Free the Code: Solution for ip headaches or mp3-like suicide?
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BibliographyBooks Leer, A., (1999), Masters of the Wired World: Cyberspace speaks out, Pearson Education Limited. Lessig, L. (1999), Code and other laws of cyberspace, Basic books; (2001), The future of ideas, Random House. Raymond, E., (1996), The New Hacker's Dictionary, MIT Press, 3rd edition Articles All Hail Creative Commons "Stanford professor and author Lawrence Lessig plans legal insurrection", 11/02/02. URL: www.sfgate.com/technology/beat. www.creativecommons.org is still under construction. Lessig, L. webpage: http://cyberlaw.stanford.edu/lessig/ . Cases MICROSYSTEMS SOFTWARE, INC., and MATTEL, INC. v. SCANDINAVIA ONLINE AB; ISLANDNET.COM; EDDY L. O. JANSSON; and MATTHEW SKALA CIVIL ACTION 98 F. Supp. 2d 74; 2000
MICROSYSTEMS SOFTWARE, INC., ET AL, v. SCANDINAVIA ONLINE AB, ET AL., WALDO JAQUITH, LINDSAY HAISLEY, AND BENNETT HASELTON, 226 F.3d 35; 2000 U.S. App. Stipulated Permanent Injunction issued on 28/03/00, URL: http://cphack.robinlionheart.com/final-injunction.xhtml Open source licenses Daemon News on licensing www.daemonnews.org/199904/licensing.html Linux community: URL: www.linux.org Linux Journal, URL: www.linuxjournal.com Open Source advocates. URL: www.opensource.org O'Reilly Network, URL: www.oreillynet.com Slashdot website: “News for Nerds. Stuff that matter”. URL: www.slashdot.org The GNU Project and related links: Richard Stallman, the GNU Project, The Free Software Definition, Linux and the GNU project, The GNU Manifesto, Selling Free Software, the GNU GPL license, Free Software Foundation. URL: www.gnu.org X Organisation. URL: www.x.org
The Mattel “CP Hack” case “CyberPatrol hackers Lose round”, 17/03/00, URL: www.wired.com/news/print/0,1294,35038,00.html “Mattel’s Filter Fiasco to Court”, 27/03/00, URL: www.wired.com/news/print/0,1294,35196,00.html “Mattel Stays on the Offensive”, 27/03/00, URL: www.wired.com/news/print/0,1294,35216,00.html “Mattel suit takes a GNU Twist”, 28/03/00, URL: www.wired.com/news/print/0,1294,35226,00.html “The Story of CPHack”. URL: http://cphack.robinlionheart.com "ACLU Gives Clients Green Light to Post Blocking Software Code." URL: www.aclu.org/news/2000/n103100.html
Open source Business news Lindows. URL: www.lindows.com Red Hat: www.redhat.com Turbolinux: www.turbolinux.com Ximian company: www.ximian.com Apache Software Foundation: www.apache.org “Apache's Free Software Warriors”, URL: www.salon.com/21st/feature/1997/11/cov_20feature.html “A Patchy Start, Apache's strong”, 14/02/2000, URL: www.wired.com/news/print/0,1294,34302,00.html "Feeding the Open Source Hungry", 11/02/2000, URL: www.wired.com/news/print/0,1294,34226,00.html "Linux on Board", 03/03/99, URL: www.wired.com/news/print/0,1294,18236,00.html "The Grid draws its Battle Lines", URL: www.wired.com/news/print/0,1294,20135,00html “Linus Torvalds. Preserving the F word”, 10/06/99, URL: www.wired.com/news/print/0,1294,20135,00.html “Linus: Down With Upgrades”, 23/09/99, URL: www.wired.com/news/print/0,1294,21913,00.html “Linux Getting its Game Face On”, 11/09/00, URL: www.wired.com/news/print/0,1294,38573,00.html “The Linux Free For all”, 03/03/99, URL: www.wired.com/news/print/0,1294,18234,00.html
Microsoft and Open source "Can WINE ferment move to Linux?", 25/01/02, URL: www.wired.com/news/print/0.129.49719.00.html "Can WINE ferment move to Linux?", 25/01/02, URL: www.wired.com/news/print/0.129.49719.00.html "Lindows: Linux meets Windows", 25/10/01, www.wired.com/news/rint/0.1294.47888.00.html "Linux and Office: what a concept", 28/03/02 URL: www.wired.com/news/print/0.1294.51390.00.html. “A Linux OS to Challenge MS?”, 25/10/2001, URL: www.wired.com/news/print/0,1294,47856,00.html/ “Lindows: Linux meets Windows”, 25/10/01, URL: www.wired.com/news/print/0,1294,47888,00.html “LinuxWorld Expo gets serious”, URL: www.wired.com/news/print/0,1294,50030,00.html “Microsoft Lambastes Linux”, 08/10/99, URL: