DEBATE: Should FOSS licenses be enforced at all?
Chestek, Pamela
Battista Gallus, Giovanni
Jones, Marc
Smith, McCoy
In a perfect world, lawyers (and the entire legal system) should not be necessary. And in a perfect FOSS world, everyone respects each and every provision of every license. The reality is, however, very different, and enforcement may be a necessary evil. This need does not mean we have to open the gates to be flooded by "copyleft trolls", but to establish a sound enforcement policy, in order to unleash the lawyers only for the most blatant and repeated violations
 So our first debate is should false licenses be enforced at all? And we have Pamela Chastick, Giovanni Gauders, Mark Jones, and McCoy Smith. And who gets to go first? Giovanni. So we're still struggling with the projector. You don't need it. So let me give you a... Oh no, you have to give me a tongue no matter what we need that slide up. Yeah, yeah. Just one... Sit this side. Okay, good. Yes. Well, can I start? Yes. I'm sorry, we need that projector up now the whole time. Because we need that message that's on that paper to be up every time someone is speaking. So... It's not a paper. Basically, it's going to be reported to give me things we don't know. We need that projector up. Okay. It's more important than the slides right now. Okay. Wait, no. How do we get that projector? I'll do it. Where's the message? I'm going to use it to the right of the table. Yeah. I'll just put it on the left. I will do it. I'll just put it on the left. Okay. Wow. Oh, thank you. Thank you. It's a must. It's a must. We're taking attendance first. Okay. Okay, can we start? Are we good? No. Okay. Okay. Shall we start? Okay. Well, good morning everyone. Every time I have to talk at first, then something is going to happen. Last time I talked here, we went through three mics. This time, just the screen went out. So I don't know whether it's a coincidence or that's a problem we'll be. But anyways, so I have to talk about enforcement and why enforcement is good. Or what are the main points? And where can I start? Well, where can I start? I can start maybe by quoting some very famous quote by a well-known author, Shakespeare, who says, and it's very famous, the first thing we do, let's kill all the lawyers. Well, some of you may find it amusing, but on the other hand, it won't change the fact that controversies will happen. And therefore, whether we want or not, we need enforcement. That's the main point. And first of all, we have to define what we mean by enforcement. Is enforcement litigation? Is enforcement only when you go to court, only when you really bring your cause to the tribunal, or is just not a gentle nudge, but maybe asking for compliance, asking politely, and then asking maybe with a louder voice. Is this enforcement? I think it is. I think that's enforcement. And I think that this vision is upheld also by the principle of community-oriented enforcement, but also by the GPL cooperation commitment. This is another example. It doesn't rule out enforcement. It says that even if the scope is much less broad than the principle of community-oriented, sorry, oriented enforcement for GPL compliance, anyways, enforcement is still a possibility. And also, the Linux kernel enforcement statement does not deny enforcement, not only because it is in the name itself of the statement, but also because it only describes that enforcement has to be made, it has to be defined in scope. The scope of enforcement is not personal gain. The scope of enforcement is not copyright trolling. The scope of enforcement, it doesn't have to have a negative impact on the health and growth of software ecosystem. I'm quoting from the Linux kernel enforcement system. And so it is, as I pointed out, a necessary evil, because let's, I do just, let me do a personal example. Under Italian law, you may tell from my accent that I'm not exactly British, but when the code of, the code of public of digital administration came into force in Italy in 2006, it was a fantastic piece of legislation with fantastic principle, digital rise for the citizens, but there were no consequences at all for any violation. So an old professor of mine told me, okay, yes, but this is very fun, but what happens if you violated it? Well, nothing. Nothing, you cannot force the public administration, you don't have any cause of action, and so guess what, when the code of public administration got some momentum, when they introduced the consequences, when they introduced a way to force public administration to comply with it. So I'm not telling that we have to enforce every single violation, absolutely not. I'm not telling that we have to enforce even the most common or maybe just trivial violation. And I just have to tell that we cannot, we cannot deprive ourselves of the fact that we have to defend our freedoms. Also because a recent case of the European Court of Justice stated that when you breach a license agreement, you are in breach of copyright, you are in breach, you are availed of the same remedies you have for copyright infringement. And this, curiously enough, is the same statement that was given by the court in the first GPL compliance case, so the VELTE versus sitecom of the Munich Tribunal of 2004. And so we have, we really have a powerful weapon, but as any powerful weapon, we don't have to use it in a futile way. We don't have, as I said before, we don't have to use in any case, compliance is a process, and we already have some agreements which can be used for describing this process, but it is very important to do it and be prepared for litigation as well, which is a real complex topic. So enforcement is not something that you have the communities to be scared because we owe also to the copyright holders we owe to the community. We absolutely have to make people understand that they have the rights and their rights can be protected. Also because no one, not everyone is behaving correctly. There are, of course, some bad guys, I would say. I'm not going, I won't go against people who violate the copyright licenses just by mistake or by the fact that they misunderstood something. But when the violation is, when the violation is willful, then we will go and try to get compliance. And also just to conclude, we have to think that maybe some of the arguments against enforcement go and derive from a misconception. Copyright is not a patent, enforcing copyright is good. Copyright is a central copyright. We have to defend our rights. Thank you. Okay, so I think the format that we all agreed to was each of us is going to do a seven-minute presentation, which Giovanni volunteered to do first. And then the people on the opposing side, which would be Pam and I, get to do cross-examination or rebuttal. So you got to continue to stand up there while I cross-examine you. But first you need to raise your right hand and say it after me. So I got three minutes. I have two questions. One is not really a rebuttal. One sort of is. When you're talking about enforcement, you got any thoughts on whether that's a preferable course to take civil versus common law jurisdictions? Since you're from a civil law jurisdiction, I don't know much about that. I'm a common law person. Second, isn't it true that the GPL cooperation commitment by excluding certain forms of enforcement is not being beneficial? Doesn't that essentially concede that there are problems with enforcement? Well, first question. Of course, I will go for the civil law litigation. But I have to point to one issue. In several states, this kind of infringement may also be criminal. And I would never go for the criminal prosecution. I would say this would not be the right way to enforce it. Second question. Yes, you're totally right. Enforcement has problems. But you cannot rule out as a last resort. That's the main point. You cannot say we won't enforce whatsoever. You have to find a