[Ksummit-discuss] [CORE TOPIC] GPL defense issues

[Bradley M. Kuhn]

[ I know I said I wouldn't reply again on this subtopic, and Karen already
  posted elsewhere in the thread that Conservancy isn't going to invite more
  time responding officially on this thread, so I wrote this response on my
  own time (from my own email address).  It's just tough for me not to be
  Kibo-like when Linus says my name seven times in one email. :) ]

Linus,

Linus Torvalds wrote a few hours ago:
> Bradley claims that it's because companies are selfish, and that's
> certainly true, but there's nothing wrong with that.
... 
> So Bradley is literally spouting the *exact* wrong argument.

Oversimplifying my argument to some soundbite then attacking the soundbite
would certainly make for a good segment on "The Open Source Daily Show".  I
would truly enjoy being lampooned on such a thing; I wish it existed.

But the reason the whole "Daily Show" method that Ted mentioned works as
comedy but not as deep policy analysis is that many policy issues are
complicated, and those who speak regularly about complex policy topics
generate a string of soundbites that you can put together in ways that might
not represent their actual position.  Or, maybe they just make gaffes.

Gaffes or confusing statements don't have behind them some deep insight of
someone's real motives.  Years ago, I read this book called _The Bush
Dyslexicon_.  The book lined up a bunch of Bush 43's gaffes and argued that
somehow they showed his real motivations -- that by digging deep into the
gaffes, one could find his real beliefs.  I admit it was a cute read; and
I'm now somewhat of a walking encyclopedia of Bush 43 gaffes because I read
it.  But, I just wasn't swayed by the book's argument.  The way to judge a
public figure is by their official policies, their actions, the bills they
sign, the bills they veto, the agenda they put forward to Congress -- not by
finding ten words in a speech.  Even if it is your political opponent.

It's certainly possible to use small pieces of what I said previously as
evidence that I'm a "secret copyleft maximalist".  If you add in that I've
exchanged a lot of email with RMS in my life, the theory might sound
plausible.  Once that theory has some truthiness, no one can *prove* that
you just misunderstood some past statement, or, that in some cases, my
positions have changed over time (such as regarding copyright assignment).

For example, this thread, and the private discussions I've had at work with
Conservancy's GPL Compliance Program for Linux Developers during the last
four days have measurably changed a few positions of mine (but subtly enough
that it's not worth boring the list with details).  The discussions Karen
and I will have with Linux developers all over the world for the next six
months will probably influence and change my positions too.  But I still
don't think my personal views need accountability in this discussion.
Actions are what matters.  *Who* I am accountable to is what matters.

So let's talk about those -- taking the latter first.  When I work on my day
job at Conservancy with the GPL Compliance Program for Linux Developers, I
help enforce the GPL, but Karen and I both already said, we're accountable
to a bunch of people who *wrote code in your kernel*.

And, the former: what actions do I mean?  Well, to get there, let's consider
your question to me, Linus.  Publicly and privately, you asked me if I am,
or have I ever been, a "copyleft maximalist".  I didn't answer, not because
I'm "pleading the fifth", but because I don't understand that phrase.

During the the last 25 years that you were writing code in Linux, I wasn't
(although, some days, I wish I'd tried to upstream the tiny patchset I wrote
and deployed in 1993 for my university).  Instead, I spent that time (when I
could have been hacking on Linux) studying and trying to understand copyleft
as a tool and a strategy: how it worked, whether it worked, and how it might
work better.  I admit if I have specialty, that's my specialty.

Becoming a specialist in copyleft convinced me of the Socratic Epiphany [0].
I'm certainly one of the top experts on copyleft.  (BTW, I'm the perfect
example that "being a lawyer" is not a prerequisite for "being an expert
about a specific legal area", particularly if that area is tiny.)  Yet there
are plenty of questions related to copyleft that I can't answer.

People at social events after conferences love to pitch me what-if scenarios
about the GPL.  My pithy response is to ask them: "hypothetically speaking?"
and when they say "yes", I say: "I never learned to speak Hypothetical."
It's a joke, but I mean it: I don't claim to know what a Court will say
about questions.  More importantly to your questions to me, I don't claim to
know the right answer unless a *real world* situation is in front of me
where I can analyze all the nuances of the specific GPL violation.

The next obvious question is: "Well, we need to know the answer in the
general case, because if you're an advisor to the people enforcing the GPL
in Conservancy's coalitions, I need to know what you'll recommend!"  My
pithy answer is, "join one of the coalitions to be part of that discussion!"

The non-pithy response is: look at the public work.  Speaking just for
myself, I say: *I stand with Christoph Hellwig*.  I believe VMware
misappropriated his code (and code of other Linux developers too) into a
larger work and distributed the result in a manner that violates the
GPLv2§2(b) (primarily) and (secondarily) a bunch of other sections.  In my
day job, I co-wrote Conservancy's analysis explains why I believe that [1].

