DEBATE: Should FOSS licenses be enforced at all?
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Point cloudOpen source
Transcript: English(auto-generated)
00:05
So our first debate is should false licenses be enforced at all and we have Pamela chest egg Giovanni gauders mark Jones and McCoy Smith and
00:25
Who gets to go first Giovanni so we're still struggling with the projector, so I mean you don't need it. Okay, so let me give you
00:55
Yes, well can I start yes
01:47
Oh
02:00
We're taking attendance first Okay, can we start are we good? Okay Shall we start? Okay. Well, good morning everyone. It seems that Every time I have to talk at first and something is going to happen
02:23
Last last time I talked here we went through three mics this time just the the screen went out So, I don't know whether it's my a coincidence or that's a problem with me. But anyways so I have to talk about
02:41
Enforcement and why enforcement is is good or what are the main the main points and What what can I start? Well, where can I start? I can start maybe by Quoting some very famous quote By a well-known author Shakespeare who says and it's very famous. The first thing we do. Let's kill all the lawyers
03:08
Well some some of you may find it amusing but On the other hand it won't it won't it won't change the fact that controversies will happen and
03:21
therefore If we want whether we want or not, we need the enforcement That's that's the main point and first of all We have to define what we mean what we mean by enforcement is enforcement litigation is Enforcement only when you go to court only when you really bring your cause to the tribunal or is just
03:43
Not a gentle nudge, but maybe asking for compliance Asking politely and then asking maybe with a louder voice is this enforcement? I think it is I think that's this enforcement and I think that this This vision is upheld also, but what but also by the principle of community-oriented enforcement
04:06
But also of the by the GPS the GPL cooperation commitment. This is another example It doesn't rule out enforcement it says that even if the scope is math is much less broad than the principle of community-oriented
04:23
oriented sorry oriented enforcement for GPL compliance anyways Enforcement is still a possibility and also the Linux kernel enforcement statement does not deny Enforcement not only because it is in the first in the name itself of the of the statement
04:43
But also because it only describes that enforcement has to be made in As to be defined in scope the scope of the of enforcement is not Personal again, the scope of the enforcement is not copyright trolling the scope of
05:01
Enforcement it doesn't have to have a negative impact on the health and growth of software ecosystem I'm quoting from the Linux kernel enforcement system. And so it is as I as I pointed out a necessary evil because Let's I do just let me do a personal example
05:24
Yeah under Italian law you may tell from my accent that I'm not be exactly British but In when the code of The code of public of a digital administration came into force in Italy in
05:41
2006 it was a fantastic piece of legislation with fantastic principle Digital digital rise for the citizens, but there were there were no consequences at all for Any violation so an old professor of mine told me, okay
06:02
Yes, but this is very fun. But what happens if you violated it? Well nothing Nothing, you cannot force the public administration. You don't have any cause of action And so guess what when the code of public administration Get some got some momentum when they introduced the consequences when they introduced a way to force
06:26
The to force public administration to comply with it So I'm not telling that we have to enforce every single violation Absolutely, not. I'm not telling that we have to enforce even the most common or maybe just
06:43
Trivial violation and just I just have to tell that we cannot we cannot deprive ourselves of the fact that we have to defend our freedoms also because Recent case of the European Court of Justice
07:03
Stated that when you breach a license agreement You are in breach of copyright you are in breach you you are availed of the same remedies you have for copyright infringement and this Curiously enough is the same statement that was
07:20
Was given by the court in the first GPL compliance case so the Velt-versus-cytcom of the Munich Treaty of the tribunal of 2004 and so we have we really we really have a Powerful weapon but as any powerful weapon We do not we don't have to do it to use it in a futile way
07:41
We don't know if as I said before we're not to use in any case compliance is a process and we already have some agreements which can be used for Describing this this process and but it is very important to to do it and be prepared for
08:02
Litigation for litigation as well, which is a real complex topic so enforcement is Not something that you have the communities to be scared because because we owe Also to the copyright holders we owe to the community. We absolutely have to
08:22
Make people understand that they have their eyes and their eyes can be can be protected also because No one Not not everyone is behaving correctly There are of course some bad guys that I would say I'm not going I won't go against people who?
