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Features: New Democrats: No Gov't $ to GPL Projects
Posted by Ernest Miller on Wednesday, October 23 @ 10:56:46 EDT OpenSource
An anonymous poster to Newsforge reports that members of the New Democrat Coalition, Representatives Adam Smith (D-WA), Ron Kind (D-WI), and Jim Davis (D-FL), are circulating a note asking their colleagues to sign off on a letter addressed to Richard A. Clarke Chair of the President's Critical Infrastructure Protection Board (Washington State Congressman attempts to outlaw GPL). The letter to Clarke is signed by Jim Turner (D-TX) and Tom Davis (R-VA), the ranking member and chairman, respectively, of the Reform Subcommittee on Technology and Procurement Policy. The note and letter essentially call the goverment not to fund projects under the GPL license:
For these reasons, it is essential that the National Strategy affirm federal tradition by explicitly rejecting licenses that would prevent or discourage commercial adoption of promising cyber security technologies developed through federal R&D.
The note and letter are, of course, full of misrepresentations.

First, LawMeme examines the note:
As he [Richard Clarke] shapes the "National Strategy"on cybersecurity, it is important to affirm that government R&D should be made available under intellectual property licenses that allow for further development and commercialization of that work. Licenses such as the General Public License (GPL) are problematic and threaten to undermine innovation and security. I urge you to sign this letter.
This is the fundamental lie underneath the whole concept behind this note and letter. Under copyright law, the GPL does not and cannot prevent commercialization of work. In fact, if anything, it makes commercializing the work easier. Let me explain.

Under copyright law, ideas are not protected, only expressions of the idea. This is known as the idea/expression dichotomy. Let me quote from the Copyright Act 17 USC 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Contrary to the note's assertion, commercial software makers are free to incorporate ideas from GPL software into their products, copyright law demands it. Commercial software writers are simply prohibited from copying the actual verbatim code. In fact, because GPL software requires that source code be made available, access to the underlying ideas is even easier. Shouldn't commercial software companies be able to afford to write new code given direct access to the source code? If not, why do software makers go through so much trouble to protect and obscure their source code? Furthermore, the GPL license requires no complex contracts to sign and, more importantly, no exchange of funds. Compared to average commercial software licensing schemes, the GPL is a breeze to work with.
As you know, the basis of the Internet - the TCP/IP protocol - is a result of federal R&D efforts at DARPA. The advancement and commercialization of this research provided significant economic growth as well as gains in productivity and efficiency.
Hello? Representatives? As you yourself mention TCP/IP is a protocol. In general, you can't copyright protocols because they are functional. Thus, you cannot place TCP/IP under the GPL. You could place a particular implementation of TCP/IP under the GPL, but that wouldn't restrict commercial software vendors from writing their own implementation. Indeed, there have been hundreds (if not thousands) of implementations of the TCP/IP protocol in software, many commercial, many GPL'd. This argument is completely bogus.
Public-private partnerships have been hallmarks of technological innovation and government has played a positive role in fostering innovation by allowing the private sector to develop commercial products from the results of publicly funded research. As such it is important that the National Strategy reject any licenses that would prevent or discourage commercial adoption of promising cybersecurity technologies developed through federal R&D.
And what partnership would these be? Any examples, other than the bogus TCP/IP one above? The most commonly cited examples are in the area of pharmaceuticals. However, drugs are a very different market than software, requiring extensive, long and expensive testing to prove their efficacy. Software requires none of the above.

Furthermore, what of the adoption of GPL'd software by major private industries such as IBM, Sun, and etc.? Is IBM somehow not a good example of how private companies can work with and thrive using GPL'd software?

The terms of restrictive license's - such as those in the GNU or GPL - prevent companies from adopting, improving, commercializing and deriving profits from the software by precluding companies from establishing commercial IP rights in any subsequent code. Thus, if government R&D creates a security innovation under a restrictive license, a commercial vendor will not integrate that code into its software. So long as government research is not released under licensing terms that restrict commercialization, publicly funded research provides an important resource for the software industry. [emphasis LawMeme's]
As mentioned above, commercial companies can still integrate the concepts and protocols, they simply can't use the exact code. This is more restrictive than commercial software licenses how?
New Democrats have long supported public-private partnerships -- it's important that any licenses do not compromise a company's intellectual property rights in their own technology.
You develop the technology, you get to decide what license to use. The GPL does not steal other's intellectual property except in the feverish dreams of certain software executives. It can't. It can undermine markets for commodity software, but that is simply the way capitalism works. It is not as if Microsoft hasn't captured markets for commodity software.

Now for the letter to Clarke. Most of it is similar to the above note, so I will only highlight a couple of more paragraphs:

We are writing to submit our views on the National Strategy to Secure Cyberspace that you circulated for comment on September 18, 2002. We believe the National Strategy should explicitly recognize that overall cyber security will improve if federally funded research and development is made available to Americans under intellectual property licenses that allow for further development and commercialization of that work product. This is a long-standing federal principle that should be explicitly stated in the National Strategy.
Perhaps such an explicit statement of federal principles would be necessary if the GPL did all the horrible things claimed. What the Representatives seem to want however, is an explicit statement of their principles, which is that commercial software writers don't want competition, and don't want government funding for projects that don't serve commercial interests. One might also argue that overall cyber security would improve if more software were open source and didn't rely on security through obscurity as too many commercial vendors seem to.
It would be very unfortunate - indeed, couterproductive and contrary to the public-private partnership that is at the core of the national cyber security strategy - if companies were reluctant to adopt promising security technologies produced by federal research for fear that doing so may compromise their intellectual property rights in their own technology.
If companies are reluctant, it is because they are unable to implement their own versions of particular protocols or security procedures. And, if they are reluctant on that basis, should we really trust them with implementing security technology? Please.

