FSF uses unproven compliance issue to promote GPLv3

Is it fair to use FUD to promote GPLv3 over GPLv2?

The Free Software Foundation (FSF), in its quest to promote version 3 of the GNU General Public License (GPL) over the GPLv2, has joined the chorus of observers who have made broad hints that vendors within the Android operating system ecosystem are guilty of some violation of the GPLv2.

In a press release posted on Thursday evening, FSF license compliance engineer Brett Smith wrote that "Not all of the companies that distribute Android heed [the conditions set forth in the GPLv2]. We've witnessed an uptick in GPL violation reports--some convincing, others incomplete or misinformed--against these vendors."

No mention was made in the press release from the FSF as to specific Android violations or violators of the GPLv2, nor any pending non-compliance legal action. But the FSF seems more than willing to jump on this bandwagon to further promote GPLv3 over GPLv2.

The issue of GPL compliance in the Android ecosystem was recently raised by IP attorney Edward J. Naughton, (part 1 and part 2), who is attempting to raise alarms that GPL compliance violations could potentially damage the Android commercial sector, since re-establishing distribution rights after a violation of the GPL is supposedly difficult.

Specifically, Naughton argued, the Linux kernel, which is licensed under GPLv2 and is modified for use as Android's kernel, is not properly distributed by Google or Android vendors, thus putting it in violation of the GPLv2.

Naughton's arguments (and those of FOSS Patents author Florian Mueller) then further asserted that since GPL violations had already occurred, many Android vendors have already lost their distribution rights under the conditions of Section 4 of the GPLv2.

The argument against this line of reasoning is that, to date, no credible claim of GPL violation has been made, according to the Software Freedom Conservancy's (SFC) Bradley Kuhn, who has been and is responsible for pursuing many GPL compliance complaints on behalf of developers to date.

"Specifically, I see no one actually reporting a credible GPL violation in any of these blog posts. I also note that these two bloggers have not bothered to contact me at Conservancy to ask for help (or offer their help) in doing enforcement against any violations, despite my public call to Naughton to do so in my [May] blog post," Kuhn replied to my questions about Naughton's blogs last week.

However, that hasn't prevented the FSF's Smith to use the media attention on the issue of alleged non-compliance of the GPLv2 to try to promote the GPLv3.

One of Naughton's arguments was that once distribution rights have been lost, it can be very difficult for a project like the Linux kernel that has so many multiple copyright holders to formally grant distribution rights again even after compliance has been attained again. This thread is exactly the one Smith picked up:

"When we enforce the license of FSF-copyrighted software, we give violators back the rights they had after they come into compliance. In our experience, developers of Linux are happy to do the same. Unfortunately, even if we assume they all would restore these rights, it would be extremely difficult to have them all formally do so; there are simply too many copyright holders involved, some of whom haven't worked on the project in years or even decades."

The issue, according to Smith, is that while the GPLv2 is quick to cut off rights, the license does not make it easy for rights to be re-granted to former violators of the license terms when projects have so many copyright holders.

"When we wrote GPLv2 in 1991, we didn't imagine that a free software project might have hundreds of copyright holders, making it so difficult to get a violator's rights restored. We want it to be easy for a former violator to know that they're still allowed to change and share the software; if they stop distribution because of legal uncertainty, fewer people will have free software in the long run. Hence, we created new termination provisions for GPLv3," wrote Smith, linking to Section 8 of the GPLv3.

This section of the GPLv3 does seem to make it easier for distribution rights to be re-established:

"However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.

"Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice."

While nothing Smith argues is untrue, it seems a bit unseemly to promote the GPLv3 with what has thus far been an unproven stipulation: that (a) there are certain violations of the GPLv2 being made by Android and (b) that the copyright holders of the code supposedly getting violated are interested in filing a non-compliance claim.

Obviously, the FSF is free to promote whatever license it wants, but if it has to use vague accusations to marshal reasons for vendors to adopt the GPLv3, then one has to wonder if the FSF hasn't stooped to a bit of desperation. While the GPLv3 has had a healthy adoption rate, is it still significantly below the number of projects that use the GPLv2.

(And before anyone inevitably goes off on my using Black Duck Software's stats, be advised that I am well aware of their past compliance marketing tactics, but to date I have found no problems with their methods of gathering data for monitored projects.)

I don't think it's entirely appropriate to use heretofore unsubstantiated claims of GPL violations to make the point that GPLv3 is better than GPLv2, and then use it as a direct call for more GPLv3 adoption, even to the point that "[c]ompanies that sell products that use Android can help out by encouraging the developers of Linux to make the switch to GPLv3."

I don't think this issue is going to make one whit of difference to the Linux development team, given Linus Torvald's well-known antipathy for using the GPLv3 for the Linux kernel.

Again, if there are valid claims of GPLv2 violations by Android vendors, then they must be addressed, and all of these arguments will certainly have more teeth. But until that day comes, why is it appropriate for the FSF to essentially throw the GPLv2 license (and thus any project or vendor using the GPLv2) under the bus before any violations have been credibly claimed? Is the FSF so desperate it has to use FUD against one ideal of the free software community to promote another ideal it considers "better"?

Is that really what freedom means? Read more of Brian Proffitt's Open for Discussion blog and follow the latest IT news at ITworld. Follow Brian on Twitter at @TheTechScribe. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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