Thursday, January 4, 2018

The disagreement between the Free Software Law Center (SFLC) and the conservancy (SFC)

There is a mixture of tax law, trademark law, and political strategy behind the disagreement between the Free Software Law Center (SFLC) and the Software Freedom Conservancy (SFC).  Understanding what is happening only requires connecting the dots between these.

First, why did the SFLC create the SFC as a separate entity?

Answer: US Tax law

In A New Era for Free Software Non-Profits, Eben Moglen discusses the need for software projects to set up a 501(c)3 tax exempt non-profit organizations of their own.  It also discusses how they created "several 501c3-determined 'condominium' or 'conservancy' arrangements, to allow multiple free software projects to share one tax-deductible legal identity".

The SFC, as its name suggests, is one of those conservancy arrangements.  It was created as a separate entity for what should be obvious reasons, which is that a law center intended to be used by any individual, company, or free software project shouldn't also be the manager of a specific subset of projects.  This is similar to the Free Software Foundation which is also a 501(c)3 that is the copyright holder for a significant number of software projects (Note: Up to October 2016 Eben was also the general council of the FSF).

For the same reason that SFC should be a separate entity from the SFLC, it should be obvious that the SFC should never under that name be seen as offering the same services as a law center.

This is where trademark law forces itself into the conversation.

In Conservancy: How and Why We Should Settle, Eben clarifies how the expansion of the conservancy from offering condominium/conservancy services to offering "legal services" creates confusion in the marketplace.  In Concerning a Statement by the Conservancy, Eben documented how they needed to inform the US Patent and Trademark Office about the confusion.  It is the nature of trademark law that if you don't do everything on your own to avoid confusion in the marketplace that you might lose your own trademark, so this should never have been misunderstood as an "attack" by anyone who understands trademark law.  The SFLC tried to communicate with SFC about the issues, and didn't get adequate response.  Nothing I read directly from SFC contradicts what SFLC indicated, so I have no reason to not trust what SFLC suggested happened (or rather, didn't happen in the case of meaningful communication).

Given some of the directors of the SFC are lawyers, you might ask why confusion might be generated if these related organizations were offering similar legal advise?  This is where political strategy comes in, and how the advise that the SFC is offering clients is often not compatible with the advise that SFLC is offering.

In Copyleft Licensing: Applying GPLv3 Termination to GPLv2-licensed Works, Eben discusses the political strategy behind one of the enhancements of GPLv3, and the larger impact on trying to grow the copyleft ecosystem. It discusses how a “notice and cure period” for first time infringements are preferable to what some see as the overzealous litigious enforcement that some organizations have carried out. While not specifically named in the article, the SFC is one of those organizations that is perceived as being overly litigious, and is seen as one of the reasons why some individuals and companies see copyleft as too risky and seek to move away from copylefted programs to "permissively" licensed substitutes.

The likely confusion between the very different strategy of the SFC and the SFLC will impact SFLC's ability to carry out their primary function, which is legal advise.

I understand this type of conflict on political strategy between well-meaning parts of the FLOSS community.  I had my own disagreement on political strategy with SFC president Bradley M. Kuhn when it came to the GNU Affero General Public License.  I have a major problem with any software license that triggers on private modification rather than only on distribution/communication of the work, given I disagree with the expansion of copyright law beyond public activities.  I don't believe private copying of any works should be regulated, and thus disagree that any software license, especially one allegedly promoting FLOSS interests, should trigger on private copying or private modification.

I avoid AGPL licensed software as I believe the AGPL is contrary to the larger political interests of the Free/Libre and Open Source Software (FLOSS) movement.  I may understand the "problem" that the AGPL and the SFC's litigation strategy are trying to solve, and understand some of the emotions behind the specifically chosen tactics, but believe that sometimes we must move past those emotions and take a more reasoned long-term approach.