08:44
violate the Copy left licenses just by mistake or by the fact that they misunderstood something but when the violation when the violation is when the violation is Willy willful then we will go we will go and try to
09:05
Get compliance and also just to conclude We have to think that maybe some of the arguments against enforcement Go and derive for a misconception Copyright is not as patent enforcing. Copyright is good. Copy left
09:25
Yes copy left is central copyright. We have to defend our eyes. Thank you Okay, so I think the format we all agreed to was each of us is going to do a seven-minute presentation Which Giovanni volunteered to do first and then the people on the opposing side, which would be Pam and I?
09:46
Get to do cross-examination or rebuttal. So you got us you got to continue to stand up there while I cross-examine you Okay But first you need to raise your right hand and sit after me So I got three minutes. I have two questions and the one is not really a rebuttal one sort of is
10:04
When you're talking about enforcement you got any thoughts on whether That's a preferable course to take civil versus common law jurisdictions Since you're from a civil law jurisdiction, I don't know much about that. I'm a common law person
10:24
Second isn't it true that the GPL cooperation? commitment by Excluding certain storms forms of enforcement is not being beneficial Doesn't that essentially concede that there are problems with enforcement?
10:42
well first question Of course, I will I will go for the civil law for civil law litigation, but I have to point one one issue in several states This kind of infringement may also be criminal and I would never go for the criminal prosecution
11:01
So I would I would say this would not be a right way to enforce the second question Yes, you're totally right Enforcement has problems, but you cannot rule out as a last resort This that's the main point you cannot say we won't if enforced whatsoever
11:20
You have to find a good way to benefit the community No further questions
11:40
So I am taking the contrary view to The definition of enforcement that I am working on means litigation it means bringing lawsuits I'm not talking about politely asking people to provide source code or to comply with the license but taking an aggressive action of litigation against them
12:02
So I'll start by saying Nelson Mandela said if you want to make peace with your enemy You have to work with your enemy, then he becomes your partner So then he becomes your partner. That's the critical point here So free software has had wide adoption widespread adoption the various
12:20
Sources that I have seen cited say between 50% and 100% of all software distributed contains free software So if if we measure the success of software as use of it Then free software has been wildly successful
12:40
However The success of this software is only because of the collaborative nature of the development model that's used for it So collaboration brings fresh ideas it brings Enthusiasm enthusiasm when other people when other people have waned it brings new insight into old problems So we need to we need to have this continuous
13:01
contribution contributor feedback loop going But collaboration you can't have collaboration an environment where there's not trust and Suing people for non-compliance will break all trust and it will push away people instead of welcoming them into the community They may abandon all use of free software altogether as a result of it and they may switch to proprietary software
13:27
This this a switch like that would be something that the legal department Would be advocate very strongly for legal departments or risk-averse This is a different world and they're not happy with it So to this and to this day as a result of the busy box lawsuits, which were more than 10 years ago
13:45
They still still strike fear into the heart of legal departments And as a result, there are companies that are so mistrustful of open source software that the prospect of and the prospect of getting sued That they forbid the use of the GPL altogether In their environments
14:02
So once you've created that mistrust it is very hard to build that trust again It takes it'll take years to rebuild that and what you're losing during all that time is all of those Contributions that could have been made by that by that entity that was sued So and I'll also point out here that it's only commercial companies that get sued
14:24
We're not talking about individual developers here who aren't out of compliance who are being who are being targeted So you're talking about targeting a huge swath of developers companies that have a lot of people who may be contributors that are going to be barred from contributing
14:41
and And from those companies who have the financial wherewithal to support the development effort of free software So this is this is how you impair the growth of the software Commons. You're not feeding it. You're not fertilizing it You're impairing it And litigation then also has a ripple effect beyond just the beyond just this core project
15:04
