The VMware Hearing and the Long Road Ahead
byon February 29, 2016
On last Thursday, Christoph Hellwig and his legal counsel attended a hearing in Hellwig's VMware case that Conservancy currently funds. Harald Welte, world famous for his GPL enforcement work in the early 2000s, also attended as an observer and wrote an excellent summary. I'd like to highlight a few parts of his summary, in the context of Conservancy's past litigation experience regarding the GPL.
First of all, in great contrast to the cases here in the USA, the Court acknowledged fully the level of public interest and importance of the case. Judges who have presided over Conservancy's GPL enforcement cases USA federal court take all matters before them quite seriously. However, in our hearings, the federal judges preferred to ignore entirely the public policy implications regarding copyleft; they focused only on the copyright infringement and claims related to it. Usually, appeals courts in the USA are the first to broadly consider larger policy questions. There are definitely some advantages to the first Court showing interest in the public policy concerns.
However, beyond this initial point, I was struck that Harald's summary sounded so much like the many hearings I attended in the late 2000's and early 2010's regarding Conservancy's BusyBox cases. From his description, it sounds to me like judges around the world aren't all that different: they like to ask leading questions and speculate from the bench. It's their job to dig deep into an issue, separate away irrelevancies, and assure that the stark truth of the matter presents itself before the Court for consideration. In an adversarial process like this one, that means impartially asking both sides plenty of tough questions.
That process can be a rollercoaster for anyone who feels, as we do, that the Court will rule on the specific legal issues around which we have built our community. We should of course not fear the hard questions of judges; it's their job to ask us the hard questions, and it's our job to answer them as best we can. So often, here in the USA, we've listened to Supreme Court arguments (for which the audio is released publicly), and every pundit has speculated incorrectly about how the justices would rule based on their questions. Sometimes, a judge asks a clarification question regarding a matter they already understand to support a specific opinion and help their colleagues on the bench see the same issue. Other times, judges asks a questions for the usual reasons: because the judges themselves are truly confused and unsure. Sometimes, particularly in our past BusyBox cases, I've seen the judge ask the opposing counsel a question to expose some bit of bluster that counsel sought to pass off as settled law. You never know really why a judge asked a specific question until you see the ruling. At this point in the VMware case, nothing has been decided; this is just the next step forward in a long process. We enforced here in the USA for almost five years, we've been in litigation in Germany for about one year, and the earliest the Germany case can possibly resolve is this May.
Kierkegaard wrote that
it is perfectly true, as the philosophers say,
that life must be understood backwards. But they forget the other
proposition, that it must be lived forwards. Court cases are a prime
example of this phenomenon. We know it is gut-wrenching for our
Supporters to watch every twist and turn in the case. It has taken so
long for us to reach the point where the question of a combined work of
software under the GPL is before a Court; now that it is we all want this
part to finish quickly. We remain very grateful to all our Supporters
who stick with us, and the new ones who will join
funding makes it possible for Conservancy to pursue this and other
matters to ensure strong copyleft for our future, and handle every other
detail that our member projects need. The one certainty is that our best
chance of success is working hard for plenty of hours, and we appreciate
that all of you continue to donate so that the hard work can continue.
We also thank the Linux developers in Germany, like Harald, who are
supporting us locally and able to attend in person and report back.
GPL Violations Related to Combining ZFS and Linux
byon February 25, 2016
This post discusses an atypical GPL violation. Unlike most GPL violations Conservancy faces, in this case, a third-party entity holds a magic wand that can instantly resolve the situation. Oracle is the primary copyright holder of ZFS, and, despite nearly eight years (going back to the days of Sun's control of the code) of the anti-license-proliferation community's urging, Oracle continues to license their code under their own, GPL-incompatible license. While this violation has many facets, and Oracle did not themselves violate GPL in this specific case, they hold the keys to this particular kingdom and they forbid the Linux community to enter. While there are complexities that we must address, in this context, Oracle could make everyone's life easier by waving their magic relicensing wand. Nevertheless, until they do, since GPL-incompatible licenses are the root of all GPL violations, combinations of GPL'd code with Oracle's GPL-incompatible code yield GPL violations, such as the ongoing violation by Canonical, Ltd.
