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One More Small Step Toward The Right to Software Repair

by Bradley M. Kuhn on December 28, 2021

Our Motion to Remand in Vizio Lawsuit Shows How the Law Brings Software Freedom to All Users

Yesterday afternoon, we filed a Motion for Remand in our lawsuit against Vizio for their flagrant GPL & LGPL violations, alleged with great detail in our complaint in California state court. Vizio's response to that complaint was to “remove” the case to federal court. Vizio argues that the lawsuit can only be brought by a copyright holder as a copyright infringement lawsuit in federal court. In response, we have asked the federal court to return (“remand”) the case to state court.

While Vizio's original request to “remove” the case from state court to federal court is, in the general sense, a standard litigation tactic and our response is a relatively standard response (on which we expect to prevail), the implications of these early procedural maneuvers deserve special attention for those of you that care deeply about copyleft as a strategy to achieve software freedom and rights. If you seek a deeper understanding of these essential issues in copyleft policy, we encourage you to first read our motion to remand, and then read this article as supplemental strategic context for that filing.

Many of our longstanding Sustainers will recall that we previously have enforced the GPL for BusyBox in federal court. As part of that large lawsuit against 14 defendants, we learned how the process of copyright-only GPL enforcement works in US federal court. We still believe that federal litigation brought by copyright holders is an essential component of copyleft enforcement.

But many lawyers have advised us that contract law is a useful parallel avenue. This approach has the advantage of empowering users of the software who are not necessarily copyright holders. The mantra of “the GPL is not a contract” is a mistruth that has been so often repeated that it became widely accepted and typically unchallenged. (We expect you'll hear this theory repeated even more loudly now that the our Vizio lawsuit brought the question to the forefront in a federal court case.) Yet, prominent legal experts outside of FOSS social circles have long scoffed at the assertion. Indeed, case law in the USA has held the opposite. In multiple cases, courts have been convinced, specifically, that the GPL operates as both a contract and a copyright license. The law appears clear on this, and this is among the reasons why we believe our motion to remand will succeed. In short, we'll say it plainly here and now for everyone: the GPL operates both as a copyright license and as a contract; litigation can proceed under either of those legal theories. Our motion to remand in the Vizio case explains the legal details as to why that's true.

While this seems a minor matter of legal detail, it stems from the longstanding and fundamental principles of copyleft itself. Specifically, the point of copyleft was not to further empower copyright holders. As early as 2001, I and other copyleft proponents already argued publicly that copyleft was a method for software authors to unilaterally disarm the inappropriate power held by copyright holders when they created software. Like the Constitutional Bill of Rights in the USA (which exercised government power by guaranteeing each citizen's rights), the GPL allows software authors to exercise their power in choosing a license to grant rights to all software users. Those users deserve the right to seek redress when companies impugn their rights. In short, the GPL was designed as a tool for software authors to exercise their default power of licensing control to benefit the general public (instead of only themselves).

Accordingly, this legal diversification of claims is not only a tactical matter. It's not an esoteric debate; it drives to the very heart of copyleft's policy goals. Our Vizio case is landmark GPL litigation because, in addition to seeking the source code for our immediate use to create alternative firmwares, the lawsuit trailblazes a path for consumers to assert their software right to repair. If the entire case is ultimately successful, we will have shown that individual users who purchase a device and wish to repair the copylefted software in it have a fundamental legal right to take action on their own to seek redress from the court.

Further, our claim in this lawsuit asks for what lawyers call specific performance. CCS for a specific product has unique value that cannot be replaced by awarding monetary damages instead. Once ordered to specifically perform, the vendor has no choice but to produce the CCS for all copylefted software. Our lawsuit focuses on this remedy under contract law because it is the most relevant to the policy aims of the GPL. In short, money is no substitute for CCS, and we plan to explain why to the Court as the case continues.

