If the idea *is* any good, it will percolate. It should, because it can work. If it passes, even formally, I anticipate the pols will jump on it, because it makes great press to be nasty to spammers when first amendment people aren't whining. (First Amendment considerations have basically been what's holding up most of the spam bills raised before the Congress -- the reality is that the spam lobby has a good constitutional argument for which there is no good response).
As to updating clients, that will happen automatically. First, people will want the anti-spam stuff. Second, those who are oblivious will buy new machines over time, which will have modern clients installed. I think it will work.
Once an RFC is adopted, and then a bill passed, I think adoption would be speedy. I have already received VERY positive responses from some. Once one emailer carries the feature, natural selection will make adoption very speedy. Effective anti-spam is a highly attractive feature.
I agree that it won't work at all unless we can get folks behind it, however. I think good ideas have a way of percolating to the top, however.
As to your observation about rejecting mail from gramma's stuff -- here's my spin:
(1) you can always positive filter grandma and anyone else who routinely comes in on the spam list. My suggestion is to set up macros (or have a client with a button to make it easy) so that you can positively filter any spam-triggered legit mail. Over time this will work.
(2) I don't really dump any e-mails (my current spam filtering is over-inclusive), I presently just filter them to a separate folder, and then liberally flip throught it to separate the wheat from the spam.
In short, I believe that if properly advertised, this idea can and will be a win. It is better than unconstitutional laws, which are losing. It is better because it keeps government off our backs except when we lie (as opposed to merely being annoying), which is winning.
With all the cheering, I am surprised that this usually pro-civil liberties crowd seems to think that compelled speech of any kind by government is acceptable. For what its worth, the case law on compelled speech is pretty clear -- the first amendment opponents of this bill have an excellent case.
The difficulty is that this bill require the INCLUSION of content. There is another way, which I have been advocating, that I believe would pass constitutional muster, but it requires we tech-heads to build some infrastructure:
(1) PUNISH any e-mail message that falsely makes representations concerning the manner in which the message (and substantially similar messages) had been distributed. Thus, if an e-mail contained the following:
"This e-mail, or e-mails substantially similar to this e-mail, was sent to fewer than 20 addresses within the past few months by me or persons affiliated with me; excluding those persons who have given to me, and have not withdrawn, their express consent to send unsolicited mail."
And the statement was false, book 'em Dan-O. Punish the crap out of them -- criminal sanctions, civil actions with attorney fees and fixed statutory damages, whatever. The Constitution does not protect false speech.
(2) Of course, that doesn't help anything. Now, establish a convention, say an "X-DISTRIBUTION30" tag that means the same thing. the convention should be designed so it is unambiguous (at least as unambiguous as the preceding message). X-DISTRIBUTION should expressly exclude automatic consenters, including subscribers to listservs that have not unsubscribed.
(3) Now, get e-mail clients to routinely generate e-mail with the X-DISTRIBUTION30 tag, except when they are actually distributing to more than 30 people. Because it is an anti-spam measure, the market desire to have this feature should be strong.
Now, voila! We can filter spam simply by punting all mail without the X-DISTRIBUTION tag, or putting them aside so we can still receive e-mail from folks with older clients.
The TRICK here is that we are punishing only those who have affirmatively ADDED false information, while still retaining the ability to filter. By having everyone ubiquitously saying their e-mail is non-spam, we aren't requiring anyone to say that they are.
And there you have it: a constitutional law that actually admits affirmative spam-filtering. The neat thing is that we don't need to wait for the legislature. Current unfair competition law may already provide remedies for false spammers if we can get the tech going promptly, and Congress will quickly follow our lead to "beef up" the downside for yicky spammers.
Of course it doesn't work unless we create a decent net standard, and make it fairly ubiquitous. Anyone want to teach me how to do an RFC?
And it won't really stop spam from happening -- it will, however remove the incentive, since most e-mail clients will probably be coded to filter out or down-grade priority for the mass-distribution stuff.
I am very interested in any comments the community might have on this.
What possible use is free access to the open source monster that would be Windows unless there is a responsible license that includes the right to practice all those patents?
I'm all for people making those arguments and for them being made visible to the public, but we need to generalize a bit so that people start making the association "UCITA == BAD".
I'm alive to this concern, but I think its a losing strategy. You are not going to win this by sheer populism. Either you form a more powerful constituency, so they don't care, or you convince the legislature that it will be bad for the State at the end of the day.
The latter approach is possible, because UCITA has gone over the edge in many respects. But marginalizing ourselves as overreacting knee-jerkers (without a big populist constituency) only makes it EASIER for folks to adopt the powerful constituency's position.
What you must understand is that these hypertechnical positions are simply never going to be understood. Therefore, whoever can afford more PR will win, as folks decide for themselves which of the experts are prettier. Thus, we need to win in a slightly different way.
Here, its easy to make the kind of advocacy you describe work: most folks are highly sophisticated, and most people are inclined to adopt your view. Outside in the "real world," excellent advocacy is a harder nut to crack, and the strategies for the best execution of that advocacy are often far from obvious.
We can fairly agree to disagree, and that's fine. Just so we understand what each other is saying.
Did you read this stuff? If all of this has had no effect, then I'd say the rational approach has indeed failed
Great, then go ahead with the irrational approach, for all the good it will do you. The nihilism of, "reason failed, let's get rowdy, so the bill won't be quietly passed," is ludicrous on its face. A bad bill that passed raucously or quietly is the same damned bad law.
Make sure the bill isn't passed without notice -- but BE REASONABLE in your opposition. Don't make the same stupid extravagant claims that have made UCC2B and UCITA opposition a laughingstock. Make the few, tighter, good claims that actually win debates and can't be dismissed with a hand-wave, and make sure you have an answer to the question, "so what else do we do about that?"
Or just keep on whining on Slashdot and flaming at me, for all the good it will do.
In other words, Mr. Greenberg's suggested method has been a complete failure.
To the contrary, the approach I have suggested, where taken has historically been quite successful. Opponents of patent reform ultimately prevailed (despite the law being passed), not by the wild keening of some independent inventors that the law was "bad, bad, bad," but by the quiet patient logrolling of harmless provisions for the troublesome ones. Ultimately, the radical "independent inventor" lobby was marginalized, and more moderate forces prevailed.
Same with UCC2B, which after years of being unable to work compromises, led the empowered lobbies to simply take their ball home and evolve into UCITA, where they got EVERYTHING they wanted. It is precisely Michael's oppose-it-all strategy that led to the present case of a bill being railroaded through so many legislatures. That strategy was foolish, and there was a chance to make a better bill. It was squandered by left-or-right ideologues who now pretend there is a chance to oppose wholesale the UCITA.
