Tim Lee

The Community Shrugged

Don Marti makes a good point about the enforcibility of the GPL in the face of deals like the Microsoft/Novell pact:

The GPL is not a top-down EULA. It’s a legal “codification” of a set of cooperation and information-sharing norms, which includes an agreed mutual defense policy on patents. So whether or not the Microsoft/Novell deal is a millimeter below or a millimeter above the letter of the law isn’t that big of a deal

Siobhán O’Mahony wrote, “Informal enforcement of license terms draws upon the normative roots of the license and occurs primarily through on-line public forums. The GPL codifies a strong norm of reciprocity that has long been an important part of the programming culture…. In the eyes of both legal scholars and informants, the GPL’s strength stems not necessarily from its legality, but from the public collective opinion of community members.”

Novell is holding an IRC meeting about the deal (via LWN.net). Novell’s “inner circle”, which negotiated the separate peace, has to sell the rest of its stakeholders on discarding the cooperation norms under which they had been working in favor of a “weasel words” interpretation of the letter of a license. I don’t see how they can pull this off.


Novell doesn’t just have to worry about losing in court and being forced to stop distributing its version of Linux. The more serious threat may be that they’ll burn their bridges with the wider Linux community.

An open source operating system like Linux consists of hundreds of components, each of which is typically maintained by a different group of developers. If those developers all decided to stop responding to emails, stop accepting bug fixes, and stop sharing new versions on a timely basis, etc, they would have to shoulder a much bigger part of the burden of developing and supporting their software.

Ayn Rand’s most famous novel, Atlas Shrugged, features a group of industrialists who get tired of society living parasitically off of their creative efforts and they go on strike, moving to a secluded valley in Colorado called Galt’s Gulch. In Rand’s world, this leads to the American economy collapsing under the weight of its incompetence. If the open source community perceives Novell as breaking the social contract implicit in the GPL, the open source community may decide to steal a page out of Rand’s playbook and go on strike against Novell’s parasitism.

November 20, 2006 | Comments |

Viewing 23 Comments

    • ^
    • v
    The point of the GPL is to nullify any social contract. It sets the public free. It restores the liberty of the public to enjoy and build upon the public domain.

    There is no contract - by design.

    The GPL is there to nullify the social contracts of those who still believe in them - by granting liberty (on condition the liberty is preserved). It is a legal protection against companies (and governments who encourage them) who would attempt to re-introduce contraints on that liberty as a revenue mechanism.

    This protection may not be legally functional against implied threats, but that is only a weakness in the eyes of those who believe in copyright and patents.

    The point is that the now liberated public will not tolerate suspension of the liberty it has come to enjoy.

    Their liberty is asserted through choice, not reluctantly obliged as payment for use of GPL software - as IP maximalists might only be able to conceive.

    And this freedom of choice can obviously be expressed in many more ways than license selection.

    The North American continent knows how sensitive the issue of slavery is. Suspending from the public its right to enjoy the fruits of its labour, especially reserving them for proprietary commercial exploitation, is slavery. Even an implied threat, if it exerts such a constraint, is a grievous misadventure that must be quickly retracted.

    There is much naivety here, and it isn't on the part of the public.
    • ^
    • v
    I have to say, that was probably the best use of Atlas Shrugged in punditry I've ever seen. In the actual book, the 'strike' never seemed particularly credible to me, for various reasons--but precisely because of the normative structure that forms the heart of the F/OSS community, the threat is quite potent in this case. Great post.
    • ^
    • v
    Thanks. :-)
    • ^
    • v
    I don't understand how a boycott would materially hurt Novell. It would still have access to the Linux kernel. (is it fair to say that by making software "free", the GPL makes it difficult to specifically exclude?) It might hurt the Novell SuSE distribution of Linux, but I bet that SuSE-specific portions already have a team of developers that are paid by Novell.

    I have to disagree with X.Trapnel - I'm shocked that Tim referred to Ayn Rand and the GPL in the same breath! Although I get his point about going on strike, who would Rand support here, really? The anti-capitalist Stallman and his GPL? Hardly a chance. And besides, wasn't Rand a proponent of IP rights?

