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Raymond and Trotter try to talk sense

Eric Raymond and I have been trying to get both Medsphere and the Shreeves to come to the table with us, as representatives of the Free and Open Source communities and try to make peace. Here is a brief record of this exchange.

Initial Email

After writing to get Eric to help me with this issue, I wrote and email to the both shreeves, to every email that I could get from Medsphere and to any email that I could get for an investor email. Here is the contents of that email.

Hello,
If you are receiving this email it is because you or your company has an interest in the MedSphere-Shreeves drama. I am sending this to everyone who I know at MedSphere, including Ken Kizer, Larry Augustin, Scott and Steve Shreeve and Frank Pecaitis. (also any other Medsphere email that I could find) I am also sending this to the various investors listed on medsphere.com. I am sending it to the basic contact email for those investment firms, and also to the first name that came up when searching google for more emails from that firm. If you are not the right person at your firm to be reading this, please forward it to whomever is most interested in MedSphere. This letter is also being sent to Ignacio Valdes, (who knows that it is not meant for publication on linuxmednews.com.... yet.) and to Eric Raymond.

My name is Fred Trotter and I am a Free and Open Source activist and programmer. I exclusively work on medical software. I run http://www.gplmedicine.org. I am not a core VistA community member, rather I work in the PHP medical software world. Enough about me.

Based on this article...

http://www.modernhealthcare.com/storyPreview.cms?articleId=40883

MedSphere is suing the Shreeves at least in part because the Shreeves released some code to Sourceforge and this ..< "came as an unwelcome and startling surprise" to Kizer and other Medsphere executives. according to the article. I have had a running email exchange with the senior executives at MedSphere regarding this issue. The last email exchange I have Steve Shreeve clearly indicates that he intends to open source the MedSphere "stack". Ken Kizer was cc'ed on the letter and sent me a letter indicating that he had received Steves email.

The fact that MedSphere is suing its founders is a problem for me personally and the for open source community. The Shreeves are being sued by an "open source" company, for open sourcing software that they told the open source community (via me) that they would release open source. If this lawsuit goes forward several bad things might follow.

1. Open Source developers will be terrified that the "open source" company they work for will change their minds and sue them for releasing code that had approved for release. The level of CYA needed in the industry will go through the roof.
2. The healthcare industry will be afraid to use MedSphere software because the "taint" of an intellectual property lawsuit like this. MedSphere will lose any credibility that it has developed so far.
3. Worse, the healthcare industry may be afraid to use ANY open source software as the result of the lawsuit. Who would blame them? Apparently public statements made by the CTO cannot be relied upon to determine if code will be open sourced or not. (this is the big problem for me, since I am in the same field)
4. The innovations that MedSphere has developed will never be accepted by the community, even if MedSphere later released them, everyone would be afraid of a SCO-type lawsuit years from now.
5. The medical open source community will out MedSphere as a proprietary company and publicly recommend that healthcare institutions who are interested in open source should avoid them. When someone searches Google for MedSphere they will find MedSphere.com as number one and an article saying "MedSphere has no credibility" as number two. Essentially MedSphere would become another SCO.

Note that all five of these things are independent of the outcome of the lawsuit. In short, there is no way for anyone to win this lawsuit. Everyone loses, MedSphere, the Shreeves, the FOSS medical community, the general FOSS community, and the healthcare community at large. This is good for no one. Issues 1-4 are, prophetic, I cannot say for sure that they would happen. I can tell you that #5 will happen, because I will be the one doing it. Please find an unpublished wiki article on this issue here.

(Note:You are on the newest version of this url...)

This documents my email interchange with MedSphere executives over the course of several months. I will publish this article, along with a warning against MedSphere, assuming we cannot reach a resolution. This article is not intended to be a smear. This is meant to be an account of what has happened from the community's perspective, therefore accuracy is paramount. Feel free to send me relevant corrections or additions and I will add them.

I have contacted (and cc'ed) open source luminary Eric Raymond. He is willing to come to San Diego with me for a few days in order to reach a compromise regarding this issue. (assuming that our travel expenses are covered by MedSphere) I am sure that there is some way that both parties can respond to this invitation without compromising their legal position. However, I do not wish to waste my or Eric's time on this. If it is inconceivable that MedSphere could reach a compromise with the Shreeves that would include dropping this lawsuit, then please do not bother flying us out. It would be a waste of our time and yours. If you decide to continue with the lawsuit, then consider the publication of this article as a simple way to avoid subpoena-ing my email. As always, please consider this an open email, I reserve the right to publish this letter and any replies at any time.