Nevertheless, copyright litigation under GPL also remains an important tool, and we expect that we'll work with our lawyers to bring copyright claims again in the future — when that's the best tool to do the job that needs to be done. However, we believe a consumer-led enforcement strategy (which doesn't require holding copyrights) empowers users in a fundamental way and is consistent with GPL's original policy goals. As it stands today, we receive regular reports from individuals who request source code for GPL'd devices, only to have companies ignore them — unless and until a copyright holder assists them. We provide that assistance when we can, but realistically we can't commit to provide such assistance for every copyleft violation in the world. Companies (at their peril) rely on the false notion that they need only fear a copyright holders' accusation of copyleft non-compliance. We seek to change these anti-patterns — starting with our lawsuit against Vizio.

The Vizio lawsuit may take years to complete, but we are confident that we'll win this first skirmish. We believe the remedy we seek — that Vizio acknowledge their obligations under relevant copyleft licenses and release the CCS — is reasonable and achievable. While we pursue that remedy, we know that not everyone will have the time or inclination to study every move in this lawsuit. If you don't have the time to do that, we thank you now for the trust you've shown by donating to our organization to support this work. We assure you that we take the public trust of our charitable mission very seriously and will focus this work, including our litigation, to benefit the general public. However, if you have the time and inclination, we again commit ourselves to transparency and updates like this one to explain to you the nuances and important fundamental issues of strategy that inform our every decision in our copyleft enforcement work. We believe in the power of copyleft to bring consumers a meaningful right to software repair, and we believe in upholding that right under the full scrutiny of that same public.

We thank all of you so much for your support of our work, and the many encouraging emails that so many of you have sent us about this Vizio lawsuit. While I always hate to ask for money, I'd be remiss if I didn't note that your donations helped us get to this point, and I ask that you take a moment to become a sustainer during our match donation period, which ends soon.

Matcher Interview - Mark Galassi

by Daniel Takamori on December 27, 2021

This fundraising season we were incredibly fortunate to be supported by so many individuals. In addition to our large anonymous donors, we had a few people contribute to bump up the number. One of donors was a board member, Mark Galassi, who runs The Institute for Computing in Research. We asked him a few questions about free software and his passion and motivations for interdisciplinary research.

Software Freedom Conservancy: “Why do you care about software freedom?”

Mark Galassi: “I started working on developing software for others to use in 1984. At that time my brother and some friends of ours worked to develop a public access UNIX system so that people who were not in a university or big company could have the joy of doing advanced computing.

Soon after a fellow student at Reed College pointed me to the birth of the free software movement, and its goal and principle perfectly matched what I thought was important for the world.

A robust idea can last a long time, and more than 35 years later I feel that just as strongly.”

SFC: “What is it that you see Software Freedom Conservancy does that other groups are not?”

MG: “Conservancy is firmly focused on the importance of software freedom, while at the same time carrying out practical steps to allow it to flourish. It also expands and adapts its role as new areas become relevant to software freedom, as the embracing of Outreachy and the Institute for Computing in Research have shown.

I'm not sure if I would say that other organizations are not doing important things: we benefit from other orgs in various ways. But combining stewardship and principle and adaptation is hard work, and I think that only Conservancy takes it on in full.”

SFC: “How do you see our role amongst the various FOSS organizations?”

MG: “I think that Conservancy should lead other FOSS organizations in a few ways. At least:

  1. Being the steward of principles and legal ideas behind software freedom.
  2. Being the umbrella for many of the key projects in the FOSS world.
  3. Being the organization that is flexible and intelligent and far/wide-seeing enough to adapt to the shifts in the landscape, while still being firm on important principles.

SFC: “Do you think we do a good job standing up to the organizations with more corporate funding?”

MG: “Yes. The current action against Vizio's violations renews that clarity.”

SFC: “What's got you most excited from the past year of our work?”

MG: “I am particularly excited by Conservancy's picking up of the Institute for Computing in Research (2021 was our first full year as part of Conservancy). This addition of a focus on free software in the academic world will be important: the free software movement was born in the research and university world, and I believe that academic research should be the steady keel of the free software movement.”

SFC: “Have you been involved with any of our member projects in the past?”

