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Re: Moglen Ravicher LLC -- initial client and initial target

From: Alexander Terekhov
Subject: Re: Moglen Ravicher LLC -- initial client and initial target
Date: Thu, 27 Mar 2008 16:59:34 +0100


(more details... posted a few weeks ago)

Fire-Retardant Underpants

I woke up this morning to find out that my Slashdot post had been
accepted, as well as an e-mail from a friend saying “I hope you’re
wearing your fire-retardant underpants today…”

I learned early on that to do open source you need a thick skin (there
are hundreds of critics willing to tell you what *you* should do), so I
was pretty prepared for the usual raft of somewhat negative comments to
my post. But, hey, Bruce Perens (or someone posing as him) actually
replied. That’s pretty cool.

Most of the comments advised “Get A Lawyer”.


I don’t want to involve lawyers. Why is it in this country the first
knee-jerk reaction is to sue someone. Yes, I did post it under “The
Courts” but that is because there wasn’t a better category on Slashdot.
There was no “licensing” or “open source” category to choose, so I went
with that one.

A lot of people pointed out that there are several references on the
Cittio website that mention open source projects like OpenNMS. I was
aware of them. My point in the original post was that a potential Cittio
customer was totally unaware of their rights under the GPL. Part of the
license is “you must show them these terms so they know their rights.”
(GPLv2, Preamble) The exact timing of this would be up to the individual
company, but my guess is it would have to be before reaching the quote
stage. Sure, you don’t have to distribute the actual source code until
ownership changes hands (i.e. I can’t demand a copy, only a customer
can) but I can’t see where the license requirements for full disclosure
can be upheld by revealing the information after the fact.

Note that this is not a one time thing. We have talked with other Cittio
clients and potential clients in the past and they tell a similar story.
This was the first time, however, that the person was actually concerned
about it. I didn’t screw up on the quotes with the statement “That
really irritates me” - that came from the client.

This came on the heels of a post on the opennms-install list from a
Cittio developer (anonymously) about very recent OpenNMS code. The
Cittio site claims they use OpenNMS 1.0.2, which to be quite frank is
damn near unusable these days. While it isn’t proof that they are
modifying OpenNMS code, it is enough to suggest it. 

Which brings me to the open source double standard.

Open source projects are constantly under scrutiny for the potential to
incorporate “non-free” code into an open source project. This is very
easy to pursue, since the code is out there for anyone to see.
Proprietary companies, on the other hand, can easily hide behind
binaries. It is very hard to deliver proof that someone has used your
code. With all of the amazing stuff being done in the open I can guess
that the temptation to use open code in a closed application is strong,
especially since the chance of getting caught is slim. I am *not*
implying that Cittio in particular does this, but I could see it happen
in general.

One might say (as many Slashdot readers did) that this is the domain of
the Free Software Foundation (of which I am a member) and its legal arm
the Software Freedom Law Center. I tried that route. In 2005 I got an
e-mail from Daniel Ravicher that stated “SFLC unfortunately cannot
generally represent for profit entities, as such could jeopardize our
not-for-profit status.” As the initial code base for OpenNMS is
copyright Oculan (now Raritan) and most of the rest is copyright The
OpenNMS Group (both for-profit companies) they can’t help. I’m not sure
even if our changes were copyright by a non-profit if that would help,
since the original code is still “owned” by Raritan. We are exploring
ways to deal with this, but for now the SFLC can’t help.

This problem raises a number of questions for me, and I think points out
a weakness in the GPL. The reason the copyright to OpenNMS is held by a
number of entities is due directly to the collaborative nature of the
GPL. Suppose Joomla!, a fork of Mambo, modifies under the GPL some
original Mambo code, and a third party takes it and uses it in violation
of the license. Does Joomla! have any right to pursue action against
that party, or do they need Mambo’s permission? It’s very unclear to me.

My favorite comments were those that implied that Cittio would sue me
for libel. Again, my bad for asking for advice on Slashdot, and I
expected as much. Libel can be defined as “the communication of a
statement that makes a false claim, expressively stated or implied to be
factual, that may harm the reputation of an individual, business,
product, group, government or nation.” I made only two claims:

1) A potential Cittio client that had reached the negotiation/quote
stage was not fully aware that OpenNMS was being used as part of

2) A Cittio developer was anonymously asking questions about fairly
recent OpenNMS code.

Neither of those are false. These two facts raised doubts within me
about whether or not I could take Jamie Lerner at his word that Cittio
was obeying the GPL, and I invited Cittio to set the record straight.

It’s not libel.

One has to remember that in 2002 Jamie Lerner contacted us about a
commercial license for OpenNMS. We told him there wasn’t one and
probably wouldn’t ever be one, yet he went on to use OpenNMS anyway. In
2005 we revisited this and he again assured me that Cittio was just
using OpenNMS 1.0.2 and was in no way violating the GPL. This resulted
in the few references to OpenNMS that can be found on the Cittio
website, but no real details as to how the integration was accomplished.
Per the GPLv2 FAQ:

The difference between this and “incorporating” the GPL-covered software
is partly a matter of substance and partly form. The substantive part is
this: if the two programs are combined so that they become effectively
two parts of one program, then you can’t treat them as two separate
programs. So the GPL has to cover the whole thing.

If the two programs remain well separated, like the compiler and the
kernel, or like an editor and a shell, then you can treat them as two
separate programs–but you have to do it properly. The issue is simply
one of form: how you describe what you are doing. Why do we care about
this? Because we want to make sure the users clearly understand the free
status of the GPL-covered software in the collection.

What I want to know is how “well separated” are OpenNMS and Watchtower?

Outside of spending a bunch of money on lawyers, which I didn’t want to
do, I figured I could just appeal to the community. Slashdot seemed like
a perfect choice, and as Bruce Perens pointed out “You’ve achieved your
desired goal”. As I’ve mentioned a couple of times, I welcome Cittio to
explain how they integrate with OpenNMS, how they tell clients and
potential clients about the open source tools they use, and how they
distribute the source code. Perhaps this was all a big misunderstanding.

Note that I’m really not doing this as part of my day job. The OpenNMS
Group is a services-only company. We don’t sell software and so the
potential loss of a client to Cittio is pretty much a non-event as far
as our bottom line is concerned. But I felt compelled to do this for our
community. It would be just plain wrong for a company to take their work
and to attempt to profit from it, so I look forward to Cittio putting
all of our doubts to rest.

I was really surprised at the small amount of Slashdot comments with,
for lack of a better word, “righteous indignation” at a possible GPL
violation (although we did get support from unlikely corners). Perhaps
we in open source are really in our own little world, and stuff like
this doesn’t matter to the world at large. Well, it matters to me.


"03/17/2008 10  NOTICE OF VOLUNTARY DISMISSAL: Pursuant to Rule 41(a)(1) 
of the F.R.C.P., plaintiffs Erik Andersen and Rob Landley hereby dismiss 
this action against defendant Verizon Communications Inc. WITH

                         -- CIVIL DOCKET FOR CASE #: 1:07-cv-11070-LTS

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