Buy Linux. It's the law

A San Diego lawyer says California's state government should be forced to dump Microsoft in favor of open-source alternatives. But can free software get into politics without getting dirty?

Published August 27, 2002 7:22PM (EDT)

Walt Pennington is a tort lawyer and a member of the San Diego Linux Users Group, and that's about it. He's not an author, a politician or a nationally renowned free-software evangelist; Walt Pennington doesn't file copyright cases with the Supreme Court, he doesn't code, and he doesn't blog. A Google search on "Walt Pennington" gets about 200 results, a Nexis search less than five -- and every article is new, having to do with what seems to be Pennington's only claim to semi-fame: his recent idea that the state of California purchase only open-source software for its governmental operations.

Perhaps because of Pennington's obscurity -- his everyman, fed-up-citizen persona -- his idea is receiving considerable attention in the software industry. For years, open-source software programs such as Linux -- for which all the underlying code is made publicly available -- have been making waves in the software marketplace, challenging even such behemoths as Microsoft. One of Microsoft's biggest markets is government; California alone spends billions of dollars a year on information technology.

Pennington's primary target is Microsoft. In one of the first news articles to cover his proposal, Pennington's local paper, the San Diego Union Tribune, reported in June that he was "waging a one-man campaign" to make California Windows-free, and it gave this clue to his motivation: "He said he's doing this not for financial gain but as a public service to help save taxpayers the cost of Microsoft licensing fees."

For a nobody -- just a concerned citizen -- Pennington has, so far, shown a lot of political savvy. Just look at the name of his proposal: the Digital Software Security Act. It has that pleasing hollowness of most legislative labels these days, a name that's intentionally vague as to the bill's actual purpose. Pennington's use of the word "security" is a red herring. When you talk to him about his idea, he doesn't argue that the state should use open-source software because open software is more secure -- or, in fact, better at anything -- than closed software; instead, he says, open software is cheaper and its licensing conditions less restrictive than proprietary software, and the state shouldn't be wasting money on expensive code that it can't tinker with.

That's the pragmatic half of his argument. The other half is political, and it's very clever: The state of California is on record as holding the view that Microsoft is a very bad company. Dissatisfied with the antitrust settlement the federal government reached with Microsoft in 2001, California and eight other states are asking a federal court to order Microsoft to offer a browserless version of Windows and to release Internet Explorer's source code. "If the state of California is saying [to Microsoft], you are a monopolist and you are hurting the people of California," Pennington says, "its purchasing policy should be in line with that."

Many fans of open-source software say they're inclined to support Pennington's idea because they see it as way to boost open-source software usage via political means. By doing so, they would be adopting a page from their opponent's playbook. After all, companies that have a stake in restrictive intellectual-property regulations -- like Microsoft and the entertainment industry, which are most often cited by the open-source community as being "the enemy" -- are pushing for ever more legislation in their favor. Just this year, Washington has seen the introduction of one bill that would require all digital devices to include copy-protection schemes and another that would legalize the hacking of peer-to-peer networks.

The copy-protection bill, introduced by Sen. Fritz Hollings, has open-source and free-software advocates particularly alarmed. Since anyone with programming skills could rejigger an open-source operating system to include features that circumvent copy protection, open-source software itself could technically be illegal if the bill passes. Therefore, say advocates, in a political climate where the freedom to use your computer as you see fit is under ever increasing assault, isn't it time to fight back with every weapon in the arsenal?

The DSSA, Pennington says, is a way for the open-source side to go on the offensive, to do more than just defend against new restrictions. "This is one of the first proposals that allow people to gather and support our interests."

But others say that Pennington's DSSA signifies the increasing "politicization" of open source. And they don't think that's a good thing: Technologists in general, and open-source advocates in particular, lean toward strong libertarian ideals. They're not usually inclined to seek solutions through government mandate. Tim O'Reilly, a computer book publisher and the sponsor of several influential tech conferences, recently wrote that the DSSA violated certain personal freedoms. Open-source software, he declared, should stand on its own merits and not be sanctified in the law.

His column, when contrasted with a recent speech by the Stanford constitutional law professor Lawrence Lessig, who told a crowd of open-source programmers that they're not doing nearly enough to ensure that their ideas are heard by politicians, has sparked a spirited debate in the community over political strategy. At two open-source conferences -- O'Reilly's late July Open Source Convention and LinuxWorld Expo -- people were asking themselves these questions: "Should we do more than fight the bills we find repugnant? Should we introduce our own?" And then, if the decision is made to get into politics, there are another, more pragmatic, questions: "Considering the political heft of our opponents, could we ever pull of the sort of legislation we need? Can our political machine match theirs?"

