John Palfrey

Wendy today presented about OpenLaw and Chilling Effects.  Good coverage here, here and here.  As usual, Donna Wentworth has done a great job keeping us all in the loop.

[Other good sources: Aaron Swartz’s live notes on this session, which appears to be a fairly true transcript, moreso than my notes below.  The style of these notes below is taking from “scribing,” which is meant to be a redaction of the key statements made during the session.  Check here for Roger’s notes.  And, of course, don’t miss Donna’s take on things at the main page of the Harvard blogs space.]

Charles Nesson: Introducing the Berkman Center’s reasoning for getting involved in OSCOM: we’re into openness on the Net, and something is happening here.  There’s a great trajectory for this organization.  Once the open source community learns some hard lessons, we’re going to succeed.

Introduces Dave Winer: a force of nature, provocative, and “the king of the blog world” in all sorts of ways.

Dave: Thesis: Find ways to work together.  Words like “proprietary” and “closed” are terrible words.  Look for people you can make friends with.  The story of “Microsoft v. you” is destructive.

Look for the philosophy of open source.  Let’s get rid of the lines and start working together.  There are lots of people who are doing some combination of open and proprietary.

Joseph Reagle of MIT: Talking terminology can go a long way and take a long time, so you may want to cut it short.  The term “proprietary” started not with open source people but with developers of proprietary software who were promoting it as a good thing.  While I haven’t developed proprietary/commercial software in the past, I would consider it — I’m not one to pigeon-hole people.

Halley Suitt: What does LINUX even look like?  I’ve never seen it.  Is there some giant non-sales-and-marketing effort for open source?  [Someone shows Halley what LINUX looks like.]

Dave Winer: Sometimes you have to argue not for things that we like, but against them.  There’s a remarkable way of working: reach some kind of consensus.  Don’t make it a bunch of powerless people fighting amongst themselves to be heard.

Tony Burn from CMSWatch: 1) There are successful 40-person software companies (Dave had been citing the demise of this model), developing shrink-wrap and/or serving as ASPs.  2) There’s a fundamental difference between developing software for other developers and stating that CMSes are the wave of the future.  The people playing with Apache are developers and sys ad types.

Dave: Become a user yourself.  You can’t develop presentation software without doing presentation.  Same for outlining software.

Dave to Charlie Nesson: I don’t think you really want my source-code.  I don’t think you really know what you want when you say you want open source.

Larry Rosen from the audience: You want to be able to create derivative works.

Audience: Switching costs are high (training, not data conversion).

Aaron Swartz: You should be able to fix bugs when the company goes belly-up.

Dave: That’s a legitimate concern. 

Audience: Use source-code escrow.

Sam: I don’t want to be stranded.  My blog doesn’t always look great in IE, and I want to fix that.

Dave: MSFT should give up the IE source-code, because they’re not updating it anymore.

Paul from Zope Europe: Users and usability is a key point.  Tony has a cool piece on it.  What’s the motivator in developing open source?  First it solves something I want done.  Then, 47 reasons later, it’s about making it easy for a secretary to use.  So, two great take-aways: 1) Users first.  And, 2) Don’t fight amongst ourselves.

Dave: Paul, you wrote a very good piece that said “Don’t argue about data formats is right.”  That’s right on.  We should stand on the shoulders of giants, not on one another’s toes.

Audience: I want to be part of a community.  What that means is having access to source code.

Bill Ahern from Washington, DC: In order to live in a democracy, I need the right to vote.  I take issue with your question about defending why should we be using open source.  We don’t have to ask about “why are we living in a democracy?”

Dave: We have property, like houses.  Your analogy doesn’t follow.  The things that I create are mine, not yours.  I gather you wouldn’t want to use it if you can’t have the source.  That’s your choice.  I want to live in a democracy, not in a communist state.

Bill: Maybe there’s a little communism in a democracy.

Brian Cortes: There’s a big aversion to tooting your own horn.  The open source community is flaming its friends.  That’s problematic.  Big businesses are asking what I’ll get out of going open source.

Dave: That’s a legitimate concern, isn’t it?  So, you also have to ask the question: will someone ever fix those bugs?  Just because the code is out there, doesn’t mean the bugs will be fixed necessarily.  **Common denominator: I want to use software that will still be around in two to four years.**  [Ed.: That’s a great place to start, no?]  Apache will be running 10 - 20 years from now.  Windows will be running 10 - 20 years from now. 

