…er, well, the book has anyway. My copies of Beautiful Code are here:

Holding Beautiful Code.

Appropriately, the book itself is physically beautiful. And big: at 600 pages, I haven’t read most of the chapters yet. But I’ve been skimming a lot, and diving deep in some places. It’s already my favorite new computer programming book of the year, indeed of the last few years. I could name many chapters that delighted me, but lists of recommendations make the eyes glaze, so let’s go with just one: Chapter 24: Beautiful Concurrency, by Simon Peyton Jones, which was so absorbing it nearly made me miss my stop on the BART going to Berkeley the other day. I haven’t nearly read all 33 chapters yet, of course, so take that as an absolute recommendation, not a comparative one.

As for my own contribution (Chapter 2: Subversion’s Delta Editor: Interface as Ontology), I just got the XML master back from O’Reilly, and I’ll be putting it online under a free license as soon as I get a chance. [Update: this is now done.]

Congratulations to Andy Oram and Greg Wilson, the two editors. This one’s a keeper.

I was going through a pile of papers today and found some old correspondence with the Mathematical Association of America.

In 2004 I purchased from them a copy of Robert M. Young’s wonderful book Excursions in Calculus. I paid by credit card on the web site, I think, or else by phone. Anyway, the point is I paid in advance. The book arrived soon after, and then a while after that I got a bill. Why they sent the bill, I don’t know, since I’d already paid. Which they obviously knew, too, since the bill was for $0.00:

Mathematical Association of America bill for zero dollars.

Maybe they meant it to be a receipt or something?

Anyway, I did what any red-blooded hacker would do when sent a bill for zero dollars by Mathematical Association of America: I paid it…

Zoom on payment amount of Mathematical Association of America bill for zero dollars.

…by check:

Check for zero dollars, written to Mathematical Association of America.

Oh, how I wanted them to deposit it! But they didn’t even try; they sent the check back uncashed. Maybe the MAA is using one of those accounts-receivable clearinghouse services, and it isn’t really their fault. But if you can’t write a check for e + 1 to the Mathematical Association of America, whom can you write one to?

Mathematical Assocation of America response to check for zero dollars.

The handwritten reason for the rejection was totally lame, too: “check needs to be wrote out in US dollars” [sic]. But it was in U.S. dollars! Sheesh, it’s like they’d never seen a π-dollar bill before or something.

If you live in or near San Francisco, please go see Will Franken‘s show at The Marsh as soon as you can. It’s running until August 4th, and it is staggeringly, mind-blowingly brilliant. My friend Lev and I just saw it, and afterwards we could talk of nothing else except how amazing it was.

Here is a map of the area around the Marsh. Their ticket hotline is: +1 (800) 838-3006. Ticket prices are on a sliding scale from $15 (“I’m unemployed”) to $35 (“I just sold my startup to Yahoo”). The show is on three nights a week: Thursday, Friday, and Saturday.

Is there anything else I can do to make this easier for you? Arrange a limo to pick you up?

Will Franken doing comedy is what Paganini playing the violin must have been like: a master so completely in control of his instrument, his material, and his art that you can only sit in silent, reverent awe. Except that in Franken’s case, you have to sit in silent, reverent awe while simultaneously breaking into uncontrollable fits of side-splitting laughter. You think that’s easy? Try it — I almost cracked a rib.

In the 19th century Robert Schumann, a music critic as well as a composer, apparently made a habit of proclaiming a genius under every rock. Too often he hailed the merely talented as something greater than what they were, so that even when his judgement was sound (as with Chopin) it wasn’t taken seriously enough: a case of the boy who cried wolf a few too many times.

I’ve tried hard not to engage in that sort of review inflation. If you search my blog for the word “genius”, you won’t find any matches before this post. Please understand: this is the moment I’ve been hoarding my credibility for. This is it. I’m cashing in. Will Franken is a genius, a creative artist like no one else I’ve ever seen. He deserves to be world-famous; perhaps he will not be, for the same reasons that American Idol is popular, but if so, don’t let it be because you didn’t go see his show.