www.wired.com/print/news/print/0,1294,31801,00.html “Of mixed Messages, Linux and XP”, 31/10/01, URL: www.wired.com/news/print/0,1294,48012,00.html Governments “Argentina embraces the Penguin”, 11/05/01, URL: www.wired.com/news/print/0,1294,43737,00.html “Argentina Mulls Open Source Move”, 04/05/01, URL: www.wired.com/news/print/0,1294,43529,00.html “NSA takes the open source Route”, 11/04/01, URL: www.wired.com/news/print/0,1294,42972,00.html “Penguin Enrols in U.S. Schools”, 20/08/01, URL: www.wired.com/news/print/0,1294,45862,00.html “Penguin, ‘Mad Dog’ visits Africa”, 25/04/01, URL: www.wired.com/news/print/0,1294,43238,00.html “Peru Discovers Machu Penguin”, 22/04/02, URL: www.wired.com/news/print/0,1294,51902,00.html
Comments from the industry "MS: A little More Open", URL: "Opening up .Net To Everyone", 06/07/01, URL: www.wired.com/news/print/0,1294,44985,00.html “MS Welcomed with Open Source Arms”, 25/07/01, URL: www.wired.com/news/print/0,1294,45523,00.html “Open Source’s Dot-Net Less Open”, 28/01/02, URL: www.wired.com/news/print/0,1294,50037,00.html Microsoft Website: www.microsoft.com/presspass/features/2001/may01/05-03csm.asp and www.microsoft.com/presspass/exec/craig/05-03sharedsource.asp March 2002: "Sun offers concession to open-source developers on Java." URL: http://online.wsj.com/article/0,,SB1017180648757968080,00.html “Gateway Exec: Microsoft Hurt Choice”, 25/03/02, URL: www.latimes.com/technology/ats-asp_technology10mar25.story “Makers of PCs Fear Wrath of Microsoft”, 25/03/02, URL: www.washingtonpost.com/ac2/wp-dyn/A11835-2002Mar24?language=print March 2002: "Sun offers concession to open-source developers on Java." URL: http://online.wsj.com/article/0,,SB1017180648757968080,00.html. Other comments Personal Website of Prof. Aaron Swartz: "Aaron Swartz: the Weblog". URL: www.aaronsw.com/weblog/000174. High-tech dictionary. URL: www.computeruser.com/resources/dictionary. 1 “The patent system gives SMEs no help in innovating, Macdonald concludes from surveys and interviews involving over 2,600 firms. It neither fosters nor protects their innovation. ‘The patent system is at best an irrelevancy for most small firms.’” Background and Overview of the Intellectual Property Initiative, a UK wide survey from academics and business people on how the industry sees the IP protection. URL: http://info.sm.umist.ac.uk/esrcip/background.htm 2 Founder of the GNU project and creator of the Free software Foundation, a charity organisation for the development of free software. 3 Incompatible Timesharing System. 4 Original meaning: someone who likes programs and enjoys being clever about them. Richard Stallman: The GNU project. 5 This philosophy is as old as computers. Programmers have always achieved software development by working jointly on software rather than keeping their findings to themselves. 6 The view taken by Stallman here mirrors the view of the US Working Group in charge of the Information Infrastructure Task Force stated in “the Intellectual Property and the National Information Infrastructure Report”, which was at the origin of the 1998 Digital Millennium Copyright Act: “the primary objective of copyright is not to reward the labour of the authors but to promote the Progress of Science and Useful Art.” 7 'Free' as in freedom, not as in no cost. 8 Definition from www.computeruser.com : A multi-user, multitasking operating system. It was originally designed for minicomputers, and then revised for use on mainframes and personal computers. There are now many versions of UNIX, which can be used on many different platforms. Because it allows multiple programs to run simultaneously and multiple users to access a single computer, it has been used by universities and businesses where many people use the same computer. It is the most commonly used operating system for Internet nodes. 9 See www.gnu.org/gnu/thegnuproject.html, See also the GNU Manifesto same URL. 10 See following part 1.3. Linux was built thanks to the previous work made by the GNU project, which allowed it to be a Unix-like system. 