Pluralistic: 20 Oct 2021

Today's links

A scales of justice; on the high pan, a hacker in a hoodie, their face replaced by a Vizio logo; on the lower scale, Tux the Penguin; in the background, a washed out and blurred image of a mass demonstration whose participants are raising their fists.

Copyleft lawsuit against Vizio will allow anyone to defend the commons (permalink)

When the free software movement started to make headway, proprietary software companies like Microsoft went to war against it, describing the licenses at its core (like the GPL) as "viral licenses" to scare companies off from using free software.

The GPL is a software license that coders add to their work that says, "You can do anything with this – change it, sell it, copy it, incorporate it into something else, BUT…you have to redistribute the new projects under the same terms."

In other words, we are making a software commons – code that anyone can use and improve, but only if they agree to maintain the commons. Like any shared resource, commons need protection from freeloaders who take but do not replenish.

When Microsoft called that a "viral" proposition, they meant that participating in free software meant that they'd be legally required to maintain the commons. Microsoft didn't want a commons – they wanted a private preserve with a big lock on the gate.

But the commons won – Microsoft, and most other tech companies – ended up embracing free software, using it, adhering to the license terms, and contributing back.

This isn't a fairy-tale happy ending. As Mako Hill described in his brilliant 2018 Libreplanet keynote, Big Tech found ways to comply with free licenses without giving back to the commons – they gave us "open source" and got "software freedom."

Smaller tech companies couldn't pull of that move. Most of them fell into line, but many of them just flat-out cheated, betting that no one would drag them into court.

They bet wrong. Linksys ripped off GPLed code and in 2008, the Free Software Foundation forced them to comply with the license. That worked out great! It led to the creation of DD-WRT, a widely used free/open wifi base-station firmware.,_Inc._v._Cisco_Systems,_Inc.

FSF was able to credibly threaten Linksys's parent company, Cisco, because the authors of the programs Linksys ripped off had assigned their copyrights to the Foundation. That gave it "standing" to sue.

You see, in order to seek civil justice in the courts, you need to be an injured party. If your neighbor punches pizza deliverator in the face, you can't sue, because you weren't injured. You don't have standing.

The thing is, there's far more free software whose copyright wasn't assigned to FSF than code that the FSF has the copyright to, and thus standing to defend against violations like Linksys's.

For many of these projects, copyright is diffused over dozens or hundreds of programmers. They have standing to enforce the license, but likely lack the resources to sue a giant corporation. So some companies made a calculus that they could rob the commons with impunity.

One such rip-off artist is Vizio, a company with a long history of incorporating free software into its products and then stonewalling when demands come in for them to follow copyright law and release the code to the products they built from the commons.

Vizio's free ride is over. The nonprofit Software Freedom Conservancy has filed suit against Vizio to force it to comply with the GPL – and this legal challenge has the potential to change the game for GPL enforcement in a profound way.

You see, the Conservancy isn't suing on behalf of the copyright holders whose code Vizio is illegally using – it's suing on behalf of the users of free software who are injured by Vizio's attack on the commons.

The Conservancy's argument is that free software users also have standing to enforce the GPL, because a failure to comply with the GPL harms them. They call this "Community-Oriented GPL Enforcement."

And because the Conservancy's goal is to create a bigger commons, they have pre-committed to refusing cash settlements – they will settle for full GPL compliance, and nothing less.

If they manage to establish that free software users have standing to enforce the GPL, it will upend the broken system that has let companies like Vizio flout the law for years while making vast profits off the commons-based labor of software authors.

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(Image: Nathan Keirn, CC BY-SA)

Two tough guy caricatures brandish clubs at one another; one wears a lapel badge with the Google logo; the other bears a badge with Microsoft's. Between them is an open treasure chest, with the logos for Novell, Nortel and Motorola sticking out of it. In the background is a desaturated, blurred, low-contrast field of cellular masts.

The monopoly strategy behind the Google/Microsoft mobile patent wars (permalink)

Capital-as-power, a framework from Jonathan Nitzan and Shimshon Bichler, holds that companies don't seek to be as profitable as possible – but rather to accumulate as much power as possible. A company doesn't seek to be as big as possible, but rather, as dominant.

