This has been a very hard piece to write. We felt we needed to talk to as many people as possible, we needed to sift through  significant amounts of Fear Uncertainty and Doubt along with unnecessarily emotional responses.

Things weren’t made any easier by the fact that every time we felt ready to publish something else heppened that seemed to change the story somewhat and we had to return to our sources for more observations.

During our research for this article OSS Watch have been accused, by an OSI board observer and ASF Member, of being “surrogates” for Microsoft, whilst Tony Hey (Corporate Vice President of External Research, Microsoft) privately expressed concern that OSS Watch was “encouraging academics to use the GPL.” Simultaneously, various free software representatives have pointed out how “naive” they believed us to be by even considering the idea that Microsoft may have genuine intentions with respect to engaging with the free and open source community.

As a non-advocacy advisory service we tend to think that if all sides in a debate believe we are in the wrong, yet all are still talking to us, we are probably doing something right. Certainly none of them can claim us as their own.

Given all this input what did we conclude?

Well, as you would expect, the conclusion is far from clear. On the one side we have the Stallman’s (Free Software Foundation) view that “these free programs are meant specifically to prevent the world from freeing itself from non-free software”. On the other side we have Erenkrantz’s (The Apache Software Foundation) view that “every positive and constructive engagement Microsoft has with the open source community (and vice versa) … will continue to chip away at the old perceptions”.

Furthermore, whilst Microsoft may be making concessions to open source and are happy to play with open source when it suits their needs they are also willing to use other methods where it best suits their business. For example, on patents Darren Strange (Head of Open Source Engagement, Microsoft UK) says “Patents drive innovation and they drive openness actually.”

Our own conclusion is that “Microsoft is not simply an unchanging monolith.” The article demonstrates that things within Microsoft are changing. Naturally they are changing in ways that benefit Microsoft as a business, but the good news is that some of these changes also benefit the world of free and open source software.

Over the years I have often quoted Ghandi when looking at Microsoft and their relationship with Free and Open Source Software: “First they ignore you, then they ridicule you, then they fight you, then you win”. FOSS has not “won” yet, but the frontline is moving and it is open source software that is winning.

Message posted today on our social mailing list at work:

Do you lendaround ? Let me know if you sign up and I’ll email you an invite which’ll make it easier for you to connect into the network.

According to their website, Lendaround is a free web tool that aims to help people borrow things from one another. It’s good to bring friends, neighbours, families and colleagues together by swapping things, such as DVDs, isn’t it?

Why do such tools exist? Apparently, because somebody had an idea that made them sleepless in the first instance, and this person persuaded others to help make it happen:

Looking around his home, Tim noticed how much stuff we all seem to have that doesn’t get used very much — at a time when there are a billion people in the world who have not very much at all, and when it would be good to use a bit less of the earth’s resources.

The email message reminded me of a good read about The Myth of Crowdsourcing my colleague Amir pointed to me recently:

In the popular press, and in the minds of millions of people, the word crowdsourcing has created an illusion that there is a crowd that solves problems better than individuals. For the past 10 years, the buzz around open source has created a similar false impression. The notion of crowds creating solutions appeals to our desire to believe that working together we can do anything, but in terms of innovation it is just ridiculous.

The crowds by themselves, the author suggests, are unable to produce innovation. It is the highly skilled, highly motivated ‘virtuosos’ who are the real engines behind the often misused term crowdsourcing.

Open-source developers are often mentioned as a crowd of motivated programmers ready to meet the world’s software needs. A lot of wishful thinkers love to put forth the notion that all large software companies should be quaking in their boots because a crowd of open-source developers is ready to eat their lunch and create software for any purpose. There is no crowd of open-source developers ready to attack every problem. In fact, most open-source projects are the product of one obsessed individual who wrote the software to meet his own needs. Often this individual was joined by other programmers who shared the founder’s vision and, under his direction, created great software. Yes, there are large teams of developers on open-source projects, but without the virtuoso contribution at the outset, they would achieve nothing.

In OSS Watch consultations with HE projects we often need to correct the general view that open source is mainly the affair of a bunch of bearded geeks animated by common idealistic views. In fact, as mentioned in one of our workshop reports, the open development model that lays at the foundation of most open source commercial businesses is based on what Harvard Internet lawyer Yochai Benkler termed “commons-based peer-production”, a process by which everyone who contributes also gets something back that furthers their interests.

A certain level of pragmatism associated with the business of open source is perhaps not unrelated with the idea of the highly skilled ‘virtuosos’ that make crowds vibrate. Something worth exploring further, maybe in a break between watching two lendaround DVDs.

