2003-05-28  Bradley M. Kuhn  <bkuhn@fsf.org>

	* gpl-business.tex (section{An Ecosystem of Equality}): Started

	section.

	(subsection{The Non-Commercial Ecosystem}): Wrote subsection.

	(subsection{The Commercial Ecosystem}): Wrote subsection.

	(subsection{Law Analogy}): Wrote subsection.

2003-05-27  Bradley M. Kuhn  <bkuhn@fsf.org>

	* gpl-business.tex (section{How Does Software Become Free?}):

	Finished section.

	(subsection{Public Domain Software}): Wrote section.

	(section{How Does Software Become Free?}): Started section.

\newcommand{\defn}[1]{\emph{#1}}

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businesses, and of the organizational motivations behind the GNU GPL.

\tableofcontents

\pagebreak

\pagenumbering{arabic}

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\defn{GNU GPL} or just \defn{GPL}) must begin by first considering the broader

world of Free Software.  The GPL was not created from a void, rather,

\label{Free Software Definition}

restrictions on how these freedoms can be exercised.  Specifically, users

activities but prohibit them for commercial activities are considered

term ``proprietary software'' is used more or less interchangeably with

(such as ``shareware'') and ``proprietary software'' to refer to

For example, some versions of Microsoft's Frontpage software prohibit use

Users must have the right to engage in a non-commercial environment of

programmers who might altruistically assist them to modify their software.

advocates work to eliminate fundamental ethical dilemma of the software

altruistic sharing of software among friends.

The commercial environment must also have the benefits of this freedom.

a sale is completely permitted.

permitted.  Companies and individuals can offer themselves as ``the place

Free Software.  Most Free Software programs have a so-called ``canonical

software.  However, all who have the software have the ``freedom to fork''

on a permanent or semi-permanent basis.  Such freedom is central to

The last section set forth the freedoms and rights are respected by Free

Software.  It presupposed, however, that such software exists.  This

section discusses how Free Software comes into existence.  But first, it

addresses how software can be non-free in the first place.

Software can be made proprietary only because it is governed by copyright

law\footnote{This statement is a bit of an oversimplification.  Patents

  and trade secrets can cover software and make it effectively non-free,

  and one can contract away their rights and freedoms regarding software.

  However, the primary control mechanism for software is copyright.}.

Copyright law, with respect to software governs copying, modifying, and

redistributing that software\footnote{Copyright law in general also

  governs ``public performance'' of copyrighted works.  There is no

  generally agreed definition for public performance of software and

  version 2 of the GPL does not govern public performance.}.  By law, the

copyright holder (aka the author) of the work controls how others my copy,

modify and/or distribute the work.  For proprietary software, these

controls are used to prohibit these activities.  In addition, proprietary

software distributors further impede modification in a practical sense by

distributing only binary code and keeping the source code of the software

secret.

Copyright law is a construction.  In the USA, the Constitution permits,

but does not require, the creation of copyright law as federal

legislation.  Software, since it is tangible expression of an idea, is

thus covered by the statues, and is copyrighted by default.

However, software, in its natural state without copyright, is Free

Software.  In an imaginary world, which has no copyright, the rules would

be different.  In this world, when you received a copy of a program's

source code, there would be no default legal system to restrict you from

sharing it with others, making modifications, or redistributing those

modified versions\footnote{There could still exist legal systems, like our

  modern patent system, which could restrict the software in other ways.}.

Software in the real world is copyrighted by default, and that default

legal system does exist.  However, it is possible to move software out of

the domain of the copyright system.  A copyright holder is always

permitted to \defn{disclaim} their copyright.  If copyright is disclaimed,

the software is not governed by copyright law.  Software not governed by

copyright is in the ``public domain''.

\subsection{Public Domain Software}

An author can create public domain software by disclaiming all copyright

interest on the work.  In the USA and other countries that have signed the

Berne convention on copyright, software is copyrighted automatically by

the author when (s)he ``fixes the software into a tangible medium''.  In

the software world, this usually means typing the source code of the

software into a file.

However, an author can disclaim that default control given to her by the

copyright laws.  Once this is done, the software is in the public domain

--- it is no longer covered by copyright.  Since it is copyright law that

allows for various controls on software (i.e., prohibition of copying,

modification, and redistribution), removing the software from the

copyright system and placing it into the public domain does yield Free

Software.

Carefully note that software in the public domain is \emph{not} licensed

in any way.  It is nonsensical to say software is ``licensed for the

public domain'', or any phrase that implies the copyright holder gave an

expressed permission to take actions governed by copyright law.