There are two strategies for accumulating power: one is "breadth": to grow the market as much as possible, thus accumulating profits faster than the average competitor, eventually taking a commanding lead over the rest of the field.

The other strategy is "depth," dominating your sector by capping its growth and then taking as much business away from your rivals as possible – if the industry is crucial (like, say, software), then dominating it gives you a lot of power, even if you're strangling it.

In a paper in the Review of Capital as Power, York University's Chris Mouré analyzes a bizarre moment in the history of mobile phones through this lens: the moment when Google and Microsoft went on a buying spree for also-ran telcoms companies.

This was back around 2010-11, when Microsoft bought up the empty husk of Nortel and its 6,000 crucial mobile computing patents, as well as a huge portfolio of mobile computing patents held by Novell that Microsoft bought through a consortium it co-dominated with Apple.

In retaliation, Google bought up Motorola,, spending even more than Microsoft (Microsoft's patent acquisition bill was $4.5b; Google's was $12.9b), a move Larry Page said would "level the mobile playing field."

Microsoft's motivations for the Nortel and Novell acquisitions were clear enough: neither company was making anything. They were just vessels for holding and using government-issued monopolies (AKA "patents").

Motorola WAS a going concern back then, but it quickly became clear that Google didn't give a shit about Motorola as a productive business. After blowing $12.9b on Moto, Google broke it into pieces and sold them off at a discount that didn't come close to recouping

Mouré looks at these acquisitions through the capital-as-power lens and concludes that these patent wars marked the turning point when Google switched from a "breadth" strategy (growing the pie) to a "depth" one (owning the pie).

This switch is inevitable. Breadth only gets you so far because it relies on beating the average – and when a firm gets big enough, it becomes the average. When that happens, companies switch from market-growing to market-cornering and price hiking.

Tech is a hard market to hike prices in because "any Stanford dropout with a computer can create the next 'game-changing' piece of software." To increase profits, big companies generally turn to acquisition – buying up small competitors to gain their patents and other IP.

This is a great strategy in light of US anittrust theories over the past 40 years, during which time antitrust regulators promised to leave companies alone as they formed monopolies, provided they didn't hike price after attaining monopoly dominance.

What's more, IP is an ideal tool for monopolists seeking to increase profits – IP (once known as "authors' monopolies") are a form of monopoly that you can never get into trouble for.

Not only will the state let you use IP to create a monopoly – they'll help you, using their courts to exterminate competitors who "violate your IP rights."

Thus the signature model of the 21st century tech company: a "platform" with a "two-sided market" – a company that captures as many customers as possible in a walled garden, then charges other businesses to access those customers.

Microsoft and Google may have very different revenue sources, but both of them are practicing this form of chokepoint capitalism, as are Apple, Facebook, Uber, and other companies that, from a distance, seem to have very different business models.

Google's true operating costs aren't captured by adding up its salaries and servers – a correct accounting must include the costs of acquiring companies and with them, patents. That's the cost Google must incur, if is to retain its power.

MourĂ© shows that while Google and Microsoft weren't directly competing at the time of the patent wars, they were both jockeying to seize power in a new, emerging market – mobile computing.

The point of the patent wars wasn't to guarantee their own profits – it was to deny the other company its profits. It's "strategic sabotage." Microsoft didn't buy Nortel's patents so it could make its own devices – they bought them to stop Google from making ITS devices.

Today, Microsoft has a different kind of strategic sabotage, this one aimed at Facebook – MourĂ© writes that buying Linkedin "may have been a deliberate response to an encroaching competitor: Facebook."

This day in history (permalink)

#15yrsago Boy Scouts shill for MPAA with copyright merit badge

#10yrsago Canadian Tories admit that Canadians don’t want DRM rules, push for them anyway

#5yrsago Turing’s law: UK to retroactively pardon thousands of men prosecuted for having sex with men

#5yrsago By stealing from innocents, Chicago PD amassed tens of millions in a secret black budget for surveillance gear

#5yrsago Turkish court fines bystander/tourist who sued police for shooting out his eye–104964

#5yrsago Montana judge unrepentant after sentencing man to 60 days for repeatedly raping his own 12 year old daughter

#1yrago Cadillac perfects the murdermobile

#1yrago Feds gouge states, subsidize corporations

Colophon (permalink)

Today's top sources: Slashdot (, Economics From the Top Down (

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