Apple imposes numerous restrictions on program use and distribution on all programs distributed via the Apple App Store. These restrictions are incompatible with the GPL; if one cannot simultaneously comply with all of the GPL’s terms and other relevant terms one cannot distribute their program based on GPL-covered code at all (paraphrasing section 7 of GPL version 2 and section 12 of GPL version 3). This makes Apple a copyright infringer. The developers who ported GNU Go to work with the iPhone are infringing the GPL as well, but Apple is the higher profile distributor here and Apple has a commercial interest in attracting more users to the iPhone.

The FSF isn’t starting the discussion with their legal guns drawn like so many copyright holders represented by the Business Software Alliance, Motion Picture Association, and Recording Industry Association of America do. The FSF takes the high road by initially seeking compliance with their license rather than initially suing. In fact, the only unusual note in this situation is that the FSF informed people about this infringement publicly so soon (typically they privately inform the parties involved about the relevant license terms).

The FSF has a history of taking the high road with copyright infringers. This is another example of how the FSF shows us how to behave by demonstrating the right behavior.

But doesn’t the FSF stand to benefit by taking an infringer to court and making an example of them? No. Take it from Eben Moglen, long-time GPL enforcer and president of the Software Freedom Law Center in his essays on enforcing the GPL:

If I had used the courts to enforce the GPL years ago, Microsoft’s whispering would now be falling on deaf ears. Just this month I have been working on a couple of moderately sticky situations. “Look,” I say, “at how many people all over the world are pressuring me to enforce the GPL in court, just to prove I can. I really need to make an example of someone. Would you like to volunteer?”

Someday someone will. But that someone’s customers are going to go elsewhere, talented technologists who don’t want their own reputations associated with such an enterprise will quit, and bad publicity will smother them. And that’s all before we even walk into court. The first person who tries it will certainly wish he hadn’t. Our way of doing law has been as unusual as our way of doing software, but that’s just the point. Free software matters because it turns out that the different way is the right way after all.Eben Moglen

This recording comes to us courtesy of the Internet Society New York chapter The recordings are licensed under the GNU Free Documentation License.

Speech

Download Audio: hosted at Punkcast, hosted at Columbia University, hosted locally

Download Video: hosted at Punkcast, hosted at Columbia University, hosted locally

Q&A

Audio: hosted at Punkcast, hosted at Columbia University, hosted locally

Video: hosted at Punkcast, hosted at Columbia University, hosted locally

When Moglen talks about what your server should do, he talks about the kinds of services you should be free to host yourself. I’m reminded of how useful it might be to control your file sharing yourself without placing your faith in those who are untrustworthy by default.

Update 2010-02-10: The Software Freedom Law Center posted highlights from Eben Moglen’s talk.

It’s important to note some differences between how the FSF handles copyright infringement and what the FSF does in their everyday work from other famous copyright infringement litigators:

• Not jumping into litigation lightly. The FSF tried to work with Cisco for 5 years but new copyright infringement issues came to the FSF’s attention faster than Cisco would resolve old infringement issues.
• The FSF was initially silent about the issue. No press release, nothing aimed at embarrassment as far as I can tell; the FSF knows that you can often gain compliance with an inquiry about the issue and some advice on how to comply with the license. The FSF aims to fix practical problems and they have a strong record to point to should anyone question their sincerity. The FSF knows they have the courts to fall back on, but why take that long and expensive route when being nice will do the job?
• No threats of suing Cisco into insolvency. Unlike the RIAA and MPAA which seek maximum penalties against poor individuals regardless of the actual value of the alleged infringement, the FSF first seeks license compliance in their copyright infringement cases. And Cisco is a multinational corporation worth billions of dollars, not a person!
• The FSF builds on strengths by licensing to share. This means the FSF is helping distribute copyrighted works that don’t promote a culture of separation and helplessness like proprietary software distributors do. Anyone who infringes copyright of works intended to be shared and improved immediately gains sympathy because infringers are working against building a better world and treating nice people harshly.
• Get your facts straight before you litigate. Don’t risk coming off as a jerk by treating serious litigation frivolously and suing the wrong people as the RIAA has done.

