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50+ The Lisbon Trust

by xavier last modified 2009-01-20 10:25

The Lisbon Trust is a conservatory of open software copyrights and legal services. It provides a 50-year pledge that Europe's competitive, knowledge-based society will be built atop a competitive IT marketplace. The mission and outcomes from the Trust are designed to reflect and fulfill European values and strengths.

Paul Everitt is cofounder of Zea Partners and serves as the Product Leader, defining the strategy, offerings, and marketing for Zea. Paul is the executive director of the Plone Foundation, which started activities in June 2004.

 

Executive Summary

Imagine a European software market where:

  • Large industrial companies could use open source without fear of legal issues
  • Europe was the headquarters for the next big software trend, rather than the point of departure
  • FLOSS developers in Europe knew their work would live for 50 years

The Lisbon Trust is a conservatory of open software copyrights and legal services. It provides a 50-year pledge that Europe's competitive, knowledge-based society will be built atop a competitive IT marketplace. The mission and outcomes from the Trust are designed to reflect and fulfill European values and strengths.

As the Trust grew, the legal jurisdiction for open source would change from being 80% US to being centered in Europe, where the majority of open source is created. This focused, achievable EU initiative would alter the competitive landscape for IT and dramatically improve industrial exploitation through clearer IPR.

The Need

The Lisbon Agenda sets the goal that the European Union will be "the most competitive knowledge-based economy in the world by 2010". The Commission is tasked with sectorial industrial policies to support the Lisbon process. Obviously, the software market is critical for creating a "Lisbon stack" leading to a knowledge-based market.

How does this software market look? The 2006 market for software in Europe will be 46B euros, growing at 9.1% annually. That's the good news.

The bad news is that, of the top 38 leading suppliers, US suppliers receive 60% of the European revenue. In fact, just 3 US companies alone receive 38%.

This leads to a questionable outcome. Should the Lisbon Agenda primarily enrich American shareholders?

Quite obviously, the status quo might lead to the opposite result from what Lisbon process expects. However, EU policies to date have yet to show a viable competitive alternative to building Lisbon atop a US stack.

FLOSS provides a unique opportunity for introducing more competitiveness:

  • Open source is the only competitor that has gained broad market share against US monopolies.
  • 70% of open source core developers live in Europe
  • The open source culture better reflects European values and strengths, vs. the American style of VC-backed, winner-take-all software businesses.

Unfortunately Europe is losing FLOSS leadership and losing it rapidly. Out of 13 FLOSS projects benchmarked by MERIT's recent government survey, 8 have their legal jurisdictions in the US and only 2 in Europe. While open source may start in Europe, it finishes in the US.

The challenge is to find an appropriate role for the EU. Too many proposals can be filed under "more of the same", "unrealistic", or "completely ignored by the FLOSS community". In looking at the 13 FLOSS projects, none of them started in a major industrial complex. This is a challenge for the EU, as the Commission generally enacts its agenda through these players. Stated differently, open source starts small, but the EU starts big.

The first step towards a proposal acknowledges the value chain of open source. FLOSS starts with independent developers and small companies as producers, emerges into the mainstream of integrators and industrials as consumers, and finishes with end users. Can an EU action provide something for each player in the value chain? Can a policy boost EU competitiveness without injecting barriers that are anathema to the creators of FLOSS?

Proposal

The EU should underwrite a software conservancy, backed by legal services, that is a public guarantee of software legal status for 50+ years. A successful Trust would shift the legal jurisdiction of open source from 80% US to Europe, not through protectionism, but through adoption. As open source succeeded, it would succeed from Europe, and Lisbon could then be built without wealth export.

Eben Moglen is most likely the world's leading lawyer for free software. He has been the FSF general counsel for many years and is the shepherd for the GPL. He has now been tapped by the Open Source Development Lab (OSDL) to start the Software Freedom Law Center (SFLC). The mission of the SFLC is to provide pro bono legal services to important free and open source software projects.

The SFLC is also promoting an idea of a "software conservatory" in which individual developers assign their copyrights to a non-profit foundation. This allows the "group" to manage the legal matters. Other IP, such as trademarks, domains, and patent assertions can also be held by the group. The Plone Foundation is one of the SFLC's first clients and is pursuing the conservancy approach.

Instead of having multiple, tenuous foundations, a single conservatory could be created. In Europe. With a legal jurisdiction in Europe. With enough endowment, and enough neutrality, to make a 50 year pledge.