Have a nice day,
--
Fred Trotter
http://www.fredtrotter.com

The Shreeves contacted me by phone to indicate that the were willing to work with Eric and I.

Ken Kizers reply

Dear Fred:

Thank for your recent e-mail communications and for your on-going interest in Medsphere. Your interest in helping to resolve the litigation between Medsphere and the Shreeve brothers is appreciated – for there is nothing that would make me happier than to get this behind us on agreeable terms – but your comments make clear that you are not fully informed about the facts underlying this matter. Unfortunately, as I am sure you know, it would be highly inappropriate for me to publicly comment on the specific issues of pending litigation. I would note, however, that the issues under litigation are not confined to whether the OpenVista source code is open source or not.

While Medsphere appreciates your offer to act as a mediator, I am sure that Scott Shreeve informed you that Medsphere, in cooperation with the Shreeve brothers and their legal counsel, jointly retained the services of a professional mediator more than two months ago, and we are actively engaged in mediation discussions at this time. Of course, all discussions related to the mediator are confidential, so I cannot say more about it than that right now.

Fred, as I believe you and I briefly discussed in San Francisco at the Linux meeting, one of the compelling reasons I joined Medsphere was, and continues to be, my belief that the future of healthcare information management software lies in open source. I have stated this belief in numerous public forums, and even testified about such before Congress, and I am committed to make Medsphere a leader in commercial open source healthcare software. Frankly, I am very disappointed that more than four years after its founding, Medsphere cannot clearly articulate its open source policy and strategy. It seems that this would have been worked out much earlier in the Company’s evolution. However, in the past 3 months we have made good progress in developing an open source strategy. Unfortunately, it has taken us longer to get there than any of us would have liked due to internal issues and the lack of requisite background work having been done before, but I am guardedly optimistic that we will be able to clearly state our open source policy and our on-going strategy in this regard by the end of the year.

Of note, in the near future, you should expect to hear from Greg Olson or someone else from The Olliance Group, who is working with us to develop our open source strategy. Your name is one of many that we have given them of people to talk to in the "VistA community."

Finally, as you saw from the article you circulated quoting Larry Augustin, Medsphere will have some proprietary extensions to OpenVista that will be offered commercially but which will not be released as open source. In that sense our strategy will be similar to other open source vendors such as Zimbra, Pentaho, XenSource and SugarCRM. I believe Eric Raymond refers to this business model as "widget frosting". In fact, because of the way some of our extensions were developed I do not believe that we could legally release them as open source.

Fred, I hope that these comments are helpful to you, recognizing the limitations of what I can discuss in a public venue about matters being litigated. However, we are very confident of what the facts show, when all the relevant facts are considered, and we applaud your commitment to maintain an open mind until you know all the facts.

Sincerely,

Kenneth W. Kizer, MD, MPH
President and CEO
Medsphere Systems Corporation

Fred Trotters reply to Ken Kizer

My words in bold.
Dr. Kizer,
Thank you for your reply. It does address some of my concerns. Comments and responses throughout. I am ccing ESR and Ignacio (the other open source revolutionaries) and Larry so that they know of your communication to me.


On 10/10/06, Kenneth W. Kizer < kenneth.kizer@medsphere.com> wrote:

Dear Fred:

Thank for your recent e-mail communications and for your on-going interest in Medsphere. Your interest in helping to resolve the litigation between Medsphere and the Shreeve brothers is appreciated – for there is nothing that would make me happier than to get this behind us on agreeable terms – but your comments make clear that you are not fully informed about the facts underlying this matter.


I said as much :)


Unfortunately, as I am sure you know, it would be highly inappropriate for me to publicly comment on the specific issues of pending litigation. I would note, however, that the issues under litigation are not confined to whether the OpenVista source code is open source or not.


I understand that. I also understand that you have a limited ability to speak about matters under litigation. I will continue to inform myself, by trying to acquire the compliant and response portions of the lawsuit. I note that while there may or may not be other issues, it does not remove the fact that the source code is one of the issues.


