Wednesday 15 July 2015 by Bradley M. Kuhn
Most of you by now have probably seen Conservancy's and FSF's statements regarding the today's update to Canonical, Ltd.'s Ubuntu IP Policy. I have a few personal comments, speaking only for myself, that I want to add that don't appear in the FSF's nor Conservancy's analysis. (I wrote nearly all of Conservancy's analysis and did some editing on FSF's analysis, but the statements here I add are my personal opinions and don't necessarily reflect the views of the FSF nor Conservancy, notwithstanding that I have affiliations with both orgs.)
First of all, I think it's important to note the timeline: it took two years of work by two charities to get this change done. The scary thing is that compared to their peers who have also violated the GPL, Canonical, Ltd. acted rather quickly. As Conservancy pointed out regarding the VMware lawsuit, it's not uncommon for these negotiations to take even four years before we all give up and have to file a lawsuit. So, Canonical, Ltd. resolved the matter at least twice as fast as VMware, and they deserve some credit for that — even if other GPL violators have set the bar quite low.
Second, I have to express my sympathy for the positions on this matter taken by Matthew Garrett and Jonathan Riddell. Their positions show clearly that, while the GPL violation is now fully resolved, the community is very concerned about what the happens regarding non-copylefted software in Ubuntu, and thus Ubuntu as a whole.
Realize, though, that these trump clauses are widely used throughout the software industry. For example, electronics manufacturers who ship an Android/Linux system with standard, disgustingly worded, forbid-everything EULA usually include a trump clause not unlike Ubuntu's. In such systems, usually, the only copylefted program is the kernel named Linux. The rest of the distribution includes tons of (now proprietarized) non-copylefted code from Android (as well as a bunch of born-proprietary applications too). The trump clause assures the software freedom rights for that one copylefted work present, but all the non-copylefted ones are subject to the strict EULA (which often includes “no reverse engineer clauses”, etc.). That means if the electronics company did change the Android Java code in some way, you can't even legally reverse engineer it — even though it was Apache-licensed by upstream.
Trump clauses are thus less than ideal because they achieve compliance only by allowing a copyleft to prevail when the overarching license contradicts specific requirements, permissions, or rights under copyleft. That's acceptable because copyleft licenses have many important clauses that assure and uphold software freedom. By contrast, most non-copyleft licenses have very few requirements, and thus they lack adequate terms to triumph over any anti-software-freedom terms of the overarching license. For example, if I take a 100% ISC-licensed program and build a binary from it, nothing in the ISC license prohibits me from imposing this license on you: “you may not redistribute this binary commercially”. Thus, even if I also say to you: “but also, if the ISC license grants rights, my aforementioned license does not modify or reduce those rights”, nothing has changed for you. You still have a binary that you can't distribute commercially, and there was no text in the ISC license to force the trump clause to save you.
Therefore, this whole situation is a simple and clear argument for why copyleft matters. Copyleft can and does (when someone like me actually enforces it) prevent such situations. But copyleft is not infinitely expansive. Nearly every full operating system distribution available includes an aggregated mix of copylefted, non-copyleft, and often fully-proprietary userspace applications. Nearly every company that distributes them wraps the whole thing with some agreement that restricts some rights that copyleft defends, and then adds a trump clause that gives an exception just for FLOSS license compliance. Sadly, I have yet to see a company trailblaze adoption of a “software freedom preservation” clause that guarantees copyleft-like compliance for non-copylefted programs and packages. Thus, the problem with Ubuntu is just a particularly bad example of what has become a standard industry practice by nearly every “open source” company.
How badly these practices impact software freedom depends on the strictness and detailed terms of the overarching license (and not the contents of the trump clause itself; they are generally isomorphic0). The task of analyzing and rating “relative badness” of each overarching licensing document is monumental; there are probably thousands of different ones in use today. Matthew Garrett points out why Canonical, Ltd.'s is particularly bad, but that doesn't mean there aren't worse (and better) situations of a similar ilk. Perhaps our next best move is to use copyleft licenses more often, so that the trump clauses actually do more.
In other words, as long as there is non-copylefted software aggregated in a given distribution of an otherwise Free Software system, companies will seek to put non-Free terms on top of the non-copylefted parts, To my knowledge, every distribution-shipping company (except for extremely rare, Free-Software-focused companies like ThinkPenguin) place some kind of restrictions in their business terms for their enterprise distribution products. Everyone seems to be asking me today to build the “worst to almost-benign” ranking of these terms, but I've resisted the urge to try. I think the safe bet is to assume that if you're looking at one of these trump clauses, there is some sort of software-freedom-unfriendly restriction floating around in the broader agreement, and you should thus just avoid that product entirely. Or, if you really want to use it, fork it from source and relicense the non-copylefted stuff under copyleft licenses (which is permitted by nearly all non-copyleft licenses), to prevent future downstream actors from adding more restrictive terms. I'd even suggest this as a potential solution to the current Ubuntu problem (or, better yet, just go back upstream to Debian and do the same :).
Finally, IMO the biggest problem with these “overarching licenses with a trump clause” is their use by companies who herald “open source” friendliness. I suspect the community ire comes from a sense of betrayal. Yet, I feel only my usual anger at proprietary software here; I don't feel betrayed. Rather, this is just another situation that proves that saying you are an “open source company” isn't enough; only the company's actions and “fine print” terms matter. Now that open source has really succeeded at coopting software freedom, enormous effort is now required to ascertain if any company respects your software freedom. We must ignore the ballyhoo of “community managers” and look closely at the real story.
0Despite Canonical, Ltd.'s use of a trump clause, I don't think these various trump clauses are canonically isomorphic. There is no natural mapping between these various trump clauses, but they all do have the same effect: they assure that when the overarching terms conflict with the a FLOSS license, the FLOSS license triumphs over the overarching terms, no matter what they are. However, the potential relevance of the phrase “canonical isomorphism” here is yet another example why it's confusing and insidious that Canonical, Ltd. insisted so strongly on using canonical in a non-canonical way.
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