Pity poor Dr. Ari Jaaski from Nokia. He gave a talk at the Handsets World conference in Berlin on Tuesday, where according to ZDnet, he lectured Open Source Developers that they needed to learn why DRM and other closed technologies were necessary, because of business issues such as subsidized (device) business models. I suspect he wasn’t prepared for the reaction, which took the form of a major fuss on Slashdot, as well as some declarations from a few people on the maemo-users mailing lists that they would never buy another Nokia device. Dr Jaaski then posted today on his blog an entry entitled, “Some learning to do?”, where he stated that while Nokia needs to learn how the open source world works (not just licenses and legal issues, but also the spirit), that the open source world also needed to learn as well — about WHY things are the way they are. He ended the post with “I’m not a teacher, I’m a learner” — which is fair enough.

I actually think that Dr. Jaaski is right; we all should be interested in learning, and having talked with a number of Nokia employees, I can testify that their hearts are very much in the right place, and there are some strong reasons regarding the demands of carriers, the subsidized business model of handsets in the US, the attitudes of suppliers for components in mobile devices, that very much tie their hands — as well the hands of every other handset company out there. Progress in this space will come slowly, and but I believe there is hope that in the long run things will get better.

However, at the same time, I would suggest to Dr. Jaaski that it’s also important how to communicate with the open source community — or with any community that holds views sometimes with great passion. Many people do not react well to being told that they need to learn something — even if it is true that they do. Admitting that they need to learn is for some people tantamount to admitting ignorance, or even worse admitting stupidity, and so they are loath to do this. Telling them this just makes them defensive and angry.

My suggestion for how get people to learn without making them defensive is to use a modified Socratic method. It works especially well with the Open Source crowd, because many of them are engineers, and engineers are by nature problem solvers. So if you give them a problem to solve, they will go to work trying to find potential solutions, and thus start thinking and learning about the problem from a different point of view. Hence, a better approach is to give them a series of business constraints (time to market, the demands of carriers, the fact that most end users prefer to buy subsidized phones with 1-2 year lock-in contracts, the intransigence of suppliers, why a single company can’t afford to create their own chipsets from scratch and have to rely on companies like Broadcom, etc.) and then tell them — we’d love to delight our customers in any way we can, and clearly you are very passionate about DRM, open device drivers, and other OSS issues. We however have to create successful products and sell them at a price such that we don’t go out of business — can you help us work through all of these constraints? Let’s work together so we can make an open source mobile platform that meets the spirit as well as the legal requirements of the open source world!

Dr. Jaaski and his team are struggling with a hard problem, and I am very sympathetic to their issues. And, they have to be commended for investing as much time and effort on the Maemo platform, as well as other Linux and Open Source platforms as they have to date. The strength of the Open Source community is that we work together to solve our mutual problems, while celebrating and giving permission to people to “scratch their own itches”. In order to do that, we need to learn how to better communicate with each other, and that is something that goes in both directions.

When I was at MIT as an undergraduate, far too many years ago than I care to admit, I took economics classes and Sloan School of Management classes (even though they were not necessary for a Computer Science degree) for that very reason. I encourage open source advocates to learn how to walk a mile or two in business people’s shoes, since if you want to influence them them to change in the ways that you desire, you need to know where they are coming from — just shouting and throwing rotten tomatoes generally won’t get you very far. On the flip side, people who are on the corporate...

There is some evidence I found on Internet Archive that indicates to me that the judge was apparently truthful in saying that the site in question was intended to be private, which I will show you for your consideration.

Second, I think it's important to highlight that the person who "tipped off" the LA Times reporter has been, I gather, in a kind of feud with Kozinski for some time. According to the ABA Journal, he has been monitoring the Kozinski site:

AP spoke to Beverly Hills, Calif., attorney Cyrus Sanai, who said he had told the Los Angeles Times about the images on the Kozinski website. He said he found them while monitoring the site as part of a dispute with the 9th Circuit in connection with his parents' divorce. He said he contacted reporters at various publications since January in an effort to expose them.

