Thursday, June 9, 2011

ITSSD Director's Guardian UK Article - 'A Call for Caution on Open Source Software' Triggers FOSS Community Backlash & ITSSD Responses - Part 2

As noted in a very recent ITSSD Journal entry - ITSSD Director's Guardian UK Article - 'A Call for Caution on Open Source Software' Triggers FOSS Community Backlash & ITSSD Responses - Part 1  - available at: ,  many within the European FOSS community were visibly upset by the publication on May 23, 2011, of the ITSSD Director's Guardian UK article entitled A Call for Caution on Open Source, available online at: .

Indeed, several members of the European FOSS community responded with accusations that the publisher had succumbed to software patent corporate lobbying pressure and proceeded to attack this author with ad hominem critiques.  In particular, one well-recognized FOSSie blogger, Glyn Moody, was so distraught about the Guardian UK's publication of this author's article that he set out to personally malign this author in a specially drafted rancorous blog attack article entitled, Caution on that ‘Call for Caution on Open Source’.  The Moody blog article, which was accompanied by a number of additional ad hominem critiques from other FOSSie malcontents, appeared in the 'Open Enterprise' section of the ComputerworldUK- the 'Voice of IT Management' website on the same day - May 23, 2011. It is available online at: : 

The About Us section of the Computerworld UK website claims that "Computerworld, the 'Voice of IT Management', is the largest and most trusted source for the information needs of enterprise IT management across the globe" (emphasis added) - .

Considering the reach of this website, the curious almost cult-like influence of Mr. Moody and the lack of rigorous journalistic critique leveled at this author's Guardian UK article, this author has sought to provide the Computerworld UK readership with detailed substantive responses which neither Mr. Moody nor his followers (i.e., "the Moodies") have yet to match: 

Dear Mr. Moody,

I write to thank you for the attention you have paid to my recent UK Guardian Professional article which I interpret as a complement.

If you would be interested in assailing my other writings on this subject matter bearing a significant number of footnoted sources and other referenced titles, I'd be extremely grateful.


Lawrence Kogan

P.S. - Furthermore, 

By referencing the article of Mr. Gijs Hillenius (NL: Court of Audit 'failed' in its independent review of open source - , are you insinuating that he, a university professor and a news editor at the OSOR.euproject of the European Commission (dealing with the use of open source by public administrations in the EU) without any formal accounting or auditing training himself, is more of an authority on the Netherlands Audit Court practices and procedures leading to the compilation of report data and the methodology for interpreting such data for reporting purposes than the report's authors themselves?

Government reports usually emanate from one to a few civil servant authors - and such reports are usually reviewed by superiors with an eye for methodology and verification of findings. What Mr. Hillenius does not mention is that there is a difference in the findings between the reports that has led him to conclude that the first report was correct and the second report was not.

And, beside Mr. Hellenius' own questionable credibility on matters of this type, he refers to the opinion of Hans Sleurink, the perennial editor of the Open Source Jaarboek, a known pro-open source 'rag' with a decidely biased view and perspective on these matters.

Please tell me that you sincerely believe Mr. Hillenius' reporting to be objective and unbiased...


"Dear Glyn Moody and the Moodies,

I set forth below Subpart[s] [A &] B of Part I of my rebuttal encompassing Points [1-3 and] 4-5 [, respectively]:

Part I of my response:

1.         Your first claim states that “...nobody had claimed anything of the sort” when referring to the final sentence of my article.

“The UK coalition government should take considered note that the procurement of open source software buys neither governments nor taxpayers a cost- and indigestion-free lunch.”

In response, I must profess that none other than the Netherlands Court of Audit reached these conclusions, not I.

2.         Your second claim(s) states that,

“The reason [EIFv2.0] it was rejected was because of massive lobbying by traditional software companies afraid of real competition from free software. And it's not true that the European Commission chose “technology and business model neutrality”. As I've explained in detail, EIFv2 is inherently incompatible with the GNU GPL: it therefore excludes solutions that are based around it - not at all neutral, but tilting the playing field in exactly the way that those same large software companies wanted to ensure.”

In response, I must respectfully disagree with your conclusion.  The prior draft of EIFv2.0 was rejected because it sought to eliminate virtually all government procurement of proprietary software systems carrying features distinct from (you say incompatible with) OSS – e.g., FRAND licensing restrictions as well as royalty-based licensing usage terms.  I would be pleased to make reference in my follow-up answer to the precise language contained within the ‘informal memorandum’ (NOT ‘report’) entitled, “Sorry We’re Open” prepared by Dutch Ministry of the Interior officials during 2010.  The language contained in that memo reads as if it was borrowed from the several reports prepared by UNU-MERIT Professor Rishab A. Ghosh, a biased OSS advocate who happens also to be a board member of the U.S. lobbying group Open Source for America (OSA describes itself as “a broad cross-section of more than 50 companies, academic institutions, communities, related groups and individuals that serve as a unified voice for the promotion of open source in the U.S. Federal government sector”, including the “GOR” of “IGOR” – Google, Oracle, Red Hat - . The memo’s language also appears as if it had been blessed by FOSS/OFE counsel Andy Updegrove – an OSA Advisory Board member and a Fellow of the OpenForumAcademy think-tank, an affiliate of OpenForumEurope (OFE).   

