Open-source defenders turn on each other in 'bizarre' trademark fight sparked by GPL fall out

Tempest in a teapot scalds FOSS world

So close and yet so far

Since the fallout from the VMware lawsuit, the SFLC has distanced itself from the SFC. The SFLC is steered toward a softer approach to handling license noncompliance, describing those taking a tougher stance as waging "jihad" in the name of free software.

It's not obvious how to measure that distance between the two organizations, but it's far enough that the SFLC, which helped the SFC set up its corporate structure, is now objecting to the SFC's operation under that name. Yet it's not so far there's an obvious gap in goals.

Perens contends SFLC executive director Moglen has changed, pointing to the Free Software Foundation's announcement in October last year that Moglen had stepped down as general counsel as a sign of differences.

Perens – a grandfather of free software and open source – suggested Moglen's aversion to GPL litigation disempowers developers. "Free Software developers give away a whole lot of rights," he wrote in an post directed at Moglen. "Now, you are telling us that's not enough. Having given the world our software on the most liberal of terms, we are not to enforce even that license?"

Garrett recently claimed Moglen acted against the interests of the Free Software Foundation while representing it. "His actions are no longer to the benefit of the free software community and the free software community should cease associating with him," he wrote in a blog post this month.

Moglen insisted he hasn't changed, that he's doing what has has done for the past 25 years.

"We're not practitioners of war," he said. "...In that I haven't changed a bit."

In remarks made at the SFLC's 2016 Fall Conference, recapped as a paper titled "Whither (Not Wither) Copyleft," Moglen offered some indication of his current thinking about GPL enforcement:

Some of my angry friends, dear friends, friends I really care for, have come to the conclusion that they’re on a jihad for Free Software. And I will say this after decades of work – whatever else will be the drawbacks in other areas of life – the problem in our neighborhood is that jihad does not scale.

Moglen says he favored conciliation over conflict. "My take on this subject is that we should continue to do as much as possible what we always did," he said, "to get people to follow the rules as effectively as possible with as little force as possible."

Paul Berg, an open-source licensing expert who has worked at Amazon and advises the Idaho National Laboratory in the US, in an email to The Register said the trademark claim has created a lot of confusion in the open-source community. He said he had great respect for Eben Moglen, and counted Bradley Kuhn and Karen Sandler among his personal friends.

Berg said there's little outward difference between the SFLC and the SLC in that both are disinclined to litigate except as a last resort. Most GPL compliance failures, he said, are the result of ignorance or misunderstanding of the licensing terms. And most organizations, when confronted with such issues, prefer to comply, but lack the experience to do so in a low-cost, low-risk manner – a service Berg provides to clients.

"Some products however, by the very nature of the infraction, have no easy solution for a business," said Berg. "Software being sold as a product that relies on trade secrets, that is tightly coupled with open source software that requires derivative works to be open source themselves, is an example of this and is the current contentious issue with VMware."

Berg dismissed the suggestion that companies are seeking to take advantage of a lawsuit-shy community.

"What I see instead is development practices that do not adequately maintain bills of material to track third party license obligations, ignorance as to the scope of those obligations and how to meet them, and confusion as to how to address licensing issues once they arise which may cause them to overstate the risks," he said. "I also see far too much emphasis by companies as to the value of the trade secrets in their software and the utility of copyright protection to guard those secrets."

Artistic expression

Berg contended that the operation of most software can be inferred by observation, and noted that copyright does not protect the operation, only the artistic expression.

"As a result, the only thing a proprietary licensing scheme withholds from competitors in most cases is the labor cost of replicating the software," he said.

Moglen for his part said he's focused on the OpenChain Project, a FOSS compliance program for the supply chain.

"We now hope that late this decade, or surely by early next decade, a lot of the companies that buy components, companies like Qualcomm, will be requiring suppliers to deal with them on compliant terms," he said. "That's an enormous win. That's a win we've worked at for a very long time."

It's a win he hopes will come through cooperation rather than coercion.

Nobody wants to go to court because it's expensive and fraught with risk. But if the threat of litigation becomes sufficiently remote, flouting the licensing requirements becomes indistinguishable from compliance.

"What's the point of the GPL if you're never going to enforce it?" Perens asked. ®


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