Noel, I happen to agree with Moglen on this. If big companies are going to use Linux and other GPL software, they know what the deal is. Fortunately for them they've had a little loophole in the ASP exemption. This is the point I made in my recent piece on GPL v3, and where I accuse the FSF of wimping out.

If Moglen is serious about this, why doesn't the FSF use GPL v3 to close the ASP loophole?

Google in particular are arch hypocrites on this, running open source competitions and other distractions to pretend they're big supporters, while fiercely protecting their important IP. If they're going to protect their IP, how about they be honest about it.

My GPL v3 piece is at:

http://weblog.ipcentral.info/archives/2007/04/tony_healy_on_g.html

The thing I don't think you've ever understood about the FSF, Stallman, etc., is that the community is the users. The Be-All-and-End-All of the GPL is to guarantee that users are free to do with their possessions as they see fit. Buy a PC, install a GPL'ed app, and do with it what you wish. The only restriction placed upon you comes into play only if you decide to redistribute your modifications to the app -- if you do decide to redistribute, then you must accord those who would use your modifications the same freedom you were accorded. It's really very simple, yet you persist in either misrepresenting the basic idea or (and this I find hard to believe) failing to grasp it entirely.

So how would you suggest the rights of the copyright holders of GPL'ed software be enforced in light of restrictive conditions (such as those imposed by TiVo) that violate the wishes of the copyright holders, or in light of web-based pseudo-redistribution loopholes that allow companies like Google to modify to their heart's content without redistributing their modifications?

You and your collegues make a lot of noise about respecting copyright holders' rights, so I'd like to know whether that's really true, or whether you only respect those rights when the copyright holders endorse business models you approve of. I suspect the latter, based upon what I've read here.

Michael M, is your comment addressed to Noel or to me?

For me, in relation to Google's failure to redistribute their modifications, I agree with the point I think you're making. I think the GPL should eliminate the ASP loophole.

Re Tivoisation, I think device makers have rights too and that device makers satisfy their obligations by redistributing their modified code. As you know, GPL v3 wants an additional right - that the device run any modified code. I am open to argument on this but, in general, do not agree that device makers should have to do this.

Michael,

l take issue with several aspects of Moglen’s statements cited above. While I agree with Tony Healy that Google is a bit hypocritical in touting its friendship with the FOSS community, Moglen takes an odd approach in dealing with Google.

Basically, Moglen tells Google it must weigh whether its modified FOSS code is “critical” to its business (a rather high bar) and whether the code would be of “general value” to the community (a more lax bar). On the one hand, Moglen is calling Google out. On the other hand, Moglen appears to over-reach, intentionally, FOSS licensing terms. Such a move would be akin to a purposefully ambiguous GPLv3 that would invite enforcement, not by any legal standard, but by the whim of the Free Software Foundation.

If Moglen does not like what Google is doing, then he should close the ASP loophole in GPL v3. However, that may make the license more objective from a legal standpoint, and less accommodating to the Free Software Foundation than a license that will allow it to invoke "community" based standards.

As far as my statements about the FOSS community, that refers to a post I wrote on clearing intellectual property rights with FOSS technologies (http://weblog.ipcentral.info/archives/2007/05/the_foss_commun.html).

My opinion, and feel free to offer your counter-view, is that the Free Software Foundation probably does not consult with FOSS licensors when making statements such as those above. If true, the Free Software Foundation, in effect, acts as a re-licensor when it seeks terms of FOSS code use without consulting with the copyright right owner. Hence, the Free Software Foundation may well be the community it touts as its main concern.

I agree with you, Michael, that copyright holders should decide the redistribution rights to their works, regardless of business model. But I judge business models by their viability, which includes the ability of firms undertaking those business models to comply with commercial regulations that affect all other firms.

Noel, which commercial regulations did you have in mind that the GPL interferes with?

The GPL itself does not interfere with regulatory compliance, but those who support the GPL often deem digital copyrights and software patents as burdens on innovation, even though every other sector complies with these IP policies.

If FOSS businesses cannot handle ordinary cost of doing business, I don't see much viability in the movement.

"who support the GPL often deem digital copyrights and software patents as burdens on innovation, even though every other sector complies with these IP policies."

might consider stamp duty (a tax on house purchases in europe) law burdensome - that does not mean I do not comply with it while it exists even as I call for its abolition.

Thus, we see a lot of "non-US" free software, that is only legal outside the USA (because of the USA's uniquely assinine laws that it's currently trying to force onto other nations).

Entirely closed-source sectors of the software industry consider patent laws extremely burdensome - the bulk of the european software industry closed and open source alike, for example, looked at the remnants of the american software industry and say "no thanks".