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Open source experts sound off on Canonical's IP policy reaching GPL compliance

I spoke with several experts on free and open source software, some of whom were close to the situation itself, about the implications of the latest developments with Canonical's IP policy.

Ubuntu Canonical licensing IP policy reaching GPL compliance
Credit: Gael Aveline via Flickr/Creative Commons

Last week, the Software Freedom Conservancy and the Free Software Foundation announced that Canonical had, with their help, updated the Ubuntu Intellectual Property Rights Policy to comply with the GPL.

Issues relating to the Ubuntu IP Policy aren't new; I wrote about Linux Mint's run-ins with this policy over a year ago. And issues relating to this very policy were front and center in the recent fallout between the Ubuntu Community Council and Jonathan Riddell of the Kubuntu project.

The Software Freedom Conservancy first received GPL violation reports relating to this policy in April 2013. They, along with the Free Software Foundation, have been working together with Canonical since that time to resolve this issue.

See also: Ubuntu Community Council, Jonathan Riddell discuss their recent fallout

After roughly two years, the net result is that Canonical has added the following text to the IP Policy, which makes it GPL compliant:

"Ubuntu is an aggregate work of many works, each covered by their own licence(s). For the purposes of determining what you can do with specific works in Ubuntu, this policy should be read together with the licence(s) of the relevant packages. For the avoidance of doubt, where any other licence grants rights, this policy does not modify or reduce those rights under those licences."

I reached out to Bradley M. Kuhn, President and Distinguished Technologist of the Software Freedom Conservancy, to ask him a few questions.

Lunduke: This effort has, clearly, been under way for quite some time. What, in your mind, has caused it to take so long for an agreement to be made on such a, seemingly, small amount of text?

Kuhn: As both Conservancy and the FSF pointed out in our statements, both organizations sought more substantial improvement to the policy. Specifically, our goal was comprehensive changes to the policy to not merely yield GPL compliance, but to create a policy that the Free Software community can be proud of – one that encourages, rather than thwarts, downstream efforts to remix, improve, and share modified versions of Ubuntu. 

As with many negotiations, a good solution felt close for many months. However, after we passed the two-year mark, Conservancy and the FSF felt we could wait no longer for the comprehensive changes. The FSF had suggested earlier in the process that a simple update to just repair the GPL violation might be useful, while discussions on other points continued. In recent weeks, Canonical, Ltd. executives showed a new preference for that solution. The long-standing GPL violation seemed paramount, and therefore a solution on just that point was reached quickly once it became the sole focus of our discussions.

Fortunately, Jane Silber's public comments indicate a willingness for further discussions and possibly making the other requested improvements now that the GPL violation is resolved. Both Conservancy and the FSF are immediately ready to begin those negotiations and discussions in earnest as soon as Canonical, Ltd. is ready to begin.

Lunduke: Why now? It seems as though Canonical has received so much negative publicity and criticism over this licensing issue for quite some time (I recall writing an article on the topic a year and a half ago). What happened – if anything – to cause movement to finally (visibly) occur?

Kuhn: I can only speculate on Canonical, Ltd.'s reasons for why they finally decided to prioritize complying with the GPL, but of course I'm glad they did, as the negotiations were quite time-consuming for small charities like the FSF and Conservancy. We optimized our work by asking that the FSF take the lead. Thus, most of Conservancy's involvement was coordinated via easy discussions with the FSF, but the expense for both charities is quite large, in relation to our organization's annual budgets.

Meanwhile, I have noticed in the past few months multiple GPL violators becoming more responsive to matters that have been ongoing for years. This sudden celerity correlates with Conservancy announcement of funding of Hellwig's VMware lawsuit. In my nearly 20 years of experience enforcing the GPL, this pattern is typical: companies' seriousness about compliance with the GPL seems linearly proportional to the amount of time it's been since the the last GPL enforcement lawsuit filed by a non-profit charity or individual developer.

Lunduke: Clearly, there are issues still remaining (such as with non-copyleft licenses). With that in mind, do you have any recommendations for Linux Distributions that utilize the Ubuntu packages (such as elementary and Linux Mint)?

Kuhn: My personal recommendation is to base distributions on Debian rather than Ubuntu, for two reasons.

First, at the moment, most non-copylefted software is not exempted from Canonical, Ltd.'s IP Policy, and as such, for non-copylefted software, redistributors likely must comply fully with that onerous policy – just like you are required to comply with any other non-Free license.

