New Yorkers For Fair Use

© Copyright for the Digital Millennium
William Abernathy's ARGUMENT




William Abernathy

June 6th, 2000


As matters currently stand, the companies who do business on an open source service model appear to have a bright future ahead. Linux is holding market share against Windows2000, Kernel 2.4 is just around the corner (no, really!) and embedded systems will provide a certain monopoly code vendor with cold sweats long after the Justice Department has done its worst.

Viewed in terms of its burgeoning market share and superior service- based business model, the businesses who work in, on, and with open source software might well think the battle is won, or will be won, by dint of our momentum and superior quality of goods and services. As we all know, however, history has not always smiled on companies simply because their products were better.

As the ongoing judicial vivisection of Microsoft so clearly demonstrates, even the mightiest power in the economy can be humbled by the power of the law. Microsoft ran afoul of the Justice Department for many reasons, not the least among them their incredible guilt. One telling symptom of Microsoft's unparalleled arrogance and concomitant fall, however, was their eleventh-hour conversion to the lobbying faith. Having grown so huge so quickly, Microsoft did not develop a cultural interest in governmental affairs (if anything, the contrary) and when they were confronted, had few friends to turn to. Compare Microsoft's swift, sure drubbing to the decade-long IBM impasse or the lengthy, and ultimately financially favorable AT&T breakup consent decree -- these were mature corporations with longer histories and deeper roots in the American polity.

While, obviously, the open source movement is in no danger of meeting Microsoft's fate, the companies whose survival depends on open source software remain nonetheless vulnerable to the depredations of the political process. Our track record in dealings with the government has not been impressive. The Communications Decency Act was defeated in the courts, not the Capitol. Strong encryption remains a point of contention between the USA and the rest of the planet. The Digital Millennium Copyright Act is now law, and Emmanuel Goldstein awaits trial for linking to DeCSS. The weird world of patents remains an ongoing range war between profiteers and common sense.

Protecting the interests of the open source industry in Washington are a few interested civil rights groups, first among them the Electronic Frontier Foundation. On the ground, a few scattered Linux users groups (LUGs) contribute grassroots efforts, especially the large, active communities around Silicon Valley LUG, and New York LUG. Linux users groups remain unconnected islands of interest, mostly deaf to each other's activities. Mainstream media exposure to, and understanding of industry concerns remains low, and the concerns of the open source movement remain consequently distant from the consciousness of the electorate and their representatives. This arrangement is no longer satisfactory, it is wasteful, and its inadequacies will only worsen with time.


It is not the intention of this proposal to tear into the EFF or any of the many other organizations working against tall odds to preserve freedoms in cyberspace. It is my contention, however, that exclusive reliance upon civil-rights defense organizations, no matter how worthy they may be, will ultimately prove unhealthy for both the open source industry and for those rights organizations themselves.

I believe in the EFF and its mission. Largely, that mission is in keeping with the objectives of open source businesses (whose development model in large measure relies on electronic freedom), and those businesses are entirely justified, indeed morally obliged, to support it. It's because of the EFF's overall consonance with the open source ethos, and the movement's apparently reciprocal faith that supporting EFF is "good enough" that I feel regrettably compelled to single them out. If the industry consensus is to turn its back on the trade organization concept, I would urge redoubled support for the EFF, because it is at present clearly the best thing going.

The fundamental difficulty I foresee with continuing on the current path, however, can be summed up in the above words, "industry consensus." According to the organization's web page, the EFF's mandate is:

"to help civilize the electronic frontier; to make it truly useful

and beneficial not just to a technical elite, but to everyone; and

to do this in a way which is in keeping with our society's highest

traditions of the free and open flow of information and communication."