The Basic Facts
Sun released the Z File System (ZFS) code under the Common Development and Distribution License, version 1 (CDDLv1) as part of OpenSolaris. Sun was ultimately acquired by Oracle. Community members, mostly acting non-commercially, have improved ZFS and adapted it to function with Linux, but unfortunately, CDDLv1 is incompatible with GPLv2, so distribution of binaries is not permitted (see below for details). Many community members have been frustrated for years that Oracle didn't simply relicense the code under a GPLv2-compatible license.
The situation escalated last week because Canonical, Ltd. announced their plans to commercially distribute, in Ubuntu 16.04, a binary distribution of ZFS as a Linux kernel module, which adapts ZFS natively for Linux. Conservancy contacted Canonical to inform them of their GPL violation, and Canonical encouraged us to speak publicly. We're glad to do so to clarify the differing views on this issue. As you'll read below, Conservancy disagrees with Canonical's decision, and Conservancy hopes to continue dialogue with Canonical regarding their violation. We do not give up on friendly resolution of a GPL violation easily and are glad Canonical seeks to transparently discuss both sides of this issue in public.
Summary of our Conclusion
We are sympathetic to Canonical's frustration in this desire to easily support more features for their users. However, as set out below, we have concluded that their distribution of zfs.ko violates the GPL. We have written this statement to answer, from the point of view of many key Linux copyright holders, the community questions that we've seen on this matter.
Specifically, we provide our detailed analysis of the incompatibility between CDDLv1 and GPLv2 — and its potential impact on the trajectory of free software development — below. However, our conclusion is simple: Conservancy and the Linux copyright holders in the GPL Compliance Project for Linux Developers believe that distribution of ZFS binaries is a GPL violation and infringes Linux's copyright. We are also concerned that it may infringe Oracle's copyrights in ZFS. As such, we again ask Oracle to respect community norms against license proliferation and simply relicense its copyrights in ZFS under a GPLv2-compatible license.
The license of Linux, the GNU General Public License, version 2 (GPLv2), is conceptually known as a strong copyleft license. A strong copyleft license extends software freedom policies as far as copyright law allows. As such, GPLv2 requires that, when combinations and/or derivatives are made under copyright law with GPLv2'd works, the license of the resulting combination and/or derivative is also GPLv2.
The Free Software Foundation (FSF) has long discussed the question of licenses incompatible with the GPL, pointing out that:
In order to combine two programs (or substantial parts of them) into a larger work, you need to have permission to use both programs in this way. If the two programs' licenses permit this, they are compatible. If there is no way to satisfy both licenses at once, they are incompatible.
License compatibility is not merely a question for Free Software licenses. We can analyze any two copyright licenses and consider whether they are compatible.
In the proprietary software world, rarely are two licenses ever compatible. You can't, by default, license a copy of Oracle's database, and then make a combination with Apple's iOS. To do so, you would need to negotiate (and pay for) a special license from both Apple and Oracle to make that combination.
Furthermore, with proprietary software, there is a practical problem somewhat unrelated to the legal permission: you must procure (again, likely for a rather expensive fee) a copy of the source code for Apple's and Oracle's proprietary software to have the practical ability to make the combination.
Since the GPL, and all copyleft licenses, are fundamentally copyright licenses, the analysis is similar. However, GPL requires that all software distributions include complete corresponding source code to any binaries, so the practical problem never presents itself. Nevertheless, when you wish to combine GPL'd software with some other software and distribute the resulting combination, both the copyright holders of the GPL'd software and the copyright holders of the other software must provide a license that allows distribution of the combination.