That was the target of the litigation beyond just the non-compliant company and beyond even just this one plaintiff who brought the lawsuit The community will lose value because of the potential contributions The project will lose value because of these potential contributions by the sued party
15:23
But not only that they may then not want to contribute to any other software projects that they use The project will lose potential users and contributors who might have joined because of what the sued company brought to the table for that project its improvements and developments on the project and
15:43
then other even other members of the project may become so disenchanted by The the litigation and the lawsuit that they break ties with the project so you may lose developers as a result of this litigation And let's also just recognize that litigation is it's really
16:05
It's really a copyleft problem. So Jacob seen big hats in the United States was was about the artistic license Which is not a copyleft license, but it was a claim But it was it was sort of an outlier because it was a patent infringement lawsuit that with this with this copyright claim tacked on
16:22
but I've never heard of anyone complaining about non-compliance and certainly not even complaining about non-compliance much less suing on non-compliance with the MIT the BSD or the Apache licenses, so it's really just it's really just a copyleft problem and then Then also keep in mind that we're talking here about cases where the recalcitrant sharer
16:43
Has been approached and advised of the non-compliance back to Giovanni's point that it's not just you know We're suing people at the drop of a hat They have they have had they have been notified and they have time to come into compliance But for some reason they have chosen not to comply. This is a choice on their part
17:01
They've chosen to fight and when they choose to fight it's going to be a long and expensive one And this is going to be time and energy spent On litigation that could be much better spent in other ways and it's also Likely just going to get some orphan bit of software A bit that is not may not end up being valuable to the larger project as a whole
17:24
Because it's not been part of the development process all along Is it so is it really worth it? Is it really worth it to go through this expensive? Time-consuming litigation just for maybe a loadable kernel module is is that is it really worth the candle to do that?
17:42
so And there's even now less reason to sue for compliance than there was during the busybox years Now there are more pressures to contribute to free software Software is replacing hardware. It's becoming much more critical. It's replacing hardware. It's replacing machines
18:02
It's even replacing human acts in some cases human intellect in some cases And so malfunction software malfunctions are no longer just an annoyance But everybody understands they're crucial that they are security issues in software Planes crash identities are stolen because of problems with software
18:23
Companies that embed software into their hardware projects are also now quite savvy and they're asking for bill of materials From that from their supply chain They're no longer cavalier about the provenance and reliability of the software They now have come to understand that communal effort is the best way to go about ensuring
18:44
These problems don't arise and when they do arise that they are fixed quickly So market forces are driving compliance and litigation doesn't have to any longer So suing over compliance sends the opposite message of what we should be sending messages of inclusiveness
19:11
I do know I still have the mic this time is working. I won't I won't get rid of it I will keep it. Anyways, two questions. Yes
19:22
first one I like the way we lawyers play with words I broaden the scope of enforcement while you tie to litigation, but If in this case So would you consider it?
19:41
Fair to just ask for compliance or issue season disease later Even if you don't call it enforcement, that's the first question. And the second second question is you mentioned Hardware Vendors, do you think and you said that now they are complying and they are they are
20:02
They are mostly complying and they are also driven by the value of community. Do you think this would have happened the same? In the same way weren't it for the litigation case back in ten years ago So to the first point on on how to define compliance
20:22
No, I I don't think there's anything wrong with with pursuing people for compliance There are a lot of good players out there who are trying to comply and if you bring an error to their attention They will they will be happy to happy to correct that so that and that is why because because I I do think it's appropriate to ask people for copies of source code as
20:46
To the sort of embedded and the upstream and much more awareness Did it happen? You know, it's hard to it's hard to it's hard to say what would have happened in the absence of history So the busy box lawsuits happened, but do I think that they play a big role in why there's compliance now?
