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Toward Copyleft Equality for All

by Bradley M. Kuhn on January 6, 2020

I would not have imagined even two years ago that expansion of copyleft would become such an issue of interest in software freedom licensing. Historically and for good reason, addition of new forms of copyleft clauses has moved at a steady pace. The early 2000s brought network services clauses (such as that in the Affero GPL), which hinged primarily on requiring provision of source to network-remote users. Affero GPL implemented this via copyright-controlled permission of modification. These licenses began as experiments, and were not approved by some license certification authorities until many years later.

Even with the copyleft community's careful and considered growth, there have been surprising unintended consequences of copyleft licenses. The specific outcome of proprietary relicensing has spread widely and — for stronger copyleft licenses like Affero GPL — has become the more common usage of the license.

As the popularity of Open Source has grown, companies have searched for methods to combine traditional proprietary licensing business models with FOSS offerings. Proprietary relicensing, originally pioneered by MySQL AB (now part of Oracle by way of Sun), uses software freedom licenses to compel purchase of proprietary licenses for the same codebase. Companies accomplish this by ensuring they collect all copyright control of a particular codebase, thus being its sole licensor, and offer the FOSS licenses as a loss-leader (often zero-cost) product. Non-commercial users generally are ignored, and commercial users often operate in fear of captious interpretations of the copyleft license. The remedy for their fear is a purchase of a separate proprietary license for the same codebase from the provider. Proprietary relicensing seems to have been the first mixed FOSS/proprietary business model in history.

The toxicity of this business model has only become apparent in hindsight. Initially, companies engaging in this business model did so somewhat benignly — often offering proprietary licenses only to customers who sought to combine the product with other proprietary software, or as supplemental income along with other consulting businesses. This business model (for some codebases), however, became so lucrative that some companies eventually focused exclusively on it. As a result, aggressive copyleft license overreading and inappropriate, unprincipled enforcement typically came from such companies. For most, the business model likely reached its crescendo when MongoDB began using the Affero GPL for this purpose. I was personally told by large companies at the time (late 2000s into early 2010s) that they'd listed Affero GPL as “Never Allowed Here” specifically because of shake-downs from MongoDB.

Copyleft itself is not a moral philosophy; rather, copyleft is a strategy that software freedom activists constructed to advance a particular set of policy goals. Specifically, software copyleft was designed to ensure that all users received complete, corresponding source for all binaries, and that any modifications or improvements made anywhere in the chain of custody of the software were available in source form to downstream users. As orginially postulated, copyleft was a simple strategy to disarm proprietarization as an anti-software-freedom tactic.

The Corruption of Copyleft

Copyleft is a tool to achieve software freedom. Any tool can be fashioned into a weapon when wielded the wrong way. That's precisely what occurred with copyleft — and it happened early in copyleft's history, too. Before even the release of GPLv2, Aladdin Ghostscript used a copyleft via a proprietary relicensing model (which is sometimes confusingly called the “dual licensing” model). This business model initially presented as benign to software freedom activists; leaders declared the business model “barely legitimate”, when it rose to popularity through MySQL AB (later Sun, and later Oracle)'s proprietary relicensing of the MySQL codebase.

In theory, proprietary relicensors would only offer the proprietary license by popular demand to those who had some specific reason for wanting to proprietarize the codebase — a process that has been called “selling exceptions”. In practice, however, every company I'm aware of that sought to engage in “selling exceptions” eventually found a more aggressive and lucrative tack.

This problem became clear to me in mid-2003 when MySQL AB attempted to hire me as a consultant. I was financially in need of supplementary income so I seriously considered taking the work, but the initial conference call felt surreal and convinced me that MySQL AB was engaging in problematic behavior . Specifically, their goal was to develop scare tactics regarding the GPLv2. I never followed up, and I am glad I never made the error of accepting any job or consulting gig when companies (not just MySQL AB, but also Black Duck and others) attempted to recruit me to serve as part of their fear-tactics marketing departments.

Most proprietary relicensing businesses work as follows: a single codebase is produced by a for-profit company, which retains 100% control over all copyright in the software (either via an ©AA or a CLA). That codebase is offered as a gratis product to the marketplace, and the company invests substantial resources in marketing the software to users looking for FOSS solutions. The marketing department then engages in captious and unprincipled copyleft enforcement actions in an effort to “convert” those FOSS users into paying customers for proprietary licensing for the same codebase. (Occasionally, the company also offers additional proprietary add-ons, improvements, or security updates that are not available under the FOSS license — when used this way, the model is often specifically called “Open Core”.)

