Understanding the Red Hat – IBM – Google – Facebook GPL Enforcement Announcement

On November 27, Red Hat, IBM, Google, and Facebook announced that they would give infringers of their GPL software up to a 30-day hold-off period during which an accused infringer could cure a GPL violation after one was brought to their attention by the copyright holder, and a 60 day “statute of limitations” on an already-cured infringement when the copyright holder has never notified the infringer of the violation.  In both cases, there would be no penalty: no damages, no fees, probably no lawsuit; for the infringer who promptly cures their infringement. I’ll discuss this in a question-and-answer style:

Q: Does this change any court case involving the GPL that is presently in progress? A: No. Red Hat, IBM, Google, and Facebook are not known to be involved in any recent cases of enforcing their copyrights on any software under the GPL license. Red Hat once suggested that it could enforce the GPL against patent aggressors, but I am not aware of any cases in which they have done so.

Q: Does this change the way that GPL license on Linux or any Open Source program will be enforced? A: That’s unlikely. It is not in the interest of those four companies to become involved in enforcement of the GPL license in the future. Thus, their promise to allow an infringer to cure their infringement within certain time limits is irrelevant. Red Hat and IBM would rather sell Linux systems than make their customers afraid by bringing lawsuits. Google and Facebook have bigger fish to fry.

Q: Does anyone else have to provide the same time limits? A: No. The companies involved in the announcement are not the entities that bring GPL enforcement lawsuits. There are thousands of copyright holders in the Linux kernel who could theoretically bring a lawsuit, and perhaps one hundred thousand authors of GPL-licensed software other than Linux (but which might be included as part of a typical Linux system). None of those parties are compelled by today’s announcement. But in general those parties have been voluntarily waiting much longer for infringements to be cured without penalties.

Q: Does their announcement comply with the Principles of Community-Oriented GPL Enforcement drafted by the Software Freedom Conservancy? A: Sort of. It’s obviously inspired by them and by a previous announcement by the kernel team which is also inspired by SFC’s principles but doesn’t mention them. The Open Source developer community in general doesn’t just wait 30 days for an infringer to cure their infringement without any penalties. Historically, they’ve waited much longer and the community principles do not specify any particular duration. The infringements of some of my compliance customers would have been impossible to resolve in just 30 days. Some cases have been settled quietly after more than a year in progress, without any cost, or perhaps only a reasonable compliance auditing fee. One of my customers, a Fortune 100 company, was asked to pay $5000 in auditing fees in resolution of a GPL infringement in a Billion dollar product line. Current infringers may be asked for more simply because these cases are expensive to pursue, but in general the community prioritizes compliance over income and does not ask for huge damages as a company in the proprietary software industry would.

Q: Why was today’s announcement made? A: The companies are concerned by one person, Patrick McHardy. I have no personal knowledge of this, but attorney Heather Meeker has documented it. It is said that he has brought about 50 copyright infringement claims regarding the Linux kernel, with intent to collect income rather than simply obtain compliance with the GPL license. Pretty much everyone in the Open Source community and the companies involved all object to this behavior. Me too. But as far as I can tell, it’s McHardy’s legal right to bring such claims regarding the copyrights which he owns, even if it doesn’t fit Community Principles which nobody is actually compelled to follow. The big companies and community members (and I) wish to discourage McHardy and other parties who might wish to become “copyright trolls” in a similar style and exact damages out of unintentional infringers of GPL-liccensed and other software.

Q: Did the Linux Kernel Team make a similar announcement to that of the four companies? A: Yes. Here’s what they had to say. It is probable that in the future the kernel team will stop accepting contributions from people who don’t sign on to the policies at that link. They have presently excluded Mr. McHardy from the kernel team. But it’s important to note that there is lots of existing work in the kernel by copyright holders who are not required to comply with those principles, and the copyright holders all of the GPL software other than the kernel (a larger body of software than the kernel by far) are not required to comply with those principles.

Q: Is it true that the principles the four companies announced today are taken from the GPL 3 license, but they are applying them to GPL 2? A: Yes. If your software is under GPL 3, the same waiting periods that the four companies have promised are required. Thus, it is ironic that when originally presented with the opportunity to apply the GPL 3 to Linux, Linus Torvalds and the Kernel team were quite hostile about it, while the kernel team’s recent announcement attributes the principles they have adopted to the text in GPL 3. Perhaps they’ve learned something since those hostile moments.

Q: I have more questions. A: Send them to bruce at perens dot com.

What Happened to SpaceX’s Zuma Mission? Was It Ever For Real?