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues),conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you,  the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

What this meant for Tomtom was that if they settled with Microsoft by - say - agreeing to pay them 1p for each copy of GNU/Linux they distributed, then they would in fact have invalidated their licence to distribute GNU/Linux at all. The GPL v2 insists that either the code it covers goes out with no additional encumbrances or it doe not go out at all. Now Microsoft is very aware of this provision. Their cross-licensing deal with Novell - detailed in an OSS Watch blog post here - was structured precisely so as to avoid this consequence. Many in the free and open source community feared that Tomtom would strike a similar deal with Microsoft, and fans of the lastest version of the GPL, v3, announced Microsoft’s actions in this case should act as a ‘wake-up call’ for developers to begin using the licence, as it includes changes designed to make such deals apply to the entire community if they exist at all. In the event, it would seem from the information we have that Tomtom has avoided emulating Novell, and has instead agreed to remove the FAT components from the version GNU/Linux they distribute on their devices within two years. This strongly indicates that Tomtom have accepted no licence from Microsoft relating to GNU/Linux itself, and Microsoft have agreed to just give them breathing space to remove allegedly infringing components, rather than insisting they take a licence.  So - a happy ending for all concerned? Not really. Microsoft must be pleased, as they have managed to give the appearance of winning a battle in which they were accusing GNU/Linux of infringing on their patents while not actually having to suffer examination of the validity of their patents in court. The free and open source software community is left wondering whether the FAT patents could be used against other distributors of GNU/Linux. Jim Zemlin, Executive Director of the Linux Foundation, seemed to be calling on developers to cut FAT implementations out of their software altogether. A couple of days ago, OIN announced the following:

…the patents used in the recent TomTom patent action have been posted by OIN for review and submission of prior art by the Linux community. Submissions may be made by visiting http://www.post-issue.org, clicking on the appropriate patent and selecting “Submit Prior Art”.

The Peer to Patent web site that OIN cite in that link is an initiative designed to allow the technology community at large to pool their collective expertise and thereby perhaps invalidate patents that ought not to have been granted. One way to invalidate a patent is to show that it was not innovative at the time the patent was applied for, that there was in the jargon ‘prior art’. The Peer to Patent site acts as a clearing-house for evidence of prior art on specific patents. In fact one of the FAT patents in question, 5,597,517,  has already been re-examined, provisionally invalidated, amended and then declared valid again after the Public Patent Foundation  or ‘PubPat’ (tagline: ‘representing the public’s interest in the patent system’) asked for the US Patent Office to take another look back in 2004. It will be interesting to see how far this pillorying of the Microsoft’s FAT patents will go towards their invalidation, given that this is their second re-examination.So another Microsoft patent case goes by and we are still no closer to knowing how justified Microsoft’s patent threats against Linux really are. Tomtom clearly found the effort involved in engineering out the FAT patents a worthwhile expense, but only tells us that it was likely to work out cheaper than the lawyer’s fees, and that Tomtom understandably had no interest in acting as a vanguard for the community on the issue. Perhaps the most reassuring thing for the community is that - so far - Microsoft has only claimed ownership of technologies which can be engineered out of GNU/Linux without breaking it.

With simple things like microblogging we can point to Laconica with a resonable amount of comfort, but should we really be ignoring Open Micro Blogger simply because we have not used it ourselves, after all, it does focus on a stronger and more scalable back-end. What about the solutions we’ve not yet heard of? A quick search for “open source microblogging” turns up a fair number of projects that are worth a look, not to mention a promising looking article with the title “Top 10 open source microblogging services. Perhaps it’s not as simple as we first thought.

If it is this hard to identify “best of breed” open source solutions for something as simple as a microblogging service how hard would it be for a “Financial Management and Reporting” system? These are complex systems that need to be customised (or at least configured) for each use case.

Sometimes the enquirer pushes a little harder, often indicating that it should be possible to identify “best of breed” and that OSS Watch should do so. However, our position remains firm, we can’t evaluate everything out there, but we can help people identify and evalate the options in the context of their needs.

Lets consider the financial software market. I’ve used Compiere for Financial Management in the past. I was very pleased with it, but it’s not really a financial system, it is a Enterprise Resource Planning and Customer Relationship Management system that has some financial functionality.Would the CRM and ERP functionality help or hinder our requestor?

As well as Compiere I’ve used a pen and paper based double entry ledger system. It worked, requires minimal technical knowledge and is easy to source. Unfortunately it is error prone, requires considerable training and usually needs a real accountant to do magic periodically, magic you don’t want to be paying accountant hourly rates for when software can do it, perhaps GnuCash or jGnash would be a better option. However, these are targetted at personal finance not business (or academic) finance.

