Day: November 15, 2017

The SFLC and Conservancy: A History

Yesterday, I went over how the Linux Foundation doesn't seem to like the license Linux is published under very much.

Bruce Perens, co-founder of the Open Source Initiative and founder of the Linux Standard Base (which led to the formation of the Linux Foundation), says it's worse than that, and that the Linux Foundation is now undermining GPL enforcement against its member organizations.

This is a complicated story, so strap in. I mean, if this sounds like something you're interested in. If it doesn't, then I don't blame you; come back on Friday, when I'll have about 750 words on April from Teenage Mutant Ninja Turtles.

Still here? Okay.

The Software Freedom Law Center is funded by the Linux Foundation, and provides pro bono legal services and representation to developers of free/open-source software. Its chairman is Eben Moglen, who was pro bono general counsel for the Free Software Foundation from 1994 to 2016. Moglen has done a hell of a lot for free software over the course of the last 25 years.

In 2006, the SFLC launched the Software Freedom Conservancy, an organization that provides free financial and administrative services to free software projects. Today Conservancy represents 48 projects, notably including BusyBox, Git, phpMyAdmin, QEMU, Samba, and Wine. Conservancy is an independent entity and not part of the SFLC, though the SFLC represented Conservancy through 2011.

In 2007, the SFLC and Conservancy began GPL enforcement suits on behalf of BusyBox. BusyBox is a minimal bootable system that's in everything; if you're using a piece of consumer electronics that's more complicated than a microwave oven, there's a good chance it's got BusyBox in it. And a lot of those electronics companies don't bother to follow the GPL and release their source code modifications.

There's been some backlash against GPL enforcement in the years since. BusyBox's maintainer, Rob Landley, later regretted the lawsuits; he deemed them counterproductive, and said they hadn't helped BusyBox or any other project, they'd just convinced companies like Google to avoid the GPL and use permissive licenses instead.

Maybe so. But if nobody ever enforces the GPL, then it's meaningless. A mere suggestion.

Conservancy has continued its GPL enforcement actions. Currently, it's funding Christoph Hellwig's litigation against VMware in Germany. VMware distributes a modified version of the Linux kernel; Hellwig is a kernel contributor and, thus, one of the many copyright holders in the Linux kernel. (While many free/open-source projects require that contributors assign all copyright to a single rightsholder, such as Conservancy or the GNU Project, the Linux kernel does not; every single contributor to the Linux kernel maintains the copyright to the portion of the kernel they contribute, but licenses it under the GPL for anyone else to use.)

Eben Moglen seems to have soured on GPL enforcement. Last year he published an article in the International Free and Open Source Software Law Review titled Whither (Not Wither) Copyleft. His arguments are similar to Landley's: all these GPL enforcement suits are actually bad for the GPL, because they discourage companies from using the GPL at all.

Moglen makes the argument that litigation should be a last resort, and that parties should try to resolve their disputes amicably if at all possible. The thing is, I don't think anybody actually disagrees with that.

When has Conservancy chosen to sue, when there was any other path available? BusyBox v Westinghouse was a default judgement. Westinghouse didn't even bother showing up to court; I don't see how politely-worded E-Mails were going to get it to comply. Conservancy spent three years attempting to negotiate with VMware, to no avail; the lawsuit is a last resort. Whither copyleft? indeed.

Bruce Perens thinks the SFLC's recent trademark action is retaliation for Conservancy's enforcement action against VMware. I'll save the why for my next post. Tune in tomorrow, same Thad-time, same Thad-channel.