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Displaying posts by Bradley M. Kuhn

Trademark Was Made to Prevent Attack of the “Clones” Problem in App Stores

by Bradley M. Kuhn on July 11, 2022

Suppose you go to your weekly MyTown market. The market runs Saturday and Sunday, and vendors set up booths to sell locally made products and locally grown and produced food. On Saturday, you buy some delicious almond milk from a local vendor — called Al's Awesome Almond Milk. You realize that Al's Awesome would make an excellent frozen dessert, so you make your new frozen dessert, which you name Betty's Best Almond Frozen Dessert. You get a booth for Sunday for yourself, and you sell some, but not as much as you'd like.

The next week, you realize you might sell more if you call it Al's Awesome Almond Frozen Dessert instead of your own name. Folks at the market know Al, but not you. So you change the name. Is this a morally and legally acceptable thing to do?

This is a question primarily regarding trademarks. We spend a lot of time in the Free and Open Source Software (FOSS) community talking about copyrights and patents, but another common area of legal issues that face FOSS projects (in addition to copyright and patent) is trademark.

In fact, FOSS projects probably don't spend enough time thinking about their trademark. Nearly ten years ago, Pam Chestek — a lawyer and expert in trademark law as it relates to FOSS and board member of OSI — gave an excellent talk at FOSDEM (2013), wherein she explored how FOSS projects can use trademarks better and to ensure rights of consumers — particularly when dealing with bad actors. Our own Executive Director, Karen Sandler, had also spoken about this issue as well. These older talks, in turn, spawned an ongoing conversation that continues to this day in FOSS policy circles.

Specifically, last week, we learned that the Microsoft Store was changing their policies, ostensibly to deal with folks (probably some of whom are unscrupulous) rebuilding binaries for well-known FOSS projects and uploading them to the Microsoft Store. Yet, this is a longstanding issue in FOSS policy. FOSS experts in this area would have been happy to share what's been learned over the last ten years of studying this issue.

The problem Microsoft faces here is the same problem that the MyTown market folks face if you show up trying to sell Al's Awesome Almond Frozen Dessert. The store/market can set rules that you will no longer be able to sell if you are found to infringe the trademark of another seller. The market could simply require the trademark holder to take trademark action themselves, or it could offer some form of assistance, arbitration, or other-extra-legal resolution mechanism0.

There is often temptation in FOSS to give special status to maintainers, or the original developer, or the copyright holder, or some other entity that is considered “official”. In FOSS, though, the only mechanism of officialness is the trademark — the name of the upstream project (or the fork). The entire point of FOSS is that for the code itself, everyone should have equal rights to the original developers, to the maintainers, or to any other entity.

We have faced this with our member project, Inkscape. While the Inkscape Project Leadership Committee has chosen not to charge for the version of Inkscape that they upload on Microsoft Store, we did see this very problem for many years before these app stores even existed. Namely, it was common for third-parties to sell Windows binaries on CD's for Inkscape in an effort to make a quick buck. We did trademark enforcement in these cases — not forbidding these vendors from selling — but simply requiring the vendors to clearly say that the product was a modified version of Inkscape. Or, if it was unmodified redistribution of Inkscape's own binaries, we required the vendor to note that the Inkscape project's website was the official source for these binaries.

I have often written to complain about copyright and patent law. I have my complaints about trademark law (and I've seen trademark grossly abused, even), but trademark laws tenets are really reasonable and solid: to ensure consumers know the source and quality of the products they receive.

The problem of concern here is one well handled by trademark. It doesn't need excessive app store rules; we don't need FOSS licenses to be usurped or superseded by Draconian policy. And, this solution to this particular problem has been long-known by FOSS. Pam's talk in 2013 explained it quite well!

The MyTown Market doesn't need to create a policy that forbids you from buying Al's Awesome Almond Milk on Saturday and reselling a product based on it on Sunday. They just need to let Al know his rights under trademark, and maybe offer a lightweight provisional suspension of your booth if the trademark complaint seems primia facie valid. But, most importantly, before it announces new rules with a 30 day clock, MyTown's leadership really should discuss it with the citizens first to find a policy that takes into account concerns of the people. Even if they fail to do that, there are MyTown's elected officials whose actions are accountable to the people. App store companies are accountable only to their shareholders, not the authors of the apps. Companies could benefit by learning that the FOSS community prioritizes respecting authors, protecting consumers' and users' rights, and by understanding that the line between user and contributor should blur. The FOSS marketplace functions because the community works.



Footnotes

0 I hesitate to even suggest that an app store should create an extra-legal process regarding trademark enforcement beyond the typical governmental mechanisms — lest they decide they have to do it. A major problem with app stores is that they create rules for software distribution that are capricious, and arbitrary. We all do want FOSS available on Microsoft, Apple, and Google-based platforms — and as such are forced to negotiate (or, rather, try to negotiate) for FOSS-friendly terms. Ultimately, though, the story of major vendor-controlled app stores is always the story of “just barely” being able to put FOSS on them, because the goal of these entities is to profit themselves, not serve the community. We prefer app stores like F-Droid that are community-organized and are not run for-profit.

Tags: conservancy, GPL, licensing

A Federal Hearing about Rights under GPL

by Bradley M. Kuhn on May 11, 2022

Possible Opportunity for the Public To Hear Oral Arguments in Key GPL Enforcement Case

In our previous update regarding our copyleft enforcement lawsuit against Vizio, we talked about how Vizio “removed” the case to USA federal court (namely, the Central District of California), and how we filed a motion to “remand” the case back to state court. While this all seems like minor legal wrangling early in a case, this very first skirmish in our case goes to the very heart of the right for software repair for consumers. While it won't be a final decision in the case, this motion will be the first indication whether the federal courts view the GPL as purely a copyright license, or as a contract, or as both. That question has been central to legal debate about the GPL for decades, and, thanks to our case, for the first time, a federal Court will directly consider this question.