good way to benefit the community. No further questions. So I am taking the contrary view to enforcement. So first, I would like to say that the definition of enforcement that I am working on means litigation. It means bringing lawsuits. I'm not talking about politely asking people to provide source code or to comply with the license, but taking an aggressive action of litigation against them. So I'll start by saying Nelson Mandela said, if you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner. So then he becomes your partner. That's the critical point here. So free software has had wide adoption, widespread adoption. The various sources that I have seen cited say between 50% and 100% of all software distributed contains free software. So if we measure the success of software as use of it, then free software has been wildly successful. However, the success of this software is only because of the collaborative nature of the development model that's used for it. So collaboration brings fresh ideas. It brings enthusiasm when other people have waned. It brings new insight into old problems. So we need to have this continuous contribution, contributor feedback loop going. But collaboration, you can't have collaboration in an environment where there's not trust. And suing people for non-compliance will break all trust. And it will push away people instead of welcoming them into the community. They may abandon all use of free software altogether as a result of it. And they may switch to proprietary software. This switch like that would be something that the legal department would be advocate very strongly for. Legal departments are risk averse. This is a different world. And they're not happy with it. So to this day, as a result of the busy box losses, which were more than 10 years ago, they still strike fear into the heart of legal departments. And as a result, there are companies that are so mistrustful of open source software that the prospect of getting sued, that they forbid the use of the GPL altogether in their environments. So once you've created that mistrust, it is very hard to build that trust again. It'll take years to rebuild that. And what you're losing during all that time is all of those contributions that could have been made by that entity that was sued. So I'll also point out here that it's only commercial companies that get sued. We're not talking about individual developers here who are out of compliance who are being targeted. So you're talking about targeting huge swath of developers, companies that have a lot of people who may be contributors, but are going to be barred from contributing. And from those companies who have the financial wherewithal to support the development effort of free software. So this is how you impair the growth of the software commons. You're not feeding it. You're not fertilizing it. You're impairing it. And litigation then also has a ripple effect beyond just this core project that was the target of the litigation beyond just the non-compliant company and beyond even just this one plaintiff who brought the lawsuit. The community will lose value because of the potential contributions. The project will lose value because of these potential contributions by the sued party. But not only that, they may then not want to contribute to any other software projects that they use. The project will lose potential users and contributors who might have joined because of what the sued company brought to the table for that project, its improvements and developments on the project. And then even other members of the project may become so disenchanted by the litigation and the lawsuit that they break ties with the project. So you may lose developers as a result of this litigation. And let's also just recognize that litigation is really a copy-left problem. So Jacob Seenbeke hats in the United States was about the artistic license, which is not a copy-left license, but it was a claim. It was sort of an outlier because it was a patent infringement lawsuit with this copyright claim tacked on. But I've never heard of anyone complaining about non-compliance and certainly not even complaining about non-compliance, much less suing on non-compliance with the MIT, the BSD, or the Apache licenses. So it's really just a copy-left problem. And then also keep in mind that we're talking here about cases where the Ricalse-Trent-Sherer has been approached and advised the non-compliance back to Giovanni's point that it's not just, you know, we're suing people at the drop of a hat. They have had, they have been notified, and they have time to come into compliance. But for some reason they have chosen not to comply. This is a choice on their part. They have chosen to fight, and when they choose to fight, it's going to be a long and expensive one. And this is going to be time and energy spent on litigation that could be much better spent in other ways. And it's also likely just going to get some orphan bit of software that may not end up being valuable to the larger project as a whole because it's not been part of the development process all along. So is it really worth it? Is it really worth it to go through this expensive, time-consuming litigation just for maybe a loadable kernel module? Is it really worth the candle to do that? So, and there's even now less reason to sue for compliance than there was during the busybox years. Now there are more pressures to contribute to free software. Software is replacing hardware. It's becoming much more critical. It's replacing hardware. It's replacing machines. It's even replacing human acts in some cases, human intellect in some cases. And so software malfunctions are no longer just an annoyance, but everybody understands they're crucial, that there are security issues in software, planes crash, identities are stolen because of problems with software. Companies that embed software into their hardware projects are also now quite savvy and they're asking for bill of materials from their supply chain. They're no longer cavalier about the provenance and reliability of the software. They now have come to understand that communal effort is the best way to go about ensuring these problems don't arise, and when they do arise, that they are fixed quickly. So market forces are driving compliance and litigation doesn't have to any longer. So suing over compliance sends the opposite message of what we should be sending. Messages of inclusiveness. I do. No, I still have the mic. This time is working. I won't get rid of it. I will keep it. Anyways, two questions. First one, I like the way we lawyers play with words. I broaden the scope of enforcement while you tie to litigation. But if in this case, so would you consider it fair to just ask for compliance or issue season disease letter, even if you don't call it enforcement? That's the first question. And the second second question is you mentioned hardware vendors. Do you think and you said that now they are complying and they are they are or they are mostly complying and they are also driven by the value of community. Do you think this would have happened the same in the same way warranted for the litigation case back in 10 years ago? So to the first point on how to define compliance, no, I don't think there's anything wrong with pursuing people for compliance. And I think there are a lot of good players out there who are trying to comply. And if you bring an error to their attention, they will be happy to correct that. So that and that is why I define because I do think it's appropriate to ask people for copies of source code. As to the sort of embedded and the upstream and much more awareness, did it happen, you know, it's hard to it's hard to it's hard to say what would have happened in the absence of history. So the busy box lawsuits happened. But do I think that they play a big role in why there's compliance now? No, I don't