ESR: "We Don't Need the GPL Anymore"

[Michael K. Edwards]

On 7/12/05, Rick Moen <rick@linuxmafia.com> wrote:
> Quoting David N. Welton (davidw@dedasys.com):
> > I don't think the GPL is no longer necessary.
> 
> Good point.  When people ask me "What licence should I use for [project foo]?",
> the only reasonable and sensible answer I can think of is
> "It depends entirely on what licence effects you're trying to achieve."

Precisely.  And in fact the GPL is an excellent solution to the
problem that it originally was designed to solve -- assuring the
recipient of the code that he can modify it to fit his needs, and pass
it (modified or not) to others with similar needs, while assuring the
upstream author that her code base, enhanced or ported by an outside
vendor, will not become a tool for vendor lock-in against her own
organization.  The BSD/X11 model is a solution for a different problem
("coopetition" among vendors who need both interoperability and
compatibility with encumbered code), and the "shrink-wrap license"
model is a solution for yet another (productizing end-user software as
a workaround for consumers' unwillingness to pay for tech support).

People outside the industry -- and as far as I am concerned that
includes ESR, who does not appear ever to have run a software or
services business -- are unfamiliar with the actual economics of any
of these situations, and in any case tend to think exclusively in
terms of the consumer software sector.  For ESR to pontificate about
the superior economics of the GPL, when his interviewer knows more
about modern developments with respect to the GPL and trademarks and
patents than he does, is pretty funny.

> I suspect Eric spoke in something of a flamebaiting fashion to achieve
> some sort of street theatre effect (I'm guessing, obviously), but doubt
> he'd claim GPL or other copyleft licensing is inappropriate for someone
> who has a specific reason for wanting copyleft mechanisms.

If you take his comments as coming from a sort of amateur sociologist
and gossip columnist, they make more sense.  The FSF has lost many
people's trust, it's becoming apparent to more people that the FSF's
claims about the meaning of the GPL are poorly grounded in law
(although few have bothered to do their own analysis), and the "fellow
travelers" are flaking away, preparing to say "the GPL's meaning as an
instrument of law never was the point".  That's a half-truth; while
its meaning under law has indeed been overshadowed by its uses for
propaganda and intimidation almost from the beginning, plenty of
people (myself included) use its terms on small-circulation works
simply because they do an accurate job of capturing the business
relationship.

> In any event, hardly anyone bothered to fairly consider Eric's point,
> e.g., "As far back as 1998, I suspected that allegiance to the GPL is
> actually evidence that open source developers don't really believe their
> own story. That is, if we really believe that open source is a superior
> system of production, and therefore that it will drive out closed source
> in a free market, then why do we think we _need_ infectious licensing?"

As I see it, Eric doesn't understand how the system works.  "Open
source developers" are no more homogeneous than "fine art
photographers" are.  Lots of people fancy themselves "fine art
photographers" but are making no attempt to support a family on their
income from photography.  Their use of a given license may be
interesting from a sociological perspective, but doesn't tell you how
the economics of that license really work.  Ditto programmers.

If you look around at photographers who "give away" the
full-resolution versions of their work, you will get a very different
picture when you filter on "pro" status than when you include the
"amateurs" (in an economic sense; their quality may well be similar). 
The "pros" who give it away are in sectors where the image as such
isn't the point; they are offering to teach techniques to amateurs and
would-be pros, or they are journalists evaluating camera performance,
or they are selling image manipulation tools, or the experience of
being the object of a glamour photo shoot, or something else other
than the image for the image's sake.

I will leave the mapping back to software space as an exercise for the
reader; I recommend that you consider the economic motivations of GPL
publishers such as Cygnus (back in the day), CodeSourcery, Red Hat
(pre- and post-trademark license), MySQL, Intel, IBM, and HP, among
others.  Make sure to take into account the battle for competitive
position as well as the patterns of costs and revenues.  Searching
FindLaw for lawsuits involving predatory pricing and tied products may
also be enlightening.  (You'll need to go outside software space,
though, to find competent antitrust enforcement; try meat packing
equipment and automobile tires.)

> Of course, that question does beg the question of whether one
> necessarily stipulates belief "that open source is a superior system of
> production, and therefore that it will drive out closed source in a free
> market" -- which assumption could be discussed -- but the critics in
> this case aren't seeking rational discussion.

Critics capable of rational, informed discussion may be economically
motivated to publish it through channels other than an OnLAMP talkback
forum.  :)

> Nor do critics bother to notice numerous excellent points Eric made
> further down, e.g., regarding BitKeeper:  "Tridge did this because what
> he needed was a tool to extract BitKeeper metadata from the kernel
> archive -- data which had been put in BitKeeper but which McVoy did not
> own. Writing a new protocol would have been beside the point -- what he
> wanted was to get the metadata out of jail."

Andrew Tridgell knew what he was doing, as did Larry McVoy.  There is
considerable prior art on vendor lock-in and its discontents (some of
it created by Andrew and Larry themselves), and I didn't see anything
particularly insightful in that part of ESR's comments.  If you ask
me, if he wants to retain celebrity status (which has, I think, been
of some economic use to him), he's going to have to work a little
harder.

Cheers,
- Michael

P. S.  Tony -- I would advise never describing someone's motivation as
"entirely moral" unless you have access to his tax records.  In RMS's
case, I suspect that you'll need Eben Moglen's tax records as well.  I
have seen neither, but the public evidence alone is ... interesting.