Activities

The Trust would provide the following services:

  • Copyright holder. Instead of licensing their contributions, developers would assign the copyright to the Trust. The Trust would give a grantback of rights to their contribution.
  • Fair use agreements. Large industrials currently spend tremendous resources researching FLOSS licenses. The edge cases are not clear for activities such as combining with non-open code. Instead of asking the EU for clarifying laws, they can get a statement from the copyright holder regarding a certain use.
  • Contributor agreements. Common, standard legal agreements for developers joining a project. Joining another project in the Trust would not require signing a new agreement.
  • Green patents. The Trust could do research on patent issues to ensure there are no violations in critical systems. More importantly, the Trust could file protective patents on FLOSS innovations and put these patents into the public domain. The public would then have a counterweight to proprietary vendors that increasingly fence off fields of ideas.
  • Trademarks and domains. These types of legal property have a dramatic effect on a level playing field for successful projects. As such, they should be managed by the group and not abused by companies pursuing an agenda.

Key Benefits

The Trust would solve major problems for each of the audiences for a sectorial industrial policy, giving a long-term stability for open source in Europe:

  • Industrials

The large industrial companies, such as Philips, Siemens, Nokia, Thomson, etc., all want to use FLOSS but have grave concerns about legal issues. Can they combine a piece of software with a proprietary piece of software?

These industrials are asking the EU to pass laws to clarify matters. This, though, is not a realistic request. The politicians are reluctant to pursue a course of superseding 25 jurisdictions. Wouldn't it be better, though, if the industrial could just ask the copyright holder for a judgement on a use and get a binding statement?

Since the Trust would serve as the common copyright holder, the Trust can provide the long-term stability that executives at the industrials are looking for. The Trust would provide one-stop shopping for resolution of edge cases and long-term stability for IPR.

  • Open source developers

Why would open source developers voluntarily hand over their copyrights?

The key is to focus on solving problems faced by FLOSS creators, and strictly avoid encroaching on community cultures. The Trust, if properly organized and operated, is 100% upside for FLOSS creators.

Developers don't want industrial planning for development. Certainly not during the early and middle stages of a project. They want few rules and high velocity and don't want to be the subjects of a Brussels overlord.

However, they are increasingly educated about the macroeconomic threats to their belief system. They want their software to survive and thrive, and a certain segment will respond to the idea of a 50+ year promise. As long as someone else does all the work and doesn't interfere with the act of development.

The first benefits, thus, are that someone else does the legal stuff which is at best uninteresting and at worst annoying.

Beyond that the Trust's story could provide other opportunities. FLOSS creators who show merit can be elected into the board of governance and thus distinguish themselves in the community. Even more, the Trust can have fellowship programs that provide a career path for FLOSS in NOE/STREP.

This highlights a critical point. The Trust must be driven by FLOSS creators. The governance will be shared between the various audiences, but the primary engine of policy must be derived from the developer community. This gives the mandate of legitimacy and encourages the FLOSS community into a path of IPR stability.

If the Trust is genuinely driven by FLOSS creators, both in perception and reality, then many FLOSS projects will see the opportunity of long-term stability. A tipping point will be reached and the Trust will become the norm rather than the exception.

  • Politicians

The EC now has an environment where visible progress must be made within restricted maneuvering. Activities that require broad laws or threaten important interests are politically unrealistic.

The current reality of the Lisbon Agenda is that it shifts wealth in the software sector to US shareholders. This is politically untenable. The converse is also true: a policy that addresses this is politically valuable.

The Trust delivers this. Moving the legal jurisdiction to Europe, where FLOSS starts, is symbolic, simple, and achievable. It doesn't require broad laws to overhaul IPR policy. It doesn't punish commercial software or finance R&D as an anti-competitive preference. Instead, it leverages a broad European tradition of conservation in other fields and acting in the public interest.

The Trust could be designed with other initiatives in mind. It could be a partner in many EU IST activities. Most importantly, consortia could indicate, in their tender, that the results of a project would be assigned to the Trust. With this, EU funding would annually grow a European commons that was well-managed and durable.

As a competitive tactic, this reverses an unearned advantage shown to the US. A large majority of open source starts in Europe. Too much of this, though, lies in a US jurisdiction. The Plone Foundation found that choice of jurisdiction is extremely important to huge US software companies. Inversely, Europeans are at a disadvantage. Putting the legal jurisdiction in Europe isn't putting a wall around FLOSS, but it is putting a speed bump on the road for mammoth US software companies.

As a global perception, there is one point to be blunt about: the world's FLOSS developers would prefer Europe as a long-term custodian instead of the US. This asset, properly cultivated in an open fashion and backed by realistic-sounding specifics, would alone make Europe the mindshare leader for open source.

The Trust is the highest-impact, lowest-cost way to visibly seize open source leadership and provide long-term competitiveness for constructing the Lisbon Agenda.

  •  SMEs

FLOSS starts small. Sometimes it starts with independent developers that enjoy coding as a hobby, but often it starts with small companies that join with other SMEs to mutualize a new market.

These SMEs are critical to the early stage of an open source success. They get the technology into the hands of the early market users, thus bringing back more resources and growth to push the adoption.

