Jordan Furlong’s pingback from his Law21 Rebundling the law firm post earlier today kindly and gently stirred me from my “Rip Van Winkle”-like blog slumber.  After reading my last three posts and wincing at the rusty dates (stretching way back to December, November, and August of 2010!), I am making a “somewhat clumsy and sheepish” Groundhog Day re-re-entry to this world.  While I was once again tempted to offer up some colourful and creative excuses for my most recent prolonged absence (abduction by aliens remains a favourite), the simple truth is that the last year and several months have continued to be a time of considerable professional (and personal) change and challenge.  In particular, I very recently wrapped up version 2.0 of my in-house counsel career and I am in the process of launching version 3.0 of my law firm career and returning to my n2one inc. start-up.

The last several weeks have been a time of great sadness as I said goodbye to many new and old friends and amazing colleagues at the wonderful technology company which so kindly welcomed me a year and a half ago.  Yet I have found great comfort in the quote, used in my farewell email, from Miranda in Peter Weir’s iconic Picnic at Hanging Rock film - ”everything begins and ends at the exactly the right time and place”.  It is a time of great excitement for me to re-engage with the wider Ottawa (and global) hi tech community and I hope that my blog can be a way for me to give back, keep in touch, and say thank you.

I’m back once again yet again!  (And I am so very very glad to be back.)

In the midst of the busyness of this time of year, I was struck by a quote in a December 21 2010 tweet by Dion Almaer @dalmaer (retweeted by Markus Leutwyler @twtomcat earlier this week):

Google’s weapon of choice is more often open source and open standards.

Dion sourced the quote from an interesting post by Paul Buchheit entitled Four reasons Google is still Awesome. While I readily confess that I have not digested the rather polar range of comments generated by his post, I do want to take the time to explore the threads of competition and monopoly initially in this post and continuing in my follow-on posts.

I will start by quoting the entirety of the following response by Mark Sigal to Paul’s post:

Paul,

I’d challenge your assertion that Google competes in positive ways. If anything, their strategy is ripped from the Microsoft PC-era playbook; namely, commoditize the way your competition makes money so as to choke off its oxygen supply, while gaining you more market share in the way YOU make money (advertising, in Google’s case).

When Microsoft did this, we called it predatorial and monopolistic, yet you’d call it competing in positive ways?

Case in point, Android has enabled carriers to re-establish software and service fiefdoms that they were well on their way to losing, owing to the rise of iPhone. How does the consumer win in that case?

And is “open” Google all that open when it comes to making transparent and open their own proprietary differentiation? Hardly: think search index and keyword arbitrage.

Don’t get me wrong. Google is great at what they do, and on points 1,2 and 4, give them full props, but the company is every bit the assassin that Apple, Facebook, Amazon and the like are when it comes to competition.

Cheers,

Mark

On the competition point, I believe that competition is simply what business does and should be expected to do. Furthermore, competition is competition, whether open or closed, which is belied by Paul’s very selection of the phrase “weapon of choice”. What is particularly interesting about “open” competition is that it sometimes does not seem like competition at all given the intuitive appeal of the “level playing field”. In fact, the level playing field is frequently the preferred battle-ground for the dominant player since it offers no impediment to its continued dominance while offering a faint promise, if not illusion, of success to the other players and consumers.

In some ways, this parallels the challenge of formal equality in a just society.  In the famous words of Anatole France, ”the law in its majesty prohibits rich and poor alike from sleeping under bridges”, and the same is unfortunately also true of formal equality and its promise of a level playing field.  While I am well aware of the many great perils of alternative approaches, I am increasing convinced that only true path to a just society is found in tilting that playing field to create substantive equality for the disadvantaged.  Thus ends my aside!

On the topic of monopoly, I am deeply concerned that the “open” we see from Google is most often peripheral in the sense that it is either at the ends of, or irrelevant to, the core Google monopoly (as flagged in Mark’s comment).   While I have no evidence that Google has violated any of its 10 core principles, including ”You can make money without doing evil”, I am uneasy with the concentration of power that is inherent in Google’s stated goal “to bring all the world‘s information to people seeking answers”. Although I am no expert on monopolies and anti-trust, it seems to me that Google, in its current form, rivals anything that society faced from the Standard Oil, AT&T, or Microsoft at the zenith of their powers.  In many ways, the AT&T fact scenario, divestiture remedies, and lessons learned seem very apropos to the current situation with Google.