Our view (and the view of many attorneys whose opinions we trust) and which is supported by substantial case law, is that the GPL functions as both a copyright license and a contract, and that third parties who receive distribution of GPL'd (and LGPL'd) software are third-party beneficiaries. We've done both copyright-based and contract-based enforcement, and both have their advantages. Contract-based enforcement as a third-party has advantages that are central to the GPL's policy goals. Consumers are the first to discover violations in the first place. Consumers are the most likely to utilize complete, corresponding source code (CCS) to enhance their use of the products they have purchased. Third-party, contractual based enforcement gives consumers legal authority when they ask companies for access to the source code that should be available to them. In other words, this approach gives consumers the ability to ask the Court directly for the most important thing that copyleft assures: a right to receive the CCS and “the scripts used to control compilation and installation of the executable”. Indeed, in our suit we have asked only for access to the source code, not for any money.

Our case now is the first of its kind to adjudicate the third-party beneficiary contractual theory. We are excited that a federal district Court is poised to give its first answer to the central question to this endeavor, namely: “Are the GPL and LGPL merely copyright licenses, and thus preempted and only subject matter for the US federal courts, or can a third-party bring a contract claim in state court?” If this question intrigues you, we encourage you to read our motion for remand, Vizio's reply to that motion and our rebuttal reply.

Most importantly, clear your calendar for this Friday 13 May 2022 at 10:30 US/Pacific! While Judge Staton may chose to rule on this motion strictly based on those paper filings, the judge has scheduled a hearing for that date and time. What's more, anyone in the world can attend this hearing to listen! Instructions for how to attend are found on Judge Staton's website0.

While, as FOSS activists, we're very sad that the Judge has chosen to use a proprietary videochat platform, we're glad that PSTN dial-in is provided, and we'll be dialing in and encourage you to do so as well. Watch our microblog for live updates!


0 Please take careful note of the warning on the Judge's website: Recording, copying, photographing and rebroadcasting of court proceedings is prohibited by federal law. Remember: you can take as many notes as you like, and even live blog/microblog what you hear, but take great care to follow the directives on Judge Staton's website.

Tags: conservancy, GPL, licensing

An Erroneous Preliminary Injunction Granted in Neo4j v. PureThink

by Bradley M. Kuhn on March 30, 2022

Bad Early Court Decision for AGPLv3 Has Not Yet Been Appealed

We at Software Freedom Conservancy proudly and vigilantly watch out for your rights under copyleft licenses such as the Affero GPLv3. Toward this goal, we have studied the Neo4j, Inc. v. PureThink, LLC ongoing case in the Northern District of California , and the preliminary injunction appeal decision in the Ninth Circuit Court this month. The case is complicated, and we've seen much understandable confusion in the public discourse about the status of the case and the impact of the Ninth Circuit's decision to continue the trial court's preliminary injunction while the case continues. While it's true that part of the summary judgment decision in the lower court bodes badly for an important provision in AGPLv3§7¶4, the good news is that the case is not over, nor was the appeal (decided this month) even an actual appeal of the decision itself! This lawsuit is far from completion.

A Brief Summary of the Case So Far

The primary case in question is a dispute between Neo4j, a proprietary relicensing company, against a very small company called PureThink, run by an individual named John Mark Suhy. Studying the docket of the case, and a relevant related case, and other available public materials, we've come to understand some basic facts and events. To paraphrase LeVar Burton, we encourage all our readers to not take our word (or anyone else's) for it, but instead take the time to read the dockets and come to your own conclusions.

After canceling their formal, contractual partnership with Suhy, Neo4j alleged multiple claims in court against Suhy and his companies. Most of these claims centered around trademark rights regarding “Neo4j” and related marks. However, the claims central to our concern relate to a dispute between Suhy and Neo4j regarding Suhy's clarification in downstream licensing of the Enterprise version that Neo4j distributed.

Specifically, Neo4j attempted to license the codebase under something they (later, in their Court filings) dubbed the “Neo4j Sweden Software License” — which consists of a LICENSE.txt file containing the entire text of the Affero General Public License, version 3 (“AGPLv3”) (a license that I helped write), and the so-called “Commons Clause” — a toxic proprietary license. Neo4j admits that this license mash-up (if legitimate, which we at Software Freedom Conservancy and Suhy both dispute), is not an “open source license”.

There are many complex issues of trademark and breach of other contracts in this case; we agree that there are lots of interesting issues there. However, we focus on the matter of most interest to us and many FOSS activists: Suhy's permissions to remove the “Commons Clause”. Neo4j accuses Suhy of improperly removing the “Commons Clause” from the codebase (and subsequently redistributing the software under pure AGPLv3) in paragraph 77 of their third amended complaint. (Note that Suhy denied these allegations in court — asserting that his removal of the “Commons Clause” was legitimate and permitted.

Neo4j filed for summary judgment on all the issues, and throughout their summary judgment motion, Neo4j argued that the removal of the “Commons Clause” from the license information in the repository (and/or Suhy's suggestions to others that removal of the “Commons Clause” was legitimate) constituted behavior that the Court should enjoin or otherwise prohibit. The Court partially granted Neo4j's motion for summary judgment. Much of that ruling is not particularly related to FOSS licensing questions, but the section regarding licensing deeply concerns us. Specifically, to support the Court's order that temporarily prevents Suhy and others from saying that the Neo4j Enterprise edition that was released under the so-called “Neo4j Sweden Software License” is a “free and open source” version and/or alternative to proprietary-licensed Neo4j EE, the Court held that removal of the “Commons Clause” was not permitted. (BTW, the court confuses “commercial” and “proprietary” in that section — it seems they do not understand that FOSS can be commercial as well.)