These are values dear to the open source movement, they nonetheless do not constitute a mandate to serve as a mouthpiece for the open source industry, to perform its bidding, or to set the industry's legislative agenda. To date, this point has been largely moot: the issues which have been important to the open source movement have likewise been of import to the EFF. This will not, however, always be the case. Further, it is as unlikely as it would be unseemly for the EFF to carry the industry's water as a proactive lobbying entity, or to represent its business interests in proposing new legislation if those interests were commercial, rather than civil-libertarian, in nature.

Certain points of industry concern already fall outside the EFF's notice. The matter of specific patents, to take a recently-raised example, is one which is not of much interest to the EFF, but which remains of pressing concern to people in the open source industry. Likewise, issues which affect the competitive posture of open versus secret source software but which do not affect individual rights would likely be of scant interest to EFF, nor should they be.

Whether or not its proponents are comfortable with the term, open source is now an industry. That industry has an ineluctable responsibility to behave as such. Its industrial interests are definable and discrete from those of other types of business, and its communal interests are best served by a non-profit entity whose mandate is to respond to its specific industrial needs. As the industry grows, putting all its legislative eggs in the EFF's basket could distort the EFF's pursuit of its mission (making it beholden to one industry, or worse, determined not to appear beholden to one industry) while simultaneously leaving that industry with no means of articulating or implementing its own legislative agenda. The EFF is not, nor should it ever be, the handmaid of one industry, and the open source industry should not have its legislative vision second-guessed by a third-party civil rights organization. Yet this is precisely the direction this relationship is headed.

Finally, there is the issue of return on investment. The EFF (and ACLU/GILC, CPSR, EPIC, ACM, IFEA, DFC, FEN, etc., etc.) have agendas which address fundamental questions of social justice in new media. Since both the EFF and the open source movement are children of hacker culture, it should be no surprise that there is a great affinity between them. But there remain concerns of the EFF which, while tremendously important to the open source movement as citizens and netizens, remain of scant import to open source as an industry. For example, while the open source industry should be greatly alarmed by the Digital Millennium Copyright Act (for attacking the rights of its developer base) the industry has no specific business interest in the Communications Assistance to Law Enforcement Act (CALEA) (a reaching federal attack on telephone privacy) which is a major concern of the EFF. As a simple business proposition, it is worth it to the industry to have a not-for-profit whose attention is undiluted by tangential issues and fixed resolutely, solely, and unambiguously on industry concerns. The motion picture and recording industries have trade groups. Proprietary software vendors have trade groups. It is time we had one to call our own.



Because of these factors, I believe the formation of a trade organization for the open source industry to be necessary and timely. Such an organization could take one of many forms, and the ultimate configuration of the trade organization would be dependent upon the needs of the businesses who would form it.

In my opinion, (and I offer this as a point of departure and discussion) this entity should be incorporated as either a 501 (c) 3 charitable/educational/scientific organization or a 501 (c) 6 business league. Its Board of Directors should be composed of widely respected industry leaders, including representatives from the LUGs, and from the developer community, as well as from the contributing businesses. These businesses should constitute the voting majority of the board.

An Executive Director should have responsibility for coordination of subsidiary entities (infra), for day to day operations of the organization, and for making timely reports to the board as to developments in the field, as well as answering for the implementation of industry objectives.

In summation, creating a trade organization will accord the following advantages:

* Forging a definitive industry consensus on legislative and regulatory matters

* Serving as a reputable industry mouthpiece

* Providing needed political leadership and focus for open source's formidable grass roots

* Directing the organization's lobbying agenda.

Two additional entities are necessary to implement this vision, should be formed in conjunction with the creation of the trade organization, and should answer as directly to it as is legally practical.


Since the open source movement evolved largely outside of meatspace, the physical location and geographic presence of users has never been a prime concern to the "real" community of developers. Nonetheless, the need for social and personal interaction is great, especially at the newbie level, and people like to hang out with others who share a common interest. The LUG phenomenon has served well to provide this basic level of support. Many, if not most, open source businesses recognize the crucial importance of a robust user community and support these groups with technology, expertise, and otherwise.