While Medsphere appreciates your offer to act as a mediator, I am sure that Scott Shreeve informed you that Medsphere, in cooperation with the Shreeve brothers and their legal counsel, jointly retained the services of a professional mediator more than two months ago, and we are actively engaged in mediation discussions at this time. Of course, all discussions related to the mediator are confidential, so I cannot say more about it than that right now.

Very well, but my schedule is not really defined by the mediation or not mediation. Further, just because a solution is found that is acceptable to the Shreeves and to you, does not make it acceptable to the community.If both parties agree I can attend the mediations that are currently being held, if this would be considered helpful, having both a legal mediator and a community peacemaker might work well This is, after all, both a legal and a community issue.


Fred, as I believe you and I briefly discussed in San Francisco at the Linux meeting, one of the compelling reasons I joined Medsphere was, and continues to be, my belief that the future of healthcare information management software lies in open source. I have stated this belief in numerous public forums, and even testified about such before Congress, and I am committed to make Medsphere a leader in commercial open source healthcare software. Frankly, I am very disappointed that more than four years after its founding, Medsphere cannot clearly articulate its open source policy and strategy. It seems that this would have been worked out much earlier in the Company's evolution. However, in the past 3 months we have made good progress in developing an open source strategy. Unfortunately, it has taken us longer to get there than any of us would have liked due to internal issues and the lack of requisite background work having been done before,


I would be happy to hear what internal issues or background work held this process up, but it sounds as though you might prefer to keep this vague.


but I am guardedly optimistic that we will be able to clearly state our open source policy and our on-going strategy in this regard by the end of the year.

Of note, in the near future, you should expect to hear from Greg Olson or someone else from The Olliance Group, who is working with us to develop our open source strategy. Your name is one of many that we have given them of people to talk to in the "VistA community."

I would very much enjoy talking to Greg, he can get ahold of me through fredtrotter.com or you can forward him my email.
However I doubt that hiring him will help you that much, not because he is not competent, (I am sure that he his) but because it is not workable to outsource the core vision of the company. Open Source medical software business has little besides licenses in common with Open Source businesses generally. If you want my help developing an open source strategy then take the free advice that I am giving you now. Generally if you are interested in open source strategy, I am not sure why you are not simply talking to me and/or ESR directly. Greg has a lot of experience with Sendmail, and I would like to talk to him about how the Medical Market is different.

Finally, as you saw from the article you circulated quoting Larry Augustin, Medsphere will have some proprietary extensions to OpenVista that will be offered commercially but which will not be released as open source. In that sense our strategy will be similar to other open source vendors such as Zimbra, Pentaho, XenSource and SugarCRM. I believe Eric Raymond refers to this business model as "widget frosting".


This is unacceptable. I thought about spending this letter talking about how your business is totally different from SugarCRMs. But instead I posted an article regarding this general issue on GPLMedicine.org. http://www.gplmedicine.org/articles_11/

Here I will say only three things about why you have a responsibility to release the code as 100%
1. SugarCRM company wrote SugarCRM software, which is why they get to have frosted widgets. You did not write VistA. The letter of the law gives you the right to have proprietary components, but the spirit of the community does not.
2. This is not what MedSphere represented to me and others you were going to do. This is an integrity issue.
3. You have already released the code as open source. The Shreeves, as legitimate agents for Medsphere, posted the code, you cannot "take it back", it does not work that way.

With respect to me the central is what you told me you were going to do. The Shreeves both in email and in person advertized that MedSphere was going 100% open source and that they just needed time to do so. If you wanted to have a hybrid strategy like this, then this email is the email that you should have sent to me when I originally wrote to you, asking you to clarify what your strategy was. The email that MedSphere did write was that you were going 100% open source, and that you needed time to do so, which means we still have a fundamental problem of being straight-forward me.

In fact, because of the way some of our extensions were developed I do not believe that we could legally release them as open source.


The only way that you could not release code as open source is if you did not own the copyright to the code. So what exactly do you mean by "way they were developed" and what could that have to do with anything? If you do not have the copyright to the code, then what does "our extensions" mean?

Fred, I hope that these comments are helpful to you, recognizing the limitations of what I can discuss in a public venue about matters being litigated. However, we are very confident of what the facts show, when all the relevant facts are considered, and we applaud your commitment to maintain an open mind until you know all the facts.