Legislators *WILL* pass a bill, because they need to respond to the constituencies supporting it. If you don't give them an alternative, they will pass the bill you are opposing.
I did not propose ignoring UCITA -- I simply said that acting like a raving lunatic will get you ignored, and offering no meaningful alternative, or acknowledging the reasonable UCITA provisions are reasonable will get your ideas discarded. They are *NOT* afraid of losing the vote of what is perceived to be a minority of ill-informed and unhelpful tech-heads.
THEY WILL RESPOND to well-educated counter-proposals articulated with the force of reason.
This worked for the Continental Congress, the Constitutional Congress, the recent battle over patent reform, and it can work here.
But Michael would rather take the sure loss, comforted the he had fought the good fight.
Tell them who you are, tell you're a constituent, tell them you oppose passage of UCITA because it will destroy consumer rights.
In case you haven't noticed, this strategy hasn't worked to stop DMCA, Copyright Extension or Dilution. It didn't work to stop the NCCUSL, and it won't likely stop UCITA.
Trying to oppose UCITA on the ground that it is the source of all evil, and devoid of all good will simply get you ignored. While such demagoguery may be a useful way to build up the negatives on issues all the population cares about, it isn't going to raise enough votes to scare a legislator who wants to have a "technology-friendly" state. This is particularly true in the face of an organized, well-monied, lobby of UCITA supporters.
If you *are* interested, you need to get out there with simple, rational and well-articulated amendments directed to what you feel are the worst points, and argue them with somewhat more substance and less sensationalism. To argue that UCITA will "destroy" all "consumer rights" invites a calm, rational rebuttal on the facts by the other side. In the face of specific amendments targeted at specific problems, it would be much harder to defend some of the places where UCITA overreaches.
This was an opportunity to make some changes. To have a think-in as to what changes are needed to actually make life better for the open source community. Instead, we took the role of "antis," and lost our place at the table, and will probably end up with UCITA in two or three dozen states, perhaps more, all with nothing else to show for it. Hopefully, the next time NCCUSL or the government shows an inclination to make wholesale changes to the laws most closely relating to what we do --if that happens again in our lifetime-- we'll be less silly about it.
With all due respect to the community, a call-in campaign to say that UCITA is all bad is probably the best way to assure that UCITA will ultimately pass exactly as drafted.
Perhaps you misread the article? The OpenLaw project is about a methodology for developing legal arguments in ongoing cases, and has nothing (except in the most indirect sense) to do with lawmaking or participatory democracy.
Suffice it to say that I disagree entirely. OpenLaw isn't about making laws at all -- its about a methodology for lawyering cases, that is, for crafting legal arguments. It doesn't appear to have anything whatsoever to do with participatory democracy. Your remarks appear to manifest a remarkable overreading of the project, which Berkman center defines as:
The OpenLaw group is, in their own words "an experiment in crafting legal argument in an open forum". In other words: legal cases built, like open source, according to the principle that many eyeballs make bugs shallow."
It is possible that I may have misread/overread what was written there and misunderstood your response, but I don't see how your remarks are in any way responsive to mine, or to the subject matter of the article.
For code, code readings are great. More code readings are better. This is, in part, because code either works or it doesn't, is fast or it isn't. This isn't always true, but it is more true than it isn't. To the extent this is true, the leverage of a community of open source contributors interested in a project is better, not worse.
For law, code readings are silly. It is not true of the law that an argument either works or it doesn't, or that more code readings can be used to find "the best argument." Indeed, to the contrary, Brooks law may ultimately overtake a legal project, and squeeze it to death: too many cooks . . .
A brief is usually subjected to rigid page limitations, and must be delivered up subject to a rigid (and usually short-fuse) time deadline. This is not the stuff for which large numbers of hobbyist contributors can be useful. Where legal research must be complete, it must be COMPREHENSIVE, and where it needn't be complete, it needn't be deep at all.
More important, the twenty pages of a legal brief must persuade. Advocacy is quite different from merely "getting it right." There is never room in twenty pages to give a complete and comprehensive analysis of everything relevant -- but twenty pages is the space in which you must give ALL the analysis of everything important. You must pick your BEST shots, focus on your BEST issues, and present them in their BEST light. Then, one must find the theme, the overall single "gist" of the argument, and weave those arguments therein, so that the judge or judges reading the brief are drawn in and buy into the rest of the story.
This is the kind of stuff for which one mind works better than two, at least after the brainstorming. Sure, it is helpful to have a few more eyes passing over a work to help cite-check and proofread the brief. Sure, it is helpful to have many people providing access to the obscure "home-run" cases when you can find them, if they can find them. But ultimately, someone needs to sift through these myriad claims of genius "finds," to determine their merits and relative weight.
In law, it is the FOCUS and HONING of an argument, not merely a comprehensive analysis, that wins the day. In my view, the Brooks law communications may well quickly defeat the possibility that a brief can be improved by an open law analysis.
At the end of the day, debugging a brief is not a big deal. Cite-checking twenty pages of brief's cases isn't that hard. Fifty people doing it doesn't make it much better.
The economies of scale that make open source work just don't seem to fit into the world of legal research and briefing. I agree with Seth and others who manifest skepticism that OpenLaw is simply an attempt to leverage the hype and panache, without the real and meaningful benefits, of open source.
This is not to say that legal volunteerism is unimportant. To the contrary, it is essential. Better pro bono publico work may well be improved by a network of (a moderate number of) well-wired attorneys working together in smaller bits, but with a central cathedral focus. (It is also a wonderful opportunity to make pro bono work fun!) If this is openlaw, I'm all for it. But it still is just law in a cathedral, albeit with wires, and not in the bazaar.
I like the fact that they have this huge database online, with lots of search criteria, but what good does it do when they admit that 'The Software Patent Institute has among its members some who believe strongly in the desirability of patents for software-related inventions and some who are strongly opposed to patents for software-related inventions. SPI deliberately takes no position on this issue...'
Of course there is no inconsistency whatsoever between being a proponent of software patents, generally, and being an opponent of bad software patents. No one can plausibly defend patents for technology that is not novel, and the strongest advocates for the patents system --to a man-- hold that the system can only work when the number of bad patents issued are held to a minimum.
This is the purpose of the database -- not to defeat software patents generally, but to aid in the defeat of bad software patents and hopefully to avoid the issuing of such patents in the first place.