Over 250 US Linux User Groups are registered at They vary in size, they vary in activity, but each and every one of them has two undeniable attributes: physical presence on the ground and a highly-motivated membership. Yet the political effectiveness of these far-flung entities approaches nil. There is no central clearinghouse for LUG information, nor are there any formal channels of communication between LUGs. Each LUG is more or less on its own, and each faces its own hurdles in organization and funding. The only way LUGs hear of each other's successes and failures is through word of mouth and the occasional note on Slashdot. This represents not only a colossal waste of a unique national grassroots political resource, but of a tremendous marketing opportunity as well.

Each active member of a LUG is a person who spends at least one night a month out with the LUG. This is not the portrait of a wallflower. This is an individual who, if called upon and given the proper pointers and encouragement, could be motivated to write a letter to the editor or to a congressman, could contribute a night to the phone bank, or could render other valuable service in support of a legislator. It's someone who could, as my fellow NYLUG members and I recently did, take a day off from work to leaflet and hold a picket sign in Washington. I think users want to be more involved, but that opportunities for that involvement are rare, and national leadership is nonexistent. Between organizing a local group, holding down a job, and having a life on the side, local LUG leaders have full plates already. If I believed they could spontaneously assemble into a viable national organization without the intervention of industrial leadership, I would argue for it, but this is clearly not in the cards.

The natural and desirable outgrowth of a national trade organization is the creation of an industrial voice. By providing valuable, integrated, and coordinated support for LUGs, the industry would have standing to speak with this voice to the LUGs. This communication would not be one-way: responsive national LUG leadership would not only spell out the political needs of the open source industry to users around the country, but would also report the national business, political, and intellectual landscape back to the companies who rely on those users for their survival. If there's one thing hackers can be trusted to do, it's to speak their minds. Users would be better served, local LUG organizers would be less stressed, and the vital relationship between the industry and its most enthusiastic users would be nourished and strengthened by such a collaboration.


The American political process was originally intended to be open source. Unfortunately, this vision is now more honored in the breach than in the observance. The DMCA is international law

not because the motion picture industry's hearts are pure or because their interests are the same as those of the great body of the American public. Rather, it is because the MPAA has a huge pile of loot to reward and punish legislators. Similarly, less-wealthy entities such as the NRA or AARP can get a legislator's undivided attention thanks to a large, well organized and highly motivated constituency. While the open source movement currently possesses neither billions of dollars nor an army of single-issue zealots, we nonetheless enjoy sufficient numbers and cashflow to merit a hearing.

Now that an industry has emerged which is making money and providing employment based on an open source model, that industry has an obligation to behave as an industry, to protect itself legislatively, and to advance its cause through all lawful means. While the concept of PACs and lobbyists and monied interest is distasteful to the iconoclastic leanings of most hackers, we are nonetheless in competition with businesses unencumbered by such qualms. Failing, through irresolution, indifference or squeamishness, to assemble the tools needed to face current and future governmental and market threats is a disservice to all who have worked and invested in the hopes that this industry will succeed.


With a clearly articulated industrial agenda, an effective grassroots organization, and a mechanism for contributing to the political process, this industry could enjoy an effective lobbying presence, capable not only of preventing open source businesses from being rolled over by corporate giants, but also in taking the legislative initiative.

I have seen another industry (brewing, a business about which I used to report) follow the same path as open source. There is a "happy time" when a superior product goes from strength to strength under the notice of the giants of the industry. When the sleeping giants awaken, the climate changes, and good businesses die ignoble deaths. While no one can say for sure what's going to happen to Microsoft, here are a few safe bets: whether their lobbyists find themselves working for one 900 pound gorilla or for two 450 pound gorillas, they are going to find something to keep themselves busy, and they will no longer have a defensive battle to fight. Any future management now knows better than to ignore the government, and the chastened companies will likely make it a priority to ingratiate themselves to the powers that be. The sooner open source has its political house in order, the more able we will be to meet the challenge when that day comes.