Anti-FSF People Don’t Care About The Truth

Bold claim? Not really, because there are 2 ways we can come to this unassailable conclusion. People that are interested in finding the truth of the matter, and then acting accordingly do NOT:

1. Resort to illogical arguments
2. Come right out and say “this is not about the correctness” of the situation

You see, people that DO resort to illogical arguments and people that DO attempt to put aside the question of “correctness” have already come to a conclusion - they are simply attempting to rationalize their position.

In fact, one can see by the embrace of falacy and rejection of “correctness”, not only are they not interested in changing their position - but the position itself must be founded in illogic and incorrectness. It is a doubly bad position to be in, which brings to mind one of my favorite quotes: “you can’t reason someone out of a position they didn’t reason themselves into.”

The best one can hope for in such cases is to point out the illogic of the position, and hope to innoculate the innocent.

Case In Point

While you could pick any long anti-FSF screed as example, and would be sure to find it chock full of inanities, one in particular came to my attention today on Reddit, in a thread on the FSF position on GPLv2 & current App Store terms [in re: VLC].

The focus of this link is Brett Smith – Licensing Compliance Engineer of the FSF – explaining the FSF position on the current App Store terms of service on the vlc-devel mailing list.

Please take a moment to read Mr. Smith’s posting. It is a rational and factual analysis of conflicts between the requirements of the GPL and the requirements of the App Store terms and conditions. Furthermore is was done upon request. It is neither ”evangelical” in content or intent.

There may be disagreement with Mr. Smith’s analysis on factual or legal grounds. That is not a problem, nor is it the issue here.

The problem here is how Mr. Smith – and by extension, the FSF – is attacked in response.

On the list

First, consider Jean-Baptiste Kemp’s response,:

I am not going to answer to this analysis now, but will make a point
that I hope you will understand in a simple way.

THIS IS NOT ABOUT THE CORRECTNESS OR NOT OF YOUR ANALYSIS.
THIS IS ABOUT YOUR ATTITUDE.

Your methods and attitudes are not polite, but they are destructive and dishonnest.

With ‘friends’ like you, we don’t need any ennemies.
If I understand correctly, the FSF new policy is to blow up communities?
With those attitudes, do not wonder why people are moving away from Open
Source development and from the GPL licences…
https://www.ohloh.net/languages/compare?measure=loc_changed

So, we have here an attempt to remove the facts from the discussion. This is a very attractive tactic when the facts are not on your side, but not so attractive if you are actually interested in being correct.

Then we have a personal attack, asserting that Mr. Smith is being “dishonest”. Quite cheeky, since just one sentence earlier Mr. Kemp is the one trying to downplay factual accuracy as being important.

Then we have a blatant misrepresentation attack on the FSF, ascribing them a malicious “new policy”.

Finally, we have a jumble of irrelevant and illogical attacks against the FSF by way of an argumentum ad populum to the GPL.

And that is just the opening section! If one desired, you could dismantle the rest of Mr. Kempf’s points, because each one is rooted in at least one logical fallacy – if not, to be direct, an outright falsehood.

If the Gentle Reader has the inclination then they may follow the thread and see more of the same, including a more balanced criticism of FSF from other participants, which serves to illustrate one can indeed criticize the FSF without the failings of the anti-FSF crowd.

On Reddit

It is also amusing and illustrative to note the anti-FSF comments in the corresponding Reddit thread. They range from more personal attacks on Mr. Smith: insinuating that since he is not a lawyer his analysis in invalid. (Which only raises the question that since the attacker is assumedly not a lawyer either, what grounds does he have to speak?)

Similar attacks are made against the FSF: asserting that since they are not the copyright holder, they should stay out of it. Which ignores both the facts that the FSF is the best authority on the GPL, since it is their license – and that the FSF’s opinion was explicitly sought out by another VLC developer. Not too mention several other developers asked for clarification on how the GPL and App Store terms and conditions may conflict. (Which only raises the question that since the attacker is assumedly not a VLC developer, what grounds does he have to speak?)

Furthermore, the anti-FSF brigade fails to mention that the original FSF blog on the VLC matter is simply reporting an action take by a VLC developer: the FSF did not initiate this action. Yet, there is a clear implication in the comments that the FSF somehow started an action to which it had no proper standing.

(Note that RMS himself states that it is “VLC enforcing the GPL against Apple.” Not only is it clear this is not an FSF action, no one from the FSF ever attempts to portray it that way. That is a pure misrepresentation by anti-FSF trolls.)