In this instance, we're not as concerned with the names used for the software; as much as the copyleft licensing question — because it's the software's license, not its name, that either assures or prevents users to exercise their fundamental software rights. Notwithstanding our disinterest in the naming issue, we'd all likely agree that — if “AGPLv3 WITH Commons-Clause” were a legitimate form of licensing — such a license is not FOSS. The primary issue, therefore, is not about whether or not this software is FOSS, but whether or not the “Commons Clause” can be legitimately removed by downstream licensees when presented with a license of “AGPLv3 WITH Commons-Clause”. We believe the Court held incorrectly by concluding that Suhy was not permitted to remove the “Commons Clause”. Their order that enjoins Suhy from saying that such removal is permitted is problematic because the underlying holding (if later upheld on appeal) could seriously harm FOSS and copyleft.

The Confusion About the Appeal

Because this was an incomplete summary judgment and the case is ongoing, the injunction against Suhy's on making such statements is a preliminary injunction, and cannot be made permanent until the case actually completes in the trial court. The decision by the Ninth Circuit appeals court regarding this preliminary injunction has been widely reported by others as an “appeal decision” on the issue of what can be called “open source”. However, this is not an appeal of the entire summary judgment decision, and certainly not an appeal of the entire case (which cannot even been appealed until the case completes). The Ninth Circuit decision merely affirms that Suhy remains under the preliminary injunction (which prohibits him and his companies from taking certain actions and saying certain things publicly) while the case continues. In fact, the standard that an appeals Court uses when considering an appeal of a preliminary injunction differs from the standard for ordinary appeals. Generally speaking, appeals Courts are highly deferential to trial courts regarding preliminary injunctions, and appeals of actual decisions have a much more stringent standard.

The Affero GPL Right to Restriction Removal

In their partial summary judgment ruling, the lower Court erred because they rejected an important and (in our opinion) correct counter-argument made by Suhy's attorneys. Specifically, Suhy's attorneys argued that Neo4j's license expressly permitted the removal of the “Commons Clause” from the license. AGPLv3 was, in fact, drafted to permit such removal in this precise fact pattern.

Specifically, the AGPLv3 itself has the following provisions (found in AGPLv3§0 and AGPLv3§7¶4):

  • “This License” refers to version 3 of the GNU Affero General Public License.
  • “The Program” refers to any copyrightable work licensed under this License. Each licensee is addressed as “you”.
  • If the Program as you received it, or any part of it, contains a notice stating that it is governed by this License along with a term that is a further restriction, you may remove that term.

That last term was added to address a real-world, known problem with GPLv2. Frequently throughout the time when GPLv2 was the current version, original copyright holders and/or licensors would attempt to license work under the GPL with additional restrictions. The problem was rampant and caused much confusion among licensees. As an attempted solution, the FSF (the publisher of the various GPL's) loosened its restrictions on reuse of the text of the GPL — in hopes that would provide a route for reuse of some GPL text, while also avoiding confusion for licensees. Sadly, many licensors continued to take the confusing route of using the entire text a GPL license with an additional restriction — attached either before or after, or both. Their goals were obvious and nefarious: they wanted to confuse the public into “thinking” the software was under the GPL, but in fact restrict certain other activities (such as commercial redistribution). They combined this practice with proprietary relicensing (i.e., a sole licensor selling separate proprietary licenses while releasing a (seemingly FOSS) public version of the code as demoware for marketing). Their goal is to build on the popularity of the GPL, but in direct opposition to the GPL's policy goals; they manipulate the GPL to open-wash bad policies rather than give actual rights to users. This tactic even permitted bad actors to sell “gotcha” proprietary licenses to those who were legitimately confused. For example, a company would look for users operating commercially with the code in compliance with GPLv2, but hadn't noticed the company's code had the statement: “Licensed GPLv2, but not for commercial use”. The user had seen GPLv2, and knew from its brand reputation that it gave certain rights, but hadn't realized that the additional restriction outside of the GPLv2's text might actually be valid. The goal was to catch users in a sneaky trap.

Neo4j tried to use the AGPLv3 to set one of those traps. Neo4j, despite the permission in the FSF's GPL FAQ to “use the GPL terms (possibly modified) in another license provided that you call your license by another name and do not include the GPL preamble”, left the entire AGPLv3 intact as the license of the software — adding only a note at the front and at the end. However, their users can escape the trap, because GPLv3 (and AGPLv3) added a clause (which doesn't exist in GPLv2) to defend users from this. Specifically, AGPLv3§7¶4 includes a key provision to help this situation.

Specifically, the clause was designed to give more rights to downstream recipients when bad actors attempt this nasty trick. Indeed, I recall from my direct participation in the A/GPLv3 drafting that this provision was specifically designed for the situation where the original, sole copyright holder/licensor0 added additional restrictions. And, I'm not the only one who recalls this. Richard Fontana (now a lawyer at IBM's Red Hat, but previously legal counsel to the FSF during the GPLv3 process), wrote on a mailing list1 in response to the Neo4j preliminary injunction ruling:

For those who care about anecdotal drafting history … the whole point of the section 7 clause (“If the Program as you received it, or any part of it, contains a notice stating that it is governed by this License along with a term that is a further restriction, you may remove that term.”) was to address the well known problem of an original GPL licensor tacking on non-GPL, non-FOSS, GPL-norm-violating restrictions, precisely like the use of the Commons Clause with the GPL. Around the time that this clause was added to the GPLv3 draft, there had been some recent examples of this phenomenon that had been picked up in the tech press.

