How the TC Heartland decision helps free and open source software

by Tony Sebro on May 23, 2017

Yesterday, the United States Supreme Court published a decision that is likely to make it harder for patent holders to use frivolous infringement lawsuits to extort settlement fees. In the TC Heartland LLC v. Kraft Foods Group Brands LLC case, the Court ruled that patent holders can only file suit in the jurisdiction where the alleged infringer is incorporated. Prior to TC Heartland, US patent holders had more flexibility to file suit in multiple jurisdictions, and as a result would often select seemingly unrelated jurisdictions for strategic reasons.

The Eastern District Court in Texas is, by far, the most popular venue in the United States for patent holders to file suit, due to its reputation for plaintiff-friendly judges and aggressively brisk (and, therefore, cheaper) litigation schedules. The United States federal court system has ninety four district courts, yet over a third of all patent litigations filed in the United States in the first quarter of 2017 were filed in the Eastern District. And, traditionally, the overwhelming majority of such cases filed in the Eastern District have been brought by non-practicing entities ("NPEs"; unaffectionately known as "patent trolls") — patent holders who enforce patents without being engaged in the business of selling the inventions disclosed in the patents. The media has covered the remarkable growth of a cottage industry centered around patent litigation in Marshall, Texas, the small town where the Eastern District is located. Many NPEs have built their business models around the economies of scale and efficiencies of pushing frivolous suits through this single venue. Hopefully, the fresh burden of having to file suit on a defendant's "home turf" will reduce the volume of nuisance patent litigation — and disrupt the business models that fund it.

As a public charity, Conservancy is not a traditional target for NPEs: we don't generate the kind of product-related revenue streams that NPEs typically hold for ransom in exchange for quick settlement payments. That said, we acknowledge that the threat of NPE litigation casts a shadow on the entire technology sector, including on free and open source communities. We believe that community-vetted free and open source licenses are sufficient to create a pool of explicit and/or implied patent licenses between contributors and users. But, that hasn't stopped many a nervous in-house counsel from using layers of extraneous paperwork to reduce the patent exposure they think participating in a free and open source software project may create. We hope that the TC Heartland decision sends a signal to would-be NPEs that the US judiciary will no longer be as complicit in facilitating nuisance patent litigation. We also hope that software developers and users of all types are encouraged by the decision, and are less likely to allow fear, uncertainty, and doubt around NPE patent exposure chill their participation in free and open source software communities.

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Tags: patent, law

FSF's Stallman Applauds Conservancy's Linux Enforcement

by Bradley M. Kuhn and Karen M. Sandler on May 11, 2017

In a blog post today, Richard M. Stallman of the Free Software Foundation applauds our work at Conservancy enforcing the GPL for Linux.

In his statement, Stallman reiterates the importance of the Principles of Community-Oriented GPL Enforcement and the need for lawsuits, but only as a last resort.

We thank RMS for his support of our work and for asking more people to become Conservancy Supporters.

RMS' blog post has links to LibrePlanet talks [1, 2] by both of us where we discuss Conservancy's work in this area.

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Tags: conservancy, GPL, supporter

Why GPL Compliance Tutorials Should Be Free as in Freedom

by Bradley M. Kuhn on April 25, 2017

I am honored to be a co-author and editor-in-chief of the most comprehensive, detailed, and complete guide on matters related to compliance of copyleft software licenses such as the GPL. This book, Copyleft and the GNU General Public License: A Comprehensive Tutorial and Guide (which we often call the Copyleft Guide for short) is 155 pages filled with useful material to help everyone understand copyleft licenses for software, how they work, and how to comply with them properly. It is the only document to fully incorporate esoteric material such as the FSF's famous GPLv3 rationale documents directly alongside practical advice, such as the pristine example, which is the only freely published compliance analysis of a real product on the market. The document explains in great detail how that product manufacturer made good choices to comply with the GPL. The reader learns by both real-world example as well as abstract explanation.

However, the most important fact about the Copyleft Guide is not its useful and engaging content. More importantly, the license of this book gives freedom to its readers in the same way the license of the copylefted software does. Specifically, we chose the Creative Commons Attribution Share-Alike 4.0 license (CC BY-SA) for this work. We believe that not just software, but any generally useful technical information that teaches people should be freely sharable and modifiable by the general public.

