Proprietors not as friendly to infringers as Free Software copyright holders

Illuminata Analyst Gordon Haff is quoted as saying

If people get the impression that even inadvertent license violations will get them involved with lawyers, you could well see some making the call that it’s safer to stay away from open source

The GNU GPL is not an “open source” license except that the Open Source Initiative organization placed the GPL on a list of approved licenses. This is trivial in comparison to writing and maintaining the license. The GPL was written by the Free Software Foundation, an organization which tells us that they “are not against the Open Source movement, but we don’t want to be lumped in with them” because there are real and significant philosophical differences between the two groups, differences that sometimes lead to radically different conclusions about the harm of proprietary software.

The language and development of the GPL proceeds along the line of defending freedom, something which the Open Source Initiative rejects due to its philosophy which aims to convince businesses and programmers that developmental efficiency is essential. The most recent revision of the GPL (GPLv3) is the first version any open source proponent had a hand in helping to write. The previous versions of the GPL were written before the OSI existed and before there was such a thing as the open source movement. To frame this issue as if “open source” is somehow generic term is merely an attempt to make that philosophy seem more entrenched than it really is (or to define its freedom-eschewing philosophy as the norm).

It is far more accurate to refer to the GPL as a free software license. Anyone reading the license (particularly section 12) or the history and development of the license will understand that this license was conceived, written, and maintained in order to create and defend software freedom for all computer users so that these freedoms are tied to the program as inalienable rights. As a result of the FSF’s work, the freedoms the GPL defends cannot easily be stripped away from covered programs.

Second, there isn’t enough public domain software to build an entire viable modern OS. Proprietors defend their copyright licenses in court if need be; first with inexpensive cease and desist letters, later with suing for copyright infringement. Some of the biggest proprietors fund a group which conducts raids to collect evidence of copyright infringement. Suspected infringers have already accepted the terms of a license which grants the proprietor or their agents physical access to the premises for the purpose of verifying license compliance.

One cannot reasonably expect that “inadvertent license violations” on the order of what is discussed in the article will somehow not “get them involved with lawyers”. Commercial copyright infringing distributors (such as the ones being sued with the help of the Software Freedom Law Center) would most certainly come to a proprietor’s lawyer’s attention if this were proprietary software instead of free software.

Quite to the contrary, the SFLC is using litigation as a last resort: I doubt any well-known proprietor would take all the steps the SFLC has taken to remedy the infringement without publicity or lawsuit. Eben Moglen has enforced the GPL for many years and says that “compliance with the license, and security for future good behavior, are the most important goals”, which meant Moglen was in private talks with many infringers, rarely requiring from them public admission of wrongdoing. This is, Moglen says, a big reason why the lack of GPL court cases shows how strong the GPL is: it’s rare to find anyone who wanted to test the waters:

[N]o one wanted to be seen as the villain who stole free software, and no one wanted to be the customer, business partner, or even employee of such a bad actor. Faced with a choice between compliance without publicity or a campaign of bad publicity and a litigation battle they could not win, violators chose not to play it the hard way.

Some are big proponents of the line where a copyright holder whose program is licensed under the GPL will sue some alleged infringer and go to court just to show that they can (I’m reminded of the quote about American foreign policy where the US throws some poor country against the wall every few years to preserve its status as a bully). Microsoft, in order to dissuade people from using “open source” (Microsoft won’t use the term “free software” lest they inadvertently remind people of the one thing proprietors can never compete against), was such a proponent.

If I had used the courts to enforce the GPL years ago, Microsoft’s whispering would now be falling on deaf ears. Just this month I have been working on a couple of moderately sticky situations. “Look,” I say, “at how many people all over the world are pressuring me to enforce the GPL in court, just to prove I can. I really need to make an example of someone. Would you like to volunteer?”

Someday someone will. But that someone’s customers are going to go elsewhere, talented technologists who don’t want their own reputations associated with such an enterprise will quit, and bad publicity will smother them. And that’s all before we even walk into court. The first person who tries it will certainly wish he hadn’t. Our way of doing law has been as unusual as our way of doing software, but that’s just the point. Free software matters because it turns out that the different way is the right way after all.