Why We Must End The Proprietary Relicensing Exploitation of Copyleft

This business model has a toxic effect on copyleft at every level. Users don't enjoy their software freedom under an assurance that a large community of contributors and users have all been bound to each other under the same, strong, and freedom-ensuring license. Instead, they dread the vendor finding a minor copyleft violation and blowing it out of proportion. The vendor offers no remedy (such as repairing the violation and promise of ongoing compliance) other than purchase of a proprietary license. Industry-wide. I have observed to my chagrin that the copyleft license that I helped create and once loved, the Affero GPL, was seen for a decade as inherently toxic because its most common use was by companies who engaged in these seedy practices. You've probably seen me and other software freedom activists speak out on this issue, in our ongoing efforts to clarify that the intent of the Affero GPL was not to create these sorts of corporate code silos that vendors constructed as copyleft-fueled traps for the unwary. Meanwhile, proprietary relicensing discourages contributions from a broad community, since any contributor must sign a CLA giving special powers to the vendor to continue the business model. Neither users nor co-developers benefit from copyleft protection.

The Onslaught of Unreasonable Copyleft

Meanwhile, and somewhat ironically, the success of Conservancy's and the FSF's efforts to counter this messaging about the Affero GPL has created an unintended consequence: efforts to draft even more restrictive software copyleft licenses that can more easily implement the proprietary relicensing business models. We have partially succeeded in convincing users that compliance with Affero GPL is straightforward, and in the backchannels we've aided users who were under attack from these proprietary relicensors like MongoDB. In response, these vendors have responded with a forceful political blow: their own efforts to redefine the future of copyleft, under the guise of advancing software freedom. MongoDB even cast itself as a “victim” against Amazon, because Amazon decided to reimplement their codebase from scratch (as proprietary software!) rather than use the AGPL'd version of MongoDB.

These efforts began in earnest late last year when (against the advice of the license steward) MongoDB forked the Affero GPL to create the SS Public License. I, with the support of Conservancy, rose in opposition of MongoDB's approach, pointing out that MongoDB would not itself agree to its own license (since MongoDB's CLA would free it from the SS Public License terms). If an entity does not gladly bind itself by its own copyleft license (for example, by accepting third-party contributions to its codebases under that license), we should not treat that entity as a legitimate license steward, nor treat that license as a legitimate FOSS license. We should not and cannot focus single-mindedly on interpretation of the formalistic definitions when we recommend FOSS licensing policy. The message of “technically it's a FOSS license, but don't use” is too complicated to be meaningful.

A Copyleft Clause To Restore Equality

My friend and colleague, Richard Fontana, and I are known for our very public and sometimes heated debates on all manner of software freedom policy. We don't always agree on key issues, but I greatly respect Fontana for his careful thought and his inventive solutions. Indeed, Fontana first formulated “inbound=outbound” into that simple phrasing to more easily explain how the lopsided rights and permissions exchanges through CLAs actually create bad FOSS policy like proprietary relicensing. In the copyleft-next project that Fontana began, he further proposed this innovative copyleft clause that could, when Incorporated in a copyleft license, prevent proprietary licensing before it even starts! The clause still needs work, but Fontana's basic idea is revolutionary for copyleft drafting. The essence in non-legalese is this: If you offer a license that isn't a copyleft license, the copyleft provisions collapse and the software is now available to all under a non-copyleft, hyper-permissive FOSS license.

This solution is ingenious in the way that copyleft itself was an ingenious way to use copyright to “reverse” the rights and ensure software freedom. This provision doesn't prohibit proprietary relicensing per se, but instead simply deflates the power of copyleft control when a copyright holder engages in proprietary relicensing activities.

Given the near ubiquity of proprietary relicensing and the promulgation of stricter copylefts by companies who seek to engage (or help their clients engage) in such business models, I've come to a stark policy conclusion: the community should reject any new copyleft license without a clause that deflates the power of proprietary relicensing. Not only can we incorporate such a clause into new licenses (such as copyleft-next), but Conservancy's Executive Director, Karen Sandler, came up with a basic approach to incorporating similar copyleft equality clauses into written exceptions for existing copyleft licenses, such as the Affero GPL. I have received authorization to spend some of my Conservancy time and the time of our lawyers on this endeavor, and we hope to publish more about it in the coming months.

