Tony Healy, programmer and Senior Fellow of the Institute for Policy Innovation, has commented before on issues involving the GPL, and particularly on ASPs. (See, e.g., GPLv3 and Web Businesses Is the Free Software Foundation Getting Tricky?)

He sends the following commentary on the ASP issue and the latest draft of GPLv3:

FSF betrays its followers with GPL v3

By Tony Healy --- April 23, 2007

Amid the smoke and confusion around GPL v3, one thing is clear. The Free Software Foundation has wimped out of its intention to close the ASP loophole, thus betraying its programmer supporters.

The guiding principle of open source is that users return any improvements to the community. In fact, that’s about the only benefit the GPL does provide to programmers.

Yet, as is well known, Google, Amazon and others run enormous businesses on Linux and other open source software, without returning any of their valuable software technology to the community. In the case of Google, that includes a dedicated high performance file system, and its valuable search technology.

This failure to honour the open source deal has irked astute programmers, including Stallman himself, to the extent that closing the ASP loophole was originally an important goal for GPL v3, as discussed in my PFF piece of Feb 2006.

Billion dollar businesses like Google obviously opposed a change like this. For all their blustering and their open source programming competitions, they are corporations that protect their own intellectual property, just as Microsoft, Disney and Viacom do. The last thing they wanted was to be forced to return their valuable technology to the community and competitors. Google manager's of Open Source Programs, Chris DiBona, revealed that the company had programs in place to quarantine their code from GPL v3 if necessary.

Sure enough, the FSF has indeed backed down and will retain the ASP loophole. In doing so, they effectively create two classes of open source users – large corporate web service companies, who are exempt from the requirement to disclose their improvements, and individual programmers, who aren’t.

Some in the open source community understand the significance of this backdown. For example, Bryan Richards, editorial director of Linux Magazine, points out:

The future is networked. The GPL isn't. … with the this latest draft of the GPL3, the Free Software Foundation may have served up a license that best represents the software of 1989 and have transformed a loophole into a tunnel you can drive a truck through.

Matt Asay:

I never would have thought RMS and Eben would capitulate....I was wrong.

Fabrizio Capobianco:

That means 75% of the future software (which is going to be SaaS) could be offered by leeches, that suck the soul of open source for their pure benefit. They make money, while others work for them for free, to make them rich. Rich without returning anything that could benefit the community of whom they are parasites.

To save face, Stallman and the FSF pretend a different licence, Affero, will close the loophole, but that’s dodging the issue. The fact is that the major revision of the GPL won't do this. The Affero licence is irrelevant because most GPL developers won’t use it. More importantly, a separate licence can easily by targeted and blacklisted by corporate users such as Google to discourage its use. The FSF’s Brett Smith inadvertently refers to this:

People who want to avoid code with this requirement can just blacklist the AGPL (Affero), and not have to worry about a list of additional requirements.

Other rationalisations by the FSF are equally specious. For example, Smith even tries to blame inelegant wording.

This backdown represents the inevitable, and sad, second stage in the corrupting of an ideal. The first was the widespread hypocrisy of corporations such as IBM who prattled on about the virtue of programmers donating their work, while meanwhile charging a fortune for their own consulting time using that work. Lawyers were also in on this act.

The second is the FSF endorsing a flagrant breach of the spirit of GPL-style open source, to the benefit of powerful corporates.

The backdown by the FSF highlights the poor long term prospects of ideologies that deny the value of intellectual property rights. Free culturists tend not to understand the motivations of IP promoters. It is simply that IP protects creators against being exploited.

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posted by James DeLong @ 2:08 PM |

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