SFLC Files Bizarre Legal Action Against Its Former Client, Software Freedom Conservancy
byon November 3, 2017
About a month ago, the Software Freedom Law Center (SFLC), the not-for-profit law firm which launched Conservancy in 2006 and served as Conservancy's law firm until July 2011, took the bizarre and frivolous step of filing a legal action in the United States Patent and Trademark Office seeking cancellation of Conservancy's trademark for our name, “Software Freedom Conservancy”. We were surprised by this spurious action. In our eleven years of coexistence, SFLC has raised no concerns nor complaints about our name, nor ever asked us to change it. We filed our formal answer to SFLC's action yesterday. In the interest of transparency for our thousands of volunteers, donors, Supporters, and friends, we at Conservancy today decided to talk publicly about the matter.
SFLC's action to cancel our trademark initiated a process nearly identical to litigation. As such, our legal counsel has asked us to limit what we say about the matter. However, we pride ourselves on our commitment to transparency. In those rare instances when we initiated or funded legal action — to defend the public interest through GPL enforcement — we have been as candid as possible about the circumstances. We always explain the extent to which we exhausted other possible solutions, and why we chose litigation as the last resort.
Currently, this trademark action is in its early stages. SFLC filed a petition on September 22. Yesterday, we provided an answer that lists defenses that we plan to use. However, we welcome press inquiries and interviews on the subject and will do our best to respond and engage in public discussion when possible.
We are surprised and sad that our former attorneys, who kindly helped our organization start in our earliest days and later excitedly endorsed us when we moved from a volunteer organization to a staffed one, would seek to invalidate our trademark. Conservancy and SFLC are very different organizations and sometimes publicly disagree about detailed policy issues. Yet, both non-profits are charities organized to promote the public's interest. Thus, we are especially disappointed that SFLC would waste the precious resources of both organizations in this frivolous action.
Meanwhile, there is now widespread agreement in the FLOSS community, embodied both in the FSF's and Conservancy's Principles of Community-Oriented GPL Enforcement and the Linux Kernel Enforcement Statement, that FLOSS community members view “legal action as a last resort, to be initiated only when other community efforts have failed to resolve the problem.” We at Conservancy have always adhered to this fundamental principle, not only in GPL enforcement, but in all endeavors. In stark contrast, SFLC made no efforts — over the last eleven years since Conservancy was formed, nor in the last five years since we registered our name as a trademark — to express any concerns about our name, or a desire for us to change our name. We first learned of SFLC's complaints from this surprise attack of legal action.
SFLC's actions indicate that while they have provided legal services to some members of our FLOSS community, they do not view themselves as members of our FLOSS community, nor consider themselves bound by our community's norms. We are prepared to defend our brand, not just for ourselves but for our many member projects who have their home at Conservancy, our Outreachy diversity initiative, and our collective efforts to promote FLOSS. Nevertheless, we hope SFLC will see the error of their ways and withdraw the action, so that both organizations can refocus resources on serving the public.
Join me at Free Society Conference and Nordic Summit!
byon November 2, 2017
I'm delighted to be en route to Oslo, Norway as I write this post. I'll be speaking this weekend at FSCONS, the Free Society Conference and Nordic Summit. FSCONS is admittedly a small event, but has a theme that is absolutely intriguing and incredibly important to the future of software freedom. As can be read on the FSCONS website, the conference looks at the intersection of society, culture and technology. They invite speakers from throughout the Open Source and Free Software world as well as Free Culture and privacy and other technology activists.
I'll be giving a talk entitled The Crumbling Intellectual Infrastructure of Free Software & Free Culture Licensing. My talk will explore the history of Free Software and Free Culture licensing, how it relates to rise of for-profit popularity of Open Source, and the larger political and societal implications of where we are now. Admittedly the title sounds bleak, and I'm certainly known for my pessimistic talks about the future of software freedom, but I'll also include suggestions and ideas for activists to work to solve the problems our community now faces.
I want to thank in advance the great work of the organizers of FSCONS. Not only are they funding travel for speakers, but they've sent numerous clear and understandable emails about the weekend's events. It's made my planning smooth and easy.