Predictably, the traditional software companies objected to the prior EIFv2.0 draft version’s use of the 2010 Dutch Sorry We’re Open informal memorandum language, which apparently was being heavily pushed by the “IGOR” OSS// Saas industry members financing the OpenForumEurope lobby in Brussels. If successful such lobbying effort would have established as official EU regional government procurement policy the expressed preference for OSS in the ‘name of open standards’, even though “OSS” and “open standards” are distinct terms and concepts. And, as you are well aware, the goal of “IGOR” lobbying was also to disrupt and reshape the private markets for proprietary software in their favor.  Unwilling to find itself caught in the crosswinds of such lobbying and counter-lobbying efforts, the EU Commission wisely opted for ‘neutrality’ as concerns BOTH technology (functional standards that can accommodate proprietary as well as non-proprietary OSS products) and business model (royalty-based as well as service fee-based).  Let us all take a look at COM(2010) 744-2 final, (12/16/2010), supra at Sec. 2.12 at p. 12. “2.12 Underlying principle 11: Technological neutrality and adaptability... Recommendation 8. Public administrations should not impose any specific technological solution on citizens, businesses and other administrations when establishing European public services.” EU Commission simply followed the will of the European Parliament and Council which had been clearly expressed in legally binding DECISION No 922/2009/EC . For example, the Parliament and Council had determined that all solutions established or operated, and all actions launched or continued, under the ISA program, as a matter of principle, shall be technologically neutral and adaptable. According to Preambular Paragraph 21, “(21) Solutions established or operated under the ISA programme should be based on the principle of technological neutrality and adaptability with a view also to ensuring that citizens, enterprises and administrations are free to choose the technology to be used.”  And according to Article 4(a), “Actions launched or continued under the ISA programme shall be based on the following principles: (a) technological neutrality and adaptability...”

Indeed, it is now arguable, in light of two recent studies released following the issuance on December 16, 2010 of final EIFv2.0, that the EU Commission’s ‘neutrality’ decision has since been vindicated.  In addition to validly refuting the March 2011 Netherlands Court of Audit report’s conclusions against which you and others have howled, which cast serious doubt on the acclaimed cost-savings of OSS, you will likely need to reformulate your line of argumentation which states that “EIFv2 is inherently incompatible with the GNU GPL: it therefore excludes solutions that are based around it - not at all neutral, but tilting the playing field in exactly the way that those same large software companies wanted to ensure” . In particular, you will also need to adequately refute (not merely by ad hominem) the conclusion drawn by one recent study that, not only is the notion that FRAND discriminates against all [F]OSS wrong, it would perhaps even be fair to claim that it is the GPL that discriminates against FRAND.” (See: Jay P. Kesan, The Fallacy of OSS Discrimination by FRAND Licensing: An Empirical Analysis, Illinois Public Law and Legal Theory Research Papers Series No. 10-14 (Feb. 2011), at pp. 15-16, available at SSRN:

3.         Your third claim states that, “Traditional software companies have used monopolistic lock-in to proprietary formats to ensure that the British government has had no effective choice about buying their products, and to lock out open source alternatives. The Cabinet Office procurement policy is simply designed to ensure that a completely level playing field is available for all players to submit tenders, and that requires open standards based on Restriction-Free licensing.”

As with your prior comments, you overreach a bit by using the term ‘monopolistic’ in referring to the behavior of traditional software companies (a monopoly is a legal ‘term of art’ – i.e., an abuse of market power rather than merely employing an exclusive patent right to impose licensing royalties on third party uses of one’s proprietary technology in a competitive but legal manner; it is not simply reducible to the value judgments of non-lawyers or media sycophants).  You also over-generalize without factual foundation that traditional software companies have sought both to ‘lock-in’ the British government to proprietary formats and to ‘lock-out’ open source alternatives.  Could it be the case that, as with FOSS vendors, that they are making follow-on sales offerings that are more competitive in terms of price, service, reliability and other dimensions than that which is being offered by their competitors?  Or, is it possible that the British Government is merely seeking to protect a nascent and currently non-competitive UK-based FOSS industry at the expense of SME and/or more established proprietary software vendors from other EU and non-EU countries?  You clearly are advocating that governments should shape procurement markets based on other than technical specifications and performance criteria, equal opportunity criteria, and/or cost-criteria. What you and other OSS advocates are seeking is for government to preordain what the market for IT e-Government software interfaces should look like, and to secure from the British Government, in particular, a fixed predominant, and perhaps, overwhelming allocation of public funds for OSS procurements without adequate proof of the actual superior performance, reliability and/or cost-savings they are alleged to bring.  What disturbs you and the FOSSies most about the March 2011 Netherlands Court report is that it dares to question the ‘unspoken’ cost-savings aspect of OSS as it relates to the performance and reliability aspects of OSS, casting serious doubt about the questionable findings contained within the informal memorandum prepared by officials at the Dutch Ministry of Interior, which alleged, without much more, projected but unsubstantiated cost-savings. We will discuss that report soon enough.