think so. I think that what's happening is that manufacturers are being held responsible for the function of their products. And when those products malfunction, they need to turn to their upstream and learn that they don't actually know what their distributor has provided them with. They get a binary. And so it's simply business pressures that have caused them to become much more aware and much more cognizant and bring the hammer down much more on their distributors or, I'm sorry, on their upstream manufacturers to make sure that they have it. It's in their own self-interest to have it. It's not because they need it's in their simply their liability self-interest, not just that they need to provide the source code, make the source code available, but it's just in their business interest to do it. All right. Pam, thank you for sharing your thoughts. The problem with the argument about not doing enforcement though is that that kind of presupposes that the community has a choice about whether or not enforcement is going to happen because the reality is that enforcement happens. This isn't a question of whether or not enforcement should happen. It's going to happen. We see it happening all the time. You can narrow enforcement down to a definition like, oh, we're just talking about lawsuits and litigation. That's fine. But those are actually going on. And you don't need to be a member of the community to be involved in enforcement actions. There are lawsuits that are going on right now between large corporations who are using free software. They got into a commercial dispute. And what those licenses mean are part of that dispute. Pam mentioned that this is that commercial actors, part of what's happening is like, well, they need to be able to fix their products. So they're going to deal with upstream, right? Well, they have agreements with upstream. They're going to enforce those agreements. That's part of enforcement. If that relationship goes bad, there's going to be litigation. And all of the activities that she was okay with are often very commonly called pre-litigation activities. The reason why those work is because there is the threat of litigation there. So even if you want to narrow the definition down to litigation, it is not possible to say that you can just take that off the table and then all these other tools are going to be possible. The fact that litigation is possible is what makes the other tools work. And we're seeing this happen already, right? There are people out there doing enforcement. We have trolls. Everyone in this room is probably aware of the Patrick McCarty cases, right? Like, that happened. We can't tell people to not do that again. All we can do is see what's happening on the courts and decide how we're going to react to it. One of those could be we could just sit by the side, right, and let trolls define how it's going to play out in courts and let trolls define the playing field and hope that it doesn't work out for them. That's one possibility, but the trolls are going to keep trying. They're going to keep looking for a way to use these licenses. Companies are already doing this, right? You have two large insurance companies a couple of years ago in the United States or a large insurance company in a software manufacturer who didn't care about free software licenses. They didn't even realize that free software licenses were involved until they got well into litigation. They said, oh, here's my commercial, here's my advantage in this lawsuit. Now I'm going to turn this into an enforcement action. Like, it happens. And then we had somebody who produced the software getting notified, and they looked for the opportunity to profit off of it. They didn't do that in a principled way. They saw an opportunity to make money off of it, and we don't know how that actually got settled, but the fact that things got settled, it probably was not for the promise that people were going to behave better, right? They did it in secret. There was no compliance coming out of any of the companies afterwards. Somebody got paid for that. Like, that is typically why you settle, is you give me this bunch of money here, and I'll go away quietly, right? On the other hand, there are some enforcement actions, and there are some community actors who have principles around enforcement. And what's wrong with setting up a system where we say, we as a community, the people who actually believe in free software values, people who believe in user freedoms, are going to enforce these licenses. And if you don't listen to us, there's going to be consequences, but we are going to go about this in a principled way, because we care about these values, right? So you have organizations like the Free Software Foundation, Software Freedom Conservancy, who have come up with community principles. You have commercial actors like Red Hat, who's leading, you know, GPL cooperation agreements on enforcement around the Linux kernel, right? These are principled ways of doing enforcement. It's not necessarily bad to do enforcement. There might be good ways to do it, and there might be bad ways to do it, but just us as a community opting out means that we're going to only leave the space open for the people who are going to do it in the bad way, or at least in the way that it's not principled. That doesn't care about free software values. It doesn't care about user freedoms. So we can't hide underneath the rock on this one. This isn't a question of should we do it or should we not do it. Someone's going to do it. It's just a question of whether or not we give them the playing field there. And really, there's lots of benefits to litigation, too, right? There are companies out there. There are commercial companies. They know what the goals of litigation is. It's to resolve a dispute. Sometimes you need a third party to help you resolve a dispute. What's wrong with that? It doesn't actually mean that you hate the other person or you're scared of the other person, or that you'll never work with that person again. It just means that you had a dispute and you couldn't resolve it, and you need someone to explain how it's going to be viewed by a third party. So litigation actually has lots of benefits, right? One of the benefits of litigation is that instead of people who are involved in the community, who have beliefs about how these licenses should work, who have beliefs about what the intentions of licenses should be, we can learn from people who weren't involved in the community, who weren't involved in drafting licenses, what the words in the paper mean to others, right? There's an opportunity for us to learn, right? This is about, this is some way as large as proofreading, right? When you go in front of a judge, you ask them and say, well, this is what I think the GPL means. This is what I think the MIT license means. Do you agree? Because this is what I wanted this license to do, and if the judge disagrees, well, you have a problem, right? It's not fair for you to go around saying, well, I intended this, I intended this when other people are reading licenses say, but that's not what the license says, right? So we can change what we're looking for in those pre-litigation activities, what kind of compliance we're looking for on those licenses, and we can write new licenses, right? New licenses that will achieve the results that we actually want to happen. And litigation has happened in the past. I think Pam conceded this, right? Free software is being used more now than it ever has been, and we've already had litigation on it, right? In the early 2000s, we had some high-profile litigation cases. The busybox cases were already mentioned. However you feel about those cases, they happened, and it didn't actually stop companies from adopting free software, right? In the early 2000s, when those cases were being brought in and enforced, and other ones