I often quip in my day job, that my role is to worry when my client is not worried and to be paranoid when my client is worried. These days, I simply worry about Google although there are times that I worry that I am not being paranoid!  Perhaps I worry most because the very government regulators that tackled the titans of monopolies past, seem oddly unconcerned. Although I confess that I am making a lot more use of Bing and Mapquest these days and that I have never had a gmail account, I share Paul aspiration that, “Hopefully I don’t come off as a hater or a fan boy, but simply an honest observer”.  Seasons Greetings!

Comments?

It has been almost three months since my last post and this is my somewhat clumsy and sheepish re-entry to this world.  While I spent time dreaming up colourful excuses for my absence (my current favourite is that I was abducted by aliens), the simple truth is that the last 86 days have been a time of considerable professional (and personal) change.  In particular, I wrapped up version 2.0 of my law firm career and returned to my corporate roots in version 2.0 of my in-house counsel career.

While it has been a time of great excitement, it has also been a time of great sadness.  I said farewell to a law firm which so kindly welcomed me back some three years ago and to my new and old friends both there and in the wider Ottawa hi tech community.  I hope that my return to my blog can be a way to both keep in touch and to say a simple thank you by giving back.

I’m back!  (And I am glad to be back.)

I recently came across John Brodkin’s  Microsoft: ‘We love open source’ article on InfoWorld. John’s excellent article probes the long and complex relationship between Microsoft and the “open source community”. While reading John’s article and reflecting on some parallel themes in my MicrOSoft series of posts, I found myself thinking of Bill Murray’s character in the iconic Groundhog Day film and it’s tagline: “ He’s having the [worst] day of his life… over, and over…”

In the film, Bill Murray plays Phil Connor, a Pittsburgh TV weatherman assigned to cover the annual Groundhog Day event in Punxsutawney, who finds himself living the same day over and over again. After indulging himself with impunity and then attempting suicide, Phil decides to use the time to become a better person.  The “spell” ends when he finally wins the heart of Rita (the TV station’s new producer).

Microsoft’s relationship with the open source software community has some striking parallels with the plot of this film.  In particular, while I believe that the company is sincere about its love of open source and is honestly working to improve itself in this area, it is pretty clear “MicrOSoft is  having the worst day of [its] life… over, and over…” I really wonder what it will take to break this spell!

It has been interesting to watch the buzz surrounding the recent MPEG-LA announcement on H.264 that I first read about yesterday in Eric Slivka’s  MPEG LA Declares H.264 Standard Permanently Royalty-Free post on MacRumors.  Having explored this area in my Party On – WebM & patents series of posts, I fully endorse the caution on Sean Hollister’s MPEG-LA makes H.264 video royalty-free forever, as long as it’s freely distributed Engadget post  that  ”patent licensing is complicated stuff”!

So let’s start with Eric’s assessment that “Today’s announcement also paves the way for H.264 to become the standard video format for HTML5″.  For a more nuanced analysis of Eric’s perspective, let’s turn to Dana Bankenhorn’s excellent MPEG LA tries free as in beer against WebM | ZDNet post on ZDNet’s Linux and Open Source blog.  I believe that Dana would only agree that “Today’s announcement also paves the way for H.264 to become a standard video format for HTML5″ given his statements that “The current HTML5 standards document includes support code for H.264″  which is now “royalty free, and defended by a moat of lawyers”.

The more interesting question is whether HTML.5 will end up specifying the standard video format – the open standard starring role that WebM has been auditioning for.  As Dana notes, “WebM was created as a project that could be specified, being complete and free as in freedom.”  Since I agree with Dana’s assessment that the MPEG-LA announcement could result in decreased interest in the  WebM open source software project, I now see WebM as a bit of an underdog in that process.  Given Google’s dogged determination, only time will tell whether “free as in freedom” can trump “free as in beer”!