So, you can look at that FAQ and either say (a): "Aha! I don't think what
VMware did violate GPLv2§2(b), so now I know for sure -- Bradley is a
copyleft maximalist because he believes VMware violated."  Or, (as, Linus,
you (more-or-less) *did* say to me before the lawsuit) (b): "I think what
VMware is doing is in poor taste", and continue with: "so you're right on
that one, but how do I know how you'll decide on the next one you see?"

If your position is (a), well, then we know at least one tiny boundary point
of what *you* mean when you say "copyleft maximalist", but it also means
you're not just calling me a copyleft maximalist, but also the many others
who have spoken out in support of Christoph's VMware lawsuit.

If your position is (b), it doesn't mean I *am* a copyleft maximalist, and
it doesn't mean I'm dodging the question either.  It means I'm telling you:
"I don't know what *I* believe until I look at the specific situation,
including asking and considering the advice of other smart people."  And,
then you'll go back to saying you can't trust me, and I go back to my pithy
answer: "join the coalition and then you have a say in that decision, if it
ever even comes to that" (see my "Steps" email earlier [2]).

I went through all that to show that it looks to me that there's no way I
can answer your question in any way that will satisfy you, in part because
there are just too many unknowns, too much work left to do, and too many
people left to ask.  I will meanwhile hold you to what you said many times
(paraphrased here): "all Linux contributors keep their own copyrights, and
each gets to make their own copyright-related decisions".  Your opinion as
Linux's leader matters to me, but it's precisely because it matters to me
that I will hold you to your prior statements on "no copyright assignment",
until such time as you change that policy and collect copyright assignments
from every last contributor.

Meanwhile, I certainly don't think I should be appointed Grand Poobah of All
Things GPL.  I do want to practice my skill: helping get great copylefted
code written, and enabling the copyleft strategy to make sure that code
stays Free. I do that work with people who choose to work with me. I prefer
being accountable to a community, because I believe in community processes,
so I'm glad that all those people can walk away and tell me (and everyone I
work with at Conservancy in my day job) to _BLANK_ off.

But, to circle back to your primary point of "copyleft maximalism": if
you label me with an undefinable phrase, and say I've "got it all wrong",
we'll just end up working in parallel and separately.  I don't know how to
have a philosophical nor factual discussion once I'm labeled with a short
phrase that I don't fully understand, and am hearing: "there, look, see,
because you fit that phrase, you're the problem".  I don't mind being told
"you're the problem".  But, Linus, there are also places where I'd say that
"you're the problem" too.  We probably won't convince each other that either
one of us is a problem to the other, so we don't need to bother. :)

Finally, a key reason I replied was to clarify this point, since it's made
in the same email that talks about me personally in such detail:
> With people like Larry Wall etc were almost demonized by the FSF?

The primary Free Software project on my resume is Perl.  I was involved
during the Perl4 and early-to-mid Perl5 period.  I've written code in many
Perl modules and perl5 itself, under non-copyleft licenses.  I even *fought*
my University when working on my Master's thesis, who had already *agreed*
to GPL my work (under *their* copyright).  I hired a lawyer *specifically*
so I could keep my *own* copyright, released under a non-copyleft license
(GPLv2-or-later|Artistic), for compatibility with perl's license.

Think about that: Bradley M. Kuhn, The Copyleft Guy™, paid a lawyer to have
a legal fight (but not a lawsuit!) with his University because he wanted
something he wrote to *not be copylefted*, because the Perl community
*didn't want it under copyleft*, even though his University did.  That tells
you a lot about my character and views.

Anyway, more to the point about Larry: I was one of the people who nominated
Larry Wall to receive FSF's Award in 1998 [3].  Larry Wall was on my thesis
committee.  Meanwhile, one of the first volunteer activities that I did with
the FSF was encourage people to normalize licensing of Perl modules under
non-copyleft (GPLv2-or-later|Artistic).  I also wrote the Clarified Artistic
License, which was really a proto-version of the Artistic-2.0, designed to
help copyleft communities and the Perl community to get together.

So, while I don't know what demonization of Larry that you're talking about,
no one can credibly say that I, who was both a volunteer for the FSF and
involved with Perl during that time period, ever demonized Larry, and you
definitely should not paint me and those who did with the same brush.


With that, I really am done replying on this thread.  I hope to talk with
many of you about GPL enforcement at conferences, etc. in the next 6 months.


[0] i.e., I know enough about this topic to realize it's impossible to fully
    know this topic.

[1] See Conservancy's VMware Lawsuit FAQ:
    https://sfconservancy.org/copyleft-compliance/vmware-lawsuit-faq.html#tech

[2] https://lists.linuxfoundation.org/pipermail/ksummit-discuss/2016-August/003637.html

[3] https://www.gnu.org/award/award-1998.en.html
    BTW, Ted was  given the same award in 2006:
    https://www.fsf.org/news/free-software-award-2006
-- 
   -- bkuhn