A few years ago at Roger Ebert’s “Ebertfest”, a movie festival in Urbana, Illinois, I was proud to tell Jack Valenti, former head of the Motion Picture Association of America, and the assembled crowd that copyright infringement can be handled differently; one can work with alleged infringers to help build a mass of public support ready to stand by the copyright holder instead of the alleged infringer. I specifically noted how the FSF and other free software advocates handle allegations of infringement because nothing is stronger than a working example (“running code” as Eben Moglen points out). I don’t think these points were lost on the late Valenti or on the crowd; the public is increasingly aware of ordinary people being pushed into insolvency by RIAA/MPAA lawsuits. Fueling public anger, some of those lawsuits are filed without regard to the facts on the ground.

I’m still proud of the FSF’s behavior. I hope you will join me in helping the FSF by becoming a member and by running more free software.

If people get the impression that even inadvertent license violations will get them involved with lawyers, you could well see some making the call that it’s safer to stay away from open source

The GNU GPL is not an “open source” license except that the Open Source Initiative organization placed the GPL on a list of approved licenses. This is trivial in comparison to writing and maintaining the license. The GPL was written by the Free Software Foundation, an organization which tells us that they “are not against the Open Source movement, but we don’t want to be lumped in with them” because there are real and significant philosophical differences between the two groups, differences that sometimes lead to radically different conclusions about the harm of proprietary software.

The language and development of the GPL proceeds along the line of defending freedom, something which the Open Source Initiative rejects due to its philosophy which aims to convince businesses and programmers that developmental efficiency is essential. The most recent revision of the GPL (GPLv3) is the first version any open source proponent had a hand in helping to write. The previous versions of the GPL were written before the OSI existed and before there was such a thing as the open source movement. To frame this issue as if “open source” is somehow generic term is merely an attempt to make that philosophy seem more entrenched than it really is (or to define its freedom-eschewing philosophy as the norm).

It is far more accurate to refer to the GPL as a free software license. Anyone reading the license (particularly section 12) or the history and development of the license will understand that this license was conceived, written, and maintained in order to create and defend software freedom for all computer users so that these freedoms are tied to the program as inalienable rights. As a result of the FSF’s work, the freedoms the GPL defends cannot easily be stripped away from covered programs.

Second, there isn’t enough public domain software to build an entire viable modern OS. Proprietors defend their copyright licenses in court if need be; first with inexpensive cease and desist letters, later with suing for copyright infringement. Some of the biggest proprietors fund a group which conducts raids to collect evidence of copyright infringement. Suspected infringers have already accepted the terms of a license which grants the proprietor or their agents physical access to the premises for the purpose of verifying license compliance.

One cannot reasonably expect that “inadvertent license violations” on the order of what is discussed in the article will somehow not “get them involved with lawyers”. Commercial copyright infringing distributors (such as the ones being sued with the help of the Software Freedom Law Center) would most certainly come to a proprietor’s lawyer’s attention if this were proprietary software instead of free software.

Quite to the contrary, the SFLC is using litigation as a last resort: I doubt any well-known proprietor would take all the steps the SFLC has taken to remedy the infringement without publicity or lawsuit. Eben Moglen has enforced the GPL for many years and says that “compliance with the license, and security for future good behavior, are the most important goals”, which meant Moglen was in private talks with many infringers, rarely requiring from them public admission of wrongdoing. This is, Moglen says, a big reason why the lack of GPL court cases shows how strong the GPL is: it’s rare to find anyone who wanted to test the waters:

[N]o one wanted to be seen as the villain who stole free software, and no one wanted to be the customer, business partner, or even employee of such a bad actor. Faced with a choice between compliance without publicity or a campaign of bad publicity and a litigation battle they could not win, violators chose not to play it the hard way.

