DISQUS

Heck Matt, my kid is absurdly pretty at 3 1/2 and she's already using her looks to manipulate outsiders. Maybe I need to get her some scars :)

On a serious note: Adam, sing it LOUD! Having grown up in real Alaska (not Los Anchorage) I am constantly amazed at the rubberized, sanitized childhood here in the lower 48.

What's worse, it's hard to break your kids out of the cycle individually. I've had many friends with 5-7 year olds who live in a quiet cul-de-sac, but the kids can't just wander over to "Timmy's house" without both parents agreeing on a play date.

That's just insane.

Cord, I'll let you and Debbie work on what the meaning of Section 512 is, but one thing stuck out when I read your post. you noted that: "Admittedly, I haven’t read the entire DMCA"

Why not? The original act is only 60 pages long for goodness sake, the wordcount in your blogposts about the DMCA may actually already exceed the number of words in the Act!
I mention this not to rip on your personally, but rather a problem in general when it comes to the DMCA and other highly technical rules and laws. People tend to read what is being said about the Act, rather than what the Act says itself.
On the DMCA in particular, I watched Fred von Lohmann take an embarrassing shot to the ego at a congressional briefing when he claimed a specific phrase was in the DMCA. Unfortunately for Fred, a member of the audience stood up and read the section out loud - with none of the text Fred claimed. While I am certain Fred has read the DMCA, and may even keep a copy under his pillow at night, what the bill actually said had become murky in his own mind with the rhetoric surrounding it.
Fred's not alone - I've certainly munged what I thought a bill says with what it actually says, confusing rhetoric for fact. But when you want to engage in the thoughtful way on a complex issue, doesn't it make sense to go back and 'look at the source code'?
I know it may hard in today's instant blogging world to take the time to learn the facts, but it might just help.
Here's a link

Actually, I seem to be the only one here who does understand the difference between a format and an application. A format without an application to implement it is meaningless. Please see RFC 1149 for an example. I am pretty sure there has only been one test case implementation of this data packet standard (do the googling, please :)).

And I have to take Snnore to task. You accuse me of confusing applications and formats, yet your opening remark gets them wrong! you say:

ODF---like HTML and PDF---work on open standards so that in the future, when today's documents will be ancient and the applications forgotten, people can still access them. [...]
Finally, like Carlos said, you're confusing applications and formats...

ODF doesn't work on an open standard, it IS an open standard! It doesn't "work" on anything. In fact it isn't an application at all. It can only be implemented, not shangied into producing "work".

Oh, and I love your HTML example - because HTML exists and is widely used (although essentially never in its "pure" form) WITHOUT any legislation mandating it's use.

Your desire to beat on OOXML as a standard seems to be getting in the way of the real debate, and that is: "Should governments legislate the use of a specific standard".

I say that governments should not legislate use of a specific standard. I don't even think governments should mandate the use of "standards" because that definition is so murky at this point. Legislation is simply not the vehicle for making that type of decision.

And the fact that you feel so engaged on this point suggests that the market spin by IBM has worked. They have essentially created a straw-man to try and sell a product. But rather than sell it on the merits - even the merit of "openness", they have instead resorted to a political fix.

Gary's argument about pdf's specification blends nicely with your point about OOXML not being implemented in its purest form even by Microsoft. In fact, pdf's spec was available, but NEVER implemented fully by anyone but Adobe. Adobe used this in marketing materials to say that their products used more of the pdf features. Additionally, the pdf version that was sent to standards bodies always lagged the one being used by Adobe. As does HTML, and even ODF. Please note that OASIS is currently reviewing and updating the ODF standard to 1.2, and this version will be used by OO.o and probably all variants. So in fact, ODF implementation will actually be ahead of the ISO approved standard.

Even though my personal interest in this issue is focused narrowly on the use of government mandate vs. defacto usage patterns, I get these sense that many here don't actually have a good sense of how standards are actually used in the real world.

For the most part, Standards represent a floor, not a ceiling. Implementers often tweak or improve 'on top of' the standard, but to be compliant the product will still correctly handle data in it's lowest common denominator form.

If any of you have a "powerboosted" Linksys wireless router, then you have a product that doesn't just comply to the existing ISO 802.11 standard, but yet non-linksys devices know that they can still communicate, albeit slower than the "boosted" device.

Here's a link to all the implementations of OOXML . It's a big list, and includes things like the iPhone. And guess what, I bet a high percentage of those don't do the implementation exactly the same way; just as it is with HTML, and just as it is with pdf. And this is EXACTLY why I don't want governments mandating a standard.

Instead, find a solution that solves a problem - and governments as customers may want to ask for some way to be assured of long term access to data. Maybe it's through a standard, maybe it's through code escrow, maybe it's through some other method that respects property.

But not by getting some state legislature to pass a bill saying the state "shall only use ODF".

Carlos,

In my haste to focus on implicit and explicit, my comment on IRS adoption of pdf could be read to imply that market position is the ONLY metric a government should use.

Clearly that's not the case. Rather, the government agency should be looking to act as a customer, describing what are the attributes it needs in a product to fulfill a need.

For pdf, it clearly needed a widely used, readily available format that preserved non-text attributes when displayed on screen or printed out. Had there been a compelling application in the marketplace that did the job better, or added a capability that would have made the docs more useful, then that might have tipped the decision to something else.

