Reviewing some interviews with Richard Stallman's concerning his hopes for this draft of his open source license, GPL3, it struck me as very "in the world, yet not of the world." Or perhaps I should say, "in the market but not of the market." What I mean: The latest version of the license provides an interesting illustration of how accountability to users differs between more traditional "closed" or "proprietary" licenses and open source. Bear with me, this argument has two parts...

Part I: Closing the ASP Loophole--More Business Friendly?

In a NewsForge interview in 2000, Richard outlined the "ASP Loophole," the problem of application service providers whose users access software online, but do not download it. These providers may be characterized as taking without giving back to the open source community, within the letter of the license if not its spirit. But

alternately one can view those who exploit the ASP loophole as being bound to do so by the fact that if they do distribute their code, some other enterprise may take without giving back. So Google might be more willing to release its code if there was some assurance that an imitator could not simply adopt it wholesale. The article explains:

Take the example of a company whose main business is to provide a Web-based service. Its source code ... is never intended to be distributed in binary form. Thus if the company were to release their software under the GPL, as it currently stands, a competing company would be able to quickly and easily create a modified version of the first company's work, set it up on a public Web server, and start profiting without having to release changes. Thus the original authoring company is discouraged from making its software free . . .

. Following this line of argument, the article announces that GPL3 will be "more business friendly." Thus this current draft of the GPL, GPL3, tries to close the ASP loophole, as Tony Healy has described.

On one reading of the NewsForge article, Google, Amazon and other ASP's who use open source without distributing code might be itching to do so, but hold back for fear of imitators. Under the current draft of GPL3, they can proceed.

Does this theory hold water? Seems to me that successful ASPs are still better off if they just stick with GPL2. Way better off. If they release their code under GPL3, imitators can still proceed, all the original ASP can do is imitate them in turn. Not much of a solution to the problem. At all.

Stallman has either made a mistake, or perhaps more likely, the article should be read another way. Google and Amazon are the bad guys after all. The intent of new GPL3 is not to be more "business friendly" but to nail them, bringing them into compliance with the spirit of GPL. In future, should upstream developers so stipulate, ASP's using their code will have to distribute.

What does this teach us about accountability as it works under open source? Tune in to Part II...