too, GPLviolations.org, we had large commercial act there saying calling these licenses virals in cancers. Those companies aren't doing that anymore, right? We also had litigation out there, where the question was, were these licenses even enforceable, right? Well, we had litigation that was resolved. Every company knows they're enforceable now. So, in conclusion, we don't have a choice. Companies aren't scared of it. We know that. So, we might as well do it in a principled way so we can get the benefits of it. So, let me start by saying I'm in a disadvantage here because Mark and I argued on the same side of this a year ago at Copy Left Com. But let me challenge some of the things you've said. So, one of the pressures that creates compliance is people. Can you move more to the center? Yes, certainly. Sorry. One of the things that encourages compliance is that people like to abide by their contracts. So, simply behavior of a... But people don't go around intentionally. They do intentionally breach contracts, but they tend not to. People tend to stick to their contracts. So, just the fact that there is an agreement, people... It's not just the litigation. It's not just the threat of litigation. It's not just the threat of a breach that makes you not breach a contract. It is you as an upstanding person will abide by your obligations under a contract. So, it's not just litigation that is that sort of sword. One other... You've also ignored that there is a vehicle for these other lawsuits that are brought by the enterprises of the world, which is the opportunity to participate as an amicus brief, to come in and step and educate the court on these matters. So, it may not be necessary for the free software community to bring the lawsuits, but they can participate to inform and educate the court on the issues of amicus... Through the vehicle of amicus briefs. And I totally forgot what my third point was. Whatever your last point was, it was hard to keep in my head as I was doing this. Seven minutes is a long time. All right. Well, whatever your third point was, I think whatever I said has already rebutted it. So, to your first point though, that people like to abide by their contracts, I think some people do. There are definitely some people in the world who view relationships with people that they have through and they keep their word and the contracts reflect that. But there are also people whose business model is to try to get every single edge. And they will go about breaching contracts if they think they can get away with it. But at the end of the day, we're also talking about contracts, you know, legally enforceable agreements. And, I mean, around the world, can anyone have an idea how many lawsuits are initiated every day for breach of contract? Part of what makes contracts meaningful is that people know that they're enforceable. There's a big difference between saying, well, I will promise that I will do this and I'm just going to say that to you over the phone and writing down in a piece of paper so it's objectively visible to someone else who can come in with enforcement power and actually ask you to do it. So it's part of some of the missions. Can I just actually, I have my third thought that I just, we're running, the clock is running, so I just don't. Can I see a show of hands of someone who has been sued and has warm and fuzzy feelings toward the entity that sued them? Oh, we got one. We have one person. So that was my final point was you said, oh, it's just business. It's just business. I think that's an easy, I think that's an easy out to say it's a business, but I have never worked at a company that was subject to a lawsuit that didn't just have hateful thoughts towards the other party. So. Yeah, yeah. So I'm the second negative here on enforcement and I'm going to one up Giovanni and Pam by having two quotes. It's an old debate. You can have mine. The first is from a Supreme Court Justice in the United States about 100 years ago. He said, the life of the law has not been logic. It is experienced. The second is if it ain't broke, don't fix it. I'll explain both of those in a little bit of detail here. So the life of the law is not logic. It has been experienced. You can interpret that a lot of different ways, but to me, one way of to interpret that is we should not think of the legal system as something that's a logical system where we can select the inputs. It will go through a systematic process of analysis that's predictable and that will get us a result that we like. In fact, it's quite contrary to that. Ideally, it would be logical like that, but it does not work that way in practice more often than not. Or I should say somewhat frequently. I'll give you two examples of this from the free and open source software licensing world or actually three examples. The first is Jacobson v. Katzer, which Pam talked a little bit about. I think most of us has probably heard about that and remember that, wow, that's one of the first cases, if not the first case, that validated the free and open source licensing model in a court decision and said that the authors have the ability to pursue somebody for violation of the terms of the license. What a lot of people may not remember, although those of us who have been doing this for a while do remember, is that that case was really messed up for a long time. The input into the system was not good. In other words, the two parties that were disputing in that case were not optimal. Their representatives perhaps may not have been advocating positions that we thought would have been good to get the result that we wanted. And in the, at least in the district court, we got a decision that was contrary what I think most people would prefer to have an interpretation of how free and open source software licensing works. It was through the efforts of a lot of people putting themselves in front of that litigation and lending assistance to the parties that we did get an appeals court decision that is now useful to all of us in understanding the licenses that we use. So that is a first example of a suboptimal system processing that could have gone the wrong way, but for some advantageous actions that were taken and in the end a court that saw things the way that we think they should be seen. By the way, the court that saw it that way, the exact same court that decided that Oracle should win with Google. So you take what you get from these courts. Sometimes they find things the way that you like. A lot of times they find things the way that you don't like. That's part of the system. Two other examples, a little bit more recent from outside the United States. So McCarty versus Genia Tech in Germany and Helvig versus VMware in Germany. Now I don't know if anybody's read about these cases, either the decisions or the write-ups of them. There's a good write-up in Joltz, the journal that everybody knows I promote regularly every time I open my mouth. There's a good article on the Genia Tech case in Joltz from about a year ago describing how that went down. There has not yet been an article. If somebody's willing to write one on the VMware case, we'd be interested in publishing it. But the bottom line of those cases is the courts found or set what appeared to be fairly difficult to meet standards of proof for whether you had copyright rights and that you could assert against somebody that you believe to be an infringer. That is something I think that is problematic for people who want to think about enforcement. If the tests are hard, enforcement gets hard. And worse, if the output from the court is detrimental, there's a negative feedback loop there. The next court takes a look at that and says, well, the test is hard. We should make this hard for people who come into the court and want to enforce. That's why when you go to the system of enforcement through litigation, you are taking a risk that the inputs