21:04
No, I don't think so. I think that what's happening is that manufacturers are being held responsible for the function of their products and when those products malfunction they They need to turn to their upstream and learn that they don't actually know what's what what their
21:20
Distributor has provided them with they get a binary and so they there it simply is business pressures That have caused them to become much more aware and much more cognizant and much and bring the hammer down much more in their distributors Or I'm sorry on their on their upstream manufacturers to make sure that they have it's in there It's in their own self-interest to have it
21:40
It's not because they need it's it's in there It's in there simply their liability self-interest not just that they need to provide the source code make the source code available But it's in there. It's just in their business interest to do it All right
22:17
Sam thank you for sharing your thoughts
22:20
The the problem with the argument about not doing enforcement though Is that that kind of presupposes that the community has a choice about whether or not enforcement's gonna happen because the reality is is that? enforcement happens This isn't a question of whether or not enforcement should happen. It's gonna happen. We see it happening all the time You can narrow enforcement down to a definition like oh, we're just talking about lawsuits and litigation
22:45
That's fine, but those are actually going on And you don't need to be a member of the community to be involved in enforcement actions There are lawsuits that are going on right now between large corporations who are using free software They got into a commercial dispute and what those licenses mean are part of that dispute
23:05
Pam mentioned that you know, this is that commercial actors part of what's happening is like well They need be able to fix their products. So they're gonna deal with upstream, right? Well, they have agreements with upstream They're gonna enforce those agreements. That's part of enforcement if that relationship goes bad. There's gonna be litigation
23:22
And all of the activities that she was okay with are often very commonly called pre-litigation activities The reason why those work is because there is the threat of litigation there So even if you want to narrow the definition of down to litigation It is not possible to say that you know You can just take that off the table and then all these other tools are gonna be possible
23:43
The fact that litigation is possible is what makes the other tools work and we're seeing this happen already, right? There are people out there doing enforcement. We have trolls Everyone in this room is probably aware of the Patrick McCarty cases, right like that happened We can't we can't tell people to not do that again
24:01
All we can do is see what's happening on the courts and Decide how we're gonna react to it One of those could be we could just sit by the side right and let trolls Define how this is gonna play out in courts and let trolls to find the playing field and hope that it doesn't work out for them That's one possibility but the trolls are gonna keep trying they're gonna keep looking for a way to use these licenses
24:24
Companies are already doing this right? You have two large insurance companies a couple years ago in the United States or a large insurance company and a software manufacturer who didn't care about free software licenses They didn't even realize that free software licenses were involved until they got well into litigation. They said oh, here's my commercial Here's my advantage in this lawsuit. Now. I'm gonna turn this into an enforcement action
24:44
Like it happens And then we had somebody who produced this offer getting notified and they looked for the opportunity to profit off of it They didn't do that in a principled way They saw an opportunity to make money off of it and we don't know how that actually got settled But the fact that things got settled that probably was not for the promise that people are going to behave better, right?
25:03
They didn't they did it in secret They didn't there was no there was no compliance coming out of any of the companies afterwards Somebody got paid for that like that is typically why you settle is you give me this bunch of money here and I'll go Away quietly, right on the other hand There are some enforcement actions and there are some community actors who have principles around enforcement
25:23
And what's wrong with setting up a system where we say We as a community the people who actually believe in free software values people who believe in user freedoms Are going to enforce these licenses and if you don't listen to us, there's going to be consequences But we are going to go about this in a principled way because we care about these values, right?
25:42
So you have organizations like the Free Software Foundation Software Freedom Conservancy who have come up with community principles you have commercial actors like Red Hat who's leading, you know, GPL Cooperation agreements on enforcement around the Linux kernel, right? These are principled ways of doing enforcement It's not necessarily bad to do enforcement
26:00
There might be good ways to do it and there might be bad ways to do it But just us as a community opting out Means that we're going to only leave the space open for the people who are going to do it in the bad way Or at least in the way that it's not principle that doesn't care about free software values. It doesn't care about user freedoms So we can't hide underneath a rock on this one
26:21
This isn't a question of should we do it or should we not do it? Someone's gonna do it It's just a question of whether or not we give them the playing field there And really there's lots of benefits to litigation too, right? There are companies out there There are large commercial companies. They know what the goals of litigation is. It's to resolve a dispute Sometimes you need a third party to help you resolve a dispute. What's wrong with that?