Most prefer to discuss the issue of combining truly proprietary, no-source-available copyrighted material with GPL'd software, as it creates the most stark practical contrast, and is the most offensive fact pattern. Proprietary software gives the users no freedom to even examine, let alone modify, rebuild, and reinstall the software. The proprietary license doesn't allow nor even give the practical ability to redistribute source code, and the GPL mandates source distribution when binary distribution occurs. The incompatibility is intuitively obvious. Few consider the fact that proprietary software licensing is just one (rather egregious) example of a GPL-incompatible license.
In that context, we can imagine licenses that are GPL-incompatible, but do give some interesting permissions to users. An example is source-code-available systems that prohibit commercial distribution and forbid modification to the source code. The GPL has terms that permit modification and allow commercial distribution of GPL'd software, and as such, even though source code is available for non-commercial, non-modifiable software, the license is nonetheless GPL-incompatible.
Finally, we can consider the most subtle class of GPL-incompatibility, in which we find ZFS's license, the Common Development and Distribution License, version 1 (CDDLv1). The CDDLv1 is considered both a Free Software and an Open Source license, and is a weak copyleft license. Nevertheless, neither CDDLv1 nor GPLv2 permits combination of copyrighted material under the other license.
To understand this non-intuitive incompatibility, we can analyze in detail the requirements of both licenses. First, GPLv2 requires:
[§2](b) You must cause any work that you distribute … that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole … under the terms of this License.…
[§]3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also…
a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above…
[§]6. …You may not impose any further restrictions on the recipients' exercise of the rights granted herein.
According to these provisions of GPLv2, if you create a binary work that incorporates components from the GPLv2'd program, you must provide the complete corresponding source for that entire work with the binary, and the terms of the GPLv2 apply to that source. If the sources as a whole cannot be outbound-licensed under GPLv2, you have no permission under copyright law to distribute the binary work, since GPLv2 didn't grant you that permission.
GPLv2-compatible licenses do not contradict the requirements of GPLv2, which is what makes them compatible. For example, highly permissive licenses like the ISC license allow imposition of additional licensing requirements (even proprietary ones), and so combining ISC-licensed source and GPLv2'd source into a binary work is permitted; compliance with GPLv2 is possible when distributing binaries based on the combined sources.
CDDLv1, however, contains various provisions that are incompatible with that outcome. Specifically, CDDLv1 requires (emphasis ours):
[§]3.1 … Any Covered Software that You distribute or otherwise make available in Executable form must also be made available in Source Code form and that Source Code form must be distributed only under the terms of this License. …
[§] 3.4 … You may not offer or impose any terms on any Covered Software in Source Code form that alters or restricts the applicable version of this License
CDDLv1 is a weak copyleft license in that it allows you create a binary work with components under different terms (see CDDLv1§3.6). However, as seen in the text above, with regard to the specific copyrighted material already under CDDLv1, that material must remain only licensed under the terms of the CDDLv1. Furthermore, when redistributing the source code, you cannot alter the terms of the license on that copyrighted material.
GPLv2, as shown above, requires that you alter those terms for the source
code — namely, as a strong copyleft, the terms of GPLv2 apply to the
entire complete corresponding source for any binary work. Furthermore,
downstream users need permission to make GPLv2'd modifications to that
source. This creates a contradiction; you cannot simultaneously satisfy
that obligation of GPLv2 and also avoid
alter[ing] the terms of
CDDLv1-licensed source. Thus, the licenses are incompatible, and
redistributing a binary work incorporating CDDLv1'd and GPLv2'd copyrighted
portions constitutes copyright infringement in both directions. (In
addition to this big incompatibility, there are also other smaller
incompatibilities throughout CDDLv1.)
We believe Sun was aware when drafting CDDLv1 of the incompatibilities; in fact, our research into its history indicates the GPLv2-incompatibility was Sun's design choice. At the time, Sun's apparent goal was to draw developers away from GNU and Linux development into Solaris. Not only did Sun not want code from GNU and Linux in Solaris, more importantly, Sun did not want technological advantages from Solaris' kernel to appear in Linux.
