Thoughts on IBM’s acquisition of Red Hat

by Karen Sandler on October 31, 2018

There’s been quite a stir in our communities following the announcement that IBM is acquiring Red Hat. As I considered the announcement, one part of the email to employees by Jim Whitehurst posted on the Red Hat blog really struck me:

I appreciate that everyone will experience a range of emotions as a result of this news. Excited, anxious, surprised, fear of the unknown, including new challenges and working relationships - these are all ways I would describe my emotions. What I know is that we will continue to focus on growing our culture as part of a new organization. We will continue to focus on the success of our customers. We will continue to nurture our relationships with partners. Collaboration, transparency, participation, and meritocracy - these values make us Red Hat and they are not changing. In fact, I hope we will help bring this culture across all of IBM.

In addition to the normal anxiety, surprise and fear experienced by employees of companies in the wake of an announcement of a merger, takeover or ordinary reorganization, this transaction will also reverberate through the community outside of the company. Free software contributors across many communities and industries are feeling some of the same apprehension and unease that ordinarily would be reserved for employees.

I wish IBM and Red Hat luck, and I’m optimistic that the partnership will yield good things for both companies and their employees. I hope that following the acquisition, Red Hat is able to maintain its special relationship to the free and open source communities it shepherds, and that its employees continue to feel empowered to support critical free software solutions in a community-focused way. I also hope that in its announcement to keep Red Hat its own unit within IBM is an indication of IBM’s support of Red Hat’s unique business and that the deal does wind up bringing that culture to more of IBM. While some folks at IBM are important contributors to free software, IBM’s is primarily a culture of proprietary software and Red Hat’s is one of open source, so in my view this solution is likely to yield the most success anyway.

I’ve heard people imagining the best from this deal, and also people imagining the worst. The one thing everyone can agree on is that there’s a lot of uncertainty, despite whatever reassurances are contained in corporate messaging. Because of this, I think it’s a good time to remind everyone of the ways we can protect ourselves now and in the future from these kinds of uncertainties related to changes in ownership, structure or motivations of corporate players in free and open source software:

• Use copyleft. Quite a lot of the software projects that Red Hat plays a critical role in are licensed under a version of the GPL. When we use strong copyleft we set the ground rules for corporate actors to participate with each other and with the public. We get a level playing field and assurance that companies will be less incentivized to go their own way. (We also get other good benefits like the right to the source code, allowing us to be in control of the technology we rely on.)

• Support strong charities. Nonprofits, and in particular charitable nonprofits, keep the community’s interests at the forefront. They can serve as copyright aggregators in a more trusted way, facilitate cooperation of different stakeholders and function in a variety of ways to forward the long term interest of software freedom. The more we invest in our critical foundations, the less vulnerable we are to changes in corporate actors. The stronger foundations like GNOME, Conservancy and the FSF are, the easier it is for communities to weather a new direction from a prominent company.

• Encourage diversely held interests. Making sure that interests are not aggregated in single for-profit actors insulates communities against a change in ownership of a company. For effective success in using copyleft, copyrights must not only be with for-profit companies but have substantial copyright holding from charities and individuals. Also, technical leadership should include actors from different types of entities. When copyrights are held by many actors in the field (or by charitable nonprofits), it’s much harder to relicense projects as proprietary or on otherwise less ideal terms, and copyleft enforcement is a community-driven rather than for-profit activity. When care of the technical direction of a project isn’t significantly concentrated in one company, free software projects are more robust. Development may be slower with community-led contribution, but we can have greater confidence about the stability of the project and the community.

The interests of companies are not always aligned with the free software community or the public. Companies that seem to be in one stable condition today may change dramatically tomorrow. While I expect Red Hat to flourish under IBM ownership, the acquisition is a good example of the kinds of changes we must be prepared for down the road, whether it be with Red Hat or any of the other companies on which we’ve come to rely.

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Tags: conservancy, GPL

Toward Community-Oriented, Public & Transparent Copyleft Policy Planning

by Bradley M. Kuhn on October 16, 2018

More than 15 years ago, Free and Open Source Software (FOSS) community activists successfully argued that licensing proliferation was a serious threat to the viability of FOSS. We convinced companies to end the era of “vanity” licenses. Different charities — from the Open Source Initiative (OSI) to the Free Software Foundation (FSF) to the Apache Software Foundation — all agreed we were better off with fewer FOSS licenses. We de-facto instituted what my colleague Richard Fontana once called the “Rule of Three” — assuring that any potential FOSS license should be met with suspicion unless (a) the OSI declares that it meets their Open Source Definition, (b) the FSF declares that it meets their Free Software Definition, and (c) the Debian Project declares that it meets their Debian Free Software Guidelines. The work for those organizations quelled license proliferation from radioactive threat to safe background noise. Everyone thought the problem was solved. Pointless license drafting had become a rare practice, and updated versions of established licenses were handled with public engagement and close discussion with the OSI and other license evaluation experts.