Why does the anti-FSF crowd attack the FSF here, instead of the actual real-life VLC developer who formally notified Apple of copyright infringement regarding distribution of the VLC media player? You will see other woefully misinformed (or dishonest) anti-FSF trolls continue to paint this situation as the FSF trying to remove VLC from the App Store, which is a laughably incorrect distortion of the events.

A Real Issue?

There is a real issue of interest here – two actually – the first is that there may be a fundamental incompatibility between the GPL and certain methods of distribution. This may be a troubling matter indeed if one of the incompatible methods of distribution turns out to be the most popular method of distribution.

This may lead to lessened adoption of the GPL, or an increase in dual-licensing, or exceptions. It may lead to a GPLv4 addressing the matter more specifically. It may lead to a decline in popularity of closed App Stores. It may lead to people deciding how much they are willing to compromise their commitment to Free Software just to get it on an Apple device.  It may lead to a change in terms of service on the App Store that remove the conflict. Any of these are areas of interesting speculation.

The other issue of interest is how utterly without substance the arguments the anti-FSF trolls offer are: distortions of timelines, implications of actions not actually taken, misrepresentation of positions, personal attacks galore, and logical fallacy after logical fallacy. 

I know I keep making that point… but they keep giving me so many examples.

Will the Free Software Foundation or any other group take DIY Themes to court for GPL licensing enforcement in 2010?
Yes 1/2
No 8/5

Will DIY Themes relent on its own and distribute the Thesis Theme/Frameword under a GPL license in 2010?
Yes 5/2
No 1/3

Will Chris Pearson personally sue Matt Mullenweg for lost revenues, slander or defamation in 2010?
Yes 3/2
No 4/7

There’s a few interesting issues about this bit:

1. Apparently there is some business to be made in contacting other bloggers to promote content, because this dude kept emailing me about this. That’s fine, because this is actually sort of interesting. Next time offer me a laptop or something, though, so I can be like the Microsoft bloggers.

2. Whoever wrote up the story summarizing the drama on the SBRForum did a damn good job. It’s hard to be sure – because anyone reading this probably has a technical background – but I think even a non-techie can follow the basics from the story.

3. People really will bet on anything, won’t they?

My Solution

If I were really vested in this issue and had money (and my last name was Mullenweg) this is what I would do: I’d just buy a copy of Thesis and then start distributing it. From the front page of WordPress. Hell, I’d make it the default theme, push it out as a “critical update”, and announce it all on video in a leotard with my face painted up like The Ultimate Warrior. (Don’t miss the “Warrior Fine Art Gallery”!)

For one thing, this has already moved past the “let’s handle this thing internally and like gentlemen.” After that stage, I’d move right to ”BRING IT!” Us zealots only see things in black and white, you know.

For another thing, despite the possible uncertainty of the “derivative works” issue, we know that Thesis contains straight up ripped-off GPL code. Those versions of Thesis are unquestionably violating WordPress copyright.

This is the problem about being a dick – you might be able to get away with it so long as all your ducks are in a row, but ducks have a hard time staying in a row. Call it Karma. And then call it to the stand.

Do it for the lulz, Matt!

Edited to add: Alas, it hardly matters now, as Thesis has done the right thing and now the PHP portions are under GPL, and the CSS/JS bits under the whatever proprietary terms that who cares about.

Most of the reading at this point walks well-trod ground, but  one bit of commentary by The Accidental Businessman (Marco Tabini) deserves special attention:

You could say that Matt’s opinion counts, because he wrote the software and he should have the right to decide how his software is distributed and under what rules.

I couldn’t agree more—except for one minor detail: Matt made his decision when he chose to distribute WordPress under the GPL. From then on, both he and any user of WordPress are bound by the terms of the license, and not by what anyone thinks. Matt doesn’t enforce the license: that’s for a court of law to do. Therefore, what he thinks at this point only has value, from a legal standpoint, if a competent court determines that the terms of the GPL agree with him.

This, incidentally, is one of the biggest concerns that I have with the GPL. It’s a license that enforces a very particular meaning of “freedom” whose nuances a developer may simply not understand. Case in point: Matt may well believe that themes must be released under the GPL as derivative works, but there is no real case law to back this belief. The FSF says so¹, but they are less than intellectually honest by not admitting that they do not have the legal standing to back their claims.

The reason why I say that this is not a legal issue, therefore, is that, unless and until the WPF sues a theme developer on the issue of whether a theme or plugin that doesn’t incorporate wholesale code from the main project² is a derivative work, this is a business issue that can deeply affect the future of WordPress if not handled correctly. Hence my points in the previous article.

