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An article at Law.com named "Open Source Software Shows Its Muscle" has been drawing a lot of fire from other commentators on the open source beat. Allow me to add my own heat to that fire.

The alleged premise of the piece isn't really all that contentious: You need to be careful when using open source software so that you don't end up being a target of legal action in the event you violate a licensing agreement. Fine.

What's egregious is how the article talks about this subject. It doesn't tell anyone who's familiar with the issues anything they won't already know -- in fact, those familiar with the issues are going to grind their teeth down to stumps if they read it. It conflates facts, plays fast and loose with subtle points, and ends up being terribly misleading about the implications of the commercial use of open source.

If you haven't read the article yet, take a second to click on it and read the whole thing through, and then come back here. All done? OK. My turn.

For me, the first big sign of something wrong was this phrase, from fairly early on in the piece: " ... the irreconcilable conflict between open source software and its widespread use by for-profit companies." See that word, irreconcilable? The implication is that open source software makers and for-profit companies can never play nice together, which is a) not true and b) not even the real point.

The mistaken assumption (or deliberate obfuscation, you pick) is that the GPL, or open source licensing in general, is inevitably at odds with commercial interests or designed to prevent profit-taking. That ought to come as a surprise to the companies who make solid bank selling open source solutions. But more than that, the GPL isn't even about money -- it's about keeping code open and transparent. This covers everyone, regardless of whether or not money changes hands. If I take a GPL-licensed project and release a no-cost but binary-only version of it with no source available, that's also a violation of the licensing agreement. Commercial intent isn't what matters.

Another phrase that made me gape: "The new lesson is that the freedom belongs to the software, not to users. You are not free to do whatever you want with the open source software..."  To think that the whole point of open source is to empower software instead of users -- you know, the people who actually download this stuff and run it -- is not to think at all. Also, this is not a "new lesson". This is something that has been made clear as far back as the first draft of the GPL. No, you are not free to do whatever you want with the software, but since when has that ever been news? (And depending on the licensing -- e.g., public domain, MIT -- sometimes you are pretty much free to do what you want.)

And: "Any activity that leverages software for business advantage is likely to restrict the software's freedom" -- Any activity? Another crucial flaw with this article, and it's a bit of flawed thinking I have encountered many times before, is that he makes little or no discernible distinction between software modified for commercial use (i.e., resale as a product or service) and software used internally by the company. The former typically requires careful review of the licensing; the latter is a lot more open-ended. They're not interchangeable.

There's still more: "... litigation against companies alleged to be restricting the freedom of software was met with glee among free software advocates. In reality, the litigation may be but a glancing blow for a few companies that did not read the fine print on their free software licenses and did not provide source code when they used open source software."

"Restricting the freedom of software" -- how about violation of the licensing agreement? I'm fairly sure this choice of words isn't a mistake: it's meant to cast the people who devised such licensing in as poor a light as possible. He does make a point when he says that legal precedents are tough to establish when the suits in question have all been settled out of court, but again, this is not something that's far from the minds of open source advocates, either.

All this brings me to what I see as the largest and most dangerous obfuscation: how the article plays fast and loose with the ways the GPL is applied by its wielders. When talking about the "Tivo clause" in the GPLv3, the piece makes no mention of the fact that software under the GPLv2 can be forked and re-released as GPLv3 -- but that doesn't mean the original GPLv2 edition vanishes from the face of the earth. That and the sheer amount of contention within the open source community about v2 vs. v3 alone should be a powerful hint that this isn't going to be universal.  (The fact that there is controversy within the open source community about the use of given licensing agreements does not mean that all open source licensing agreements are somehow conceptually flawed.)

On a side note, there's also no mention of the costs that can be saved or the duplication of work that can be avoided by using open source. It's all "risk", "dispute", "warning", "litigation". The picture he paints of open source is that of a veritable Pack of Snapping Voles, ready to tear apart any unwary traveler who treads so much as once off the path.

The worst thing about this piece is that anyone reading it isn't likely to take away anything more profound than "You need to know what you're getting into when you use open source commercially." Last time I checked, water was still wet, too. There's a lot more to the subject than such a facile distillation will ever tell you.