But in IBM's case the ONLY compelling part of their product is that it 'works exactly like the Microsoft product'. So to _legislate_ the use of the product doesn't fit into any standard market rationale.

I certainly hope that IBM and Sun do more to create an application that does something better, or faster, or in some obvious way creates new value. If they do that, the format the application uses by default will be an afterthought to consumers, government or otherwise.

Carlos,

The giant, gaping chasm of difference between explicit and implicit mandate is, from a libertarian perspective, all the difference in the world.

For the government to choose a standard format, like say pdf for the distribution of tax information, it should make an examination of what has the broadest usage amongst 'customers'. Which is exactly what the IRS did. Certainly there were competing products to pdf, but it clearly had dominant marketshare in that space. And before you think "open" was a part of the IRS decision tree, I'd remind you that pdf was not an ISO standard and wasn't even an "open" standard when the IRS started using it.

Yet what IBM sought to do was put the chicken before the egg. The ODF format did not, and does not have a compellingly large base of customers/users for the government to logically conclude that it should be the 'implicit' standard. Instead, IBM wanted the government to mandate the format in order to create the requisite marketplace for their product.

And Microsoft's dominance in the Office suite area comes from battling it out in the marketplace. It may have been brutal, bloody and ruthless, but MSOffice never enjoyed a legislative mandate in its successful beat down of WordPerfect and LotusNotes.

If you are arguing that the government should ride to the rescue of every corporation that gets a whupping, that's a different discussion. And given that BOTH IBM and Microsoft have endured the slings and arrows of anti-trust investigation, it's hard to qualify IBM as a helpless damsel in distress.

Tim,

You missed Braden's key point, and it was one I personally had never thought about: Just like in an employee-employer relationship, the benefits and expectations are negotiated on up-front via the GPL.

Every single person who contributed code to the project will never lose access to the code they contributed nor to code contributed under the GPL by others. That's far more than anyone gets from an employer!

And as to why people decided to assign copyright to their code to Matthew Sweet? It's simple, Mr. Sweet controlled the project called CUPS - the "brand". If you wanted to have your code included in the project called CUPS, then you had to assign the code to Mr. Sweet.

This is very similar to what MySQL does, and even the FSF. So even that part of the equation was presented up-front. If you want your addition to show in the main branch you must assign your copyright.

One other point central to this, and one that Luis missed, is that Apple plays no role in determining the license of the CUPS code contributed under the GPL. So where Luis says it's GPLv2 " but only at Apple's sufferance", he's just plain wrong. NONE of the GPL code is lost, gone, or unavailable in any way for use in other GPL efforts.

The difference is that Apple can build on Mr. Sweet's code and
release products that keep the newly added code proprietary. And this, too, is an upfront exchange. Apple will not be able to receive any additional patches from the "community" unless the author willingly relinquishes copyright. Essentially any continued work moves in-house. The "community" doesn't reap any benefit, but neither do they sow.

And Tim, your Church Treasurer analogy is not workable. By
definition, the "Treasurer" has a fiduciary responsibility to the board of the church and by extension the shareholders/members. The Treasurer can't use the money for vacation not because of a statement in a contract, but rather by the fact that the money isn't his, it's the Church's.

For CUPS, the copyright contributions were made to Mr. Sweet (technically to his company, but it was a sole proprietorship), therefore he chooses how to use the contributions.

But here's the kicker - unlike your church example, we are taking about that odd beast Intellectual Property. With IP you can have property that can be held in two places at once! So to stretch your Church analogy, the Board can approve a vacation for the treasurer, and never lose a dime from the bank. All the code that was previously "banked" is still there, and usable by the parishioners.

Doug, do you have any facts whatsoever to back up the suggestion that patents somehow only benefit the big incumbents? What's the name of a small company that Microsoft has sent a patent infringement letter to? How about Amazon and the infamous one-click? RIM vs. NTP?

I recommend you read the Mossingoff study on first to file and advantages for SMEs. Then take a look at the study from National Academy of Science, and take a look at the USPTO 21st Century report - hell, look at the news for the past 4 years! What you will see is that the people getting sued the most are the big companies. Who is suing them? Smaller companies! Eolas (UC Berkley) sued Microsoft - they didn't sue 'bob's software shack' down the street.

When you actually go out and meet small businesses, even in the software field, they look at IP, and possibly patents, as a way to gain leverage on the big guy.

The problem doesn't lie with the misguided notion of big vs. small, it lies with the fact that right now, software patents tend to be of such questionable quality that no matter who filed them the value is suspect. This, combined with some problems with the way the patent system deals with "willfulness", has led to 'patent spam' whereby an infringement letter is brought on some crap patent where the license cost is less than the cost of fighting it. It has NOTHING to do with patents as a concept.

Poor quality gets the lawyers involved and that advantages the deep pockets. The patent itself is actually the ONE thing that equalizes players.

We at ACT just reached out to more than 750 of our small company members to ask them about the problems with big company licensing. NONE of them felt that patents were a disadvantage - sure they all had problems with the big companies, but this quote sums up the responses on Patents:

"We will succeed yet because we have a well-written patent and good technology."

So before you go talking out of school about big vs. small, get your facts straight: IP helps the little guy get rewarded for a great idea. Poor quality software patents that should never have been granted destroy opportunity for everyone.