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GPL Enforcement: Is Copyleft A Force For Good?

Posted on Tuesday, Feb 14, 2012

BY Edward J. Naughton

The debate over GPL enforcement continues, with the two leading GPL enforcers lashing back at the “anti-copyleft” forces.

A few weeks ago, Rob Landley sparked a firestorm of controversy within the FOSS community when he criticized the GPL enforcement campaigns conducted by the Software Freedom Law Center (SFLC) and Software Freedom Conservancy (SFC).  One of the principal developers of BusyBox and a lead plaintiff in some of the lawsuits involving that project, Landley declared that “GPLv2 BusyBox is legally speaking one of the most _dangerous_ pieces of software you can ship.” He announced a project, called Toybox, to rewrite BusyBox and release it under a more permissive, non-GPL license, to “stop BusyBox from being used as a bludgeon against the world at large.”

In the past few days, both Bradley Kuhn and Harald Welte have defended their enforcement programs. Kuhn and Welte are the biggest GPL cops on the beat: Kuhn heads up the SFC and previously worked with Landley on the BusyBox cases, while Welte, through his organization gpl-violations.org, is the primary GPL enforcer in Europe.

Kuhn and Welte vowed to continue their enforcement efforts.  Kuhn declared that he’s “going to keep enforcing [the GPL], until there are no developers left who want to enforce it.”  Welte warned that GPL enforcement actions will continue:

Let me conclude with a clear statement to anyone who thinks that by replacing Busybox with a non-GPL licensed project they can evade GPL enforcement: It will not work.  There are others out there enforcing the GPL.  Last but not least gpl-violations.org.  Despite the notoriously outdated webpage, we are still alive and kicking, churning down on the violation reports that we receive.

In fact, Welte called for increases in enforcement activity:

I think there are still far too many GPL violations out there, and we need to see more enforcement in order to get all the major players in their respective lines of business into compliance.

This isn’t all that surprising; Kuhn and Welte are passionate advocates of free software and unrelenting in their enforcement.  What was surprising to see the vehemence with which Welte and Kuhn attacked Landley, even suggesting that he’s been co-opted by “anticopyleft” forces.

For instance, Welte accused Landley of spreading FUD about the SFC’s enforcement tactics. According to Welte, the FSC assured him that they did not demand the right to review the code for new products prior to their release to ensure GPL compliance:

There also have been rumors about a requirement on submitting future source code releases to a compliance audit by the Conservancy.  According to SFC sources, there never was any such demand, and the rumors are likely spawned by some incorrect claims of a defendant in a court case, which ended up in the public record.  If there was such a requirement, I wouldn’t think it is just – at least not for a first-time non-intentional infringement case.

There are far more than mere “rumors” about this, however.  In the Best Buy case – which was a “first-time, non-intentional infringement case” – multiple witnesses provided sworn testimony that the FSC had in fact made those demands.  The SFC never contradicted this evidence or denied the assertions. To the contrary, the SFLC’s Compliance Guide notes compliance audits often are required: “Many copyright holders wish to monitor future compliance for some period of time after the violation.”

Kuhn, for his part, didn’t deny that the SFC demanded to audit or review future source releases. Rather, he accused Landley of engaging in an “anti-copyleft political ruse.”  According to Kuhn, Landley is just a “copyleft opponent” who used a “sophisticated political strategy” to exacerbate “minor strategy disagreements among those who do GPL enforcement.”  Anti-copylefters like Landley, Kuhn says, “just want to distract the debate away from the only policy question that matters: Is copyleft a good force in the world for software freedom?”

But that’s not fair at all.  Landley (and his colleague Tim Bird, and others who support the ToyBox effort) aren’t diverting attention away from the key policy question; they throw it into high relief. Their actions – rewriting GPL’d BusyBox under a non-copyleft permissive license – make clear that they think that copy left has not been a good force.  And their words explain why: because (in their view) the GPL creates too much uncertainty, which prevents GPL’d projects from being adopted commercially.  Landley even gives a specific example, describing how Cisco, to avoid the GPL risk, terminated all in-house Linux development, started looking at non-Linux embedded operating systems, and reassigned its former Linux developers to work on Windows.  Other recent data supports the idea that commercial open-source projects are increasingly turning away from the GPL in favor of non-copyleft permissive licenses.

Landley’s criticisms of the SFC/SFLC were pointed, to be sure, but by attacking him as an agent of anticopyleft forces, Kuhn missed the opportunity to convince us why copyleft – as actually practiced – is a force for good in the world. Blogs