The reasons these freedoms are necessary seem so obvious that I'm surprised I need to state them. Companies who want to build internal training courses on copyleft compliance for their employees need to modify the materials for that purpose. They then need to be able to freely distribute them to employees and contractors for maximum effect. Furthermore, like all documents and software alike, there are always “bugs”, which (in the case of written prose) usually means there are sections that fail to communicate to maximum effect. Those who find better ways to express the ideas need the ability to propose patches and write improvements. Perhaps most importantly, everyone who teaches should avoid NIH syndrome. Education and science work best when we borrow and share (with proper license-compliant attribution, of course!) the best material that others develop, and augment our works by incorporating them.

These reasons are akin to those that led Richard M. Stallman to write his seminal essay, Why Software Should Be Free. Indeed, if you reread that essay now — as I just did — you'll see that much of the damage and many of the same problems to the advancement of software that RMS documents in that essay also occur in the world of tutorial documentation about FLOSS licensing. As too often happens in the Open Source community, though, folks seek ways to proprietarize, for profit, any copyrighted work that doesn't already have a copyleft license attached. In the field of copyleft compliance education, we see the same behavior: organizations who wish to control the dialogue and profit from selling compliance education seek to proprietarize the meta-material of compliance education, rather than sharing freely like the software itself. This yields an ironic exploitation, since the copyleft license documented therein exists as a strategy to assure the freedom to share knowledge. These educators tell their audiences with a straight face: Sure, the software is free as in freedom, but if you want to learn how its license works, you have to license our proprietary materials! This behavior uses legal controls to curtail the sharing of knowledge, limits the advancement and improvement of those tutorials, and emboldens silos of know-how that only wealthy corporations have the resources to access and afford. The educational dystopia that these organizations create is precisely what I sought to prevent by advocating for software freedom for so long.

While Conservancy's primary job provides non-profit infrastructure for Free Software projects, we also do a bit of license compliance work as well. But we practice what we preach: we release all the educational materials that we produce as part of the Copyleft Guide project under CC BY-SA. Other Open Source organizations are currently hypocrites on this point; they tout the values of openness and sharing of knowledge through software, but they take their tutorial materials and lock them up under proprietary licenses. I hereby publicly call on such organizations (including but not limited to the Linux Foundation) to license materials such as those under CC BY-SA.

I did not make this public call for liberation of such materials without first trying friendly diplomacy first. Conservancy has been in talks with individuals and staff who produce these materials for some time. We urged them to join the Free Software community and share their materials under free licenses. We even offered volunteer time to help them improve those materials if they would simply license them freely. After two years of that effort, it's now abundantly clear that public pressure is the only force that might work⁰. Ultimately, like all proprietary businesses, the training divisions of Linux Foundation and other entities in the compliance industrial complex (such as Black Duck) realize they can make much more revenue by making materials proprietary and choosing legal restrictions that forbid their students from sharing and improving the materials after they complete the course. While the reality of this impasse regarding freely licensing these materials is probably an obvious outcome, multiple sources inside these organizations have also confirmed for me that liberation of the materials for the good of general public won't happen without a major paradigm shift — specifically because such educational freedom will reduce the revenue stream around those materials.

Of course, I can attest first-hand that freely liberating tutorial materials curtails revenue. Karen Sandler and I have regularly taught courses on copyleft licensing based on the freely available materials for a few years — most recently in January 2017 at LinuxConf Australia and at at OSCON in a few weeks. These conferences do kindly cover our travel expenses to attend and teach the tutorial, but compliance education is not a revenue stream for Conservancy. (By contrast, Linux Foundation generates US$3.8 million/year using proprietary training materials, per their 2015 Form 990, page 9, line 2c.) While, in an ideal world, we'd get revenue from education to fund our other important activities, we believe that there is value in doing this education as currently funded by our individual Supporters; these education efforts fit withour charitable mission to promote the public good. We furthermore don't believe that locking up the materials and refusing to share them with others fits a mission of software freedom, so we never considered such as a viable option. Finally, given the institutionally-backed FUD that we continue to witness, we seek to draw specific attention to the fundamental difference in approach that Conservancy (as a charity) take toward this compliance education work. (My recent talk on compliance covered on LWN includes some points on that matter, if you'd like further reading).

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⁰One notable exception to these efforts was the success of my colleague, Karen Sandler's (and others) in convincing the OpenChain project to choose CC-0 licensing. However, OpenChain has released only 68 presentation slides, and a 12-page specification, and some of the slides simply encourage people to go buy an LF proprietary training course!

