ABA Open Source Panel in New York

While much of the open source community was in San Francisco last week at the LinuxWorld Expo , I was in New York at the 2008 Annual Meeting of the American Bar Association (ABA) speaking at the “Life after GPLv3: New Developments in Open Source Software Licensing” event organized by the ABA Section of Intellectual Property Law. My presentation covered an update on the lawsuits filed over the past 12 months by the Software Freedom Law Center (SFLC) on behalf of their clients Erik Andersen and Rob Landley (the two principal developers of the BusyBox open source utility) against Monsoon Multimedia, Xterasys Corporation, High-Gain Antennas, Verizon Communications, Bell Microproducts, Inc., Super Micro Computer, Inc. and Extreme Networks alleging copyright infringement based on a violation of version 2 of the GNU General Public License (GPL) in connection with BusyBox. In addition to discussing the history and resolution of the BusyBox cases (including my involvement with several of the cases), I also highlighted the similarities and differences between these cases and past open source software license enforcement efforts outside of the courts by the Free Software Foundation (FSF) and Harald Welte of gpl-violations.org. The presentation materials are now available online. I understand that the ABA will be posting the materials from the other presenters at the event, as well as a podcast of the entire event, on the ABA website in the coming weeks.

Many thanks to Mark Wittow and Gloria Archuleta, co-charis of ABA IP Section for organizing the event and inviting me to speak. Thanks also to my co-presenters Terry Ilardi of IBM Corporation, Jim Markwith of Microsoft Corporation, and Gabe Holloway of Leonard, Street and Deinard, as well as the moderator of the panel discussion portion of the event, Sue Ross of Fulbright & Jaworski L.L.P.

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Affero GPLv3 Released

The Free Software Foundation (FSF) today announced the release of version 3 of the GNU Affero General Public License (AGPLv3). AGPLv3 is based on version 3 of the GNU General Public License (GPLv3), but has an additional term to allow users who interact with AGPLv3-licensed software over a network to receive the source code for that software (and modifications to that software). In particular, AGPLv3 modifes Section 13 of GPLv3 as follows:

While GPLv3 generally covers the distribution to third parties of modifications to software under GPLv3, it does not cover the situation where a user modifies software covered by GPLv3 and runs the modified software on a network without actually distributing a copy of the software. As a result, users making the functionality of software subject to GPLv3 available over a network (but not also distributing the software itself) are not required by GPLv3 to make available the source code to any modifications they have made to that software. This means that modifications to software covered by GPLv3 by companies operating operating under a software as a service (SaaS) or application service provider (ASP) model need not be released.

The fact that ASP/SaaS models are quickly becoming prevalent in the software industry and that the final draft of GPLv3 released earlier this year did not close this so-called “ASP Loophole” (or, if you prefer, “SaaS Loophole”) has led to a good deal of concern among open source commentators. The FSF intends that AGPLv3 will address these concerns by providing a means for developers to close this loophole. In particular, under AGPLv3, anyone running a copy of a modified version of software covered by AGPLv3 on a network must also make available a copy of those modifications as well (regardless of whether they have actually distributed the modified software itself). In their press release, the FSF notes that AGPLv3 is compatible with GPLv3 and, as a result, programmers who want to use the AGPLv3 for their work can also take advantage of software available under GPLv3. Given the additional coverage provided by AGPLv3, the FSF recommends that people consider using the AGPLv3 for any software which will commonly be run over a network.

Free (as in free beer) Free and Open Source Licensing Webinar follow-up

Thank you to those of you who attended this morning’s free (as in free beer) free and open source licensing webinar. As a number of you have requested a copy of the slides, I have posted a copy here. The audio from the webinar was recorded as well and should be posted shortly (feel free to contact me if it is not).

[UPDATE: Matt Asay has the audio for the webinar and instructions on how to get it on his blog]

We hit on a number of interesting topics during the webinar. Not the least of these was the recent interim decision in the Jacobsen v. Katzner case and the issues open source licensors and courts will continue to face regarding the interpretation of open source licenses and the language used in those licenses. Of course, we also hit on GPLv3 and the current happenings around open source software and software patents. We had a great Q&A after the webinar (which was also recorded). As is usually the case when I do a presentation like this one, I ended up coming away from the Q&A feeling like I had benefited as much as the audience.

Special thanks to Matt Asay for creating the opportunity for this webinar and helping to make it happen. Even though neither Matt nor his company Alfresco sponsored the webinar, it was through Matt’s suggestion, and with assistance from him and members of his team at Alfresco, that the webinar happened. Thanks again Matt.

There was at least one suggestion during the Q&A, and several following the webinar, for future webinar topics. If there are legal issues around open source licensing that you would like to see covered in future presentations, please let me know (either through a comment to this site or via email). And, stay tuned for information on upcoming webinars and presentations. With all that is going on legally in open source at present I will likely be speaking again soon.

 

GPLv3 Resources

Since my GPLv3 webinar back in July, I have fielded a number of questions regarding the whereabouts of the explanatory materials released by the FSF relating to GPLv3 that I referenced in the webinar. While most of these materials are available online (at the time of this post), they are not always easy to locate. To save you the trouble of tracking them down for yourself, I have posted links to the various materials below. I have also included links to comparisons showing the language changes made from draft-to-draft of GPLv3.

I mentioned it in the webinar and the topic came up again in a presentation this morning to Alfresco. In much the same way that the debate, discussion, commentary and interim drafts leading up to the passage of laws in this country are later used to help interpret the meaning and intent of those laws, these materials form a sort of “legislative history” of GPLv3 by which the language in the final draft of GPLv3 can be interpreted and (hopefully) better understood.

Please ping me with a comment or email if you have any difficulties with any of the links or if you know of other resources that should be added to this list.