If you can please pardon me for not posting for a while, I would like to take you back to my post entitled What’s in a name? In that very early post, I both commended Red Hat for its www.opensource.com initiative and critiqued Red Hat and others for their confusing use of terms like the “open source way”.  While these terms may have helped in the early days when the open source software model was “being viewed as a model for collaboration beyond software”, these transitional terms are now the modern equivalent of the “horseless carriage”!

While some people (like my “horsey” daughter) may continue to be fond of describing the modern automobile as a horseless carriage, there is much more at stake than quaintness. The continued use of the term is more than merely confusing it actually misleads us into thoughts about horses and carriages that have no real place or connection with my Honda Civic.

In the same way, the continued use of terms like the “open source way” may mislead us into thoughts about “open” and “source” that have no real place or connection with the underlying instance of “commons sourcing”.  Or as Matt Asay points out as part of his Can Open Source Be Saved From Itself? post on GigaOM, “Open-source licensing never deserved the single-minded devotion so many of us paid to it. It’s a starting point — a means — but not the end goal.”  The most interesting things that are happening in this space may, in fact, not be “open” or “source” or “licensing”.

It is time for all of us to set aside our “horseless carriage” language of the past and embrace powerful and descriptive terms like “commons sourcing”.  And by the way, my original offer to contribute my domain:  www.commonssourcing.com to the cause still stands!

At this point in August, I am being bombarded by back to school promotions (although my daughter is still managing to exercise a healthy degree of denial!)  So it is a rather odd time to also be coming across a number of Open Source Software “report cards” for the enterprise.  These include the Accenture report discussed in my He shoots, he scores! – open source, “entersource” & hockey blog post from last week and the latest one from Zenoss discussed in Dave Rosenberg’s Survey: 98 percent of enterprises using open source post on CNET’s Software, Interrupted blog.

The Zenoss report, which was based on “A nearly 4-year-long survey of open-source systems management usage …. showed that 98 percent of the respondents said they used open-source software in their enterprises.”  I encourage you to review Dave’s excellent summary of the report as well as the report and downloadable survey itself.  It seems to me that open source software is well on its way to the top of the class in the enterprise and I am expecting that entersource will be picking up a lot of the awards this year.  And while some of the commercial software vendors may be day-dreaming in the same summer denial as my daughter, the bell for the first day of school will surely ring soon.

As mentioned in yesterday’s post, I will be giving a CommonsKnowledge™ talk at Saturday’s fosslc.org Open Source Technology showcase – SC2010.  In addition, I will be participating in what will no doubt be an interesting session on intellectual property and open source software that afternoon.   I will be asserting the rather moderate often stated position of my blog that intellectual property is both the very foundation of the open source software movement and a potentially significant threat to the movement itself that needs to be addressed.  As I said in my The double-edged sword of enforcement post back in February:

I do find it curious that many individuals are simultaneously celebrating the triumph of the copyright regime in the Jacobsen case and rueing the “apparently” successful assertion of patents against Linux.  Since the OSS movement is, at its core, a creative licensing initiative with intellectual property as its very foundation, it is time for the community to adopt a more consistent approach.  While I am well aware of the many challenges that software patents bring to the OSS movement, it is time for the OSS community to come together to unleash its awesome creativity to address and overcome these challenges in a constructive and healthy manner that respects the double-edged sword of enforcement.

Or as I said in my subsequent Codecs, Codecs, everywhere post

the open source software world in general, and its codecs in particular, need to pay attention to the patent landscape. I continue to believe that the open source community should move beyond denial, anger, and depression and channel its creativity and energy into acceptance and even bargaining in this space.

I strongly believe that these words ring even more true in this post-Bilski era for the reasons set out in my Post-Bilski Buzz- next round in patents v. open source software post.

Since my frequent quip that “software patents are the only things that keep the open source software movement awake at night” is based on a spirited lunchtime address at Columbia University by law professor Eben Moglen from several years ago, I was intrigued to see him featured in the OSS and software patents: if you can’t beat ‘em, join ‘em post by Ryan Paul on Ars Technica’s Open Ended blog which gives the following summary of his talk:

The stalled efforts at legislative reform and the lack of clarity from the courts have made it increasingly clear that the patent system isn’t going to be fixed any time in the near future. Moglen contends that the free software community’s only recourse is to find innovative solutions that will work within the boundaries of the existing patent system. The outcome of the Bilski case suggests that fighting the patent system won’t lead to victory, but the system can potentially be adapted to serve open source interests—in much the same way that copyleft licenses rely on copyright law in order to function.