As concerns the second statement in the italicized remarks above, there is NO such thing as a “completely level playing field” in the markets. While extremely naïve at one level, this notion (metaphor) quite nuanced at another level, as it is repeatedly and conveniently relied upon by those seeking greater regulation (protection) to portend (typically without substantiation) the existence of perceived “market failures” that justify more and more government intervention.

4.         Your fourth claim, in which you review the following passage from my article, expresses frustration in not being able to locate the source of the final quoted statement below:

“At the request of the Dutch House of Representatives, during 2010 the Audit Court investigated "whether the phasing out of closed standards and the introduction of open source software would improve the operation of market forces and save costs for the government". In March 2011, it released the results of its investigation in a report, Open Standards and Open Source Software in Government. It "concluded amongst other things that the potential savings the government could [realise] by making more use of open source software were limited", and that the "switch to open source software...does not necessarily... lead to cost savings" at all.”

May I relieve you of your frustration?  Please See: National Savings with open source software may be limited, Netherlands Court of Audit Press Release (March 15, 2011) ((English Translation) at: .

5.         Your fifth claim reads as follows: “The first part of that last comment can be found on this page, but I can't find the second part anywhere. However, it turns out that's pretty irrelevant, since the entire Auditors report has been widely dismissed as being superficial and lacking in rigour, unlike the work that preceded it:”

You then proceed to quote the summary provided by Mr. Gijs Hillenius ("NL: Court of Audit 'failed' in its independent review of open source" - , to which I responded in brief in my prior comments of last week.  Following my review, once again, of the 2010 informal memorandum prepared by officials at the Dutch Ministry of Interior to which Mr. Hillenius and you obviously refer, I am more convinced now that the Netherlands Court of Audit was squarely within its rightful jurisdiction and discretion not to pay it much deference. My responses to your fifth claim are provided below:

First, unlike the Netherlands Court of Audit “Report”, this 2010 Ministry of Interior document was NOT a “report” at all, as you, Mr. Hillenius and others have misrepresented (e.g., Jasper Bakker of -  ; – English translations). Rather, the document was an informal ministry “memorandum” prepared by “a civil administrator from the ministry of the Interior, a civil administrator from the ministry of Finance, a civil administrator at the ministry of Defence and two IT consultants” As an English translation of the first page of the “Summary” section quite clearly reveals, “This memo shows how the government can achieve significant savings the introduction of market forces by breaking down closed standards for generic ICT facilities and flexible ICT solutions using open source software.”

Second, if it was anything, the document was most likely a private report issued TO the Ministry by these authors who were deeply disappointed that their document was not embraced by the Dutch Ministry of Interior, and therefore, NOT officially issued in the name of and BY that Ministry, as the letter of J.P.H. Donner, Minister of the Interior and Kingdom Relations, and Mr. Hillenius’ blog comments quite clearly reflect .  

Third, it is quite revealing, as Mr. Hillenius and Mr. Bakker have indicated - English translation), and which you have conveniently omitted from your critique of my article (because it would undermine your critique), that the one person in the Dutch Parliament who objected to the Interior Minister’s refusal to treat the memorandum as an official Ministry document, and the Netherlands Audit Court’s subsequent dismissal of the informal Ministry of Interior “memorandum”, was none other than a “socialist party kingpin”. I am speaking of Dutch Socialist Party MP Rik Janssen ; - English translation).  A brief review of the Dutch Socialist Party website reveals that the party platform of the SP International in the Netherlands calls for “Public Ownership” of all privately generated activities, innovations and know-how relating to the healthcare, education and transport sectors, among others:

“In a society where the market is acquiring ever more power and the state and public authorities ever less, the SP stands firmly behind the principle of public ownership. Where the free market rules, the thickness of a person’s wallet determines whether he or she will have access to health care, education, cultural events, social security and transport. This kind of social divide should have no place in a civilised society. It is for this reason that we oppose the sell-off of publicly-owned enterprises, the farming out of public services and the giving up of any democratic control over the direction of our society.” (See: SP International – An Active Party”, at: .

This fact alone constitutes a rather ironic validation of the ITSSD’s work and an undermining of your scornful critique of it! 