I feel dirty even calling it “comedy”… it’s something much deeper (and therefore funnier) than regular stand-up comedy. Many comedians make a good show out of saying the things we all want to say, but don’t because we’re afraid of what other people might think of us. Will Franken makes a great show out of saying the things we don’t say because we’re afraid of what we might think of ourselves.

You know what to do.

A student named Augusto Pedroza posted a comment here recently, a comment containing such a large and complex question that I’ve decided to use this separate blog entry to answer it.

Augusto is a Google Summer of Code student, meaning he’s working in an open source software project this summer. He says that as he reads more and more about patents, copyright, and open source, some questions arise in his mind. I think I know this feeling. After years of working in open source software, I too started asking myself “Hmmm, this open, freedom-based method of development seems to be working out pretty well for software — what else could it work well for?”

The answer, I think, is “everything”. But that’s just an assertion, not an argument. Augusto’s going to need some more details to back it up. Below are his questions, with my responses interleaved.

I’ve been following [QuestionCopyright.org] too. I already read this one: The Promise of a Post-Copyright World. The more I read things about patents, copyright, open source, free source, few questions arise. Maybe you could share some of your points and perhaps indicate some articles that you might find interesting.

My first question is: In what extent are patents, copyright important and necessary? Is it fair that a company or a person who invests precious hours of his own time make his work freely available? or even worse, his new idea might give to well established companies a way to explore a new idea and make a lot of money?. In the other hand is it fair that a company that finds a cure for cancer may be able to patent that to make money while thousands of people suffer and die from this sickness?. I guess in matters of software my question really is, what should be allowed to be patented in order to avoid this huge mess caused by a current poor patent system?

Thanks for taking the time to ask. I think there are actually several questions going on at once here, and before separating them out, I’d like to gently challenge some assumptions you might hold about freedom and about what is “fair”. Take this question:

“Is it fair that a company or a person who invests precious hours of his own time make his work freely available? or even worse, his new idea might give to well established companies a way to explore a new idea and make a lot of money?”

First, when a person releases a work to roam free in the world, the person always gets a benefit from that work: the benefit that comes from being the creator of something people enjoy or find useful. This isn’t just some abstract feeling. I’ve written two books, and in neither case was the monetary reward significant enough to be a motivating factor (in fact, I made a lot less than U.S. minimum wage for the hours I worked). But the books were still very much worth it. They have helped me in concrete ways: I’ve gotten jobs, speaking engagements, conference invitations, etc based on them. Only accurate attribution is needed for this effect to take place, and attribution is unrelated to copy restrictions. Actually, for attribution purposes, it’s much better for the works to be allowed to flow freely on the Internet.

Second, be careful not to confuse “free” in the sense of “everyone has the freedom to copy and make derivatives of the work” with “free” in the sense of “doesn’t cost money”. Most artists don’t earn much money from their work anyway, but those who do mostly earn it from grants, commissions and performance revenues, not from copyright royalties. Even for non-performing, non-grant-seeking artists, there are other ways to fund their work that don’t interfere with others’ freedoms (for example, see the Threshold Pledge system).

It’s true that some artists do earn significant amounts from copyright revenues. But don’t view that as a matter of “fairness” or “rights” — view it as one possible business model out of many. There are other ways artists can and do make money. For example, in the U.S. we don’t do very much taxpayer funding of art; other countries do. Whether or not to fund art through taxes is a decision every taxation group (i.e., nation) must make for themselves. But it’s not a question of fairness, it’s just a policy question.

And what I’m saying is that copyright itself is also just a policy question. Copyright enables a particular business model: a model based on centralized distribution with restrictions on copying. That business model is inherently incompatible with any business model (such as being a DJ) that relies on unrestricted abundance. So we must decide, as a matter of policy, whether we want freedom and abundance, or control and artificial scarcity.