    Novell's venture with Microsoft created tremors in the FOSS community; if Stallman gets his way with GPL Version 3, it'll feel like an earthquake. Or put another way, the open source community might not just shrug, it could crumble.
    • ^
    • v
    Braden,

    Ayn Rand wrote (in The Virtue of Selfishness) that one of the basic principles of Objectivist ethics is is the principle of Justice, which holds that "one must never seek or grant the unearned and undeserved." (p. 28 in my copy). Clearly, I think, one aspect of justice is the need to keep your promises. That is: if you accept something of value from someone with conditions attached, you're morally obligated to respect those conditions.

    The GPL is such a promise. By redistributing Linux, Novell agreed to be bound by the GPL. Obviously, it's debatable whether the letter of the GPL has been broken here, but I think it's undeniable that Novell has broken its spirit--Section 7 of the GPL is plainly designed to prevent any one company from seeking commercial advantage over competitors via the patet system. Morally, if not legally, Novell has reneged on that promise.

    I don't understand how an Objectivist would justify such behavior. Rand was absolutely a proponent of copyright--including the copyrights of Linux programmers. I don't believe I've ever read Rand say that we're only obligated to respect the rights of those who exercise their rights in ways we approve of.

    You might not like the terms that the Linux community has attached to their software, but as the creators of that software, they have the right to set the terms under which people are allowed to use it, are they not? And if someone promises to abide by those terms and then tries to weasel out of its commitment on a technicality, isn't that morally blameworthy under Ayn Rand's ethics?
    • ^
    • v
    I also don't really understand how the community can effectively go on strike against Novell. How much of an impact has the community had on SCO? Microsoft is the one who should fear the community in this case. If they push too hard there will be a reinvigorated campaign to replace Windows and Office anywhere and everywhere, and this time the free software stack is ready.

    However, I think Braden misses the crucial sentence in Marti's post:

    In the eyes of both legal scholars and informants, the GPL's strength stems not necessarily from its legality, but from the public collective opinion of community members.

    I suspect "collective opinion of community members" is a woeful understatement. That, and many multi-billion $ businesses built with the assumption that the GPL, Linux and other GPL'd software are legally sound.
    • ^
    • v
    Mike, is SCO still a viable technology company? I kind of assumed that they gave up any pretense to being a viable Linux distributor when they decided to become a lawsuit shop. I don't think they even distribute Caldera any more, do they? This chart doesn't paint a very rosy picture.

    Presumably, that's not the route Novell is intending to take. I imagine they would like SuSe to be a successful Linux distribution. And that's going to be awfully difficult if most of their volunteers quit and the developers of the various components of Suse refuse to talk to them.

    Novell will certainly still be able to limp along. But I suspect they'll find going it alone will both be a lot more expensive (because they have to hire people to do work that was previously done by volunteers) and less successful (because GPL-friendly shops will start directing their efforts toward other distributions).
    • ^
    • v
    SCO is dying a slow death, but I don't know that the open source community had much of anything to do with it. Certainly it was up in arms, but I doubt SCO's strategy of selling a dead end product and suing IBM would've worked out anyway. I'd love to be wrong.
    • ^
    • v
    I suspect "collective opinion of community members" is a woeful understatement. That, and many multi-billion $ businesses built with the assumption that the GPL, Linux and other GPL'd software are legally sound.

    Well, there we go again trying to make things narrow, trying to stay within our own little areas of expertise.

    That's one of the things I really like about Tim (except when he disagrees with me on net neutrailty of course) is that his approach is cross -disciplinary. Yes, the GPL is a legal document, but it is much more than that. Think of it as a totem, around which a community has grown.

    It has it's own network, its own plausable premise , and it's own goals. It understands the limits that exist because of the social economic matrix that it finds itself embedded within. It will quite rightly resist attempts to weaken it, which can only be done by taking away primary liberties and ownership rights, because that is what it is built on.
    • ^
    • v
    This isn't the main point of this discussion, but I'd argue quite strongly that the GPL doesn't give anyone "freedom," but rather limits people's freedom to do as they please with the Linux code. The BSD license seems to be much more truly free. With the GPL, you are forced to make your changes available to the public as source. With BSD, you can do whatever the heck you want with the code. You can include it in your own product without limitations on disclosing the source and without limitations on the license you have to use for YOUR code. The GPL isn't really about freedom. It's about forcing the users of GPL-licensed software to adhere to the views of the Free Software Foundation. The BSD license pretty much just says, "Here's the code. Do with it what you want, without restrictions." That seems MUCH more "free" to me.
    • ^
    • v
    Tim, do you read the GPL as an isolationist doctrine, meaning that technologies and business that leverage it can never work with IP firms.