Only those who are troubled by repairs in the patent system that would deprive the lock-step "antis" of the argument that the system isn't working would consider an improvement to be a bad thing.
Yes, TPTB bought an enormous amount of clout with the DMCA. Many academics and attorneys, myself included, argued that anti-circumvention provisions were capable of great abuse -- in particular, that the grant of patent-like rights of indefinite term for non-patentable methods for accessing information will be abused.
Congress was told what they wanted to hear: that these claims are speculative at best, and a Congressional Study by the LOC through the Copyright Office can determine whether DMCA is a good experiment or a grave evil.
The worse MPAA gets in handling these matters, the better it will be in the long run when it is time to have Congress revisit this question. This time, however, be sure to be there, and get loud. Focus on the strongest issues, step away from those that the Washington insiders will never get.
Ironically, I am optimistic that the present losses in preliminary injunction hearings may ultimately be the best basis for junking anti-circumvention laws entirely.
I know you're just informing us about the current state of copyright law, and I'm just pointing out a few inconsistencies in the law.
Which inconsistency is that? I am unaware of any case addressing the unlicensed use of a DVD. It may well be that DVD copying without license is infringement. Of course, I'm not sure why one would think they were not licensed to view their film at home -- the package of every DVD I own says "licensed for home viewing" or similar language to that effect. (I do have one that says, "for home viewing only.") In each case, a license is implied by that language.
BTW, what's with the blanket statements about copying==infringement. Don't know much about Fair Use, but even I know that I can quote and publish excerpts for the purposes of review and literary criticism (among others).
The quoted passage mischaracterizes what I wrote:
If your notion of "use" entails making copies (of any kind, except as subject to Sections 107-120), which is to say reproduction of the work, you commit actionable copyright infringement. In certain circumstances, that infringement can be a crime.
Section 107, cited above, codifies the fair use defense.
You seem to think that I'm making this up, just to press a point. I am not. We are not arguing what the law of Copyright should be, but what it is. You don't need to rely on me, but I practice daily in precisely this area of law.
Your supposition that you are entitled to "use" (whatever that means) a work merely because you own a copy, is in error. The Copyright owner who has sold you a copy retains complete exclusive rights to reproduce, make derivative works from and distribute the work, subject to first sale. If your notion of "use" entails making copies (of any kind, except as subject to Sections 107-120), which is to say reproduction of the work, you commit actionable copyright infringement. In certain circumstances, that infringement can be a crime.
Your example of "using" a book is inapposite -- if you make copies without a license you have committed an infringement.
Your example of "using" a video tape of a film is inapposite -- if you make copies without a license you have committed an infringement. (For AV works, there is also a public performance exclusive right, by the way).
As to software, I am telling you (and you may choose to ignore me once more if you like) that there is authoritative case law holding that the use of the software without a license (or beyond the scope of a license) constitutes Copyright infringement by the intermediate copies made in RAM. I don't know if the MAI and Southeastern cases are available on-line (check out the 9th Circuit web site), but if you are truly interested in learning more about this, contact me privately and I'll get you the full citations.
In the meanwhile, you may take it as read that your incredulity is unwarranted -- I offered you a fair characterization of the Copyright law, which does not support your supposition as to what you may and may not do with copies of a work you believe you have purchased. There are defendants who have paid heftily because their supposition that ownership of a copy of software implies use was inconsistent with the Copyright Act.
By the way, Congress expressly considered legislatively overruling MAI and Southeastern last year, and actually did so, but only in the limited circumstance of "using" system software to repair a machine. Thus, the Congress expressly embraced the status quo except for that small example. If you know any cases to the contrary, I'd be most interested -- but I doubt you'll find any.
I have only given the opinion a brief review, but I see at once an obvious failure of reason.
The opinion inconsistently found BOTH that: (1) DMCA anti-circumvention is constitutional because the Copyright Act has been found to be constitutional; and (2) Fair Use does not apply because DMCA anti-circumvention provision does not incorporate the Copyright Act provisions for a fair use defense.
It is certainly the case that the Courts have been kind to Copyright laws when defendants have raised First Amendment-based defenses, and in particular, that the Courts have found that the LIMITED monopoly granted by the Copyright Act does not fall afoul of the First Amendment (particularly given the force of Article I, Section 8 -- the Copyright Clause).
However, most judicial discussions of First Amendment constitutionality of the Copyright Act make reference to two specific facts: (i) that Copyright protects particular expressions, and does not protect ideas; and (ii) that the scope of a Copyright monopoly is limited to the extent a fair use defense is offered.
If the Court wishes to rely on this authority, it must then consider whether the DMCA protections offer both protections for Society. In fact, it fails in each case:
DMCA UNCONSTITUTIONALLY PROTECTS FOR AN UNLIMITED TERM IN PATENT-LIKE FASHION AN APPARATUS THAT MIGHT NOT ITSELF BE PATENTABLE
Let's be real, DMCA anti-circumvention protects the mechanism for protecting a work, not the work itself. DeCSS attacks the mechanism, not the work. This mechanism might be routine, un-novel and wholly obvious (hence unpatentable), yet DMCA would nevertheless protect it. And, so long as the underlying content is within its term, DMCA protects the mechanism FOREVER. (A patent would be limited to at most 20 years).
Thus, DMCA actually gives IDEA protection for the decoding apparatus for a security scheme, for an unlimited term, and (as noted below) without adequate protection for fair use. Indeed, I think an even stronger argument of unconstitutionality would be one based upon Article I, Section 8 -- this bill grants de facto super-patent rights (which also may not protect ideas) to an apparatus without any term limit, and thus violates the requirements of the Constitution that the grant be for a limited time.
(N.B.: I am not advising anybody to do so, I am only wishing those were the facts of this case -- it might very well be illegal to do so as this law seems to be developing in the Courts).
IF DMCA DOES NOT HAVE FAIR USE READ INTO IT BY JUDICIAL CONSTRUCTION, THEN IT IS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT BECAUSE IT DOES NOT HAVE FAIR USE LIMITATIONS.
The Fair use provisions of Section 107 were not originally made by the Congress. The Courts read them into the 1909 Copyright Act out of equitable fairness (and because of the First Amendment issues arising from suing a critic for quoting an article). Section 107 expressly stated that it did not replace, but merely codified the existing case law. If the Court decides not to read those cases into the DMCA, it can not AT THE SAME TIME, ignore the Constitutional implications on the ground that the DMCA is "just like copyright."