26:43
It doesn't actually mean that you're hit you hate the other person or you're scared of the other person Or you'll never work with that person again Just means that you had a dispute and you couldn't resolve it and you need someone in to come Explain how it's going to be viewed by a third party. So litigation actually has lots of benefits, right? one of the benefits of litigation is is that instead of
27:02
People who are involved in the community who have beliefs about how these licenses should work who have beliefs about what the intentions of licenses should be We can learn from people who weren't involved in the community who weren't involved in drafting licenses What the words in the paper mean to others, right? There's an opportunity for us to learn, right? This is about this in some way is large degree is proofreading right when you go in front of a judge
27:24
You ask them and say well, this is what I think the GPL means This is what I think the MIT license means do you agree? Because this is what I wanted this license to do and if the judge disagrees well, you have a problem, right? It's it's not fair for you to go around saying well I intended this I intended this when other people reading the license to
27:42
Say but that's not what the license says. All right, so we can change what we're looking for in those pre litigation activities What kind of compliance we're looking for on those licenses and we can write new licenses, right? we can write new licenses that will achieve the results that we actually want to happen and
28:05
Litigation has happened in the past. I think Pam can see to this right free software is being used more now than it ever has been And we've already had litigation on it right in the early 2000s We had some high-profile litigation cases the busybox cases were already mentioned. However, you feel about those cases
28:23
They happened and it didn't actually stop companies from adopting free software, right in the early 2000s When those cases were being brought in and forced and other ones to GPL violations or we had large commercial actors They're saying calling these licenses virals and cancers
28:40
Those companies aren't doing that anymore, right? We also had litigation out there Where was the question was were these licenses even enforceable, right? Well, we had litigation that was resolved everybody come every company knows they're enforceable now so in conclusion We don't have a choice Companies aren't scared of it. We know that
29:03
So we might as well do it in a principled way so we can get the benefits of it So let me start by saying I'm at a disadvantage here because Mark and I argued on the same side of this a year
29:21
ago at copy left But Let me so so let me let me challenge some of the things you've said with respect so one of one of the pressures that is on that creates compliance is People yes, certainly. Sorry one of the one of the
29:43
one of the things that Encourages compliance is that people like to abide by their contracts So simply behavior of a but people don't go around intentionally they do intentionally breach contracts But they tend not to people tend to stick to their contracts. So just the fact that there is an agreement people
30:00
It's not just the litigation. It's not just the threat of litigation It's not just the threat of a breach that makes you not breach a contract It is you as an upstanding person will abide by your obligations under a contract So it's not just litigation that that that is that sort of sword One other There you've also ignored that there is a vehicle for these other lawsuits that are brought by the Ameriprizes of the world
30:24
Which is the opportunity to participate as an as an amicus brief to come in and step and educate the court on these matters So it may not be necessary for the free software community to bring the lawsuits but simply they can participate to inform and educate the court on
30:42
the issues of amicus Through the vehicle of amicus briefs and I totally forgot what my third point was Whatever your last point was it was hard to keep in my head as I was doing this seven minutes is a long time Well, whatever your third point was I think whatever I said has already rebutted it
31:06
To your first point though that people like to abide by their contracts, I think some people do There are definitely some people in the world who view Relationships with people that they have doing is like they keep their word and the contracts reflect that
31:22
But there are also people whose business model is to try to get every single edge And they will go about breaching contracts if they think they can get away with it But at the end of the day, we're also talking about contracts, you know, legally enforceable agreements and I mean Around the world can anyone have any idea how many lawsuits are initiated every day for breach of contract
31:42
Part of what makes contracts meaningful is that people know that they're enforceable There's a big difference between saying well I will promise that I will do this and I'm just gonna say that to you over the phone and Writing down in a piece of paper So it's objectively visible to someone else who can come in with enforcement power and actually ask you to do it So that it's part of actually I have my third thought that I just we're running the clock is running
32:03
So I just don't can I can I see a show of hands of? Someone who has been sued and has warm and fuzzy feelings toward the entity that sued them We got one we have one person so that was my final point was you said oh it's just business it's just business I think that's an easy
32:21
I think that's an easy out to say it's a business but I have never worked at a company that That was subject to a lawsuit that didn't just have hateful thoughts towards the towards the other party So So I'm the second negative here on enforcement and I'm gonna one-up Giovanni and Pam by having two quotes
32:56
Debaters trick The first is from a Supreme Court Justice the United States
33:03
