Winning the copyleft fight

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Bradley Kuhn started off his linux.conf.au 2016 talk by stating a goal that, he hoped, he shared with the audience: a world where more (or most) software is free software. The community has one key strategy toward that goal: copyleft licensing. He was there to talk about whether that strategy is working, and what can be done to make it more effective; the picture he painted was not entirely rosy, but there is hope if software developers are willing to make some changes.

Copyleft licensing is still an effective strategy, he said; that can be seen because we've had the chance to run a real-world parallel experiment — an opportunity that doesn't come often. A lot of non-copyleft software has been written over the years; if proprietary forks of that software don't exist, then it seems clear that there is no need for copyleft; we just have to look to see whether proprietary versions of non-copyleft software exist. But, he said, he has yet to find a non-trivial non-copyleft program that lacks proprietary forks; without copyleft, companies will indeed take free software and make it proprietary.

As an example, he noted that the version of OpenStack running behind his Rackspace account clearly has features that are not in the free version. He does not know of a single OpenStack product that does not contain at least a few features that have not been pushed back upstream.

There is more and more non-copyleft software out there, he said, but copyleft itself remains the most viable strategy to bring about software freedom. Other strategies can be employed, but we need to continue with copyleft as the centerpiece. Unfortunately, it is not working as well as we would like for one simple reason: there is less copyleft software being produced.

Corporate opposition to copyleft

There is not much support for copyleft in the corporate world; Martin Fink's recent LinuxCon Europe talk was the first positive words he's heard from a company about copyleft in quite a while. In general, though, companies are embracing free software; even Apple is, to an extent. They have discovered that they cannot beat the free-software community, so they have now switched to an approach of coopting that community. The result is the emergence of groups claiming to speak for the community, saying that copyleft is no longer wanted. He has heard developers say that users prefer permissive licenses and that it's impossible to get funding for work on copyleft-licensed software. Why are they saying that? In the end, Bradley said, if you hear things enough times you may well start to believe them.

As one might imagine, he sees the lack of enforcement for the code that is under copyleft licensing as a big problem. The only people who can change that, he said, are developers who hold their own copyrights in the code. Companies, which hold most copyrights at this point, will never do enforcement. Or, on the rare occasion when they do, it is to support their own goals rather than to defend the freedom of the software. One example is MySQL, which was happy to use the GPL as a way to force companies to buy proprietary licenses. Red Hat alleged GPL infringement against Twin Peaks Software as a way of defending itself against a patent troll; in the end, Red Hat got its patent license, and Twin Peaks Software's code remains proprietary.

The Software Freedom Conservancy recently published a set of principles that, they say, should govern GPL enforcement; the first of those is that the primary objective is to bring about license compliance. Since then, no trade association or company has endorsed those principles.

That is the case, he said, because lawyers in the corporate world have gained control over policy with regard to the GPL, and they are actively coordinating to try to push the GPL aside. They hold "secret meetings" in which to work through scenarios of possible enforcement actions and how to prevail against them. There have been "two meetings" with the purpose of finding ways to increase corporate ownership of GPL-licensed software as a way of curtailing enforcement by individuals.

The result, he said, is a crisis for the concept of copyleft. If copyleft is the right strategy, then some way has to be found to deal with these challenges. We need a plan.

Defending copyleft

The copyleft strategy works best when copyrights are held by people and institutions that hold software-freedom principles. That means individuals and charities, he said; companies and trade associations do not subscribe to those principles. Thus, he said, developers who support software freedom should go to their employers and insist on being allowed to hold their own copyrights. Perhaps developers should unionize to demand this right. Then they should join one of the Conservancy's coalitions for enforcement.

He also called for developers to go back to volunteer coding — off hours, it is not necessary to quit one's job to do this (though he did note that some companies will claim ownership of even an employee's off-hours work). Early free software was written this way. Bradley said that he works nights and weekends for the cause; he would like for the development community to do the same. Developers should also be willing to fork permissively licensed software under copyleft when necessary.

But copyleft won't work if we don't enforce the terms of the license, he said. Enforcement is getting harder: companies are actively working to replace copyleft-licensed software. Toybox and LLVM are two examples there. Given that, which essential copyleft-licensed software remains?

The one thing that companies haven't tried to rewrite, he said, is the Linux kernel. Thus Linux is the battleground over which the future of copyleft licensing will be determined. An area of immediate interest is proprietary modules, and whether they are derived works of the kernel; he has not yet seen one that didn't look that way to him. There are corporate lawyers who want to fight over this issue; it is a fight that the community will have to take on. If we shrink from this particular confrontation, we will no longer have effective copyleft licensing.

Once upon a time, he assumed that most license violations were innocent mistakes. Those days are coming to an end. Most violations, he alleged, are done deliberately by companies that hire lawyers in advance to plan strategies should it come to a fight. The community is helping these companies with its openness. This is, he said, a zero-sum game; the two sides have diametrically opposed goals.

GPL enforcement requires more than copyright holders, though; it also requires funding. That is a problem; enforcement as a profit-making enterprise is a path to corruption. Violators will always ask how much it will cost to buy permission, but if owners take money without demanding full compliance, they are just another player in the proprietary relicensing business. Companies will not support this work, so the only way is for the community to support it. He reminded the audience of the Conservancy's funding drive, which continues through February.

He concluded by saying that his plan can easily be described as simple-minded. It depends on a community of individuals coming together to stand up for software freedom and the GPL. But this should be possible: uniting and working toward a common goal is just what the community is good at doing.

The video for this talk is available on the LCA site.

[Your editor thanks LCA for assisting with his travel expenses.]

