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More on the Eben Moglen / Tim O'Reilly argument

Rick Moen [rick at linuxmafia.com]

Tue, 21 Aug 2007 14:01:00 -0700

Tim O'Reilly has now written about the ~1/2 hour interview he recently did with Prof. Eben Moglen on "Software Licensing in the Web 2.0 Era" at OSCon 2007, in a post entitled "My Tongue-Lashing from Eben Moglen": http://radar.oreilly.com/archives/2007/08/my_tonguelashin.html

It's interesting and thoughtful -- and also includes an .ogg-format clip of the interview that will let me finally see it on my Xubuntu G3 iBook. ;->

Pending my doing so, here's an excerpt from Moglen's remarks, concerning the much-discussed ASP loophole aka SaaS (Software as a Service) loophole:

"We've got to conclude that what Google does, they have a right to do in freedom. They shouldn't need anyone's permission to run programs. Stallman was right about that at the very beginning. If you have to ask other people's permission to run a program, you don't have adequate freedom. And that means you've got to have the right to run programs for someone else. And what's more, you have to have the right to make private modifications. Because if you don't have a right to make private modifications, and keep them to yourself whenever you want to, then the principle of freedom of thought is being rudely disrupted by a required responsibility to disclose what you are thinking to someone else... So if we take the philosophical responsibility to provide freedom seriously, we're going to have to say ... their rights, properly protected, may conflict with other people's rights, properly protected. The solution isn't to reduce anyone's rights."

As I feared, Prof. Moglen (and impliedly the FSF) is saying that ASP deployments should be seen as private modification and usage, and that private usage must not be encumbered by, say, copyleft obligations tied to the act of offering codebases up for public usage via network access.

This stance, ironically, ends up amounting to a BSD-licensing position. Advocates of that position, sooner or later, tend to voice the standard BSD-advocacy mantra: "So what if it permits creation of proprietary forks? If you're any good at what you do, you'll just outcompete them."

Which is fine if you are OK with working hard to produce free / open source software, only to see a competitor take a branch of your work proprietary. FSF has always, until now, been the prime examplar of a group that is not OK with that -- that, in fact, invented the concept of copyleft as a means by which software authors can, if they wish, prevent that dilution of (their portion of) the commons.

Matt Asay of former badgeware firm Alfresco has just said pretty much the same thing, and I think he's right (http://news.com.com/8301-10784_3-9763068-7.html):

GPL is the new BSD in Web 2.0, and why this matters The Internet turns open-source licensing on its head. Copyleft is neither copyright nor copyleft anymore in the Web world. It's just copy, because distribution of a service over the Internet doesn't count as distribution in the archaic licensing language that plagues most open-source licenses.

It's a problem that the Free Software Foundation chose to ignore, and then beat on Tim O'Reilly to atone for its own failing. Tim, for his part, thinks that the open-source world is missing the boat, which is chugging along unmindful of antiquated things like software licenses when the real value is in data-centric applications whose value lies in network effects (architecture of participation). [...]

Maybe we'll all wake up 20 years from now and laugh about our fetal focus on code. But for now, both Web companies and landlubber companies are still focused on software. While we're thinking about software, everyone should be held to the same open-source licensing rules, to the extent that we're dipping into the same pool of code. This means we need new open-source licenses in the mold of CPAL, Open Software License, etc.

I'm obliged to correct ASP-firm executive Asay, on the latter point:

"CPAL" is a rather badly conceived, but innocuous MPL-based licence, recently approved by Open Source Initiative as OSD-compliant, with a basically harmless but slightly annoying badgeware "attribution" provision. Asay may not have noticed that its _copyleft clause has no effect_ in ASP deployments, making it, like the FSF licences he derprecates (GPLv2, GPLv3) effectively a "simple permissive" (BSD-like) licence within the ASP market, thus effectively permitting proprietary forks.

Larry Rosen's Open Software License 3.0, Apple Computer's APSL 2.0, FSF's own GPLv3 plus Affero clause draft #2, and Fabrizio Capobianco's Honest Public Licence 1.0 are real copyleft licences for hosted software, as opposed to CPAL, which fails at that aim.

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