11 The essential part of a program or operating system that performs the basic functions. (Definition from URL: www.computeruser.com/resources/dictionary). 12 URL: http://www.fsf.org/copyleft/copyleft.html. 13 See following part 2.2 The viral effect and the different free software licenses. 14 See “the free software definition” and “selling free software” documents URL: www.gnu.org 15 See following part. 16 This happened in reaction to Netscape announcement that it planned to give away the source code of its browser. 17 See www.opensource.org. 18 The GNU project, p13. For the rest of this dissertation, the words "open source", "free software" or "libre software" (from the French and Spanish word) will be used indifferently. 19 For further details, see the full text of the license at www.gnu.org/licenses/gpl.txt . Some parts of the license leading to legal controversy will be further analysed in part 3. 20 See full text at www.opensource.org/licenses/bsd-license.html . A clause named "the advertising clause" has been deleted in July 1999 on the initiative of the Director of the Office of Technology of the University of California. 21 Another open source license is the MIT license, which is similar to the BSD license except concerning the fourth clause (non-endorsement) that it does not entail. 22 Redistributors of the software may charge for additional features (media, distribution costs) but not for the software itself. See www.daemonnews.org/199904/licensing.artistic.html 23 The original versions of the package must be included during the process of distribution of the modified versions. 24 See www.x.org/terms.html. 25 With the "advertising clause", which made it compulsory to state that the software was originally developed by UC Berkeley. 26 As in computer nerds… 27 See O'Reilly Network: Open source: the Model for Collaboration in the Age of the Internet. URL: http://www.oreillynet.com/pub/a/network/2000/04/13/CFPkeynote.html . Tim O'Reilly is one of the pioneers of the open source movement. See as well Lessig, L., Code and Other laws in cyberspace, Basic Books, 1999, p103. 28 Apache's Free Software Warriors, URL: www.salon.com/21st/feature/1997/11/cov_20feature.html, A Patchy Start, Apache's strong URL: www.wired.com/news/print/0,1294,34302,00.html 29 It is released under a BSD License (see part 1.2). 30 Open source defender Eric Raymond, The New Hacker's Dictionary, (1996), MIT Press, 3rd edition. In particular, Yahoo Website runs Apache. 31 See 2.1 Software Giant Microsoft worried about Linux competition. 32 It is the project for which the Artistic License was created. (see 3.1.2) 33 Comments from Internet project managers from Netscape and Microsoft, Dawes and Perrera. 34 The application, which will prompt people to use OSS. Eric Raymond, The New Hacker's Dictionary, (1996), MIT Press, 3rd edition, op. cit. 35 Definition: The essential part of a program or operating system that performs the basic functions. 36 Definitions from Linux Journal, URL: www.linuxjournal.com, High-tech dictionary. URL: www.computeruser.com/resources/dictionary, What is Linux, URL: www.linux.org 37 Further details about Linux in part 2.3. 38 "Linux on Board", 03/03/99, URL: www.wired.com/news/print/0,1294,18236,00.html 39 The philosophy of open source even went beyond software to enlarge towards the entire computer world: the program "Open Source Equipment Exchange" operated as a community of hardware givers and takers see "Feeding the Open Source Hungry", 11/02/2000, URL: www.wired.com/news/print/0,1294,34226,00.html; open projects are developing and offer tremendous possibilities, e.g. the Grid where all computers connect through the Internet pool their power and act as one supercomputer. See "The Grid draws its Battle Lines", URL: www.wired.com/news/print/0,1294,20135,00html 40 IBM, which has always been an open source pioneer and support, has also recently released a memo prompting its employees to switch to Linux as their Operating System. 