Chinese threat to GPL, and no action likely

Is the GNU General Public License, which guides Free Software and much of the Open Source movement, a gentleman’s agreement — or is it an enforceable contract? We may soon find out. There has been a quiet but growing concern among some in the Open Source and Free Software communities that Chinese
Linux developers may be violating the GPL, but there’s little consensus
about what can be done about it.Red Hat v.p. and managing director Mark White brought the issue to the surface
last week when he complained about the lack of cooperation he and others
in the Open Source movement were receiving from Chinese Linux
developers, and the developers of Red Flag Linux in particular. White
complained that Red Flag and to a lesser extent, TurboLinux and Bluepoint, were happy
“to take … [open] code … but are less welcoming to distribute their
changes.”

Sun Wah Linux, a part owner of the distribution, which has
been sponsored by and many believe is controlled by the Chinese People’s
Army, defended Red Flag’s actions. Albert Chung, chief marketing evangelist at Sun Wah Linux, suggesting that Red Flag’s changes, which include localizing programs to Chinese, allegedly fiddling with the kernel, and investigating various security “enhancements,” amounted to developing “applications.” He added, “People build applications [on Linux] … but the applications can be closed source. People may start on open source but might not continue to be 100 percent open.”

To date, White and others have reacted mildly to this apparent violation
of GPL, but have warned that Red Flag might have difficulty
integrating its products with software developed by the broader community if
it effectively forked the platform.

But Red Flag isn’t some Linux operation that forgot about the
rules. And the degree to which Open Source complaints matter to Red
Flag’s sponsors is not clear. As a commercial venture, Red Flag may
not even be a viable platform. According to several observers it ranks dead
last among Linux distros. But the Chinese military and security apparatus
may not particularly care about commercial sales and may have little
incentive to share their alterations of the source code and expose them to
public scrutiny.

What can be done? Is there an issue here? Does the Open Source/Free Software
community have any effective leverage over Red Flag beyond complaining in
public? Supposedly, GPL licenses restrict the distribution of code unless changes are
open and credit is given. But is the GPL license, under which thousands of
developers have labored to improve the code base a legal, enforceable license?
And who can enforce it against a government-controlled corporation?

The World Trade Organization might be one avenue, but the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
is over seven years old and technically out of date. Besides, many
would argue that it is toothless as an enforcement mechanism. TRIPS
contains language that specifically forbids many of the anti-competitive
practices Microsoft stands accused of, but it’s not enforced. Besides, the GPL
represents a different type of intellectual property case that WTO negotiators
probably never considered. There are general provisos concerning the
theft of intellectual property, but it’s hard to find anything in these
trade agreements that cover the types of issues brought about by Open
Source and violations of its licensing agreements.

Besides, who would complain? The WTO envisioned governments complaining about commercial interests of native companies being harmed,
but Linux is truly an international platform and there is no single
owner who is harmed. Is this a U.S. issue? A Finnish issue? The U.S.
government is unlikely to be a particularly forceful advocate on behalf of the
Open Source community. The Bush
trade and economic team is largely populated by
Heritage Foundation conservatives. Many of these activists have
long been suspicious of Linux and the Open Source and Free Software movements generally. In any case, there is no one at a senior level with the technical
chops needed to explain the issue and make it a top priority.

There is also the issue of demonstrable harm. According
to a top U.S. intellectual property law practice, “Economics plays a large
role in determining whether to protect intellectual property … There are
no hard and fast rules… [outside of] obvious factors, including the potential
value of exclusive rights … and as collateral for securing
financing.” None of those considerations really address the impact of
violations of the GPL.

The whole issue would be new territory for U.S. trade officials. Recent
U.S. trade initiatives concerning intellectual property have
been limited in large part to actions protecting the patent claims of pharmaceutical companies. U.S. Trade representative Robert Zoellick has involved himself with allegations concerning
software piracy, but has spent much of that time pressuring
economically vulnerable states such as the Ukraine and Paraguay that have large
organized crime factions operating outside of government control. As for
China, where very little operates outside of government control, the United States has largely taken government “campaigns” against piracy there at face value.

Meanwhile, complaints about hijacking of code and piracy of
software by both unofficial and semi-official China continue to circulate, just as
they have for at least six years.