Virtually all media elements engage in the age-old ritual of summarizing the year that was, and looking ahead to the year that will be. Though the number of blogs dedicated to open source, or even those that mention open source on a frequent basis, is extremely small in the blogging universe, my open source compatriots are doing the same ... look at Matt Asay's The Open Road, Zack Urlocker's Open Sources, and Dana Blankenhorn's Linux and Open Source, to name a few. Each of these writers have provided valuable insight into the important open source events of 2008 and areas of focus for 2009 and I encourage you to read their posts.
I do not presume to add much to what these writers have already provided, but I would like to make a few observations. First, I see 2008 as a great success for the open source movement both on an industry-wide basis, and from my personal perspective. The industry as a whole has gained acceptance to the point that it is viewed as an important consideration in the business strategy of all software companies. On a personal level, not only was I privileged to be part of MySQL at the time of Sun's acquisition, but I also started this blog and made more than twenty postings.
Second, I believe 2009 has a strong chance of being the year that open source achieves critical mass not only of mind share, but of economic sustainability. While it's true that several open source companies are making in the tens of millions of dollars in revenues, the economic pressures that hit hardest at the end of 2008 could result in significant gains in revenue opportunities for these companies in the coming year. The economic pressures might be so severe that all IT spending is burdened throughout 2009, but the important point is that in the near future, the cost-conscious thinking arising in these times will likely lead to a radical change in the view of what constitutes value. No doubt, the open source industry will benefit.
The only prediction that can be made with any certainty is that few predictions become reality. In any case, I wish everyone all the best in 2009!
Tuesday, December 30, 2008
The Obligatory End of Year Blog Post
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2008 was the year that the Free Software Foundation first went and sued a company for distributing software licensed under the GPL/LGPL. What do you have to say about that?
The FSF's decision to litigate GPL compliance (using the Software Freedom Law Center as it's legal counsel) is an important development that warrants attention from all developers and users of GPL/LGPL software. At the same time, however, it should not be interpreted as a reason to avoid using GPL/LGPL software or open source in general.
Any litigation around GPL/LGPL compliance is significant, particularly after the Jacobsen case (http://www.cafc.uscourts.gov/opinions/08-1001.pdf), because it not only gives the courts an opportunity to provide the "official" statement on interpretation of an open source license, but it also potentially subjects the GPL/LGPL license infringer to an injunction and statutory damages instead of damages that can be proven.
While this is a risk, the circumstances of the FSF's case against Cisco should not be taken out of context. The FSF approached Cisco about the alleged GPL violations in its Linksys products a few years ago, and Cisco agreed to investigate and remedy them. In FSF's view, Cisco has not acted quickly enough and it is using litigation as a way to state the urgency of the issue more effectively.
In my view, litigation by the FSF and others over GPL/LGPL compliance should be viewed as a warning to users that the details around compliance, particularly notice of GPL and availability of source code, are important and must not be overlooked. Cisco is high enough profile that FSF probably sees this case as a good marketing vehicle for the seriousness of compliance. I have no doubt FSF and others will use the threat of litigation to their advantage, but the important issues are raising awareness and possibly using funds obtained in a settlement to further enforcement and marketing efforts. Companies that use honest and meaningful efforts to comply with the common understanding of the GPL/LGPL likely have little to fear.
What do you have to say about FSF's argument that upon non-compliance with the GPL, the license instantly terminates, and then FSF gets to choose the terms of reinstatement? Do all licensors get to make up substitute terms? Isn't FSF more interested in grandstanding and shaking down a big company for money than it is in upholding the principles of free software? I found The Software Lawyer's blog on this topic to be especially illuminating. www.softwarelawyer.blogspot.com
I decided to dig into your comments in more depth. Please see my latest post for a full discussion and comment again if you would like.
http://oneiplawyer.blogspot.com/2009/01/fsf-motives-in-cisco-case.html
Gary, I think that you and The Software Lawyer (TSL), Robert Pierce --who you curiously don't refer to by name-- could be talking past each other. He may be vitreolic in his conclusions, but you may misapprehend his primary point. I'll take the liberty of restating and refining his position here.