I’m deliberately phrasing that in a slanted way, as an antidote to the bias of asking about “fairness”. Since we already know that artists benefit just from being known as the authors of their works, your original question, I think, can be translated to this: “Is it fair for other people to reap benefits from an artists’ work that the artist doesn’t reap herself? What if those other people even reap more benefit than the artist?”

When you look at it in that light, some interesting answers emerge. For example, do we treat other professions the same way? No. As Justice Stephen Breyer (of the U.S. Supreme Court) has pointed out regarding copyright:

…few workers receive salaries that approach the total value of what they produce. The social value of the work performed by the man who invents the supermarket, the man who clears a swamp, the academic scientist, or the schoolteacher may be much greater than his pay. Moreover, workers in competitive industries make products that sell at prices well below what many of their buyers would be willing to pay for them. We do not feel that owners, managers, or workers in such industries are for this reason morally entitled to higher wages. Indeed, when a worker without competition – perhaps because he is the only doctor in the area, or the only engineer capable of building a certain bridge – could charge a price close to the total value of his services to the buyer, we normally encourage competition, which will force him to charge less.

There is nothing inherently immoral in the fact that many workers are paid less than the social value of what they produce, for much of the excess of social value over persuasion cost is transferred to the consumer in the form of lower prices. It is not apparent that the producer has any stronger claim to the surplus than the consumer or that the author’s claim is any strong than that of other workers. In fact, why is the author’s moral claim to be paid more than his persuasion cost any stronger than the claim of others also responsible for producing his book: the publisher, the printer, the bookseller, and those responsible for the literature in the past that inspired him?

In sum, simply to speak of the “fruits of one’s labor” does not show that the author should be paid more than his persuasion cost or how much more he should be paid. In particular, it does not demonstrate that the amount he receives under existing copyright law is any more “just” than what he would receive without copyright protection or under a different copyright system.

(S. Breyer. “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs” (1970) 84 Harvard Law Review 281.)

[My thanks to Jacob Tummon, in whose article The Case for the Elimination of Copyright I first encountered that wonderful quote from Breyer.]

It’s interesting that we do not ask this “fairness” question about, say, road workers or doctors. Instead, we observe that they are willing to do what they do for the wages they receive. In some cases we may feel those wages are too low, but this feeling is not dependent on the amount of benefit someone else reaps from the worker’s product — it’s dependent just on the wage itself.

So, then, why is it “worse” when someone’s “new idea might give to well established companies a way to explore a new idea and make a lot of money”? Do you consider it “worse” when a trucking company makes a lot of money using the roads that your tax money built? 🙂 Is the originator of an idea worse off because someone else, somewhere, is successfully exploiting that idea to make money?

I think we should treat creativity the way we treat most other activities that bring varied benefits to different people: by not assuming that one person’s benefit is automatically another’s loss. Life is not a zero-sum game, and neither is the world economy.

Anyway, most creators wouldn’t notice much difference, because they don’t earn a lot from copyright. And it’s not like there would be some shortage of creativity in the world: we’ve had a surplus for a long time now, and it would only be increased by (finally, again) allowing frictionless, unauthorized derivative works, the way we did for most of human history. There’s nothing to be afraid of; the free software / open source movement demonstrates this. The water’s fine,
come on in!

Second question: In your opinion, is there a perfect time to open a source code in order to obtain success as well as be competitive? Had google opened their ideas and source code in the beginning of its existence it would not have created such an empire that is able so sponsor great programs as this one (gsoc). Is it possible to measure positive points and negative points if Microsoft for example, decides to open all their code right now?

I am a big fan of open source development and I have been trying to understand these points in order to show how companies fully based on the proprietary model are able to see their companies as part of a community. I want to show them the risks, the advantages and of course this new exciting way of producing software.

Whose point of view is this question being asked from? 🙂

First of all, I agree that it is probably somewhat to Google’s advantage not to open up their core code — although the advantage is not that great. I suspect most of their market edge comes from their infrastructure and their processes for supporting it. Even if they did open up their code, most competitors couldn’t make much use of it, although perhaps those who want to game their Google rankings could derive some advantage, and spammers could better fight Google’s spam filters!