The Zuma mission was always mysterious. Now, there’s reason to wonder if it was ever even real.

SpaceX announced on October 16 its mission to launch a secret government satellite built by Northrop-Grumman. It was scheduled to launch within 30 days of the announcement. Keeping a mission secret until the last month before launch was unprecedented for SpaceX, even for previous secret government satellite launches, which had been listed on its launch manifest for years.

Just before Zuma was ready to launch, SpaceX announced that the launch was cancelled via twitter: Standing down on Zuma mission to take a closer look at data from recent fairing testing for another customer.

Subsequently, the Zuma mission was removed from the famous NASA Pad 39a, and returned to the SpaceX garage. SpaceX resumed construction work on Pad 39a to remove the  huge rotating Space Shuttle enclosure and to ready the pad for the three-booster Falcon 9 Heavy demonstration launch. This indicated that there would be no Zuma launch soon. No new launch date has been announced.

So, if we are to take SpaceX’s tweet at face value, SpaceX has suffered a serious failure during testing of its fairing, the “nose cone” of the rocket used to shield a satellite from the atmosphere during launch, which has delayed the Zuma mission until the failure can be understood and corrected.

The next expected SpaceX launch, a cargo launch to ISS expected to fly from Pad 39a on December 4, won’t use the fairing, which is only for satellite launches. Cargo launches to ISS use the Dragon space vehicle. So, this mission would not be delayed.

Since there’s an Iridium satellite launch using the fairing scheduled for December 22 at Vandenberg, we’ll see in a month or so if the fairing problem is so large that it delays further launches. Changes in the fairing could be visible in the launch video, expect space aficionados to pour over that video frame-by-frame.

But there’s another possibility: That the Zuma mission was never real.

Why would SpaceX bring a rocket to the pad on a short schedule only to never launch it? Perhaps the actual mission was to see if SpaceX could put together a launch on a short-enough schedule to satisfy strategic requirements of the government. In tense times a satellite might have to be launched on a short schedule in order to view a country we want a really good look at with special instruments: say, North Korea. Or a failed military satellite might have to be replaced with a standby unit in a big hurry.

If the Zuma mission actually was a test of SpaceX’s ability to launch on a short schedule, they probably passed the test. They put a rocket with what might have been a mock-up satellite on the pad on a short public schedule and test-fired it. We have no idea, of course, of how long SpaceX actually knew about this mission.

And of course the government could have other reasons to delay a spy satellite launch, which we’d never hear of.

SpaceX still has the functioning rocket to satisfy another mission, so if Zuma was never meant to happen, the government might not have had to pay as much as they would for an actual launch. Government launches and launch simulations are still significantly more expensive than civilian ones, due to the vastly increased administrative requirements when working for the government: tests, paperwork, accounting, etc. that a civilian launch customer would not require.

SpaceX fans obsessively track the serial numbers of boosters (seen near the tail fin on the first stage) from the SpaceX factory in California to its test site in Texas to launch in Florida or California. They might catch on if the Zuma booster is eventually used for another mission. Or SpaceX could repaint the serial number to confuse them.

We should know more soon. Perhaps Zuma will launch.

 

ARRL Board Publicly Censures Southwestern Division Director

The ARRL board held a special meeting via teleconference on November 14 at 9PM (Eastern) and publicly censured Southwestern Division Director Richard Norton N6AA.

I only have the board meeting minutes and the ARRL Board Director Code of Conduct which was cited. But from what I read here (and you can read it for yourself below), it’s clear that  Richard Norton publicly dissented against an ARRL board decision at an Amateur Radio meeting (Hamcon? Pacificon?), resulting in this censure.

While ARRL directors can argue with each other in private meetings, ARRL wants all directors to  publicly represent ARRL as a bloc, and does not tolerate it if one director publicly opposes some action of ARRL.

So, the members get minutes with bald notices of how directors voted upon a motion, but no transparency to a director’s own sentiment and rationale regarding any particular action. Of course, such information would usefully inform us when we vote for ARRL directors, thus the fact that it is concealed is troubling. Obviously, by doing this ARRL largely keeps the membership from being active in ARRL politics. Troubling indeed.