Some are big proponents of the line where a copyright holder whose program is licensed under the GPL will sue some alleged infringer and go to court just to show that they can (I’m reminded of the quote about American foreign policy where the US throws some poor country against the wall every few years to preserve its status as a bully). Microsoft, in order to dissuade people from using “open source” (Microsoft won’t use the term “free software” lest they inadvertently remind people of the one thing proprietors can never compete against), was such a proponent.

If I had used the courts to enforce the GPL years ago, Microsoft’s whispering would now be falling on deaf ears. Just this month I have been working on a couple of moderately sticky situations. “Look,” I say, “at how many people all over the world are pressuring me to enforce the GPL in court, just to prove I can. I really need to make an example of someone. Would you like to volunteer?”

Someday someone will. But that someone’s customers are going to go elsewhere, talented technologists who don’t want their own reputations associated with such an enterprise will quit, and bad publicity will smother them. And that’s all before we even walk into court. The first person who tries it will certainly wish he hadn’t. Our way of doing law has been as unusual as our way of doing software, but that’s just the point. Free software matters because it turns out that the different way is the right way after all.

Here are the official recordings, most likely licensed to share under a simple verbatim copying and distribution license:

Verbatim copying and distribution of this entire recording is permitted in any medium without royalty provided this notice is preserved.

• Low quality Ogg Vorbis+Theora
• Medium quality Ogg Vorbis+Theora
• High quality Ogg Vorbis+Theora

Read the press release about today’s GPLv3 launch and the new GPL (HTML, TeX, Text) and Lesser GNU GPL (HTML or Text).

Congratulations to the Free Software Foundation, Richard Stallman, Eben Moglen (or his Wikipedia entry which has many pointers to his talks), the Software Freedom Law Center, and the community who participated in GPLv3 revisions and critique. Our hard work will definitely benefit us all and continue to serve as a constitution of the free software movement.

• Eben Moglen’s appeal for the FSF touches on the recent Microsoft-Novell deal wherein Microsoft says they’ll license their patents to users of Novell’s SUSE GNU/Linux distribution and devices that resist our attempt to make them work for their owners.
• The easiest time to give up Microsoft Windows Vista is before you can adopt it in the first place. Let the FSF explain why Vista will do you no favors.
• Defective by Design would like to show you how DRM hurts your interests.

Microsoft claims that the Linux kernel infringes on many of Microsoft’s patents. Microsoft would love to be a gatekeeper telling which Linux kernel users can continue to use Linux and which can’t by covering certain Linux users. Novell isn’t making as much money as they’d like to. Novell becomes a target for Microsoft’s millions—Novell recently agreed to take $348m of Microsoft’s money in exchange for signing a patent agreement which says that Microsoft won’t sue users of Novell’s GNU/Linux distribution for alleged patent infringement. This makes it look like Novell is agreeing to Microsoft’s claims that patents are being infringed and Novell is signing this deal for the benefit of Novell’s users.

In reality, no substantive proof of infringement has come from Microsoft, and Novell’s deal with Microsoft probably made enough big Linux kernel development corporations nervous enough to want to push hard for the Linux kernel to be distributed under GPLv3, the next improved version of the GNU General Public License; the license under which the Linux kernel is distributed.

So, it’s looking more likely that Novell did do the free software community a favor, even if they did it by making a huge mistake for themselves.

Also worthy of note, Moglen’s review of the “open source” language which led to this outcome:

“What’s happened is that “Open Source” has died as a useful phrase – Free Software, the GPL, the FSF – all have become major stakeholders in the industry in Microsoft’s verbiage.”

“Once you’re a major stakeholder you don’t go back to being a minor stakeholder unless you go bankrupt – and we can never go bankrupt because we have no business to lose.

“So if we’re major stakeholder. now we stay that way until the end of the chapter, and that’s a problem for Microsoft.”

