Concerns relating to the FSF and Future Licenses

[Chris Travers]

Hi all;

This email is in response to Chris Dibona's willingness to discuss
concerns I have with the FSF and the future of Free/Open Souce Software
licenses. I am not posting this on the GPL v3 thread because I believe
this is *not* relevant to the approval of that license (despite DiBona's
view that similar questions are relevant for the approval of Microsoft
licenses). This is hence more of a set of concerns which I think people
should be aware of as new licenses are released.

Also, I am not a lawyer. To the extent that this reflects my
understanding of the law, the purpose is a discourse relating to
Free/Open Source Software ideals and practices, not any sort of legal
analysis as a desired end.

As a quick summary, I think that there has always been questions by some
about the specific loyalties of the FSF to certain aspects of their
ideals (for example allowing invarient sections in the GFDL in order to
be able to force the distribution of the GNU manifesto with certain
other documents-- note that invariant sections are considered non-Free
by Debian because, quite frankly they aren't Free despite the license
name) but I have generally given them the benefit of the doubt until I
became aware of certain trends during the GPL v3 process. I now openly
question the extent to which the FSF is tied to their ideological
platform vs the extent to which the organization has become fanatical,
describing Freedom in tones which relate well to the "War on Terror." I
will lay out why I feel this way and give others who disagree with me a
chance to engage me in conversation.

I believe that our response should be no different than for other
submitters of licenses; Read the license, look for any grounds to reject
it. Discuss any possible grounds and determine whether or not those are
grounds for rejection. However, often it is important to see trends in
order to ask where to look.

In this email is also a case why the FSF should not even bother
submitting the Affero Public License for approval here.

I: Noble Goals
I personally doubt that anyone on this forum would disagree that the 4
Basic Freedoms listed by the FSF are valuable to everyone both morally
and economically. The FSF deserves a great deal of credit for
articulating these in a simple framework which can be used to show
people why software freedom is beneficial to everyone.

The 4 Basic Freedoms are commonly used by me to explain to business
types why software freedom is important and how it benefits business.

II: Historical Questions
There have been a number of historical flaps involving the FSF and their
president, Richard Stallman over time. While past performance is no
guarantee of future results, context is helpful.

The GFDL is substantially weaker as a copyleft license than the GPL or
similar licenses. The reason is the ability to add invarient sections of
text which cannot be altered by subsequent editors. Thus not all GFDL
works are Free as a whole (in that all portions of the works are
modifiable). According to Richard Stallman, the goal of allowing the
invariant sections was to prevent people from removing the GNU manifesto
from the EMACS manual. This does raise the question of whether RMS
equates Freedom in documentation (and political expression within that
documentation) to Freedom of software as a whole. In short, it raises
serious questions as to whether political victory is more important than
the ideals which theis cause is based on. Source: RMS email to
debian-legal (http://lists.debian.org/debian-legal/2003/08/msg00807.html)

Secondarily, I have been concerned about comments I remember reading
(sorry, cannot find the source so I could be wrong) a few years ago
where RMS questioned whether Free versions of Apache really had an
overwhelming market share due to the possibility of proprietizing the
software. Given the experience of me and a large number of other people,
I think his comments while possibly factually accurate on the surface
(i.e. something to the effect of "nobody can tell me for certain....")
were *clearly* intended as a means of spreading FUD about licenses
similar to the BSDL *and* about projects under those licenses. I see
this sort of thing as an attack of a similar nature (though perhaps not
quite tot he same level as) comments by Stebe Balmer to the affect that
"We think Linux infringes on a bunch of our patents but we won't tell
you which ones. Don't worry-- we currently have no intentions to sue."
In both cases, the intent is to simply scare people away from using
products or licenses which are perceived as a threat.

III: AGPL: Copyleft, but Effectual and/or Free?

The Affero General Public License (AGPL) has been marketed as the first
copyleft license for web services. By the FSF's definition of copyleft,
it would seem to qualify to some extent but the portions of the AGPL
which are different from the GNU GPL (referred to here just as 'GPL') in
version two are probably entirely ineffectual.

Under the AGPL, one is required to provide the source upon request to
anyone to whome one has supplied binary versions of the software. Mere
use over a network, as in the GPL, does not qualify as supplying. There
is an added provision that one may not remove interfaces for downloading
source code from the program itself when these offer the interfaces as
part of the program.

However, network users of the software are *not* covered by the same GPL
rights to receive the source as are those whom object code has been
distributed to. Hence the AGPL only reqires that the interfaces are left
intact in the software to allow the user to "request" the source code,
and in no way precludes either altering those interfaces to deny the
request, nor does it preclude the use of firewalls to filter out usage
of such interfaces.