Here are the relevant minutes of the board meeting:

4. Mr. Carlson, moved, seconded by Mr. Lisenco that:

Whereas, Mr. Richard Norton, N6AA, publicly criticized the ARRL Code of Conduct for Board members at a public Amateur Radio gathering by virtue of his characterizations thereof, thus criticizing publicly the collective action of the Board of Directors adopting said Code of Conduct and drawing the Board’s collective decision making into disrepute, in violation of multiple portions of the Code of Conduct, including but not limited to Sections 1.b. and 8.a, 8.b., 8.d; and 8.f; and Whereas, Mr. Norton has been cautioned by Board members that his actions and his manner in the above respects are not acceptable and cannot continue, with no notable change in his behavior since that time; and

Whereas, Mr. Norton has been given a copy of the Recommendation of the Ethics and Elections Committee dated September 7, 2017, and has responded to it and tendered to the Board of Directors four statements of ARRL members in support of his response;

Now, therefore, the Board of Directors having considered the recommendation of the Ethics and Elections Committee at a Special Meeting of the Board of Directors duly called for the purpose of considering the actions of Mr. Norton and an appropriate remedy therefor, and in view of the information before it and taking into account Mr. Norton’s response and his submissions in response thereto, finds that there exists sufficient cause (i.e. a material violation of the ARRL Code of Conduct that has caused harm to the League) to publicly censure Mr. Norton for his unacceptable behavior as an ARRL Board Member, and Mr. Norton is admonished by the Board that no further, similar behavior will be tolerated. That action is so ordered.

After discussion and a roll call vote being requested, the motion was ADOPTED by a vote of 11 Aye, 3 Nay and 1 abstention with Directors Carlson, Olson, Norris, Williams, Lisenco, Blocksome, Frenaye, Pace, Boehner, Allen and Sarratt voting aye, Directors Abernethy, Norton and Woolweaver voting nay, and Director Vallio abstaining.

Here are the cited sections of the ARRL Board Director Code of Conduct:

1(b). A Board member should take no action that could adversely affect the reputation or credibility of the ARRL, or discourage membership in the organization.

8(a). A Board member, as a leader in Amateur Radio, is encouraged to be an ambassador and an advocate for ARRL and, subject to the Confidentiality Standard of this Code of Conduct, to publicly promote the activities and actions of the organization with the ARRL membership. In doing so, a Board member must act at all times faithfully to the intent of the Board as expressed in its official statements, and should not reinterpret or re-characterize the Board’s actions to reflect his/her own view or the views of any other Board Member.

8(b). While having the right and responsibility to exercise independent judgment and to express dissenting opinions during Board deliberations, a Board member also has the obligation outside the Boardroom to respect and support final decisions of the Board, even when the Board member dissented from the majority view.

8(d). A Board member must not take actions publicly or with respect to the ARRL membership that have the purpose or effect of undermining or discrediting the decisions or actions of the Board.

8(f). A Board member may not publicly oppose a Board action prior to the effective date of his or her resignation from the Board.

Source Material:

About The Lawsuit: May I Please Introduce My Wonderful Legal Team!

As you probably know, Open Source Security, Inc., and their CEO Mr. Bradley Spengler have sued me for defamation and half a dozen other things. It is obvious legal hygiene not to talk about a lawsuit in process. Meanwhile, you can follow the suit on Pacer, and please allow me to introduce my legal team!

I am incredibly pleased and impressed with Heather, Melody, and Cara and their firm O’Melveny. They have done superb work, assembled a very strong case for me, and are a pleasure to work with!

Heather Meeker and I first met about two decades ago and have had a business relationship for a decade. She’s the best attorney for any Open Source matter. I have often worked for her and her clients. So, it was natural that I would turn to Heather when I needed legal assistance. Heather is the author of Open (Source) for Business: A Practical Guide to Open Source Software Licensing — Second Edition and three other books.

Melody Drummond Hansen is a senior attorney at O’Melveny who was an obvious choice because of her previous experience with defamation cases. Because of Melody’s participation, my case is strong and I feel very secure.

Cara Gagliano got her J.D. in 2015 and has already built an impressive portfolio of cases. She does much of the research and writing for my case, and of course has the assistance of Melody and Heather. Cara is doing superb work! I could not ask for better.

Finally, I have to thank Cara, Melody, and Heather’s families, who have supported them while they burn midnight oil on my behalf.

I am so lucky to have all of these excellent people helping me.

On Usage of The Phrase "Open Source"

“Open Source” is the proper name of a campaign to promote the pre-existing concept of Free Software to business, and to certify licenses to a rule set. Please treat it as a proper name, rather than a descriptive term, when it is applied to any work to which a license compliant with the Open Source Definition could possibly apply. That means you should capitalize both words.

“Open Source software” is a subset of the general category of software, and can be written without capitalizing the word “software” where appropriate.

For a work to be Open Source, it must be entirely under a license or licenses which comply with the Open Source Definition.

