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All content by Kyle E. Mitchell, who is not your lawyer.

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November 17, 2019

Venture Capital Shillscapegoating free software’s failures

I respect Bradley Kuhn’s contributions to software licensing and free software, all the more so because he’s a dev, and not a lawyer. It’s more important to me that devs feel empowered to understand and exercise their rights than what any license or policy might say. Which makes it all the more disappointing every time Bradley decides to play politician, and stoops to something like this:

Copyleft Conf will be a more traditional conference at an urgent time in copyleft history. This past year, there has been an increasing push by companies and VC-friendly lawyers to redefine the future of copyleft to serve the interests of powerful companies rather than individual users. I hope Copyleft Conf 2020 will be a premier venue to have community-oriented discussion about how copyleft can help users and developers gain more software freedom.

Last Chance to Submit for 2020 FOSS License Policy Events

The license I take it he’s alluding to is MongoDB’s Server Side Public License, and the “VC-friendly lawyers” he’s alluding to include Heather Meeker and they include me. Heather helped Mongo write SSPL. I supported its bid for recognition as an open source license, and still do. I wrote a parallel license, API Copyleft, weighed into the debate, and blogged extensively, all to help separate the unfortunate styling of that license from the goals, function, and usefulness of its substance. And all to no avail, in large part because Bradley and others never missed a chance to bash Mongo as a corporate intruder that “the community” ought to run out of town.

Venture capitalists and hireling lawyers make convenient scapegoats. The old, creaky pillars of the free software movement need convenient scapegoats, because the facts on the ground raise serious doubt about the effectiveness of their leadership and the byzantine, insular ideology of copyleft they impose. When the facts don’t help, substitute narrative. You can rule on narrative alone, at least for a while.

The facts on the ground are highly inconvenient here: No licenses have done more for venture capitalists than GPLv2 and GPLv3. Moreso than MIT, BSD, or even Apache. Because GPLv2 and v3 gave hobbyists, students, and anti-corporate hackers a means to feel as though their work resists the evil empire of the software industry, while in fact serving it up with unpaid work product. From the VC point of view, the GPLs break the dam on that pool of labor, flooding venture prospects with freebie technology.

It may now be the case that most popular closed software is developed, operated, or even directly based on GPL-licensed software. It is getting harder, not easier, to live the throwback-fundamentalist, free-only computing lifestyle that Bradley preaches. Which is part of why it’s so easy to get a quote from nearly any venture capitalist extolling the value of open source—Linux, GNU utilities, and a heap of other GPL-licensed free software very much included—to their portfolio companies and the startup model as a whole. It’s cheap to start software companies largely because most of the software you need is free … as in beer.

Practically speaking, it is. The general rule of copyleft under FSF-school stewardship has been that licenses can demand sharing code back so long as they don’t cover the primary use case of any really popular project.

When concerns arose about the GPLv2 license for Linux covering user space programs, kernel developers bent the license over backwards to make sure it wouldn’t. When libgcc threatened to require GCC-compiled programs be released as free software, FSF made an exception to its own rule. When Google came up with nifty kernel patches, FSF’s insistence on freedom to make and use “private changes”, even within a sprawling, multinational organization primarily providing network applications, allowed them to keep them as trade secrets. When I wrote a strong copyleft license for dev tools, the FSF faithful objected. Why wouldn’t a movement best known for dev tools and software freedom want a copyleft license that requires devs using dev tools to make their work free?

The exception to the rule has been libraries—non-end-user software that must be built up into applications to do anyone any good. Even so, the best-case results are GPL-licensed applications, which can be provided to end-users as services without source code, or used to develop other code without any condition at all. FSF has a license that at least starts to close the first of those loopholes, AGPLv3, but decided not to make that license GPLv3. Apart from using a similar acronym—AGPLv3 versus GPLv3—the FSF actually did what it could to make AGPLv3 code easy to spot, avoid, and quarantine by those writing and profiting from closed code. In any event, all of this matters less and less, as FSF goes out of its way to point library authors toward permissive licenses in a growing number of cases, and even deprecates its own library-specific compromise license.

The trouble with vilifying lawyers who work for clients rather than foundations or corporate allies’ law departments is that private practice for smaller clients is where copyleft maintenance and innovation actually happen right now. Private clients, both individuals and smaller firms, are asking for the licenses the FSF and its refugees won’t give them: strong copyleft licenses that make very clear to other developers that they can come play in the open or fuck right off.

Heather Meeker wrote the Server Side Public License for Mongo, which I’ve argued represented a necessary evolution of selective copyleft terms like the Mozilla Public License. Partisans continue to rely on the outrage stoked up around it, as Bradley did to pitch CopyleftConf.

Van Lindberg wrote the Cryptographic Autonomy License for Holochain, which extends copyleft to cover data in addition to source code. It was not well received by the establishment. Even though Van’s the kind of lawyer who presents at CopyleftConf. It made him take a second look at the process, from a new point of view.

I wrote Icepick as a riff on CAL, extending copyleft to the remaining elements of computing. I have no doubt how the old guard would receive it. Thanks to my experience with the license that became Parity, I know better than to submit a license to any of the old free and open foundations for focused substantive discussion, be it Icepick, API Copyleft, or even the broadly unobjectionable Blue Oak. More importantly, I don’t need a mailing list, a conference, or an activist chaperone to reach my colleagues.

I will not be attending CopyleftConf. I’ve heard the sermons about how software freedom is the spring from which all worldly good shall flow, if only we keep the faith absolutely. And I’ve heard the battle cries against venture capitalists, companies, and pretty much anyone who doesn’t work for an anointed charity. All to the point of developers systematically surrendering what little power the political system affords them—copyright—thus increasing the leverage of the powers they don’t have—market power, name recognition, network effects, and capital, including venture capital.

In any event, Bradley and others have gone out of their way to make clear I’m not welcome, other, perhaps, than as a whipping boy. Or at least they seem to think they have.

Do they know I’ve never taken a VC client? Do they know I represent more charities pro bono than companies with VC investment? Do they know that I’m a lawyer because I was a programmer first, and that I was a programmer because of Debian and free software? Do they know that many of the venture capitalists and lawyers they vilify also code?

Does any of that matter?

It seems I’m more useful as a bogeyman than as a collaborator, even with a broadly felt shortage of lawyers well versed in copyleft and its history and a constant need for deliberation of legal ideas. That’s the beauty of scapegoating. It’s the narrative that does the work, facts be damned. Until recognition of the facts spreads faster than the narrative can “correct” them.

Nobody needs a blog to see that FSF-style copyleft and gunshy enforcement haven’t made computing free. Current trajectory is worse, not better. That’s the crisis of copyleft. But there won’t be any conference laying blame on the organizers.

Your thoughts and feedback are always welcome by e-mail.

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