I really encourage you to join us in Oslo this weekend; tickets are still available, and I did a quick check and round-trip flights from major cities in Europe this weekend to Oslo are around €200. I think it's well worth the trip! See you there!
How Additional Permissions (aka Exceptions) Impact a Project's License
byon October 20, 2017
When first learning about FLOSS (Free, Libre and Open Source) licenses,
most of us learned them by their specific names, and generally when someone
What license is your project under?, the answer is a short
GPLv3-or-later. However, since the
earliest advent of FLOSS licenses, the concept of “additional
permissions ” — or, the older term for it:
“exceptions” — have been an essential part of the
licensing infrastructure of our community.
The first additional permission for a copyleft license dates back to the Bison license. Since the 1980s, the GNU project gave an exception to the GPL for Bison to assure that typical uses of Bison — which copy some of Bison's own source code into the program's output — did not cause the GPL to apply to that output. This exception was simple, straightforward, and necessary. Users of parser generators would be surprised to learn that using Bison to generate their parser would cause their work to be governed by copyleft. Additional permissions are a scalpel-like tool for authors of copylefted software that carefully craft project policy to best fit their community. Indeed, these exceptions became such an important component of GPLv2 licensing that GPLv3 formalized the concept in the actual license text, defining the term “additional permission ” in GPLv3 itself.
This name better described the purpose of these clauses. Historically, the FSF called them “exceptions”. Throughout the 1990s and early 2000s, software authors deployed these solutions in creative ways, and it became clear that the phrase “license exception” was a poor descriptor (particularly given that “taking exception” is often considered a bad thing)! Slowly, the term “additional permission” became preferred.
Additional permissions are now quite prevalent. Some pursue esoteric policy goals, but most are simply stated and achieve a narrow goal. While additional permissions often make it impossible to name a project's license as simply “GPLv2-only”, the intended policy is usually clear by quickly reading the additional permission(s).
By way of example, despite our common shorthand of saying that Linux's
license is GPLv2-only, the details are more complicated. Linux's license has a
additional permission regarding syscalls. Specifically, this
additional permission states that the copyleft terms
do not cover user
programs that use kernel services by normal system calls. This means
that even though GPLv2 is a strong copyleft and seeks to apply to any
derivative and/or combined work with Linux under copyright, downstream may
license parts of combined works that
use kernel services by normal
system calls under terms other than GPLv2. While some contributors'
code in Linux is licenses without this additional permission (such as plain
GPLv2-only), most Linux contributors license their copyrights under
“GPLv2 with the syscall exception”.
This week, the Linux community began a process to add another additional permission to Linux's license. As with the syscall exception (and any other additional permission), copyright holders must opt-in to grant this additional permission (and a long list of copyright holders have already done so for the new Statement). Conservancy has lauded this effort, since this additional permission allows violators (in some cases) to officially receive permission from those copyright holders to operate under the GPLv3 termination provisions. Copyright holders who participate in Conservancy's GPL Compliance Project for Linux Developers have long followed this, anyway (first informally, and then more formally in adherence to our Principles of Community-Oriented GPL Enforcement). The Linux Kernel Enforcement Statement formalizes this practice as an opt-in additional permission for Linux's license.
Fortunately, copyleft-based additional permissions (aka license
exceptions) aggregate reasonably well. Specifically, additional
permissions are fully compatible with the main copyleft license. At their
option, downstream can usually remove the additional permission and
distribute under the main license. Sometimes, licensing experts will talk
effective license of a work. In practice this means:
given a codebase that combines copyrighted material under many different
licenses, and possibly many different additional permissions and
exceptions, what's the lowest common denominator licensing requirement
that, if met, will satisfy all the licensing requirements of all of the
relevant licenses? With most copylefted works, this often does simplify to those easier
This begs the question: what's the effective license of Linux? Well, more than likely, it's simply GPLv2-only. The reason is this: all the copyrighted code that comprises Linux is (at least) licensed under GPLv2-only. A overwhelming majority is under “GPLv2 with the syscall exception”, and (with this week's announcement) an ever-growing swath will be licensed under “GPLv2 with the syscall exception and with the Linux Kernel Statement additional permission”. Not every copyright holder whose code is in Linux will grant either exception. Thus, the abbreviation to GPLv2-only, as a moniker for Linux's effective license, remains accurate.