We've finished the experiment. After thirty years of proprietary relicensing, beginning with Aladdin and culminating with MongoDB and their SS Public License, we now know that proprietary relicensing does not serve or extend software freedom, and in most cases has the opposite effect. We must now categorically reject it, and outright reject any new licenses that can be used for it.

Tags: conservancy, GPL, CLA, law, licensing, FOSS Sustainability

Copyleft Conf Tickets On Sale Now!

by Deb Nicholson on December 16, 2019

Tickets are now on sale for the Second Annual Copyleft Conf! Last year's event was so successful that we are doing it again. Please join us on February 3rd (right after FOSDEM) from 9:30am - 4:30pm.

Get your tickets now!

Where's it happening? La Tricoterie, it's just 18 minutes southwest of Grande Place by tram. Folks who like to start the day with walk can get there in 30 minutes under their own power. By car, it's 13 minutes from Grande Place.

Who should attend? Developers, strategists, enforcement organizations, scholars, activists and critics — will be welcomed for an in-depth, high bandwidth, and expert-level discussion about the day-to-day details of using copyleft licensing, obstacles facing copyleft and the future of copyleft as a strategy to advance and defend software freedom for users and developers around the world.

Individual tickets are for students, or folks who are unemployed, under-employed, self-employed or working at a small charity. The ticket prices also cover coffee breaks and lunch. If $20 is a barrier, please get in touch. We could definitely use a few volunteers for the day and will waive the entrance fee in exchange for a bit of help onsite.

We want everyone to feel welcome at Copyleft Conf! We have a robust Code of Conduct that covers the behavior of our staff, board members and volunteers. The venue is wheelchair accessible, there will be a gender neutral bathroom available and food will be provided including options for gluten-free and for vegan diets. If there is anything that we can do to make attending Copyleft Conf more comfortable for you, please write to us.

Tags: events, licensing, Copyleft Conf

When companies use the GPL against each other, our community loses

by Denver Gingerich on October 2, 2019

Our Executive Director, Karen Sandler, has warned for years about the dangers of lawsuits between two for-profit companies engaged in a legal dispute in which the GPL is tangentially featured. Unlike Conservancy, companies don't use legal action as the last resort, and they don't select their cases, as we do, focused on what's best for the software freedom of users. Nevertheless, these cases happen, and the GPL gets caught in the crossfire. With the assistance of our legal counsel, Pam Chestek, Conservancy has been carefully following the case of Ubiquiti Networks, Inc. v. Cambium Networks, Inc.

Cambium and Ubiquiti have been engaged in this lawsuit with each other for a little over a year now. Ubiquiti sued Cambium, claiming that Cambium violated RICO, the Computer Fraud and Abuse Act, the Digitial Millennium Copyright Act, and the Copyright Act, along with other causes of action. Cambium responded alleging that the Ubiquiti products included code under the GNU General Public Licenses and Cambium's own use of the portions of the Ubiquiti code subject to the GPL would not be an infringement. The case is still in very early stages.

As experts in GPL compliance, we carefully investigated the situation with each company. Ubiquiti was already known to us as we had received independent GPL violation reports from the public regarding their behavior. (The suit itself brought Cambium to our attention.) We have found that neither company complies properly with the GPL. Specifically, in our analysis of the facts, we have found that both Cambium and Ubiquiti fail to provide any source code for their respective routers and access points, even when we repeatedly asked over the course of several weeks, starting more than 30 days ago. This is not an issue of incomplete source or partial source; we have received no source code at all to review. Furthermore, even if we do receive some source code, the firmware images currently available indicate that there may be additional serious, overarching GPL compliance problems that are not easily resolved.

As for-profit GPL violators, these companies financially benefit from GPL non-compliance by for-profit companies. Their litigation around GPL is a distraction from the bigger issue of companies' repeated violations of the GPL. We lament the irony that two companies have begun a fight regarding GPL compliance (and deployed immense legal resources in the process), yet neither complies with GPL's most basic provisions. Because of this, it's unlikely this suit will yield GPL compliance by either party, and makes the suit another example of how for-profit legal disputes inevitably fail to prioritize the software freedom of users. In essence, we believe their dispute is not about empowering their users with the ability to augment their devices by improving and upgrading the software on them, but rather is about who is able to keep more of their code proprietary.

