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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

Understanding LF's New “Community Bridge”

by Bradley M. Kuhn and Karen M. Sandler on March 13, 2019

Yesterday, the Linux Foundation (LF) launched a new service, called “Community Bridge” — an ambitious platform that promises a self-service system to handle finances, address security issues, manage CLAs and license compliance, and also bring mentorship to projects. These tasks are difficult work that typically require human intervention, so we understand the allure of automating them; we and our peer organizations have long welcomed newcomers to this field and have together sought collaborative assistance for these issues. Indeed, Community Bridge's offerings bear some similarity to the work of organizations like Apache Software Foundation, the Free Software Foundation (FSF), the GNOME Foundation (GF), Open Source Initiative (OSI), Software in the Public Interest (SPI) and Conservancy. People have already begun to ask us to compare this initiative to our work and the work of our peer organizations. This blog post hopefully answers those questions and anticipated similar questions.

The first huge difference (and the biggest disappointment for the entire FOSS community) is that LF's Community Bridge is a proprietary software system. §4.2 of their Platform Use Agreement requires those who sign up for this platform to agree to a proprietary software license, and LF has remained silent about the proprietary nature of the platform in its explanatory materials. The LF, as an organization dedicated to Open Source, should release the source for Community Bridge. At Conservancy, we've worked since 2012 on a Non-Profit Accounting Software system, including creating a tagging system for transparently documenting ledger transactions, and various support software around that. We and SPI both now use these methods daily. We also funded the creation of a system to manage mentorship programs, which now runs the Outreachy mentorship program. We believe fundamentally that the infrastructure we provide for FOSS fiscal sponsorship (including accounting, mentorship and license compliance) must itself be FOSS, and developed in public as a FOSS project. LF's own research already shows that transparency is impossible for systems that are not FOSS. More importantly, LF's new software could directly benefit so many organizations in our community, including not only Conservancy but also the many others (listed above) who do some form of fiscal sponsorship. LF shouldn't behave like a proprietary software company like Patreon or Kickstarter, but instead support FOSS development. Generally speaking, all Conservancy's peer organizations (listed above) have been fully dedicated to the idea that any infrastructure developed for fiscal sponsorship should itself be FOSS. LF has deviated here from this community norm by unnecessarily requiring FOSS developers to use proprietary software to receive these services, and also failing to collaborate over a FOSS codebase with the existing community of organizations. LF Executive Director Jim Zemlin has said that he “wants more participation in open source … to advance its sustainability and … wants organizations to share their code for the benefit of their fellow [hu]mankind”; we ask him to apply these principles to his own organization now.

The second difference is that LF is not a charity, but a trade association — designed to serve the common business interest of its paid members, who control its Board of Directors. This means that donations made to projects through their system will not be tax-deductible in the USA, and that the money can be used in ways that do not necessarily benefit the public good. For some projects, this may well be an advantage: not all FOSS projects operate in the public good. We believe charitable commitment remains a huge benefit of joining a fiscal sponsor like Conservancy, FSF, GF, or SPI. While charitable affiliation means there are more constraints on how projects can spend their funds, as the projects must show that their spending serves the public benefit, we believe that such constraints are most valuable. Legal requirements that assure behavior of the organization always benefits the general public are a good thing. However, some projects may indeed prefer to serve the common business interest of LF's member companies rather than the public good, but projects should note such benefit to the common business interest is mandatory on this platform — it's explicitly unauthorized to use LF's platform to engage in activities in conflict with LF’s trade association status). Furthermore, (per the FAQ) only one maintainer can administer a project's account, so the platform currently only supports the “BDFL” FOSS governance model, which has already been widely discredited. No governance check exists to ensure that the project's interests align with spending, or to verify that the maintainer acts with consent of a larger group to implement group decisions. Even worse, (per §2.3 of the Usage Agreement) terminating the relationship means ceasing use of the account; no provision allows transfer of the money somewhere else when projects' needs change.

Finally, the LF offers services that are mainly orthogonal and/or a subset of the services provided by a typical fiscal sponsor. Conservancy, for example, does work to negotiate contracts, assist in active fundraising, deal with legal and licensing issues, and various other hands-on work. LF's system is similar to Patreon and other platforms in that it is a hands-off system that takes a cut of the money and provides minimal financial services. Participants will still need to worry about forming their own organization if they want to sign contracts, have an entity that can engage with lawyers and receive legal advice for the project, work through governance issues, or the many other things that projects often want from a fiscal sponsor.

Historically, fiscal sponsors in FOSS have not treated each other as competitors. Conservancy collaborates often with SPI, FSF, and GF in particular. We refer applicant projects to other entities, including explaining to applicants that a trade association may be a better fit for their project. In some cases, we have even referred such trade-association-appropriate applicants to the LF itself, and the LF then helped them form their own sub-organizations and/or became LF Collaborative Projects. The launch of this platform, as proprietary software, without coordination with the rest of the FOSS organization community, is unnecessarily uncollaborative with our community and we therefore encourage some skepticism here. That said, this new LF system is probably just right for FOSS projects that (a) prefer to use single-point-of-failure, proprietary software rather than FOSS for their infrastructure, (b) do not want to operate in a way that is dedicated to the public good, and (c) have very minimal fiscal sponsorship needs, such as occasional reimbursements of project expenses.

Update on 2019-04-01: Community Bridge was also discussed on episode 0x65 of Free as in Freedom, which is available in mp3 format and ogg format.

Tags: conservancy, CLA, licensing

Copyleft Conf Venue Announced!

by Deb Nicholson on December 12, 2018

We are excited to announce the venue we'll be using for Copyleft Conf. The one day event will take place in downtown Brussels at DigitYser, Boulevard d’Anvers 40, 1000 Bruxelles. The venue is a bit northeast of Grande Place. Participants can choose to walk, take the train to the Yser stop or use one of Brussels' many buses.

The first ever Copyleft Conf is happening in Brussels on February 4th, aka the Monday after FOSDEM. This event will provide a friendly and safe place for discussion of all aspects of copyleft -- developers, strategists, enforcement organizations, scholars and critics are all welcome.

The event starts at 9:30am and will finish at 6pm.We'll be providing coffee throughout the day and lunch for those who pre-register for the event. We will accommodate vegetarians and vegans and people with other dietary restrictions should get in touch with us. Registration will open in about a week, which should come pretty close to the date when we hope to have a preliminary schedule to share with you.

If you have questions about Copyleft Conf, including questions about attending, volunteering with or sponsoring, please email copyleftconf@sfconservancy.org

Tags: licensing, Copyleft Conf

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