will be bad, the system processing will not be predictable, the outputs will be unfortunate, and there may be a negative feedback loop that makes things worse. So litigation has or enforcement has its downsides. We need to consider that. And we need to consider that cases in the future may come to conclusions about the licenses that we like that may be detrimental to the way that we want the community of developers to work. I'm not going to steal Van's thunder, but the Google versus Oracle case is another example where we need to watch that case carefully because it may indeed have some disadvantageous effects on the way people are thinking about how these licenses work. So I'll leave that at that. Now, if it ain't broke, don't fix it. We've got a big group of people in this room. I think most of the people here probably owe their jobs to non-enforcement modes of compliance, and I think we should continue to have people encouraged to work in that way. Okay, so now you get to cross-examine me. I think we're going with two questions, or at least two questions that we can remember. I had three, but I actually forgot mine, third one as well. All right, so my first question is, so you said that that could have been a disaster until a lot of people engaged and then we got a positive result. Isn't that an argument for an engaging enforcement because we got a positive result when the people who cared about these licenses showed up to help educate the courts about how the licenses work? And then my second question is going to be, you said... As long as the system works in the way that you want it to, that's the right result. Don't assume that the system will always work that way. That's my cautionary note. My second question then is, you kind of implied that we shouldn't do enforcement because sometimes we might get negative results, and right now we're getting what we want because there's still the threat of enforcement. But if we do too much enforcement, we might suddenly find out there is no threat of enforcement. Would we still get what we want if we take enforcement off the table? So I'm going to echo what Pam said, which is I'm not sure that we can say for certain that enforcement in the past has resulted in compliance in the present. Nevertheless, I think that the way that's most consistent with the way the Free and Open Source Software movement works is to go to conferences, set up compliance programs, talk, train, develop systems, internal systems, develop tools in a way so that everybody can benefit and that everybody can run their operations in a way. That is compliant and is consistent with the philosophy of the movement. I would advocate, and I hope most of you who owe your jobs to that would also advocate that that's the best way to get things done. Okay, so we have... I'll rest my case. Okay, now we have... I think we have ten minutes for questions. Yeah, we combined the two. Questions? Yes, we should. Yes, yes. So it was very interesting hearing the positions about whether or not enforcement of licenses is required. I'm curious to know if you collectively would agree that licenses themselves are required, not necessarily, not considering enforcement, just the licenses. Well, in an ideal world, licenses would not be required. Everybody would operate in a community-appropriate way. I would say that a license, and I think this is the Free Software Foundation has said this, the license is the constitution of the movement. So it's one way of outlining expectations for everybody who's operating in the space, whether or not you actually actuate that as a legal document versus a set of principles. You know, that goes into this enforcement question. I think licenses are required. And one, that just happens to be how the legal regime that we work under works. If you don't have a license to use someone else's copyrighted work, you're not allowed to use it. However, you articulate what that license is, whether it's through, you know, a passive acquiescence to someone's use or a casual conversation or a written document, licenses technically have to be granted. The advantage of written licenses, which might be going more to your question, is that it adds clarity and certainty. It can be objective and it reduces misunderstandings. And I think it does go to McCoy's point of, right, these licenses in many respects do operate as kind of a constitution for projects or for the movement. But if they're not clear, we need a way of bringing about clarity about it. And not everybody is going to always agree. And you just need to find a way of getting to clarity about what the relationship is. Yeah, I would agree with that with sort of the only other, only thing to say in addition to that is that then if there were not written licenses, then the troll problem would be much, much broader. So we see this happening all the time in collaborative communities that work with unwritten rules is all of a sudden there's a shift and someone doesn't follow the unwritten rules and creates a lot of disruption. So the license acts as those written rules so that everybody has a common understanding of what's acceptable behavior. Yeah. I just want to point out that if you don't write any rules or so if you don't have licenses, lawyers will benefit greatly because we will have a total incentive. And coming on my point, if the license is our constitution, then we have to fight for it. So my question is especially for those who oppose enforcement, does the time ever get better to do enforcement? Can we say maybe in 20 years some terms will be clearer in the industry so the courts will more easily get the right output from a certain input, for instance, or is the decision, let's say, forever? So we will not do it even in a cent or from now. So I think in your example actually would be run counter to enforcement if there were a court out there, the world court were to say here is how GPL works for every provision in it. Everybody knows the rules. There's no reason why anybody wouldn't follow that. So I think in that case it's less likely to be the subject of enforcement. The ambiguity tends to allow people to raise questions about what the licenses mean. So whether 20 years from now enforcement will be good or not good, I don't know, that's hard to predict. It really depends on a lot of different circumstances. But I'm not so sure that more court decisions will, I think more clarity in court decisions will put the roadmap out for everybody on how they need to operate. Do you want to respond to a family? So this is a two-parter. The first is, do you believe that proprietary licenses are, there is a culture of the expectation of enforcement of proprietary licenses? And number two, if you agree with that, why do you believe free and open source licenses should be any different? That's for all actually. Start with the, yeah. I think there probably is an expectation that proprietary licenses will be enforced more readily than free software licenses. I suspect it's probably because we just think companies are willing to be more litigious and free software is made by individuals who are less sophisticated when it comes to litigation and commercial dealings, which I don't think is actually, that's just not true, right? Like free software is produced by large companies that are very sophisticated. So that expectation might be out there. At the same time, too, I also think that the expectation that proprietary licenses will be enforced, they're not enforced quickly. It's not like everyone who bought proprietary software got sued by the manufacturer, nor is it true that they were all in compliance. I think the fact that there's that expectation of differences is a problem. And to a disadvantage of the community though, right, is that somehow the community should be above doing litigation, but it's okay for companies to do it on their proprietary licenses. Why should we give