Leo Laporte and Chris di Bona interviewed Eben Moglen, chief counsel for the Free Software Foundation, about the GNU GPL version 3.

Once again, Prof. Moglen steals the show, but part of his response is quite important if you want to understand why he doesn’t respond to individual critique of the GPLv3: those with access to the press would overrun others who only have access to a web browser and access to the aforementioned GPLv3 discussion website. This is critical for moderators to understand, lest they become a participant in the discussion rather than trying to understand sometimes diverging points of view.

Download the show or listen to it now. Share it with your friends, it’s licensed under the Creative Commons By-NonCommercial-ShareAlike 2.5 license.

I think highly of people, like Eben Moglen, who are able to work so well with OSI advocates. I think it’s important we all work together to achieve some common goals like the abolition of software patents, freeing people from the anti-user circumstances of Digital Restrictions Management (DRM), and writing more free software. When I hear Michael Tiemann, current president of the OSI and head of Red Hat, say that he respects freedom (audio) I want to believe him. But there is quite a bit of work for the OSI to do to address what has happened over many years (remember, the OSI which started the open source movement, launched over a decade after the GNU Project which began the free software movement).

There is much work to be done because there is so much history to overcome.

• The OSI has taken steps in the right direction by removing the name-calling on the OSI’s description of the difference between free software and open source in their FAQ which used to read:
  

  It’s a pitch for “free software” on solid pragmatic grounds rather than ideological tub-thumping. The winning substance has not changed, the losing attitude and symbolism have.

  This long stood as an embarrassment for the OSI particularly when compared to the FSF’s description of the difference between the two movements. But now the OSI FAQ has changed and this section reads

  It’s a pitch for “free software” because it works, not because it’s the only right thing to do. We’re selling freedom on its merits. We realise that many organisations adopt software for technical or financial reasons rather than for its freedom. Many users learn to appreciate freedom through their own experience, rather than by being told about it.

  While I disagree with this message—valuing freedom has to be taught—I can see it’s an improvement on the insulting language they used to use. Just as advertisers know that valuing everything in terms of price has to be taught (which is why they’re always appealing to people on price and getting people to think “free” only has one meaning—gratis), people won’t learn to value freedom by focusing solely on technical merit (which is what the OSI means by “its merits”). In fact, there are plenty of buggy free software programs, but we should value them too because we have freedoms with those programs we don’t have with the most technically capable proprietary programs. Therefore free software, regardless of its technical proficiency, treats us better than proprietary software does.

• Some years after this FAQ was written, Red Hat lawyer and open source advocate Mark Webbink wrote a document describing “open source licensing” which classifies licenses according to preservation of the terms of the license. Free software advocates know this division as freedom-preserving and non-freedom-preserving licenses; a division long described by the term “copyleft“. But Webbink’s essay goes out of its way to avoid using the term “copyleft” because that term is centered on the continuation of software freedom—the very thing the OSI is not interested in promoting. I’ll link to this essay when I find another copy online (the copy I read long ago has vanished). This essay was featured on Slashdot some time ago and I commented there on Webbink’s choice of terms. Similarly, a book on licensing written by OSI lawyer Lawrence Rosen dismisses copyleft but never really comes to terms with why it is a bad term. Copyleft is a bad term for him because it promotes the very thing the OSI doesn’t want to discuss. Instead Rosen uses the term “reciprocity” to describe the GPL. In doing so Rosen can pursue another argument—that the GPL is a contract, not merely a license. Long-time GPL defender and now GPLv3 co-author Eben Moglen disagrees saying that the GPL is a license and that is all it needs to be to work.
• Peruvian Congressman Villanueva endorsed a bill which called for using free software in Peruvian government. The OSI claims on their website that “Peru prefers Open Source” despite that Congressman Villanueva is quite clear—what he seeks is free software (“Software Libre”) because free software promotes freedom for Peruvian citizens by ensuring their ability to get and use government data. The Congressman made this quite clear in his scathing reply to Juan Alberto González, a Microsoft representative who tried to frame every issue the Congressman raised in terms of “open source” and persuade him to use Microsoft’s proprietary software instead. In the OSI’s translation of a document concerning this matter, the term “open source” doesn’t appear anywhere in the document yet the term “free software” does, leading one to ask how the OSI came up with their misleading headline.
• Open source proponents repeatedly talk about the GNU GPL as being an “open source” license. The GPL does qualify for being OSI-approved but the term suggests authorship and detracts from freedom talk where a lack of freedom talk is simply inappropriate. Both released versions of the GPL predate the OSI (and thus the definition of the term “open source”), so OSI qualification is merely a matter of making the qualification requirements match what the GPL already said. If you read the GPL you can see that freedom talk runs throughout the license. Increasing users software freedom is one of the reasons the GPL exists. Richard Stallman is routinely credited as the author of the GPL and it hardly needs mentioning that he is not interested in a development methodology. The OSI is, in this case, a Johnny-come-lately and the GPL is properly credited as a free software license.
• At FISL7, Richard Stallman, an unnamed questioner, and Michael Tiemann discussed the OSI and former OSI President Eric Raymond:
  