You can read about what they each, Kozinski and Sanai, wrote on a dispute between them here. It raises a question in my mind about whether or not this is just about the divorce. But my next question would be, if this was intended as a private site, would it be legal for an uninvited person to enter and monitor it? Exactly how would that work, given the Computer Fraud and Abuse Act, not to mention any local California laws regarding privacy and computer integrity? We know there are such laws in California, from the HP-reporters scandal.

It's also harmonious with GPLv2, of course, but this is history in the making, friends. They settled a lawsuit brought against them in a way that licenses patents without violating the GPL. I'll show you how, but first, so you know I'm not just dreaming, here's the answer I got from Richard Fontana, Open Source Licensing and Patent Counsel, Red Hat, to my question about whether this is the first known GPLv3 patent agreement that works:

Most patent settlements and similar agreements are confidential, but to my knowledge this is the first patent settlement that satisfies the requirements of GPL version 3. Indeed, it really goes further than GPLv3 in the degree to which upstream and downstream parties receive safety from the patents at issue here. (And this is not a case of trying to find a loophole in the GPL, but rather a desire on our part to reach an agreement that provided broad patent protection for developers, distributors and users, while complying fully with the conditions of the licenses of the software we and our community distribute.)

You know what this means? It means that those who claim the GPL isolates itself from standards bodies' IP pledges are wrong. It *is* possible to come up with language that satisfies the GPL and still acknowledges patents, and this is the proof. That means Microsoft could do it for OOXML if it wanted to. So who is isolating whom? Thank you, Red Hat, for innovating again to protect the FOSS community.

Here's what Eben Moglen says about the agreement:

"Red Hat's settlement of outstanding patent litigation on terms that provide additional protection to other members of the community upstream and downstream from Red Hat is a positive contribution to the resources for community patent defense. We would hope to see more settlements of this kind--in which parties secure more than their own particular legal advantage in relation to the third-party patent risk of the whole FOSS community--when commercial redistributors of FOSS choose to settle patent litigation. SFLC welcomes Red Hat's efforts on the community's behalf."

This is what Novell could have done, I would suggest, and when their 5-year indentured labor contract is over, so to speak, I hope they will. The main point is this: Microsoft, Ecma, ISO, are you paying attention? It can be done. It's been done. Now, the ball is in your court. There is no legal reason why the GPL has to be excluded from patent agreements.

The New York Times reports today a hard rebuke from European Union?s competition commissioner, Neelie Kroes, against Microsoft’s tactics in Europe. In her speech she offered up some advice worth heeding; ?I know a smart business decision when I see one ? choosing open standards is a very smart business decision indeed,? Ms. Kroes told a conference in Brussels. ?No citizen or company should be forced or encouraged to choose a closed technology over an open one.?

Certainly when using any software this matters, but let’s take a closer look at how this advice relates to open source. Evaluate the following statement for accuracy. True or False? ?[Open Source] severely limits the possibility of proprietary ?lock-in??where users become hostage to the software vendors whose products they buy.? If you answered ?true,? you?re not alone. This was published recently in the MIT Business Review and is a commonly held belief by computing professionals everywhere. In fact, it?s one of the most misunderstood aspects of open source technology. Unfortunately, this misunderstanding can prove costly and dangerous.

First let me be clear by stating that I am a sincere advocate for open source software. It is a superior development model which accelerates innovation, makes for superior peer reviewed code, increases competition and more. For some users having access to the source code of software allows them all the freedom they need. However, for many users the open source development process and its open code format do not guarantee the long term ability to easily or freely choose a technology solution. It?s only half the equation: If the cost of moving from one open source solution to another is prohibitive, you?re just as locked in to open source as a closed source solution. Only open source combined with open standards delivers freedom of choice. I would amend the E.U. commissioners statement to read, “choosing BOTH open source and open standards solutions is a very smart business decision indeed.”

Open standards are vitally important to ensure interoperability and reduce your risk as a technology user. A report titled ?Roadmap for Open ICT Ecosystems? developed at the Berkman Center for Internet and Society at Harvard law school suggests that corporations and government policies should ?mandate technology choice, not software development models.?