the proprietary license manufacturers that advantage? I actually disagree with the premise that there's more enforcement going on in proprietary licenses. I think, yeah, McCoy's nodding his head. I think that the companies that are doing enforcement work on copyright licenses, the very last thing they want to do is sue a customer, and they will only do it if it's already a lost cause, and there's a lot of money involved that can be recouped. But really, they would much rather have a paying customer who's paying a bit more because they've convinced them that they're non-compliance really means they should be coughing up a little more money than they are now, but they much rather keep that customer and write off the loss rather than lose the customer entirely and lose all income from that customer. So I don't think that proprietary companies have a culture of enforcement. I think it is just the opposite. McCoy, do you want to answer? No, no, I agree with Pam. I agree with Max. I'm going to agree with Pam too. Thanks for all that. Do you think that enforcement litigation, as you narrow it down, is it working on licensed by licensed case? So if in the future that we said that maybe in 20 years time some court has already defined all the points of GPL, but maybe then we should all have moved to another license which is still ambiguous by then. Or do you think that results of enforcement and litigation apply to everything? Is that for one side, one particular side of the other? Yes. Anybody want to take that? So litigations over, let's say, GPL2 may have an effect on future licenses, GPL4, or whatever, because in many cases these litigations, the courts are setting out general principles and not necessarily limiting the decision to the exact text. That's why Oracle v. Google is an important case to things other than Java. And that's why people care about it, right, because they anticipate the people who are arguing about it are anticipate that it's going to set the rules for how we interpret what's copyrightable in software generically. So I think that answers your question. Okay. We have time for more responses. Just a very quick comment on this. I mean, every decision may have an impact on future licenses, and of course it depends on the license being litigated. Theoretically, you could enforce also a B-Roy license, but I don't think that enforcing a B-Roy license may have an impact on future licensing. Okay, so I know, but I don't think we have time for it, because there's one. Okay, so what we need to do is for your debaters, raise your hand if you mostly agree with the position that you took in the debate. Raise your hand. Oh, if you don't want to. If you don't want to, raise your hand if you don't want to say whether you do or you don't. It doesn't matter. You know what? You all did an excellent job. So what? Weird rope? So let's applause. Yeah, we will. Okay, now we are not having formal judging of these debates. However, what I want to know is, so we stay up here. Okay, so what I want to know is for the people against enforcement, raise your hand if they brought up something you hadn't thought about before. Okay, and those for enforcement, raise your hand if they brought up something you hadn't thought about before. Okay. Now, raise your hand. Raise your hand if you changed your mind due to something that was said by anyone on this debate. Have you changed your mind based on this debate at all? So like quite a few people. Yeah. Anyway, so let's give these debaters another... The first one is doing it amazing. Thank you.
 So our first debate is should false licenses be enforced at all?  And we have Pamela Chastick, Giovanni Gauders, Mark Jones, and McCoy Smith.  And who gets to go first?  Giovanni.  So we're still struggling with the projector.  You don't need it.  So let me give you a...  Oh no, you have to give me a tongue no matter what we need that slide up.  Yeah, yeah.  Just one...  Sit this side.  Okay, good.  Yes.  Well, can I start? Yes.  I'm sorry, we need that projector up now the whole time.  Because we need that message that's on that paper to be up every time someone is speaking.  So...  It's not a paper.  Basically, it's going to be reported to give me things we don't know.  We need that projector up.  Okay.  It's more important than the slides right now.  Okay.  Wait, no.  How do we get that projector?  I'll do it.  Where's the message?  I'm going to use it to the right of the table.  Yeah.  I'll just put it on the left.  I will do it.  I'll just put it on the left.  Okay.  Wow.  Oh, thank you.  Thank you.  It's a must.  It's a must.  We're taking attendance first.  Okay.  Okay, can we start? Are we good?  No.  Okay.  Okay.  Shall we start?  Okay.  Well, good morning everyone.  Every time I have to talk at first,  then something is going to happen.  Last time I talked here,  we went through three mics.  This time, just the screen went out.  So I don't know whether it's a coincidence  or that's a problem we'll be.  But anyways, so I have to talk about enforcement  and why enforcement is good.  Or what are the main points?  And where can I start?  Well, where can I start?  I can start maybe by quoting some very famous quote  by a well-known author, Shakespeare,  who says, and it's very famous,  the first thing we do, let's kill all the lawyers.  Well, some of you may find it amusing,  but on the other hand,  it won't change the fact that controversies will happen.  And therefore, whether we want or not,  we need enforcement.  That's the main point.  And first of all, we have to define what we mean by enforcement.  Is enforcement litigation?  Is enforcement only when you go to court,  only when you really bring your cause to the tribunal,  or is just not a gentle nudge,  but maybe asking for compliance,  asking politely, and then asking maybe with a louder voice.  Is this enforcement?  I think it is.  I think that's enforcement.  And I think that this vision is upheld also  by the principle of community-oriented enforcement,  but also by the GPL cooperation commitment.  This is another example.  It doesn't rule out enforcement.  It says that even if the scope is much less broad  than the principle of community-oriented,  sorry, oriented enforcement for GPL compliance,  anyways, enforcement is still a possibility.  And also, the Linux kernel enforcement statement  does not deny enforcement,  not only because it is in the name itself of the statement,  but also because it only describes that enforcement has to be made,  it has to be defined in scope.  The scope of enforcement is not personal gain.  The scope of enforcement is not copyright trolling.  The scope of enforcement,  it doesn't have to have a negative impact on the health  and growth of software ecosystem.  I'm quoting from the Linux kernel enforcement system.  And so it is, as I pointed out, a necessary evil,  because let's, I do just, let me do a personal example.  Under Italian law, you may tell from my accent  that I'm not exactly British,  but when the code of,  the code of public of digital administration  came into force in Italy in 2006,  it was a fantastic piece of legislation  with fantastic principle,  digital rise for the citizens,  but there were no consequences at all for any violation.  So an old professor of mine told me,  okay, yes, but this is very fun,  but what happens if you violated it?  Well, nothing.  Nothing, you cannot force the public administration,  you don't have any cause of action,  and so guess what,  when the code of public administration got some momentum,  when they introduced the consequences,  when they introduced a way to force public administration  to comply with it.  So I'm not telling that we have to enforce  every single violation, absolutely not.  I'm not telling that we have to enforce  even the most common or maybe just trivial violation.  And I just have to tell that we cannot,  we cannot deprive ourselves of the fact  that we have to defend our freedoms.  