The AGPL v2 thus sacrifices the freedom to modify the code for one's own
use (and distribution) without offering the users any guarantee of the
source in return (the users are only guaranteed a right to "request" the
source). This loophole has been addressed in part or full in the
discussion drafts of AGPL v3, but this license poses additional problems
and either leaves similar loopholes or severely curtails *use* not only
of the covered software but of other network components as well (i.e.
"Freedom" starts taking on a meaning similar to its use in "War on
Terror" discussions). In short the attempt to move to copyleft licenses
which compell sofware-as-a-service models to release code to the
community is moving the FSF substantially away from the most basic
software Freedom-- the right to use software as one sees fit (the FSF's
Freedom 0). For more information on this problem, see the concerns about
the AGPL v3 below. Because the OSI's OSD is indirectely derived from the
FSF's 4 Basic Freedoms, I think that this should be heeded as a
potential warning about problems relating to further licenses.

IV: GPL v3 process: Commitment to Standards of Freedom or Not?

One of the areas where I feel the FSF has substantial room for
improvement is in the area of fostering dialog about the meaning of Free
Software and circumstances under which basic Software Freedoms can be
abridged. There has been little written about the fact that rights to
use the software (Freedom 0) effectively end when one initiates patent
lawsuits under licenses such as teh Apache License, the GPL v3, and
others. While I believe that such clauses are helpful to the community,
I also think it is important that a position as to where the line is
drawn is articulated. Something to the effect that "we support these
clauses because users of Free Software only lose their rights when they
effectively attack the entire community." Such position statements help
prevent the erosion of software Freedom by fostering discussion at every
step of the way.

A serious concern that I held about the GPL v3 process involved the
ability for anyone to add the AGPL network access clause which I (and
many others) feel violates basic software freedoms. This was removed on
discussion draft 3 and replaced with a linking exception. If I were to
release software under the GPL v3, anyone could add additional
requirements which would potentially govern the *use* of the software
and other network components (see below under the AGPL v3 section). This
has never been justified to my knowledge under Free Software ideas but
only under copyleft. In other words, early GPL discussion drafts
violated basic software freedoms (the freedom to use and modify the
software according to one's own needs) in ways which were justified only
by copyleft and no discussion was given to the effects on the basic
software freedoms.

When the offending clause was removed in Draft 3 and replaced with a
linking exception, the reasoning was simply that the ability to convert
code to an AGPL-style license simply made the license too complex
(source: Rationale document of GPL v3 Draft 3). Again, no discussion was
given to the possible impacts on basic software Freedoms.

I believe that the FSF has become an organization devoted to copyleft at
great expense to the basic software freedoms they claim to hold dear. I
do not believe that copyleft is synonymous with software Freedom, and I
think that the key is to look for balance between these two, often
competing concepts.

This is not to say that the GPL v3 does not have some good points. The
software is arguably now compatible with old-style BSD licenses due to
the possibility of adding section 7b legal notices, it is now compatible
with the Apache License 2.0 and two (but only two) of the Microsoft
shared source licenses. In short some issues have been addressed but at
a high cost to general

V: AGPL v3 Discussion Draft 2: Copyleft, but is it Free?

The AGPL Discussion Draft 2 is the GPL v3 with the following additional
restriction:

"Notwithstanding any other provision of this License, if you modify the
Program, your modified version must prominently offer all users
interacting with it remotely through a computer network (if your version
supports such interaction) an opportunity to receive the Corresponding
Source of your version by providing access to the Corresponding Source
from a network server at no charge, through some standard or customary
means of facilitating copying of software. This Corresponding Source
shall include the Corresponding Source for any work covered by version 3
of the GNU General Public License that is incorporated pursuant to the
following paragraph. "

A linking exception is also provided to the GPL v3.

There are two possible readings of the above restriction, both are
potentially very bad as they relate to the balance between software
Freedom and copyleft.
¶
<http://gplv3.fsf.org/comment/agplv3-draft-2.html#agplv3.remotenetworkandgnu.p0>
→
<javascript:getnotes('3555:3556:3560:3563:3564:3566:3567:3568:3569:3570:3571:3572')>

Under a fairly narrow reading of the above requirement, the covered work
itself must allow for its source code to be downloaded over the same
network session when required by the provision to the extent that such
modifications are governed under copyright law. This is not protocol
neutral, and protocols accustomed to sending small amounts of data back
and forth (for example, a UDP-only DNS server possibly making it
problematic for the OSI to approve absent other use restriction concerns
listed below) would seem run into trouble with this license. However,
nothing in the license according to this reading precludes the use of
network firewalls and other network devices from filtering out such
requests (perhaps sending back appropriate errors to the client). By
this reading the AGPL offers no guarantees to users beyond that of the
GPL except that an interface will be available by which they can
politely request (but not necessarily obtain) the source code. Note
again that the AGPL v3 specifically states that conveyance requirements
do *not* apply to use over a network.

