussion. Since software can be copied not only by copying the source code, but by copying the object code as well, both codes are protected by copyright. The power of copyright to protect software is taken to extremes in the "RAM copy" doctrine. According to this doctrine, even just running a computer program without permission or authorization can be considered an infringement of copyright law since to do so the object code of a computer program has to be copied from the hard drive into the memory, of a computer. A patent gives the creator of a process or product the exclusive right, also called monopoly right, of the use, manufacture and sale of the invention or products deriving from the invention. It is important to clarify that a patent does not grant the right to make, use, sell or import the product or process, but rather the right to exclude others from making, using, selling or importing it. Patent legislation was created to protect original inventions and the investments incurred to make the discovery. This was considered to be a way to stimulate the development and progress of science and technology. To patent an invention it must be original and offer a
- 50. Software and Intellectual Property Rights 31 significant advancement in knowledge. "When a patent is granted to an inventor, it becomes a public document that fully discloses the details of the invention so that others skilled in the technology can duplicate the results achieved by the patented invention; however, the invention owner retains the sole right to exclude others from making, selling, using, or importing the invention."18 Patents currently last for 20 years. The owner has a legal monopoly on the invention for that time period and when it is up the knowledge becomes part of the public domain. The right to exclude others from using the invention is what has made patents very effective in many industrial fields, especially from a commercial point of view. At the European Patent Convention in Monaco in 1973, lawmakers decided that "European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step."19 Mathematical methods, business models and computer programs were explicitly excluded from this definition of patentable inventions as they were considered to be ideas and not inventions or applications. In 1995, after years of unclear decisions regarding software and patents in the United States, the USPTO (United States Patent and Trademark Office) adopted its Final Computer Related Examination Guidelines which effectively made it legal to patent software. Business methods, such as Amazon.com's "1-click shopping", were considered to be patentable as well. Following this decision, the situation regarding the patentability of software began to change in Europe as well. There are currently 30,000 European software patents, 75% of which are owned by large non-European companies. In September 2003, the European Parliament approved a draft Directive on the Patentability of Computer- Implemented Inventions which limited the use of software patents in Europe. However, following opposition to the draft, in May 2004 the Council of the EU proposed a new text which widens the scope of software patentability in Europe. The changes from the decisions made in the early 1970s against patenting software to the situation today, in which hundreds of thousands of software patents have been issued, closely follows the evolution of the software industry. As the industry grew, so did the desire to protect its
- 51. 32 Open Source: A Multidisciplinary Approach intellectual property. Whereas copyright has generally been considered an acceptable way of protecting software, the issue of patenting software is quite controversial. First, we must clarify that a software patent is actually a process patent. According to the USPTO's guidelines, an idea cannot be patented but a process that leads to a real-world result can. In the case of software, the main ideas behind the software are the algorithms. The algorithms are considered processes that lead to computing results. This said, the main arguments in support of patenting software are those used to justify any type of patent. One of the arguments deals with the concept of protecting the inventor. An inventor has the right to be protected when the development of an invention requires high investment costs. A patent can be justified insomuch as it allows the inventor to make up for his/her investments. Another argument in support of patents is that they offer a trade-off: the inventor can financially exploit the patent for a set number of years in exchange for depositing the inventive knowledge. There are also several arguments against patenting software. First of all, although software has functional characteristics similar to those of more traditional products, and therefore can be considered patentable, it lacks the physical aspect. Many argue that algorithms cannot be considered patentable processes but, like mathematical models, must be considered ideas and as such part of the public domain. According to the law in most countries, abstract ideas cannot be patented. When a programmer develops an idea (an algorithm) and creates a product with it (the software product), the inventor and product are protected by copyright laws. Though copyright prohibits the copy and use of software without the consent of the owner of the copyright, it does not prohibit software programmers from using the algorithms and techniques developed by others to create new software that can carry out different functions. In other words, what is protected is the final product, the software that has been developed, and not the abstract ideas or algorithms contained in it. For example, copyright can protect a specific software for compressing data but not the idea of compressing data or one of the algorithms used to compress data in that software. On the other hand, a patent on the algorithm used to compress the data would actually exclude others from even using the same algorithm in different,