Dear Glyn Moody and the Moodies:

Below is Part II of my rebuttal:

As concerns the informal memorandum prepared within the Dutch Ministry of Interior entitled, Sorry We’re Open - How the government can improve the ICT market, available online at: , it is quite clear that it was other than objective and precise.

i)          First, an English translation of the memorandum’s “Summary” section indicates plainly how such “note [was merely intended as] an exploration of how a significant [and]...necessary savings in IT can be realized”

ii)         In addition, as the ‘note’ or memorandum itself states, its putative conclusions were based on “rough” prognostications bearing a rather broad range of outcomes – from between 60 million and four billion euros worth of savings:

Rough calculations show that the potential to achieve economies fundamental: from approx. 60 millions Euro per year in a scenario where only minimum closed standards replaced by open standards in the generic ICT facilities to approx 1 Billion Euro a year in addition to the scenario in which a maximum introduction of open standards, open source software is introduced in areas where possible.”

iii)         Interestingly, Section 2 of the note/memorandum entitled “Introduction” posits some very biased assumptions and conclusory statements that lack substantiation and are without reference to any peer-reviewed research and/or quantitative assessments:

“For some years it is generally acknowledged that the government through the many vendor lock-in programs ICT area has a poor negotiating position as a purchaser of software and services. The government is strongly dependent on a few suppliers of ICT components which currently provide this "vendor lock-in" no alternatives considered come. These components are often so interwoven that using alternatives impossible, or at least prevented serious.”

No evidence is provided within the report or references made therein to external studies and their findings to support this conclusory statement/assumption.

iv)        Once again, there is no evidence-based substantiation of the claims made. Obviously, there is an effort to exaggerate conditions in the private markets in order to invoke the “market failure” rationale in justification of greater government intervention in both the private and public procurement markets.

“Not only the government knows this problem, a number of areas of software market has macroeconomic proportions so that there is hardly existence of market competition, high prices... It is clear that changing the market [is] a long-term approach, but also achieving full independence from suppliers by integrating the ICT in the primary processes of government a matter for the long haul.”

v)         Where is the evidence supporting the following conclusion?  And how is “appropriate” defined and by whom?

“The use of open standards and the use of software under open source licenses is seen as the most appropriate means to break through this situation.”

vi)        Indeed, within Section 4 entitled, “Improving the Market”, the note/memorandum provides the following unsubstantiated assessment without reference to any peer-reviewed research performed and embraced by the government and/or its contractors:

“Market forces in the disturbed software market is sustained by the strong vendor lock-in: closed standards of some suppliers are deep in the primary processes of user organizations intertwined. Often not consciously chosen for this situation but it is grown historically. Even within the government in the past "standardized" on products that use closed standards which a large supplier dependency is created.”

Once again, as they say in the States, ‘Where’s the beef?’  Furthermore, this section of the note/memorandum clearly evinces a desire by its FOSS/‘IGOR’-orientated contractors/authors to eliminate all proprietary technology-based standards in addition to mandating only FOSS-based IT standards, and to even reduce those to a few. Behold the following conclusory statement:

“Dependence on the supplier to build the market and thus its work to do is the reduction of closed standards a prerequisite. This does not to introduce more open standards, but the actual dismantling closed standards. Until the last closed standard is used, the vendor lock-in remain.  Moreover, an environment with different standards usually result in additional (management and operating) costs and interoperability problems.”

Curiously, the prior conclusory statement precedes the following assumption (in formal logic, assumptions usually precede conclusions), which strongly suggests tautological reasoning is at play:

“This all leads to the following assumption:  Vendor Independence and the introduction of market forces is achieved by Reducing closed standards.”

vii)        The note/memorandum next lists a number of software applications limited to a few large software companies that are claimed (without substantiation) to dominate 99% percent of the market for government IT systems – which is intended to serve as ‘evidence’ of the “market failure” the note/memorandum is intended to cure.

“These areas are at 99% of the state, but represent only 1% of the applications. Besides these known applications, there is a long list of applications that run on smaller widely used, which may or may not there is a malfunctioning market closed standards.”

viii)       The note next boldly claims that considerable taxpayer/government savings can be achieved once ‘market conditions’ are restored via use of FOSS-based open standards, which improve government’s negotiating position vis-à-vis proprietary software vendors. 

“By closed standards to build and market introduction may considerable savings...Importantly, these savings are not necessarily achieved by switch to alternative products, the significant price reductions achieved by improved position of the government as buyer in a competitive market.”

Unfortunately, there is, once again, no direct evidence to support this proposition (and no references to peer-reviewed or government studies referenced) other than the proposition itself, save for a broad, non-quantitative and incorrect analogy to the aviation industry.

“The situation outlined here is easy to illustrate the deregulation in the aviation in the 70 years of the last century. Intermezzo: The introduction of market forces in aviation. In the seventies of the last century made a start on improving the market in international aviation. Until that time, the conditions under which such carriers could be started very heavily regulated by governments. Contracts are routes between airports to fly were agreed by states with their own national carriers were strongly protected. Impact: high prices and a inflexible system. Deregulation was in the 70 years begun to make public are largely from the 'air play' withdrawal, the was much easier for new (small) companies to join, there were no exorbitant amounts for routes asked etc. By opening up the market with many new parties, the competitive pressure on big companies so fierce that they saw no other option than the prices are very strong reduced. Result: price reductions of 40 to 80%.”