Second, even in the case of copylefted software, redistributors of Ubuntu have little choice but to become expert analysts of Canonical, Ltd.'s policy. They must identify on their own every place where the policy contradicts the GPL.

I wish my advice were not so bleak, but this situation is tough. For example, I have 20 years experience with copyleft licensing – and I'm literally the editor and primary author of the premier online book (at copyleft.guide ) on copyleft licensing. Yet, I would still find it too difficult and time-consuming to base a distribution on Ubuntu right now due to the complex interactions between Canonical, Ltd.'s policy and other relevant licenses.

That's not an accident. Their policy, as currently drafted, is rather obviously designed to convince people it's easier to buy a license from Canonical, Ltd. than to figure out how to engage in normal Free Software redistribution behaviors for a distribution.

Hopefully, Canonical, Ltd. doesn't intend to keep the policy designed this way, and they will engage with Conservancy and FSF over the coming months to draft a policy that participates in a friendly way with the Free Software community, and encourages, rather than thwarts, the very software sharing activity that made Ubuntu possible in the first place.

Additional opinion: Daniel Foré, elementary OS founder

Bleak advice, indeed. With this in mind, I wanted to hear from the projects that were basing (at least part) of their system on Ubuntu. So I dropped a line to Daniel Foré, founder of the elementary OS project. He had this to say.

Foré: As always, I am not a lawyer, but it sounds like there are some not-so-awesome implications that it would be good to have cleared up. I understand the desire to want something that says "Ubuntu" on it to actually be Ubuntu. I'd hate to see people distributing copies of elementary OS with some change that breaks the user experience and damages our brand. So I really get where they're coming from on that one. I do think that's the primary motivation here and what it means to be protecting their "intellectual property."

However, I am concerned about what this implies for us. We do our best to strip out any references to Ubuntu and Canonical and to make sure people understand that they aren't liable for our product. But we're still a small company who's bootstrapping. Building and serving binaries for a repo as big as Ubuntu's is a large task. One that I'm not sure we could fully take on at the moment, and I'm sure a lot of groups smaller than we are would have trouble with [that] as well. So it's a bit concerning. I would hate for the implication to be that only the official flavors are legal and we (all) need to move somewhere else.

Additional opinion: John Sullivan, executive director of the Free Software Foundation

Last, but not least, I reached out to Sullivan, who had this to say:

Lunduke: An update on this issue on fsf.org states that Canonical 'repeatedly expressed that it is their full intention to liberally allow use of their trademarks and patents by community projects, and not to interfere with the exercise of rights under any copyleft license covering works within Ubuntu.' With this in mind, what, from your point of view, is keeping Canonical from updating their licensing to be more in line with those intentions?

Sullivan: Yesterday's update does address the last part of that, so the policy can no longer interfere with the exercise of rights under any copyleft license covering works within Ubuntu.

For the rest, willingness to be liberal in granting requests for trademark and patent usage is not the same thing as willingness to offer those same permissions explicitly in advance. Free software licenses like the GNU GPL are based on the idea that everyone has certain rights, and those rights must be explicitly and clearly respected without the need to ask for permission. It's this culture of clearly defined freedoms that has given us the world of free software we have today. Sometimes it is difficult even for businesses who work in free software to let go of the idea that it helps them or gives them leverage to require people to ask first. But in the end, this just mistreats people and hampers participation in the project.

We understand the idea that modified works should not be using trademarks in ways that cause confusion. At the same time, Canonical can do much more in this policy to clarify in an affirmative way what is allowed and what needs to be changed by downstream folks when redistributing modified or unmodified versions.

Lunduke: Where do we go from here? Is there anything that members of the broader Free Software community can do to help this process?

Sullivan: We've asked for people who have been negatively impacted by this policy to let us know their story at licensing@fsf.org, and to respectfully urge Canonical to continue the process of improving the policy with the FSF and Conservancy – at a higher priority. Beyond that, developers should take this as an opportunity to strongly consider moving their projects to a copyleft license if they aren't already using one, in order to prevent companies from redistributing their work as nonfree software.

Regardless of the outcome of this process, the FSF does not recommend using Ubuntu, because it includes nonfree software by default and also confusingly promotes nonfree software through the Ubuntu Software Center. Still, we want to help Canonical do the right thing here and not put *new* restrictions on software that came into Ubuntu originally as free.

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