Mike Milinkovich discusses strategies used by large companies to exert control over open source projects and communities. He describes how trademarks, patents, specifications and other mechanisms were used by Sun/Oracle to dominate Java. Milinkovich advocates for open governance models that give committers and smaller members meaningful representation to prevent capture by single large entities. He provides suggestions like making committers full members and ensuring diversity in leadership roles.

1. Corporate Shenanigans
Mike Milinkovich
Executive Director
Eclipse Foundation
@mmilinkov
FOSDEM
4-FEB-2017

2. My Hats
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 2

3. Agenda
• Open source capture strategies
• Consortia shenanigans
• Some helpful hacks
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 3

4. “Open Source Capture”
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 4

5. How the Game is Played
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 5
Trademarks
Certification Patents
Implementation
(Code)
Specification

6. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 6
Trademarks
Certification
Patents
Implementation
(Code)
Specification
I’m picking on Java here
because I know it
best….but a similar
analysis can be done
with Android, and other
“open” platforms

7. How the Game is Played
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 7
Trademarks
Certification Patents
Implementation
(Code)
Specification
Free and open source
people focus here

8. How the Game is Played
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 8
Trademarks
Certification Patents
Implementation
(Code)
Specification
Control of the trademark
is the most important and
most commonly
over-looked aspect of
platform dominance

9. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 9
Trademarks
Certification Patents
Implementation
(Code)
Specification
Code is always free
and easy to get for
developers.

10. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 10
Trademarks
Certification Patents
Implementation
(Code)
Specification
There is actually two
sources of code:
open source and
proprietary.
99.8% the same, but
very different terms

11. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 11
Trademarks
Certification Patents
Implementation
(Code)
Specification
The proprietary license is
free for use on a “general
purpose computer”, but
requires a royalty-bearing
license if bundled with
hardware.

12. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 12
Trademarks
Certification Patents
Implementation
(Code)
Specification
The open source code is
available only as source
code, not binary. If you
want to run it, you must
build it yourself
(inconvenient)

13. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 13
Trademarks
Certification Patents
Implementation
(Code)
Specification
The platform is “open” as it is
maintained at OpenJDK under
GPL+CE with developers from
Oracle (Sun), IBM, Red Hat, SAP,
….
Everyone must agree to give joint
ownership of all contributions to Sun
(now Oracle).

14. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 14
Trademarks
Certification Patents
Implementation
(Code)
Specification
Specifications are
created by the “Java
Community Process”,
which is a division of
Sun (now Oracle)

15. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 15
Trademarks
Certification Patents
Implementation
(Code)
Specification
Each Spec must provide a:
1. spec
2. reference
implementation
3. TCK
Each with its own license!

16. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 16
Trademarks
Certification Patents
Implementation
(Code)
Specification
Patents are pooled
during the
specification process
at the JCP

17. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 17
Trademarks
Certification Patents
Implementation
(Code)
Specification
The license to the
TCK binds the
implementer to a long
list of business terms
which are in
SunOracle’s favour.

18. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 18
Trademarks
Certification Patents
Implementation
(Code)
Specification
You only get a license
to the patents once
you pass the TCK

19. How the Game is Played: Java & Sun
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 19
Trademarks
Certification Patents
Implementation
(Code)
Specification
You cannot use the
trademarks until you
pass the TCK.
Implementing a Java
spec without the TCK
could make you a
target for a lawsuit.

20. Summary
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 20
Trademarks
Certification Patents
Implementation
(Code)
Specification
● A project is not completely free unless *all* of it is
free, including copyright, patent, trademarks and
governance
● Developers are easily fooled by easily acquirable
software.

21. Agenda
• Open source capture strategies
• Consortia shenanigans
• Some helpful hacks
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 21

22. Governance is Good

23. Open Source Consortia Today
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 23
...and many more….

24. Astroturfing
Astroturfing is the practice of masking the sponsors of a message or
organization (e.g., political, advertising, religious or public relations) to make
it appear as though it originates from and is supported by grassroots
participant(s). It is a practice intended to give the statements or organizations
more credibility by withholding information about the source's financial
connection. The term astroturfing is a derivation of AstroTurf, a brand of
synthetic carpeting designed to look like natural grass, a play on the word
"grassroots." The implication behind the use of the term is that there are no
"true" or "natural" grassroots, but rather "fake" or "artificial" support…
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 24
http://en.wikipedia.org/wiki/Astroturfing

25. “Founder” seats
“The Governing Board manages the structure and operation of the OpenJDK
Community.
• The Governing Board consists of five Contributors:
• The Chair, appointed by Oracle;
• The Vice-Chair, appointed by IBM;
• The OpenJDK Lead, appointed by Oracle; and
• Two At-Large Members, nominated and elected as described below.”
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 25
http://openjdk.java.net/bylaws#_9

26. Extra Votes
“The Platinum Director appointed by Pivotal
(“Pivotal Director”) shall have five (5) votes on
any matter submitted to a vote of the Board.”
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 26
https://www.cloudfoundry.org/wp-content/uploads/2015/09/Current-CFF-Bylaws.pdf

27. Affiliate Gerrymandering
“At no time may a Member and its Affiliates
have more than one Director who is an
employee, officer, director, or consultant of that
Member, except that Pivotal, EMC, and
VMware, though Affiliates, shall each have one
(1) Director on the Board).”
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 27
https://www.cloudfoundry.org/wp-content/uploads/2015/09/Current-CFF-Bylaws.pdf

28. Flat Fees for Board Seats
“…the Platinum Members each contribute
$500k USD per year to the foundation and must
also have the equivalent of 2 full time
employees contributing to OpenStack.”
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 28
https://www.openstack.org/join/

29. Trademark Ownership
• For an open source project to be truly
independent, its trademarks must not be
owned by any for-profit entity
– “…we regret that Docker does not permit the trademark
Docker® to be used as the first word in any product or
project name.” (private email to me)
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 29

30. “Helpful Hacks”
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 30

31. Committers are Members
• Trade associations are by definition responsible for
acting in the interests of their members
• Make your development community Members, and
ensure that they have a significant role in
governance
• Interesting things happen when
Members == Community
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 31

32. Governance Diversity
• Variable due structure for all classes of members
– Ensures a range of company sizes in all membership tiers
• Guaranteed seats for Committer and other(smaller)
member types
• Elected annually
– Term limits?
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 32

33. Conclusions
• Pay attention to the full range of mechanisms by
which community capture can occur
• It is definitely possible to have a happy marriage of
open source projects and consortia
– Requires careful attention to details, as people and
companies will try to seek control points
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 33

34. Thank You!
Questions?
mike@eclipse.org
@mmilinkov
4-Feb-2017 Copyright (c) 2017, Eclipse Foundation, Inc. Made available under the CC-BY-SA 4.0 34