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Tags: conservancy, GPL

Cyborg Lawyer 2.0, "Hack Proof"

by Karen Sandler on April 6, 2017

It's been quite a number of years since I got my first defibrillator/pacemaker and, a little bit earlier than expected[1], the battery is now starting to run out. While the alarm hasn't started going off yet (it's set to go off every day a little after noon once the power gets below the 30 day replacement threshold), it's down to the point that this can happen at any moment. There's no way to recharge the battery, though device manufacturers are working on that for future models, so it's surgery to take out the old one and implant a new one. Of course, I've known this was coming for a while, but for various reasons I wasn't that worried about it. I mean, after all, I still don't have access to the source code in my current defibrillator. I was expecting status quo, with the inconvenience of surgery and recovery but instead was faced with the possibility of something much worse.

Back in 2007 when I first looked into getting my device, it was just before major research was published showing these devices to be vulnerable. I tried to convince my cardiologists and electrophysiologists that the issues around device security were critical, and that these device manufacturers got it backwards: no actual security but with proprietary software that cannot be reviewed or tested for safety. I explained that security through obscurity simply doesn't work. Initially, this did not go well at all but I finally found an electrophysiologist who got what I was saying [2]. He convinced me that I couldn't wait any longer to get the device and called around all of the local hospitals until he found one that had an old device that was still sterile. The older device had no wireless component, and could only be communicated with via a magnetic interface. This device was probably the very last one available in my geographic area. The whole experience caused me to research the safety of software on medical devices generally.

And ever since then I've been grateful to have that device. As exploit after exploit were published I was sound in the knowledge that at the very least, my device would be safe from remote attack. This became less hypothetical as I (like many other women on the Internet as I have come to understand) have received actual threats to my safety and well being.

I was a little worried about getting a new device, but had relaxed after I spoke to a nurse practitioner a couple of years ago. He said that anyone could ask for their device's radio telemetry to be disabled after it was publicized that Dick Cheney had the wireless functionality disabled in his device. Apparently, if this was true at the time, it is no longer true, and with only a few months of power left on my current device, I was faced with the prospect of not only having a device to which I couldn't see the source code, but also one that would be wirelessly accessible with little or no security on it.

I went to the Heart Rhythm Center to begin the process of planning for the replacement and met with Abigail Silver, a nurse practitioner. She was kind enough to involve me in the process of contacting the manufacturers to ask them if they had any devices either without radio telemetry or with radio telemetry that could be disabled. On speaker phone, Abigail called the major manufacturers. One by one the representatives we spoke to all told me that my request was not possible. Some of the representatives were cagey. One manufacturer suspiciously asked Abigail to take the phone of speaker in order to tell her that the company did have a device without radio telemetry, though it turned out that the device was just a pacemaker and not a defibrillator. Some of the representatives were defensive. When I explained how vulnerable medical devices are, the Biotronik representative bragged "Our devices are hack proof." When I explained that this was probably not the case, he boasted that Biotronik's devices had never been shown to be vulnerable, and did not listen to my reasons why that would not necessarily indicate the devices to be truly secure from any attack.

At the end of these calls, I was in total despair. How is it possible that none of the major device manufacturers recognize the danger in having these devices enabled with wireless access? Some of the representatives we spoke to had no knowledge of the exploits that were widely publicized. I thought the biggest challenge I was going to face was once again seeking the source code to my body, but this was a direct and immediate threat to my safety and well being.

Fortunately, at the last minute of my time at the Center, my doctor remembered a small manufacturer making inroads in the United States. Abigail called them and happily, they do have a device I'll likely be able to use. It is with great relief that I'm writing this blog post. I continue to learn so much about the medical system and our fragile relationship with software, I hope I can make the time to explore each relevant part of this experience and research in future posts.

[1] My battery ran out a bit faster that it would ordinarily have because I got three unnecessary shocks. One shock was because the device was callibrated too sensitively (I was working out at the gym, and my device thought my heart was beating twice as fast as it was). Two shocks were while I was pregnant, and I was having some palpitations, as pregnant women often do.

[2] I also found a great HCM specialist, Dr. Harry Lever, who understands how important ethics are in technology and medicine (and how we need to safeguard against corporate interests), and more general cardiologist Dr. Olivier Frankenberger who have been great resources in my healthcare journey.

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Tags: cyborg, security