Larry: This is a useful point, but you’ve got the wrong audience for it.  Ask a business person, government staf, a lawyer, people who don’t get the tech.  People want safe, usable software from a company they can trust.  Look at it from a user perspective; they don’t care about the source code [Ben Edelman has made this point convincingly to me in the past.]

Dave: Somehow my work is less valuable when I’m doing something other people will be doing in a few years.  And I’m charging for it.  But not via patents.

Mike from IMB Enterprises: Manila didn’t make it because of Radio Userland.  You’ve got a support issue and a documentation issue.  Blogger’s got the same thing. 

Dave: There’s no money in software.  It doesn’t exist.  The software industry doesn’t exist.  We can’t give you support for $39.95.

And, more Dave: we shouldn’t make a religious war of whether you like Bill Gates or Richard Stallman.  I don’t like either of them.  Neither of them take baths, by the way.

Audience: Let’s talk RSS.

Dave: OK.  We need to get back to the roots, trace the trail, and we’d be in a better place than where we are now.  Joi Ito wants to know which version to use.  Man, I don’t know.  I can tell you what would work with my software, but not what will work with other people’s software.  That’s a big problem.  There’s been lots and lots of gratuitous incompatibility.  If we got compatibility between the big three tools, then we’d be able to solve lots of problems. 

Dave: Blogging is not a democracy, that’s why it works.

Bill Kearney: [Challenges Dave.  Unclear exactly the nature of the complaint.]

[Sparks fly here.]

Bill Kearney: People want to be able to collaborate and to contribute, rather than be dictated to.

Charlie: Dave, explain to me the obvious enmity.  What is the dispute between the two of you?

Dave: I don’t even know where to begin.

[More personal stuff, not worth repeating in detail.] 

Gregor: This dispute points to the trouble we had in working out OSCOM. We have to get past the social problems before we can work on the technical problems.  We have to go to the pub and drink beers together before we can get things done.

Larry Rosen: There are lots of people in this space who hate one another.  That’s a huge problem.

Charlie: One thing: it requires that there be a moderator who is not interested in the dispute.  Let’s move on.

Michael: I now understand why the Jerry Springer show was invented.  It’s better to move on.

Audience: One of the issues here maps to how you get credit in an academic setting for something like this, and the open source community doesn’t work this way.

[End of session, extremely abruptly, an elephant in the room, on a note that speaks to the issue we’re talking about, on the issue that Dave started with.  Can this open community approach work productively?  Can we get past the personal to the technical?  This break-down is very importantly illustrative.  We started with a philosophy of open discussion; it worked for about an hour; and it then got hijacked by a personal dispute.  Is this any way to run a railroad?  -Ed.]

Prof. Charles Nesson is moderating a panel on business models and the open source movement. 

* Ed Boyajian of Red Hat, who says they’re in the black, talked about the enterprise solution opportunity and the good news of getting support from the capital markets at the right moment. 

* Gregor Rothfuss of Wyona (a service company, not a product company) says they’ve been in the black since its founding.  There’s been no local v.c. community in Switzerland to speak of for Wyona to work with.  But they’ve benefitted from going open source which he says gives them a competitive edge.  Open source product companies — shrink-wrapped — can’t work.  Wyona sells consulting services.  The pitch for standards should be made as effectively as possible.  XML itself is not the answer.  You need a strong and viable community.  Wyona has joined the Apache bandwagon as a way to join such a community.  The pitch that’s working for financial players in Switzerland: the long-term security of their code base.

* JT Smith, CEO of PlainBlack, also runs an open source company in the black.  Active State, O’Reilly, lots of others are making money at Open Source.  IBM and Sun also produce open source software and are profitable.  Yes, you can make money making open source.  Don’t worry about talking techy, focus on what your customers want and develop multiple revenue streams.  There’s a myth out there that open source community’s software is lousy — we need to overcome that myth.  The open source community needs to be all about marketing.  There are 604,000 users on SourceForge and 140,000 on FreshMeat.  If you’re not using them, you’re making a mistake.