Additional permissions are handy tools when building a community around a codebase, particularly when some community members have reservations about some aspect of the standard copyleft license. Copyright holders can grant an additional permission — even one that isn't strictly necessary — to quell concerns and clarify the licensing infrastructure.
Finally, all this begs one more question: Why aren't additional
permissions to copyleft licensing (particularly after they were formalized
in detail as part of GPLv3 itself) more widely utilized? My anecdotal
theory is that licensing remains a difficult area of comprehension for
FLOSS contributors and adopters. Like everyone whose primary expertise
lies elsewhere, licensing novices prefer simple buckets that are easily
understood; difficult concepts often dive deeper than necessary for typical
daily work. While licensing geeks like me enjoy pondering and exploring
the flexibility provided by additional permissions, many developers prefer
a simple moniker to describe a project's license. As such, you'll even
hear licensing experts oversimplify to describe a project's license. As
one of my undergraduate Computer Science professors said to me,
professors will oversimplify until you're graduate students, because we've
yet to figure out the topological sort necessary to tell you the whole
story in proper order such that we avoid these oversimplications that make
Donor Spotlight: Mark Wielaard
byon October 2, 2017
Conservancy depends on our Supporters and Donors. We rely on their financial support, of course, but they are also valued ambassadors who spread the word about Conservancy and the work we do. We continue our series featuring the companies and individuals who support Conservancy. If you're a Supporter of Conservancy and would like to be featured here please let us know!
This time, we're interviewing Mark Wielaard. Mark is a long-time free software developer. He was very involved in the libre java community in the early 2000's, spending many years as the maintainer of GNU Classpath , GNU's implementation the standard library for the java programming language. It took a long time, but he is happy that these days the Java Trap has been mostly dismantled. He still helps with the infrastructure for the IcedTea project, a free software community and collection of tools around core libre java compilers, runtimes and libraries. But his current work is mainly focused on analyzing and debugging natively compiled code. He contributes to Valgrind and elfutils to help make that possible.
Why do you support Conservancy?
Software Freedom Conservancy provides free software projects with a home. I like that, and I think it's important. GNU Classpath had a home in GNU, and a community, and as the maintainer that made me really happy. It meant that we could concentrate on what we loved to do, hacking code together. But with the knowledge that we had a fallback if we needed to deal with anything that couldn't be solved by just adding a bit more code. A place for all the administration that doesn't just fit in the code repository. I hope it makes other free software developers happy too, to have a place for their projects they can call home.
What makes Conservancy a good home for free software projects?
I trust Conservancy to support communities in a way that respects both the developers and software freedom. Free software is a good basis for people to collaborate. The services that Conservancy provides allow communities to concentrate on improving software together. Freeing project leaders from the stress that is involved when being personally responsible for all the non-coding activities. Individuals (and companies) can then join on equal terms, making sure the project and community will work together for the public benefit (and just having fun together hacking on code).
Why do you trust Conservancy to do that work?
Conservancy consists of people with experience, who care. I know Bradley Kuhn because he was the Executive Director of the Free Software Foundation when I worked on GNU Classpath. Having someone who takes care of all the administrative paperwork, someone you could forward tricky legal questions to, had a big impact. It meant we could all just concentrate on coding together. And everyone involved with Conservancy, staff and directors have years of experience with various Free Software projects and foundations. They really know what communities need to keep focussed on doing the thing developers love most, hacking on code.
Conservancy is unique in that it allows projects to define their own terms and conditions for how the community works together. Projects aren't forced to adopt a particular license, governance structure or tools and they aren't controlled by corporate sponsors. And another unique feature of the Conservancy is that they prepare from the start for projects to leave again. If a projects outgrows its home at the Conservancy it has the freedom to leave and setup their home somewhere else.