Obviously, one assumption underlying this analogy is that the more Dutch/European government procurement vendors there are, the more competitive software pricing will be in the government procurement market. However, for this assumption to have any validity, it must also be assumed (which the note/memorandum fails to do) that the additional vendors so introduced will offer software products that are at least equal, and perhaps, superior to the currently used software products in terms of performance - functionality, reliability, manageability, upgradeability, flexibility and interoperability, and that such vendors will be able to service their FOSS offerings better than proprietary software vendors service theirs.  Once again, however, no evidence is provided to substantiate this.

Another assumption underlying this analogy with the aviation industry is incorrect on its face. The note/memorandum attempts to create the false impression that the current proprietary software industry’s success in Dutch/European government procurement markets is other than the result of natural competition, and alleges that the perceived domination of proprietary software vendors in Dutch/European government procurement markets is comparable to the prior monopolies enjoyed by the aviation industry in private markets as the result of government-granted licenses to operate.  The note, however, fails to candidly distinguish between a government-granted ‘license to operate’ and a government-qua-customer executed license to purchase and use from a private vendor a proprietary software product and related know-how in particular markets.

Apparently, the note/memorandum employs this incorrect analogy to make its next point – namely, that in addition to Dutch/European governments opening up bidding for government procurement e-Government contracts to many more vendors (i.e., increase vendor supply - here, FOSS vendors), governments can also simultaneously impose greater regulations to ‘break’ the alleged monopoly of traditional software companies on Dutch/European government procurement markets (i.e., decrease government demand for proprietary software systems) so as to create new opportunities for FOSS-based vendors – to ensure that FOSS-based vendors secure their (subjectively determined) ‘fair share’ of contracts, irrespective of the quality and performance of the offerings and of whether the vendors are qualified to deliver and maintain them.

“Remarkable fact in this development is that the safety is not deregulated. This is still a very strict and tightly regulated involving national governments have broad powers and responsibilities. In summary, competition in the air for a more efficient interaction between government and companies resulted in not at the expense of safety. An important distinction is that the interlude with the above software market by a government-regulated market that needs to be deregulated. It is a monopoly and vendor lock-in 's dysfunctional market where the government Launching customer can occur.”

ix)        Section 5 of the note/memorandum entitled, “Flexible reusable IT solutions”, evidence an effort to criticize and eliminate FRAND/RAND licensing terms from Dutch/European e-Government software procurements. Since FRAND/RAND contractual licensing terms accompanying most proprietary technology-based standards reflect arms-length negotiations and embody the freedom of contract, it must be assumed that the authors of the note/memorandum seek to eliminate the freedom (property right) of contract in e-Government solutions procurement markets. This is entirely consistent with the platform of the Dutch Socialist Party, which stands firmly behind the principle of public ownership of private technology and know-how, and consequently, with the beliefs and objectives of Dutch Socialist Party MP Rik Janssen and like-minded Dutch parliamentarians, as discussed above. The remainder of this section is devoted to instructing the Dutch government how to reduce the use of ‘closed standards’.

x)         Section 7 entitled, “Preconditions for success” is rather clear on its face – it is a cookbook recipe for reshaping the e-Government procurement market to suit the economic and political interests of the FOSS community and FOSS-based industry (“IGOR”/OFE), even though said recipe is based on ‘soft’, imprecise and extrapolated (non-rigorous) cost-savings projections supplemented by “general indicators”.

“The introduction of market forces and dismantling of restrictive licenses in places where advantage will not be easy and in a short time can be handled.”

“These are savings improvement of market forces (cost 1) and flexible savings ICT solutions (cost 2)... The calculations in this note presented is chosen for a global approach: it assumes a number of existing contracts, which are extrapolated and where necessary supplemented with general indicators.”

“...If, besides the demolition of closed standards, proprietary Packages were also replaced by open source alternatives, the savings on licenses would be relatively higher.”

xi)        The note/memorandum next provides the following caveat to its calculations which informs readers that only ‘license’ costs have been considered and approximated and acknowledges/admits that any comparison of costs beyond license acquisition costs would be uncertain at best:

“The calculations are based on a number of recent contracts where the total licensing Generic functionality is divided by the number of workstations...Important to note that the calculations for open-source, only the direct license costs are calculated secondary costs such as license and upgrade costs are not included. Certainly the replacement by open source software in these areas fundamental savings can be achieved. The various aspects will be explained in more developed. License and application access management Exact figures in this field can not be given. Gravity of the management domain is per license different.”

“...Calculating flexible ICT environment of the (national) government is even more complex calculations than the generic ICT.  The variation of current ICT systems / services that are eligible are many times larger than those in the generic ICT. To still be able to make calculations, it was decided to sample an application to be taken and can be calculated. By extrapolation, the calculated figures then be generalized.”