The second, and far more pernicious, reading of the AGPL v3 network
interaction clause is that it creates a contract between anyone who
modifies the code and the copyright author under which the author of the
derivative work is *obligated* to provide the source of modifications to
the user. In this reading, use of other network devices such as
firewalls to deny source requests would essentially create a breach of
contract. In this reading the AGPL v3 not only restricts use of any
derivative works themselves but also restricts use of any network
components which sit in between the modified software and the user. In
this reading, while the AGPL is clearly copyleft, it is *very* non-Free.
If this is the accepted reading, it seems to me that it *is not*
consistent with any of the following definitions of Free/Open Source
Software:

1) The FSF's 4 Basic Freedoms
2) Debian Free Software Guidelines
3) OSI OSD.

It is, however, consistent with the definition of copyleft and with
RMS's view of open source in the sense that one can merely "see the
source code" without the guarantee of the 4 basic freedoms.

One is reminded of the following Babylon 5 quote from the episode
"Infection:"

"You forgot the first rule of the fanatic: when you become obsessed with
the enemy you become the enemy," Commander Jeffrey Sinclair.

VI: My General Concerns about the FSF's Commitment to Software Freedom

My general concern about the FSF is that political victory and
*compelling people to agree or at least accept* copyleft has become more
important than defending basic software freedoms even in the terms they
articulate as their core values. In short, I think that they are no
longer defenders of the 4 Basic Freedoms but rather have pushed the idea
of copyleft so far that it only means "you have the right to see the
source."

The FSF's core philosphy as stated on their site is a noble one. My
concerns are not about this philosophy but rather about their
unwillingness to put it before political expedience or short-term
victory. "Freedom" is a powerful word but those who speak of it are
*not* always defenders of the core concepts. I believe that while the
FSF has waivered in the past in this area, the march towards the AGPL
has cast "Freedom" in the same terms as do many discourses about the
"War on Terror." In short it has lost any tangible quality and we are
told that essential aspects must be sacrificed perhaps permanently in
order for the abstract idea to be preserved.

I believe that the FSF can find a way out if they can start establishing
objective standards for Freedom, as Debian has had to do. Note that the
heritage of the OSI OSD largely comes from Debian's Free Software
Guidelines which are derived from an attempt to build standards of
Freedom around the FSF's guidelines. It is not correct that the OSD is
weaker than the FSFs standards because several licenses approved as
"Free" by the FSF may fail to meet the OSD requirements due to the fact
that they *fail* to grant users of the software appropriate freedoms.

Best WIshes,
Chris Travers

[chris.vcf]

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[Rick Moen]

Quoting Chris Travers (chris@...):

> Hi all;

[incredibly long post]

Chris seems to want list-members to conduct an inquiry into FSF itself
and conduct of FSF spokesmen (especially their "loyalty to their ideals"),
as opposed to examining FSF-originated licences on their merits measured
against, oh, the Open Source Definition.

Speaking for myself, gee, Chris, that just doesn't sound interesting
(coming across, in fact, as a huge and rather disreputable waste of time),
and I suggest you look up the phrase "tu quoque".

[Chris Travers]

For the record, this discussion came about because of questions as to
whether similar concerns should be considerd wrt Microsoft.

I just felt that if I was going to say something like "do we want to
open this door" relating to discussing Microsoft's priorities relating
to FOSS, and suggesting that it the FSF's hands in this area are not
clean, then I probably should back up what I say.

I am *not* asking for an inquiry into the FSF.  I am *not* asking for
this to be held against any of their licenses (though I have a hard time
imagining how the AGPL can ever be held as "Free" by any standard other
than "because it was released by the FSF."

The post is also a bit of background into why I consider the FSF as
pernicious when it comes to Free Software as any proprietary software
vendor.

But that is what it is.  It does *not* bear any relevance to the OSI
other than to provide context for other remarks I have made.  I would
note that many people including Rick Moen and Chris Dibona have either
asked me to back up what I have said on other threads or offered to
discuss it.  I figured that such a post was only fair even if only
marginally on-topic.