Much has changed in the seven and a half years since CDDLv1's publication and promulgation. OpenSolaris has been discontinued; CDDLv1 codebases never became an active area of Free Software development like GNU and Linux. Oracle could now easily indicate that combination of ZFS with Linux into binary works is permitted, (e.g., as the overwhelming majority copyright holder0, Oracle could make a decree like the one University of California did to fix a similar incompatibility). Until Oracle takes an action like that, it remains a license violation of both CDDLv1 and GPLv2 to distribute binary works that combine together and/or derive from both GPLv2 and CDDLv1 sources.
What Constitutes a Combined/Derivative Work?
Once license incompatibility is established, the remaining question is solely whether or not combining ZFS with Linux creates a combined and/or derivative work under copyright law (which then would, in turn, trigger the GPLv2 obligations on the ZFS code).
Conservancy has helped put similar questions (still pending) before a Court, in Hellwig's VMware case that Conservancy currently funds. In fact, the same questions come up with all sorts of GPL-incompatible Linux modules and reuses of Linux code.
Courts have not spoken specifically on this question; precedents that exist are not perfectly on-topic. Citing an opinion of a lawyer is often not helpful in this context, because lawyers advise clients, and argue zealously for their clients' views. When Courts are unclear on a matter, it generates disputes, and only Courts (or possibly new legislation) can ultimately resolve those disputes.
Nevertheless, our lawyers have analyzed these situations with the assistance of our license compliance and software forensics staff for many years, and we have yet to encounter a Linux module that — when distributed in binary form — did not, in our view, yield combined work with Linux. The FSF, stewards of the GPL, have stated many times over the past decades that they believe there is no legal distinction between dynamic and static linking of a C program and we agree. Accordingly, the analysis is quite obvious to us1: if ZFS were statically linked with Linux and shipped as a single work, few would argue it was not a “work based on the Program” under GPLv2. And, if we believe there is no legal difference when we change that linking from static to dynamic, we conclude easily that binary distribution of ZFS plus Linux — even with ZFS in a .ko file — constitutes distribution of a combined work, which we name Linux+ZFS.
Canonical has found some lawyers who disagree — a minority position, from our understanding of community norms. But Canonical's public position on the matter contributes to license uncertainty, and opponents of Free Software may use this as an opportunity to marginalize copyleft enforcement generally. Canonical can resolve the situation by ceasing the infringing distribution, but Oracle can also unilaterally resolve this trivially with a simple relicense of ZFS to a GPL-compatible license.
Thus, all parties currently stand at an impasse. Conservancy (as a Linux copyright holder ourselves), along with the members of our coalition in the GPL Compliance Project for Linux Developers, all agree that Canonical and others infringe Linux copyrights when they distribute zfs.ko. Canonical's lawyers disagree. Oracle refuses to relicense their ZFS copyrights under a GPL-compatible license.
Ultimately, various Courts in the world will have to rule on the more general question of Linux combinations. Conservancy is committed to working towards achieving clarity on these questions in the long term. That work began in earnest last year with the VMware lawsuit, and our work in this area will continue indefinitely, as resources permit. We must do so, because, too often, companies are complacent about compliance. While we and other community-driven organizations have historically avoided lawsuits at any cost in the past, the absence of litigation on these questions caused many companies to treat the GPL as a weaker copyleft than it actually is.
Why Conservancy Does Not Use Litigation Immediately
As discussed in our principles, Conservancy, while willing to litigate, uses litigation only as a last resort. Compliance actions are primarily education and assistance processes to aid those who are not following the license. We completely exhaust every other diplomatic option for compliance before seeking resolution from the Courts.
“Almost There” is More Painful Than Proprietary
Conservancy and our GPL Compliance Project for Linux Developers are quite sympathetic to the feeling of “almost there” that exists with ZFS for Linux. CDDL is a Free Software license, but sadly a GPL-incompatible one. Like a partial fix for a problematic bug, a GPL-incompatible Free Software license feels like a solution that's “oh-so-close”. Everyone wants to try to tweak that incomplete solution into a full one. We hope this explanation helps bring clarity that the seemingly “almost there” of combining CDDL'd and GPL'd code is a mirage. The community must seek together a better solution.