GPLv3 Official Draft – June 29th 2007

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Rationale
FAQ
Comparison to Fourth Discussion Draft

GPLv3 Fourth Discussion Draft (the “Last Call” Draft) – May 31st 2007

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Rationale

Comparison to Third Discussion Draft

GPLv3 Draft Third Discussion Draft – March 28th 2007

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Rationale
Comparison to Second Discussion Draft

GPLv3 Second Discussion Draft – July 27th 2006

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Rationale

Comparison to Initial Discussion Draft

GPLv3 Initial Discussion Draft – January 16th 2006

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Rationale

GPLv3 Webinar Materials

[UPDATE: OpenLogic has posted a recording of the webinar on the OpenLogic web site — Click Here]

Thanks to all of you who attended my GPLv3-Not Without Me! (or, if you prefer, GPLv3, What’s In It For Me?) webinar earlier today. Judging from the fantastic response we had in terms of registrations (and attendees), the topic of GPLv3 is clearly a hot one for companies across a broad demographic (vendors and users alike) and likely not one that is going away anytime soon.

As I mentioned during the Webinar, so much of open source software license interpretation has come to be based on accepted practices and established codes of conduct developed within the open source (legal) community. This results in large part from the lack of useful legal precedent relevant to the treatment of open source software, and software in general, under copyright law – with the practices and codes of conduct filling the gaps in the existing law. I suspect this also results from the fact that open source software development itself is reliant on a community-based process. If the software is developed by and through a community, it follows that many of the legal interpretations relevant to the software would naturally result from similar processes. What this means with a new license as ubiquitous as the GPL is that all of us involved with open source software licensing are now a part of that community developing the next generation of those practices and codes. Challenging? Perhaps. But likely also a big part of the reason why many of us find ourselves attracted to open source software.

Look for a follow-up webinar later in the year to examine how these practices and codes of conduct are starting to develop around GPLv3 and to spend a bit more time with a few of the weightier topics from today’s webinar. In the meantime, I have posted the slides from the webinar to this site and OpenLogic will be posting a recording of the entire webinar to their web site soon (including the Q&A portion for those of you who had to leave early). There were some great questions from the attendees and I encourage you to check it out!

Behold v3 is Upon Us. . .

The FSF announced today the release of the initial discussion draft of the 3rd version of the GNU General Public License (GPLv3). The draft is available online at a GPLv3 web site established by the FSF. The FSF plans a remarkably open comment and drafting process for vetting and iterating GPLv3 before a final draft is released.

The FSF press release is included below. Let the games begin!

On January 16th, the leaders of the Free Software Foundation, Richard Stallman and Eben Moglen, welcomed over 300 people in an auditorium at the Massachusetts Institute of Technology to the first in a series of international conferences dedicated to producing the next version of the GNU General Public License.

As a subscriber to this mailing list, you received a copy of the new license draft simultaneous with its release at the conference—but if you weren’t also in the room, you missed Professor Moglen’s detailed walk-through of the new text, and Richard Stallman’s description of the threats faced by the free software community to which the new license must respond.

You can now download the video of the opening presentation at <http://gplv3.fsf.org/av/gplv3-draft1-release.ogg.torrent&gt;.

Since then, comments on the license draft have been welcomed at <http://gplv3.fsf.org/comment&gt;, but the commenting process actually began during the remainder of the two-day conference during a series of panels exploring the specific issues raised by Moglen and Stallman and inviting dialogue with the audience.

The two most thought-provoking panels were the the panel on Digital Restrictions Management (DRM), and the panel on internationalization.

The DRM panel included FSF’s David Turner, the Electronic Frontier Foundation’s Staff Technologist and DRM expert Seth Schoen, and the Wikimedia Foundation’s Legal Officer Jean-Baptiste Soufron. They detailed the threats posed by Treacherous Computing (often misleadingly called Trusted Computing) and discussed with the audience ways that the new GPL will deal with them.

The related license provisions have been highlighted in the news recently as a result of concerns expressed by the Linux developers. Stallman has responded to these concerns:

GPLv3 would not require Linux developers to publish the private
keys that they use to sign Linux source versions to show they are
authentic. But GPLv3 would require the manufacturer of the Tivo
you bought to give you the key needed to sign a binary so it will
run on your Tivo. That means you will really be able to run the
modified versions on your Tivo and they will really run.

The Tivo was the first well-known case of a machine that included
free software but refused to run the users’ modified versions, but
it surely won’t be the last. It happens that Linux is one of the
programs that were tivoized in this way.

We hope that the developers of Linux will adopt the GPLv3, so as
to make future Linux versions resistant to tivoization in the
future.

Identifying any unintended consequences of the new GPL is a vital part of the update process, and the FSF welcomes everyone to comment on the license.

Since the GPL seeks to provide protection for free software worldwide, the panel discussion hosted by a group of free software luminaries from around the world, including Juan Carlos Gentile (Hipatia); Enrique Chaparro (FSF Latin America); Stefano Mafulli (FSF Europe); and Niibe Yutaka (Free Software Initiative of Japan), was another essential component. They focused on key differences between languages and jurisdictions that will need to be considered, and on the need to translate not only the license itself but also the documents surrounding the drafting process.

More conferences are planned for the future, and we will be sure to let you know the dates as they become available. Please support the continuation of this process by making a donation at <https://www.fsf.org/donate&gt;, or by becoming an FSF associate member at <http://member.fsf.org&gt;. As a benefit, you will then be able to attend our annual membership meeting on April 1st in Cambridge, Massachusetts.

At the conference, in addition to the license, we also released a new t-shirt and hoodie featuring the GPLv3 logo. You can show your support by ordering them at <http://www.gnu.org/gear/gplv3-tshirt.html&gt;.


John Sullivan, FSF
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