Best WIshes,
Chris Travers

Rick Moen wrote:

> Quoting Chris Travers (chris@...):
>
>  
>> Hi all;
>>    
>
> [incredibly long post]
>
> Chris seems to want list-members to conduct an inquiry into FSF itself
> and conduct of FSF spokesmen (especially their "loyalty to their ideals"),
> as opposed to examining FSF-originated licences on their merits measured
> against, oh, the Open Source Definition.
>
> Speaking for myself, gee, Chris, that just doesn't sound interesting
> (coming across, in fact, as a huge and rather disreputable waste of time),
> and I suggest you look up the phrase "tu quoque".
>
>
>
>
>
>
>  

[chris.vcf]

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[Chris Travers]

Rick Moen wrote:

> Quoting Chris Travers (chris@...):
>
>  
>> Hi all;
>>    
>
> [incredibly long post]
>
> Chris seems to want list-members to conduct an inquiry into FSF itself
> and conduct of FSF spokesmen (especially their "loyalty to their ideals"),
> as opposed to examining FSF-originated licences on their merits measured
> against, oh, the Open Source Definition.
>  

Just a point as to what I want...  I think we should generally agree

that questions as to whether a license should be approved should be
limited to the 4 corners of the license.  What we think of RMS, the FSF,
Microsoft, Oracle, or any other person/organization should play no part
in approval decisions (one major reason for the separate thread).

That concensus seems fairly close.  What I am actually arguing against
are points such as follows (posted by Chris DiBona on the MS-PL approval
thread):


"If not, why should the OSI approve of your efforts? That of a company
who has called those who use the licenses that OSI purports to defend a
communist or a cancer? Why should we see this seeking of approval as
anything but yet another attack in the guise of friendliness?"

Later in the thread.

"Again, this is not a discussion about licenses but whether or not it is
wise for OSI to enable its most vicious competitor."

The implication being that if we see an organization as a vicious
competitor, we should consider rejecting their licenses on the grounds
that they may be used against us as an organization whether or not they
otherwise meet our standards.  THe problem with this point is that it
opens the door to discussing whether an organization is a "vicious
competitor" every time a license is submitted.  Would it be right for me
to ask the FSF to reply to similar questions derived from my post as to
whether they are going to start guarding software Freedom again every
time they propose a license?

I think the point should be clear.  I have now made it and I will not
post any further comments on this thread unless requested to do so.

Best WIshes,
Chris Travers

[chris.vcf]

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[Rick Moen]

Quoting Chris Travers (chris@...):

> For the record, this discussion came about because of questions as to
> whether similar concerns should be considerd wrt Microsoft.

Chris di Bona did not seriously suggest anything of the sort.  He merely
posed a pointed question or two, to any Microsoft Corporation
representatives as to why OSI should assist them, given numerous
substantive hostile actions.  The substantive nature, and the hostile
character, of those actions are far past dispute, which is in both areas
is considerably more than can be said of your irrelevant and fluffy
gossip-mongering with which you initially claimed you wished to waste
our time.

And you _still_ need to look up "tu quoque".

> I would note that many people including Rick Moen and Chris Dibona
> have either asked me to back up what I have said on other threads or
> offered to discuss it.

I would note, since you mention that, that you evaded my question, both
here and in private mail.

[Chris DiBona]

An i'm happy to discuss it, when I'm back from vacation :-) See you
two next week!

On 8/18/07, Rick Moen <rick@...> wrote:

> Quoting Chris Travers (chris@...):
>
> > For the record, this discussion came about because of questions as to
> > whether similar concerns should be considerd wrt Microsoft.
>
> Chris di Bona did not seriously suggest anything of the sort.  He merely
> posed a pointed question or two, to any Microsoft Corporation
> representatives as to why OSI should assist them, given numerous
> substantive hostile actions.  The substantive nature, and the hostile
> character, of those actions are far past dispute, which is in both areas
> is considerably more than can be said of your irrelevant and fluffy
> gossip-mongering with which you initially claimed you wished to waste
> our time.
>
> And you _still_ need to look up "tu quoque".
>
> > I would note that many people including Rick Moen and Chris Dibona
> > have either asked me to back up what I have said on other threads or
> > offered to discuss it.
>
> I would note, since you mention that, that you evaded my question, both
> here and in private mail.
>
>
>

--
Open Source Programs Manager, Google Inc.
Google's Open Source program can be found at http://code.google.com
Personal Weblog: http://dibona.com

[Dag-Erling Smørgrav-2]

Chris Travers <chris@...> writes:
> [quoting Chris DiBona]
> "Again, this is not a discussion about licenses but whether or not it
> is wise for OSI to enable its most vicious competitor."
>
> The implication being that if we see an organization as a vicious
> competitor, we should consider rejecting their licenses on the grounds
> that they may be used against us as an organization whether or not
> they otherwise meet our standards.  [...]

and at that point, someone could point out that there have been times
when relations between the FSF and the OSI were such that it might
have appeared to an outside observer that the FSF was a "vicious
competitor" of the OSI...

DES
--
Dag-Erling Smørgrav
Senior Software Developer
Linpro AS - www.linpro.no