Also because a recent case of the European Court of Justice  stated that when you breach a license agreement,  you are in breach of copyright,  you are in breach,  you are availed of the same remedies  you have for copyright infringement.  And this, curiously enough,  is the same statement that was given  by the court in the first GPL compliance case,  so the VELTE versus sitecom of the Munich Tribunal of 2004.  And so we have, we really have a powerful weapon,  but as any powerful weapon,  we don't have to use it in a futile way.  We don't have, as I said before,  we don't have to use in any case,  compliance is a process,  and we already have some agreements  which can be used for describing this process,  but it is very important to do it  and be prepared for litigation as well,  which is a real complex topic.  So enforcement is not something that you have the communities  to be scared because we owe also to the copyright holders  we owe to the community.  We absolutely have to make people understand  that they have the rights and their rights can be protected.  Also because no one, not everyone is behaving correctly.  There are, of course, some bad guys, I would say.  I'm not going, I won't go against people  who violate the copyright licenses  just by mistake or by the fact that they misunderstood something.  But when the violation is,  when the violation is willful,  then we will go and try to get compliance.  And also just to conclude,  we have to think that maybe some of the arguments  against enforcement go and derive from a misconception.  Copyright is not a patent,  enforcing copyright is good.  Copyright is a central copyright.  We have to defend our rights.  Thank you.  Okay, so I think the format that we all agreed to  was each of us is going to do a seven-minute presentation,  which Giovanni volunteered to do first.  And then the people on the opposing side,  which would be Pam and I,  get to do cross-examination or rebuttal.  So you got to continue to stand up there while I cross-examine you.  But first you need to raise your right hand and say it after me.  So I got three minutes.  I have two questions.  One is not really a rebuttal.  One sort of is.  When you're talking about enforcement,  you got any thoughts on whether that's a preferable course  to take civil versus common law jurisdictions?  Since you're from a civil law jurisdiction,  I don't know much about that.  I'm a common law person.  Second, isn't it true that the GPL cooperation commitment  by excluding certain forms of enforcement  is not being beneficial?  Doesn't that essentially concede  that there are problems with enforcement?  Well, first question.  Of course, I will go for the civil law litigation.  But I have to point to one issue.  In several states, this kind of infringement may also be criminal.  And I would never go for the criminal prosecution.  I would say this would not be the right way to enforce it.  Second question.  Yes, you're totally right.  Enforcement has problems.  But you cannot rule out as a last resort.  That's the main point.  You cannot say we won't enforce whatsoever.  You have to find a good way to benefit the community.  No further questions.  So I am taking the contrary view to enforcement.  So first, I would like to say that the definition of enforcement  that I am working on means litigation.  It means bringing lawsuits.  I'm not talking about politely asking people to provide source code  or to comply with the license,  but taking an aggressive action of litigation against them.  So I'll start by saying Nelson Mandela said,  if you want to make peace with your enemy,  you have to work with your enemy.  Then he becomes your partner.  So then he becomes your partner.  That's the critical point here.  So free software has had wide adoption, widespread adoption.  The various sources that I have seen cited say between 50% and 100%  of all software distributed contains free software.  So if we measure the success of software as use of it,  then free software has been wildly successful.  However, the success of this software is only because of the collaborative nature  of the development model that's used for it.  So collaboration brings fresh ideas.  It brings enthusiasm when other people have waned.  It brings new insight into old problems.  So we need to have this continuous contribution,  contributor feedback loop going.  But collaboration, you can't have collaboration in an environment  where there's not trust.  And suing people for non-compliance will break all trust.  And it will push away people instead of welcoming them into the community.  They may abandon all use of free software altogether as a result of it.  And they may switch to proprietary software.  This switch like that would be something that the legal department would be  advocate very strongly for.  Legal departments are risk averse.  This is a different world.  And they're not happy with it.  So to this day, as a result of the busy box losses, which were more than 10 years ago,  they still strike fear into the heart of legal departments.  And as a result, there are companies that are so mistrustful of open source software  that the prospect of getting sued, that they forbid the use of the GPL altogether  in their environments.  So once you've created that mistrust, it is very hard to build that trust again.  It'll take years to rebuild that.  And what you're losing during all that time is all of those contributions  that could have been made by that entity that was sued.  So I'll also point out here that it's only commercial companies that get sued.  We're not talking about individual developers here who are out of compliance  who are being targeted.  So you're talking about targeting huge swath of developers, companies that have a lot of people  who may be contributors, but are going to be barred from contributing.  And from those companies who have the financial wherewithal  to support the development effort of free software.  So this is how you impair the growth of the software commons.  You're not feeding it. You're not fertilizing it. You're impairing it.  And litigation then also has a ripple effect beyond just this core project  that was the target of the litigation beyond just the non-compliant company  and beyond even just this one plaintiff who brought the lawsuit.  The community will lose value because of the potential contributions.  The project will lose value because of these potential contributions by the sued party.  But not only that, they may then not want to contribute to any other software projects that they use.  The project will lose potential users and contributors who might have joined  because of what the sued company brought to the table for that project,  its improvements and developments on the project.  And then even other members of the project may become so disenchanted  by the litigation and the lawsuit that they break ties with the project.  So you may lose developers as a result of this litigation.  And let's also just recognize that litigation is really a copy-left problem.  So Jacob Seenbeke hats in the United States was about the artistic license,  which is not a copy-left license, but it was a claim.  It was sort of an outlier because it was a patent infringement lawsuit  with this copyright claim tacked on.  But I've never heard of anyone complaining about non-compliance  and certainly not even complaining about non-compliance, much less suing on non-compliance  with the MIT, the BSD, or the Apache licenses.  So it's really just a copy-left problem.  And then also keep in mind that we're talking here about cases where the Ricalse-Trent-Sherer  has been approached and advised the non-compliance back to Giovanni's point  that it's not just, you know, we're suing people at the drop of a hat.  They have had, they have been notified, and they have time to come into compliance.  