Conservancy will not stand by while this occurs. As such, we have today opened (at this point, non-litigation) GPL enforcement actions against both companies. We are informing the public of this situation in this blog post, since we gave both companies the industry-accepted standard amount of time to comply, and since the two companies have already made their violations public through the lawsuit filings. We call on both companies to immediately comply with the requirements of Linux's license, GPLv2.

Tags: GPL, licensing

Choosing a GPLv3-termination Backport to GPLv2

by Bradley M. Kuhn and Karen M. Sandler on May 11, 2019

About four years ago, Conservancy (in collaboration with the Free Software Foundation) published the Principles of Community-Oriented GPL enforcement. Our goal was to conduct our enforcement ethically and respectfully, treating today's violators as tomorrow's contributors. Accordingly, the Principles advocate a holistic approach to GPL enforcement that truly seeks to gain GPL compliance to advance software freedom. We were so happy about the way the Principles assisted the Netfilter team and we were excited that there was substantial interest in codifying these long standing ad-hoc Principles into a widely adopted and published consensus.

Ideas in FOSS also have a way of taking on a life of their own; we share our ideas in the hopes that others will build on them. We have been pleasantly surprised that the last Principle, “Community-oriented compliance processes should extend the benefit of GPLv3-like termination, even for GPLv2-only works”, received so much interest.

This interest led to two independent initiatives to “backport” the GPLv3 termination provisions — by way of an additional permission — to GPLv2-only-licensed works. Additional permissions to GPLv2 have been used for various purposes since the early 1990s (such as for the Bison exception). Additional permissions grant more leeway — relaxing some requirement of the default license — in an effort to reach some policy goal for the project. In this case, the additional permission softens the strict terms of the GPLv2 termination provisions, which state that any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. That means permissions under GPLv2 are instantly and permanently lost on even easily-correctable violations and require reinstatement of permissions by copyright holders. In contrast, the GPLv3 version gives downstream violators short time periods to comply and receive automatic reinstatement of permissions, via the following clause:

If you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation. Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice.

This improved policy can indeed be “backported” to GPLv2 via an additional permission.

Two Choices

Two efforts over the last year and a half have “implemented” these backports. The first released was the solution now used by the Linux community, which states:

Notwithstanding the termination provisions of the GPL-2.0, we agree that it is in the best interests of our development community to adopt the following provisions of GPL-3.0 as additional permissions under our license with respect to any non-defensive assertion of rights under the license, However:

[Quotes GPLv3 termination provisions as above]

We call this sub-document the Kernel Enforcement Statement Additional Permission (“KESAP”), as it is published as part of a larger document named “Kernel Enforcement Statement”. (The rest of that document does not contain legally binding terms.)

The second effort, inspired by this KESAP, was released later by Red Hat, which they call the GPL Cooperation Commitment (GPL-CC), but which we will call here “RHCC” to avoid any confusion with FSF initiatives around the GPL and license drafting. The RHCC is available on github.

Adopting One of the Additional Permissions

Conservancy finds both documents intriguing and worthy of additional study and consideration. Moreover, Conservancy has decided that we will adopt one of these GPLv3-termination-backport provisions for copyrights we hold, and advocate adoption for other copyrights held by contributors for our member projects. While we don't demand this of anyone (and won't make use of such an additional permission mandatory for our GPLv2'd projects), we make a strong recommendation for use of a GPLv3-termination-backporting additional permission.

We have for months carefully considered which of the two options is the best to adopt. This was a difficult decision, since the two are similar and both have some problematic aspects. While we applaud both the Linux community and Red Hat for promulgating these useful additional permissions, on balance we prefer KESAP, and so we are adopting and endorsing KESAP. Below we discuss our reasons for this choice between the two for those who wish more detail. Anyone interested can also listen to episode 0x67 of Free as in Freedom where we discuss these issues in detail.

Length and Complexity

KESAP is about half as long as RHCC. When you remove the direct quote in both documents that come from GPLv3's text itself (which obviously must be included in both), the RHCC adds 1,180 words and KESAP adds only 323.

