TORONTO – At LinuxCon, Linus Torvalds praised how the GNU General Public License version 2 (GPLv2) helped Linux become the most successful open-source project of all time. Later that same day, Torvalds lashed out at GPLv2 enforcement on the Linux kernel summit mailing list: “lawyering has become a nasty festering disease, and the SFC [Software Freedom Conservancy] and Bradley Kuhn has been the Typhoid Mary spreading the disease.”
The Linux Foundation
What the heck?
Let’s take a step by step look at what’s going on here.
First, no one becomes an open-source programmer because they want to be a lawyer. Intellectual property issues — such as SCO’s failed attempt to attack Linux on copyright grounds and Microsoft’s successful effort to monetize its so-called Linux/Android patents — have forced developers to deal with legal issues.
Torvalds, like many others, has never been happy about this. He’d rather code than deal with legal issues any day of the week. Who wouldn’t?
So, while on the conference floor, Torvalds acknowledged he “used to be worried about fragmentation, and I used to think that it was inevitable at some point. Everyone was looking at the history of Linux and comparing it with Unix. People would say that it’s going to fail because it’s going to fragment. That’s what happened before, so why even bother?”
Linux avoided this trap, Torvalds explained, because “The FSF [Free Software Foundation, author of the GPL] and I don’t have a loving relationship, but I love GPLv2. I really think the license has been one of the defining factors in the success of Linux because it enforced that you have to give back, which meant that the fragmentation has never been something that has been viable from a technical standpoint.”
He continued, “The GPL ensures that nobody is ever going to take advantage of your code. It will remain free and nobody can take that away from you. I think that’s a big deal for community management.”
Then, on the same day, Torvalds suggests that the title for a meeting about the GPL at the Linux Kernel Summit should be “Lawyers: poisonous to openness, poisonous to community, poisonous to projects.”
Torvalds was following up on a thread that sprang up about a suggestion that there be a discussion of GPL issues at the forthcoming Linux kernel summit. One reason for this was to report on an ongoing lawsuit in German courts. In this case, which dates all the way back to 2007, Linux contributor Christoph Hellwig accused VMware of using Linux as the basis for the VMware ESX bare-metal hypervisor, an essential part of VMware‘s cloud offerings.
Years went by and the SFC, a non-profit organization that promotes open-source software, tried to negotiate with the company to release ESX’s code, and its successor ESXi under the GPLv2. VMware refused in 2014.
Subsequently, Hellwig, with SFC funding sued VMware in the district court of Hamburg in Hamburg, Germany. The court ruled in VMware’s favor in early August 2016. Hellwig plans on appealing to a higher court.
In the ensuing discussion, Bradley Kuhn, President of the SFC wrote, “In the last 10 years brought something that never occurred before with any other copylefted code. Specifically, with Linux, we find both major and minor industry players determined to violate the GPL, on purpose, and refuse to comply, and tell us to our faces: “you think that we have to follow the GPL? OK, then take us to Court. We won’t comply otherwise.”” Therefore, Kuhn reasons, “In response, we have two options: we can all decide to give up on the GPL, or we can enforce it in Courts.”
It’s that last part, which drew Torvalds’s ire. Greg Kroah-Hartman, a leading Linux developer and maintainer of the Linux stable branch, however, started the heat. Kroah-Hartman wrote:
I call bullshit on this.
And frankly, I’m tired of hearing it, as it’s completely incorrect and trivializes the effort that thousands of people have been doing for 25+ years to preserve the rights that the GPL grants us.
I have NEVER said I oppose “GPL enforcement”, I will say that I oppose the way that _you_ approach this task.
And here is why.
I too have had people say to my face, numerous times, “you think that we have to follow the GPL? OK, then take us to Court. We won’t comply otherwise.” And guess what, no one took anyone to court, and every single time, I ended up with the code. As you well know, when you take legal action against someone, you have to be prepared to lose, and accept the consequences of that loss.
Frankly, I am not prepared to lose, and there is no way in hell that I am willing to accept the consequences of such a loss.
Torvalds agreed completely. He doesn’t want Linux to become the “test case for the GPL”
He pointed out that historically the SFC’s biggest victories were with forcing companies using the Busybox [a Linux toolkit for embedded environments] to comply with the GPL. While the developers won in court, Torvalds claims that all that really happened was “a huge amount of bickering, and both individual and commercial developers and users fleeing in droves. Both the original maintainer and the maintainer that started the lawsuits ended up publicly saying it was a disaster.”
Therefore, when he looks at Kuhn’s legal saber-rattling, Torvalds response is: “Let’s be clear about this: lawsuits destroy. They don’t ‘protect.’ Lawsuits destroy community. They destroy trust. They would destroy all the goodwill we’ve built up over the years by being nice.”
In short: “The fact is, lawsuits (and threats of lawsuits) do not make for friends. You just look like a bully.”
Instead, Torvalds prefers Kroah-Hartman’s approach: “We do it quietly, working with companies, from within, convincing them that yes, this license that seems so strange and crazy is really worth following, not only because it is the law (companies ignore the law all the time, it’s called risk management), but because it turns out it is the right thing to do from a business point of view. It’s cheaper to do so, the benefit is huge, and the return on investment is immense when they join together to work with us, instead of off in their own bubble.”
In summary, Torvalds supports the GPLv2. What he doesn’t support is aggressive enforcement of the GPLv2. Of course, what’s “aggressive” to him is another person’s complaisance.