TSL does not care to speculate about what Cisco is thinking or how diligently it has (or has not) acted. This does not matter. Nor does he really care about what has happened between FSF and Cisco thus far. The facts of the case don't matter. As far as he is concerned, FSF is very welcome to seek money damages under US copyright law and to also seek an injunction to the extent that Cisco continues to distribute FSF code without complying with the conditions of the GPL/LGPL, as written. He would not even have a problem with FSF asking that Cisco perform even the most bizarre of circus acts in settlement of a claim of copyright infringement. Instead, TSL's comments are pointed at a particular theory FSF is pushing in its complaint, one that he feels is unprincipled and unnecessary. Indeed, dangerous to the open source system.
The most telling paragraph in the FSF complaint is the following:
"As such, any rights Defendant may have had to redistribute any Program offered under any of the Licenses were automatically terminated the instant that Defendant made a non-compliant distribution of the Program in its Infringing Products or Firmware. Since the first such violation of each Program's License, Defendant has had no right to distribute that Program, or a modified version of the Program, under any circumstances or conditions."
You see, FSF is taking the position that compliance with the GPL/LGPL is not enough. If all FSF is interested in is respect for, and availability of, its code, it need not have included the second sentence above. It could, rather, simply sue Cisco for damages for all past infringement and seek an injunction preventing all future distributions to the extent that those distributions do not comply with the GPL/LGPL, as written. This would give FSF all the leverage it needs, and it is consistent with open source principles.
The only reason I can see for FSF making the argument it is making is that it wants to be able to claim down the road that the terms of the GPL/LGPL no longer apply. As a result, even if it turns out that Cisco completely cured non-compliance with the licenses a long time ago, it must, nonetheless, come begging FSF for a new license that includes additional requirements. How outrageous can FSF make those requirements and still get the respect of the people in the open source community who really care about structure? FSF needs to get over itself.
This is more than a litigation technique. It is a problematic theory.
Public licensing schemes do not allow for creative punishments by licensors. Allowing individual licensors to yank rights just does not work in a system that relies upon multiple independent contributors, each holding rights in a code set. All FSF should be entitled to under the GPL/LGPL licensing scheme and the US copyright law is (i) money damages for past infringement resulting from non-compliance and (ii) an injunction against any future distributions that are out of compliance with the terms of the license. Once it released its code under a public license, FSF may not thereafter withhold that license, as written, from any party. This is fundamental to the whole system. To allow a single contributor to unilaterally choose who may use the code would disrupt the whole system because it would potentially disrespect the desires of the other contributors.
FSF may continue to make formalistic arguments about the text of the GPL/LGPL, but its approach is very short-sighted and damaging to confidence in the system.
I think you are parsing the words in the FSF's complaint too closely. I do not think the FSF would object to Cisco's (or any other licensee's) use of the same software in compliance with the GPL/LGPL. In that case the FSF could still pursue damages for past infringement if it wanted, but I'm not convinced it would do so.
FSF clearly believes that at this point the GPL/LGPL is extinguished as far as Cisco's distribution of the same software is concerned. Compliance with the terms of the GPL/LGPL is not enough and FSF is entitled to unilaterally make up the requirements of reinstatement outside the text of the GPL/LGPL.
To wit:
"42. . . . Defendant has refused to meet Plaintiff's reasonable requirements for REINSTATEMENT of defendant's right to distribute the Programs. Defendant has not demonstrated that it has meaningfully improved its software review process which failed to prevent previous violations, or that it intends to do so. Defendant has refused to acknowledge its previous violations or inform the users who received Infringing Products of its omissions. And Defendant has refused to provide regular compliance reports to Plaintiff regarding Defendant's pervasive exploitation of Plaintiff's software."
To the extent FSF argues that the conditions for using the software are found anywhere outside the text of the GPL/LGPL, it does damage to the viability, power and legitimacy of this licensing system.
I still think you are reading too much into the statements in the FSF's complaint. The terms of remediation a licensor requests from an infringing licensee in an offer to avoid litigation do not have to match the remedies that a court might provide. Even if the term of reinstatement described in paragraph 42 are not remedies a court can provide, they are nonetheless relevant to whether the licensee took steps to resolve the infringing activities. The prayer for relief in the complaint is limited to the standard remedies we would see in a copyright infringement case.
