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Law.com article spins old confusions into new "danger"

By Aaron Williamson | June 5, 2008

Law.com recently ran a sensationalist piece by Edmund J. Walsh warning of the impending “dangerous real world business dispute” in store for any for-profit company that uses free software. Walsh points to lawsuits filed by SFLC on behalf BusyBox as a source of this danger, and having worked on those lawsuits, I hope I can provide a helpful counterpoint.

Copyright law has always been a key tool of free and open source software

The article claims that until the first BusyBox lawsuit, the free and open source software (FOSS) movement has presented nothing more than “a philosophical debate about the proper place for software in society.” But copyright licenses have been used to give freedom to users for almost as long as the concept of “free software” has existed.

There are a few reasons why these long-standing legal claims have not developed into lawsuits until recently. One is that FOSS developers have preferred inclusiveness, welcoming new members into the community and offering gentle guidance to those who got it wrong. This has been the approach of the FSF, which has been enforcing its copyrights privately for many years. Another reason is that very few FOSS projects have the resources to enforce the terms of their licenses, and as a result even the most blatant violations have historically carried minimal consequences. Some companies have—whether through ignorance, laziness, or malice—taken full advantage of this disparity of resources. Without the benefit of legal assistance, projects' enforcement attempts have typically been met with excuse and delay, and almost never with full compliance.

Recent enforcement does not reveal any new risks or pitfalls

The issue is hardly that FOSS licenses present hidden risks. By and large, they are clearer and less onerous than proprietary software licenses. Nor is it the case that “the freedom belongs to the software, not to users.” All users, including for-profit companies, are afforded the same substantial freedoms by FOSS licenses. But as has always been the case, the GPL does not give any user the right to deny those freedoms to others. This could only be a “new lesson” to someone who has never read the license.

Walsh's perception of an “irreconcilable conflict between open source software and its widespread use by for-profit companies” is unsupportable, as is his assertion that “any activity that leverages software for business advantage is likely to restrict the software's freedom.” These statements stem from a misunderstanding of the facts involved in the BusyBox lawsuits. Walsh takes the confidential nature of the settlement terms as license to assume that the defendants were forced to release proprietary code which they distributed with GPL'd software. Nevermind that software derived (within the meaning of copyright law) from GPL'd code can never be “proprietary,” you don't need access to the settlement terms to see that no such thing happened in any of these cases. This is because a not-so-secret condition of settlement is compliance with the license, and a survey of the sources released in these cases reveals that no one was compelled to spill even a drop of secret sauce.

FOSS is a windfall for embedded device manufacturers

Manufacturers of embedded devices built on Linux, BusyBox, and other common embedded FOSS derive enormous benefit from these tools that in no way abrogates their “business advantage.” Most make their money by selling hardware, and many don't write any software to speak of. Even so, it is trivially easy to build devices that run proprietary applications in conjunction with embedded FOSS without any need to release the code to the former.

So why do they keep the code to themselves? We can speculate on the reasons—ignorance of their legal obligations, indifference owing to a history of non-enforcement, etc.—but it seems that in the overwhelming majority of cases, the decision has nothing to do with protecting a proprietary business model. Whether they license proprietary software or FOSS, for-profit companies should of course pay attention to their legal obligations. But so long as they do so, they need not fear any “irreconcilable conflict” between making money and using FOSS.

Please email any comments on this entry to press@softwarefreedom.org.

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