Again, we needn't investigate whether the DMCA is unconstitutional for these reasons -- its just that if the Court is going to rely on the similarity and Constitutional status of the Copyright Act itself under existing case law -- it must ask if DMCA satisfies those parameters.
None of the preceding is well-researched, or even carefully considered. But the inconsistency (and unfairness) of this reasoning struck even me between the eyeballs. (And you guys know what a hard-assed pro-IP guy I am.)
Are you forgetting about copyright law? You do not absolutely need a license to use software. If you legally acquire a copyrighted work whether it's a book, movie or software, copyright law gives you the right to use it.
I dissent.
The first sale doctrine (17 U.S.C. s. 109) applies only to the distribution rights, and not to reproduction. You are no more permitted to make copies (from disk to RAM; see the MAI and Southeastern cases) of a computer program because you own the copy than you are permitted to photocopy a book.
Well, this begs the question. I think the original authors is referring to the following language in GPL:
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.
The legal significance of this is somewhat comical. On one hand, by GPL's own terms, we are in fact unlicensed to run the program unless granted a license elsewhere. That is to say, while GPL doesn't restrict use, it doesn't allow it either. Another way to read the provision is that it expressly permits use by saying that use is unrestricted.
In any case, the Copyright Act does not give you the right to keep someone from "running" a program, per se. It only gives you the exclusive right to "reproduce" a copy of the program. Since copying a program from disk to magnetic media is reproduction, a "user" license is simply a limited license to reproduce, or copy, the program.
GPL *DOES* grant an express right to make copies, so arguably embedded in this is a sufficient grant of rights to run the program, either impliedly through the "not restricted" language of the quoted passage, or expressly through Section 1, to the extent running is not excluded by the scope segment. The better argument, regardless of what was intended, is that the second sentence about "running" is a subset of "copying," that the second sentence is a grant of a right to "run" (limited copy right), and thus you needn't fear FSF suing you for your use of GNU software.
I agree the langauge is awkward, but read one way it does tend to support the first poster's statement. Still, while it is true that an open source author could make a colorable argument that the public isn't permitted to use his GPL'd software, ("Hey, I only licensed you to distribute and make modifications to my work -- no running the damn thing for your own benefit") if GPL is the only license given, I wouldn't like his chances.
At any rate, all of this argument about whether or not GPL is a EULA is just sophistry. It doesn't matter. The clear intent of a GPL publication is to grant the public a right to use. If GPL doesn't protect the author from liability from end-users, it would be GPL, not the law that should be changed. I, for one, think we are safe under the provisions of GPL, regardless of whether it is construed under either the UCITA or the UCC and, if anything, UCITA makes it more likely, not less likely to be enforceable.
Finding that there are differences between various different types of licenses doesn't amount to an argument that one kind of license is not enforceable under UCITA (but is enforceable under the UCC).
Even if your arguments were true, why would the distinction make a difference?
Please don't confuse the GPL with a EULA. A EULA attempts to restrict the ways that you can use the software, while the GPL only addresses software distribution and places no restrictions on use.
Agreed that, by its terms, GPL does not restrict use of the program. Why would that make any difference at all as to the question whether the UCITA applies? Even if your argument took GPL out of the definition of a "mass-market license," why wouldn't UCITA permit its enforcement?
My point is this: UCITA either applies or it does not. If it does not, then Stallman's argument fails, because it is based upon the theory that GPL changes the status quo. If it does, then Stallman's argument also fails because: (1) UCITA does not vary in liability provisions from the status quo; and (2) UCITA is far more likely to render GPL enforceable than non-enforceable.
Finally, if liability was REALLY the issue here (as opposed to a lockstep ideological opposition to UCITA), why not simply argue for minor changes to "repair" it so UCITA covers GPL to your satisfaction? Such an argument would likely be adopted by NCCUSL or a state legislature.
Shrinkwrap and clickthru licenses DO form contracts. There's a lot of caselaw to that effect. I posted a few citations on this here on Slashdot the last time this issue came up. Do a law journal search on "clickthrough" and you'll find HUNDREDS of law review articles that will discuss the issue to death. (My Westlaw access is currently suspended or I'd dig up a few cases on point.)
The truth is far more interesting. There are Circuit Court opinions supporting both views, although it appears that the ProCD case (shrink-wrap yield a contract) seems to be leading the "trend." Such ambiguity is one of the UCITA proponents principal arguments for the need for a uniform Act.
You see, UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default.
With all due respect to RMS, I dissent! It seems that UCITA is actually more friendly to OSS developers than the status quo in this very regard.
First, with respect to liability "defaults," how is UCITA any different from the status quo? Under the UCC, for example, there are implied warranties against infringement, of merchantability and suitability for a particular purpose. Present law also permits a contract to override this default. On the other hand, if the GNU license agreement is not binding, then you are stuck with all implied licenses (and if not a contract, perhaps a claim in tort in those states showing chinks in the armor of the Economic Loss Rule)! The risk of unlimited liabilty under the status quo is substantial -- and it is the need to reverse this risk of liability which typically forms the strongest argument for a pro-mass-market position UNDER THE STATUS QUO.
Now as to mechanisms for such reversal, it appears to me that UCITA provides zillions of avenues to argue that assent to the GNU was manifest by conduct, even if the license were not (and it probably is) enforceable as a mass-market license. To the best of my knowledge (it has been a while since I looked at it, the words "shrink-wrap" do not appear in UCITA.
Compare this with the status quo, where we are at best at the mercy of a court to determine whether our GNU license limitation of liability provisions are enforceable against a user. Indeed, under the common law, only "shrink-wraps" and "click-wraps" have been accepted -- it remains to be seen if a license accompanying an electronic record without some mechanism to limit access is enforceable under the status quo.
So, I agree with RMS' points, but think that it argues FOR the adoption of UCITA rather than against it. I AM opposed to certain other provisions of the Act, but these provisions seem to me most among the most helpful to the OSS and free software movements.
that as long as a software project is intelligently planned and developed, it really doesn't NEED to be OO. OO programming has some advantages to development (especially when it comes to designing a UI) but its main advantage is that if you use OO programming you MUST be more careful in your design (in order to really get any benefits OO programming gives you).
That's what I used to think as well. However, a substantial contingent of the OO community argues violently against extended design at the outset of a project, relying instead upon an OO programming technique, refactoring, to "adjust" OO designs over time to facilitate change and reuse for additional functionality not contemplated in the prototype.