If you are saying you don't like the FSF's strategy for reaching a settlement, that's fine but I don't think it is outside the bounds of what a typical licensor plaintiff would do, and I don't see any of this as contrary to the principles of free software
I also must reiterate that I don't see anything here that suggests that the FSF would claim that Cisco is legally prohibited from using the software in accordance with the GPL and LGPL even in concurrence with this case.
Perhaps we will learn more as the litigation continues.
Here is a copy of the comments on the post "The Obligatory End of Year Post" that are also relevant to the FSF issue and the comments by Robert Pierce in the Software Lawyer blog.
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Anonymous Anonymous said...
2008 was the year that the Free Software Foundation first went and sued a company for distributing software licensed under the GPL/LGPL. What do you have to say about that?
January 4, 2009 4:06 PM
Blogger Gary Spiegel said...
The FSF's decision to litigate GPL compliance (using the Software Freedom Law Center as it's legal counsel) is an important development that warrants attention from all developers and users of GPL/LGPL software. At the same time, however, it should not be interpreted as a reason to avoid using GPL/LGPL software or open source in general.
Any litigation around GPL/LGPL compliance is significant, particularly after the Jacobsen case (http://www.cafc.uscourts.gov/opinions/08-1001.pdf), because it not only gives the courts an opportunity to provide the "official" statement on interpretation of an open source license, but it also potentially subjects the GPL/LGPL license infringer to an injunction and statutory damages instead of damages that can be proven.
While this is a risk, the circumstances of the FSF's case against Cisco should not be taken out of context. The FSF approached Cisco about the alleged GPL violations in its Linksys products a few years ago, and Cisco agreed to investigate and remedy them. In FSF's view, Cisco has not acted quickly enough and it is using litigation as a way to state the urgency of the issue more effectively.
In my view, litigation by the FSF and others over GPL/LGPL compliance should be viewed as a warning to users that the details around compliance, particularly notice of GPL and availability of source code, are important and must not be overlooked. Cisco is high enough profile that FSF probably sees this case as a good marketing vehicle for the seriousness of compliance. I have no doubt FSF and others will use the threat of litigation to their advantage, but the important issues are raising awareness and possibly using funds obtained in a settlement to further enforcement and marketing efforts. Companies that use honest and meaningful efforts to comply with the common understanding of the GPL/LGPL likely have little to fear.
January 5, 2009 8:58 AM
Anonymous Anonymous said...
What do you have to say about FSF's argument that upon non-compliance with the GPL, the license instantly terminates, and then FSF gets to choose the terms of reinstatement? Do all licensors get to make up substitute terms? Isn't FSF more interested in grandstanding and shaking down a big company for money than it is in upholding the principles of free software? I found The Software Lawyer's blog on this topic to be especially illuminating. www.softwarelawyer.blogspot.com
January 7, 2009 11:35 PM
Blogger Gary Spiegel said...
I decided to dig into your comments in more depth. Please see my latest post for a full discussion and comment again if you would like.
http://oneiplawyer.blogspot.com/2009/01/fsf-motives-in-cisco-case.html
January 9, 2009 10:18 AM
Anonymous Anonymous said...
Gary, I think that you and The Software Lawyer (TSL), Robert Pierce --who you curiously don't refer to by name-- could be talking past each other. He may be vitreolic in his conclusions, but you may misapprehend his primary point. I'll take the liberty of restating and refining his position here.
TSL does not care to speculate about what Cisco is thinking or how diligently it has (or has not) acted. This does not matter. Nor does he really care about what has happened between FSF and Cisco thus far. The facts of the case don't matter. As far as he is concerned, FSF is very welcome to seek money damages under US copyright law and to also seek an injunction to the extent that Cisco continues to distribute FSF code without complying with the conditions of the GPL/LGPL, as written. He would not even have a problem with FSF asking that Cisco perform even the most bizarre of circus acts in settlement of a claim of copyright infringement. Instead, TSL's comments are pointed at a particular theory FSF is pushing in its complaint, one that he feels is unprincipled and unnecessary. Indeed, dangerous to the open source system.