Yet, despite the complexities entailed in making these calculations due, in part, to the extensive variations in proprietary-based ICT systems currently used by the Dutch Government, and the lack of evidence to support their hypothesis, the authors of the note/memorandum nevertheless were able to draw the following remarkable conclusion:

“Large savings can be realized with the introduction of market forces through the use of open standards, and by introducing open source software for generic and specific applications. It varies from approx.115 M  per year for introduction of generic competition on ICT to 500-750M € per year for replacement of locally implemented proprietary software applications through centrally facilitated open source variants. By focusing on achieving both possibilities savings of between 500 million and 1 billion € per year are achievable. The actual realization of these savings will require a significant effort and a long time (at least 10 years)”.

If this is THE quintessential document that you and the other FOSSies have relied upon to ‘shred’ the Netherlands Court of Audit report, then you are all on far weaker ground (more like sand) than you have a right to claim.  No wonder why the Dutch Interior Minister and the Netherlands Court of Audit acted the way they did!


Dear Glyn Moody, and the Moodies:

Let’s try finally to set the record straight for your readers who, are no doubt, anxious about your ability to hold your own in substantive debate.

You said in your original blog criticizing my Guardian article that the “EIFv2 is inherently incompatible with the GNU GPL”. 

You NOW say in your most recent response to my reference to Professor Kesan’s study entitled, The Fallacy of OSS Discrimination by FRAND Licensing: An Empirical Analysis, Illinois Public Law and Legal Theory Research Papers Series No. 10-14 (Feb. 2011), at pp. 15-16, available at SSRN: , that you agree with his study’s findings – namely, that “the GPL and the Lesser GPL license conflict with the FRAND model”, exactly as I said. You then state thatThat matters, because GPL and LGPL are by far the most important open source licences – well over half of all projects use them...” (emphasis added)”
However, you must admit that these two statements are different from one another and that each refers to a different subject matter.

If you are endeavoring to conflate them, then you are being as intellectually dishonest as the those OSS advocates conflating the FRAND/OSS Debate with Patent Holdup, as Professor Kesan lays bare on pp. 19-20 of his study.

1)         As concerns the first statement above, I will repeat in paraphrased form what I previously stated in my Guardian article: the fact that the EIFv2 permits both FRAND and OSS-based IT licensing with respect to a technical specification contained in a standard reinforces the technology and business model neutrality of EIFv2.  In other words, by permitting BOTH FRAND AND OSS-based licensing, EIFv2 discriminates against neither software license and business model.

However, as a Stallman ideology torch-bearer, you emphasized that “over half of all OSS projects use them” - GPL and LGPL – and cited in support of your statement Black Duck statistics which reflect that of the top 20 commonly used OSS licenses, 45.32% are GPL2.0, 8.02% are GPL2.1, 6.69% are GPL3.0, .62% are LGPL3.0 – or, in other words, 60.65% of the top 20 OSS licenses are GPL and LGPL. 

My first question is how many other types of OSS licenses are there, and what are their usages – individually, collectively, relative to GPL and LGPL licenses, and relative to the total number of ALL OSS licenses now used? According to Professor Kesan there 67 OSI-approved licenses – “The [eight] most popular OSI-approved OSS licenses are Apache 2.0, BDS, GPL, LGPL, MIT, MPL, CDDL, and Eclipse Public License.” [fn 13, p.8]. And, “Of the eight most popular OSS licenses, only the GPL and the Lesser GPL license conflict with the FRAND model. And only a small fraction of the remaining 59 OSI-approved licenses have any conflict with FRAND.” [pp. 1; 26]  So, Glyn Moody, please refer to the actual number of ‘at-risk’ GPL and LGPL licenses – i.e., those placed at risk by the EIFv2!  Are we really speaking here about a fraction of a fraction???

My next question is are you trying to say that by permitting FRAND-based IT licensing as well as OSS-based IT licensing, that EIFv2 has consigned over half of all OSS licenses in Europe to irreconcilable conflict with and impairment by FRAND licenses? 

And, for my final questions relating to the first statement: Are there not available workarounds, and have they not been successful? And, notwithstanding their success hasn’t Stallman, due to ideology, revised the GPL yet again to prevent such workarounds?  The answers to all these questions are YES. YES. YES.

According to Professor Kesan,

“Companies have spent the last decade trying to reconcile GPL version 2 with traditional commercial licensing practices related to patents. One possible approach to reconciliation is the concept of a fixed or lump sum royalty, which would avoid violating GPL by not conditioning further redistribution upon payment of additional per-unit royalties.29 Other approaches to maintaining compatibility between patent royalties and GPL include basing royalties on market-share or other non-unit based criteria, or using hybrid architectures. ―Hybrid architecture‖ refers to a design in which a commercial distributor builds its proprietary functionality in separate components or modules and distributes them in a manner such that those separate modules need not be licensed under the GPL.30 Finally, an agreement announced between Microsoft and Novell in November 200631 illustrated another potential mechanism. Instead of directly cross-licensing each other, Microsoft and Novell each covenanted not to sue the other party‘s customers, thereby avoiding the reach of GPL v2 Section 7.” [pp. 17-18]