Then there are OpenER, SQL Ledger, TurboCash and all the others that are out there. These are all “best of breed” within their own domain. They all have strengths and weaknesses. The “best” depends entirely on whether their strengths are important to the user whilst their weaknesses remain hidden.

How did I come up with the (incomplete) list of financial tools above? Simple, I spent 7 minutes (yes I timed myself) searching the web and making snap decisions on the viability of the open source community built around the products. I rejected another four or five as they looked like unsustainable or immature projects. It is this skill that I think we can offer to people looking for open source solutions. The customer must then narrow down the choice by looking at the feature set of the product base. Once a short list is drawn up, OSS Watch can help evaluate the support options available for the project, that is we can help the customer decide if the open source solution fits their culture, e.g. is there a suitable commercial support offering or is there an active and supportive developer community that internal IT staff can engage with?.

Even when we explain this in some detail we find that some people still insist that we should be able to tell them what to buy. So, I’ll say, here and now, as loud and clearly as I can:

Procuring something without actually considering the functionality it will need is insane. It is almost certainly doomed to fail.

A software procurement specialist once told me “there is never enough time to do it right, but there is always enough time to do it twice”. I wish I’d listened to him then (I’ll not go into why, but involves lots of wasted money). At least I’m listening now. If you are ready to listen, you can stop reading and contact OSS Watch when you want us to help you evaluate some open source solutions.

For those still unconvinced let me try and illustrate the problem in a domain most of us know a little about.

Imagine you are buying a new car. All cars have the the same basic functionality and features, they go forwards and backwards, they have a steering wheel and they stop before hitting things (assuming the driver is alert enough to hit the brakes).

Despite all cars being the same (when considering base functionality) we don’t walk into a the local car dealership and say “what’s the best car” and immmediately buy the first thing that comes into their mind. Instead we find out which are the most suitable cars for our kind of use (driving to the shops, commuting, long distance travel, fun at the weekend etc.). We probably also read literature and reviews. Most of us would test drive a couple of our favourites. Eventually we would buy one.

It’s true that we rely on reviews and salespeople to help us narrow down the choice, but we have other methods for making the final selection, and, importantly, we would usually ask salespeople from each of the major manufacturers.

Anyone who watches car “review” programmes like Top Gear knows that even in the simple world of cars there is never a clear winner between two cars built for the same purpose. One will be better cruising on the motorway, the other may be better on country lanes. One will be cheaper to run, but the other mighter be cooler to look at, but beauty is in the eye of the beholder. It is not usually possible to say “this car is better than that car, regardless ofwho you are and what you are looking for”.

Sometimes it is possible to say “this car is just rubbish, it broke down 5 times in our road tests”, but once you get past obvious flaws that affect everyone you have to understand the drivers needs before saying “this car is the perfect car for you”. I’m 6′ 4″tall, I simply don’t fit comfortably into some cars, it doesn’t matter if everyone else in the world thinks it is the perfect car, for me it is rubbish.

[This is getting to be a long post so I won’t even start on considering maintanence options for the car once it is purchased.]

Since most people wouldn’t ask a really general question such as “what is the best car?”, why do people insist on asking OSS Watch things like “which is the best open source financial management software solution?”

OSS Watch can help you procure open source solutions, but we can’t tell you what to buy - sorry, it just is not that simple.

That’s how the description of Kable’s upcoming conference on Open Source in the Public Sector begins, and it’s becoming a regular theme in marketing in every sector. This morning brings news that Microsoft is planning to air a series of TV ads that attacks Apple’s pricing as inappropriate in these cash-starved times. In the light of this, Steve Ballmer’s assertion last week that Apple customers are essentially paying upwards of $500 else for a logo and nothing else looks like a teaser for the ad campaign. Ballmer’s sound-bite was taken up by noted open source blogger Glyn Moody who mischievously suggested that this was Ballmer’s backhanded way of acknowledging Windows had lost the fight against Linux to be the pre-eminent OS on the low-priced, tiny and increasingly popular sub-laptops known as netbooks. After all, writes Moody:

“who’s going to pay extra money just to get the Windows logo on a netbook, when they can get the same features for less with free software…?”

Clearly the IT sector is in the mood to be wooed with promises of low prices. In the public sector too, as this blog has mentioned in the past the February 2009 Cabinet Office action plan Open Source, Open Standards and Reuse strongly promoted the consideration of free and open source software:

“Open Source has been one of the most significant cultural developments in IT and beyond over the last two decades: it has shown that individuals, working together over the Internet, can create products that rival and sometimes beat those of giant corporations; it has shown how giant corporations themselves, and Governments, can become more innovative, more agile and more cost-effective by building on the fruits of community work…”

and adding the following imperative added to public policy on IT procurement:

“Where there is no significant overall cost difference between open and non-open source products, open source will be selected on the basis of its additional inherent flexibility.”