Fontana also pointed us to the FSF's own words on the subject, written during their process of drafting this section of the license (emphasis ours):

Unlike additional permissions, additional requirements that are allowed under subsection 7b may not be removed. The revised section 7 makes clear that this condition does not apply to any other additional requirements, however, which are removable just like additional permissions. Here we are particularly concerned about the practice of program authors who purport to license their works under the GPL with an additional requirement that contradicts the terms of the GPL, such as a prohibition on commercial use. Such terms can make the program non-free, and thus contradict the basic purpose of the GNU GPL; but even when the conditions are not fundamentally unethical, adding them in this way invariably makes the rights and obligations of licensees uncertain.

While the intent of the original drafter of a license text is not dispositive over the text as it actually appears in the license, all this information was available to Neo4j as they drafted their license. Many voices in the community had told them that provision in AGPLv3§7¶4 was added specifically to prevent what Neo4j was trying to do. The FSF, the copyright holder of the actual text of the AGPLv3, also publicly gave Neo4j permission to draft a new license, using any provisions they like from AGPLv3 and putting them together in a new way. But Neo4j made a conscious choice to not do that, but instead constructed their license in the exact manner that allowed Suhy's removal of the “Commons Clause”.

In addition, that provision in AGPLv3§7¶4 has little meaning if it's not intended to bind the original licensor! Many other provisions (such as AGPLv3§10¶3) protect the users against further restrictions imposed later in the distribution chain of licensees. This clause was targeted from its inception against the exact, specific bad behavior that Neo4j did here.

We don't dispute that copyright and contract law give Neo4j authority to license their work under any terms they wish — including terms that we consider unethical or immoral. In fact, we already pointed out above that Neo4j had permission to pick and choose only some text from AGPLv3. As long as they didn't use the name “Affero”, “GNU” or “General Public” or include any of the Preamble text in the name/body of their license — we'd readily agree that Neo4j could have put together a bunch of provisions from the AGPLv3, and/or the “Commons Clause”, and/or any other license that suited their fancy. They could have made an entirely new license. Lawyers commonly do share text of licenses and contracts to jump-start writing new ones. That's a practice we generally support (since it's sharing a true commons of ideas freely — even if the resulting license might not be FOSS).

But Neo4j consciously chose not to do that. Instead, they license their software “subject to the terms of the GNU AFFERO GENERAL PUBLIC LICENSE Version 3, with the Commons Clause”. (The name “Neo4j Sweden Software License” only exists in the later Court papers, BTW, not with “The Program” in question.) Neo4j defines “This License” to mean “version 3 of the GNU Affero General Public License.”. Then, Neo4j tells all licensees that “If the Program as you received it, or any part of it, contains a notice stating that it is governed by this License along with a term that is a further restriction, you may remove that term”. Yet, after all that, Neo4j had the audacity to claim to the Court that they didn't actually mean that last sentence, and the Court rubber-stamped that view.

Simply put, the Court erred when it said: “Neither of the two provisions in the form AGPLv3 that Defendants point to give licensees the right to remove the information at issue.”. The Court then used that error as a basis for its ruling to temporarily enjoin Suhy from stating that software with “Commons Clause” removed by downstream is “free and open source”, or tell others that he disagrees with the Court's (temporary) conclusion about removing the “Commons Clause” in this situation.

What Next?

The case isn't over. The lower Court still has various issues to consider — including a DMCA claim regarding Suhy's removal of the “Commons Clause”. We suspect that's why the Court only made a preliminary injunction against Suhy's words, and did not issue an injunction against the actual removal of the clause! The issue as to whether the clause can be removed is still pending, and the current summary judgment decision doesn't address the DMCA claim from Neo4j's complaint.

Sadly, the Court has temporarily enjoined Suhy from “representing that Neo4j Sweden AB’s addition of the Commons Clause to the license governing Neo4j Enterprise Edition violated the terms of AGPL or that removal of the Commons Clause is lawful, and similar statements”. But they haven't enjoined us, and our view on the matter is as follows:

Clearly, Neo4j gave explicit permission, pursuant to the AGPLv3, for anyone who would like to to remove the “Commons Clause” from their LICENSE.txt file in version 3.4 and other versions of their Enterprise edition where it appears. We believe that you have full permission, pursuant to AGPLv3, to distribute that software under the terms of the AGPLv3 as written. In saying that, we also point out that we're not a law firm, our lawyers are not your lawyers, and this is not legal advice. However, after our decades of work in copyleft licensing, we know well the reason and motivations of this policy in the license (described above), and given the error by the Court, it's our civic duty to inform the public that the licensing conclusions (upon which they based their temporary injunction) are incorrect.

Meanwhile, despite what you may have read last week, the key software licensing issues in this case have not been decided — even by the lower Court. For example, the DMCA issue is still before the trial court. Furthermore, if you do read the docket of this case, it will be obvious that neither party is perfect. We have not analyzed every action Suhy took, nor do we have any comment on any action by Suhy other than this: we believe that Suhy's removal of the “Commons Clause” was fully permitted by the terms of the AGPLv3, and that Neo4j gave him that permission in that license. Suhy also did a great service to the community by taking action that obviously risked litigation against him. Misappropriation and manipulation of the strongest and most freedom-protecting copyleft license ever written to bolster a proprietary relicensing business model is an affront to FOSS and its advancement. It's even worse when the Courts are on the side of the bad actor. Neo4j should not have done this.