The Trust gives them the best of both worlds: validation and stability without dominance but a major industrial. These SMEs want to be drivers, not followers, and want success on their own terms. Perceived legitimacy is what they lack. The Trust can help establish legitimacy and lower concerns in the mainstream market about the long-term stability of FLOSS in general and FLOSS projects in particular.

  •  Commercial Software Vendors

The issue of a policy for FLOSS has one tremendous challenge: the status quo. Very successful software companies are held up as epitomizing the job growth of the high-tech field. With deep resources, they create the perception that FLOSS kills growth and innovation.

As shown by "Open Source Software: Importance for Europe", commercial software is just a fraction of the market. More software is produced internally or under contract than is purchased off-the-shelf. This is an area of European strength.

Nevertheless, even commercial software can benefit from the Trust. Foremost, the Trust shifts the argument from unfair R&D subsidies of FLOSS to long-term legal stability of voluntarily-donated shard code. In fact, those looking to combine FLOSS with commercial code -- meaning, every commercial company -- will see 25 European jurisdictions with thousands of copyright holders reduced to one copyright holder.

Thus, the benefits of a focus on long-term stability also accrue to commercial firms.

Key Selling points

  •  Achievable

Unfortunately, the EU policy process exists at quite a distance from FLOSS creation. As such, most EU FLOSS policies will either ignore or get ignored by FLOSS creators.

This Trust policy has the primary benefit of being achievable. It doesn't ask politicians to leave their comfort zone. It solves specific problems for FLOSS creators, problems directly related to the industrials that want exploitation potential. Properly executed, the Trust becomes self-generating.

In regards to Lisbon and sectorial competitiveness, any initiatives based in the status quo will be doomed. The status quo has failed. FLOSS is the only trend to gain marketshare, and thus, is Europe's only viable strategy possessing a credible record.

Finally, the Trust is based on activities that are already happening: the SFLC, led by free software's top lawyer, and the lessons learned from the Plone Foundation.

The Trust is a realistic and achievable initiative that will have large, lasting benefits at reasonable costs.

  •  Photogenic

Politicians need policies that are both high impact and simple to explain. The bigger the policy, the more obvious must be the benefits.

The Trust has the benefit of being very symbolic. A Trust with a European jurisdiction feels tangible. The number "50" resonates with European sensibilities of durability and security. Also, the idea that the legal jurisdiction is returning to the place where open source starts has a fundamental fairness about it. Finally, many aspects of the Trust reinforce the "brand" of Europe and European values, a fact that is critical for achieving momentum.

At the same time, the Trust avoids the anti-photogenic aspects of other policies. Requiring open source, funding open source, or giving other preferences provides powerful ammunition to supporters of the US-enriching status quo. The Trust doesn't produce the value, it just makes the value legally secure and fungible.

If portrayed correctly (meaning, FLOSS creators are the governance drivers), the Trust will evoke a simple response in the open source community: "Justice is served." FLOSS developers are deeply concerned about the US legal system and somewhat indignant that their majority, invariably, is deposited in the US. The EU itself is a model of autonomous cooperation for the common good. Correctly executed, the Trust can be viewed the same way.

  •  Unifying

Other FLOSS policy proposals are either narrow, or worse, divisive. The Trust addresses the entire FLOSS value chain, binding the producers and consumers into a common, problem-solving activity.

Action Plan

Note : This proposal was written beginning of 2005. The following points should be updated to reflect the evolution since then, outdated points have been deleted. For more information, please contact Paul Everitt or Xavier Heymans.

The key execution strategy for the Trust is to understand how to reach the tipping point. Initiatives like this can move extremely fast if the dominos are lined up correctly. What's needed are some initial wins that have a high profile, as well as key supporters with tremendous credibility amongst both FLOSS creators and EU decision-makers.

  •  Eben Moglen

Eben is a visiting law professor in The Netherlands each summer. Leverage his proximity to participate in EU hearings and formulate policy. Equally, his reputation in FLOSS means that his endorsement, or even guiding hand, sends a strong signal that the Trust is driven by FLOSS creators.

  •  5s

The first milestone is designed to reinforce the brand and achieve measurable momentum. At Milestone 1, the trust will have:

  1. A first deposit on a 50 year finance plan
  2. 5 FLOSS projects
  3. 50 countries as contributing developers
  4. 500 developers
  5. 5,000 users
  6. This will happen in 5 months
  •  OSCOM.org conference in Brussels

OSCOM.org is the international, non-profit association of open source content management projects. Open source CMS is a very important area for EU activities. Host the fifth OSCOM conference in Brussels and use it as a venue to bring 5, 50, or 200 projects into the Trust.

Source

http://www.zeapartners.org/Members/xavier/50-the-lisbon-trust