Free software's Faustian moment

About the authors
Becky Hogge is a freelance writer and broadcaster. She is the former executive director of the Open Rights Group, a London-based campaigning organisation that fights for civil and consumer rights in the digital age. She was previously the managing editor, and then technology director, of openDemocracy.net. She blogs here, and co-presents acclaimed London radio show Little Atoms. Her first book, Barefoot into Cyberspace, was published in summer 2011
Felix Cohen is the Director of Technology at openDemocracy; he studied Psychology at Bath University, graduating in 2006.

Free software is big business. This may come as a surprise to those whose understanding of open source software development ends at the caffeine-saturated hacker contributing code in the small hours from his (yes, his) bedroom. But between this image, and the fact that five of the ten most reliable web hosters run their sites on the open source operating system Linux, is the story of an industry of support and bespoke development that gives the major corporations the products and peace of mind they need to conduct business on a grand scale. That thriving industry may now be under threat from an escalating battle over "ownership" of code.

Although desktop users may prefer distributions of Linux which are free (as in beer) as well as free (as in freedom), businesses that rely on this software for serving products and services online and maintain internal development platforms and networks (as openDemocracy does), often pay for "enterprise" Linux distributions, such as Red Hat's Fedora or Novell's SuSe. Unlike their proprietary colleagues at Microsoft, who make money licensing owned code, Novell and Red Hat spend the fees paid for "enterprise" products on providing regular support and security updates. Net profits from Linux-related sales run into the tens of millions. Thus an open pool of shared knowledge fosters a vibrant knowledge economy around it.

But recently, companies like Red Hat and Novell have had to consider a new kind of security for their enterprise clients - safety from litigation under intellectual property law. In the United States, two major branches of intellectual property law obtain when it comes to software. The first is copyright, which covers the lines of source code that make up particular programs, and is neatly dealt with by the GNU general public licence (GPL), the "copyleft" agreement under which most deployments of Linux are distributed. The second is the pernicious practice, rife in the US but so far (the story goes) resisted in the European Union, of patenting methods of coding.

The American folly of defining mathematical algorithms (what code is usually based upon) as property, through software patents, is an interesting problem for free software. Microsoft in particular claims that Linux code violates a number of patents currently held at its Redmond campus. Although Microsoft will not be drawn on exactly what those patents are, enterprise Linux distributors see the claim as a way for Microsoft to distort the market and scare their customers. The fear is that should Microsoft choose to reveal the alleged patent infringements, it could sue not only Red Hat and Novell but also their customers.

In 2004, in response to a controversial series of cases against Linux, Red Hat introduced their Open Source Assurance programme, which puts the onus of resolving intellectual property issues squarely on their own shoulders, indemnifying their customers. Over the last few weeks, Novell have unveiled their own strategy for insuring their customers against the menace of Redmond lawyers. The result has provoked uproar in the "free and open source software" community (often abbreviated to FLOSS, where the rogue ‘L' stands for "libre", the "free as in freedom").

Selling software's soul

On 2 November, Novell and Microsoft announced a "broad collaboration on Windows and Linux interoperability and support". The main aim was to provide reassurance and support to companies that require Linux and Windows to operate concurrently on the same hardware. But the small print revealed a patent licensing agreement and mutual covenant not to sue over patent infringements. Many feared this would give Microsoft fresh ammunition for its steady fire of unsubstantiated claims that Linux infringes Microsoft's patents: in effect, Microsoft had asked Novell the classic loaded question "when did you stop beating your wife?", and Novell had unwisely attempted an answer.

That day ZDNet ran with the headline "Microsoft and Novell: Fox marries chicken, both move into henhouse". Influential legal/open source blog Groklaw.net pronounced that "those of you who think the most important goal is market share will be happy. Those of you who think freedom matters will want to throw up." These fears were borne out on 16 November, when Steve Ballmer, Microsoft's CEO, reiterated his belief, in the context of the Novell deal, that Linux "uses our intellectual property" to a conference audience in Seattle.