MG: “Yes: I have used many of Conservancy's member projects over the years, and I am co-founder of the Institute for Computing in Research.”

SFC: “What other (non-tech) organizations are you supporting this year?”

MG: “I donate a bit to my college, and I donate to Planned Parenthood, but Conservancy and the Institute are where I donated the most this year.”

SFC: “Why did you start the Institute for Computing in Research? How did you wind up teaching kids these important skills?”

MG: “I have loved my career so much that it seems impossible.

Here is how that happened:

I entered the world of physics just at the time when computing was becoming a key part of research (since then this has extended to all other academic areas). The free software movement was born at the same time. Being a free software developer, I was in a position to promote the use of FOSS in research, and to really love the research work because I did not have to use proprietary software.

When you love something so much, you want to pass on the recipe that makes it work so well -- in my case that has been the use of advanced software development based on free software, applied to academic research.”

SFC: “As the chair of Software Freedom Conservancy's board, what unique place do you think we have in the field of FLOSS organizations?”

MG: “I enjoy serving on the board, and my fellow board members are a cross-section of all that is amazing in the world of research and development.

But more than us, I think that our staff has the real angle on what's important: in many ways they teach us what is happening and what should happen in the world. So maybe one of the coordinates of our "unique place" is that Karen and Bradley have created a staff of world class thought leaders who also do detailed practical work.”

SFC: “You are a strong proponent of interdisciplinary research, what avenues do you think free software has to help promote both academic and civil freedom?”

MG: “Ahhh, the academic side is an easy one: research software can only be free software, for all the reasons that makes science honest. This is already mostly true, but we need to go the rest of the way.

You also ask about civil freedom. What is also quite clear to me is that corporate control and vendor lock-in are real problems in any society. They are the cause of a good amount of economic and cultural alienation. Most of this lock-in is in software, and software freedom is our strongest tool against that.”

SFC: “Given your academic background, what are your thoughts on projects like Reproducible Builds and the effects it might have on reproducibility in the academic community?”

MG: “Reproducible builds is one of the coolest projects we have in Conservancy - both its fundamental idea, and the impressive intelligence of the people working on it. Much of its motivation comes from the security angle, but a sign of a deep project is that other important angles naturally come up. In my case, for example, I talk to members of the project regularly to get advice on how to improve reproducibility in research software. They also help me think about how to frame those issues.”

Tags: conservancy

On Non-Fungible Tokens, Faces of Our Leadership, and Supporting Artists

by Bradley M. Kuhn and Karen M. Sandler on December 23, 2021

We were certainly surprised this week to be told that we (Karen and Bradley) were “for sale” at approximately US$200 each. It's not us personally that's for sale, of course. Rather, the sale is for financial derivative products that are based on digital images of us. Because of the connection to these financial derivative products (called NFT) to our work on ethical technology and FOSS generally, we share herein our analysis of the situation. And, in the unlikely event you were thinking about buying one of these risky financial derivatives — we give our recommendation for an alternative way that you fund both Software Freedom Conservancy and the artist who took the photographs in question while avoiding derivative products entirely.

Basic Backstory

Image of Karen M. Sandler taken on 2017-03-04 during the Faces of Open Source photo shoot

Photo © 2017 by Peter Adams, licensed CC BY-SA

On 2017-03-04, we (Karen and Bradley) sat for a photo shoot with a photographer named Peter Adams, who later released one photo from each of our shoots as part of a larger work called “Faces of Open Source”. We were surprised to learn that we were the only FOSS leaders (among those who had been photographed at that point) to raise the question of FOSS licensing for the photographs themselves. Sadly, Adams was not interested in licensing the series under a Free license. We nearly declined to continue with the photo shoot, but Karen had a compromise idea: if Adams agreed to license one good photo of each of us back to us under CC-BY-SA, we would agree to sit for the photo shoot. We both agreed to sign a release of copyright claims. Rarely do subjects/models hold copyrights anyway on photos (unless it's a selfie), so we determined, especially given that we were in town for the Southern California Linux Expo, this photo shoot was not much different (ethically and morally speaking) than walking around the conference and being photographed candidly, in which case we'd also not hold copyright. We did not relinquish any other of our rights and permissions, but we did agree that our photos could be part of the “Faces of Open Source” art project. We were really happy with the photos, and were glad we had CC-BY-SA photos to use. We appreciated that Adams took the time to prepare them for us.

