At the Linux Foundation Collaboration Summit in San Francisco in mid-April, I gave a talk titled, "FOSS Knowledge: A little does NOT always go a long way." The title was supposed to be a bit eye-catching; the subject-matter, hopefully thought-provoking. I've attended my share of open source software-related events and often the topics covered in the legal or business tracks relate to trends, information, tools, and best practices for the use of open source software, particularly in regards to license compliance - basically what one needs to do. But I'm finding that it is ever-more critical to look at knowledge: the understanding, awareness, and education around open source software and licenses.
If the goal is successful use of free and open source software (FOSS) in the enterprise and successful use is defined in the following way:
Then, what level of knowledge needs to be present to support that goal? Experience and observation tell me that a fair amount of knowledge is necessary. If we think of attaining this goal as a journey, then where did we come from, where are we now, and how do we get there?
I likened the "roadmap" for my presentation to a famous mountain biking trail in Colorado. If you are well-prepared, the Monarch Crest Trail is an incredible and fulfilling cycling experience; but a lack of knowledge or preparation can result in time-wasting and fun-sucking mechanicals, hypothermia, or worse. Successful and effective use of open source software in the enterprise is not dis-similar. The road, or trail as it may be, can be riddled with challenges, but the reward, if well-prepared, is more than worth the up-front investment and can outweigh the road more travelled.
Where did we come from?
Not so long ago (in a galaxy not so far away...) free and open source software was met with two prevailing attitudes. One was resentment, possibly fueled by fear, that could sometimes rise to the point of hostility. Steve Ballmer may never live down his 2001 quote comparing Linux to a cancer.1
The other more common attitude, though, was denial. As part a company that provides a scanning solution and audit services, we've seen this quite often. Not that long ago, when hired to perform an audit for whatever reason, we'd hear, "oh, we're not using any open source software." And then we'd find lots. Today, we hear outright denial much less often. When it comes to open source software, everyone's doing it; the era of denial seems to be behind us. So, if this is our past...
Where are we now?
How might we characterize today? What is the prevailing view of open source now? A recent New York Times article referred to "openness" as "the latest opiate of the (iPad-toting) masses."2 Indeed. As it turns out, it's not just about open source software; everyone wants to be "open"! Open source is so cool, it's found its way into fashion, food, and music (and many, many other examples I found without looking all that hard).
There was an interesting under-lying theme to these examples. The small print in John Fluevog's Open Source Footwear initiative explains that, "once you send us your design, it becomes public domain. . ."3 Really? But open source is not synonymous with public domain. Public domain is a legal term of art with a very specific meaning under the United States Copyright Act. Works enter the public domain when the term of copyright protection expires. Works that are not subject to copyright—such as names, titles, ideas, methods, or facts—are also considered to be in the public domain by virtue of falling outside the scope of copyright protection.4 In the U.S., this is the author's life plus 70 years or 95 years from first publication if the author is an entity, for example a corporation.5 There are some public domain "dedications," whereby the author uses license-like language to pre-emptively release a work into the public domain and disclaim all rights. However, the effectiveness of this has yet to be tested in court. While there are a few open source projects released under such terms, most FOSS is under some kind of license in the usual sense of the term, however permissive that license may be.
The intent behind www.OpenSourceFood.com6—to share recipes and photos of delicious food—is certainly near and dear to my heart (as are great shoes) and seems to mirror the ideology behind open source software. Yet, I found it a bit misguided that the website designates the content as being available under a Creative Commons license with no acknowledgement of the fact that copyright law does not protect recipes. Recipes describe a procedure or process, which (as mentioned above) are not subject to copyright protection. Perhaps the license applies, and rightly so, to the descriptive text and photos posted on the site, but no license is needed for the recipes themselves. To not provide clarity around this distinction wrongly implies that people are providing and sharing something that is otherwise protectable.
At this year's installation of the famous Austin, Texas music and film festival, South by Southwest, the number of talks tagged with "open source" grew over last year and included a rather eclectic variety in subject matter besides software. A design researcher from the Massachusetts College of Art and Design discussed his work during a session titled, "Open-Source Empathy: Humans as Dynamic Systems," which explored the dynamics of interpersonal connection and what it means to be human.7
"Open" is the new "green"
Not everyone is thrilled to have their cool spread elsewhere, as noted by a comment on opensource.com's event write-up for SXSW. "[O]pen source empathy. God, I want to punch these people in the nose!! . . . As much as [I']ve worked and lived in FLOSS the past 2 decades, I despise the new-ageish nitwits you see these day[s] who are now open-washing everything."8 Regardless of your opinion on this state of affairs, "open" is the new "green." As well-summed up by the aforementioned New York Times opinion piece by Evgeny Morozov, "'openness' has become a dangerously vague term, with lots of sex appeal but barely any analytical content."9 This is where we are now. The term "open" or "open source" is applied to things far outside the realm of software and with oft inconversant implications.
Is this bad?
So, is it bad that everyone is jumping on the "open source" bandwagon, using the term to refer to things and concepts other than software, and otherwise muddying the proverbial open waters? That's a trick question. It doesn't really matter if you think it's bad or not; it's where we are. I'm a bit more pragmatic than our friend who wants to punch people in the nose. As my mom would say, "like it or lump it." The bottom line is that where we are includes a fair amount of misunderstanding about what "open source" means. And, arguably, this could be a problem.
A more pertinent line of questioning might be: how did we get here? Where did these misunderstandings come from? Where do we want to end up?
How did we go from denial ("we're not using any open source software") to books called the "Open-Source Everything Manifesto" (neither written by someone in the tech industry, nor having anything to do with software)? Because I would have hoped that before we got to the point where "open source" became trendy or, dare I say, a seemingly mainstream concept, we might have reached a better level of understanding. These outside-of-software references to open source could be correct or, at least, closer to the original meaning and ideological concept. But if we look at the misunderstandings and knowledge gaps around open source software within its own realm, perhaps this reality is not too surprising.
In my next post, I'll cite some examples of such misconceptions and posit a theory of change to explain how we got to this point and where we might aim our bow going forward.
To be continued...
1 http://news.cnet.com/2100-1001-268520.html 2 http://www.nytimes.com/2013/03/17/opinion/sunday/morozov-open-and-closed.html?_r=2& 3 http://www.fluevog.com/files_2/os-1.html 4 17 U.S.C. § 102(b) 5 17 U.S.C § 302 6 http://www.opensourcefood.com/ 7 http://schedule.sxsw.com/2013/events/event_IAP5466 8 http://opensource.com/life/13/3/spread-open-source-sxsw 9 http://www.nytimes.com/2013/03/17/opinion/sunday/morozov-open-and-closed.html?_r=2&
Jilayne Lovejoy is corporate counsel at OpenLogic. In addition to traditional corporate counsel responsibilities, Jilayne helps develop OpenLogic's repository of open source licenses and obligations and ensures that OpenLogic's scanning and compliance software meets the needs of legal users. Jilayne participates in open source industry groups as a co-chair the SPDX legal work group; chair the special interest group on app stores for the European Legal Network facilitated by the FSFE; and member of the editorial committee for the International Free and Open Source Law Review. Jilayne is also a frequent speaker and writer on topics related to open source licensing and compliance.
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