The report defines open standards, which it distinguishes from open source, based on six elements including the nature of its control, evolution, and availability. While propriety software can exist within an open standards environment, the combination of open source and open standards delivers the best choice for freedom from vendor lock-in. In fact, I would argue that the OSS development model combined with a strong, clear, and timely standard produces an autocatalytic environment of broad choice and participation ? both working together to make the other stronger. The report states it like this:

?Open standards and open source share common ground. Both result from a community oriented, collaborative process in which anyone can contribute and access the end product ? either standard specifications or source code. There is a complementary relationship with the implementation of an open standard in open source, which promulgates adoption of that standard.?

The report recommends ?mandating interoperability in procurement language, preferring open standards when applicable and adhering to the principles of openness whenever possible.? It also provides an example of how the government of Japan has developed software procurement guidelines that dictate that open standards and open document formats shall be given priority in government contracts.

Fortunately, there are many open standards implemented in leading open source products (Apache and HTTP for instance). For Linux users there is a widely supported open standard that forms the foundation of most Linux distributions. The Linux Standard Base offers corporate IT a no-cost solution that delivers freedom of choice. So why exactly should you care about Linux standards?

Improved Interoperability. By following the LSB, distribution vendors and ISVs improve portability between applications and compliant operating systems. It also enables end users to choose the distribution that best meets their needs.

Reduced Risk. The more your organization deploys and supports open standards, the less dependent you are on any one vendor. The Linux Standard Base ? or any open standard with similar support ? is a simple and effective risk management strategy.

Improved Functionality and Choice. Open standards will make it...

SCO's position is that it can't file a plan until Utah reaches a decision on how much SCO owes Novell. Oh really? Novell says. Then how come it filed a plan already which they seemed able to file prior to any judgment from Utah?

The position the Debtors take in the Motion assumes the necessity of completing the District Court Litigation for plan formulation even though in their prior plan [they] were ready to proceed without a judgment there. The Debtors give no reason why they no longer can take the approach of the prior plan, an approach the Debtors did not disavow even as they withdrew that plan. And in light of that fact and the history of futility in these cases, Novell sees no grounds for a further extension of the deadline. If the Court is, nevertheless, inclined to grant a further extension, Novell urges the Court to do so in a way that makes it clear to the Debtors that this is their last chance and that they must act expeditiously. The Court can do this by making the Third Deadlines the outside deadlines under any circumstances and requiring the Debtor to proceed with their plan sooner than the Third Deadlines if the District Court rules in the District Court Litigation sooner.

Not that the bankruptcy court has shown any inclination to hurry SCO along. Remember the first court hearing, when Novell asked for protection from the court, requesting that money it thought it was owed, according to the August 10th Order from Utah, be put in a trust, because otherwise the money would disappear? The judge declined to help, and he said his order would not prejudice Novell, but lo and behold, the money is now pretty much gone. Perhaps he should have listened to Novell back in September.

If voting in the standard-setting context is influenced less by the technical merits of the technology but rather by side agreements, inducements, package deals, reciprocal agreements, or commercial pressure ... then these risk falling foul of the competition rules.

Here's the second most important thing she said in the OOXML context:

Standards bodies do important work in difficult circumstances. But like all of us their rules need to keep pace with the changing commercial environment. If they need help in tightening up their rules to avoid being manipulated by narrow commercial interests, or to design the right ex ante rules, then they have my support. My door is always open.

Well, in the case of ISO, just formulating some required rules would be nice. You know, rules that can't change in the middle of the game. In my schoolyard, we called that cheating. I have a suggestion. How about a rule that a vendor proposing a standard can't stack committees trying to decide whether or not to approve it? No? Too simple?

She also said that choosing open standards is "a very smart business decision." Overall, it's a very encouraging speech. I see one area of concern. I don't think, for example, that she yet sees the significance of software patents and their anticompetitive effect on FOSS. I hope she will read Red Hat's amicus brief in In Re Bilski for a perspective on that. We have it as PDF and as plain text here. It explains very clearly how software patents clash with the Open Source development model, something I hope she will consider.