“As a result of these bridges between patents and the GPL, the GPL license was explicitly revised to tear down those bridges. The attempts at achieving compatibility were seen at loopholes, with one group in the OSS community describing the Microsoft/Novell deal as ―a deliberate attempt to frustrate the aims of the [Free Software Foundation] while remaining technically in accordance with the GPL v2.‖32 The revised license, GPL v3, includes clauses aimed at eliminating the ability of distributors to use hybrid architectures to keep certain components outside the reach of the GPL33 and restricting various third party patent license solutions that industry participants had crafted. In light of these actions, it is clear that the GPL‘s incompatibility with FRAND is by design and spurred by ideology, and not a result of any discrimination by the FRAND licensing model or the result of sound innovation policy analysis.” [p.18]

2)         This brings me to the second statement above.  As Professor Kesan has confirmed, it is only the GPL and the Lesser GPL – i.e., “the GPL family of licenses” that conflict with FRAND and third party rights; it is NOT FRAND that conflicts with OSS.

Professor Kesan clearly points this out:

“... Only the GPL family of licenses and a few others have clauses that conflict with FRAND. In the case of the GPL, the miscellaneous provision Section 7 (the ―Liberty or Death‖ clause) conflicts with FRAND.” [p.8]

“...[T]he ―Liberty or Death‖ clause [was] so named by its creator, Richard Stallman, the founder of the Free Software Foundation and outspoken critic of intellectual property rights. This clause was introduced in Section 7 of the open source license, GPL version 2,10 and essentially states that ―if somebody uses a patent or something else to effectively make a program non-free then it cannot be distributed at all. Stallman later explained that the goal of the clause was to prevent distributors of GPL code from taking patent licenses from third party patent holders to resolve allegations of infringement. Again, this provision does not serve the core purpose of an OSS license, but rather reflects a philosophical opposition to patents, particularly those relating to software.” [pp. 6-7]

“...[T]his clause...directly conflicts with FRAND terms. The ability to distribute the software is conditioned upon a firm‘s freedom to satisfy all the terms of the license, particularly its obligation to pass on to recipients, royalty-free, all of the license rights that it received in relation to the software. Notably, the clause does not merely prohibit restrictions, including royalties, placed on the recipient by the distributor, but restrictions placed on the recipient by third-parties, as well. If a firm implements a FRAND standard subject to patent royalties, or if a firm has some code already licensed under GPL and seeks to combine that code with an implementation of a FRAND standard, the resulting software cannot be distributed under GPL. Distribution of the resulting software would require the payment of a patent royalty to a third-party. Because the software could not be forever redistributed royalty-free by all recipients, the clause prohibits distribution entirely.”[p.7]

“... GPLv2‘s ―Liberty or Death‖ clause effectively prohibits distributors of GPL code from taking a third-party patent license if they cannot pass all of the license rights they get from the patent holder to downstream recipients. The scenario most commonly raised in the FRAND-based standards context is that in which the distributor cannot take a license that requires payment of a per unit royalty for each copy of the program distributed, but the tension is not necessarily limited to the royalty. It could extend to other common license terms like prohibitions on sublicensing, field of use restrictions, and terms conditioning the license on conformance with the specification of the standard.21 If these terms can be interpreted to further restrict the rights of the potential-recipient of GPL code, then that code cannot be distributed under GPLv2 Section 7, even if the distribution is royalty-free.” [p.10]

“...As well, a downstream reciprocal condition as applied to derivative works conflicts with a FRAND model. The downstream reciprocal condition in GPLv2 Section 6 states that all GPL-licensed code must be distributed under the same royalty-free license, regardless of whether it has been modified or combined with other code.14 Thus, any combination of GPL code and proprietary software would be incompatible with this clause.” [p.8]

“...[T]his potential conflict is largely limited to the GPL family of licensing. A FRAND license may prohibit sublicensing altogether, but this term will not necessarily conflict with common OSS terms, like reciprocal distribution restrictions. For example, an OSS license‘s reciprocal restriction might require that if a licensee does distribute the software, then he must do so under the same license, but it does not actually require distribution to begin with. Thus, a license prohibiting redistribution of the software will not conflict with an OSS term that merely places conditions on redistribution should it occur.

Another common FRAND term, a field of use restriction, is similarly compatible with most OSS licenses. A technology or program may be licensed for usage in one field, but not in another. For example, a firm may license technology for a touch screen to a cell phone manufacturer while reserving the exclusive right to license the same technology to another firm manufacturing medical equipment. Both licensees would be restricted from using the technology outside of their specified field. The only way this would conflict with an OSS license is if the license has an expansive reciprocal restriction, and the recipient‘s rights cannot be restricted in any way. Most OSS licenses either have no conflicting terms or have the aforementioned ―Larger Works‖ clause that makes an exception for OSS/proprietary software combinations. Only the GPL family of licenses and its clones have clauses broad enough to prevent the addition of a field of use restriction for any product incorporating OSS-licensed code.