By contrast, what the copyright holder has done is renounce her copyright

controls on the work.  The law gave her controls over the work, and she

has chosen to waive those controls.  Software in the public domain is

absent copyright and absent a license.  The software freedoms discussed in

Section~\ref{Free Software Definition} are all granted because there is no

legal system in play to take them away.

\subsection{Why Copyright Free Software?}

If simply disclaiming copyright on software yields Free Software, then it

stands to reason that putting software into the public domain is the

easiest and most straightforward way to produce Free Software.  Indeed,

some major Free Software projects have chosen this method for making their

software Free.  However, most of the Free Software in existence \emph{is}

copyrighted.  In most cases (particularly in that of FSF and the GNU

Project), this was done due to very careful planning.

Software released into the public domain does grant freedom to those users

who receive the canonical versions on which the original author disclaimed

copyright.  However, since the work is not copyrighted, any non-trivial

modification made to the work is fully copyrightable.

Free Software released into the public domain initially is Free, and

perhaps some who modify the software choose to place their work into the

public domain as well.  However, over time, some entities will choose to

proprietarize their modified versions.  The public domain body of software

feeds the proprietary software.  The public commons disappears, because

fewer and fewer entities have an incentive to contribute back to the

commons, since they know that any of their competitors can proprietarize

their enhancements.  Over time, almost no interesting work is left in the

public domain, because nearly all new work is done by proprietarization.

A legal mechanism is needed to redress this problem.  FSF was in fact

originally created primarily as a legal entity to defend software freedom,

and that work of of defending software freedom is a substantial part of

its work today.  Specifically because of this ``embrace, proprietarize and

extend'' cycle, FSF made a conscious choice to copyright its Free Software,

and then license it under ``copyleft'' terms, and many, including the

developers of the kernel named Linux has chosen to follow this paradigm.

Copyleft is a legal strategy to defend, uphold and propagate software

freedom.  The basic technique of copyleft is as follows: copyright the

software, license it under terms that give all the software freedoms, but

use the copyright law controls to ensure that all who receive a copy of

the software have equal rights and freedom.  In essence, copyleft grants

freedom, but forbids others to forbid that freedom from anyone else along

the distribution and modification chains.

Copyleft is a general concept.  Much like ideas for what a computer might

do must be \emph{implemented} by a program that actually does the job, so

too must copyleft be implemented in some concrete legal structure.

``Share and share alike'' is a phrase that is often enough to explain the

concept behind copyleft, but to actually make it work in the real world, a

true implementation in legal text must exist.  The GPL is the primary

implementation of copyleft in copyright licensing language.

\section{An Ecosystem of Equality}

The GPL uses copyright law to defend freedom and equally ensure users'

rights.  This ultimately creates an ecosystem of equality for both

business and non-commercial users.

\subsection{The Non-Commercial Ecosystem}

A GPL'ed code base becomes a center of a vibrant development and user

community.  Traditionally, volunteers, operating non-commercially out of

keen interest or ``scratch an itch'' motivations, produce initial versions

of a GPL'ed system.  Because of the efficient distribution channels of the

Internet, any useful GPL'ed system is adopted quickly by non-commercial

users.

Fundamentally, the early release and quick distribution of the software

gives birth to a thriving non-commercial community.  Users and developers

begin sharing bug reports and bug fixes across a shared intellectual

commons.  Users can trust the developers, because they know that if the

developers fail to address their needs or abandon the project, the GPL

ensures that someone else has the right to pick up development.

Developers know that the users cannot redistribute their software without

passing along the rights granted by GPL, so they are assured that every

one of their users is treated equally.

Because of the symmetry and fairness inherent in GPL'ed distribution,

nearly every GPL'ed package in existence has a vibrant non-commercial user

and developer base.

\subsection{The Commercial Ecosystem}

By the same token, nearly all established GPL'ed software systems have a

vibrant commercial community.  Nearly every GPL'ed system that has gained

wide adoption from non-commercial users and developers eventually begins

to fuel a commercial system around that software.

For example, consider the Samba file server system that allows Unix-like

systems (including GNU/Linux) to serve files to Microsoft Windows systems.

Two graduate students originally developed Samba in their spare time and

it was deployed non-commercially in academic environments.  However, very

soon for-profit companies discovered that the software could work for them

as well, and their system administrators began to use it in place of

Microsoft Windows NT file-servers.  This served to lower the cost of

ownership by orders of magnitude.  There was suddenly room in Windows

file-server budgets to hire contractors to improve Samba.  Some of the first

people hired to do such work were those same two graduate students who

originally developed the software.