41 Before November 1998, Intellectual Property laws in Argentina made it legal to copy software! After the changes of those laws, 60% of Argentinean software were made illegal, prompting the government to initiate the switch to Linux. “Argentina embraces the Penguin”, 11/05/01, URL: www.wired.com/news/print/0,1294,43737,00.html and “Argentina Mulls Open Source Move”, 04/05/01, URL: www.wired.com/news/print/0,1294,43529,00.html 42 “Penguin, ‘Mad Dog’ visits Africa”, 25/04/01, URL: www.wired.com/news/print/0,1294,43238,00.html and “Peru Discovers Machu Penguin”, 22/04/02, URL: www.wired.com/news/print/0,1294,51902,00.html 43 “Penguin Enrols in U.S. Schools”, 20/08/01. URL: www.wired.com/news/print/0,1294,45862,00.html 44 The authenticity of the document has been acknowledged by Microsoft and has later been covered extensively by the press. Full text of the document available at URL: www.opensource.org/halloween/index.html 45 “Microsoft Lambastes Linux”, 08/10/99, URL : www.wired.com/print/news/print/0,1294,31801,00.html 46 Not all statements are accurate and, quite often, the weaknesses of Linux are present in Windows NT as well. 47 There also exists a technical anti-competitive practice known as "protected boot", a Digital Right Management strategy to prevent open-source software from running on new computers. For instance, certain user's interfaces do not support the switch to Linux. Further details at “LinuxWorld Expo gets serious”, URL: www.wired.com/news/print/0,1294,50030,00.html 48“Gateway Exec: Microsoft Hurt Choice”, 25/03/02, URL: www.latimes.com/technology/ats-asp_technology10mar25.story and “Makers of PCs Fear Wrath of Microsoft”, 25/03/02, URL: www.washingtonpost.com/ac2/wp-dyn/A11835-2002Mar24?language=print 49 Open source developers do recognise that it would be good to come to an agreement, for instance regarding the user interface -which is now different from one provider of Linux to the other. 50 “MS: A little More Open” URL: www.wired.com/news/print/0.1294.50062.00.html. even though their number is increasing. 51 “Linus Torvalds. Preserving the F word”, 10/06/99, URL: www.wired.com/news/print/0,1294,20135,00.html 52 Leer, A., (1999), Masters of the Wired World: Cyberspace speaks out, Pearson Education Limited. 53 Key to this program is the Common Language Interface, which is a layer between an OS and an application. It would allow users to have all information they need available online for whichever type of device. Such a language is also developed in the Mono project (see below). 54 URL: www.microsoft.com/presspass/exec/craig/05-03sharedsource.asp 55 The beautifully idealistic principles of this philosophy are also available at the same URL. 56 Same URL, op. cit. 57 Constant bugs, unfinished products on shelf and costly 'updates' until Windows 2000… 58 Such worries are justified as this can give rise to monopolistic behaviour. However, in case of evidence of abuses by Microsoft, the developers can just agree to stop to develop the code. 59 Further technical information in "Opening up .Net To Everyone", 06/07/01, URL: www.wired.com/news/print/0,1294,44985,00.html 60 Co-directed by Miguel De Icaza, leader of the open-source movement. 61 URL: www.lindows.com. Not surprisingly, Microsoft sued Lindows.com for trade mark infringement to his “Windows” OS. The final judgement is still pending. It should be pointed out that Lindows.com actually mainly sells a distribution of Linux that looks like Windows, but does not really run Windows. Associating both OS is possible provided that you use an emulator. 62 Actually, Lindows proposed mainly a distribution of Linux that looked like a windows desktop. See Wired News, "Lindows: Linux meets Windows", 25/10/01, www.wired.com/news/rint/0.1294.47888.00.html 63 It is more than a simple emulator designed to duplicate the desktop environment of a particular OS. (WINE is a recursive acronym for Wine Is Not an Emulator). Wired News, "Can WINE ferment move to Linux?", 25/01/02, URL: www.wired.com/news/print/0.129.49719.00.html 64 Wired News, "Can WINE ferment move to Linux?", 25/01/02, URL: www.wired.com/news/print/0.129.49719.00.html 65 Wired News, "Linux and Office: what a concept", 28/03/02 URL: www.wired.com/news/print/0.1294.51390.00.html. It is should be pointed out that Microsoft has also developed a similar product called Interix for Unix's application to run under MS Operating System. 