In general, though, I’m suspicious of chains of logic that say “If Foo Corporation hadn’t done ABC, then they wouldn’t have made so much money, and then they couldn’t support wonderful programs like XYZ.” The same reasoning applies no matter what ABC is — it could be illegal monopolistic practices, arms dealing, whatever.

So when you measure the “positive points and negative points” of someone opening their code, you have to ask: “positive” and “negative” for whom? For the company? For its customers? For society as a whole?

By the way, I’m not making the argument that service providers like Google (and, to some degree, Microsoft) should be forced to open up their code. I do think certain applications should be open source by law (voting software used in public elections, for example, and software that controls medical devices). But the boundary between copyright and trade secret law starts to get very fuzzy, especially when dealing with companies whose software runs on their own servers. So I don’t think Google should be required to open their code. I’m just pointing out that your question, at least the way you asked it, contains an assumption that competitiveness (for a given company) is inherently good, that it should be a primary goal for society.

I don’t think that’s a good assumption. There are no sides here; we don’t have to “balance” the needs of all the “stakeholders” (to use language that economics journalists are so fond of). We just have to figure out what’s best for society, and that’s the only criterion we should consider. Private property itself exists only because we have decided it’s good for society — and note that we have the doctrine of eminent domain, for situations where private property interferes with the public good. (You might take a look at the article Proportional Registration for Copyrights, to see what a system based on these assumptions could look like.)

Now, I know you were partly asking about arguments that for-profit business would be receptive to. There is no general answer to that. You just have to look at each situation and see. Sure, I could write a separate blog entry about the business case for freedom, but I wanted to stick to the social case here, as I think it’s a more important argument. There is no need to worry about business: clearly, for-profit activities can flourish in a world of unrestricted abundance of works of the mind. If someone claim’s they can’t, I’d like to hear why that means we should favor the profits rather than the freedoms! But in the end, it’s a false choice, because there is no conflict between freedom and economic prosperity. There is a conflict between freedom and certain business models.

I hope that helps answer your questions,

-Karl

P.S. Most of these arguments apply to patents too, but not all of them. Patents and copyrights differ in some important ways. Regarding software patents, and perhaps other kinds as well, this post and this post offer some methods by which one can tell whether a given patent regime is useful to society or not.

At FOO Camp this weekend, I attended an impromptu gathering convened by Danese Cooper and Michael Tiemann, both of whom are board members of the Open Source Initiative. The topic was the recent attempts by some companies to pass off licenses that do not meet all the requirements of the Open Source Definition as so-called “open source” licenses. Michael first wrote about this here (his post was Slashdotted), and today he followed up with another post.

Three cheers for the OSI, for seeing that there is a real danger of the term “open source” being diluted into meaninglessness here, and doing something about it. And for those who are wondering what the big deal is, let me explain, starting with this clause from the Zimbra Public License (I don’t mean to pick on Zimbra; there are other companies doing the same thing, this was just the nearest example at hand):

However, in addition to the other notice obligations, (1) all copies of the Original Code in Executable and Source Code form must, as a form of attribution of the original author, include on each user interface screen (i) the original Zimbra logo, and once for each user session (ii) the copyright notice as it appears in the Original Code; and (2) all derivative works and copies of derivative works of the Covered Code in Executable and Source Code form must include on each user interface screen (i) the “Zimbra Powered” logo,, and once for each user session (ii) the copyright notice from the version of the Covered Code from which the copy or the derivative work was made. In addition, the original Zimbra logo or the “Zimbra Powered” logo, as appropriate, must be visible to all users, must appear in each user interface screen, and must be in the same position as and at least as large as the Zimbra logo is within the Original Code. When users click on the original Zimbra logo it must direct them to http://www.zimbra.com/, and when users click on the “Zimbra Powered” logo it must direct them to http://www.zimbra.com/powered. This obligation shall also apply to any copies or derivative works which are distributed under the alternative terms of Section 3.6 and this obligation must be included in any such license.