Oracle holds the better solution in their hands; like waving a magic wand, they can take any of a myriad of actions to communicate permission to relicense ZFS under GPL. Conservancy encourages Free Software enthusiasts and for-profit companies alike to lobby Oracle to relicense their ZFS copyrights. While this change by Oracle cannot resolve Canonical's violation, Oracle's relicensing would create a path for Canonical that might ultimately yield a compliant binary distribution of Linux+ZFS. As such, we've asked Canonical to commit to lobbying Oracle for this change.
Is The Analysis Different With Source-Only Distribution?
We cannot close discussion without considering one final unique aspect to this situation. CDDLv1 does allow for free redistribution of ZFS source code. We can also therefore consider the requirements when distributing Linux and ZFS in source code form only.
Pure distribution of source with no binaries is undeniably different. When distributing source code and no binaries, requirements in those sections of GPLv2 and CDDLv1 that cover modification and/or binary (or “Executable”, as CDDLv1 calls it) distribution do not activate. Therefore, the analysis is simpler, and we find no specific clause in either license that prohibits source-only redistribution of Linux and ZFS, even on the same distribution media.
Nevertheless, there may be arguments for contributory and/or indirect copyright infringement in many jurisdictions. We present no specific analysis ourselves on the efficacy of a contributory infringement claim regarding source-only distributions of ZFS and Linux. However, in our GPL litigation experience, we have noticed that judges are savvy at sniffing out attempts to circumvent legal requirements, and they are skeptical about attempts to exploit loopholes. Furthermore, we cannot predict Oracle's view — given its past willingness to enforce copyleft licenses, and Oracle's recent attempts to adjudicate the limits of copyright in Court. Downstream users should consider carefully before engaging in even source-only distribution.
decision to place source-only ZFS in a relegated area of their archive
contrib, is an innovative solution. Debian
fortunately had a long-standing policy that
specifically designed for source code that, while licensed under an
Free Software Guidelines, also has a default use that can cause
licensing problems for downstream Debian users. Therefore, Debian
communicates clearly to their users that this code is problematic by
keeping it out of their
main archive. Furthermore, Debian
does not distribute any binary form of zfs.ko.
(Full disclosure: Conservancy has a services agreement with Debian in which Conservancy occasionally gives its opinions, in a non-legal capacity, to Debian on topics of Free Software licensing, and gave Debian advice on this matter under that agreement. Conservancy is not Debian's legal counsel.)
Do Not Rely On This Document As Legal Advice
You cannot and should not rely on this document as legal advice. Our lawyers, in conjunction with our GPL compliance and software forensics experts, have analyzed the Linux+ZFS that Canonical includes in their Ubuntu 16.04 prereleases. Conservancy has determined, with the advice of both inside and outside law firm legal counsel, that the binary distribution constitutes a derivative and/or combined work of ZFS and Linux together, and therefore violates the GPL, as explained above. We also know from Canonical's blog post that they have found other lawyers to give them contradictory advice. Such situations are common on groundbreaking legal issues, and, after all, copyleft is perhaps the most novel legal construction for copyright in its history. Lawyers and their clients who oppose copyleft will attempt to limit copyleft's scope (with litigation, FUD, and moxie), and those of us who use copyleft as a tool for software freedom will diametrically seek to uphold its scope to achieve the license drafter's and licensors' intended broad impact for software freedom.
Indeed, Conservancy believes this situation is one battle in a larger proxy war by those who seek to limit the scope of strong copyleft generally. Yet, the GPL not only benefits charitable community organizations like Conservancy, but also for-profit companies, since GPL ensures your competitors cannot circumvent the license and gain an unfair advantage. We therefore urge charities, trade associations and companies who care about Linux to stand with us in opposition of GPL violations like this one.