Non-Fungible Tokens (NFTs)

There has of course been much discussion about NFTs and how they operate on a blockchain. We suspect most of our readers already know the technical details of how NFTs work. What we'd like to focus on is the high level description and how it relates to works of authorship and FOSS licenses.

First and foremost, note that, to our knowledge and understanding, sale of an NFT is generally unrelated to the copyright questions of the image. The NFT is (roughly) a cyptographically-signed checksum of the image. “Owning an NFT” simply indicates that — on some blockchain somewhere — a group of people who participate in that blockchain have cryptographically verified that the particular checksum is associated with you. NFT hawks liken this to “owning” the underlying work, but this is not true. Consider it this way: the “underlying holding” is the photograph itself, which has a financial value based on (a) the fame of the subject, and (b) the artistic ability of the photographer to get a good/intriguing photo of that subject. The NFT, by contrast, isn't the photo, it's “bragging rights” of having others identify that you paid some amount money for the blockchain participants to assent to your “ownership” of a checksum of that photo. The NFT's value, thus, may move in the same direction of the value of the copyright of the photo (or, say, a physical print of that photo), or it may not; there is no way to know. Moreover, we suspect, given the novelty of NFTs, that financial experts don't even yet have reliable equations to understand how NFTs financially relate to their underlyings (as exist for other financial derivatives like futures contracts and stock options). While many people investing in NFTs understand their nature and understand what they are spending money on, we also think there's a predatory component of this industry that exploits people who don't have a good understanding of how NFTs work. We fear that many other people spend money on NFTs without really understanding what they are buying.

Image of Bradley M. Kuhn taken on 2017-03-04 during the Faces of Open Source photo shoot

Photo © 2017 by Peter Adams, licensed CC BY-SA

Meanwhile, one need not have a copyright holdership or even a license to create an NFT of any given image. We could sell NFTs of the same images if we wanted to, even though we don't hold the copyright. We could sell NFTs of the extremely similar color images (shown here) that Adams' licensed under CC-BY-SA. But, we aren't going to do any of that. We think selling NFTs of these images is a silly thing to do.

A Few of the Problems with NFTs

NFTs have many problems, and we aren't going to list them all here, as many are outside the scope of ethical technology. However, the most concerning problem is that most NFT blockchains use “proof of work” systems to verify transactions, which costs computing resources (including intensive use of processors, that produces heat, wastes electricity, and risks wearing out the processors more quickly than more traditional uses). While NFTs are not yet widely adopted (and thus the costs in this regard are currently nominal) most researchers believe that long-term and widespread use of “proof of work” is ill-advised (for environmental and other reasons).

For our part, we probably would not have commented publicly on our concerns about these issues. But, Adams made NFTs for specific images of us, and there is mostly nothing we can do about it — other than state our opinion of it. We would be remiss if we didn't point out that other laws besides copyright are involved here. We are left wondering whether use of one's faces to promote NFTs in this manner could be construed as a violation of California's Right to Publicity Law, and standard releases often don't broadly grant any rights to endorse products like NFTs. (In this case, our rights releases were wholly narrowed to the “Content”, which here is the actual photo, and we were the “models”). It's unclear how far a right to publicity would extend as a legal matter, and we have no intent to explore that. We agree with others in the “Faces of Open Source” series that Adams made a mistake (ethically and morally) by not asking the subjects to agree to have their names associated with the sale of NFTs (particularly given the serious ethical technology considerations about NFTs).