If open-source advocates do decide to muddy their hands in political warfare, there's one more concern, suggested somewhat obliquely by folks like O'Reilly. Politics is dirty, dog-eat-dog; it "spins" and "lobbies" for its side; and having moral rightness in your camp -- as the open sourcers say they do -- doesn't necessarily ensure victory. In that light, some people worry whether Linux, which would enter politics to save itself, could in the process lose its soul.

Lessig, always popular with the open-source community, has -- in the few weeks since he gave his speech at O'Reilly's conference -- achieved the status of an Internet demigod. Virtually every influential blog, discussion site and mailing list referenced the talk, an 8-MB multimedia version of which was posted on the Web (more than a half-dozen mirror servers were conscripted to handle the demand).

In Lessig's view, society has never been as subservient to copyright interests as it is now. "Take the additions [to copyright law], the changes ... to copyright's scope, put [them] against the background of an extraordinarily concentrated structure of media, and you produce the fact that never in our history have fewer people controlled more of the evolution of our culture," he said. "Never."

And some of the blame, Lessig said, could be placed at the feet of the open-source developers in the room: "Now, I've spent two years talking to you. To us. About this. And we've not done anything yet. A lot of energy building sites and blogs and Slashdot stories. [But] nothing yet to change that vision in Washington. Because we hate Washington, right? Who would waste his time in Washington?

"But if you don't do something now, this freedom that you built, that you spend your life coding, this freedom will be taken away ... And if you can't fight for your freedom, you don't deserve it.

"But you've done nothing."

At that point, after Lessig had excoriated the audience for its apparent political apathy, the crowd exploded in applause. "And I was the first one up," says Michael Tiemann, chief technical officer of Red Hat, and a longtime pioneer in the commercialization of free software.

Tiemann sees Lessig's speech as a turning point for the open-source movement, a long-awaited political call to arms. "I don't know if you can hear it on the tape, but I got up to ask the first question. I was the person who suggested that this is a call to organize, this is a wake-up call. We should begin now."

Less than a month later, when Tiemann was in San Francisco for the LinuxWorld Expo, he decided to marshal his enthusiasm in the service of Walt Pennington's DSSA. He organized a march from the Moscone Convention Center, where LinuxWorld was being held, to San Francisco City Hall, a few blocks away, where he showed off Pennington's proposed law. It was kind of a silly march, considering that the DSSA is an aspiring state law and would have no place in a city hall. Tiemann picked City Hall because it was close to the Moscone Center, though it was apparently not close enough for many people, since Tiemann's march attracted only a few dozen followers.

Tiemann and Pennington insist that the poor attendance doesn't mean that the DSSA is unpopular -- it just needs time to catch on. Tiemann is a gregarious, intelligent fellow who, though by all accounts a gifted technologist, has an activist's heart. He's a talker, a debater, and when you speak to him you can tell that he likes the spectacle of politics as much as the ideas he's expressing.

Ask Tiemann if he feels bad that only a few people marched with him on behalf of the DSSA, and he offers a story from his college days, in the 1980s, at the University of Pennsylvania. He says he was one of the first few students at UPenn to join the movement to get the university to divest from apartheid-era South Africa. At one of the first meetings, "there was one professional organizer, two in his entourage, and only about three students from the college," Tiemann says. "But over a period of weeks it started getting picked up, and more people came." And then came Tiemann's action: "We organized the longest sit-in in the history of College Hall -- we beat the record by like four days." And later, Tiemann says, "I organized a campaign to send zero-dollar checks to the alumni fund with the memo 'No money until you divest.' And we successfully torpedoed the fund-raising drive that year."

What that showed him is that successful political movements always start small, but that doesn't hurt their ultimate effectiveness. "One year after I graduated, UPenn divested from South Africa," he says. "Two or three years after that the apartheid regime fell and Mandela was released from prison. When I was sitting on the steps of College Hall, I did not believe that Nelson Mandela would ever see the light of day, let alone be the president of South Africa."

Tiemann adds: "Now, will Richard Stallman be president eight years from now? ... I don't know."

But if fighting to end institutional support of a brutal, racist regime was hard, fighting to end government support of Microsoft, a legal company whose sins are much less grave, will be more difficult. How will Tiemann and Pennington convince governments -- for they say that California is only a starting point -- that proprietary software spells trouble?

