Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, Hance Haney, Tim Lee, Adam Thierer, and Mike Masnick of Techdirt.com. Topics include,
- The FCC releases its report on violence in the media
- Copyright and the economics of abundance
- Patent reform heats up in Congress with a new bill
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On Monday, the WashingtonWatch.com wiki went “live” – with a lot of promo efforts dedicated to getting it in front of an ever-broader audience. Along with a release out on PR Newswire, it got a friendly write-up on TechCrunch, where Mike Arrington is rubbing his hands together in anticipation of the fun.
I’m pleased to see that several people and groups have begun editing bills of interest to them. It looks like the National Association of Realtors has a say about the Community Choice in Real Estate Act, though they don’t seem to be winning the day with site visitors, judging by the votes.
The Center for Science in the Public Interest is making the case against cutting the beer tax. Love the comment on that page. A couple of different editors have added information to S. 9, The Comprehensive Immigration Reform Act of 2007. It’s one of the consistently popular bills on the site.
Of interest to folks here on TLF might be the write-up of S. 744, The SAVE LIVES Act. That’s Senator McCain’s public safety spectrum bill. I’m not equipped to determine whether the editor of that bill makes any sense. Luckily, anyone with an Internet connection can, and they can improve it too, if they want. It’s a wiki.
From IPcentral.info…
Tony Healy, programmer and Senior Fellow of the Institute for Policy Innovation, has commented before on issues involving the GPL, and particularly on ASPs. (See, e.g., GPLv3 and Web Businesses Is the Free Software Foundation Getting Tricky?)
He sends the following commentary on the ASP issue and the latest draft of GPLv3:
FSF betrays its followers with GPL v3
By Tony Healy — April 23, 2007
Amid the smoke and confusion around GPL v3, one thing is clear. The Free Software Foundation has wimped out of its intention to close the ASP loophole, thus betraying its programmer supporters.
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Last week, Mark Blafkin said:
There is a loophole (that Stallman hasn’t found a way to close yet) in the GPL that allows distributors to ship proprietary binaries on the same CD as free software, but they can’t be part of the same program/system. The GPL is designed to make it as difficult possible (and GPLv3 more so) to run both proprietary and free software at the same time.
Now, Merriam-Webster defines a “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” With that in mind, here is the relevant provision of GPL v2:
Mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.
Now, as it states above, the term “loophole” describes an interpretation of a contract that is contrary to the intention of its drafters. If the ability to distribute free and proprietary software side-by-side on a CD is a “loophole,” it’s mighty hard to explain why they would have added a provision that explicitly permits such distribution.
But whether that was a loophole or not, at least Stallman is working hard to close it, right? Well, here’s the latest version of the GPL 3 draft:
A compilation of a covered work with other separate and independent works, which are not by their nature extensions of the covered work, in or on a volume of a storage or distribution medium, is called an “aggregate” if the compilation and its resulting copyright are not used to limit the access or legal rights of the compilation’s users beyond what the individual works permit. Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate.
This is a bit wordier, but it seems to me that the intent is no less clear: the GPL specifically and deliberately permits distributors to “ship proprietary binaries on the same CD as free software.” Blafkin either doesn’t know what a loophole is, or didn’t bother to read and understand the GPL before criticizing it.
Mark Blafkin concedes I’m right that the GPL respects the freedom of users to choose whether to use proprietary software alongside free software. But he insists I’m missing the big picture:
This brings us to one fact that Tim got blatantly wrong. Stallman HAS attacked the OpenOffice team for relying on proprietary code in the past. This article from NewsForge chronicles the dispute over OpenOffice’s reliance on Java code and the FSF’s plans to rewrite the code to remove any of those dependencies.
Despite what Tim asserts, Stallman is not content with promoting his goals merely through persuasion and cooperation. The GPL comes complete with the copyright equivalent of land use restrictions that limit what you (and now your customers) can do with that software. It essentially says that if you build a new barn on top of your land (aka GPL Software), you need to share your designs with the entire world. Does that REALLY jive with traditional libertarian beliefs? The GPL is designed to force anyone who uses that software to accept the ideology of the FSF either for moral or pragmatic reasons.