Sadly, the age of license proliferation has returned. It's harder to stop this time, because this isn't merely about corporate vanity licenses. Companies now have complex FOSS policy agendas, and those agendas are not to guarantee software freedom for all. While it is annoying that our community must again confront an old threat, we are fortunate the problem is not hidden: companies proposing their own licenses are now straightforward about their new FOSS licenses' purposes: to maximize profits.

Open-in-name-only licenses are now common, but seem like FOSS licenses only to the most casual of readers. We've succeeded in convincing everyone to “check the OSI license list before you buy”. We can therefore easily dismiss licenses like Common Clause merely by stating they are non-free/non-open-source and urging the community to avoid them. But, the next stage of tactics have begun, and they are harder to combat. What happens when for-profit companies promulgate their own hyper-aggressive (quasi-)copyleft licenses that seek to pursue the key policy goal of “selling proprietary licenses” over “defending software freedom”? We're about to find out, because, yesterday, MongoDB declared themselves the arbiter of what “strong copyleft” means.

Understanding MongoDB's Business Model

To understand the policy threat inherent in MongoDB's so-called “Server Side Public License, Version 1”, one must first understand the fundamental business model for MongoDB and companies like them. These companies use copyleft for profit-making rather than freedom-protecting. First, they require full control (either via ©AA or CLA) of all copyrights in the work, and second, they offer two independent lines of licensing. Publicly, they provide the software under the strongest copyleft license available. Privately, the same (or secretly improved) versions of the software are available under fully proprietary terms. In theory, this could be merely selling exceptions: a benign manner of funding more Free Software code — giving the proprietary option only to those who request it. In practice — in all examples that have been even mildly successful (such as MongoDB and MySQL) — this mechanism serves as a warped proprietary licensing shake-down: “Gee, it looks like you're violating the copyleft license. That's a shame. I guess you just need to abandon the copyleft version and buy a proprietary license from us to get yourself out of this jam, since we don't plan to reinstate any lost rights and permissions under the copyleft license.” In other words, this structure grants exclusive and dictatorial power to a for-profit company as the arbiter of copyleft compliance. Indeed, we have never seen any of these companies follow or endorse the Principles of Community-Oriented GPL Enforcement. While it has made me unpopular with some, I still make no apologies that I have since 2004 consistently criticized this “proprietary relicensing” business model as “nefarious”, once I started hearing regular reports that MySQL AB (now Oracle) asserts GPL violations against compliant uses merely to scare users into becoming “customers”. Other companies, including MongoDB, have since emulated this activity.

Why Seek Even Stronger Copyleft?

The GNU Affero General Public License (AGPL) has done a wonderful job defending the software freedom of community-developed projects like Mastodon and Mediagoblin. So, we should answer with skepticism a solitary for-profit company coming forward to claim that “Affero GPL has not resulted in sufficient legal incentives for some of the largest users of infrastructure software … to participate in the community. Many open source developers are struggling with a similar reality”. If the last sentence were on Wikipedia, I'd edit it to add a Citation Needed tag, as I know of no multi-copyright-held or charity-based AGPL'd project that has “struggled with this reality”. In fact, it's only a “reality” for those that engage in proprietary relicensing. Eliot Horowitz, co-founder of MongoDB and promulgator of their new license, neglects to mention that.

The most glaring problem with this license, which Horowitz admits in his OSI license-review list post, is that there was no community drafting process. Instead, a for-profit company, whose primary goal is to use copyleft as a weapon against the software-sharing community for the purpose of converting that “community” into paying customers, published this license as a fait accompli without prior public discussion of the license text.

If this action were an isolated incident by one company, ignoring it is surely the best response. Indeed, I urged everyone to simply ignore the Commons Clause. Now, we see a repackaging of the Commons Clause into a copyleft-like box (with reuse of Commons Clause's text such as “whose value derives, entirely or substantially, from the functionality of the Software”). Since both licenses were drafted in secret, we cannot know if the reuse of text was simply because the same lawyer was employed to write both, or if MongoDB has joined a broader and more significant industry-wide strategy to replace existing FOSS licensing with alternatives that favor businesses over individuals.