* Ed Kelly of Ropes & Gray, (”batting clean-up,” says Charles Nesson) has been a coder, a business executive and is now a leading intellectual property lawyer.  Ed’s playing devil’s advocate, talking truth about what Venture Capitalists are looking for in investments.  Right now, VCs are saying that it’s tough to make money doing anything, so making money from open source is just another tough thing.  VCs are generally disposed against open source because it gives up a key revenue stream (licensing) and are against those who stumble into open source or are philosophical zealots.  VCs will listen, though, if you’re using open source as a marketing approach to increase other sales.  Important also that you retain the ability to release things under a proprietary license.  It can work to have open source as part of your business model, but not the whole thing.

Hypo, from Professor Nesson: Dudley Dooright stumbles into an open source business model and distributes wonderful software that makes them famous.  But they have no money.  So what do they do?

Ed Kelly: That’s the MySQL story.

Dave Winer, from the audience: Just getting VCs to invest is not a business model with revenue and other good things.

JT: They have multiple licenses.  And no one is doing it better than MySQL.

Mike Olson, of SleepyCat, from the audience: Beg to differ.  MySQL is on the edge of a cliff.  No one realizes they can get the same thing for free.  Uncertainty is what’s allowing them to charge for their software.  But without that uncertainty…

Ed Kelly: First, it’s a common mistake that open source just means the GPL.  You use a copyright approach that lets you release some of the code base open source and then charge by contract for other parts of the code.

Denise Cooper of Sun, from the audience: Lots of stuff is not in the GPL, which is really just a copyright notice.  Troubling: the GPL is undermined when developers want some work to be sequestered and then edit the GPL for their own purposes. 

Ed Kelly: The primary point of GPL is to disclaim liability.  (Denise: I so disagree.)  Most users are trying to protect themselves from catastrophic damages.  Academic research institutions can release code without fear of liability.

Prof. Nesson: So you’re saying that Dudley Dooright should just hold some back and make money from proprietary licenses.  Is that right?

JT: You can release the code and then charge for other things, like support.

From the audience: I run a small company doing open source.  It’s taking weeks to hash out a license.  Mr. Dooright has the same problem I have. 

Ed B.: Open source isn’t a business model, it’s a development model.  The contract issue is routed into the business model question.

Larry Rosen of OSI, from the audience: There’s a lot of money to be made in open source.  IBM and HP and Sun are the ones making the money, and it’s because they’re devoting lots of money and staff to the work.  Is there any way for open source companies to compete effectively and to prevent the open source development to be co-opted by big rich companies?

Ed B.: If you’re just an individual, then you need to act differently than a company would think.  Big mature markets, like content management, is too tough for small players to compete.  But there are plenty of smaller markets where enterprises are spending money and are turning to proprietary companies to get it done.

Dave Winer: Of course you can make money selling open source.  You just have to keep some of it and charge for it.  That’s even the MSFT business model.  We shouldn’t get technical about what license, etc.  There’s nothing wrong with selling something unique and giving something away.  You can make money setting a standard, too.

Mike Blonder of IMB Enterprises: If you’re trying to market open source — whether your code or services — it’s a business.  You need to focus on this business.  I disagree with Ed B. of Red Hat, 100%.  Dudley Dooright needs to leverage the contact list of SourceForge.  That’s the Microsoft-Netscape story.  Just provide good service.

Derek Senior of GWS, distributor of coffee services: His confidence has gone up.  Are you a coder or a business person?  There’s money to be made here.  It’s not so much about the code but about providing good customer service.  How do you handle and solve people’s problems?  You need to listen to customers, not talk about the code.  [Dave Winer has been making this point to me repeatedly: listen to users, listen to users, listen to users.]

Question: Can we enhance usability and maintenance by the means of releasing code open source?

Gregor: Newspaper companies in Switzerland are agreeing to share their code and make it compatible on an open source platform.  All major players will contribute.  60% of the market for newspapers are involved, so we expect that the rest will follow.

JT: Depends on what the code is doing.  There are security reasons, or Sarbanes-Oxley reasons (or, say, public company concerns re: shareholders), for non-release sometimes.

Professor Nesson: Dudley pulled back some of his code, packaged it up, put it out with proprietary licenses.  But he got flamed.  What is that about?

Joseph Reagle: There’s a commitment to a commons and if someone pulls out, then there’s someone leaving that commons.  I’m not excusing the flames.