66 “Gateway Exec: Microsoft Hurt Choice”, 25/03/02, URL: www.latimes.com/technology/ats-asp_technology10mar25.story and “Makers of PCs Fear Wrath of Microsoft”, 25/03/02, URL: www.washingtonpost.com/ac2/wp-dyn/A11835-2002Mar24?language=print 67 The SCO case follows the logic of the Cache Computing case in a ‘reversed’ way. 68 It could be potentially prevent the spread of customisable licenses (see 3.3.: Creative commons and Lawrence Lessig). 69 See Wired News, "Corel's Linux Open to Question", 22//09/99, URL: www.wired.com/news/print/0.1294.21874.00.html . This term "proprietary code" when talking about an improvement of the existing free code is in itself contradictory to the terms of the GPL. 70 They argued that license talks about distribution of the code, not talk about beta testing. In that, their license is therefore similar to the one of Turbolinux, a distributor of Linux, which distinguishes between Linux's source code and the improvements -such as user interface- made by Turbolinux. 71 In addition to websites whose content relates to Satanism, porn, gambling, alcohol use, Cyber Patrol also bars access to all student organisations at Carnegie Mellon University and newsgroups related to food, journalism, Chinese culture and chess by mislabelling them into one of the categories quoted above. 72 This is an odd decision. Indeed, copyright law is by essence national and a worldwide injunction certainly goes beyond the jurisdictional power of any national court (see French Yahoo case). NB: Mattel's claim has been brought under unlawful reverse engineering of the program, which was not allowed under the licensing terms. Another claim could have been that CPHack violated the anti-circumvention provisions of the DMCA. 73 URL: http://www.fsf.org/copyleft/gpl.html 74 It is not clear if CPHack was released under a GPL license: according to Matthew Skala, Eddy Jansson planned to release CPHack under a GPL license but they never agreed on it. As a result, there are only fragmentary GPL notices accompanying the program. Threatened by Mattel's lawyers of potential liability for fraud, the authors were quick to say they did not release CPHack under a GPL license. The court eventually decided that the notices did not constitute a license. I admitted for the sake of my argumentation that they constitute a license. 75 The qualification of the offence is probably not right. Anyway, the liability of the authors probably falls there into a legal loophole. They cannot do anything any more, as the licensing terms prevent them from doing so. 76 What about the cases when the release has already occurred? Does the GPL actually grant a license to distribute infringing software “lawfully”?! This might be a point to be corrected in future versions of the license. This case could have led to a serious attack of the GPL license… 77 Decision of the 1st Cir. Court of Appeals, 27/09/2000. See on the website of the American Civil Liberties Union (ACLU), which represented the 'mirrors websites'. "ACLU Gives Clients Green Light to Post Blocking Software Code." URL: www.aclu.org/news/2000/n103100.html 78 Article SF Gate: All Hail Creative Commons "Stanford professor and author Lawrence Lessig plans legal insurrection", 11/02/02. URL: www.sfgate.com/technology/beat. The company's Website Creativecommons.org is still under construction. 79 Personal Website of Prof. Aaron Swartz: "Aaron Swartz: the Weblog". URL: www.aaronsw.com/weblog/000174 80 For more details, check URL: http://creativecommons.org/learn/licenses/fullrights. 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