Finally, we note that the Court was rather narrow on what it said regarding the question of “What Is Open Source?”. The Court ruled that one individual and his companies — when presented with ambiguous licensing information in one part of a document, who then finds another part of the document grants permission to repair and clarify the licensing information, and does so — is temporarily forbidden from telling others that the resulting software is, in fact, FOSS, after making such a change. The ruling does not set precedent, nor does it bind anyone other than the Defendants as to what they can or cannot say is FOSS, which is why we can say it is FOSS, because the AGPLv3 is an OSI-approved license and the AGPLv3 permits removal of the toxic “Commons Clause” in this situation.

We will continue to follow this case and write further when new events occur..


0 We were unable to find anywhere in the Court record that shows Neo4j used a Contributor Licensing Agreement (CLA) or Copyright Assignment Agreement (©AA) that sufficiently gave them exclusive rights as licensor of this software. We did however find evidence online that Neo4j accepted contributions from others. If Neo4j is, in fact, also a licensor of others' AGPLv3'd derivative works that have been incorporated into their upstream versions, then there are many other arguments (in addition to the one presented herein) that would permit removal of the “Commons Clause”. This issue remains an open question of fact in this case.

1 Fontana made these statements on a mailing list governed by an odd confidentiality rule called CHR (which was originally designed for in-person meetings with a beginning and an end, not a mailing list). Nevertheless, Fontana explicitly waived CHR (in writing) to allow me to quote his words publicly.

Tags: conservancy, GPL, law

Copyleft Won't Solve All Problems, Just Some of Them

by Bradley M. Kuhn on March 17, 2022

Toward a Broad Ethical Software Licensing Coalition

We are passionate about and dedicated to the cause of software freedom and rights because proprietary software harmfully takes control of and agency in software away from users. In 2014, we started talking about FOSS as fundamental to “ethical software” (and, more broadly “ethical technology”) — which contrasts FOSS with the unethical behavior that Big Tech carries out with proprietary software. Some FOSS critics (circa 2018) coined the phrase “ethical source” — which outlined a new approach to these issues — based on the assumption that software freedom activists were inherently complicit in the bad behavior of Big Tech and other bad actors since the inception of FOSS. These folks argue that copyleft — the only form of software licensing that makes any effort to place ethical and moral requirements on FOSS redistributors/reusers — has fundamentally ignored the larger problems of society such as human rights abuses and unbridled capitalism. They propose new copyleft-like licenses, which, rather than focusing on the requirement of disclosure of source code, they instead use the mechanisms of copyleft to mandate behaviors in areas of ethics generally unrelated to software. For example, the Hippocratic License molds a copyleft clause into a generalized mechanism for imposing a more comprehensive moral code on software redistributors/re-users. In essence, they argue that copylefted software (such as software under the GPL) is unethical software. This criticism of copyleft reached crescendo in the last three weeks as pundits began to criticize FOSS licenses for failing to prohibit Putin from potentially using FOSS in his Ukrainian invasion or other bad acts.

We have in the past avoided a comprehensive written response to the so-called “ethical source” arguments — lest our response create acrimony with an adjacent community of activists who mean well and with whom we share some goals, but with whose strategies (and conclusions about our behavior and motivations) we disagree. Nevertheless, the recent events have shown that a single, comprehensive response would help clarify our position on a matter of active, heated public debate and fully answer these ongoing criticism of FOSS and our software freedom principles.

The primary criticism is that FOSS licensing over-prioritizes the rights of software freedom above substantially more important rights and causes — such as sanctions against war criminals. This rhetoric implies that software freedom activists have “tunnel vision” about the relatively minor issue of the rights to copy, modify, redistribute and reinstall software while we ignore bigger societal problems. This essay gives a comprehensive explanation of the specific reasons why copyleft avoids the “scope creep” of handling moral and ethical issues that relate only tangentially to software — even though those moral issues are indeed more urgent and dire than the moral issue of software freedom.

Software Freedom Isn't The Most Important Human Right

I personally, and many of my colleagues, have been admittedly imperfect advocates for software freedom. For the last thirty years, Big Tech and their allies have unfortunately successfully convinced the public that rights for users to control their own software are unimportant, and even trivial. (Apple has even successfully convinced their biggest fans that Apple's ironclad device lock-down is in your interest as a consumer.) In that climate, software freedom activists often overcompensated for the tech community's trivialization of software rights — specifically, overstating the relative importance of software freedom when compared to other human rights. Our error left a political vulnerability, allowing the opposition to successfully even further trivialize users' rights. Critics capitalized on this miscommunication, and often claim that FOSS activists believe that software freedom is the most important human right. Of course, none of us believe that.

I suspect most software freedom activists agree with me on the following: while I do believe software freedom should be a human right, I don't believe that our society should urgently pursue universal software freedom at the expense of upholding the many other essential rights (such as those listed in the Universal Declaration of Human Rights). Clearly many other rights are more fundamental. In a society that fails to guarantee those fundamental human rights, software freedom (by itself) is virtually useless. Those who would violate the most basic human rights will simply ignore the issue of software freedom, too. Or, even worse, such bad actors will gladly use any software, flagrantly in violation of any license, to bolster their efforts to violate other human rights.

Software freedom as a general cause becomes essential and relevant when a society has already reached a minimal level of justice. Indeed, I've spent much of my career as a software rights activist considering whether I should instead work on a more urgent cause — such as ending human trafficking, animal rights, or remedying climate change. Personally, the only valid moral justification for my personal focus on software freedom instead of those other rights is four-fold: (a) there is an increasingly limited number of qualified people who are willing to work on software freedom as a charitable cause at all, (b) there is an increasing number of talented people who are actively working to create more proprietary software and seeking to thwart software freedom and copyleft, (c) my personal talents are in the area of software production and authorship, not in areas directly applicable to other causes, and (d) an increasingly digitized society mean software rights slowly increase in importance as an “enabler right” to defend and protect other rights (just as Free Speech enables activists to expose (and hopefully prevent) atrocities and their cover-ups). In other words, I am unlikely to make any useful impact on any other cause in my whole career, whereas due to the unique match of my skills to the cause of software freedom, I have made measurable positive impact on software rights. I generally encourage activists to focus on tasks that directly coincide with their existing talents, and have tried to do the same myself.