0 More work might be required to relicense all modern ZFS code, since others have contributed, but we expect that those contributors would gladly relicense in the same manner if Oracle does first.
1 More discussion on these issues can be found in this section of Copyleft and the GNU General Public License: A Comprehensive Tutorial and Guide, which is part of copyleft.org, a project co-sponsored by the FSF and Software Freedom Conservancy.
Bart Massey on Why You Should Be a Conservancy Supporter
byon January 28, 2016
In this video, Bart Massey talks about why he is a passionate supporter of Conservancy. Bart discusses why he thinks Conservancy is relevant for the next 20 years of software freedom, tells you about his favorite Conservancy project and strongly encourages you to become a Conservancy Supporter.
(Also available on YouTube.)
Key Charities That Advance Software Freedom Are Worthy of Your Urgent Support
byon January 25, 2016
I've had the pleasure and the privilege, for the last 20 years, to be either a volunteer or employee of the two most important organizations for the advance of software freedom and users' rights to copy, share, modify and redistribute software. In 1996, I began volunteering for the Free Software Foundation (FSF) and worked as its Executive Director from 2001–2005. I continued as a volunteer for the FSF since then, and now serve as a volunteer on FSF's Board of Directors. I was also one of the first volunteers for Software Freedom Conservancy when we founded it in 2006, and I was the primary person doing the work of the organization as a volunteer from 2006–2010. I've enjoyed having a day job as a Conservancy employee since 2011.
These two organizations have been the center of my life's work. Between them, I typically spend 50–80 hours every single week doing a mix of paid and volunteer work. Both my hobby and my career are advancing software freedom.
I choose to give my time and work to these organizations because they provide the infrastructure that make my work possible. The Free Software community has shown that the work of many individuals, who care deeply about a cause but cooperate together toward a common goal, has an impact greater than any individuals can ever have working separately. The same is often true for cooperating organizations: charities, like Conservancy and the FSF, that work together with each other amplify their impact beyond the expected.
Both Conservancy and the FSF pursue specific and differing approaches and methods to the advancement of software freedom. The FSF is an advocacy organization that raises awareness about key issues that impact the future of users' freedoms and rights, and finds volunteers and pays staff to advocate about these issues. Conservancy is a fiscal sponsor, which means one of our key activities is operational work, meeting the logistical and organizational needs of volunteers so they can focus on the production of great Free Software and Free Documentation. Meanwhile, both Conservancy and FSF dedicated themselves to sponsoring software projects: the FSF through the GNU project, and Conservancy through its member projects. And, most importantly, both charities stand up for the rights of users by enforcing and defending copyleft licenses such as the GNU GPL.
Conservancy and the FSF show in concrete terms that two charities can work together to increase their impact. Last year, our organizations collaborated on many projects, such as the proposed FCC rule changes for wireless devices, jointly handled a GPL enforcement action against Canonical, Ltd., published the principles of community-oriented GPL enforcement, and continued our collaboration on copyleft.org. We're already discussing lots of ways that the two organizations can work together in 2016!
I'm proud to give so much of my time and energy to both these excellent organizations. But, I also give my money as well: I was the first person in history to become an Associate Member of the FSF (back in November 2002), and have gladly paid my monthly dues since then. Today, I also signed up as an annual Supporter of Conservancy, because I'm want to ensure that Conservancy's meets its current pledge match — the next 215 Supporters who sign up before January 31st will double their donation via the match.
For just US$20 each month, you make sure the excellent work of both these organizations can continue. This is quite a deal: if you are employed, University-educated professional living in the industrialized world, US$20 is probably the same amount you'd easily spend on a meals at restaurants or other luxuries. Isn't it even a better luxury to know that these two organizations can have employ a years' worth of effort of standing up for your software freedom in 2016? You can make the real difference by making your charitable contribution to these two organizations today:
Please don't wait: both fundraising deadlines are just six days away!