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Legal

Ensuring Openness Through and In Open Source Licensing

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OSS
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Some of the largest forces in business today—consumer-facing companies like Google and Facebook, business-facing companies like SUSE, companies outside the tech industry such as BMW, Capital One, and Zalando, even first-gen tech corporations like Microsoft and IBM—all increasingly depend on open source software. Governments too, including the European Union, France, India, the United Kingdom, the United States, and many others have discovered the benefits of open source software and development models. Successful collaborative development of software and infrastructure used by these organizations is enabled by the “safe space” created when they use their IP in a new ways... to ensure an environment for co-creation where the four essential freedoms of software are guaranteed.

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Control Or Consensus?

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In a recent conversation on the Apache Legal mailing list, a participant opined that “any license can be Open Source. OSI doesn’t ‘own’ the term.” He went on to explain “I could clone the Apache License and call it ‘Greg’s License’ and it would be an open source license.”

As long as the only people involved in the conversation are the speaker and people who defer to his authority, this might be OK. But as soon as there are others involved, it’s not. For the vast majority of people, the term “open source license” is not a personal conclusion resulting from considered evaluation, but rather a term of art applied to the consensus of the community. Individuals are obviously free to use words however they wish, just like Humpty Dumpty. But the power of the open source movement over two decades has arisen from a different approach.

The world before open source left every developer to make their own decision about whether software was under a license that delivers the liberty to use, improve and share code without seeking the permission of a rights holder. Inevitably that meant either uncertainty or seeking advice from a lawyer about the presence of software freedom. The introduction of the open source concept around the turn of the millennium solved that using the crystalisation of consensus to empower developers.

By holding a public discussion of each license around the Open Source Definition, a consensus emerged that could then by crystalised by the OSI Board. Once crystalised into “OSI Approval”, the community then has no need to revisit the discussion and the individual developer has no need to guess (or to buy advice) on the compatibility of a given license with software freedom. That in turn means proceeding with innovation or deployment without delay.

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Licences: Eclipse Public Licence 2.0, GPL Copyright Troll, Fiduciary License Agreement 2.0

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  • Eclipse Public License version 2.0 added to license list

    We recently updated our list of various licenses and comments about them to include the Eclipse Public License version 2.0 (EPL).

    In terms of GPL compatibility, the Eclipse Public License version 2.0 is essentially equivalent to version 1.0. The only change is that it explicitly offers the option of designating the GNU GPL version 2 or later as a "secondary license" for a certain piece of code.

  • Linux kernel community tries to castrate GPL copyright troll

    Linux kernel maintainer Greg Kroah-Hartman and several other senior Linux figures have published a “Linux Kernel Community Enforcement Statement” to be included in future Linux documentation, in order to ensure contributions to the kernel don't fall foul of copyright claims that have already seen a single developer win "at least a few million Euros.”

    In a post released on Monday, October 16th, Kroah-Hartman explained the Statement's needed because not everyone who contributes to the kernel understands the obligations the GNU Public Licence 2.0 (GPL 2.0), and the licence has “ambiguities … that no one in our community has ever considered part of compliance.”

  • Fiduciary License Agreement 2.0

    After many years of working on it, it is with immense pleasure to see the FLA-2.0 – the full rewrite of the Fiduciary License Agreement – officially launch.

Conservancy Applauds Linux Community's Promotion of Principled Copyleft Enforcement

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GNU
Legal

Software Freedom Conservancy congratulates the Linux community for taking steps today to promote principled, community-minded copyleft enforcement by publishing the Linux Kernel Enforcement Statement. The Statement includes an additional permission under Linux's license, the GNU General Public License (GPL) version 2 (GPLv2). The additional permission, to which copyright holders may voluntarily opt-in, changes the license of their copyrights to allow reliance on the copyright license termination provisions from the GNU General Public License version 3 (GPLv3) for some cases 1.

Conservancy also commends the Linux community's Statement for reaffirming that legal action should be last resort for resolving a GPL violation, and for inviting noncompliant companies who work their way back into compliance to become active participants in the community. By bringing clarity to GPLv2 enforcement efforts, companies can adopt software with the assurance that these parties will work in a reasonable, community-centric way to resolve compliance issues.

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Facebook Licence-Patents Debacle

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OSS
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  • Facebook’s About Face

    Thirty-five days after publicly stating, in response to objections from the Apache Software Foundation among others, that the company would not be re-licensing its React library, Facebook on Friday announced that it was re-licensing its React library. It was a surprising but welcome reversal for many in the industry, including Automattic’s Matt Mullenweg.