I applaud your communication, it seems well thought-out and sincere. I am delighted that you have responded. However, I really want to emphasis that I am not on the Shreeves "side". I am on the side of the community. That means that "all of the facts" are unlikely to change my mind. For instance lets suppose that MedSphere was suing the Shreeves for A. releasing code on sourceforge and B. Rolling a live grenade into your office. Lets also suppose that the Shreeves actually rolled a grenade into your office. Knowing "all of the facts" might make me very afraid to meet the Shreeves, (especially if I noticed ordnance of some kind) but I would still be convinced that they had the right to publish on sourceforge (based on their statements to me, that were cc'ed to you). I could always be wrong, but do not think that further facts will change the essential position, which needs clarification in the context of your response:

1. You already released a bunch of code open source. Which you almost immediately pulled down from sourceforge (neat trick BTW). At least that code needs to be re-released under the same terms. Anything less than this is a betrayal of what I was told and the spirit of the original release. If you want to shift strategy with other code, then that's fine. (still a bad move IMHO)
2. Stop suing the Shreeves for releasing code open source. If you feel that you need to sue them for reading email/throwing grenades (etc. etc) fine, sue them for that. Its scary for us to see a company turn on developers for releasing code. While we understand that the Shreeves might have done other things that merit a lawsuit, right now it looks like you are attacking "one of our own".

In our minds the Shreeves have integrity, not by experience, but by default. They have done nothing to make us not trust them. If you fix 1 and 2, then you restore MedSpheres integrity. Then it becomes a matter of the community trying to help out two friends of the community who have a disagreement. Until one and two are addressed, it will continue to seem that the Shreeves are on the side of the community and MedSphere is against the community.

Regards,
Fred Trotter
Medical FOSS Activist and general pain in the rear
http://www.fredtrotter.com

Eric Raymonds response to Ken Kizer

Erics words in bold Fred Trotter :
> Until one and two are addressed, it will continue to seem that the Shreeves > are on the side of the community and MedSphere is against the community.

Fred Trotter's language is perhaps less temperate than I might use, but on the basis of the facts known to me I cannot argue with his conclusion. My mind remains open if the management of MedSphere has a factual argument that Fred is substantially in error and the situation is not as he has represented it,

Mr Kizer's parent note is correct, I do indeed recommend a "widget frosting" model for companies like MedSphere. MedSphere would be completely within its legal and moral rights to develop closed-source extensions to Vista, and I would be the first to defend MedSphere's actions if that seemed to be the main point at issue here.

However, it does not appear to be. Fred is correct that MedSphere's renegation of an open-source release performed by its officers in conformance with public previous promises could become a dangerous precedent. If allowed to stand, it would mean that the open-source community could never trust a corporate partner again.

Accordingly, the open-source community needs, and deserves, a detailed explanation of the reasons behind this extraordinary maneuver. On behalf of the community, I am now requiring that explanation.

Yes, I said "requiring". There will be consequences if you refuse.

I am not to be deflected by the standard claim that management cannot comment on pending litigation. Having served on the board of a publicly-traded company I know that there is absolutely no legal bar against Medsphere explaining its reasoning and its construction of the facts. "We cannot comment" is a dodge accepted by custom, not a requirement of procedure or law.

In this case, "We cannot comment" unpacks to "concealing our legal posture is more important to us than good relations with the open-source community". MedSphere's management is free to make that choice, but if so it will have to accept the consequences -- which would include the earned and deserved hostility of the community and of myself.

Let me put it more plainly still: at this moment, MedSphere's present management is behaving exactly like the villains in a classic corporate-greed-heads-against-the-little-guy drama.

I am willing to believe that you are not villains, but you have so far refused every opportunity to refute the detailed case that Fred Trotter has been making. If you continue to do so, I will have no choice but to consider that refusal evidence that you have nasty things to hide, and that his indictment is substantially correct.

I have not yet formed a judgment about the MedSphere mess. When I do, I will make a public statement about it. That statement could be one that helps patch up your damaged relations with the community, or it could be one that enormously multiplies your troubles. I would much prefer the friendly alternative, but if I think the long-term interests of the community requires it I will torpedo MedSphere without a moment's hesitation.

Which alternative you get will be entirely up to you. If you fail to act in hopes the problem will go away, you will get the alternative you like least.
--
Eric S. Raymond