A third common and largely compatible FRAND term is a condition requiring the software to conform to the specification of a standard. Again, there is only a conflict if the license subscribes to the GPL's philosophy and contains a blanket statement that prohibits any restriction of rights. For example, the OCLC Research Public License 2.0 contains multiple miscellaneous provisions that would conflict with frequent FRAND terms. In addition to a Liberty or Death clause, the license states, "Any patent obtained by any party covering the Program or any part thereof must include a provision providing for the free, perpetual and unrestricted commercial and noncommercial use by any third party."22 This clause prohibits third-party restrictions of any kind. As a third measure, if a distributor learns of a third-party restriction, he must "promptly redo [the] Program to address the issue.‖23 But again, this conflict is limited to the few OSS licenses that embrace GPL‘s philosophy.”[pp.11-12]

“...GPL was in fact designed to conflict with FRAND. This is evidenced by both the public statements surrounding the license‘s release and the revisions made to the license. As companies have strived to make it compatible, the designers of GPL have revised the license to impede success. Thus, not only is the notion that FRAND discriminates against all OSS wrong, it would perhaps even be fair to claim that it is the GPL that discriminates against FRAND.

A. GPL and FRAND—The Continuing Tension

Richard Stallman has made numerous public statements outlining his philosophy and criticism of intellectual property rights and royalties for software patents. As a driving force behind GPL, his rhetoric undoubtedly coincides with GPL‘s essential purpose. He described the motivation behind the ―Liberty or Death‖ clause as follows:

We can‘t prevent [assertion of claims of patent infringement] by what we put in the license for the program itself, but we can prevent something that‘s even worse. A fate that‘s worse than death for the program and that is suppose the patent holder says to every distributor ―I‘ll sue you unless you take out a license and pay me‖ and thus in effect, people will have to get permission and pay for permission to distribute the program, it would not be a free program anymore. We can‘t write our license to make software patents go away, but we can write our license so that they can kill the program but they can‘t enslave it.28

Stallman‘s comparison of demanding money for usage of patented software to enslaving the program illustrates his, and GPL‘s, ideological opposition to royalties of any kind, even those that are reasonable, non-discriminatory, and fairly negotiated.
In fact, the Preamble to GPL version 2 itself makes this ideology even more clear:

Finally, any 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.

This ideology certainly deserves its place in the ICT ecosystem, but imposing it upon others by requiring standards to be royalty-free is unnecessary, against market competition, and not good innovation policy.” [pp. 16-17]

3)         This brings me to final point, which is simply that the remainder of your response the other day was devoid of substance and consisted merely of an ideological recitation of the Stallman credo:

“The central issue here is...about freedom.  It's about the freedom of governments to choose software that does not lock them into proprietary standards, forcing them to upgrade when the owner of that standard requires it, and with little choice about the price to be paid.  It's about the freedom to choose alternative suppliers for software – something not possible with proprietary programs, which by definition are owned by one entity.  It's about the freedom to customise software to meet local needs rather than putting up with a one-size-fits-all approach. It's about the freedom to make decisions based on the interests of European citizens, not on the shrill demands from US companies and their highly-paid lobbyists for higher profits...Finally, and most importantly, it's about a fundamental right: the freedom to share knowledge with our fellow human beings.”

However, the formulation of freedom which you and Stallman embrace is the freedom, in the absence of a market abuse, TO DENY OTHERS (i.e., those other than FOSS and environmental adherents), directly through oppressively restrictive contracting and standards development AND indirectly through intrusive government regulations mandating particular types of contracts and standards, the exercise of: their freedom to operate, their freedom to contract, their freedom to exclude others from the unauthorized use of their property, their freedom to associate, their freedom of speech, etc., which have long served as fundamental individual rights of economic and political life in the United States and, to a large extent, in most western European nations.  Ultimately, the brand of freedom that you and Stallman are peddling is the freedom to impose your will and that of your fellow ‘Borg’-like FOSS and environmental collectivists on global society-at-large in order to establish “public ownership” and quash the institution of private property rights. 

In other words, your brand of freedom is actually spelled “S-O-C-I-A-L-I-S-M” – but not the ‘hard’ socialism of the Marxist Soviet era or Mao’s China, but rather the ‘soft’, ever-creeping and encroaching communitarian socialism sought by many within today’s social democratic Europe to forever change its social market economies for the worse.

See Vaclav Klaus, The Intellectuals and Socialism: As Seen from a Post-Communist Country Situated in Predominantly Post-Democratic Europe, (8/22/2005) available online at: ; Paul Belien, Czech President Warns Against ‘Europeanism’, The Brussels Journal (8/27/05), available online at: ; Svetozar Pejovich, From Socialism to Socialism: A Property Rights Analysis of The Transition in Europe, Presentation delivered at The Wieser Memorial Lecture of the Prague Conference on Political Economy, “New Perspectives in Austrian Economics and Political Economy of Freedom” (April 24-26, 2009), excerpts available online at: .

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