    Ten days ago, Mullenweg published a piece that was at once understanding and blunt announcing that React would be excised from WordPress related projects. The problem was not Automattic – their general counsel saw little problem with the license – but given the breadth of WordPress’ distribution, the decision was made to remove the software because of the uncertainties surrounding its license. As bad as it was being banished from Apache Software Foundation projects, this was worse. Depending on whose numbers you use, WordPress can account for something close to one in four websites.

    Given such extensive and escalating costs, the burden of proving the offsetting benefits to a patent clause required by virtually no one else in the industry presumably became too great, at which point the only rational decision would be to re-license the asset – difficult as such backtracking may have been.

  • Facebook Relents on React.js License Issue
  • Facebook Relents to Developer Pressure, Relicenses React

Licensing: Facebook Responds to Licence Complaints, Cloud Native Open Source License Choices Analysed

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  • Facebook relicenses several projects

    Facebook has announced that the React, Jest, Flow, and Immutable.js projects will be moving to the MIT license. This is, of course, a somewhat delayed reaction to the controversy over the "BSD+patent" license previously applied to those projects.

  • Relicensing React, Jest, Flow, and Immutable.js

    Next week, we are going to relicense our open source projects React, Jest, Flow, and Immutable.js under the MIT license. We're relicensing these projects because React is the foundation of a broad ecosystem of open source software for the web, and we don't want to hold back forward progress for nontechnical reasons.

    This decision comes after several weeks of disappointment and uncertainty for our community. Although we still believe our BSD + Patents license provides some benefits to users of our projects, we acknowledge that we failed to decisively convince this community.

  • Cloud Native Open Source License Choices

    One of the most common questions regarding open source licensing today concerns trajectories. Specifically, what are the current directions of travel both for specific licenses as well as license types more broadly. Or put more simply, what licenses are projects using today, and how is that changing?

    We’ve examined this data several times, most recently in this January look at the state of licensing based on Black Duck’s dataset. That data suggested major growth for permissive licenses, primarily at the expense of reciprocal alternatives. The Apache and MIT licenses, for example, were up 10% and 21% respectively, while the GPL was down 27%. All of this is on a relative share basis, of course: the “drop” doesn’t reflect relicensing of existing projects, but less usage relative to its peers.

    [...]

    One such community with enough of a sample size to be relevant is the one currently forming around the Cloud Native Computing Foundation. Founded in 2015 with the Kubernetes project as its first asset, the Foundation has added eleven more open source projects, all of which are licensed under the same Apache 2 license. But as a successful Foundation is only a part of the broader ecosystem, the real question is what are the licensing preferences of the Cloud Native projects and products outside of the CNCF itself.

    [...]
    Unsurprisingly, perhaps, given the influence of the CNCF itself, Apache strongly outperforms all other licenses, showing far greater relative adoption than it has in more generalized datasets such as the Black Duck survey. Overall in this dataset, approximately 64% of projects are covered by the Apache license. No other project has greater than a 12% share. The only other licenses above 10%, in fact, are the GPL at 12% and MIT at 11%. After that, the other projects are all 5% or less.

A New Era for Free Software Non-Profits

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Legal

The US Internal Revenue Service has ushered in a new and much more favorable treatment for free software projects seeking to have 501c3 tax exempt non-profit organizations of their own. After years of suffering from a specially prejudicial environment at IRS, free software projects—particularly new projects starting out and seeking organizational identity and the ability to solicit and receive tax-deductible contributions for the first time—can now do so much more easily, and with confident expectation of fast, favorable review. For lawyers and others counseling free software projects, this is without question “game-changing.”

At SFLC, we have ridden all the ups and downs of the US tax law’s interaction with free software non-profits. When I formed SFLC—which in addition to being a 501c3 tax-deductible organization under US federal tax law is also a non-profit educational corporation under NY State law—in 2005, we acquired our federal 501c3 determination in less than 70 days. Over our first several years of operation, we shepherded several of our clients through the so-called “1023 process,” named after the form on which one applies for 501c3 determination, as well as creating several 501c3-determined “condominium” or “conservancy” arrangements, to allow multiple free software projects to share one tax-deductible legal identity.

But by the middle of the Obama Administration’s first term, our ability to get new 501c3 determinations from the IRS largely ceased. The Service’s Exempt Organizations Division began scrutinizing certain classes of 1023’s particularly closely, forming task forces to centralize review of—and, seemingly, to prevent success of—these classes of application. In our practice on behalf of free software projects seeking legal organization and tax exemption, we began to deal with unremitting Service pushback against our clients’ applications. Sometimes, the determination to refuse our clients’ applications seemed to indicate a fixed political prejudice against their work; more than once we were asked by IRS examiners “What if your software is used by terrorists?”