About a hundred years ago. He said the life of the law Has not been logic. It is experienced The second is if it ain't broke don't fix it I'll explain both of those in a little bit of detail here. So the life of the law is not logic. It has been experience
33:24
you can interpret that a lot of different ways, but to me one way of to interpret that is we should not think of the legal system as Something that's a logical system Where we can select the inputs It will go through a systematic
33:44
Process of analysis that's predictable and that will get us a result that we like in fact It's quite contrary to that Ideally, it would be logical like that, but it does not work that way in practice
34:01
More often than not or I wish I would say say somewhat frequently. I'll give you two examples of this From the free and open source software licensing world or actually three examples. The first is a Jacobson v. Katzer Which Pam talked a little bit about and I think most of us has probably heard about that and remember that wow
34:21
That's one of the first cases if not the first case that validated the free and open source licensing model in a court decision and Said that the authors have the ability to pursue somebody for violation of the terms of the license What a lot of people may not remember
34:41
All those those of us who have been doing this for a while do remember is that that case? Was really messed up for a long time The input into the system was not good in other words the two parties that were disputing in that case Were not optimal
35:01
their representatives perhaps may not have been advocating positions that we thought would have been good to get the result that we wanted and in the at least in the district court, we got a decision that was Contrary what I think most people would prefer to have an interpretation of how a free and open source software licensing works
35:22
It was through the efforts of a lot of people Putting themselves in front of that litigation and lending assistance To the parties that we did get an appeals court decision That is now useful to all of us in understanding the licenses that we use
35:42
so that is a first example of a Suboptimal system processing that could have gone the wrong way but for Some advantageous actions that were taken and in the end a court that
36:01
Saw things the way that we think they should be seen by the way the court that saw it that way It's the exact same court that decided that Oracle should win with Google so You take what you get from these courts sometimes they find things the way that you like a lot of times
36:24
They find things the way that you don't like that's part of the system Two other examples a little bit more recent From outside the United States. So McCarty versus Genia tech in Germany and
36:41
Helvig versus VMware in Germany now, I don't know if anybody's read About these cases either the decisions or the write-ups of them. There's a good write-up in jolts The journal that everybody knows I promote Regularly every time I open my mouth. There's a good article on the Genia tech case in jolts from about a year ago
37:06
Describing how that went down there has not yet been an article if somebody's willing to write one on the VMware case we'd be interested in publishing it, but The bottom line of those cases is the courts found
37:21
What appear or set what appeared to be fairly difficult to meet standards of proof for Whether you had copyright rights that you could assert against somebody that you believe to be an infringer
37:43
That is something I think that is problematic for For people who want to think about enforcement if the tests are hard Enforcement gets hard and worse if the output from the court is
38:05
Detrimental there's a negative feedback loop there The next court takes a look at that and says well the test is hard We should make this hard for people who come into the court and want to enforce
38:20
That's why When you go to the system of enforcement through litigation you are taking a risk That the inputs will be bad. The system processing will not be predictable. The outputs will be Unfortunate and there may be a negative feedback loop that makes things worse
38:42
So Litigation has or enforcement has its downsides. We need to consider that and we need to consider that Cases in the future May come to conclusions about the licenses that we like
39:05
that may be Detrimental to the way that we want the community of developers to work And I'm not going to steal vans thunder But the Google versus Oracle case is another example where we need to watch that case carefully
39:24
Because it may indeed have some Disadvantageous effects on the way people are thinking about how these licenses work So I'll leave that at that now If if it ain't broke don't fix it
39:41
We've got a big group of people in this room. I think most of the people here probably owe their jobs to non enforcement Modes of compliance and I think we should continue to have people encouraged to work in that way
40:00
Okay, so now you get to cross-examine me. All right, I get the crossings in All right, so I think we're going with two questions or at least two questions that we can remember I Had three but I actually forgot my third one as well. So All right, so my first question is so Jacobie cancer
40:24
So you said that that could have been a disaster until a lot of people engaged and then we've got a positive result Isn't that an argument for an engaging in enforcement because we got a positive results When the people who cared about these licenses showed up to help educate the courts about how the licenses work
40:45
And then my second question is going to be You said as long as the system works in the way that you want it to that's the right result Don't assume that the system will always work that way. That's my cautionary. Well, so this goes to my second question then is
41:00
You kind of implied that we shouldn't do enforcement Because sometimes we might get negative results and right now We're getting what we want Because there's still the threat of enforcement, but we might if we do too much enforcement We might suddenly find out there is no threat of enforcement. Would we still get what we want if we take enforcement off the table?