So my argument starts in fervent agreement with the first point made by proponents of adding non-software ethical issues into copyleft licensing: yes, I absolutely agree there are social justice causes that are more urgent than the right to copy, modify, redistribute and reinstall software. That begs their question: then, why not immediately begin using all the tools, mechanisms and strategies used for FOSS advocacy to advocate for these other causes? The TL;DR answer is simple: because these tools, mechanisms and strategies are highly unlikely to have any measurable impact on those other causes, while using them for these other causes would ultimately minimize software freedom and rights unjustly.

Indeed, we need to make progress on the issue of software freedom, precisely because even while others are working to address and redress these other social justice issues, proprietary software (such as through proprietary AI-based advertising software that manipulates public opinion) is currently used to undermine these other causes. Universal software freedom would thwart Big Tech's efforts to undermine other causes. Proprietarization of software isn't the most heinous human rights violation possible; nevertheless, proprietarization of software does assist companies to do harm regarding other social justice causes. I conclude from that realization that our society should seek to make progress on both upholding the existing human rights already listed in the Universal Declaration on Human Rights, and also seek to make simultaneous progress on key rights not listed there, such as software freedom. We also err as activists if one group of activists seeks to thwart another by falsely claiming the other group is “complicit in human rights abuses” merely due to a strategic disagreement.

Ultimately, copyleft (and other FOSS licensing) is a strategy, not a moral principle unto itself. The moral principle is that proprietary software is harmful to people because it forbids their right to control their own software, learn how it works, and remove spyware from it (among many other ills). That moral principle remains valuable and deserves some of our collective attention, even if there are other more urgent moral principles that deserve even more attention.

Copyleft Is The Worst Strategy, Except for all the Others

So, if the production of proprietary software harms society, then why not focus all efforts on lobbying legislators to make proprietary software illegal? This should be the first question any new software freedom activist asks themselves. After all, for those of us who live in societies with relatively minimal corruption and that are governed by the rule of law, we should seek to make criminal those acts that harm others.

Criminalizing proprietary software has always been, and remains, politically unviable. We should constantly reevaluate that political viability (which software freedom activists have done throughout the last three decades). But as of the time of writing, this strategy remains unviable, primarily due to the worldwide domination of incumbent unbridled capitalism and a near universal poor understanding of the harm that proprietary software causes and enables.

Another possible approach to ending proprietary software is a universal boycott on authorship of proprietary software (perhaps through mass unionization of software developers). This is one of my favorite “thought experiments”, as it shows how much power individual software developers have regarding proprietary software. However, this universal boycott is also politically unviable, at least as long as proprietary software companies continue to pay such exorbitant salaries relative to other fields of endeavor.

So, if we can't make proprietary software illegal, and we can't dissuade developers from taking piles of money to write proprietary software, what's the next best strategy? The answer is to organize people to write alternative software that is not proprietary. This was the strategy that the software freedom movement pursued in earnest beginning in the early 1980s, and currently remains our best politically viable strategy. However, this approach always contained a fundamental problem: such software can easily be used as a basis for proprietary software. Thus non-copylefted FOSS competes against itself, rather hopelessly, since the proprietary version will likely always be a feature or two ahead, and the FOSS version a bug or two behind. Copyleft is the innovative strategy designed specifically to address that specific problem. Without copyleft, the only possible approach to answering the harm of proprietary software is the aforementioned general strike of all software development, since non-copyleft FOSS can be and is regularly used as a basis for advancing proprietary software and Big Tech's interests.

Copyleft generally works reasonably well as a strategy, but it admittedly requires constant vigilance. Copyleft needs someone to enforce it, and resources to do that. Copyleft must withstand the pressure of proprietary software companies who seek to erode and question its validity. The primary conceit of those who seek to use a copyleft-style strategy to address other software-tangential social injustices is their apparent belief that merely writing policy into a software license has any chance of changing behavior on its own. It simply doesn't.

Other Mechanisms Are More Effective If Politically Viable

The Hippocratic License and similar efforts have a laudable goal: they seek to assure that companies who deal in software always respect human rights. However, advocacy for universally recognized human rights, as a social justice cause, does have access to better advocacy mechanisms that software freedom activism does not.

Most notably, almost everything listed in the Universal Declaration of Human Rights is illegal in the USA and in most other industrialized nations where the bulk of software development occurs. Also, it is certainly politically viable to improve those laws — for those rare cases where a violation of a particular universally recognized human right is legal. In short, because these other rights are much more widely accepted as fundamental by the public, we can employ other, better means (including those listed above that don't work for FOSS) to compel compliance by companies with these other principles.

Furthermore, copyleft is ill-suited as a mechanism to enforce any rights in places where human rights violations are common. For example, no one has ever bothered to enforce copyleft licenses in jurisdictions where corruption is rampant and the judiciary is easily bribed. Over the last twenty years, we've received many reports of GPL violations in the Russian Federation, but we don't pursue them — not because they shouldn't be addressed, but because, under Putin's regime, it's highly unlikely we can get a fair hearing to uphold software freedom and rights for Russian citizens. Copyleft relies on a well-formed rule-of-law for contracts and copyright to protect people's rights (of any kind). In jurisdictions that already hold human life and the rights of its people in low regard (or simply have an exceedingly corrupt government), it's a pointless symbolic act to also take away the permissions of software redistribution and modification for bad behavior (of any kind). Companies and oligarchs operating in a corrupt, unjust society will successfully ignore those injunctions, too.