The most telling paragraph in the FSF complaint is the following:
"As such, any rights Defendant may have had to redistribute any Program offered under any of the Licenses were automatically terminated the instant that Defendant made a non-compliant distribution of the Program in its Infringing Products or Firmware. Since the first such violation of each Program's License, Defendant has had no right to distribute that Program, or a modified version of the Program, under any circumstances or conditions."
You see, FSF is taking the position that compliance with the GPL/LGPL is not enough. If all FSF is interested in is respect for, and availability of, its code, it need not have included the second sentence above. It could, rather, simply sue Cisco for damages for all past infringement and seek an injunction preventing all future distributions to the extent that those distributions do not comply with the GPL/LGPL, as written. This would give FSF all the leverage it needs, and it is consistent with open source principles.
The only reason I can see for FSF making the argument it is making is that it wants to be able to claim down the road that the terms of the GPL/LGPL no longer apply. As a result, even if it turns out that Cisco completely cured non-compliance with the licenses a long time ago, it must, nonetheless, come begging FSF for a new license that includes additional requirements. How outrageous can FSF make those requirements and still get the respect of the people in the open source community who really care about structure? FSF needs to get over itself.
This is more than a litigation technique. It is a problematic theory.
Public licensing schemes do not allow for creative punishments by licensors. Allowing individual licensors to yank rights just does not work in a system that relies upon multiple independent contributors, each holding rights in a code set. All FSF should be entitled to under the GPL/LGPL licensing scheme and the US copyright law is (i) money damages for past infringement resulting from non-compliance and (ii) an injunction against any future distributions that are out of compliance with the terms of the license. Once it released its code under a public license, FSF may not thereafter withhold that license, as written, from any party. This is fundamental to the whole system. To allow a single contributor to unilaterally choose who may use the code would disrupt the whole system because it would potentially disrespect the desires of the other contributors.
FSF may continue to make formalistic arguments about the text of the GPL/LGPL, but its approach is very short-sighted and damaging to confidence in the system.
January 9, 2009 8:07 PM
Blogger Gary Spiegel said...
I think you are parsing the words in the FSF's complaint too closely. I do not think the FSF would object to Cisco's (or any other licensee's) use of the same software in compliance with the GPL/LGPL. In that case the FSF could still pursue damages for past infringement if it wanted, but I'm not convinced it would do so.
January 9, 2009 10:29 PM
Anonymous Anonymous said...
FSF clearly believes that at this point the GPL/LGPL is extinguished as far as Cisco's distribution of the same software is concerned. Compliance with the terms of the GPL/LGPL is not enough and FSF is entitled to unilaterally make up the requirements of reinstatement outside the text of the GPL/LGPL.
To wit:
"42. . . . Defendant has refused to meet Plaintiff's reasonable requirements for REINSTATEMENT of defendant's right to distribute the Programs. Defendant has not demonstrated that it has meaningfully improved its software review process which failed to prevent previous violations, or that it intends to do so. Defendant has refused to acknowledge its previous violations or inform the users who received Infringing Products of its omissions. And Defendant has refused to provide regular compliance reports to Plaintiff regarding Defendant's pervasive exploitation of Plaintiff's software."
To the extent FSF argues that the conditions for using the software are found anywhere outside the text of the GPL/LGPL, it does damage to the viability, power and legitimacy of this licensing system.
January 10, 2009 7:43 AM
Blogger Gary Spiegel said...
I still think you are reading too much into the statements in the FSF's complaint. The terms of remediation a licensor requests from an infringing licensee in an offer to avoid litigation do not have to match the remedies that a court might provide. Even if the term of reinstatement described in paragraph 42 are not remedies a court can provide, they are nonetheless relevant to whether the licensee took steps to resolve the infringing activities. The prayer for relief in the complaint is limited to the standard remedies we would see in a copyright infringement case.
If you are saying you don't like the FSF's strategy for reaching a settlement, that's fine but I don't think it is outside the bounds of what a typical licensor plaintiff would do, and I don't see any of this as contrary to the principles of free software
I also must reiterate that I don't see anything here that suggests that the FSF would claim that Cisco is legally prohibited from using the software in accordance with the GPL and LGPL even in concurrence with this case.
January 10, 2009 9:28 AM
Anonymous Anonymous said...
Perhaps we will learn more as the litigation continues.
January 10, 2009 9:27 PM
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