41:27
So I'm gonna I'm gonna Echo what Pam said which is I'm not sure that we can say for certain that Enforcement in the past has resulted in compliance in the present
41:41
Nevertheless, I think that The way that's most consistent with the way the free software and free and open source software movement works is to Go to conferences setups compliance programs talk train develop systems internal systems
42:02
Develop tools in a way so that everybody can benefit and that everybody can run their operations in a way that is Compliant and is consistent with the philosophy of the movement I would advocate and I hope most of you who owe your jobs that would also advocate that that's the best way to get
42:23
things done Okay, so we have I Rest my case. Okay. Now we have We have I think we have ten minutes for questions now we
42:41
Yeah, we combine the two Yeah questions Yes, we should yes, yes
43:03
So it was very interesting hearing the positions about whether or not enforcement of licenses is required I'm curious to know if you collectively would agree that licenses themselves are required Not necessarily like not not considering enforcement just the licenses
43:29
Well in an ideal world licenses would not be required everybody would operate in a Community appropriate way I would say that a license and I think this is the Free Software Foundation has said this the license is the
43:45
constitution of the movement so it's one way of outlining Expectations for everybody who's operating in the space whether whether or not you actually actuate that as a legal document versus a Set of principles, you know that goes into
44:02
this enforcement question I think licenses are required And one that just happens to be how the legal regime that we work under works If you don't have a license to use someone else's copyrighted work, you're not allowed to use it however, you articulate what that license is whether it's through, you know a
44:25
Passive acquiescence to someone's use or a casual conversation or a written document Licenses technically have to be granted the advantage of written licenses, which might be going more to your question Is it it adds clarity and certainty it can be objective and it reduces misunderstandings
44:42
and I think it does go to McCoy's point of right these licenses in many respects do operate as Kind of a constitution for projects or for the movement But if they're not clear we need a way of bringing about clarity about it and not everybody is going to always agree And you just need to find a way of getting to clarity about what the relationship is
45:05
I Yeah, I would agree with that with sort of the only other only thing to say in addition to that is that then if there were not written licenses then the the troll problem Would be much much broader. So we see this happening all the time and in
45:21
collaborative communities that work with unwritten rules is all of a sudden there's a shift and Someone doesn't follow the unwritten rules and creates a lot of disruption So the license acts as those written rules so that everybody has a common understanding of what's acceptable behavior I just want to point out that if you don't write any rules, so so if you don't have licenses
45:46
lawyers will benefit greatly because because we'll we will have a total insanity and And coming on McCoy's point if the license is our
46:00
Constitution then we have to fight for it So my question is especially for those who oppose Enforcement does the time ever get better to to do enforcement. Can we say? Maybe in 20 years Some terms will be clearer in the industry
46:23
so the courts will more easily get the right output from a certain input for instance or Or is the decision let's say forever. So we will not do it even in a century from now So I think in your example actually would be run counter to enforcement if there were a
46:43
court out there the the The world court were to say here is how GPL works For every provision in it Everybody knows the rules That there's no reason why anybody wouldn't follow that so I think in that case
47:03
it's less likely to be the subject of enforcement the ambiguity tends to Allow people to Raise questions about what the licenses mean So I you know whether 20 years from now the enforcement will be good or not good
47:24
I don't know. That's that's hard to predict. It really depends on a lot of different circumstances, but I'm not so sure that more court decisions will I think more clarity in court decisions will Put the roadmap out for everybody on how they need to operate
47:51
So this is a two-parter the first is do you believe that proprietary licenses are There is a culture of the expectation of enforcement of proprietary licenses and
48:04