Getting Artists (and Developers) Paid

One of the mission goals of Software Freedom Conservancy is to fund developers to work on FOSS (related to our member projects and initiatives). We believe strongly that folks who do Free Culture works should, similar to those who do Free Software work, get paid for that work. What's more, even though Adams chose not to make “Faces of Open Source” a Free Culture project (opting instead for a traditional proprietary model), we still think Adams should get some compensation for his work — especially for the two photos he licensed as CC-BY-SA. But we think NFTs is the wrong approach.

We originally proposed selling photos in this blog post as a method to raise funds for Adams' work, but Adams wrote to us and indicated that he had not been experimenting with NFTs as compensation for his past work but rather to both help fund future Faces of Open Source photo shoots and raise money for FOSS organizations like ours. So Adams and we all suggest that if you like FoOS, please donate to our current fundraising campaign and other organizations doing good work in this space.

The Hate-Mail We Expect

We know that many of our Sustainers and fans believe deeply that NFTs and other blockchain-related technologies like cryptocoins are world-changing technologies. We remain neutral on that point; we admit that we simply don't know how important these technologies will be long-term. However, we do encourage everyone to consider the ethical implications of technology like this. Plowing ahead with any technology simply because it's new and exciting often leads to unintended dystopian consequences (such as already occurred advertising-based, algorithm-controlled platforms from MMAGA companies).

Finally, this is of course not a full analysis of all the moral and ethical implications of NFTs. We do think NFTs might have some interesting use-cases, such as academic institutions verifying transcripts and degrees of students to third parties (and Karen loves some of the silliness connected with many NFT offerings). If done fully with FOSS, we don't object to further research and consideration of how NFTs can be used for good purposes. However, we approach with skepticism the notion that financial derivative transactions should receive the primary use-case focus around new technologies, as has happened with NFTs. We should evaluate all new technologies first and foremost with a question of how they can improve the lives of the most disadvantaged and underrepresented individuals.

First Update on the Vizio lawsuit

by Bradley M. Kuhn and Karen M. Sandler on November 30, 2021

Yesterday, we received from Vizio their first official response in our pending litigation against Vizio for their copyleft license violations. So, what was their response?

Did Vizio release the source code — as the GPL and LGPL require — for the modified versions of Linux, alsa-utils, GNU bash, GNU awk, BusyBox, dmesg, findutils, dmsetup, GNU tar, mount and selinux found in their TV’s firmwares? No.

Did Vizio propose a CCS candidate for us to review, provide them with additional feedback, so that we could help them get consumers who bought their TVs the source code they deserve? Nope.

Did Vizio argue that we had erred, and in fact, none of those programs we list above appear in their firmware? Not that either. (Unlikely though — after all, they surely know those programs are in their firmware!)

Instead, Vizio filed a request to “remove” the case from California State Court (into US federal court), which indicates Vizio's belief that consumers have no third-party beneficiary rights under copyleft! In other words, Vizio’s answer to this complaint is not to comply with the copyleft licenses, but instead imply that Software Freedom Conservancy — and all other purchasers of the devices who might want to assert their right under GPL and LGPL to complete, corresponding source — have no right to even ask for that source code.

That’s right: Vizio’s filing implies that only copyright holders, and no one else, have a right to ask for source code under the GPL and LGPL. While we expected Vizio held this position (since they ultimately ignored us during our discussions with them in years past), Vizio has gone a disturbing step further and asked the federal United States District Court for the Central District of California to agree to the idea that not only do you as a consumer have no right to ask for source code, but that Californians have no right to even ask their state courts to consider the question!

Vizio’s strategy is to deny consumers their rights under copyleft licenses, and we intend to fight back.

We believe in complete transparency of the copyleft compliance process, and so encourage everyone to read the filings. We’ve even paid the Pacer fees and used the Recap browser plugin, so that all the documents in the case are freely available via the Recap project archives.

Software Freedom Conservancy’s annual fundraiser is happening right now! Please help us continue our work by becoming a Sustainer. Donate now and have your donation matched by a group of generous individuals who care deeply about software freedom.

Tags: conservancy, law, licensing

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