One thing that many do not seem to understand that the enforcement of a contract (or a license) is, essentially, a failure of the contract itself. A contract exists so that two parties can have an understanding on how a business relationship should take place. If the contract is sufficiently clear and unequivocal, it should only ever be enforced if one of the parties maliciously and willfully breaches it and then refuses to cure the breach. If it is unclear and equivocal, as is the case here, the enforcement of a contract represents a failure to draft a proper agreement in the first place.

Let me say I disagree with the overall conclusion and opinion of the Mr. Tarbini as I understand it, but I do appreciate the points he raises.

GPL Motherfucker. Do You Understand It?

A thorny issue for me. Perhaps it is a failing on my part that despite reading the text (and rationale for GPLv3) I wouldn’t want to argue for high stakes in a court of law on the particulars of the GPL. Not only is the GPL complex, but copyright law is complex-squared.

Furthermore, it may just be my ego talking but I don’t put a lot of stock in GPL-interpretation by people who don’t do it for a living.

I’m not saying complexity or ambiguity is a GPL failure - perhaps the legal system itself makes it impossible to write something that is both understandable for a layperson and enforceable by a court.

I’m not being snarky.

GPL != Free Software

Another important distinction that doesn’t always get made: the GPL is not the be-all-end-all definition of Free Software. I look at the GPL as being the best attempt to enforce Free Software. I’m not aware of any license that does – or even attempts to do – a better job a promoting Free Software than the GPL.

Even so, consider the GPL is already on the third revision. For whatever reason earlier attempts fell short of the mark.

Therefore, I don’t think it’s out of line to realize that the GPL may fall short even if it may simultaneously be the best possible attempt – nor do I think such a problem invalidates either the GPL or Free Software.

Few things are without flaw or need of improvement.

Assume maliciousness and incompetence

There’s a famous bit about “never assume malice when incompetence explains”, but when dealing with GPL and Free Software, I think one must always assume malice and incompentence will be in play.

For example, business interests will always be looking for a way to get something for nothing (though never ever giving something for nothing! What are you – a COMMUNIST!) To them, exploiting Open Source seems like a free gold mine of research, development, software and support. Good business, maybe – but malicious.

Vast majority of “Open Core” falls in various degrees around this area. Rule of thumb: the louder and “Open Core” player trumpets “Open Source”, the further they are towards open-core-means-we-are-using-a-mit-licensed-tcp/ip-stack end of the spectrum.

Straight copying actual source code from WordPress into your theme that you insist isn’t a derivative work and isn’t under the GPL is malice too … in case you were wondering where to classify that.

Other area is incompetence. When Mr. Tabini asserts ”Matt made his decision when he chose to distribute WordPress under the GPL”, that’s incompetence. Matt never made a decision to distribute WordPress under the GPL – that decision was made for him, as he forked an existing GPL project.

Drafting an agreement

Having no choice ties into another problem with Mr. Tabini’s argument. Recall this bit:

If it is unclear and equivocal, as is the case here, the enforcement of a contract represents a failure to draft a proper agreement in the first place.

But! The parties  (in this case) aren’t entering into a meeting-of-the-minds and drafting an agreement.

One party has pre-selected terms that – hopefully - covers his software in a manner he finds acceptable, and with the expectation that people using his software will act in a compliant manner. To him, he sees the GPL as enabling something.

The other party, though, is doing something very different – because he views that same license as something to be subverted or ignorned.  To him, the GPL is disabling something.

If these two parties had sat down to draft an agreement, they would not agree on the GPL. That’s because one party wants to share code and the other doesn’t. The GPL isn’t a vehicle of agreement between those two parties.

A disagreement over a unique drafted agreement  isn’t what happens when people have a GPL issue – it is invaribly someone who wants to benefit from GPL software, while not being bound the same requirements that made it possible and available to them in the first place.

If there is any failing on the part of the GPL here, it is not in the eyes of the second party – that person doesn’t want to share his code anyway. If there is a failing it is that the GPL has failed to enforce the terms that the first party expected – which I think are in line with the expectations of Free Software.

Commenting on comments to the commentary

As usual I find much interest in the comments. Consider this bit (sorry couldn’t find a direct link, it’s the second comment):

The second biggest problem is the attitude that there is only one correct interpretation of the license and if you don’t agree with that interpretation you’re breaking the law.