The theory is to build VERY EARLY ON "the simplest thing that could possibly work," exploiting refactoring and agressive (most tests written before most code) regression testing to evolve the prototype to a superior design over time. Fowler's book, "Refactoring" and Kent Beck's "Extreme Programming" really opened my eyes to a new way to thinking about code.
Having experimented with XP techniques on recent projects, albeit in the small, I have discovered that there is much more truth than hype in Beck's writing. While I haven't "gone to the dark side" completely yet, I now recognize that there are in fact some truly fundamental, and exciting, differences between OOPing and traditional hacking.
On one point I will agree, however: good ooping requires discipline to attain its benefits, perhaps more discipline than can be imposed on a large decentralized project such as an Open Source OS. You can write groty code, of course, in any programming languauge.
I didn't see any discussion of open sourcing their technology. It appears that they are merely providing a mechanism (in HTML) so your web site can "front" a query that is fielded and handled by Altavista, with a registration and payback mechanism.
Such a scheme (without the registration or payback mechanism) has been in place for quite a while at Google:
Obviously, I would prefer to get money for the clickthroughs I generate, but I also want my clients to get great search results as well. At any rate, if I understand correctly, this does not appear to be the "open source" surprise represented in the article.
Slashdot Mirror
You make excellent points! I have a few thoughts.
If the idea *is* any good, it will percolate. It should, because it can work. If it passes, even formally, I anticipate the pols will jump on it, because it makes great press to be nasty to spammers when first amendment people aren't whining. (First Amendment considerations have basically been what's holding up most of the spam bills raised before the Congress -- the reality is that the spam lobby has a good constitutional argument for which there is no good response).
As to updating clients, that will happen automatically. First, people will want the anti-spam stuff. Second, those who are oblivious will buy new machines over time, which will have modern clients installed. I think it will work.
Once an RFC is adopted, and then a bill passed, I think adoption would be speedy. I have already received VERY positive responses from some. Once one emailer carries the feature, natural selection will make adoption very speedy. Effective anti-spam is a highly attractive feature.
I agree that it won't work at all unless we can get folks behind it, however. I think good ideas have a way of percolating to the top, however.
As to your observation about rejecting mail from gramma's stuff -- here's my spin:
(1) you can always positive filter grandma and anyone else who routinely comes in on the spam list. My suggestion is to set up macros (or have a client with a button to make it easy) so that you can positively filter any spam-triggered legit mail. Over time this will work.
(2) I don't really dump any e-mails (my current spam filtering is over-inclusive), I presently just filter them to a separate folder, and then liberally flip throught it to separate the wheat from the spam.
In short, I believe that if properly advertised, this idea can and will be a win. It is better than unconstitutional laws, which are losing. It is better because it keeps government off our backs except when we lie (as opposed to merely being annoying), which is winning.
I hope this gives you greater confidence!
With all the cheering, I am surprised that this usually pro-civil liberties crowd seems to think that compelled speech of any kind by government is acceptable. For what its worth, the case law on compelled speech is pretty clear -- the first amendment opponents of this bill have an excellent case.
The difficulty is that this bill require the INCLUSION of content. There is another way, which I have been advocating, that I believe would pass constitutional muster, but it requires we tech-heads to build some infrastructure:
(1) PUNISH any e-mail message that falsely makes representations concerning the manner in which the message (and substantially similar messages) had been distributed. Thus, if an e-mail contained the following:
"This e-mail, or e-mails substantially similar to this e-mail, was sent to fewer than 20 addresses within the past few months by me or persons affiliated with me; excluding those persons who have given to me, and have not withdrawn, their express consent to send unsolicited mail."
And the statement was false, book 'em Dan-O. Punish the crap out of them -- criminal sanctions, civil actions with attorney fees and fixed statutory damages, whatever. The Constitution does not protect false speech.
(2) Of course, that doesn't help anything. Now, establish a convention, say an "X-DISTRIBUTION30" tag that means the same thing. the convention should be designed so it is unambiguous (at least as unambiguous as the preceding message). X-DISTRIBUTION should expressly exclude automatic consenters, including subscribers to listservs that have not unsubscribed.
(3) Now, get e-mail clients to routinely generate e-mail with the X-DISTRIBUTION30 tag, except when they are actually distributing to more than 30 people. Because it is an anti-spam measure, the market desire to have this feature should be strong.
Now, voila! We can filter spam simply by punting all mail without the X-DISTRIBUTION tag, or putting them aside so we can still receive e-mail from folks with older clients.
The TRICK here is that we are punishing only those who have affirmatively ADDED false information, while still retaining the ability to filter. By having everyone ubiquitously saying their e-mail is non-spam, we aren't requiring anyone to say that they are.
And there you have it: a constitutional law that actually admits affirmative spam-filtering. The neat thing is that we don't need to wait for the legislature. Current unfair competition law may already provide remedies for false spammers if we can get the tech going promptly, and Congress will quickly follow our lead to "beef up" the downside for yicky spammers.
Of course it doesn't work unless we create a decent net standard, and make it fairly ubiquitous. Anyone want to teach me how to do an RFC?
And it won't really stop spam from happening -- it will, however remove the incentive, since most e-mail clients will probably be coded to filter out or down-grade priority for the mass-distribution stuff.
I am very interested in any comments the community might have on this.
What possible use is free access to the open source monster that would be Windows unless there is a responsible license that includes the right to practice all those patents?
I'm all for people making those arguments and for them being made visible to the public, but we need to generalize a bit so that people start making the association "UCITA == BAD".
I'm alive to this concern, but I think its a losing strategy. You are not going to win this by sheer populism. Either you form a more powerful constituency, so they don't care, or you convince the legislature that it will be bad for the State at the end of the day.
The latter approach is possible, because UCITA has gone over the edge in many respects. But marginalizing ourselves as overreacting knee-jerkers (without a big populist constituency) only makes it EASIER for folks to adopt the powerful constituency's position.
What you must understand is that these hypertechnical positions are simply never going to be understood. Therefore, whoever can afford more PR will win, as folks decide for themselves which of the experts are prettier. Thus, we need to win in a slightly different way.
Here, its easy to make the kind of advocacy you describe work: most folks are highly sophisticated, and most people are inclined to adopt your view. Outside in the "real world," excellent advocacy is a harder nut to crack, and the strategies for the best execution of that advocacy are often far from obvious.
We can fairly agree to disagree, and that's fine. Just so we understand what each other is saying.
Best,
A
Did you read this stuff? If all of this has had no effect, then I'd say the rational approach has indeed failed
Great, then go ahead with the irrational approach, for all the good it will do you. The nihilism of, "reason failed, let's get rowdy, so the bill won't be quietly passed," is ludicrous on its face. A bad bill that passed raucously or quietly is the same damned bad law.