That clause makes the license not open source. If you don’t have the right to modify the code in such a way as to not display the logo, then you don’t have true freedom to fork. Perhaps the OSI could have written clause 3 of the Open Source Definition a bit more strongly, to make this utterly clear. Right now it says:

3. Derived Works

The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.

I wish it also said “The license may not restrict the functionality or behavior of derived works.” Then its meaning would be undeniable. But really, the meaning is already undeniable to anyone familiar with the traditions of open source: it means you must have the complete freedom to modify the source code, and to redistribute the modified version. If you don’t have that, you don’t have the freedom to fork, and you don’t have open source.

Anyway, the above in combination with clauses 5 and 6 below should put any doubt to rest:

5. No Discrimination Against Persons or Groups

The license must not discriminate against any person or group of persons.

6. No Discrimination Against Fields of Endeavor

The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

The Zimbra license discriminates against Zimbra’s competitors, because it forces them to do advertising for Zimbra while not forcing Zimbra to advertise for anyone else. In the Zimbra license, Zimbra Inc. is a special party, treated differently from others.

Finally:

10. License Must Be Technology-Neutral

No provision of the license may be predicated on any individual technology or style of interface.

The incompatibility between that and the Zimbra license is pretty glaring, no further comment needed.

The reason this matters is that open source, as a development methodology and as a culture, depends utterly on the freedom to fork. You can’t have open source practices without open source freedoms: the practices depend on the freedoms.

For example, take the issue of governance in an open source project. Many projects use the benevolent dictator model, in which one designated person gets to make the final call in controversial decisions. “Designated by whom?” the skeptic might ask. The surprising answer is “It doesn’t matter — because if anyone disagrees strongly enough, they can copy the project and take it in another direction.” In other words, benevolent dictatorship isn’t really dictatorship, because it depends completely on the consent of the governed.

Now try to imagine how this scenario would play out in the Zimbra development community. Zimbra (the company) starts out as the benevolent dictator, but eventually there’s some major disagreement between the company and an external developer, a disgreement in which the solution Zimbra decides on simply isn’t bearable to the external developer. (Perhaps it’s a disagreement about the size and placement of the logo on interface screens, cough cough.)

So can that external developer fork? Can she simply walk away, taking a copy of the code with her and striking out anew, in the traditional open source way?

Realistically, no. She can only do a restricted, crippled fork. She’ll never be able to get that Zimbra logo off her interface screens, because the license of the software she forked prevents her from doing so. This is discriminatory, and is an artificial restraint on any fork’s ability to attract its own developers. It’s hard for a fork to compete on its own merits if it must constantly refer back to the place from which it forked. It’s like being forced to wear a sign that says “Don’t take me too seriously, the real stuff is over at Zimbra, Inc.”

Now walk back the cat: since there can be no credible threat of a fork in the Zimbra development community, there is no pressure on Zimbra, Inc. to be a good benevolent dictator. Maybe they will be good stewards of the software anyway, or maybe they won’t, but the point is that the open source method depends on that pressure — the threat of a fork is an integral and necessary part of true open source development. Zimbra has eliminated that threat, and therefore is not doing open source. (And this is not just about the benevolent dictatorship model; it would be equally true with any other system of governance. In all open source projects, no matter how decisions are made, the threat of a fork is the ultimate guarantor of every developer’s right to empowered disagreement.)

Note that the OSI’s objection is not to the Zimbra license per se. The objection is just to Zimbra’s calling that license “open source”. They can use any license they want, but they shouldn’t call it open source unless it actually is. Freedom is freedom, and no amount of spin will change that.

So what should we do about this?

The term “open source” isn’t trademarked. Years ago, the OSI tried to register it, but it was apparently too generic. There may still be some legal angle available — perhaps false advertising, based on the generally-understood meaning of “open source”. I don’t know, I am not a lawyer, and the OSI has its own lawyers to advise it on legal strategies.