    I don't think you're describing Galt's Gulch with the GPL and its community. You're talking about pouting FOSS companies that left outside the big tent.
    • ^
    • v
    David, your 'freedom' to suspend the public's liberty to use works you deliver to the public is a perversion of the word 'freedom'.

    You are granted an unethical privilege to a monopoly, to a suspension of the public's liberty. Either you can unethically exploit this suspension, or you can ethically nullify it with the GPL.

    Don't forget you are also included as a member of the public you can liberate.

    If you publish using the BSD you will not necessarily be free to build upon other people's published derivatives of your code.

    With the GPL you have restored your own liberty (granted to yourself as a member of the public, by yourself as the copyright holder).

    If you do not share the view of the FSF that the public has a right to liberty, a right to build upon public works, then certainly you would not use the GPL.

    There may be encouragement to adopt a more ethical approach to publishing, but this is not force, it is persuasion through argument and the demonstration of the viability and success of an emancipated public.

    That said, your privilege to suspend the public's liberty may not last forever - and its effectiveness may already be insignificant.
    • ^
    • v

    If you do not share the view of the FSF that the public has a right to liberty, a right to build upon public works, then certainly you would not use the GPL.


    I should amend that to be "you would not necessarily use the GPL".


    In some cases people use the GPL without consideration of ethics, e.g. simply because they find its assurance of source code visibility facilitates open and collaborative development.

    • ^
    • v
    Tim, do you read the GPL as an isolationist doctrine, meaning that technologies and business that leverage it can never work with IP firms.

    I have no idea how you got that from what I wrote. I believe that the GPL means what it says:

    "If a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program."

    I think that's pretty clear. GPL-using companies can work with "IP firms," they just can't sign licensing agreements that privilege themselves (or their customers) over third parties with respect to patents.
    • ^
    • v
    DO you mean "over other GPL licensors/licensees with respect to patents." Just trying to clarify.
    • ^
    • v
    Noel: yes, that's what I meant. Do you read that section of the GPL differently?
    • ^
    • v
    Well, I read that section as I just re-stated to you. The difference between "GPL licensors/licensors" and simply "third parties" is pretty big. If you hold the latter accountable for the goals of the GPL, then you're implicating those who never even signed on to the license.
    • ^
    • v
    OK, so then don't you think it violates the spirit of the GPL to sign an agreement with Microsoft shielding your own customers (but not customers of other GPL distributors) from software patent liability?
    • ^
    • v
    Anyone want to take bets on whether this deal survives til the end of the week? I'll wager a freshly-burned set of CentOS disks that the deal is scuttled by Black Friday.
    • ^
    • v
    Tim, I believe its in the interest of Novell's customers, as well as developers, that the deal w/ MSFT was signed.

    The GPL is a very inflexible license. FOSS supporters talk about interoperability, and the need for more legal certainty in FOSS development, but they fall at their own swords when it comes to any practical solution.

    If you're out of the big tent, don't complain that you *choose* to be left in the rain.
    • ^
    • v
    David, you would be right in the absence of software patents. Where US-style software patents are in force, a developer who releases under a license without a patent clause -- like the BSD license -- can lose the rights to use his or her own software because of others' patent claims. See, for example, BSD Compression, RFC 1977.

    There is one BSD-like license with a patent clause -- Larry Rosen's Academic Free License. You might want to consider that instead of the original BSD license as long as software patents are in force.
    • ^
    • v
    Noel, how could this deal be in the interest of developers?

    If you're a developer and write a program, and the only people who can legally use it are those who buy through Novell, that puts you in a pretty weak negotiating position with Novell. If a customer can use your program with a support contract from Red Hat, Novell, Oracle, or Canonical, then not only does the customer have more negotiating power when buying services, you as the developer have more negotiating power when selling your services. From a developer's point of view, it's rational to use the GPL to enforce a policy of "multiple companies can sell support for my work, or no one can".
    • ^
    • v
    Don, that just tells me that Red Hat should not be calling the MSFT deal an "innovation tax" and that other Linux distros should get practical.

    As for developers, I don't see the deal affecting them that much; (someone clarify this) but as I understand it, a developer would be giving more value to consumers of Novell than those of other Linux entities if they contribute to multiple distros. If anything, the deal gives developers more options by which to release their work.

Trackbacks

blog comments powered by Disqus