Make sure the bill isn't passed without notice -- but BE REASONABLE in your opposition. Don't make the same stupid extravagant claims that have made UCC2B and UCITA opposition a laughingstock. Make the few, tighter, good claims that actually win debates and can't be dismissed with a hand-wave, and make sure you have an answer to the question, "so what else do we do about that?"
Or just keep on whining on Slashdot and flaming at me, for all the good it will do.
In other words, Mr. Greenberg's suggested method has been a complete failure.
To the contrary, the approach I have suggested, where taken has historically been quite successful. Opponents of patent reform ultimately prevailed (despite the law being passed), not by the wild keening of some independent inventors that the law was "bad, bad, bad," but by the quiet patient logrolling of harmless provisions for the troublesome ones. Ultimately, the radical "independent inventor" lobby was marginalized, and more moderate forces prevailed.
Same with UCC2B, which after years of being unable to work compromises, led the empowered lobbies to simply take their ball home and evolve into UCITA, where they got EVERYTHING they wanted. It is precisely Michael's oppose-it-all strategy that led to the present case of a bill being railroaded through so many legislatures. That strategy was foolish, and there was a chance to make a better bill. It was squandered by left-or-right ideologues who now pretend there is a chance to oppose wholesale the UCITA.
Legislators *WILL* pass a bill, because they need to respond to the constituencies supporting it. If you don't give them an alternative, they will pass the bill you are opposing.
I did not propose ignoring UCITA -- I simply said that acting like a raving lunatic will get you ignored, and offering no meaningful alternative, or acknowledging the reasonable UCITA provisions are reasonable will get your ideas discarded. They are *NOT* afraid of losing the vote of what is perceived to be a minority of ill-informed and unhelpful tech-heads.
THEY WILL RESPOND to well-educated counter-proposals articulated with the force of reason.
This worked for the Continental Congress, the Constitutional Congress, the recent battle over patent reform, and it can work here.
But Michael would rather take the sure loss, comforted the he had fought the good fight.
Tell them who you are, tell you're a constituent, tell them you oppose passage of UCITA because it will destroy consumer rights.
In case you haven't noticed, this strategy hasn't worked to stop DMCA, Copyright Extension or Dilution. It didn't work to stop the NCCUSL, and it won't likely stop UCITA.
Trying to oppose UCITA on the ground that it is the source of all evil, and devoid of all good will simply get you ignored. While such demagoguery may be a useful way to build up the negatives on issues all the population cares about, it isn't going to raise enough votes to scare a legislator who wants to have a "technology-friendly" state. This is particularly true in the face of an organized, well-monied, lobby of UCITA supporters.
If you *are* interested, you need to get out there with simple, rational and well-articulated amendments directed to what you feel are the worst points, and argue them with somewhat more substance and less sensationalism. To argue that UCITA will "destroy" all "consumer rights" invites a calm, rational rebuttal on the facts by the other side. In the face of specific amendments targeted at specific problems, it would be much harder to defend some of the places where UCITA overreaches.
This was an opportunity to make some changes. To have a think-in as to what changes are needed to actually make life better for the open source community. Instead, we took the role of "antis," and lost our place at the table, and will probably end up with UCITA in two or three dozen states, perhaps more, all with nothing else to show for it. Hopefully, the next time NCCUSL or the government shows an inclination to make wholesale changes to the laws most closely relating to what we do --if that happens again in our lifetime-- we'll be less silly about it.
With all due respect to the community, a call-in campaign to say that UCITA is all bad is probably the best way to assure that UCITA will ultimately pass exactly as drafted.
Perhaps you misread the article? The OpenLaw project is about a methodology for developing legal arguments in ongoing cases, and has nothing (except in the most indirect sense) to do with lawmaking or participatory democracy.
It is possible that I may have misread/overread what was written there and misunderstood your response, but I don't see how your remarks are in any way responsive to mine, or to the subject matter of the article.
For code, code readings are great. More code readings are better. This is, in part, because code either works or it doesn't, is fast or it isn't. This isn't always true, but it is more true than it isn't. To the extent this is true, the leverage of a community of open source contributors interested in a project is better, not worse.
For law, code readings are silly. It is not true of the law that an argument either works or it doesn't, or that more code readings can be used to find "the best argument." Indeed, to the contrary, Brooks law may ultimately overtake a legal project, and squeeze it to death: too many cooks . . .
A brief is usually subjected to rigid page limitations, and must be delivered up subject to a rigid (and usually short-fuse) time deadline. This is not the stuff for which large numbers of hobbyist contributors can be useful. Where legal research must be complete, it must be COMPREHENSIVE, and where it needn't be complete, it needn't be deep at all.
More important, the twenty pages of a legal brief must persuade. Advocacy is quite different from merely "getting it right." There is never room in twenty pages to give a complete and comprehensive analysis of everything relevant -- but twenty pages is the space in which you must give ALL the analysis of everything important. You must pick your BEST shots, focus on your BEST issues, and present them in their BEST light. Then, one must find the theme, the overall single "gist" of the argument, and weave those arguments therein, so that the judge or judges reading the brief are drawn in and buy into the rest of the story.
This is the kind of stuff for which one mind works better than two, at least after the brainstorming. Sure, it is helpful to have a few more eyes passing over a work to help cite-check and proofread the brief. Sure, it is helpful to have many people providing access to the obscure "home-run" cases when you can find them, if they can find them. But ultimately, someone needs to sift through these myriad claims of genius "finds," to determine their merits and relative weight.
In law, it is the FOCUS and HONING of an argument, not merely a comprehensive analysis, that wins the day. In my view, the Brooks law communications may well quickly defeat the possibility that a brief can be improved by an open law analysis.
At the end of the day, debugging a brief is not a big deal. Cite-checking twenty pages of brief's cases isn't that hard. Fifty people doing it doesn't make it much better.
The economies of scale that make open source work just don't seem to fit into the world of legal research and briefing. I agree with Seth and others who manifest skepticism that OpenLaw is simply an attempt to leverage the hype and panache, without the real and meaningful benefits, of open source.
This is not to say that legal volunteerism is unimportant. To the contrary, it is essential. Better pro bono publico work may well be improved by a network of (a moderate number of) well-wired attorneys working together in smaller bits, but with a central cathedral focus. (It is also a wonderful opportunity to make pro bono work fun!) If this is openlaw, I'm all for it. But it still is just law in a cathedral, albeit with wires, and not in the bazaar.