But there is public opinion. What Danese and Michael are proposing doing is organizing a lot of open source developers (and I mean “open source” according to the traditional definition, the one the OSI and I and most other open source developers I know adhere to) to stand up and, basically, say “All of us agree on what the definition of ‘open source’ is, and we reject as non-open source any license that does not comply with the letter and spirit of the Open Source Definition.” Their hope is that the threat of widespread bad publicity from the developer community may be enough of an incentive to get these companies to either stop calling their licenses open source, or change the licenses to actually be open source. I think this could actually work. Getting the open source blogosphere angry at you is bad for business and worse for recruiting; even just on business grounds it might be enough to persuade the companies to change their tactics.

Sign me up.

Blue Cross Blue Shield Horizon of New Jersey has contributed an interesting new proposal to the national health care debate: Embarrassment-Based Care™.

A few weeks ago, my friend Biella posted an account on her blog of how BCBS Horizon of New Jersey (hereinafter “BCBS”) was denying a claim of hers on the basis that it was a pre-existing condition. She was staying with me at the time, and we talked about the so-called condition in detail then. Now, I’m just a simple caveman, not a health care lawyer, but BCBS’s rejection sure sounded bogus to me, as it did to Biella. (There’s an appeals process by which such disagreements can be settled, and if the parties fail to reach agreement then the case can eventually wind up in court, a prospect Biella was prepared for, though dreading.) Her interactions with BCBS had been pretty bad up till the point of that first blog post: not only were they continuing to reject her claim, they were doing so in an especially opaque and inconvenient manner — you know, shunting her from one service rep to another, demanding new documentation apparently just for the sake of stalling, that sort of thing. She later called it “some of the worst customer service I have ever received”.

Well, within two hours of making that first blog post, she got a call from the Director of Public Relations for Blue Cross Blue Shield of NJ. He “came across her blog posting” and wanted to see what he could do to assist. This is all described in her second blog post.

Doesn’t it seem a little odd that the Director of Public Relations would get involved in what is essentially a medical determination? I mean, if BCBS really, sincerely believes Biella’s condition was pre-existing under the applicable definition of the term, there’s nothing the PR department could do to change that. On the other hand, if it’s not clearly pre-existing — that is to say, if BCBS has been exercising their discretion all along in a hard-to-call edge case — then you’d think it would make much more sense for them to just change their decision and pay out the claim, without ever telling Biella why, and certainly without the PR Director calling her. Finally, if BCBS itself doesn’t even believe the condition was pre-existing, then naturally they should have paid the claim in the first place and never put her through this.

So I’m not sure where in all this it makes sense for the PR department to get involved… except, of course, that from BCBS’s point of view, her original blog post was a potential embarrassment, and protecting the company from embarrassment is part of PR’s job.

Maybe they ought to consider the possibility that protecting the company from embarrassment is also the claims department’s job… I’m just sayin’.

I’m a big fan of Google’s Summer of Code program — it’s brought a lot of new developers to the Subversion project, and this also seems to be true for many other open source projects.

Summer of Code encourages college students to participate in open source projects over the summer, by funding both the student (for the time spent coding and learning open source processes) and the project (for time spent mentoring). The students earn enough for it to be their main summer job, but they also often stay involved in their projects after the summer is over, which is a sure sign that the program is working. In some cases, a Summer of Code project has led directly to a full-time job offer for a graduating student, too.

This year, Google decided to send every student a signed copy of my book, Producing Open Source Software. Now, the team that runs Summer of Code is the same team I worked in when I was at Google: the Open Source Program Office. But I’m sure they chose the book on its merits, and that there’s no favoritism going on here (so stop muttering under your breath like that, please. No, really, I can still hear you… there, that’s better, thanks.)

Thus it came to pass that a couple of days this spring, I drove down to the Google offices in Mountain View, visited with my old teammates for a while, then went to a cubicle and signed books. Nearly a thousand of them — it took a lot longer than I expected, and my wrist hurt, but on the other hand it was interesting to have a way to physically feel how big the Summer of Code program is. Next time I ask a computer database to iterate over a thousand entries, I’ll do so with some sympathy.