If you look closely, what I said was that Stallman has never “criticized efforts by the Open Office team to allow free software users to use Microsoft Word documents.” Stallman’s criticism of OpenOffice for building atop a proprietary platform makes perfect sense in light of his focus on users’ freedom. Free software built upon proprietary software is going to be subject to any restrictions that apply to the underlying proprietary software. Since Stallman’s focus is on preserving users’ freedom to use software as they choose, this makes perfect sense to me. Stallman objects to integrating free and proprietary software, because it runs the risk of undermining users’ freedoms. But he’s never objected to interoperability between free and proprietary software.
But let’s talk about the big picture. As I’ve said before, libertarianism is not “marketarianism”:
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My TLF post last week on the new draft of the GPL v.3 (or as I referred to it, GPL Vendetta) sparked a number of exchanges. Neil McAllister at InfoWorld said in his article that V should be for Vindication, not vendetta. And in his post Tim Lee responded to Mark Blafkin’s thoughts on the draft GPL v.3. Mark has a recent response of his own where he ruminates on Richard Stallman’s alleged libertarianism.
All this interesting and passionate discourse leads me to wonder why we care so much about the GPL? Of the many tech policy issues, this one strikes a visceral nerve with a vocal cadre of techies. I’m less visceral and more analytically removed (not to imply that others aren’t analytical). I care not because I’m a programmer, but because markets care – the GPL has made major inroads into commercial enterprises! And as a lawyer, I care about how attorneys will be counseling their clients on the GPL 3 (as embodied in the current draft). In this regard, there’s an interesting SearchEnterpriseLinux.com article that features an interview of Jeff Seul, an IP attorney, where he states:
With other open source licenses out there, like the Mozilla public license, and the Apache license, you discover that they are brief and are in plain English. The GPLv3 is 12 pages with a 60-page explanatory document. I don’t know how people are going to cope with a 12-page licensing agreement with 60 pages of ancillary text – that’s 70-plus pages of text and it’s ambiguity run amok. If I ever had a client come to me, and they said they wanted to build a business around the GPLv3, and were asking for a legal opinion on it, this lawyer would not have the confidence in it to give them clear legal advice.
I wholeheartedly support the ability of the FSF to dictate its licensing terms – but ultimately the software market will – as counseled by lawyers – be the final arbiter of the GPL 3.
Again, I quote with permission from Jim on the ipcentral blog:
Obviously, last week’s release of new draft of GPLv3 was a big deal in the software world, but the discussion has taken a strange turn. The tech media all did their job — reporting, interviewing, analyzing. But the discussion boards, both “community” and business, are oddly uninformative.
Some big questions swirl around how GPLv3 would work in the real world, and, above all, how would it affect the customers’ and the whole tech world’s need for both interoperability and transaction costs that are low and predictable.
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Mark Blafkin and I have been having an interesting and productive discussion in the comments to Braden’s post about the GPL v. 3. Mark says:
The FSF and the GPL itself actively attempt to limit collaboration between proprietary and free software communities. As you’ll find in the article previously mentioned, Mr. Stallman says that it is better for GNU/Linux to not support video cards rather than include a proprietary binary.
In fact, the entire basis of the GPL is to frustrate cooperation between the immoral proprietary software guys and free software. The viral nature of the GPL (if you use code and integrate or build upon it, your code must become GPL) is designed to prevent that cooperation because it will lessen the freedom of the free software itself.
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I thought this was interesting and with permission I quote in its entirety from ipcentral:
Having examined the latest draft of the Free Software Foundation’s General Public License version 3 (GPLv3) several times, and having looked over the Rationale document, I have come to a diagnosis.
If GPLv3 were a human being, one would say that it has delusions of grandeur. It thinks it is a law rather than a license.
Legally speaking, GPLv3 is a license, which is a form of contract. It specifies the terms on which the holder of copyrights or patents on software will permit others to make use of it. It is a bit of a special case because it is open to the world at large; anyone may use it, without payment, as long as they abide by its terms, which is unusual in contract law. However, there are doctrines of promissory estoppel and third party beneficiaries that take account of such things, and GPLv3 is firmly within the legal genre of contract.
But the GPLv3 was apparently drafted on the assumption that it is something quite different — that it is a regulation controlling a range of general behavior by software users, and that it is being promulgated by a governmental body with law-creating power.
The difference between a contract and a regulation is extremely important.
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