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The GPL Has No (Networked) Future

The Free Software Foundation backs away from closing the web services loophole.

There are both popular and unpopular ways of circumventing the Free Software Foundation’s General Public License. A very unpopular method, we’ve come to find out, is via promises of patent protection for users of specific software. However, if you’re looking to leverage Free Software without completely fulfilling the requirements of the license, a better method would be to exploit the software as a service (SaaS) loophole, which the latest draft of the GPL3 just legalized.

If you’re unfamiliar with the SaaS loophole, it’s probably best described by a license that actually covers it. Fabrizio Capobianco, who created the Honest Public License describes it as such:

Some people interpret distribution of software as a service not as distribution of software (because GPL v2 was created before web services were on the horizon and therefore did not address them in the license). They believe that they can use open source software to offer services to the public, without returning anything to the community.

As to why you might need it, the creators of the Affero General Public License have this to say:

We believe that certain software can extend the bounderies [sic] of a person, and therefore should not be out of the control of the individual. We believe that people’s freedom should be protected. We believe that this includes their digital interface to others.

That dovetails rather well with the notion of “ethical software” as defined by Richard Stallman and, in fact, the FSF supported the creation of the Affero GPL and attempted to integrate it into the early drafts of the GPL3. However, that plan backfired and the FSF not only struck the text that would extend the GPL to software delivered as a service but clarified just what “to ‘convey’ a work” actually means.

Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.

In other words, software delivered as service is now officially not covered by the GPL.

More than the patent protection, more than the digital restrictions, this one change to the GPL could have the biggest impact on the license’s importance in the future.

The explanation for the SaaS loophole has always been that back when the GPL2 was written, software was about “binary redistribution” because the Internet wasn’t really around yet and no one predicted that you would deliver applications in that fashion. The legal phrase used today is “applications delivered over a computer network.” It’s a pretty thin argument because 1) In 1989 the act of logging into multi-user systems over a computer network to use applications on a central server had been around for 20 years or more and 2) “Binary redistribution” is really just a form of “source code inaccessibility.” Just as you can’t read the source of a binary, you can’t read the source of a protected web application.

Regardless it produced a legal loophole and in interviews running up the first draft of the GPL3, both Eben Moglen and Richard Stallman expressed a desire to close it.

The problem with the SaaS loophole is that it’s a terribly popular way of circumventing the GPL. It’s a methodology that has launched countless web start-ups and become the foundation of the Internet economy. You could make the case that the most popular use of Free Software is the creation of web applications that carry none of the freedoms that Stallman cares so strongly about.

Ethics, in this instance, took a backseat to outrage and the community forced the provision out as indicated in the FSF’s 61-page rationale document that accompanies this latest draft.

We have made this decision in the face of irreconcilable views from different parts of our community. While we had known that many commercial users of free software were opposed to the inclusion of a mandatory Afferolike requirement in the body of GPLv3 itself, we were surprised at their opposition to its availability through section 7. Free software vendors allied to these users joined in their objections, as did a number of free software developers arguing on ethical as well as practical grounds.

Personally, I think it was the right decision. From a purely practical standpoint, including Affero could have seriously damaged the popularity of open software for web applications; possibly driving people to .NET where no such giveback provisions exist. However, the newest draft verifies the unusual inconsistency in the GPL where freedoms are granted based on your proximity to the application (a bit of an odd notion considering the intangible nature of software). But, more serious, it creates a real challenge for the GPL’s growth.

If you’re one of the people that’s deeply concerned about the Microsoft-Novell alliance or software patents or the doctrine of free software and believe the GPL is your weapon in that battle, then you might want to take a minute and think about the future of software and how you will consume applications.

Conservative estimate: In the future 75% of your applications will be delivered over a computer network and you will interact with them with no “transfer of a copy.” For evidence of this trend just look to the popularity of Gmail and the creation (impossible 10 years ago) of Google’s document and spreadsheet apps; analyst suggestions that the importance of operating systems is fading; the success of web apps like SalesForce; wiki culture; the popularity of Web APIs and application mash-ups; Adobe building an online version Photoshop.

The future is networked. The GPL isn’t.

Bruce Perens wrote in a recent article that if Novell didn’t adopt the GPL3 with the provisions blocking their patent agreements with Microsoft then it “may freeze them in amber as an example of the state of software in early 2007.” Maybe. But with the this latest draft of the GPL3, the Free Software Foundation may have served up a license that best represents the software of 1989 and have transformed a loophole into a tunnel you can drive a truck through.

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