If you received a book, here’s your evidence that the signature is real:

Signing copies of “Producing Open Source Software” at Google.

(Notice the pad of paper under the elbow of the signing hand. I’ll bet real authors travel with a special cushion, but that, uh, hasn’t been necessary so far in my case.)

About halfway through the second session, I took a break. The books stacked neatly on the floor in front of the cubicle are done, the ones on the desk are still unsigned:

More copies of “Producing Open Source Software” than I have ever seen before.

Someone asked me if I signed every book exactly the same way. The answer is yes, except for one: there’s an Easter Egg book with a special message. If you got it, you’ll know it.

No doubt this was just an accidental slip by a photo caption editor on autopilot, but still it’s disheartening to see the New York Times broadcast Administration talking points so unthinkingly.

This photograph on page A9 of yesterday’s New York Times shows a lone demonstrator (apparently one who supports the Administration’s policies) standing across from a group of anti-war demonstrators on the opposite street corner:

Photo and caption from top left of page A9, Monday, 28 May 2007 New York Times

The caption reads:

“Jeff Broderick, foreground, standing alone last week in support of United States troops as demonstrators for peace occupy an opposite corner.”

So if he supports the troops, I guess that must mean the people on the other side of the street uh… don’t support the troops? Right.

Please. NYT, you can do better :-).

To be fair, one could also say — by a bit more of a stretch — that the second half of the caption buys into the anti-Iraq-war message machine, when it claims that the demonstrators on the opposite corner are “for peace”. After all, a supporter of the invasion might argue that the invasion and occupation are the route to peace, and that opposing the war now will not lead to peace. I don’t agree with that reasoning, but in any case the caption needn’t have gotten into the debate at all. It could have said:

“Jeff Broderick, foreground, standing alone last week in support of administration policy in Iraq, as demonstrators against occupy the opposite corner.”

That would have been both more precise and less controversial.

Microsoft recently claimed that open source code (in particular the Linux kernel) violates 235 of Microsoft’s patents. It’s not clear they actually intend to sue anyone for infringement, it may instead be some kind of bizarre publicity ploy. But there’s a great quote from Microsoft’s licensing chief, Horacio Gutierrez:

This is not a case of some accidental, unknowing infringement… There is an overwhelming number of patents being infringed.”

Get the implication? There are so many patents being infringed here, those open source developers couldn’t possibly have done it by accident! It’s just too many!

Which is the opposite of the truth. It’s far more likely that, if there are any infringements, they’re all accidental. Independent reinvention is the norm in software, especially given that the Patent Office frequently grants software patents for techniques which are either obvious or for which there is prior art available. (The Patent Office doesn’t do this intentionally, it’s just that it’s hard for a patent examiner to be skilled enough in all the varieties of programming to know what’s obvious in a given subfield, and also hard to find the right examples of prior art when there’s such an ocean of code out there to wade through.)

Assuming Gutierrez meant his statement sincerely, it reveals a lack of knowledge hard to believe in a high executive at a software company. Can he really be ignorant of the most basic realities of software development? I mean, it’s not like programmers sit around reading patents all day; in fact most programmers go out of their way to avoid looking at patents. Thus, infringements are almost always accidental. At the very least, a tally of 235 (alleged) violations would in no way imply that a single one of those violations were deliberate.

In fact, there may be far fewer violations than that, possibly even zero. For one thing, Microsoft has so far refused to name the specific patents or the infringing code, so the whole charge is FUD for now. For another, even if they do name a specific patent, and it matches (“reads on”, in patent jargon) the program code in question, the patent may still be re-examined in response to a challenge, or invalidated in court.

Anyway, my point isn’t about the degree of danger to free software (though fortunately that appears to be small). It’s about the fact that a Microsoft executive would assert, apparently with a straight face, that some of the infringements must be intentional simply because 235 patents are alleged to be violated. That is laughable.

(By the way, I found Gutierrez’s quote here, but you can probably find it many other places too, just do search://microsoft linux patent gutierrez/.)