Pleas for Novell to reconsider the deal came from far and wide. They included a 12 November statement from the Samba community, a team of programmers working to provide a free alternative to a vital protocol, which labelled the decision divisive, and as such counter to the goals of the FLOSS community. They accused Novell of "exchanging the long term interests of the entire Free Software community for a short term advantage for Novell over their competitors". Novell was exploiting the work of others to get ahead in the market.

Interestingly, this is an outcome the GNU General Public License was specifically designed to prevent. Originally, the threat had been copyright law - the GPL is designed to cling to any code derived from free software in order to ensure that it too is free, in a so-called "viral" legal arrangement. But the GPL also speaks to patents, as its preamble makes clear:

"[A]ny free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all."

The hope is that, since Novell will be unable to freely pass on patent licenses granted it by Microsoft to any or all who may want to use its code, its ability to deploy the GPL will be compromised, along with its ability to use code licensed under it. This would render the deal with Microsoft untenable, as it would prevent Novell from going about its core business of distributing SuSe.

Could the GPL work to ensure against the disruption of patents too? It seems that Eben Moglen, General Counsel for the Free Software Foundation, who has been working with Richard Stallman on a revised version of the GPL for some time, thinks so. Speaking to Joe 'Zonker' Brockmeier of Linux.com last Friday, he confirmed that he has received "full and unfettered access to senior executives at Novell" and was now involved in negotiations which hinged around the deal's compatibility with the GPL.

The Novell/Microsoft deal could divide the FLOSS community into those who code for profit, and those who code for fun. In their 2 November statement, Novell and Microsoft stated that "Microsoft will not assert its patents against individual non-commercial open source developers". Read this statement closely and it speaks to a future where FLOSS code development is split down the middle, where amateurs tinker and professionals profit.

Interestingly, this same future has recently been evoked by another figurehead of free culture, Creative Commons pioneer Lawrence Lessig. On 28 September this year, he wrote a short blog post entitled "On the economies of culture". In it, he argues that "the Internet has reminded us that we live not just in one economy, but at least two". One was the common or garden "work for pay" economy, the second that embodied in Wikipedia, which went by a variety of names, including "amateur" and "non-commercial". These were "separate spheres", argued Lessig, but ones that could and should be linked, in order "to inspire the creative work of the second economy, while also expanding the value of the commercial economy".

Creative Commons already offers different licences for a range of users, through from those who wish to share content solely on a non-commercial basis, to those who are happy to share with profit-making entities who may go on to gain financially from their work. Indeed, I have often been quizzed by free culture enthusiasts as to why openDemocracy opts for a non-commercial Creative Commons licence (the answer is we want to profit from syndication to newspapers, to compensate poorly paid contributors and to earn money we can invest back into our work).

In his post, Lessig anticipates objections to his theory from advocates of total freedom by dismissing for "simply ignoring an important reality about the difference between these two economies". Perhaps this is because what both Lessig's argument and, more importantly, the Microsoft/Novell deal appear to ignore, is that many opt for Creative Commons or GPL licensing as a means to object to intellectual property regimes currently in place.

The "important reality" of the commercial economy is one that many would like to subvert, not graduate into, whether they object to the cultural homogeneity of "big media", or the anti-competitiveness and creative stagnation of "big software". Furthermore, the distinction between commercial and non-commercial is not at all clear cut: as Lessig himself admits, FLOSS has shown that what starts out as the non-commercial work of "amateurs" can move into a professional, commercial setting without giving up on its copyleft principles.

And let's hope things stay that way. Novell have asked for patience from FLOSS stakeholders while they craft a response to the Sambas team's objections. Hoping to scare off Microsoft, Eben Moglen is threatening to use the new version of the GPL to permanently isolate any commercial Linux distributor tempted to enter into similar patent licensing agreements. What looked on the face of things like a simple business deal has turned into a game of brinkmanship faster than you can say free and open source software. The future of the movement hangs in the balance.