I like the fact that they have this huge database online, with lots of search criteria, but what good does it do when they admit that 'The Software Patent Institute has among its members some who believe strongly in the desirability of patents for software-related inventions and some who are strongly opposed to patents for software-related inventions. SPI deliberately takes no position on this issue...'
Of course there is no inconsistency whatsoever between being a proponent of software patents, generally, and being an opponent of bad software patents. No one can plausibly defend patents for technology that is not novel, and the strongest advocates for the patents system --to a man-- hold that the system can only work when the number of bad patents issued are held to a minimum.
This is the purpose of the database -- not to defeat software patents generally, but to aid in the defeat of bad software patents and hopefully to avoid the issuing of such patents in the first place.
Only those who are troubled by repairs in the patent system that would deprive the lock-step "antis" of the argument that the system isn't working would consider an improvement to be a bad thing.
Yes, TPTB bought an enormous amount of clout with the DMCA. Many academics and attorneys, myself included, argued that anti-circumvention provisions were capable of great abuse -- in particular, that the grant of patent-like rights of indefinite term for non-patentable methods for accessing information will be abused.
Congress was told what they wanted to hear: that these claims are speculative at best, and a Congressional Study by the LOC through the Copyright Office can determine whether DMCA is a good experiment or a grave evil.
The worse MPAA gets in handling these matters, the better it will be in the long run when it is time to have Congress revisit this question. This time, however, be sure to be there, and get loud. Focus on the strongest issues, step away from those that the Washington insiders will never get.
Ironically, I am optimistic that the present losses in preliminary injunction hearings may ultimately be the best basis for junking anti-circumvention laws entirely.
*sigh* I am satisfied that I have addressed all your points to the extent they had any merit at all. We'll simply have to agree to disagree.
Which inconsistency is that? I am unaware of any case addressing the unlicensed use of a DVD. It may well be that DVD copying without license is infringement. Of course, I'm not sure why one would think they were not licensed to view their film at home -- the package of every DVD I own says "licensed for home viewing" or similar language to that effect. (I do have one that says, "for home viewing only.") In each case, a license is implied by that language.
BTW, what's with the blanket statements about copying==infringement. Don't know much about Fair Use, but even I know that I can quote and publish excerpts for the purposes of review and literary criticism (among others).
The quoted passage mischaracterizes what I wrote:
Section 107, cited above, codifies the fair use defense.
You seem to think that I'm making this up, just to press a point. I am not. We are not arguing what the law of Copyright should be, but what it is. You don't need to rely on me, but I practice daily in precisely this area of law.
Your supposition that you are entitled to "use" (whatever that means) a work merely because you own a copy, is in error. The Copyright owner who has sold you a copy retains complete exclusive rights to reproduce, make derivative works from and distribute the work, subject to first sale. If your notion of "use" entails making copies (of any kind, except as subject to Sections 107-120), which is to say reproduction of the work, you commit actionable copyright infringement. In certain circumstances, that infringement can be a crime.
Your example of "using" a book is inapposite -- if you make copies without a license you have committed an infringement.
Your example of "using" a video tape of a film is inapposite -- if you make copies without a license you have committed an infringement. (For AV works, there is also a public performance exclusive right, by the way).
As to software, I am telling you (and you may choose to ignore me once more if you like) that there is authoritative case law holding that the use of the software without a license (or beyond the scope of a license) constitutes Copyright infringement by the intermediate copies made in RAM. I don't know if the MAI and Southeastern cases are available on-line (check out the 9th Circuit web site), but if you are truly interested in learning more about this, contact me privately and I'll get you the full citations.
In the meanwhile, you may take it as read that your incredulity is unwarranted -- I offered you a fair characterization of the Copyright law, which does not support your supposition as to what you may and may not do with copies of a work you believe you have purchased. There are defendants who have paid heftily because their supposition that ownership of a copy of software implies use was inconsistent with the Copyright Act.
By the way, Congress expressly considered legislatively overruling MAI and Southeastern last year, and actually did so, but only in the limited circumstance of "using" system software to repair a machine. Thus, the Congress expressly embraced the status quo except for that small example. If you know any cases to the contrary, I'd be most interested -- but I doubt you'll find any.
I have only given the opinion a brief review, but I see at once an obvious failure of reason.
The opinion inconsistently found BOTH that: (1) DMCA anti-circumvention is constitutional because the Copyright Act has been found to be constitutional; and (2) Fair Use does not apply because DMCA anti-circumvention provision does not incorporate the Copyright Act provisions for a fair use defense.
It is certainly the case that the Courts have been kind to Copyright laws when defendants have raised First Amendment-based defenses, and in particular, that the Courts have found that the LIMITED monopoly granted by the Copyright Act does not fall afoul of the First Amendment (particularly given the force of Article I, Section 8 -- the Copyright Clause).
However, most judicial discussions of First Amendment constitutionality of the Copyright Act make reference to two specific facts: (i) that Copyright protects particular expressions, and does not protect ideas; and (ii) that the scope of a Copyright monopoly is limited to the extent a fair use defense is offered.
If the Court wishes to rely on this authority, it must then consider whether the DMCA protections offer both protections for Society. In fact, it fails in each case:
DMCA UNCONSTITUTIONALLY PROTECTS FOR AN UNLIMITED TERM IN PATENT-LIKE FASHION AN APPARATUS THAT MIGHT NOT ITSELF BE PATENTABLE
Let's be real, DMCA anti-circumvention protects the mechanism for protecting a work, not the work itself. DeCSS attacks the mechanism, not the work. This mechanism might be routine, un-novel and wholly obvious (hence unpatentable), yet DMCA would nevertheless protect it. And, so long as the underlying content is within its term, DMCA protects the mechanism FOREVER. (A patent would be limited to at most 20 years).
Thus, DMCA actually gives IDEA protection for the decoding apparatus for a security scheme, for an unlimited term, and (as noted below) without adequate protection for fair use. Indeed, I think an even stronger argument of unconstitutionality would be one based upon Article I, Section 8 -- this bill grants de facto super-patent rights (which also may not protect ideas) to an apparatus without any term limit, and thus violates the requirements of the Constitution that the grant be for a limited time.
(N.B.: I am not advising anybody to do so, I am only wishing those were the facts of this case -- it might very well be illegal to do so as this law seems to be developing in the Courts).
IF DMCA DOES NOT HAVE FAIR USE READ INTO IT BY JUDICIAL CONSTRUCTION, THEN IT IS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT BECAUSE IT DOES NOT HAVE FAIR USE LIMITATIONS.