- 52. Software and Intellectual Property Rights 33 improved or more innovative software, or at least exclude those unable or unwilling to pay to use the license. Secondly, in the case of software patents there is no guarantee that the inventive knowledge behind the invention be deposited. This is because the real contents of the knowledge can be found in the source code and depositing patents does not require inventors to reveal the source code. In this way, one can have a patent and at the same time keep some parts of the product, i.e. the source code, secret. It is also interesting to note that most of the software patents that have already been granted do not contain information that is a significant advancement for knowledge.20 What's more, the patent process is slow and long and often the knowledge that was to be protected by the patent is obsolete by the time the patent is actually granted. Thirdly, in traditional industries the 20-year duration of a patent is accepted as long enough to give the owner an economic advantage but not too long to slow down innovation. This is not the case when we consider software. Since the life cycle of software is significantly shorter than that of more traditional products, patents could limit innovation in this field. Another way to evaluate the positive and negative aspects of patenting software is to consider who has used this form of intellectual property protection. Most software patents are owned by large companies that can afford the very high costs involved. These companies can afford to deal with the costs of eventual software infringement or set up cross- licensing agreements with other large companies. Many software patents have been used with the sole aim of preventing others from using the same ideas and/or entering the market. These patents may not, therefore, correspond to an actual invention, but rather might simply be a way of obtaining a competitive advantage.21 Patenting software can also be a strong deterrent to Small and Medium Enterprises (SMEs) and individual programmers. SMEs do not usually have the financial resources to take part in patent competition. The effect is to concentrate knowledge in a limited fraction of the industry and, again, to limit innovation. On an individual level, even if a programmer writes his/her own software from scratch, he/she could unwittingly infringe existing software patents. Consequently,
- 53. 34 Open Source: A Multidisciplinary Approach programmers might be discouraged from working on development projects that might lead to legal battles with a possible patent owner. When uncertain, programmers prefer to avoid projects that could have legal risks. This has the effect of limiting the innovative potential connected to a certain product or application. Software patents could, therefore, distance many programmers who are already a part of the development community from innovative projects. A practical example of how software patents can create problems is that of the LZW algorithm (after its inventors Lempel-Ziv-Welch). Among its many applications, this algorithm is used to compress GIF images (Graphics Interchange Format), one of the most common formats used to exchange images. A patent was filed for the LZW algorithm in 1983, but when one of the authors, Welch, presented the algorithm in IEEE's magazine Computer in 1984, no mention was made of the patent. Since Welch described the algorithm very clearly and it was a simple procedure, it soon became a commonly used technique for data compression, not only for GIF. A CompuServe Associate designed GIF without being aware that there was a patent on the LZW algorithm. In 1987, CompuServe released GIF as a free and open format and it soon became a worldwide standard. For several years Unisys, the company that held the LZW algorithm patent, did not require anyone using the algorithm to pay for a license. This changed when it became a standard with GIF and was widely used. Following much controversy, Unisys announced that developers of certain categories of software would have to pay a licensing fee. Today, the GIF format has been surpassed by other free formats and the US (2003) and European and Japanese patents (2004) have expired. Nonetheless, the example clearly demonstrates the confusion and limitations software patents can impose on the development of new software.22 2.4 Categories of Software In order to understand better how intellectual property rights are actually applied to software products, it is important to understand that there are different categories of software. We can divide software into various
- 54. Software and Intellectual Property Rights 35 categories depending on three characteristics in particular: cost, source code distribution and rules governing use. On one end of the spectrum we have public domain software which is free of charge and has no rules governing its use. On the other end, we have proprietary software which is often expensive, does not come with the source code and whose use is protected by copyright or patent laws. In between these two extremes we can find free/open source software, freeware and shareware (see Table 2.1). Table 2.1 - Comparison of categories of software. Example Free of charge Unconditional use Source code open Freedom to modify Protection of freedom Public Domain software HTML Yes Yes Not always Yes No Free/open source software GNU Linux Yes Yes Yes Yes Yes Freeware software Acrobat Reader Yes No No No No Shareware software Apogee software Limited No No No No Proprietary software Microsoft Windows No No No No No Public domain software In the case of public domain software, the author or owner of the software has given up all his/her intellectual property rights. Public domain software is considered part of the public's cultural heritage and thus anyone can use and build upon it without restriction. There is no copyright protecting public domain software. The absence of rights means that anyone could potentially request ownership of copies or modified versions of public domain software, changing the status of