The Community Creation Process Matters

Admittedly, the history of copyleft has been one of slowly evolving community-orientation. GPLv1 and GPLv2 were drafted in private, too, by Richard Stallman and FSF's (then) law firm lawyer, Jerry Cohen. However, from the start, the license steward was not Stallman himself, nor the law firm, but the FSF, a 501(c)(3) charity dedicated to serve the public good. As such, the FSF made substantial efforts in the GPLv3 process to reorient the drafting of copyleft licenses as a public policy and legislative process. Like all legislative processes, GPLv3 was not ideal — and I was even personally miffed to be relegated to the oft-ignored “GPLv3 Discussion Committee D” — but the GPLv3 process was undoubtedly a step forward in FOSS community license drafting. Mozilla Corporation made efforts for community collaboration in redrafting the MPL, and specifically included the OSI and the FSF (arbiters of the Open Source Definition and Free Software Definition (respectively)) in MPL's drafting deliberations. The modern acceptable standard is a leap rather than a step forward: a fully public, transparent drafting process with a fully public draft repository, as the copyleft-next project has done. I think we should now meet with utmost suspicion any license that does not use copyleft-next's approach of “running licensing drafting as a Free Software project”.

I was admittedly skeptical of that approach at first. What I have seen six years since Richard Fontana started copyleft-next is that, simply put, the key people who are impacted most fundamentally by a software license are mostly likely to be aware of, and engage in, a process if it is fully public, community-oriented, and uses community tools, like Git.

Like legislation, the policies outlined in copyleft licenses impact the general public, so the general public should be welcomed to the drafting. At Conservancy, we don't draft our own licenses⁰, so our contracts with software developers and agreements with member projects state that the licenses be both “OSI-approved Open Source” and “FSF-approved GPL-compatible Free Software”. However, you can imagine that Conservancy has a serious vested interest in what licenses are ultimately approved by the OSI and the FSF. Indeed, with so much money flowing to software developers bound by those licenses, our very charitable mission could be at stake if OSI and the FSF began approving proprietary licenses as Open, Free, and/or GPL-compatible. I want to therefore see license stewards work, as Mozilla did, to make the vetting process easier, not harder, for these organizations.

A community drafting process allows everyone to vet the license text early and often, to investigate the community and industry impact of the license, and to probe the license drafter's intent through the acceptance and rejection of proposed modified text (ideally through a DVCS). With for-profit actors seeking to gain policy control of fundamental questions such as “what is strong copyleft?”, we must demand full drafting transparency and frank public discourse.

The Challenge Licensing Arbiters Face

OSI, FSF, and Debian have a huge challenge before them. Historically, the FSF was the only organization who sought to push the boundary of strong copyleft. (Full disclosure: I created the Affero clause while working for the FSF in 2002, inspired by Henry Poole's useful and timely demands for a true network services copyleft.) Yet, the Affero clause was itself controversial. Many complained that it changed the fundamental rules of copyleft. While “triggered only on distribution, not modification” was a fundamental rule of the regular GPL, we as a community — over time and much public debate — decided the Affero clause is a legitimate copyleft, and AGPL was declared Open Source by OSI and DFSG-free by Debian.

That debate was obviously framed by the FSF. The FSF, due to public pressure, compromised by leaving the AGPL as an indefinite fork of the GPL (i.e., the FSF did not include the Affero clause in plain GPL. While I personally lobbied (from GPLv3 Discussion Committee D and elsewhere) for the merger of AGPL and GPL during the GPLv3 drafting process, I respect the decision of the FSF, which was informed not by my one voice, but the voices of the entire community.

Furthermore, the FSF is a charity, chartered to serve the public good and the advancement of software freedom for users and developers. MongoDB is a for-profit company, chartered to serve the wallets of its owners. While MongoDB employees¹ (like those of any other company) should be welcomed on equal footing to the other unaffiliated individuals, and representatives of companies, charities, and trade-associations to the debate about the future of copyleft, we should not accept their active framing of that debate. By submitting this license to OSI for approval without any public community discussion, and without any discussion whatsoever with the key charities in the community, is unacceptable. The OSI should now adopt a new requirement for license approval — namely, that licenses without a community-oriented drafting process should be rejected for the meta-reason of “non-transparent drafting”, regardless of their actual text. This will have the added benefit of forcing future license drafters to come to OSI, on their public mailing lists, before the license is finalized. That will save OSI the painstaking work of walking back bad license drafts, which has in recent years consumed much expert time by OSI's volunteers.

Welcoming All To Public Discussion

Earlier this year, Conservancy announced our plans to host and organize the first annual CopyleftConf. We decided to do this because we seek to create a truly neutral, open, friendly, and welcoming forum for discussion about the past and future of copyleft as a strategy for defending software freedom. We had no idea when we first mentioned the possibility of running CopyleftConf (during the Organizers' Panel at the end of the Legal and Policy DevRoom at FOSDEM 2018 in February 2018) that multiple companies would come forward and seek to control the microphone on the future of copyleft. Now that MongoDB has done so, I'm very glad that the conference is already organized and on the calendar before they did so.

