Current challenges in the free software ecosystem

Given Eben Moglen's long association with the Free Software Foundation, his work on drafting the GPLv3, and his role as President and Executive Director of the Software Freedom Law Center, his talk at the 2013 Free Software Legal and Licensing Workshop promised to be thought-provoking. He chose to focus on two topics that he saw as particularly relevant for the free software ecosystem within the next five years: patents and the decline of copyleft licenses.

The patent wars

"We are in the middle of the patent war, and we need to understand where we are and where the war is going." Eben estimates the cost of the patent war so far at US$40 billion—an amount spread between the costs of ammunition (patents and legal maneuvers) and the costs of combat (damage to business). There has been no technical benefit of any kind from that cost, and the war has reached the point where patent law is beginning to distort the business of major manufacturers around the world, he said.

The effort that gave rise to the patent war—an effort primarily driven by the desires of certain industry incumbents to "stop time" by preventing competitive development in, for example, the smartphone industry—has failed. And, by now, the war has become too expensive, too wasteful, and too ineffective even for those who started it. According to Eben, now, at the mid-point of the patent war, the costs of the combat already exceed any benefit from the combat—by now, all companies that make products and deliver services would benefit from stopping the fight.

The nature of the war has also begun to change. In the US, hostility to patents was previously confined mainly to the free software community, but has now widened, Eben said. Richard Posner, a judge on the US Court of Appeals for the Seventh Circuit, has spoken publicly against software patents (see, for example, Posner's blog post and article in The Atlantic). The number of American-born Nobel Prize winners who oppose software patents is rising every month. The libertarian wing of the US Republican party has started to come out against software patents (see, for example, this Forbes.com article, and this article by Ramesh Ponnuru, a well-known Republican pundit).

Thus, a broader coalition against software patents is likely to make a substantial effort to constrain software patenting for the first time since such patenting started expanding in the early 1990s, Eben said. The dismissal of the patent suit by Uniloc against Red Hat and Rackspace was more than a victory for the Red Hat lawyers, he said. When, as in that case, it is possible to successfully question the validity of a patent in a motion to dismiss, this signals that the economics of patent warfare are now shifting in the direction of software manufacturers. (An explanation of some of the details of US legal procedure relevant to this case can be found in this Groklaw article.)

Illustrating the complexities and international dimensions of the patent war, Eben noted that even as the doctrine of software patent ownership is beginning to collapse in the US, the patent war is spreading that doctrine to other parts of the world. Already, China, the second largest economy in the world, is issuing tens of thousands of patents a year. Before the end of the patent war—which Eben predicts will occur two to four years from now—China's software industry will be extensively patented. The ownership of those patents is concentrated in the hands of a few people and organizations with extremely strong ties to government in a system of weak rule of law, he said.

Long before peace is reached, the strategists and lawyers who got us into the patent war will be asking how to get out of the mess that the war has gotten them into, and everyone else in the industry is going to feel like collateral damage, Eben said. As usual, the free (software) world has been thinking about this problem longer than the business world. "We are going to save you in the end, just as we saved you by making free software in the first place."

We're at the mid-point of the patent war over mobile, Eben said. The "cloud services ammunition dumps [patents] will begin to go up in flames" about a year and a half from now. Those "ammunition dumps" are the last ones that have not yet been exploited in the patent wars; they're going to be exploited, he said. He noted that some companies will be feeling cornered after IBM's announcement that its cloud services will be based on OpenStack. Those companies will now want to use patents stop time.

As the patent wars progress, we're going to become more dependent on organizations such as the Open Invention Network (OIN) and on community defense systems, Eben said. OIN will continue to be a well-funded establishment; SFLC will continue to scrape by. Anyone in the room who isn't contributing to SFLC through their institutions is making a serious mistake, Eben said, because "we're able to do things you [company lawyers] can't do, and we can see things you cannot; you should be helping us, we're trying to help you".

The decline of copyleft

Eben then turned a discussion of copyleft licenses, focusing on the decline in their use, and the implications of that decline for industry sectors such as cloud services.

The community ecosystem of free software that sustains the business of "everyone in this room" is about to have too little copyleft in it, Eben said. He noted that from each individual firm's perspective, copyleft is an irritation. But seen across the industry as a whole, there is a minimum quantity of copyleft that is desirable, he said.

Up until now, there has been sufficient copyleft: the toolchain was copyleft, as was the kernel. That meant that companies did not invest in product differentiation in layers where such differentiation would cost more than it would benefit the company's bottom line. While acknowledging that there is a necessary lower bound to trade secrecy, Eben noted the "known problem" that individual firms always over-invest in trade secrecy.