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- 56. which I have, in addition to all this, to lay before you; and that you may hear it the more patiently, it does not concern myself. “In a word, then,” I continued, “should happier days arrive, I hope once more to be among you here in Rome. [pg 356]The wealth which, thanks to your zeal, Licinius, is this day mine, can be of little use to me in the British valley, to which, for the present, I retire. Above all, this beautiful villa of which you speak,—why, because for a time I am unable to occupy it, should the mansion of my fathers stand empty, when there are others among their descendants, who lie not under the same necessity of exile? Till I am enabled to breathe in freedom the air of Italy, I trust Licinius will consent to let Sextus represent me in my villa. There, too, I hope Sempronius will permit his daughter to be. It will give pleasure to Athanasia, to think that those halls contain the dearest of our friends. When we come back, if ever we do so, they will not grudge to make room for us beneath the same roof with themselves. Licinius—Sempronius—what say you?” They were both silent for a moment; but Sabinus was at hand to answer for them:—“By all Olympus! I shall knock down any man henceforth, that in my presence abuses Christianity as a destruction of men’s hearts. Let it be, good friends, as our Caius says. I know, Sextus, I have at least your voice upon my side. Let it be so; and, for heaven’s sake, let it be immediately. A wedding is the very thing to divert attention from these troubles in both kindreds.” Our conversation was interrupted by Dromo, who told me that Silo the jailer had come to see me, and was below in the hall. There I found the humane man, with his little daughter in his hand, and walked aside with him into the inner portico of the house. I told him how the escape, for which his zeal alone was to be thanked, had been terminated—and to what [pg 357]resolution I had now come; —and then inquired whether no suspicion had been attached to himself, in consequence of his absence from the Capitoline. Having assured me that he had no reason to think so,—“The oath which I
- 57. had taken to Trajan,” said he, “prevented me from adopting the simpler course of setting open for our dear friends the gates of the Mammertine; and I trust that I did not offend against that oath by acting as I did, after they had been taken away for the time from my keeping. But both they and you must be aware of the pain which I suffered during their confinement, and of the dangers which I have encountered by their escape. I am resolved no more to be subject to such struggles. I cannot preserve my faith as a Christian, and my honour as a servant of Trajan. This very day I resign my charge in the Mammertine; this very night, if it so please you, I am ready to accompany you and my dear young lady, in your flight to Britain.” I need not say with what gladness I heard this proposal. Returning to my friends, I informed them of what I had just heard, and perceiving now at last that there was no chance of diverting me from my project, they entered, like true friends, into serious consultation respecting the best method of carrying my project into execution. The aid of Silo, who had already given such proofs both of presence of mind, and of prudence, and courage, was regarded by them as of the highest importance. He was shortly summoned to take part in our deliberation, and it was resolved, that after resigning in a formal manner the office he held, and transferring his property for the present into the custody of Licinius, [pg 358]he should forthwith repair to Ostium, and there hire and put in readiness, for immediate use, a small vessel, the lightest he could find, in which the fugitive party might transport themselves at least as far as Corsica. To this the zealous Silo without hesitation assented. It was agreed that he should have the mariners on their benches by the coming on of night, and that he himself should be waiting for us by a certain ruined tower, which stands conspicuously by the river side, about a mile and a half above Ostium. We left it to Silo himself, to stock the bark with any merchandise which he might deem best adapted to deceive the superintendents of the haven. Partly from the necessity of making provision of various kinds for this voyage, but still more in consequence of the law-suit, with the
- 58. termination of which you have just been made acquainted, I had no leisure that day, from which to work out unnecessary pain either for myself or for others. I had to assist Licinius in looking over an infinity of deeds, and to superintend the drawing out of others. In the next place, I had to go to the Forum for the purpose of manumitting some slaves, (such a largess being naturally expected); and while I was occupied with this, need I tell you, that my own poor Briton was not forgotten? Licinius having, at the joint request of Sextus and myself, accorded that morning to the Cretan also the well-merited gift of his liberty, Boto and Dromo were seen strutting about the Forum together for some moments, each arrayed in that worshipful cap which had formed the most prominent object in their day- dreams of felicity. I shall not trouble you with need[pg 359]less particulars. Let it suffice, that the greater part of the day was thus spent in unavoidable business. Towards evening, I stole privately from my kinsman’s house, being willing to avoid a formal farewell, and repaired to Sabinus, who received me with very lively emotion. What he dwelt upon most fervently, however, was the probability—the certainty he seemed to esteem it—that a persecution of this nature could not be long persisted in by such a prince as Trajan; and the pleasure with which, that being all at an end, he should see me come back to Rome, and take due possession of the inheritance of my fathers. After expatiating most fluently for some minutes on the expected delights of that day, he paused suddenly, and then added, in a tone of some little hesitation, “And as for me, I wonder in what state you shall find me. Rich or poor—married or single—Centurion or Tribune—one thing is certain, that I shall, in all circumstances, be not a little rejoiced to see you.” “You had better marry, my good captain,” said I. “Marry! me to marry? I have not the least thought of such a thing. You did not put any faith, did you, in the raillery of those waggish fellows of yesterday?”
