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Legal Foundations for Open Source: The GPL and Free Speech

Many FOSS projects, including GNU/Linux, have progressed beyond simple “adhocrasies” and bazaar-style organizations to create sophisticated institutional structures of their own. These infrastructures not only have regularized the development of open source software but also have provided an organizing structure for nascent FOSS social and political movements. A critical aspect of new organizational self-awareness is the self-definition of Linux hackers, FOSS developers, and open source software users as free speech advocates in opposition to the closed, proprietary software that is in widespread use on personal computers today. The legal cornerstone of free speech in open source software communities is the GPL, or GNU General Public License. Stallman’s vision for new technologies free from the confines of proprietary software would have been only an idealistic fantasy if it attempted to survive under existing copyright regimes. Consequently, Stallman initiated a substitute system for copyrighting software. Rather than protect the property rights of the individual creator, Stallman’s version turns the notion of copyright (which links specific lines of computer code with individual property) on its head by keeping software in the public domain in perpetuity, something that he playfully refers to as “copyleft.” In essence, the GPL ensured that the four essential software freedoms would remain intact whenever free software was modified and redistributed by other users. If the end user decides to change GPL-protected software and distribute that new software code to others, then another provision of the open source definition comes into play: the modified software must be distributed under the same terms as the original software—that is, with the source code revealed and the opportunity for those new users to modify and redistribute the software.26 The license also prevented users from adding proprietary software to GPLd software and then obtaining a restrictive license for the newly created program, making it impossible to “combine a free program with a non free program unless the entire combination is then released as free software under the GPL.”27 The GPL was a major innovation in Stallman’s battle with multinational corporations like AT&T (which owned the rights to the Unix operating system) since it turned “copyright law against itself, limiting its reach and carving out a legally protected zone to build and protect the public domain.”28

The GPL was the first step in expanding the boundaries of free speech beyond the specific interests of computer hackers to encompass much broader concerns about the restriction of culture in a networked society. By creating a legal alternative to copyright, Stallman “provided the rudiments of a rival liberal legal vocabulary of freedom, which hackers would eventually appropriate and transform to include a more specific language of free speech.”29 Increasingly, open source communities are also getting more sophisticated in their facility with the legalities of copyright law, becoming ersatz copyright lawyers in their use of various software licensing schemes in order to challenge the existing intellectual property regimes. As Gabriella Coleman explains in her overview of legal and political activism among FOSS developers, “developers construct new legal meanings by challenging the idea of software as property and by crafting new free speech theories to defend this idea of software as speech.”30 In particular, Coleman describes how new developers for Debian, a version of the Linux operating system and the largest open source software project in the world, must complete an extensive application that asks them detailed questions about different sorts of software licenses under the GPL, including how to “correct” some existing software licenses to bring them into compliance with the Debian Free Software Guidelines (DFSG) or the GPL. These practices not only maintain the integrity of the Debian operating system, but they also help to form a coherent social movement by “transforming technologists into informal legal scholars who are experts in the legal technicalities of FOSS as well as proficient in the current workings of intellectual property law.”31

Along with these activities among hacker communities, a number of key nonprofit organizations have taken shape in the last 15 years that have bolstered the legal power of open source software licenses, including the GPL. Richard Stallman’s decision to resign from the artificial intelligence laboratory at MIT and to start the Free Software Foundation, for instance, gave a public face to the movement and allowed him to begin soliciting donations to support the development of free software tools. The FSF has continued to support the cause of free software both by channeling donations and by bringing attention to some of the perils of proprietary software. Their “Bad Vista” campaign from 2006 to 2009, for example, helped to focus media attention on the fact that Microsoft no longer sold their operating system to end users; instead, the software was only “licensed” to these users, which gave Microsoft the ability to potentially remotely disable a user’s computer through the use of a so-called kill switch.32 More recently, the Software Freedom Law Center (SFLC), a nonprofit organization founded in 2005 to support FOSS developers with legal advice on software licensing and “license defense and litigation support,” is in some ways analogous to the American Civil Liberties Union (ACLU) in that it serves as a watchdog for GPL-licensed software and will file injunctions and engage in other court actions to prevent the “contamination” of open source software with proprietary code.33 In December 2009, the SFLC filed suit against major consumer electronic companies and retailers such as Samsung, Westinghouse, JVC, and Best Buy for releasing proprietary products that utilized GPL-protected software called BusyBox.34 This action is only the most recent in a string of incidents in which proprietary software developers (one of them was Microsoft) have been informed by the SFLC that they have violated the terms of the GPL. The existence of visible organizations such as the SFLC and the FSF, then, has given the FOSS movement a centralized public identity and has protected the digital commons from incursions by profit-driven electronics and software companies.

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