Meanwhile, in jurisdictions with relatively less corruption, other systems besides distribution licenses function well to curtail bad behavior. For example, I've owned exactly two cars in my life here in the USA. While I concede there are many problems with corruption here, we have a relatively just society that usually respects the rule of law for contracts and copyrights. The cars that I purchased here did not have a license that said: if you drive dangerously with the vehicle, you cannot purchase and utilize cars in the future from that manufacturer. We don't look to the car manufacturers to enforce the ethical use of vehicles; we instead make traffic laws, with various escalating penalties, including a driver licensing structure that can be revoked temporarily or permanently for egregious acts. We don't require manufacturers to contract with drivers to pollute less; we instead create and enforce environmental regulation and incentives both before and after the time of purchase. Because such systems exist and because there is widespread societal consensus about what is or is not ethical driving behavior, there is no point in enforcing these rules using copyright and contracts that bind the vehicle's purchaser. A more resilient system (of traffic and environmental laws, and their enforcement) works to deal with the problem, and improving those laws is politically viable. Additional licensing terms from the car manufacturers (imposed at the point of sale of vehicles) would create a useless redundancy, since the penalties and remedies available under that license are substantially less severe than those available under the laws that regulate drivers.

There are strategies other than licensing changes that would likely work well to both build a stronger coalition for software freedom and rights and curtail the atrocities committed by Big Tech and their customers. These strategies might become political viable, and are worth pursuing in parallel and in coalition. For example, widespread unionization of tech workers (not over wages, which are generally high, but over other issues, such as bad behavior and policy by their employers) could both improve companies' respect of software freedom and handle many problems raised by those who seek tangential expansion of copyleft into non-software issues. For our part, Software Freedom Conservancy has done some work in this area by encouraging developers to begin insisting on better terms in their employment contracts. I do worry that a functioning coalition on these matters is exceedingly difficult to build (and the very fact this essay ultimately became necessary hints at the difficulty in building that coalition). We'd be glad to work in coalition with such activists to further those causes if they include software freedom as an issue that belongs on the coalition's agenda.

But that's a long-term, speculative action. Meanwhile, for software freedom, copyleft is the best-available compromise strategy — since software rights are not and cannot be defended in a more robust way (such as through direct legislation, as opposed to indirectly relying on the copyright and contract legal systems to assure the rights). Copyleft is a round-about strategy. Using copyleft as a strategy to impact broader ills that have more effective mechanisms to address those ills is (at the very least) wasted time and (possibly) downright counter-productive.

Copyleft Focuses On Coalition

In our increasingly politically divided society, omnibus social justice reform has always been exceedingly difficult. Copyleft works precisely because it holds together a very thin coalition — by confining the issues to only those that happen with software.

Consider this example: I became a vegetarian in 1992. It does bother me that software that I've written could potentially assist a slaughterhouse to run more efficiently. I obviously have considered licensing my software under terms that would forbid use in a slaughterhouse (and a dozen other activities that I personal morally oppose, including for the waging of war). However, hand-picking my most important social justice causes and stringing a copyleft clause on them would dissolve a rather thinly-held coalition of copyleft proponents. Successful advocacy for a given cause relies on building broad coalitions among people with widely disparate views on other topics. Imagine how difficult activism on climate change would be if activists working to end human trafficking claimed that activists working to address climate change were complicit in human trafficking because The Paris Climate Agreement does not include penalties if participating nation-states fail to meet benchmarks on reducing human trafficking. Coalition building is complex. Context matters.

In a diverse political ecosystem, elegant solutions that work “ok” often fare better than comprehensive-but-complex solutions. Copyleft's innovation is that the only action you can take that revokes your right to copy, modify, redistribute and reinstall the software is failure to give that same right to someone else. This elegance makes the copyleft strategy powerful and effective. “Porting” the copyleft strategy to other causes may seem that it would yield “more of a good thing”. But, in practice, that approach turns copyleft licenses into complex omnibus legislation around which coalitions will evaporate.

Relatedly, the most difficult hurdle of copyleft has always been the creation of software that was so enticingly useful that political opponents (i.e., proprietary software companies) would gladly give users the rights to copy, modify, and reinstall the software — in direct exchange for having the benefit of building their new software on top of the existing copylefted components (rather than rewriting it themselves). I do not see a viable path to create the necessary coalition that would, after agreeing on an omnibus list of social justice issues, also find the funding and volunteer labor necessary to build software (under that license) that would entice those who currently work against that list of social justice causes to stop working against those causes merely because they'd gain so much more from the software than they gain from violating the principles. Copylefted software in a vacuum, adopted only by other copyleft activists does not change behavior of bad actors. For example, imagine if we wrote into our licenses that all who copy, modify and distribute the software must cease use of fossil fuels. That's an important cause, but it's hard to imagine our software would be so useful that companies would accelerate their reduction of fossil fuel use merely to gain immediate the permission to copy, modify and redistribute that software.

Copyleft Requires Constant Vigilance

Copyleft isn't magic pixie dust that liberates software. In fact, likely one of the biggest flaws in copyleft design has been a gross underestimation of resources required for enforcement in the scenario we now have. Broad adoption of key copylefted components remains an important step to curtail proprietary software developers' mistreatment of users. The situation slowly improves as such developers incorporate copylefted software like Linux into their essential computing systems — provided that is done so in compliance with the license. However, violations on essential GPL'd components such as Linux and GCC are rampant and limited funding is available to resolve these violations and restore users' rights in the software. Big Tech has also been relentless and highly creative in thwarting our enforcement efforts.

