From a lawyer who hates litigation

10:23 am Uncategorized

Before I started working in free and open source software, before I found out I had a heart condition and became passionate about software freedom, I was a corporate lawyer at a law firm. I worked on various financial transactions. There were ups and downs to this kind of work but throughout I was always extremely vocal about how happy I was that I didn’t do any litigation.

Litigation is expensive and it is exhausting. As a lawyer you’re dealing with unhappy people who can’t resolve their problems in a professional manner, whose relationships, however rosy they may have been, have completely broken down. When I started working in free and open source software, I started out primarily as a nonprofits lawyer. As I did more in copyright and trademark, I continued to avoid GPL ligation. I wasn’t really convinced that it was needed and I was sure I wanted no part of the actual work. I also was pretty license agnostic. X.Org, Apache Foundation and other permissively licensed projects were my clients and their passion for free software was very inspiring. I did think that the legal mechanisms in copyleft were fascinating.

Like Keith Packard, my view has changed considerably over the years. I became frustrated seeing companies wrest control of permissively licensed projects, or more often, engineer that from the outset. I’ve seen developers convinced that the only way a new project will gain adoption is through a lax permissive license only to find down the road that so much of their code had been proprietarized. I think there are times that a permissive license may be the right choice, but I’m now thoroughly convinced about the benefits of copyleft. Seeing the exceptional collaboration in the Linux kernel, for example, has sold me.

But as Bradley put it in our oggcast, “The GPL is not magic pixie dust.” Just choosing a license is not enough. As you surely have too, I’ve seen companies abuse rights granted to them under the GPL over and over again. As the years pass, it seems that more and more of them want to walk as close to the edge of infringement as they can, and some flagrantly adopt a catch-me-if-you-can attitude.

As a controntation-adverse person who has always hated litigation, I was certain that I would be able to help with the situation and convince companies to do the right thing. I really thought that some plucky upbeat bridge building would make the difference and that I was just the woman to do it. But what I found is that these attempts are futile if there are no consequences to violating the license. You can talk about compliance until you are blue in the face, run webinars, publish educational materials, form working groups and discussion lists but you cannot take the first step of asking for compliance if at some point someone isn’t willing to take that last step of a lawsuit. We at Conservancy are committed to doing this in the ways that are best for long-term free software adoption. This is hard work. And because it’s adversarial, no matter how nicely we try to do it, no matter how much time we give to companies to come into compliance and no matter how much help we try to give, we can’t count on corporate donors to support it (though many of the individuals working at those companies privately tell me they support it and that it helps them be able to establish budgets around compliance internally).

Conservancy is a public charity, not a for profit company or trade association. We serve the public’s interest. I am deeply convinced that GPL enforcement is necessary and good for the free software ecosystem. Bradley is too. So are the members of our Copyleft Compliance Projects. But that’s simply not enough. It’s not enough from a financial perspective and it’s not enough from an ideological one either. What matters is what the public thinks. What matters is what you think. This fundraiser is not a ploy to raise more money with an empty threat. If we can’t establish support for enforcement then we just shouldn’t be doing it.

Despite the fact that I am an employee of the organization, I am myself signing up as a Conservancy Supporter (in addition to my FSF associate membership). I hope you will join me now too. GPL enforcement is too important to hibernate.

2 Responses

  1. Sumana and safe space | Sixty Four Says:

    […] From a lawyer who hates litigation, Conservancy head Karen Sandle, December 30, 2015  “…but you cannot take the first step of asking for compliance if at some point someone isn’t willing to take that last step of a lawsuit.” […]

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  2. Nemo Says:

    Thanks. I firmly believe in legal enforcement work to further copyleft; I just joined Conservancy and FSFE as supporter. What do we need to really make a difference? Is it about bringing the license compliance budget at Conservancy from 30 k$ in 2013 to some other amount, scaling up what is being done? Do we need more assistance to more projects? Some huge cases to have precedents in more countries? Some investigation campaign to detect more violations? Something else?

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