The use of copyleft licenses has helped all major companies by allowing them to avoid over-investment in product differentiation, Eben said. In support of that point, he noted that the investments made by most producers of proprietary UNIX systems were an expensive mistake. "It was expensive to end the HP-UX business. It cost a lot to get into AIX, and it cost even more to get out." Such experiences meant that the copyleft-ness of the Linux kernel was welcomed, because it stopped differentiation in ways that were more expensive than they were valuable.

Another disadvantage of excess differentiation is that it makes it difficult to steal each another's customers, Eben said. And as businesses move from client-server architectures to cloud-to-mobile architectures, "we are entering a period where everyone wants to steal everyone else's customers". One implication of these facts is that more copyleft right now at layers where new infrastructure is being developed would prevent over-investment in (unnecessary) differentiation, he said. In Eben's view, people will come to look on OpenStack's permissive licensing with some regret, because they're going to over-invest in orchestration and management software layers to compete with one another. "I am advising firms around the world that individually are all spending too much money on things they won't share, which will create problems for them in the future." Eben estimates that several tens of millions of dollars are about to be invested that could have been avoided if copyleft licenses were used for key parts of the cloud services software stack.

There are other reasons that we are about to have too little copyleft, Eben said. Simon Phipps is right that young developers are losing faith in licensing, he said. Those developers are coming to the conclusion that permission culture is not worth worrying about and that licenses are a small problem. If they release software under no license, then "everyone in this room" stands to lose a lot of money because of the uncertainty that will result. Here, Eben reminded his audience that Stefano Zacchiroli had explained that the free software community needs help in explaining why license culture is critically important. (Eben's talk at the Workshop immediately followed the keynote speech by Stefano "Zack" Zacchiroli, the outgoing Debian Project Leader, which made for a good fit, since one of Eben's current roles is to act as pro bono legal counsel for the Debian community distribution.)

Eben also noted that SFLC is doing some licensing research on over three million repositories and said that Aaron Williamson is presenting the results at the Linux Foundation Collaboration Summit. Some people may find the results surprising, he said.

Another cause of trouble for copyleft is the rise in copyright trolling around the GPL. That is making people nervous that the license model that has served them well for twenty years is now going to cause them problems. Asked if he could provide some examples of bad actors doing such copyright trolling, Eben declined: "you know how it is"; one presumes he has awareness of some current legal disputes that may or may not become public. However, Eben is optimistic: he believes the copyright trolling problem will be solved and is not overly worried about it.

Eben said that all of the threats he had described—educating the community about licenses, copyright trolls, and over-investment in differentiation in parts of the software stack that should be copyleft but are instead licensed permissively—are going to be problems, but he believes they will be solved. "I'm going to end on a happy note by explaining a non-problem that many people are worrying about unnecessarily."

The OpenStack revolution is putting companies into the software-as-a-service business, which means that instead of distributing binaries they are going to be distributing services. Because of this, companies are worrying that the Affero GPL (AGPL) is going to hurt them. The good news is that it won't, Eben said. The AGPL was designed to work positively with business models based on software-as-a-service in the same way that the GPL was designed to work with business adoption of free software, he said. "We will teach people how the AGPL can be used without being a threat and how it can begin to do in the service world what the GPL did in the non-services software world."

Your editor's brief attempt at clarifying why the AGPL is not a problem but is instead a solution for software-as-a-service is as follows. The key effect of the AGPL is to make the GPL's source-code distribution provision apply even when providing software as a service over a network. However, the provision applies only to the software that is licensed under the AGPL, and to derived works that are created from that software. The provision does not apply to the other parts of the provider's software stack, just as, say, the Linux kernel's GPLv2 license has no effect on the licensing of user-space applications. Thus, the AGPL has the same ability to implicitly create a software development consortium effect in the software-as-a-service arena that the GPL had in the traditional software arena. Consequently, the AGPL holds out the same promise as the GPL of more cheaply creating a shared, non-differentiated software base on which software-as-a-service companies can then build their differentiated software business.

As Eben noted in response to a question later in the morning, if businesses run scared of the AGPL, and each company builds its own specific APIs for network services, then writing software that talks to all those services will be difficult. In addition, there will be wasteful over-investment in duplicating parts of the software stack that don't add differential value for a company and it will be difficult for companies to steal each other's customers. There are large, famous companies whose future depends on the AGPL, he said. "The only question is if they will discover that too late."

Eben concluded on a robustly confident note. "Everything is working as planned; free software is doing what Mr. Stallman and I hoped it would do over the last twenty years." The server market belongs to free software. The virtualization and cloud markets belong to free software. The Android revolution has made free software dominant (as a platform) on mobile devices. The patent wars are a wasteful annoyance, but they will be resolved. The free software communities have answers to the questions that businesses around the world are going to ask. "When Stefano [Zacchiroli] says we are going to need each other, he is being modest; what he means is you [lawyers] need him, and because you need him, and only because you need him, you need me."