If the recent history of Pennington's idea is any sign, it won't be easy. Just like "security," the word "act" in Pennington's Digital Software Security Act is also deceptive, because it makes the plan sound as if it's a real, official bill that lawmakers are mulling over, when in fact there's nothing official about it. The DSSA is not an act, a bill or a law: Currently, it's only several paragraphs of wishful thinking posted on the Web site of the San Diego Linux Users Group. Pennington has shared his plans with several California legislators and many software companies, but so far only Red Hat has offered any real support for it. IBM, Sun and Hewlett-Packard, all of which support Linux, would not comment on it. Oracle -- whose $100 million "no bid" software contract with California was canceled amid scandal this year when it was discovered that the state didn't need the software -- also refused to comment. A Microsoft representative declined as well, but sent a link to O'Reilly's column criticizing the idea.

Pennington says that the companies may not want to mention their support publicly, but that in private conversations with representatives, some firms have seemed receptive and have offered to support his idea if it debuts in the legislature.

But will it even go to Sacramento? That's what Pennington can't predict. During the last few months, he's met with a handful of California lawmakers, and some press reports have characterized Assemblyman Juan Vargas and State Sen. Dede Alpert as being guardedly supportive of the bill. Representatives for both lawmakers said only that their aides had met with Pennington, but that they had not in any way expressed support. So far no lawmaker in Sacramento has agreed to sponsor the bill. California's legislative session ends on Aug. 31, so it's unlikely that the bill will be introduced this year.

And conversations with aides to California lawmakers make it questionable whether the bill will ever be introduced. One staffer who'd read Pennington's proposal was especially discouraging: "Why would the legislature decide what kind of software to buy?" he asked. "We don't know anything about software. Why would we decide using Oracle 8i [database software] is a better or worse system than something else?"

The staffer also wondered whether state governments -- which are not known for their organizational nimbleness -- could manage software projects on their own. "The state cannot retain IT professionals at all," he said. "We just can't pay them enough. If we have a contract with Oracle and they screw it up, we can sue them. If you have a problem with open-source software, as I understand it, folks get on their little message boards and talk about how to architect their problems. There are concerns with that: We're going to publish how our system works on some Web page?"

The idea that open-source software is strictly amateur hour is, as Pennington points out, somewhat behind the times. Open-source software has become not only a main offering of big tech firms like IBM and Sun but also the standard government software for countries across the globe. Legislation similar to Pennington's has been introduced -- has even passed -- in countries where IT budgets are much smaller than the $1 billion to $3 billion California spends each year on technology.

Kevin Terpstra, a spokesman for Clark Kelso, California's top IT official, offered a more positive view of the possibility of running the government on open source, but he still said the issue has to be carefully studied.

"From a practical standpoint doing something like this could pose some real concerns," Terpstra said. "The state has approximately 1,000 unique software applications. Some of these are part of legacy systems, some are unique to the state, some are off the shelf. To mandate that all purchases be open-source code would cause a lot of problems, unless it was phased in over a very long period of time and had a lot of contingencies built in."

Pennington says he's concerned that when California buys proprietary software, it's not getting all the "rights" to that software -- namely the right to tinker with the code, to maintain it, upgrade it, and to continue using it even if the proprietary software firm decides to stop supporting the applications. States are now effectively "leasing" the software they're buying, and with open-source, they could own the whole operation, he says. Other critics have pointed out that when a state or federal government buys Microsoft software, it is essentially subsidizing Bill Gates with taxpayer money. Wouldn't it be more politically appropriate to subsidize the development of open-source software, since everyone benefits from the constant improvement of software that is publicly available to all?

But Terpstra said Pennington's view is a "simplistic approach to the issue. It reflects a lack of understanding of what the true IT picture is in this state. I think he's recommending a cure for a problem that doesn't really exist."

That view is echoed by groups allied with the tech industry. "Any kind of situation where the government mandates a specific technology, chances are it's not a good approach to doing things. Clearly, legislators are not technologists, and market forces are going to be much more nimble in selecting technology," said Bob Cohen, an executive at the Information Technology Association of America, an IT industry trade group. And Emery Simon, general counsel of the Business Software Alliance, asks, "Do you use software? Have you ever looked at source code? Do you have any interest?"

Simon also disagrees with Tiemann's view that it is undemocratic for a government to make information available to its citizens only in proprietary file formats -- like Microsoft's Word format, for example. "If that were the sole format in which the information were available, maybe there's an argument," Cohen said. "But governments don't publish material in only one form. There are a whole lot of people who don't have computers. That argument goes to an absurd point, which is that the only way for democracy to function is for everyone to have the same thing."

Pennington acknowledges that such arguments from lawmakers and opponents of his idea will make it difficult for his bill to gain momentum. But he says that in the end, "capitalism and greed will cause it be successful. If I can show them that it will lower costs and increase competition, lawmakers will become interested."