This document should perhaps be read in the light of the Chancellor Alistair Darling’s demand that public sector IT should find effiency savings of £5bn before 2011…

Clearly this is an appropriate time for an event such as Kable’s (disclosure: OSS Watch supports this event and will be speaking at it) which invites delegates from the public and not-for-profit sectors to come and hear about the pros and cons of free and open source adoption and to discuss the issues with others in the same position. As well as attendees and speakers from OSS Watch, there will be representatives from across the public sector and from the Open Source Schools project, the Open Source Consortium, the British Computer Society’s Open Source Specialist Group and noted think-tank the Centre for Policy Studies. It looks to be an interesting event. Hope to see you there…

“Yes, well, three of the eight patents in this dispute read on the Linux kernel as implemented by TomTom. The other five relate to car navigation proprietary software used by TomTom.”                   

Words like these bring back terrible memories of Microsoft’s - and particularly Microsoft CEO Steve Ballmer’s -  past statements in this area. Back in 2004  Ballmer told the Asian Government Leaders Forum in Singapore that Linux infringed on “over 228″ software patents and that

“somebody will come and look for money owing to the rights for that intellectual property…”              

Journalists seeking clarification of Ballmer’s comments at the time from Microsoft’s PR department were told that Ballmer was referring to a 2004 study by Dan Ravicher  that identified 283 potential software patent infringements within Linux. Ravicher responded that Ballmer was misreporting the essence of the report, which was that any operating system would necessarily infringe the 283 patents in question (Ravicher did not list them) and that therefore Linux was in no greater danger of infringement than any other operating system. The report was commissioned and published by a firm called Open Source Risk Management, who coincidentally were just about to start selling insurance for users of Linux who feared being hit with unexpected patent fees. Ravicher is now Legal Director of the Software Freedom Law Center, a law firm that specialises in helping authors of FOSS.

Of course this was not the only piece of horse-spooking that Microsoft has engaged in over the years. In May 2007 senior Microsoft lawyers Brad Smith and Horacio Gutierrez (sound familiar?) told Fortune Magazine that Linux infringes on 235 Microsoft-owned software patents and that:

“This is not a case of some accidental, unknowing infringement… There is an overwhelming number of patents being infringed.”       

Shortly after this Microsoft announced a deal with Novell that would protect customers using Novell’s SUSE Linux distribution from patent action by Microsoft - the obvious implication being that customers of all other Linux distributions must therefore be at risk (OSS Watch covered this issue and the Free Software Foundation’s reaction in our description of the GNU GPL v3 here).

So is the current climate of fear really warranted? Probably not. For a start, Gutierrez himself is at pains to say that this is not the beginning of the earth-shattering IP showdown that Linux users have been fearing for years:

I should say, Microsoft respects and appreciates the important role that open-source software plays in our industry, and we respect and appreciate the passion and the great contribution that open-source developers make in our industry. That appreciation and respect is not inconsistent with our respect for intellectual-property rights. Partnership with all technology companies, including those that adopt a mixed-source model, must be built on mutual respect for IP rights — rights that we all rely on for driving innovation and opportunity.Now, this case is against TomTom, and it involves infringement of Microsoft patents by TomTom devices. Each case is different, and this one is specifically about the use of software by TomTom in its devices.        

(from here.) In the past it has clearly been a strategic aim of Microsoft’s to cast doubt on the legality of Linux. The Microsoft quotes mentioned above were without doubt intended to make potential Linux users think twice about where they should spend their money. With the Tomtom case - in contrast - Microsoft seems to be at pains to go further than it needs to in calming Linux users about the potential for broad litigation against their chosen operating system. Just note the contrast between the Gutierrez of 2007’s Fortune article and the Gutierrez of 2009’s Tomtom-related interview. There seems to be a genuine movement towards playing down the implied threats of the past.

 Why has this happened? It’s almost impossible for an outsider to say.It is clear that Microsoft’s former strategy of implying that Linux was about to disappear under storm of patent infringement suits did not significantly affect Linux uptake. The Linux community adapted through initiatives like the Open Invention Network - a patent-holding organisation supported by Sony, Novell, Red Hat, IBM, NEC and Philips that licenses its IP at no cost to anyone who agrees not to assert their own patent rights against Linux. Of course, if you choose to assert your rights against Linux, the OIN will closely examine your products to make sure that none of their patents are embodied in them. In practice it’s this kind of ’sue-me-and-i’ll-sue-you’ standoffs that prevent all-out patent war in the IT sector, and the number of patent-holding corporations with a stake in Linux now makes it potentially as risky to sue as any other single large technology player - maybe riskier given the added liability of blogosphere backlash and community hatred for any moves against FOSS. 

