Copyleft and the GPL

Finding the Path Forward to Defend our Software Right to Repair

Bradley M. Kuhn, Policy Fellow & Hacker-in-Residence at Software Freedom Conservancy

FOSDEM 2024, Saturday 3 February 2024

Slides at: https://ebb.org/bkuhn/talks/FOSDEM-2024-Main-Track/

Mild Prerequisite Recommended

This talk is probably easier to follow if you've seen (or at least reviewed the slides) of my FOSDEM 2017 keynote, entitled Understanding The Complexity of Copyleft Defense: After 25 Years of GPL Enforcement, Is Copyleft Succeeding? already.

My goal here is to give an update since then; but you're a brilliant bunch of people so I am not going to do (very much of) a “Previously On Copyleft Defense” due to the time constraint. ☺

I Am An Activist

Greetings, I am an activist!

My Activist Cause is Narrow

I seek a world in which every person on the planet has universal and unabridged software freedom …

(aka)
the universal right of software repair.

Can We Succeed?

I know it's morbid, but I think often: “I will die in a world where most people don't have a universal right to software repair.”

Understanding Activism

Activism is not just politics … even though it sometimes feels that way.

Activism vs. Politics

Politicians generally seek only to achieve the politically viable.

By contrast, activists dream of a world where the politically non-viable happens, and take actions to slowly enable the dream to become politically viable.

In politics, the end-goal is merely the politically viable. In activism, the end-goal is the politically non-viable — that employs strategies that are politically viable.

Detractors love this Analogy

When people accuse me of “tilting at windmills” … I'm left wondering if they ever actually read the source material!

… or at least the darned Cliff's Notes!

Don Quixote Cliff's Notes

Quixotism is the universal quality characteristic of any visionary action. Acts of rebellion or reform are always quixotic, for the reformer aims at undermining the existing institution in order to change it. Often held up to ridicule, frequently destroyed, the quixotic individual has been responsible for many great deeds in history…

— Cliff's Notes on Don Quixote (emphasis mine)

Definition of Copyleft

Copyleft is a licensing strategy to pursue the policy goal of fostering & encouraging the equal & inalienable right to copy, share, modify & improve creative works of authorship — and for works of technical utility (such as software), to protect and foster the right to repair those works.

— Definition of copyleft (originally based on the definition as found on Wikipedia)

Copyleft as Activist Tool

In practice, copyleft is a tool for activists — which means we must be constantly vigilant of copyleft losing its political viability.

Understanding Cooption

cooption (noun) — the act or process of being assimilated or taken over by a larger or more established group.
[Usage example:] The revolutionaries declined to make specific demands as a defense against cooptation by established political parties or the labor unions.

— Definition of cooption (from dictionary.com)

Understanding Cooption

The history of copyleft as an activist strategy can only be understood through the lens of 20 years of cooption of FOSS into mainstream tech.

The Great Licensing Divide

Since 2001, nearly every Big Tech company has, at some point, made substantial efforts to undermine copyleft politically. This includes:

Alphabet / Google
Amazon
GitHub (even before Microsoft acquisition)
IBM
Microsoft
Samsung
Sony
Tesla
… and many others, big and small

(the list is non-exhaustive and in alphabetical order)

You Are Not Your Company

Cognitive dissonance is one of the hardest psychological human experiences.

This is systemic, institutionalized problem — no individual (no matter their employer) can fully avoid it.

In some sense, these are the windmills quixotic activism will someday stop.

But, please be honest with yourself that, if you work for a company that has any proprietary products, you're simultaneously part of the problem and part of the solution.

Companies Paid Attention

Forbid employees from starting new projects under copyleft license, & shame third-parties who chose copyleft licenses that their work will be “ignored by companies”.
Require employees to assign their copyrights to the company (usually through “work for hire” doctrine).
Outright ignore copyleft requirements, and just brazenly violate the GPL.
Insist that the company's self-serving interpretation of copyleft licensing requirements are de-facto correct, even though these interpretations have little basis in the text of the licenses.

This agenda is the corporate response to copyleft's successes.

Lessons Learned about Copyright Actions

Historically, copyleft focused on copyright-centric remedies.
Copyright remedies around the world are usually two-fold: injunction and damages.
Copyright actions are usually brought by a copyright holder (or their assignee).
Ultimately, pure copyright-only litigation is a clumsy tool to establish the rights that copyleft license seek to defend.

Non-Copyright Approaches

A foolish consistency is the hobgoblin of little minds.

— Ralph Waldo Emerson

Non-Copyright Approaches

The words “you” (or “your”) appear 93 times in GPLv2.

The phrase “copyright holder” appears only twice in GPLv2.

Copyleft licenses are primarily about your rights, as a downstream user who wants to modify/recompile/reinstall your software, not about the “rights” of copyright holder.

You are a third-party beneficiary of the licensing terms.

Third-Party Beneficiary

SFC currently has a third-party beneficiary lawsuit against Vizio (a seller of Linux-based televisions in the USA). More details on SFC's website.

SFC is also engaged in grantmaking in non-USA jurisdictions to bring forward third-party beneficiary claims elsewhere.

Better Remedies

In SFC v. Vizio, We also ask the court to order the remedy of “specific performance” of producing the source code. The case doesn't even ask for financial compensation.

How you can help

To help address this:

Require employees to assign their copyrights to the company (usually through “work for hire” doctrine).

When you switch jobs voluntarily, make it a non-negotiable term of your employment that you keep your own copyrights.

The community should keep options open for future copyright actions, too.

How you can help

Once you have your copyrights back, please, consider assigning those copyrights to SFC.

You shouldn't have to bear the burden or the (exorbitant!) cost (as Harald did) of adjudicating the GPL under copyright.

How you can help

You can help respond to these two:

Outright ignore copyleft requirements, and just brazenly violate the GPL.
Insist that the company's self-serving interpretation of copyleft licensing requirements are de-facto correct, even though these interpretations have little basis in the text of the licenses.

Announcing Use the Source!

Use the Source

Use the Source (UTS) applies FOSS development methodology to checking offers for source code and attempting to build and reinstall the software onto the devices.

Use the Source

UTS has a simple, elegant design to start: a web discussion form linked to a mailing list, with download links to source code candidate.

Use the Source

My colleague Denver and I are going to teach the community how to verify source releases for compliance with the terms of the GPL Agreements.

Use the Source

Hearkens back to the gpl-violations.org lists that Harald used to run!

Follow-Up

Legal & Policy DevRoom is today in UA2.220 (Guillissen).

Use The Source: https://sfconservancy.org/usethesource/

help us: https://sfconservancy.org/copyleft-compliance/help.html

Please donate to become a Conservancy Sustainer: https://sfconservancy.org/sustainer/