Eh? Isn’t the entire problem – assuming everyone is not acting malicously – that there isn’t one correct interpretation?

If there were “one correct interpretation”, then exactly how would one go about justify acting in defiance of that interpretation?

[Microsoft signing the Joomla Contributor Agreement is] a clear demonstration of how far Microsoft has come in it’s commitment to OSS projects. Now, I’ve got my own issues with the GPL as I think that it strips the consumer of all of their rights but that’s for a different discussion.

I would love to hear exactly how the GPL strips the consumer of “all their rights”. Even entertaining the BSD vs. GPL sort of arguments, I’ve never heard such hyperbole.

I suppose the GPL might not be as consumer freedom-granting as the typical Microsoft EULA, but…

Remember those Nerd Lawyers arguing over the GPL and plugins? Now there are some Nerd Professors arguing over the same thing.

This blog is interesting because it contains a host of opinions, all well-stated. If I understand the consensus (such as it is), the answer to writing non-GPL plugins to a GPL program is to write a GPL plugin that provides an interface that a non-GPL program can talk directly to.

Here’s the bit of commentary from the FogCreek developers that supports that interpretation:

In Kiln, to avoid running afoul of the GPL, while still making a viable commercial product, what we did was to design the product so that the closed-source browsing/repository management/code review component was kept entirely separate from the open-source code storage component.

This aligns with some of the arguments in the Nerd Lawyer discussion – one which I originally did not agree with, but am coming to accept.

I say “coming to accept” because I am of the opinion that plugins may not necessarily be GPL, if the original work provides a “clean” interface for plugins. So, it bugs me when the argument is that plugins “are very probably derived works as they are potentially (and generally) significantly more intimate with [the original work's] internals”, because that makes me think the plug-in interface is not “clean”.

A minor point

Such discussion is good, but the good professor goes a bit far I think here:

George Orwell argued that the real purpose of censorship is to make people worry about what writing something troublesome might cost them, so that they never actually write anything that would have to be censored. Every time someone puts the GPL on something, they are forcing other developers to make the same kind of decision: accept someone else’s idea of what “free” means, or run the risk of not being able to use their “free” software without a whole lot of trouble.

Of course, the truth is any time someone puts any license on something, they are forcing other developers to make a decision: accept someone else’s terms, or run the risk of not being able to use their software. In this area, there is little difference between the GPL and any other license. Why Orwellian overtones need to be introduced escapes me.

I’ve often noticed that people tend to really dislike the GPL when they want to use GPL code, but don’t want to accept GPL terms.

If you want more

This seems as good a place as any to note a somewhat similar discussion on WordPress themes / extensions / plugins.

Seeing the Future

I quite enjoyed seeing how RMS tempered prophetic statements with unfortunate real-world experience. Consider this insight from RMS into why it would be unlikely for a commercial entity to produce something like Emacs:

I don’t think that anything like EMACS could have been developed commercially. Businesses have the wrong attitudes. The primary axiom of the commercial world toward users is that they are incompetent, and that if they have any control over their system they will mess it up. The primary goal is to give them nothing specific to complain about, not to give them a means of helping themselves.

Some 23 years later, on the commerically amazing debut of the iPad, it’s striking how accurate this assessment is!

Understanding the Past

The unfortunate real-world experience is recounted on the “betrayal” of the sharing ideals by persons such as Russell Noftsker and James Gosling, both of which took advantage of (proto-) Free Software for commerical benefit.

It is precisely this “school of hard knocks” experience that makes the GPL so grounded in real-world understanding, rather than the “zealotry” and “idealism” that detractors struggle mightily to paint it with. RMS knows how people will try to abuse Free Software,  and the GPL has parts specifically constructed to prevent such abuse!

The Cultural Significance of Free Software

As interesting as the main H article is, through a link it led me to an even more interesting read, Two Bits: The Cultural Significance of Free Software.

This is a fascinating book, completely available online under CC-BY-NC-SA, not only with extensive references and footnotes, but also allowing reader commenting and “modulating“.

The Facts

SoftBound is a BSD-licensed “value-added” compiler. Give it some source code and it can produce “hardened” binaries that are more secure because they are immune to buffer overflows. It makes no changes to the source code.

The Hypothetical

A company, using a proprietary and closed “value-added” compiler compiles GPL software and sells the binaries. Source code available. Binaries locked up tight.

The Question 

Is this a problem? By “problem” I mean is this forbidden under the GPL (v2 or v3), and if it is or isn’t should it or should it not be?