  Unnamed Questioner: Last year, Eric Raymond came to FISL and said that [the] Free Software Foundation didn’t like [the] Open Source Initiative though they–

  Richard Stallman: That’s true.

  Unnamed Questioner: [laughs] –though they wanted to be friendly and work together.

  RMS: Well, their idea of working together is that together we should advocate just what we have in common, and what we have in common happens to be their position. The reason is the philosophy of free software, of the free software movement which I founded in 1983, focuses on freedom and community; on human rights for software users. Open source was founded in 1998 as a way to stop talking about those things, to hush them up, bury them, put them out of people’s sight. So they talk about practical advantages that come if you use free software. Well, I also talk about practical advantages in my speeches. So here’s what I say, and here’s the part they say. Except that they’ve gone in more depth on it, and that is useful. You know, making the case to businesses that they’ll get some practical advantage out of releasing, under usually a free software license. That’s useful. But the point is, it’s still a more superficial part of the issue. So what they’re really saying is they want to cooperate and they wish we would cooperate by forgetting about what we consider the most important thing and joining them in saying only the superficial part. This is the way Eric Raymond puts it; he’s very clever at asking us to abandon the most important thing and making it sound like he’s only being reasonable.

  Later, Michael Tiemann says the following in response to RMS’ statement on Raymond:

  Michael Tiemann: Hi Richard, I just wanted to follow up on the question you were asked earlier about Eric Raymond. I wanted to point out a fact: which is that while Eric Raymond was formerly the president of the OSI he no longer is. Eric does speak for himself but less and less for the OSI. I would also like to clarify that as president of the OSI I have always supported the GPL as a model license for developers. It’s the license–it’s the only license I have chosen to work under other than the LGPL for my own programming. And I recognize your position, which is to say that if I am not talking about freedom first and foremost I am burying freedom but I think myself differently–

  RMS: Well, you might be doing something in between. There are things in between. When Eric Raymond was the president of the OSI I could perceive this intention to bury talk of freedom very clearly, and there are others who talk about open source and clearly are trying to bury talk of freedom. That doesn’t apply to everyone who uses the term ["open source"]. What is true of their use of the term is that it generally doesn’t call attention to freedom very much.

  Tiemann: But in this conference I do want to support that what you are doing is incredibly valuable and I respect it tremendously.

  RMS: Well thank you.

I hope that the OSI takes up the task of promoting freedom because the free software community (and it is properly known as that because the free software movement defined it and did it first) is growing faster than its members can learn about software freedom. This is an achilles heel of the movement—if users don’t learn to value software freedom for its own sake they’ll have no reason to reject a low-price proprietary alternative that does the same job—and we need help teaching people to value freedom.

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