- 59. “A little—a very little, Sabinus.” “Poh! poh! now you are jesting.” “And much, very much, Sabinus, in the conscious looks of a certain blushing Centurion, yesterday.” “Come,” quoth he, “there is more cunning in these British eyes than I ever should have dreamt of. Fill your cup to the brim, boy, and since you are to leave us so speedily, I shall have no secrets for you. I have seen service;—true, but what of that? I have kept a [pg 360]light heart in all my campaigns. But my day, it must be confessed, begins to wear a little, a very little, towards the evening; and, Castor! if you allow supper-time to slip over, I don’t know but you must go to bed with a light stomach. Now or never was the word, my boy; and the widow is mine own.” “And Xerophrastes?” said I. “And as for the most sagacious and venerable Xerophrastes, why, to tell you the truth, I see nothing for him but that he should allow his beard to curl as it pleases, drop his long cloak over his ambitious pair of shanks, forswear moonlight, purchase for himself a dark lantern instead, and see whether he can’t find, within the four walls of Rome, an honest Greek, and a constant widow, to make one blessed wedding withal. That is my advice to the Stoic—Stoic no longer—but, if there be hoops upon a tub, the most cynical of all Cynics.” When it was at last necessary that I should move—“Dear Caius,” said the Centurion, “you know the Prefect has set a price on their heads, and I promise you it is such a temptation as no virtue, that keeps watch beneath any common prætorian breast-plate, could well be trusted to wrestle with. But hope, and dare. And here, take once more this helmet, and cloak, and sword, and with them share the password of the night.”
- 60. Sabinus then gave private orders to one of his troop, and walked with me towards the Esquiline.—But why should I linger over what little remains of this story? Why pain you with the parting which I witnessed between my Athanasia and the holy Aurelius, after[pg 361]wards numbered among the martyrs of Christ?—Behold us at last issued from the Catacombs, and mounted on the trusty horses which our friend had caused to be waiting at no great distance from the thicket that clothed their entrance. Behold us arrived without interruption at the Ostian Gate of Rome. The soldiers on guard challenged us cheerily as we came up to them. “The word, comrades?” “Titus!” quoth the Centurion. “Pass on—whom bear you with you, comrades!” “A Christian—a Christian prisoner,” said I. “By Jove, that’s worth gold to you, brother,” quoth the guard. —“Open the gate there;—pass on, friends. I hope I shall have luck one day myself.” FINIS. PRINTED BY WILLIAM BLACKWOOD AND SONS, EDINBURGH.
- 61. 1. 2. 3. 4. 5. Footnotes “Concerning the nature of the Bacchic Stimulus.” These were the principal conspirators by whom Domitian was slain. They were afterwards butchered by the Prætorians, who regretted the tyrant; and it was supposed to be chiefly in consequence of that slaughter, and its shameful consequences to himself, (for he was compelled, among other insults, to return public thanks to the butchers,) that Nerva called to his aid the personal vigour and high military genius of Trajan. ——Catonem Novisti moriens vincere, mollis Otho. So Pope has rendered the beautiful lines: Hujus Nympha Loci, sacri custodia fontis, Dormio, dum blandæ sentio murmur aquæ; Parce meum, quisquis tangis cava marmora, somnum Rumpere; sive bibas, sive lavere, tace. Asinius autem brevi illo tempore quasi in hortulos in arenarias quasdam juxta portam Exquiliniam perductus, occiditur.—Cic. Pro Cluent.
- 62. Transcriber’s Note Variations in hyphenation (e.g. “eyebrows”, “eye-brows”; “godlike”, “god-like”) have not been changed. Other changes, which have been made to the text: page 72, question mark added after “him”, quote mark added before “His” page 267, “Aybss” changed to “Abyss” page 307, “Capito” changed to “Capitol”
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