The Fair use provisions of Section 107 were not originally made by the Congress. The Courts read them into the 1909 Copyright Act out of equitable fairness (and because of the First Amendment issues arising from suing a critic for quoting an article). Section 107 expressly stated that it did not replace, but merely codified the existing case law. If the Court decides not to read those cases into the DMCA, it can not AT THE SAME TIME, ignore the Constitutional implications on the ground that the DMCA is "just like copyright."
Again, we needn't investigate whether the DMCA is unconstitutional for these reasons -- its just that if the Court is going to rely on the similarity and Constitutional status of the Copyright Act itself under existing case law -- it must ask if DMCA satisfies those parameters.
None of the preceding is well-researched, or even carefully considered. But the inconsistency (and unfairness) of this reasoning struck even me between the eyeballs. (And you guys know what a hard-assed pro-IP guy I am.)
Are you forgetting about copyright law? You do not absolutely need a license to use software. If you legally acquire a copyrighted work whether it's a book, movie or software, copyright law gives you the right to use it.
I dissent.
The first sale doctrine (17 U.S.C. s. 109) applies only to the distribution rights, and not to reproduction. You are no more permitted to make copies (from disk to RAM; see the MAI and Southeastern cases) of a computer program because you own the copy than you are permitted to photocopy a book.
The last even day was 1111 years, 5 months and five days ago. An odd interval!
Finding that there are differences between various different types of licenses doesn't amount to an argument that one kind of license is not enforceable under UCITA (but is enforceable under the UCC).
Even if your arguments were true, why would the distinction make a difference?
Please don't confuse the GPL with a EULA. A EULA attempts to restrict the ways that you can use the software, while the GPL only addresses software distribution and places no restrictions on use.
Agreed that, by its terms, GPL does not restrict use of the program. Why would that make any difference at all as to the question whether the UCITA applies? Even if your argument took GPL out of the definition of a "mass-market license," why wouldn't UCITA permit its enforcement?
My point is this: UCITA either applies or it does not. If it does not, then Stallman's argument fails, because it is based upon the theory that GPL changes the status quo. If it does, then Stallman's argument also fails because: (1) UCITA does not vary in liability provisions from the status quo; and (2) UCITA is far more likely to render GPL enforceable than non-enforceable.
Finally, if liability was REALLY the issue here (as opposed to a lockstep ideological opposition to UCITA), why not simply argue for minor changes to "repair" it so UCITA covers GPL to your satisfaction? Such an argument would likely be adopted by NCCUSL or a state legislature.
Shrinkwrap and clickthru licenses DO form contracts. There's a lot of caselaw to that effect. I posted a few citations on this here on Slashdot the last time this issue came up. Do a law journal search on "clickthrough" and you'll find HUNDREDS of law review articles that will discuss the issue to death. (My Westlaw access is currently suspended or I'd dig up a few cases on point.)
The truth is far more interesting. There are Circuit Court opinions supporting both views, although it appears that the ProCD case (shrink-wrap yield a contract) seems to be leading the "trend." Such ambiguity is one of the UCITA proponents principal arguments for the need for a uniform Act.
You see, UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default.
With all due respect to RMS, I dissent! It seems that UCITA is actually more friendly to OSS developers than the status quo in this very regard.
First, with respect to liability "defaults," how is UCITA any different from the status quo? Under the UCC, for example, there are implied warranties against infringement, of merchantability and suitability for a particular purpose. Present law also permits a contract to override this default. On the other hand, if the GNU license agreement is not binding, then you are stuck with all implied licenses (and if not a contract, perhaps a claim in tort in those states showing chinks in the armor of the Economic Loss Rule)! The risk of unlimited liabilty under the status quo is substantial -- and it is the need to reverse this risk of liability which typically forms the strongest argument for a pro-mass-market position UNDER THE STATUS QUO.
Now as to mechanisms for such reversal, it appears to me that UCITA provides zillions of avenues to argue that assent to the GNU was manifest by conduct, even if the license were not (and it probably is) enforceable as a mass-market license. To the best of my knowledge (it has been a while since I looked at it, the words "shrink-wrap" do not appear in UCITA.
Compare this with the status quo, where we are at best at the mercy of a court to determine whether our GNU license limitation of liability provisions are enforceable against a user. Indeed, under the common law, only "shrink-wraps" and "click-wraps" have been accepted -- it remains to be seen if a license accompanying an electronic record without some mechanism to limit access is enforceable under the status quo.
So, I agree with RMS' points, but think that it argues FOR the adoption of UCITA rather than against it. I AM opposed to certain other provisions of the Act, but these provisions seem to me most among the most helpful to the OSS and free software movements.
that as long as a software project is intelligently planned and developed, it really doesn't NEED to be OO. OO programming has some advantages to development (especially when it comes to designing a UI) but its main advantage is that if you use OO programming you MUST be more careful in your design (in order to really get any benefits OO programming gives you).
That's what I used to think as well. However, a substantial contingent of the OO community argues violently against extended design at the outset of a project, relying instead upon an OO programming technique, refactoring, to "adjust" OO designs over time to facilitate change and reuse for additional functionality not contemplated in the prototype.
The theory is to build VERY EARLY ON "the simplest thing that could possibly work," exploiting refactoring and agressive (most tests written before most code) regression testing to evolve the prototype to a superior design over time. Fowler's book, "Refactoring" and Kent Beck's "Extreme Programming" really opened my eyes to a new way to thinking about code.
Having experimented with XP techniques on recent projects, albeit in the small, I have discovered that there is much more truth than hype in Beck's writing. While I haven't "gone to the dark side" completely yet, I now recognize that there are in fact some truly fundamental, and exciting, differences between OOPing and traditional hacking.
On one point I will agree, however: good ooping requires discipline to attain its benefits, perhaps more discipline than can be imposed on a large decentralized project such as an Open Source OS. You can write groty code, of course, in any programming languauge.
I didn't see any discussion of open sourcing their technology. It appears that they are merely providing a mechanism (in HTML) so your web site can "front" a query that is fielded and handled by Altavista, with a registration and payback mechanism.
Such a scheme (without the registration or payback mechanism) has been in place for quite a while at Google:
http://services.google.com/cobrand/fr ee_trial
Obviously, I would prefer to get money for the clickthroughs I generate, but I also want my clients to get great search results as well. At any rate, if I understand correctly, this does not appear to be the "open source" surprise represented in the article.