The RHCC is also more complex. It adds additional defined terms, including redefining “We”, which is already a term used in GPLv2's preamble to refer to the FSF. It adds an irrevocability clause, which is not harmful, but it is unnecessary since unilaterally granted copyright permissions are generally irrevocable anyway. Furthermore, given that the word “irrevocable” doesn't appear in GPLv2, adding a redundant irrevocable clause could easily confuse license readers into thinking that GPLv2 itself is otherwise revocable even while the additional permission is not.

Aggressive Defensive Termination Violates Principles

Our biggest concern with both KESAP and RHCC is that they only apply in “non-defensive” situations. This allows copyright holders to fail to provide 30 days for violators to repair violations when those violators are already aggressors in some other form of litigation.

While we are somewhat sympathetic to those who might seek to use GPL enforcement to retaliate against other bad actions, we believe that even potential bad actors deserve the benefit of the doubt and the meager 30 days to repair a violation before facing aggressive enforcement tactics. Furthermore, defensive actions that bring the GPL into court as part of business dispute otherwise unrelated to free software are also the most likely litigation to generate bad legal precedent regarding the GPL. (Indeed, many of the lawsuits that have already been brought over the GPL are in this category. While so far these have settled out of court, there's no reason to expect that to always happen in the future.) We are disappointed that both sets of drafters feel that copyright holders should hold back this permission in those cases. As the Principles state, we continue to discourage any legal action (defensive or otherwise) against a copyright holder who otherwise succeeds in producing a compliant GPL'd source release within 30 days of violation notice. We ask Red Hat and the Linux community to also make this same cure commitment universally, perhaps in an updated version of these additional permissions.

We do note that RHCC is slightly better on this point, since it does narrow non-defensive via a defined term, but it does not narrow it enough to make a real difference, while also adding additional complexity. Moreover, the text specifically mentions legal proceedings and claims, which draws attention to the very activities that make nervous copyleft software adopters skittish.

Additional Permissions Should Not Codify Assent Mechanisms

RHCC has its own orthogonal assent mechanism, based on the presence of a file in the repository. This assent mechanism, while it seems similar to a traditional inbound=outbound regime, is actually novel and untested. The mechanism attempts to gain assent based on a specific date of inclusion of the RHCC file in a repository. Contributors, however, do not necessarily receive any notice of the addition of that file, and therefore their assent is unclear.

For example, imagine a pull request from two levels downstream that waits for merge for months. The modern DVCS-based software development process allows developers to work indefinitely on a forked copy of the repository and there is no way to know that the contributor had a copy of the repository that pre-dated the addition of the file, and they may not have a copy of the RHCC in their repository. When all is merged, it will appear that their commit postdated the addition of the RHCC, but the contributor may be unaware that the exception is added.

Furthermore, many projects already have licensing assent systems that are likely incompatible with one that is baked into the RHCC. Indeed, Linux itself has decided that they cannot make KESAP part of the DCO assent, since too many Linux developers already believe Signed-Off-By means assent merely to GPLv2-only-compatible licensing. The RHCC, when added to a existing project, cannot be adapted to fit a DCO process without modification of the DCO. Since Signed-Off-By tags rarely assent specifically to a version of the Project's DCO, RHCC is incompatible with a DCO-assent-based inbound=outbound assent system.

By contrast, the KESAP is flexible on assent. The entire KES, which includes the actual additional permission that is the KESAP, asks contributors to affirmatively assent with a patch that adds their own name to the file — explicitly indicating assent. Extracted from the KES, the KESAP text can be combined easily with virtually any assent mechanism in use in FOSS today. RHCC simply cannot.

Adding KESAP to your project

Linux is the gold standard of frictionless legal assent that is well-accepted by both individual hobbyists and contributors and corporate contributions and users alike. Recommending the Linux solution to this particular GPLv3-termination backport is simply the best way to quickly promulgate these additional permissions to GPLv2'd projects. We'll be working over the coming months to encourage, and hopefully assist, Conservancy's LGPLv2'd and GPLv2'd (or-later) member projects to implement KESAP. We will also relicense all Conservancy's own GPLv2 (or-later) copyrights to include the KESAP.

Tags: conservancy, GPL, law, licensing

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