If someone says that something is Open Source and the license does not comply with the Open Source Definition, please tell them that the proper definition of Open Source is a work under a license which complies with the Open Source Definition. Be firm but polite.

When “Open Source” is used as a descriptive term rather than a proper name, it becomes a fuzzy reference to a development paradigm with no concrete definition, rather than the specific set of license rules in the Open Source Definition. So, it can be made to mean just about anything. Don’t allow people to erode the definition of Open Source.

Where Did Open Source Come From?

Obviously, Richard Stallman was first with Free Software, and we stand on Richard’s shoulders.

The text of the Open Source Definition is taken directly from the Debian Free Software Guidelines (DFSG). I created the DFSG and the Debian Social Contract, and submitted the first draft to the Debian developers on their mailing list in June of 1997. I edited it, taking suggestions and building consensus on that same mailing list, for about a month and then announced the result as project policy.

The inspiration for the Debian Social Contract and DFSG was two events. The first was questions on the Debian developer mailing list regarding which licenses were acceptable into Debian (Erik Andersen says he asked the question which inspired me). The second was an email conversation between Ean Schuessler and Donnie Barnes (one of the early Red Hat employees). In his email to Donnie, Ean accused Red Hat of never having elucidated their social contract with the Free Software community.  Ean did not actually suggest that Debian form a social contract, he only complained about Red Hat’s lack of one, perhaps believing that Debian’s social contract was clear. I decided to create one.

Eric Raymond approached me with the intention of forming the Open Source Initiative, I believe on February 2, 1998. Eric had been visiting California to see Larry Augustin of VA Linux Systems, and a meeting was held at VA where Christine Peterson (of the Foresight Institute and then married to Eric Drexler) suggested “Open Source” as a way to promote Free Software without the stigma of “free” in the English language. Some references date the VA meeting as February 3, I suspect that’s incorrect.

I suggested to Eric that I use the already-written Debian Free Software Guidelines as the Open Source Definition. Eric agreed. That’s the only input he had, as the text had already been written and adopted as the DFSG eight months previously and was not modified other than removal of Debian references. I wrote an announcement of Open Source which was published on February 9, and that’s when the world first heard about Open Source.

By the way, the 20th anniversary of Open Source is February 9, 2018.

I’ve been asked whether I used the Four Freedoms of the Free Software Foundation when writing the DFSG. I didn’t. First, the Four Freedoms didn’t exist then, they were the Three Freedoms! These had been published in the first “GNUS Bulletin” by Richard Stallman, which was distributed in paper form around MIT. I had read Richard’s announcement of Free Software on a USENET newsgroup but might not have read the Three Freedoms at that time. At the time I wrote the DFSG, the web was in its infancy and FSF had built a web site just months before. I simply didn’t have a copy of the Three Freedoms in hand. The DFSG was mainly inspired by the licenses that Debian was already using, and of course the GPL, created by Richard, was among them.

I wrote to Richard with a new copy of the DFSG and he replied “this is a good definition of Free Software.” He didn’t suggest that I use the Three Freedoms.

It is unfortunate that for some time the Open Source Initiative deprecated Richard Stallman and Free Software, and that some people still consider Open Source and Free Software to be different things today. I never meant it to be that way. Open Source was meant to be a way of promoting the concept of Free Software to business people, who I have always hoped would thus come to appreciate Richard and his Free Software campaign. And many have. Open Source licenses and Free Software licenses are effectively the same thing.

The Maker Community Needs Better U.S. Companies

The Raspberry Pi, Red Pitaya, and a number of other popular hardware devices used in the Maker community use some really huge U.S. companies as their U.S. dealers. In general this is Farnell/Newark/Element14/MCM (all the same company) or Mouser. These companies are too large to care about the business of us little Makers, and it shows in the way they operate their customer service with us.

Nobody likes Newark. Mouser can also be a pain. Today Mouser has refused to deliver to my address, an address which is perfectly fine for Amazon and a plethora of other Internet retailers. I have an account with their company of long duration and previous orders on record. I logged in with my password. But apparently I am a credit card fraud risk, according to their policies. I was invited to fax them my photo ID, or arrange for an electronic funds transfer from my bank. All of this is quite old-fashioned, they didn’t offer Paypal rather than EFT and didn’t have any of the common ways to verify a customer’s bona fides without bothering them about it.

Instead, I made the order through the Red Pitaya store in Europe. For their 14-bit SDR they charged me exactly what Mouser would have for the merchandise, an excellent price for shipping, and didn’t charge sales tax. So, the order came out about $24 less than Mouser.