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Software Patents Versus Free Software (WordPress, MP3 Playback)

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  • On React and WordPress

    Big companies like to bury unpleasant news on Fridays: A few weeks ago, Facebook announced they have decided to dig in on their patent clause addition to the React license, even after Apache had said it’s no longer allowed for Apache.org projects. In their words, removing the patent clause would "increase the amount of time and money we have to spend fighting meritless lawsuits."

    I'm not judging Facebook or saying they're wrong, it's not my place. They have decided it's right for them — it's their work and they can decide to license it however they wish. I appreciate that they've made their intentions going forward clear.

    A few years ago, Automattic used React as the basis for the ground-up rewrite of WordPress.com we called Calypso, I believe it's one of the larger React-based open source projects. As our general counsel wrote, we made the decision that we'd never run into the patent issue. That is still true today as it was then, and overall, we’ve been really happy with React. More recently, the WordPress community started to use React for Gutenberg, the largest core project we've taken on in many years. People's experience with React and the size of the React community — including Calypso — was a factor in trying out React for Gutenberg, and that made React the new de facto standard for WordPress and the tens of thousands of plugins written for WordPress.

    We had a many-thousand word announcement talking about how great React is and how we're officially adopting it for WordPress, and encouraging plugins to do the same. I’ve been sitting on that post, hoping that the patent issue would be resolved in a way we were comfortable passing down to our users.

    That post won't be published, and instead I'm here to say that the Gutenberg team is going to take a step back and rewrite Gutenberg using a different library. It will likely delay Gutenberg at least a few weeks, and may push the release into next year.

  • MP3 Is Dead! Long Live MP3!

    Back in May, there was an unexpected surge in press coverage about the MP3 audio file format. What was most unexpected about it was it all declared that the venerable file format is somehow “dead”. Why did that happen, and what lessons can we learn?

    What had actually happened was the last of the patents on the MP3 file format and encoding process have finally expired. Building on earlier work, it was developed by the Moving Pictures Expert Group (MPEG) built on the doctoral work of an engineer at Fraunhofer Institute in Germany. Many companies held patents on the standard and it was not until April that the last of them expired. There’s no easy way to ascertain whether a patent has expired even after the date one moght expect it, so the wave of news arose from announcements by Fraunhofer Institute.

    Framing this as an “ending” fits the narrative of corporate patent holders well, but does not really reflect the likely consequences. Naturally the patent holding companies would rather everyone “upgrade” to the newer AAC format, which is still encumbered under a mountain of patents necessitating licensing. But for open source software, the end of patent monopilies signals the beginning of new freedoms.

FOSS Licensing News

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OSS
Legal
  • Public Money? Public Code! 22 Organizations Seek to Improve Public Software Procurement

    Today, 22 organizations are publishing an open letter in which they call for lawmakers to advance legislation requiring publicly financed software developed for the public sector be made available under a Free and Open Source Software license. The initial signatories include CCC, EDRi, Free Software Foundation Europe, KDE, Open Knowledge Foundation Germany, Open Source Business Alliance, Open Source Initiative, The Document Foundation, Wikimedia Germany, as well as several others; they ask individuals and other organization to sign the open letter. The open letter will be sent to candidates for the German Parliament election and, during the coming months, until the 2019 EU parliament elections, to other representatives of the EU and EU member states.

  • Two Open Source Licensing Questions: The AGPL and Facebook
  • How Open Source and Proprietary IP Can Co-Exist [Ed: law firms pushing software patents, not just copyright]

    Open source software imparts a number of benefits, including decreasing product development time, distributing development across a community and attracting developers to your organization. However, some organizations shy away from it due to perceived risks and disadvantages around intellectual property.

    [...]

    That's a situation in which we might open source an implementation and file for a patent at the same time. In scoping the patent and the license terms, the open source community gets access to the software but the patent retains value.

No To “No Hacking” Clauses

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Legal

Adding any subjective restriction automatically creates doubt for developers, especially if they are corporate employees. They will need at a minimum to stop and ask their manager what the restriction means in their context, and that in turn is likely to be referred to a legal advisor. Even if the answer is “go ahead” the need to ask permission will be enough to chill use and stifle innovation.

The OSD tries to to prevent this and promote the granting of permission in advance to use, improve and share software for any purpose. Permission in advance is responsible for the whole open source phenomenon. So OSI won’t let you add a clause to a license that denies it. No matter how cleverly you word it.

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