Pennington's argument that government support of open-source software will foster competition is a curious one, because most people see his proposal as limiting competition, not increasing it. If the marketplace proves him right, if Linux can stand head-to-head against Windows and, in a fair system, emerge victorious, then why does he need legislation?

That's what Tim O'Reilly wants to know. Supporting Pennington's plan violates "my version of Freedom Zero," O'Reilly wrote, defining that freedom as "the freedom to offer your work to the world on the terms that you choose, and for the recipients to accept or reject those terms."

"My biggest beef with Microsoft is not that it offers proprietary software, but that it uses anticompetitive tactics and its monopoly position to take away my right to use non-Microsoft software through the introduction of deliberate incompatibilities and other roadblocks," O'Reilly wrote in an earlier blog entry. "If Freedom Zero for developers is the freedom to offer software on whatever terms the developer sets and a user will accept; Freedom Zero for users is the right to choose whatever software they like, without interference from platform vendors who try to deny that choice."

O'Reilly's column sparked a minor controversy on the Slashdot technology news site. The Slashdot moderator who introduced the topic went so far as to accuse O'Reilly, a longtime supporter of open-source software, as "promoting the agenda of Microsoft's Software Choice campaign ... but whatever his motives, his lame arguments are no reason to stop pushing for governments to use Free or Open Source software wherever possible."

Many Slashdot discussants sided with O'Reilly, however. "I couldn't agree more. Restricting the government to use only open-source software is simply insane," wrote one reader. "Within the bounds of law the government should be able to do what they need to do to get their job done. If that means using Windows or Office or some other proprietary software, so be it."

Pennington, for his part, dismisses O'Reilly's arguments -- "I don't think Tim really read my proposal," he says. (O'Reilly was abroad on vacation and could not be reached for comment.) "The criticisms that I've read haven't reflected that. I simply believe that the state should have the right as a purchaser to negotiate whatever licenses it chooses."

Tiemann, of Red Hat, says he was "a little bit disappointed" by O'Reilly's column. "I hear his libertarian principle, but here's the problem: We've got opponents to free software, opponents to open software. They're chiseling the very ground that we stand upon. Strong, powerful and moneyed interests are cutting it away. In a fair world where we don't have cynics taking away freedom, we can and have stood on our merits. The success of Linux is testimony to the fact that we have stood on our merits."

But, he says, "we take it for granted because these things were the status quo when our opinions were being formed: the freedom to write open-source software, to use open-source software. But when you look at the way that new laws are being applied and constructed -- the DMCA, the Hollings bill -- you look at a lot of other legislative saber-rattling that's going on, and the question becomes: How do we protect the freedoms that we have today?"

Tiemann thinks that the open-source community will come around to this view, and that developers and companies who support open source will rally around political measures to protect it. "Historically the open-source community has been full of libertarians, and O'Reilly expressed that viewpoint: 'Let's solve the problem by ignoring government,'" he says. "You've got a whole industry that has been politically mute. But Red Hat doesn't have that option. Maybe IBM has not fully comprehended how changes to the law that diminish open source can hurt their business -- maybe they think they can just go back to proprietary software. But for Red Hat, if open source cannot be selected by government, or open-source cannot be used or written, then Red Hat's in deep trouble."

As yet, Red Hat has contributed no money to the effort, Tiemann says -- "We haven't been asked" -- but Tiemann's sure that if it's necessary for the promotion of the bill, the company will be willing.

The more interesting question is whether the open-source community will be willing to support it. Pennington says that people will be "enthusiastic," but the interesting thing that emerged from the Slashdot thread is that many people think the bill would limit choice, and they think that's unacceptable -- even it helps "their side."

More than a few people note that the hallmark of open-source software is freedom -- freedom for developers, for consumers and, presumably, for governments as well. The movement to promote free software has always been predicated on such freedoms, and any success it's had has probably been due as much to the appeal of these ethics as to the quality of the actual software.

Pennington and his supporters insist that they're not trying to limit anyone's choice -- they're just pushing for necessary "standards," they say, and if those standards happen to make it very hard or even impossible for firms to sell proprietary software to the state, that's a problem the firms will have to deal with.

But for some people, it's not merely ironic that supporters of open software are promoting a bill that would apparently limit freedom -- they see it as worse than that, as selling out, going to the other side.

"This is something I've been worrying about, that anti-corporate zealots would turn the open-source movement into something just as bad as the major corporations/monopolies," wrote one reader on Slashdot. "I'm rather quite relieved to hear Tim O'Reilly of all people sharing the same opinion as me: that good as open source is, it should _NEVER_ be forced on people. That in essence destroys the 'freedom of choice' that is the driving force behind open source."

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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