The non-commercial users, however, were not concerned when these two

fellows began collecting paychecks off of their GPL'ed work.  They knew

that because of the nature of the GPL that improvements that were

distributed in the commercial environment could easily be folded back into

the canonical version.  Companies are not permitted to proprietarize

Samba, so the non-commercial users, and even other commercial users are

safe in the knowledge that the software freedom ensured by GPL will remain

protected.

Commercial developers also work in concert with non-commercial developers.

Those two now-long-since graduated students continue to contribute to

Samba altruistically, but also get work doing it.  Priorities change when a

client is in the mix, but all the code is contributed back to the

canonical version.  Meanwhile, many other individuals have gotten involved

non-commercially as developers, because they want to ``cut their teeth on

Free Software'' or because the problem interest them.  When they get good

at it, perhaps they will move on to another project or perhaps they will

become commercial developers of the software themselves.

No party is a threat to another in the GPL software scenario because

everyone is on equal ground.  The GPL protects rights of the commercial

and non-commercial contributors and users equally.  The GPL creates trust,

because it is a level playing field for all.

\subsection{Law Analogy}

In his introduction to Stallman's \emph{Free Software, Free Society},

Lawrence Lessig draws an interesting analogy between the law and Free

Software.  He argues that the laws of a Free society must be protected

much like the GPL protects software.  So that I might do true justice to

Lessig's argument, I quote it verbatim:

\begin{quotation}

A ``free society'' is regulated by law. But there are limits that any free

society places on this regulation through law: No society that kept its

laws secret could ever be called free. No government that hid its

regulations from the regulated could ever stand in our tradition. Law

controls.  But it does so justly only when visibly. And law is visible

only when its terms are knowable and controllable by those it regulates,

or by the agents of those it regulates (lawyers, legislatures).

This condition on law extends beyond the work of a legislature.  Think

about the practice of law in American courts.  Lawyers are hired by their

clients to advance their clients' interests. Sometimes that interest is

advanced through litigation. In the course of this litigation, lawyers

write briefs.  These briefs in turn affect opinions written by judges.

These opinions decide who wins a particular case, or whether a certain law

can stand consistently with a constitution.

All the material in this process is free in the sense that Stallman means.

Legal briefs are open and free for others to use.  The arguments are

transparent (which is different from saying they are good) and the

reasoning can be taken without the permission of the original lawyers.

The opinions they produce can be quoted in later briefs.  They can be

copied and integrated into another brief or opinion.  The ``source code''

for American law is by design, and by principle, open and free for anyone

to take. And take lawyers do---for it is a measure of a great brief that

it achieves its creativity through the reuse of what happened before.  The

source is free; creativity and an economy is built upon it.

This economy of free code (and here I mean free legal code) doesn't starve

lawyers.  Law firms have enough incentive to produce great briefs even

though the stuff they build can be taken and copied by anyone else.  The

lawyer is a craftsman; his or her product is public.  Yet the crafting is

not charity.  Lawyers get paid; the public doesn't demand such work

without price.  Instead this economy flourishes, with later work added to

the earlier.

We could imagine a legal practice that was different---briefs and

arguments that were kept secret; rulings that announced a result but not

the reasoning.  Laws that were kept by the police but published to no one

else.  Regulation that operated without explaining its rule.

We could imagine this society, but we could not imagine calling it

``free.''  Whether or not the incentives in such a society would be better

or more efficiently allocated, such a society could not be known as free.

The ideals of freedom, of life within a free society, demand more than

efficient application.  Instead, openness and transparency are the

constraints within which a legal system gets built, not options to be

added if convenient to the leaders.  Life governed by software code should

be no less.

Code writing is not litigation.  It is better, richer, more

productive. But the law is an obvious instance of how creativity and

incentives do not depend upon perfect control over the products created.

Like jazz, or novels, or architecture, the law gets built upon the work

that went before. This adding and changing is what creativity always is.

And a free society is one that assures that its most important resources

remain free in just this sense.\footnote{This quotation is Copyright

  \copyright{} 2002, Lawrence Lessig.  Verbatim copying of this quotation

  in its entirety is permitted provided this notice is preserved.}

\end{quotation}

In essence, lawyers are paid to service the shared commons of legal

infrastructure.  Few defend themselves in court or write their own briefs

(even though they legally permitted to do so) because everyone would

prefer to have an expert do that job.

The Free Software economy is a market that is ripe for experts.  It

functions similarly to other well established professional fields like the

law.  The GPL, in turn, serves as the legal scaffolding that permits the

creation of this vibrant commercial and non-commercial Free Software

economy.

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\chapter{Copying, Modifying and Redistributing}

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\chapter{Defending Freedom On Many Fronts}

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\chapter{Odds, Ends, and Absolutely No Warranty}

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\chapter{Business Models, Internal Use, and Compliance}

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