Despite my criticisms of MongoDB, I welcome Eliot Horowitz, Heather Meeker (the law firm lawyer who drafted MongoDB's new license and the Commons Clause), or anyone else who was involved in the creation of MongoDB's new license to submit a talk. Conservancy will be announcing soon the independent group of copyleft experts (and critics!) who will make up the Program Committee and will independently evaluate the submissions. Even if a talk is rejected, I welcome rejected proposers to attend and speak about their views in the hallway track and the breakout sessions.

One of the most important principles in copyleft policy that our community has learned is that commercial, non-commercial, and hobbyist activity³ should have equal footing with regard to rights assured by the copyleft licenses themselves. There is no debate about that; we all agree that copyleft codebases become meeting places for hobbyists, companies, charities, and trade associations to work together toward common goals and in harmony and software freedom. With this blog post, I call on everyone to continue on the long road to applying that same principle to the meta-level of how these licenses are drafted and how they are enforced. While we have done some work recently on the latter, not enough has been done on the former. MongoDB's actions today give us an opportunity to begin that work anew.

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⁰ While Conservancy does not draft any main FOSS license texts, Conservancy does help with the drafting of additional permissions upon the request of our member projects. Note that additional permissions (sometimes called license exceptions) grant permission to engage in activities that the main license would otherwise prohibit. As such, by default, additional permissions can only make a copyleft license weaker, never stronger.

¹, ³ I originally had “individual actors” here instead of “hobbyist activity”, and additionally had expressed poorly the idea of welcoming individuals representing all types of entities to the discussion. The miscommunication in my earlier text gave one person the wrong impression that I believe the rights of companies should be equal to the rights of individuals. I fundamentally believe that companies and organizations should not have rights of personhood and I've updated the text in an effort to avoid such confusions.

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Tags: conservancy, GPL, CLA, conferences, law, licensing, Copyleft Conf

CopyLeft Conf's Call for Presentations is Open!

by Deb Nicholson on October 11, 2018

The First Annual Copyleft Conference is ready to receive your proposals for twenty-five minute talks and for eighty minute discussions you would be willing to lead. The conference will be held in Brussels, on February 4th (aka the Monday after FOSDEM.)

Participants from throughout the copyleft world — developers, strategists, enforcement organizations, scholars and critics — will be welcomed for an in-depth, high bandwidth, and expert-level discussion about the day-to-day details of using copyleft licensing, obstacles facing copyleft and the future of copyleft as a strategy to advance and defend software freedom for users and developers around the world.

Since this is the very first Copyleft Conf, we are relying heavily on word-of-mouth to attract speakers and participants so we heartily encourage you to share these announcements with your friends and colleagues. We want to make sure we reach everyone who is interested in learning or sharing their knowledge. Thanks in advance for your help!

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Tags: conservancy, events, licensing, Copyleft Conf

Thoughts on Microsoft Joining OIN's Patent Non-Aggression Pact

by Bradley M. Kuhn on October 10, 2018

Folks lauded today that Microsoft has joined the Open Invention Network (OIN)'s limited patent non-aggression pact, suggesting that perhaps it will bring peace in our time regarding Microsoft's historical patent aggression. While today's announcement is a step forward, we call on Microsoft to make this just the beginning of their efforts to stop their patent aggression efforts against the software freedom community.

The OIN patent non-aggression pact is governed by something called the Linux System Definition. This is the most important component of the OIN non-aggression pact, because it's often surprising what is not included in that Definition especially when compared with Microsoft's patent aggression activities. Most importantly, the non-aggression pact only applies to the upstream versions of software, including Linux itself.

We know that Microsoft has done patent troll shakedowns in the past on Linux products related to the exfat filesystem. While we at Conservancy were successful in getting the code that implements exfat for Linux released under GPL (by Samsung), that code has not been upstreamed into Linux. So, Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact.

We now ask Microsoft, as a sign of good faith and to confirm its intention to end all patent aggression against Linux and its users, to now submit to upstream the exfat code themselves under GPLv2-or-later. This would provide two important protections to Linux users regarding exfat: (a) it would include any patents that read on exfat as part of OIN's non-aggression pact while Microsoft participates in OIN, and (b) it would provide the various benefits that GPLv2-or-later provides regarding patents, including an implied patent license and those protections provided by GPLv2§7 (and possibly other GPL protections and assurances as well)

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Tags: conservancy, patent, licensing