When OSS Watch spoke to OIN’s then-CEO Jerry Rosenthal in 2007 he believed that they would probably never have to actually sue a big player like Microsoft. So while the Microsoft-Tomtom case probably does not herald the the final Microsoft campaign against FOSS, it will be interesting to see whether OIN sees it as sufficient reason to look into enforcing their own patents against Microsoft. Tomtom must be hoping that they do. 

This year the conference organizers are introducing new facilities to assist participants with setting up f2f meetings.  Once registered, check up the Day Planner service. Feel free to use this opportunity to arrange meetings with us on our stand or in the dedicated networking space.

Looking forward to seeing you in Edinburgh.

The days agenda is:

• 10.00 Welcome & Fundamentals of FOSS (Ross Gardler - OSS Watch; Biography and abstract)
• 11.00 Break
• 11.20 FOSS Business and Sustainability Models (Rowan Wilson - OSS Watch; Biography and abstract)
• 12.20 Lunch
• 13.20 Commercialising Free and Open Source Software - an Oxymoron? (Rhys Newman - JPC; Biography and abstract)
• 14.00 Running a Foundation to Contain Your Code (David Roberts - Symbian)
• 14.40 Break
• 15.00 Panel - What does this mean for you?

The live blog will cover all five sessions and is being hosted on the excellent CoverItLive site.

You can find resources for the event tagged with ‘ossw_fosssustain2009‘, if there are any twitter folk present we’ll be encouraging them to use the hashtag ‘#ossw‘

Participants will be able to suggest questions member of our team will, if time allows, put them to the speaker or panel session.

The sessions will be arhived for those who can’t log in live.

The blog will cover all five sessions and remote participants will be able to suggest questions for the speakers.

In order to participate all you need to do is check your RSS reader on the morning of the 12th January, we’ll provide the necessary links from here.

The for-profit sector is adopting open source even more readily.  Gartner predict that “By 2012, 80 per cent of all commercial software will include elements of open-source technology.” This figure was revised, within two months to 90%, whilst IDC believes that open source will eventually play a role in the life-cycle of every major software category, and will fundamentally change the value proposition of packaged software for customers.

A survey of nearly 1000  IT staff in the UK, Germany, France and North America, commissioned by Actuate, showed that fifty four percent of businesses in the UK felt that the benefits of open source outweighed any negative aspects, a significant increase over forty five percent last year. This upward trend appears to be based on experience rather than expectations with forty three percent of responding businesses in the UK already using open source, whilst six in ten French and German firms do so. Similarly, the above mentioned IDC study finds that of the 5,000 survey respondents, open source software is in production at fifty four percent of their organisations.

Even Microsoft, historically one of the most vocal opposers of the open source movement, has been  using open source components since Windows Server 2003 Compute Cluster Edition using open source components since Windows 2000. Today open source related announcements come from Microsoft on a regular basis. For example, Microsoft has recently been engaging directly with a variety of open source development  projects. In addition they have had two open source licences approved by the Open Source Initiative. Microsoft now hosts and releases software under those licences.

Another of Gartners top predictions for 2008 is that “by 2012, at least one-third of business application software spending will be as a service subscription instead of as a product licence”. The service subscription model is one of the most commonly found open source business models. For example, it is the main revenue generator in Sun Microsystems business model (Sun recently acquired MySQL, another open source business, for $1B).

However, all is not well in this increasingly open future. Research conducted for Actuate found that six in every ten respondents said there “were serious problems finding the right IT skills to implement and manage open source solutions”. As more open source is adopted across all sectors this skills shortage will become more acute since there are currently very few educational or training organisations offering courses that focus on open source, open standards and open development.

The reason for this lack of skills development is simple. The people who understand “open” are able to command higher than average salaries due to the scarcity of skills which makes training necessary. Consequently, there is a shortage of teachers and trainers ensuring new graduates and existing staff have the open source related skills required by employers. The majority of those who genuinely understand open source licencing, development and deployment are too busy earning high incomes by helping companies realise the benefits of an open source strategy.

OSS Watch are currently building a network of organisations and individuals interested in tackling the open source skills problem. It is our intention to create a comprehensive set of freely available training materials. We also hope to provide a supportive infrastructure to maintain and deliver these materials in a variety of situations such as workbased learning and formal education.

If your organisation is interested in such activities please contact us.