Obviously, my complaint to Mouser won’t have any effect. I’m a little fish and they’re a very large company. But there are lots of businesses in the U.S. that want the business of Makers and will keep stock on hand and ship promptly, and with sensible policies that don’t require the customer to give up information they should not – like their ID or their bank account numbers for an EFT. We have credit cards and Paypal to protect ourselves from having to give out such things.

I’d encourage more companies to find a smaller, more agile U.S. company, rather than dealing with the difficult, old-fashioned, behemoth ones.

Update: MCM is closing as a separate business and Newark/Element14 will carry their inventory.

VMWare Linux Lawsuit Still Going On

A lot of people (including me, for a time) thought that the Hellwig v. VMWare lawsuit, alleging that VMWare infringed upon the Linux Kernel copyright and violated the GPL, had been lost and was over. It’s being appealed. Things are moving slowly because the German court shuts down for much of the summer.

A Nice, Sensible Statement about Women in Silicon Valley

This is regarding the stupid memo issued by an ex-Google-employee, which got lots of news coverage for no reason I can understand. There has been that sort of jerk at places where I’ve worked before, but usually the complaints of jerks at work don’t leave the work place. There was nothing but old prejudices in this one, and I don’t understand why it became news.

I previously wrote The Empathy Gap: Why Women are Treated Badly in Open Source Communities. The issues I wrote about there extend beyond Open Source to the broader tech community.

There happen to be a lot of women in engineering, legal, and management positions at my customer firms. As a class, they seem to be at least as sharp as a man regarding their jobs. As a consultant, I am reporting to women quite often, and in general find them wonderful to work with.

I think it’s a pity that we have fewer women in Amateur Radio than men. Amateur Radio is unique in that it’s a technical pursuit, a way to meet people worldwide, and a path to technical self-education, but it isn’t employment or school. Women are sorely under-represented. In general, I feel it’s unhealthy for any community that isn’t specifically about the issues of one gender to have a gender imbalance in its participants.

I remain curious about the causes and would like to do more about the problem.

And of course I feel the same way about under-representation of women in the broader technical community.

Bruce

 

A Note About Our Legal Counsel

Our legal counsel is Heather Meeker of O’Melveny and Meyers, who also happens to be the author of the book “Open (Source) For Business, A Practical Guide to Open Source Software Licensing.”
https://www.amazon.com/Open-Source-Business-Practical-Licensing/dp/1544737645/ref=dp_ob_title_bk

Heather is without doubt the best attorney in the Open Source field. I recommend her wholeheartedly to anyone and everyone!

Heather is not responsible for my opinions on this blog or elsewhere. I speak for myself.

What the Apache – Facebook React.js Issue Means to Companies

Update: Facebook will place React.js and several other programs under the straight BSD license.

[My apologies to the ReactOS project, which I named in the first version of this article. The software in question is React.js]

Recently the Apache project banned React.js, a Facebook project, from inclusion in Apache projects. The ban is over a patent license which Facebook issued for React.js. This license should be of concern to companies that could now be using React.js, perhaps without even knowing it.

The current text of the Facebook patent grant is at https://github.com/facebook/osquery/blob/master/PATENTS

Without this grant in explicit text, there would still be a patent grant which is implicit in the BSD license. This arises from an equitable doctrine in law, you can’t grant a license and then “trick” the recipient by suing them for doing exactly what you gave them permission to do.

The problem is that Facebook has replaced the implicit grant with an explicit one with a “strong” retaliation clause. If a company uses React.js, they essentially give Facebook a license to their ENTIRE patent portfolio, no matter how large. Actually, they agree to forego to sue for infringement, but it’s essentially the same thing. Most companies would find this unacceptable. This is called a “strong retaliation clause”.

Facebook has gone to a version 2 of their patent grant text, but there is still the same problem with the breadth of the patent grant. Version 1 implicitly banned counter-suit after Facebook sued you, Verison 2 explicitly permits counter-suit.

What we usually do in the Open Source world, and what we find acceptable in Open Source licenses, is to limit the termination to lawsuits regarding patents exercised in that specific Open Source software. So, if Facebook were to state that if you sue anyone regarding your patent grants that are exercised in the React.js software, your license terminates, that would be OK. Indeed, Apache uses similar text in their own licenses. This is called a “weak retaliation clause.”

Of course, we in the Open Source world would rather that software patents went away entirely. I am joined in this sentiment by many of my industrial customers who have been the target of non-practicing-entities and other software patent abuses.