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Displaying posts tagged law
Software Freedom Ensures the True Software Commons
by on August 22, 2018
Update (2023-11-14): Not long after publication of the post below about the so-called “Commons Clause”, Neo4j utilized that Clause to add a “further restriction” to the Affero General Public License, Version 3 (“AGPLv3”). When John Mark Suhy tried to remove it, as permitted and encouraged by AGPLv3 itself, Neo4j sued John Mark and his small company (PureThink). That case sadly resulted in multiple ill-informed judgments forbidding such removal. As SFC's Policy Fellow, I filed an expert report on the case — explaining my first-hand knowledge about the drafting of the relevant “further restriction” removal clause, but, alas, the Court has not changed its view. The case is, however, ongoing, so please watch SFC's website for updates.
The SFC remains dismayed that the proprietary “AGPLv3-only WITH Commons-Clause” has been allowed to stand as valid since 2018. If the SFC were the copyright holder of the text of the AGPLv3, or the trademark holder of the license's name, we would have intervened in this case to clarify these matters for the Court. Since the SFC did not create the AGPLv3 (my personal involvement with AGPLv3 drafting was not as an SFC employee), filing the expert report was the only action that SFC could take to assist in this matter. However, going forward, we do encourage anyone facing a “further restrictions” issue with copyleft license to contact us for support — so that those who care about the future of copyleft can coordinate a response together.
(Original post follows:)
Proprietary software has always been about a power relationship. Copyright and other legal systems give authors the power to decide what license to choose, and usually, they choose a license that favors themselves and takes rights and permissions away from others.
The so-called “Commons Clause” purposely confuses and conflates many issues. The initiative is backed by FOSSA, a company that sells materiel in the proprietary compliance industrial complex. This clause recently made news again since other parties have now adopted this same license.
This proprietary software license, which is not Open Source and does not
respect the four freedoms of Free Software, seeks to hide a power imbalance
ironically behind the guise “Open Source sustainability”. Their
argument, once you look past their assertion that the only way to save Open
Source is to not do open source
, is quite plain: If we can't make money as
quickly and as easily as we'd like with this software, then we have to make
sure no one else can as well
.
These observations are not new. Software freedom advocates have always admitted that if your primary goal is to make money, proprietary software is a better option. It's not that you can't earn a living writing only Free Software; it's that proprietary software makes it easier because you have monopolistic power, granted to you by a legal system ill-equipped to deal with modern technology. In my view, it's a power which you don't deserve — that allows you to restrict others.
Of course, we all want software freedom to exist and survive sustainably. But the environmental movement has already taught us that unbridled commerce and conspicuous consumption is not sustainable. Yet, companies still adopt strategies like this Commons Clause to prioritize rapid growth and revenue that the proprietary software industry expects, claiming these strategies bolster the Commons (even if it is a “partial commons in name only”). The two goals are often just incompatible.
Here at Conservancy, we ask our projects to be realistic about revenue. We don't typically see Conservancy projects grow at rapid rates. They grow at slow and steady rates, but they grow better, stronger, and more diverse because they take the time to invite everyone to get involved. The software takes longer to mature, but when it does it's more robust and survives longer.
I'll take a bet with anyone who'd like. Let's pick five projects under the Affero GPL and five projects under the Commons Clause, and then let's see which ones survive longer as vibrant communities with active codebases and diverse contributors.
Finally, it's not surprising that the authors chose the name “Commons”. Sadly, “commons” has for many years been a compromised term, often used by those who want to promote licenses or organizational models that do not guarantee all four freedoms inherent in software freedom. Proprietary software is the ultimate tragedy of the software commons, and while it's clever rhetoric for our opposition to claim that they can make FOSS sustainable by proprietarizing it, such an argument is also sophistry.
Why Scènes À Faire Should Apply to Command-Line Interfaces
by on January 3, 2018
Today, Conservancy joined other amici in the Cisco v. Arista case. Specifically, the amicus brief discusses why the scènes à faire affirmative defense for copyright infringement is appropriate and actually necessary regarding imitation of command-line interfaces. I hope this blog post will convince you that software freedom contributors should care about the issue.
The easiest example to understand these issues is Unix. Most of us know
the basics of Unix's user interface, which primarily consists of commands
that live in /bin and
/usr/bin, that each include various command-line options that
we've memorized. When the GNU project started, as RMS has described in his
talks, he chose to imitate this user interface. Many reasons were obvious,
but the most important one was that Unix was already an industry standard and
users already knew its interface.
At the time, no one would have considered that you'd be liable for copyright infringement merely writing some new programs — 100% from scratch — that happened to have the same names and the same command-line options that were found in Unix. That interface, in fact, has been reimplemented at least a hundred times — by many Unix vendors and by various software freedom projects (GNU of course, but also by Conservancy's BusyBox project and others). As developers, we'd be incredulous if told that GNU infringed Unix's original copyrights. But that's exactly the argument that Cisco made about Arista's imitation of Cisco's command-line interface.
I'm not a fan of either Cisco nor Arista; all the software in question is proprietary software. Indeed, GitHub, which is one of our joined amici here, produces much proprietary software around Git, and that's bothers me too. I don't like it when any company writes proprietary software to work along with FLOSS. However, I agree with GitHub and Arista that copyright restrictions should not extend too far; copyright should not stifle simple command-line interoperatiblity. Merely imitating a command-line interface of one program in another should not cause (by itself) a copyright infringement.
Now, the last part to discuss are the questions: What is an affirmative defense, and what is scènes à faire? So, to explain it roughly with as little legalese (IANAL) as possible, an affirmative defense is one that you must prove after you're accused, usually through a trial (which is what occurred here). The burden is on the Defendant to prove that affirmative defense. (By contrast, if Arista had shown that, in fact, their command-line interface bore no similarity to Cisco's, that would have been a “negating defense”. Such defenses are much more assured to win, as they don't place such a burden on the defense.)
So, what, specifically, is the affirmative defense of scènes à faire? It's a concept originally from fictional works that generally expresses this idea: “if you're going to tell this story at all, you need at least these elements”. In this example, the analogy works like this: if your users will give a router textual commands via the command-line, that user will expect certain commands to work. Cisco's commands are industry standard and expected by users, similar to those in Unix. The amicus brief argues that this is a reasonable application of scènes à faire, because there is great benefit to the public and users if such imitation is permitted on command-lines without copyright restriction. Remember, under the USA Constitution, copyright exists as an “exclusive Right to … Writings” only because such exclusive controls “promote the Progress of Science and useful Arts”. Copyright is not an absolute right of control over written works by the authors, and its tentacles must be shortened by the public interest.
Finally, I call on the Linux Foundation to publicly ask their platinum member, Cisco, to stop this aggressive litigation on an edge case of copyright. Such a request would be consistent with the Linux Foundation's public criticism of others for copyright enforcement. This case is one where we all should stand together in the interests of free innovation.
SFLC Files Bizarre Legal Action Against Its Former Client, Software Freedom Conservancy
by on 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.
How the TC Heartland decision helps free and open source software
by 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.
