this post was submitted on 31 Dec 2023
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So, Open Source was already kindof the capitalistic fork of the Free Software movement. And it feels like Parens' vision of Post-Open Source is about how to marry it more to "the market." If it's not clear from what I've said already, I'm not a fan of that specific aspect of it.
It is a problem that big companies reguarly violate the terms of the GPL. I hope good things come out of SFC v. Visio that give the GPL's requirements of distributing source code with compiled code more teeth, but we'll have to see. I do think the courts agreeing to interpret the GPL (at least in some cases) as a contract rather than as a license is a good thing. It was a gutsy move on the SFC's legal department's part, but the case shows more promise now that they'd made it than it did previously. Perhaps a GPLv4 that better deals with being interpreted as a contract is in order.
Though, I worry that what Parens has in mind for new licenses doesn't address what I'd want to see from the Open Source movement and will ultimately move (Post-)Open Source in the wrong direction.
Specifically what I want from FOSS licenses is to be able to (and to have assurance that others have the option to) write and distribute software with assurances that no one's going to use it to restrict users' rights down the line. The GPL has historically been imperfect at that. The AGPL is better. But the GPL has always been explicit about requiring companies to distribute source code with binaries. What we need is that but with teeth in the form of some combination of court precedent and more effective legalese.
If current licenses have the problem that big companies just ignore the terms set out in the license, I wouldn't imagine making a new sort of license with different terms like "big companies have to pay to get the benefit of using Pots-Open Source software" is really going to work.
All that said, I'm glad to hear discussion about the future of FOSS. I'm worried about where FOSS is now and where it's going and am glad to see more strategic thinking.
Generally speaking I agree; I like how Perens is thinking about it.
I do think it's pretty well established that the GPL "has teeth" though. The FSF has a list of enforcement cases against fairly large defendants; it looks like their record is 2 for 2 in the US. I think it rarely comes up, just because complying with the terms of the license is so no-brainer-ly easier than trying to make the legal argument that you can use someone else's stuff for free while thumbing your nose at the terms and conditions they want you to abide by in order to do that.
I think most of the "big company ignores the GPL" things you hear about are either things like RHEL, where they're carefully skirting the line in a clearly bad-faith way that has some decent chance in court for some particular reason, or else someone breaking the GPL and then their legal department looking at it for 2 seconds and telling them to stop doing that. The cases where someone with anything to lose actually doubles down and says "fuck you" are rare I think for pretty obvious reasons.
(Also, I just learned this today: When Best Buy did this in 2009, the judge eventually made them give the plaintiffs the TVs as part of the damages when it was all done. That's the funniest thing I've heard all week.)
I need to look into the Best Buy case you're referencing.
But I doubt think you're right that violation of the terms of the GPL is such a rare thing. Aside from people who just don't use technology much at all, I'd imagine most folks have multiple devices sold in ways that violated the GPL and with no plans for GPL compliance (and no knowledge that they needed a plan for GPL compliance.)
At least that's how most of the content on the Software Freedom Conservancy's YouTube channel makes it sound.
On what is your doubt based? Like what devices do you have that you think are violators? Like I say I imagine that careless violations aren't, like, un-heard of, but correcting them once things are explained is almost always the response. I mean, correcting the violation is usually free and easy. I'm not real familiar with the SFC, but I know they're actively suing Visio right now, and I know the FSF is happy to bring cases to trial if it comes to that (they kind of like doing it it seems like).
Link to the Best Buy case
This talk says "[Free Software] is generally everywhere and a lot of these smart devices that you buy off the shelf most likely is running some sort of free software but most people would never know that. Generally it's not indicated anywhere that it's running any type of free software. There's no written offer for sources which is sadly the most popular... the written offer for source code seems to be the most popular way that they go about distributing the software but generally they don't follow up with it or what they distribute is not really that."
This article mentions that "I've been on a mission in recent months to establish just how common and mundane GPL violations are. Since 21 August 2009, I've been finding one new GPL violating company per day (on average) and I am still on target to find one per day for 365 days straight."
I've got a robot vacuum cleaner that runs the Linux kernel and Busybox but came with no written offer for source code. (Per the article above, I'll refrain from naming and shaming the company.) I might go look at the documents that came with my smart phone a little later and see if I can find any written offers for source.
Hm, interesting stuff. Yeah, maybe it's more common than I was aware of -- that's still a little weird to me, because there are entities like FSF that are so happy to go to bat for people legally if they do want to make it a legal issue.
Maybe it's made a little more complex because a lot of authors don't want to "punish" the company involved so much as they just want people to comply with the terms of the license, and a lot of companies aren't violating the license out of maliciousness but just from lack of knowledge or it just being more difficult than it sounds to keep your ducks in a row with source availability.
FWIW, I know Android phones generally have something buried in the settings where it explains what the licensing is for the code on the phone and with a theoretical offer for the source if you want it. That seems like what the Youtube talk is about; just creating the technical tools so that people can be in compliance without it being a pain in the butt that costs your engineers time and costs you money to do which companies are going to be tempted to avoid. But yeah, maybe people are getting sloppy about it in a way I wasn't aware of; that's sad to me if so.
It's more that they avoid the spirit of the licensing, not the terms (except Red Hat of course).
I suppose you can split this into two separate arguments:
Swap from licenses to more enforceable contracts
Have companies pay open source devs