While I strongly encourage you to read the entirety of Ryan’s post (including his excellent analysis of the limits of Moglen’s prescribed Open Innovation Network-like patent pool solution), I confess that I am pretty shocked to find myself so closely aligned with Professor Moglen! And while Professor Moglen’s prescription may not be complete, I entirely agree with him that  ”the free software community must not become complacent, because the problem will only be solved if people care and look for solutions”. I remain confident that this is truly the time for the “OSS community to come together to unleash its awesome creativity to address and overcome these challenges in a constructive and healthy manner”. By working together, we will be able to overcome the fear of software patents to arrive at a patently clear prescription for a pretty good night’s sleep!

As I was preparing for my CommonsKnowledge™ talk for Saturday’s fosslc.org Open Source Technology showcase – SC2010, I was very pleased to see my TweetDeck buzzing about Joab Jackson’s Computerworld post entitled  Linux Foundation offers open source compliance checklist. The Open Compliance Program is a “new, mostly free, assistance program just launched by the non-profit Linux Foundation….[which] includes an assessment checklist, training programs and software tools to monitor open source software usage.”

While the announced offering will not go as far as n2one inc.’s ”mostly not free!”  service offering, it is yet another sign of the growing importance of open source software, entersource, and the commons sourcing movement. In particular, it illustrates that challenge of delivering reliable information and guidance to the diverse and growing open source software user base.  As Jim Zemlin (executive director of The Linux Foundation) points out

Managing open source license compliance is complicated….What we were looking for is [a way] to solve this complexity and to prevent needless lawsuits [since] our community has the exact same goal that the industry has, to make using open source as low-cost and as easy as possible.

I applaud the Linux Foundation for its initiative and thank “Adobe, Advanced Micro Devices, Cisco Systems, Google, Hewlett-Packard, IBM, Intel, Motorola, Novell, Samsung, the Software Freedom Law Center and Sony Electronics” for endorsing this program.  I look forward to complementing its program with my upcoming CommonsKnowledge™ Open Source Software Edition™ offering by Bringing clarity to the complexity of open source software licensing™ .

While reflecting on my Bursting Bubbles & the “golden age of open source?”  post from yesterday, I  came across Simon Phipps’ tweet for his links for 2010-08-10  which included his following  description of Matthew Aslett’s The golden age of open source? post:

Matthew Aslett describes what I called “the open source bubble” as open source 3.0 and agrees it’s ending in favour of what he calls “open source 4.0″ or company-dominated (but not controlled) collaborative communities. He notes he’s adjusting his predictions in the light of the involvement of entities such as NASA who are not directly software vendors and describes this as the coming “golden age of open source”, citing examples. Certainly worth reading, and bound to stimulate conversations – “the King is dead, long live the King”.

While I am supportive of Matthew’s and Simon’s analysis, I believe that the claim that open source 3.0 is “ending in favour of” open source 4.0 is inaccurate.  The various stages of open source software are not sequential chapters where one chapter must end before the next chapter begins.  The four stages put forward by Matthew should really be seen as quadrants that will and should co-exist. 

While I accept Simon’s following analysis from his initial post:

The anomaly is not that projects like Hadoop or OpenStack lack a company “monetising” them – it’s that we believe open source projects ought to have such a company. The past decade has been something of an “open source bubble”, with many people believing there is a fortune to be made if only they can find the right business model to pack around open source.

 it is important to realize that open source 3.0 is simply becoming a smaller bubble that is at most endangered and certainly not extinct.  While the emphasis on quadrants will shift over time, the “kings” will coexist and the world of open source software will be stronger from this diversity.

One farm boy lesson I learned from  many hours spent weeding our gardens, is that “nature abhors a mono-culture”. This is equally true of open source software and commons sourcing and the world is a better place because of it.