Number two if you agree with that Why do you believe? Free and open source licenses should be any different That's for that's for that's for all actually start with the
48:21
I Think there probably is an expectation that proprietary licenses will be enforced more readily than free software licenses I Suspect it's probably because we just think companies are willing to be more litigious and free software is made by
48:40
Individuals who are less sophisticated when it comes to litigation and commercial dealings Which I don't think is actually it's that just not true right like free software is produced by large companies that are very sophisticated So that expectation might be out there at the same time, too I also think that the expectation that proprietary licenses will be enforced. They're not enforced quickly
49:02
It's not like everyone who bought proprietary software got sued by the manufacturer nor is it true that they were all in compliance I think the fact that there's that expectation of differences is a Problem and to a disadvantage of the community though right is that somehow the community should be above doing litigation
49:21
But it's okay for companies to do it on their proprietary licenses. Why should we give the proprietary license manufacturers that advantage? I actually Disagree with the premise that there's more enforcement going on in proprietary licenses I think yeah McCoy's nodding his head
49:41
I think that that the companies that are doing enforcement work on copyright licenses The very last thing they want to do is to a customer and they will only do it if it's already a lost If it's already a cut and there's a lot of money involved that can be recouped but if Well, yeah
50:00
Yeah, and there but but really, you know They would much rather have a paying customer who's paying a bit more because they've convinced them that their non-compliance Really means they should be coughing up a little more money than they are now But they much rather keep that keep that customer and and write off the loss rather than Lose the customer entirely and lose all income from that customer
50:20
So so I kind of I don't think that proprietary companies have a culture of enforcement. I think it is just the opposite Thanks for all that
50:41
Do you think that and for phones and litigation as you narrow it down does it Is it working on license by license case? So if in the future that we said that maybe in 20 years time some court has already defined all the points of GPL
51:02
But maybe then we should all have moved to another license, which is still ambiguous by then or do you think that results of Enforcements and litigations apply to everything. Is that for one side one particular side of the other?
51:30
So Litigations over let's say GPL 2 may have an effect on future licenses GPL v4 or whatever Because in many cases these these litigations the the courts are setting out general principles and not necessarily
51:48
Limiting limiting the decision to the exact text it's why Oracle v. Google is an important case to Things other than Java and that's why people care about it Right because they anticipate the people who are arguing about it or anticipate that it's going to set the rules for how we interpret
52:08
What's copyrightable in software? Generically, so I think that answers your question Okay We have time for more responses
52:20
Just a very just a very very quick comment on this Mean Every decision may have an impact on future licenses. And of course, it depends on the license being litigated Theoretically you could enforce also be aware license But I don't think that enforcing a be aware license may may have an impact on food from future licensing
52:43
Okay, so I know but I don't think we have time for because there's one Okay So what we need to do is for your debaters Raise your hand if you mostly agree with the position that you took in the debate Raise your hand. Oh, you don't want to if you don't want to raise your head You don't want to say whether you do or you don't doesn't matter. You know what you all did an excellent job
53:04
We are not having formal judging of these debates, however, what I want to know is so wait stay up here Okay, so what I want to know is for the people against enforcement
53:25
Raise your hand if They brought up something you hadn't thought about before okay, and Those for enforcement raise your hand if they brought up something you hadn't thought about before Okay
53:41
Now raise your mind raise your hand raise your mind raise your hand if You changed your mind Due to something that was said By anyone on this debate. Have you changed your mind based on this debate at all? So like quite a few people. Yeah
54:02
Anyway, so let's give let's give these debaters and the first ones doing it amazing