Prof. Nesson: Can you be a commons contributor and make money?

Reagle: You live with it.  It’s the culture.  You’ll get flamed if you tend away from commons and toward money.

Dmitri from Minsk, Belarus: We’re discussing the wrong question.  You can’t make money with software, it should be called.  You make the money with support and other things around it.

Larry Rosen: You need to learn to be a business person, not just someone focused on trying to make money.

Carl Hacken, a sociologist studying open source developers (applause, laughter!), talking about his growing field.  Emperor has no clothes questions: Why are you talking about making money, when you should be talking about either generating wealth or generating revenue?  Can you generate wealth off of open source?

Bob from U-Dub: Generating wealth from a CMS is not the issue.  You need to link people.  CMSes succeed when you’re linking people who have information with people who need information.  Focus on the problem that CMS purports to solve.  Plenty of examples of people generating wealth from CMSes.  It increases process efficiency.

Vanessa Lane: CMSes generally don’t succeed at what they’re setting out to do.  If you do succeed, it’s El Dorado.

Denise: Companies are hiring sociologists to solve this problem.  And the hybrid model isn’t going away.

Benedictions:

JT:  You can make money off open source if you think like a business, not a developer.

Ed K.: Make money by selling a product or a service.  Despite the margins on product, you’ll probably make your money on service.

Ed B.: Start with pain, and the closer you stay there, the more money you’ll make.  Minimize risk to your customers.

Gregor: Switch from software to social engineering.  

A few thoughts as the three-day Open Source Content Management (OSCOM) Conference opens here this morning in Cambridge on the HLS campus.  Some of the key questions we (as the Berkman Center) are particularly interested in exploring:

* Interoperability of open source applications (including interop of blogging tools, which Dave Winer will address in his keynote and on his blog);

* Whether or not there’s a sustainable business model in open source (”You can’t make money on open source” is the title of the first panel, which Professor Charles Nesson is moderating);

* The interrelationship of various IP protections for open source, including a discussion of what the GPL really means and a look at various alternatives, including Creative Commons licenses; and,

* The production model of open source, a la Professor Yochai Benkler’s recent “Coase’s Penguin” article, which is a must read if you haven’t already.

Donna Wentworth will be blogging key parts of the 3-day OSCOM conference, which kicks off tomorrow and runs through Friday, May 30.  If you can’t be here in Cambridge for it (we’re hosting on the Harvard Law School campus, primarily in the Ames Courtroom), check out http://blogs.law.harvard.edu for excellent, contextualized coverage from Donna — and hopefully others.

Professor Lessig wants your help on behalf of the public domain.  He’s got a few specific requests, which include spreading the word about the proposed act (still in its nascent stages) and writing to your Congressman and Senators (yes, it’s quaint, but yes, it does matter).  In case you want a little help in drafting your correspondence, Derek Slater has made it easy for you.  (Derek’s work, I’ve found, is eminently trustworthy, FWIW.)

For taking a strong stance against MediaCon, as reported in the Boston Globe.  Congressman Markey, a Democratic who represents Malden, Massachusetts and the surrounding area, introduced legislation that would block the FCC’s ability to raise the cap on the number of stations owned by large industry players, in the name of “diversity and localism.” 

Worth the read, particularly if you’re thinking of the Web and pedagogy in some fashion.  I don’t know the author (Oliver Wrede, who presented it at BlogTalk this past week) but was impressed by the amount of work and thought that went into the piece.  Made me wish I’d been there.

Or, this animal tries to cover its tracks.  A person in the know points out that Gator didn’t like the archived version of their old page re: advertising, so they’ve asked for it to be excluded.  The URL has been “archived but not indexed.”

See Seth Finkelstein’s blog post of last night for a critique of the thinking around the methodology in Ben Edelman’s Gator study.  Seth has done many good works in this field — he’s been cited by the EFF and others for his efforts — and is certainly worth listening to as a general matter.  I don’t happen to agree with this particular post, but in the interest of true open discourse, please go and check it out.

More on that story: as of yesterday, it appears that Gator had stopped targeting Harvard, Yale and others with pop-ups for the University of Phoenix.  I would have liked to have been a fly on the wall to hear how that decision got made.

P.S., Seth, as to your note about employment: You might check with Cooley Godward, Gator’s lawyers, to see if they have a position open.