10 Jul 2003

Managing Free Software after SCO

The SCO v. IBM lawsuit may not be a significant legal threat to the freedom of free software, but it does put emphasis on questions of project management in the free software community. SCO’s irresponsible public statements about copyright infringement in the the Linux kernel, and its lawsuit claiming that the same program has included trade secret material wrongly contributed by IBM, have disquieted users. SCO’s legal claims and its less responsible public accusations are likely to fail, as I’ve said before. But users of free software should now get better answers from the free software community about how free software is made, so that they can understand more clearly why it is safe to copy, modify, and redistribute.

The first and most apparently important protection for the freedom of free software is its license terms. Free software licenses like the GPL, the LGPL, the family of BSD licenses, the Apache license, and many others protect users’ rights to execute, copy, modify, and redistribute all the code to which they are applied. The Free Software Foundation maintains at fsf.org a list of free software licenses, with comments on their provisions. Users can be sure that code released under a free software license is intended by the licensor to be freely used, improved and shared. Contributors to a program released under a “copyleft” free software license like the Foundation’s GNU GPL can be sure that their contribution will always be free for everyone to use and improve, and will never be legally conscripted for use in unfree programs.

But license terms are only one aspect of the protection free software should have. The SCO lawsuit claims that material that wasn’t free has been wrongfully included in free software. SCO may be wrong on the facts or the law in this case; we’ll know in time. But the general question raised is important: what good are freedom protecting licenses if users can’t be sure that the code included in free programs was the licensors’ to distribute in the first place?

That’s where good management of free software development is most important. As Linus Torvalds, the originator of the Linux kernel, has pointed out, maintaining a large and complex program like the kernel involves keeping track of everything that is submitted for inclusion. It’s not hard to find out what IBM contributed to the Linux kernel. But the Free Software Foundation believes that good free software project management should go further. Maintainers of free software programs should ask contributors to warrant that they have themselves originated the code that they contribute, that they have not made any conflicting promises, to employers or others, to keep secret any techniques or know-how contained in that code. Employers should be asked disclaim or assign any rights in the programs written by employees who might, under the copyright law of the place of their employment, be making “work for hire” whose copyright would vest in the employer. The Foundation also believes that copyright in free software programs should be held by a steward or trustee, who can enforce the terms of free software licenses against infringers downstream, but who also has the full power to filter out and correct any problem inherited from upstream, as a result of inadvertent or deliberate infringement by contributors.

That’s the other job the Free Software Foundation does for free software we publish as part of the GNU Project. The Foundation makes a copyright assignment contract with each contributor to a project maintained by GNU developers, in which we ask them to assign copyright to the stewardship of the Foundation, take their promises about the origin of the code, and acquire the necessary disclaimers or assignments from their employers. In return, the Foundation gives contributors license to use, copy, modify and redistribute their code, and makes a contractual promise always to distribute their contributed code only on “copyleft” free software terms. In this way, not only does the Foundation have the power to enforce the GPL on many free software programs (remaining the only organization in the world committed to the routine, active enforcement of free software licenses), it also has the power to ensure that the free software it issues is purely free as described. At the Foundation, we can do whatever it takes to refute any unjustified legal claim made about the freedom of our software, or fix whatever legitimate problem may be called to our attention. No proprietary software company can do more than the Foundation can to ensure the legal status of the works it distributes.

Over the years some potential contributors have hesitated about our management practices, including the assignment of copyright. The Foundation has never sought to be the only steward of free software resources. There should be as many such stewards as possible; their conscientiousness and integrity is an important part of the free software community overall. Where free software development is under the management of a careful and knowledgeable steward, controversies like the one raised by SCO v. IBM will be avoided or easily resolved.

Indeed, there is evidence of that proposition in SCO v. IBM itself. SCO has made no claims against FSF with respect to any part of GNU. Moreover, the Foundation holds the copyright to every change made by IBM to the Linux kernel and to parts of GNU (to GCC, GDB, glibc, and other GNU programs) necessary to run GNU/Linux on the IBM S/390 mainframe. IBM assigned those copyrights to the Foundation because it knows the value of our stewardship. FSF therefore has the power to halt distribution of IBM’s own code designed to to run on IBM’s own hardware, if SCO shows us evidence that this code contains trade secret or copyright infringements. Yet SCO has not complained, and its silence is eloquent.

Stewardship in the management of free software matters right now, and will be all the more important in the future. Thinking about the future is, in fact, what wise stewardship is for.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2003.07.10-00:00.00

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