Eerily, the arguments of the Democrats parallel the arguments of economist David Henderson, a research fellow for the prestigious Hoover Institution and a consultant to Microsoft - and whose views were considered by LawMeme in September (DHINAL - David Henderson Is Not A Lawyer)

Slashdot posters have some very insiteful comments (Congress Members Oppose GPL for Government Research).

 
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Related Links
· Newsforge
· New Democrat Coalition
· Adam Smith
· Ron Kind
· Jim Davis
· Richard A. Clarke
· President's Critical Infrastructure Protection Board
· Washington State Congressman attempts to outlaw GPL
· Jim Turner
· Tom Davis
· Reform Subcommittee on Technology and Procurement Policy
· GPL license
· TCP/IP
· Microsoft
· David Henderson
· Hoover Institution
· Microsoft
· DHINAL - David Henderson Is Not A Lawyer
· Slashdot
· Congress Members Oppose GPL for Government Research
· More about OpenSource
· News by Ernest Miller


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New Democrats: No Gov't $ to GPL Projects

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"User's Login" | Login/Create an Account | 15 comments
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Re: New Democrats: No Gov't $ to GPL Projects (Score: 1, Interesting)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 23 @ 12:26:37 EDT
"Contrary to the note's assertion, commercial software makers are free to incorporate ideas from GPL software into their products, copyright law demands it. Commercial software writers are simply prohibited from copying the actual verbatim code. In fact, because GPL software requires that source code be made available, access to the underlying ideas is even easier."
Not really. In many cases it can be made harder, because if you've read the source and then duplicated its effects, you have arguably created a derivative work -- which according to the terms of the GPL, would then have to be GPLed. Reading GPLed source code can then be dangerous for a commercial implementor. Even if you somehow can prevent yourself from being sued under the derivative work theory, it's not much easier to go from code->algorithm->code than it is to just go from algorithm->code... you have to produce all new code anyway, so the original source doesn't gain you much.

"Hello? Representatives? As you yourself mention TCP/IP is a protocol. In general, you can't copyright protocols because they are functional. Thus, you cannot place TCP/IP under the GPL. You could place a particular implementation of TCP/IP under the GPL, but that wouldn't restrict commercial software vendors from writing their own implementation."
This argument is highly disingeneous. The original TCP/IP implementation, and the one that is still the benchmark, is under the BSD license. The fact that that original implementation could be freely coopted by anyone and everyone is the very reason TCP/IP caught on so widely so quickly. Had it been GPLed it would have taken longer, if it happened at all.

"And what partnership would these be? Any examples, other than the bogus TCP/IP one above?"
Erm, the Internet, for starters. The fact that NCSA Mosaic was free (not GPLed, but truly free) allowed the Web explosion. Public/private partnerships happen all the time, every day.

Note that I'm not arguing that software which is the result (completely or partially) of public funding should be closed source. Rather, I think it should be BSD-licensed to allow the widest possible usage, rather than GPLed.


[ Reply to This ]

Dual license: GPL and Auction Prices (Score: 1)
by _jerryasher on Wednesday, October 23 @ 13:46:35 EDT
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If the government is actually the copyright holder of a piece of software, I'd like to see that piece of software placed under a dual license, similar to how I believe GhostScript and BerkeleyDB are licensed.

In engineering school, I learned the value of public discourse, and easy access to scientific knowledge. In business school, I learned how everything is an option, and how options can and should be priced.

I like the GPL, and I believe it to be a community enhancing license. But some folks would like the option to not reveal their code.

I propose offering GPL to those that want that license, and for those that want a proprietary license we sell that license to them, but we should charge fair price for that option, because that satisfies their needs while creating funds that go back to enhancing the community.

GPL users might be citizens, researchers, schools, and businesses that want to benefit from the network effects.

Businesses that cannot see a business model that involves their revealing their source would be able to profit from that software too, but they would have to pay for that option.

Everyone would benefit from the taxpayer funded research, and the taxpayer could clearly be seen to benefit from the GPL users AND the proprietary usage.


[ Reply to This ]

Re: New Democrats: No Gov't $ to GPL Projects (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 23 @ 16:05:49 EDT
Who else is tired of the prefix "cyber" being used in association with the Internet? I can think of no better way for "technology" subcommittee members to appear technically challenged :)


[ Reply to This ]

Why not duel license BSD and GPL (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 25 @ 16:59:23 EDT
The Government should provide a duel licensed implementation of public funded R&D. This would provide a central repository for GPL contributed work for those in the community that want to contribute and be assured that there contribution will not be pilfered for commercial use. And those who want to copy the Government R&D code directly into their commercial products can take from the Government only BSDL version.

Obviously this would create a fork of the implementation but it does satisfy both commercial and community interests.


[ Reply to This ]


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