Thus, even if not for my earlier strategic reasons that I oppose adding ethical-but-software-unrelated restrictions to FOSS licenses, I'd still oppose it on tactical grounds. Namely, there is no clear funding path whereby additional terms seeking to protect and advance software-tangential social justice causes could be adequately enforced to make a measurable difference in advancement of those causes.

FOSS Must Still Have a Conscience on Non-Software Issues

This essay merely argues that FOSS licenses are not an effective tool to advance social justice causes other than software freedom. It does not argue that FOSS communities have no duties to other causes and issues; in fact, they do have such a moral obligation. For example, FOSS developers should refuse to work specifically on bug reports from companies who don't pay their workers a living wage. I also recommend that FOSS communities create (alongside their Codes of Conduct for behavior inside the project), written rules of the types of entities that the projects will officially assist with volunteer labor, or (in the case of a commercial FOSS community or organization), what types of entities the community will engage in business deals.

At Software Freedom Conservancy, we regularly discuss at both the staff and Board of Directors level what other social justice issues that we have a moral obligation to incorporate. Most notably, we've been the home for Outreachy, a program our own Executive Director, Karen Sandler, helped create, and for which we are glad to have Sage Sharp on staff to work on full-time. We know that FOSS lags behind proprietary software development in welcoming and providing opportunities for underrepresented groups. We dedicate significant organizational resources on these issues through Outreachy and other newer programs (such as the Institute for Computing Research). We made a public statement that Trump's travel ban directly thwarted FOSS. We go beyond the mere legal requirements to create ethical and equitable hiring practices that are without bias. In defending the rights of users under copyleft, we do not leave other issues behind. I believe that the critics have simply not paid attention to, or are willfully ignoring, the holistic and intersectional approach that we have brought to FOSS.

Regarding Putin's FOSS Permissions Upon Invasion of Ukraine

Initially, only a few FOSS critics insisted on this radical change to copyleft licensing structure. The issue had fallen into the far background of our community — until the last few weeks. Specifically, many recently began asking whether we should redraft FOSS licenses to impose sanctions on Putin in retaliation for his violent and unprovoked invasion of Ukraine. Admittedly, FOSS licenses do not prevent Putin from incorporating existing FOSS already in his possession into his war machine. I personally have been a conscientious objector to all military action since 1990, so I am sympathetic. I have always felt the OSI's framing the discussion of military use of FOSS as a “field of use restriction” misses the point; it inappropriately analogizes software to physical materiel, and analogizes those who write FOSS to de-facto military contractors. Software, fundamentally, is the written word; while it “feels” like more than that to us, factually speaking, software is merely a written record of knowledge, methods, and instructions for how to solve digital problems. It is disturbing that the plans for heinous acts can sometimes be modeled as digital problems, and that some of those problems may be solvable with existing FOSS. But we must curtail and punish actual actions, not knowledge nor writing, nor the unfettered sharing of generally useful technical information. Particularly in cyber-warfare circles, some folks tend to talk about software as we did during the days when sharing encryption software was banned: as if certain software is more like bombs than books. I don't think we should concede that rhetoric; all software remains much more like books than it is like bombs.

Even if we choose to not take away the right to read from the Russian people, that does not mean that FOSS activists concede that nothing can be done. Our nations can, should, and many currently do, forbid commerce with Russia during this period. This can and should include embargoes of selling new books, new copies of software, providing services for improvements to software, and any other commercial activities that could inadvertently aid Putin's war effort. Every FOSS license in existence permits capricious distribution; software freedom guarantees the right to refuse to distribute new versions of the software. (i.e., Copyleft does not require that you publish all your software on the Internet for everyone, or that you give equal access to everyone — rather, it merely requires that those whom you chose to give legitimate access to the software also receive CCS). FOSS projects should thus avoid providing Putin easy access to updates to their FOSS. Indeed, FOSS licenses planned well for how to manage bad actors who want your software: all FOSS licensing authorities have upheld the right to capricious distribution — precisely so that the license would not compel any developer to provide software to a bad actor.

I suspect activists will continue to disagree about whether we have a moral imperative to change FOSS licenses themselves to contractually forbid Putin to copy, modify, redistribute and reinstall the FOSS he already has (or surreptitiously downloaded by circumventing sanctions). However, these horrendous events in Ukraine offer real world examples to consider the viability of expanding copyleft term expansion beyond software, and consider how it might work. My analysis is that such changes would only give us the false sense of having “done something”. Ultimately enforcement of such licensing changes would either be impossible or pointless. The very entities (such as the varied international courts and treaty organizations) that could enforce such terms will also have plenty of other war crimes and sanctions violations to bring against Putin and his cronies anyway. The penalties for the actions of war that Putin took will be much stronger than Putin's contractual breach or copyright infringement claim that could be brought under a modified copyleft license and/or the Hippocratic License.

Conclusion

Copyleft licensing is a powerful strategy. As a strategy, copyleft has both its upsides and downsides in its ability to advance the software freedom and rights of users. However, the proverbial hammer of copyleft will not help you when your problem is more like a screw than a nail. Having already dedicated my entire career to advance the copyleft strategy, I do feel honored that folks who care deeply (as I do) about other important social justice causes are seeking to apply that strategy to new types of problems. However, despite my lifelong love and excitement for copyleft, and perhaps because of it, it's my duty to point out that copyleft is not a panacea for all that ills our troubled world.

Copyleft works because it's the best strategy we have for software freedom, and because copyleft elegantly confines itself to the software rights of users. Attempts to apply the copyleft strategy to software-unrelated causes will (at the very least) fail to achieve the intended results, and at their worst, will primarily serve to trivialize the important issue of software freedom that copyleft was invented to accentuate.

Tags: conservancy, GPL, security, law

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