August 24, 2004

Advice to Linux: Dump the GPL

Author: Joe Barr

BusinessWeek columnist Stephen Wildstrom recently wrote a piece called A Big Fly in the Open-Source Soup that concluded, "The future of commercial open source might be considerably brighter if Linux and other programs went to a more commerce-friendly license with fewer complexities and ambiguities than the GPL." At the risk of offending a great many NewsForge readers, I am going to say that I don't disagree with him. Not because
of the alleged complexity or ambiguities of the GPL -- it's a piece of cake compared
to a typical proprietary EULA -- but because I don't understand what he means by the term "commercial open source." If he had simply said "open source" -- or used the more definitive phrase "free software" -- I would reject his position outright. Updated:

But even allowing for the escape clause provided by an undefined, rogue-hybrid term like "commercial open source," Wildstrom provides much to quibble about. His conclusion is based upon a series of weak or simply erroneous facts and observations.

In raising the specter of IP attacks on Linux, Wildstrom fails to acknowledge that such attacks are simply a fact of life these days for all software development. Whether that development work is proprietary or free makes not a whit of difference.

Then too, Wildstrom chose an unfortunate example with which to demonstrate the threat: the recent delay of Munich's migration from Windows to Linux. He cited that delay as the "most significant" example of the toll patent fears are taking on open source projects. Unfortunately for the case he was trying to build, the delay ended after only a week. Munich is now back at work on their massive transition from proprietary to free/open source desktops.

But the timing of that unfortunate choice of an example is the least of the problems with the foundation for Wildstrom's conclusion. His point is really nothing more than the observation that it would be easier for business to profit from the work of free software developers if it weren't protected by the GPL. No, duh, Mister Wildstrom? Who's to argue with that? Certainly not me.

Wildstrom at least enough good sense to cite Stallman, writing:

But a slew of backers see open-source software as part of a social and political movement that's frankly anti-corporate. Richard M. Stallman, founder of the Free Software Foundation and a man who commands enormous respect among software developers, argues in the essay Why Software Should Not Have Owners: "The system of owners of software encourages software owners to produce something -- but not what society really needs. And it causes intangible ethical pollution that affects us all."

Once again that's a rather unfortunate choice, since Stallman's words are unerringly accurate and predictive of the patent-based IP terrorism mentioned earlier. Perhaps Wildstrom meant to show Stallman in the most flattering way possible -- as a visionary and prophet -- rather than to whip the proprietary/IP terrorists into a howling frenzy. But somehow I doubt that was his motivation.

Wildstrom takes his third and final swing at the target he has been sneaking up on all along: that pesky GPL. He begins with a low moan about the GPL's alleged "lack of clarity," then cites Apple's choice of FreeBSD instead of Linux as a meaningful example of the GPL costing Linux business opportunities. Never mind that Steve Jobs offered Torvalds the job of marrying the Apple GUI on a Unix kernel, and never mind what reasons Torvalds and thousands of other free software developers may have had for choosing the GPL to license their code in the first place, Wildstrom thinks Linux should have a different license, and that's that.

Speaking of Torvalds, Linus took a couple of minutes out of his busy schedule to answer a few questions by email. The first thing I asked him about was the claim that Apple chose FreeBSD instead of Linux because of the licensing. Torvalds said:

I'm sure many companies prefer the BSD license over the GPL, since it
allows them to take code without giving anything back.

That said, I think the reason Apple went with BSD was not so much the
license - they've kept things open anyway - as the fact that they had a
history with Mach and BSD from the NeXT guys and Tevanian.

I also asked if a licensing change for Linux would provide greater protection against patent-based IP threats. Linus replied:

There are some open source licenses that take a more direct stance on
patents (OSL etc), and maybe they might matter. And maybe they wouldn't.

To my mind, the problem with patents has little or nothing to do with
licenses: we've certainly seen that patents are equally troublesome for
totally proprietary commercial projects too.

And so is Linus considering a change in licensing for the kernel?

No. I think the BSD license is a great license, but it absolutely doesn't
do _at_all_ what I believe in. I'm a big believer in people giving back to
the community, and I'm also a big believer in the fact that sometimes they
need some encouragement in the form of rules to do so - just to keep them
honest. The GPL keeps everybody honest.

Wildstrom then turns to religious zealotry to bolster his position and asserts that if the "open-source (sic)community" stopped using the GPL, business could make more money. In his words, "the GPL sometimes seems more like an object of religious veneration than a legal document, but it would be good for all concerned."

Obviously, Wildstrom has no qualms about sacrificing the work of thousands of others at the altar of the almighty dollar. But his worship doesn't seem to include ethics. Nor does it consider the common good. He is a poster-boy for unenlightened capitalism: Nothing matters to him except the bottom line. People like him are the reason we need licenses like the GPL.

I have no problem whatsover with Wildstrom licensing every line of the "commercial open source" he can write with whatever license he chooses. I just wish he would show the free software/open source communities the same respect.

Update: This response was received too late to be included in the original version of the story, but we think it is important enough to warrant an update to include.

Wildstrom calls upon Jay Michaelson to further shroud the GPL in the fog of FUD. Quoting from his commentary, he writes:

What exactly constitutes a "derivative work" automatically covered by
the GPL? "The truth is we don't really know, and there are reasonable
arguments on both sides," Jay Michaelson, co-founder of software company
Wasabi Systems and a lawyer and a programmer, wrote in the May issue of
the Association for Computing Machinery's journal Queue. "Some people
argue that the GPL as a whole isn't even enforceable.... At the end of
the day, the unfortunate reality is that developers should check with
the companies' legal departments before proceeding with any GPL-related
development because the requirements may vary on a case-by-case basis."

Silly me. I wondered what Columbia law professor Eben Moglen -- also General Counsel for the Free Software Foundation -- might think of Michaelson's claims. The good professor wrote back, saying:

After many years of securing compliance with copyright law as it
applies to GPL'd work, and in view of recent court decisions in
Germany, to say nothing of SCO, I think there should be no remaining
doubt in any well-informed mind about the legal soundness of GPL. As
to the definition of "derivative work," the uncertainty is experienced
by those who would like to make proprietary uses of GPL'd code, and
are unsure whether a particular way of making a proprietary
enhancement to a free work will certainly or only arguably infringe
the free developer's copyright. The correct answer, of course, is
that those who want to take advantage of the enormous quantity of
freely distributable "best of breed" software now available should do
so in a fashion that respects the principle of freedom in which it was
created. All doubt can be eliminated, for Mr. Michaelson and all
other seekers after wisdom, if they remember what they learned in
kindergarten: share and share alike. IBM, HP, Novell, and other very
large and very profit-minded businesses have no problem with this, nor
should Mr. Michaelson's readers.

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