But for some reason they have chosen not to comply.  This is a choice on their part.  They have chosen to fight, and when they choose to fight, it's going to be a long and expensive one.  And this is going to be time and energy spent on litigation  that could be much better spent in other ways.  And it's also likely just going to get some orphan bit of software  that may not end up being valuable to the larger project as a whole  because it's not been part of the development process all along.  So is it really worth it?  Is it really worth it to go through this expensive, time-consuming litigation  just for maybe a loadable kernel module?  Is it really worth the candle to do that?  So, and there's even now less reason to sue for compliance than there was during the busybox years.  Now there are more pressures to contribute to free software.  Software is replacing hardware.  It's becoming much more critical.  It's replacing hardware.  It's replacing machines.  It's even replacing human acts in some cases, human intellect in some cases.  And so software malfunctions are no longer just an annoyance,  but everybody understands they're crucial, that there are security issues in software,  planes crash, identities are stolen because of problems with software.  Companies that embed software into their hardware projects are also now quite savvy  and they're asking for bill of materials from their supply chain.  They're no longer cavalier about the provenance and reliability of the software.  They now have come to understand that communal effort is the best way to go about  ensuring these problems don't arise, and when they do arise, that they are fixed quickly.  So market forces are driving compliance and litigation doesn't have to any longer.  So suing over compliance sends the opposite message of what we should be sending.  Messages of inclusiveness.  I do.  No, I still have the mic.  This time is working.  I won't get rid of it.  I will keep it.  Anyways, two questions.  First one, I like the way we lawyers play with words.  I broaden the scope of enforcement while you tie to litigation.  But if in this case, so would you consider it fair to just ask for compliance or issue  season disease letter, even if you don't call it enforcement?  That's the first question.  And the second second question is you mentioned hardware vendors.  Do you think and you said that now they are complying and they are they are or they are  mostly complying and they are also driven by the value of community.  Do you think this would have happened the same in the same way warranted for the litigation  case back in 10 years ago?  So to the first point on how to define compliance, no, I don't think there's anything wrong with  pursuing people for compliance.  And I think there are a lot of good players out there who are trying to comply.  And if you bring an error to their attention, they will be happy to correct that.  So that and that is why I define because I do think it's appropriate to ask people for  copies of source code.  As to the sort of embedded and the upstream and much more awareness, did it happen, you  know, it's hard to it's hard to it's hard to say what would have happened in the absence  of history.  So the busy box lawsuits happened.  But do I think that they play a big role in why there's compliance now?  No, I don't think so.  I think that what's happening is that manufacturers are being held responsible for the function  of their products.  And when those products malfunction, they need to turn to their upstream and learn that  they don't actually know what their distributor has provided them with.  They get a binary.  And so it's simply business pressures that have caused them to become much more aware  and much more cognizant and bring the hammer down much more on their distributors or,  I'm sorry, on their upstream manufacturers to make sure that they have it.  It's in their own self-interest to have it.  It's not because they need it's in their simply their liability self-interest, not just that  they need to provide the source code, make the source code available, but it's just in  their business interest to do it.  All right.  Pam, thank you for sharing your thoughts.  The problem with the argument about not doing enforcement though is that that kind of presupposes  that the community has a choice about whether or not enforcement is going to happen because  the reality is that enforcement happens.  This isn't a question of whether or not enforcement should happen.  It's going to happen.  We see it happening all the time.  You can narrow enforcement down to a definition like, oh, we're just talking about lawsuits  and litigation.  That's fine.  But those are actually going on.  And you don't need to be a member of the community to be involved in enforcement actions.  There are lawsuits that are going on right now between large corporations who are using  free software.  They got into a commercial dispute.  And what those licenses mean are part of that dispute.  Pam mentioned that this is that commercial actors, part of what's happening is like, well,  they need to be able to fix their products.  So they're going to deal with upstream, right?  Well, they have agreements with upstream.  They're going to enforce those agreements.  That's part of enforcement.  If that relationship goes bad, there's going to be litigation.  And all of the activities that she was okay with are often very commonly called pre-litigation  activities.  The reason why those work is because there is the threat of litigation there.  So even if you want to narrow the definition down to litigation, it is not possible to  say that you can just take that off the table and then all these other tools are going to  be possible.  The fact that litigation is possible is what makes the other tools work.  And we're seeing this happen already, right?  There are people out there doing enforcement.  We have trolls.  Everyone in this room is probably aware of the Patrick McCarty cases, right?  Like, that happened.  We can't tell people to not do that again.  All we can do is see what's happening on the courts and decide how we're going to react  to it.  One of those could be we could just sit by the side, right, and let trolls define how  it's going to play out in courts and let trolls define the playing field and hope that it  doesn't work out for them.  That's one possibility, but the trolls are going to keep trying.  They're going to keep looking for a way to use these licenses.  Companies are already doing this, right?  You have two large insurance companies a couple of years ago in the United States or a large  insurance company in a software manufacturer who didn't care about free software licenses.  They didn't even realize that free software licenses were involved until they got well  into litigation.  They said, oh, here's my commercial, here's my advantage in this lawsuit.  Now I'm going to turn this into an enforcement action.  Like, it happens.  And then we had somebody who produced the software getting notified, and they looked for the  opportunity to profit off of it.  They didn't do that in a principled way.  They saw an opportunity to make money off of it, and we don't know how that actually got  settled, but the fact that things got settled, it probably was not for the promise that people  were going to behave better, right?  They did it in secret.  There was no compliance coming out of any of the companies afterwards.  Somebody got paid for that.  Like, that is typically why you settle, is you give me this bunch of money here, and  I'll go away quietly, right?  On the other hand, there are some enforcement actions, and there are some community actors  who have principles around enforcement.  And what's wrong with setting up a system where we say, we as a community, the people who  actually believe in free software values, people who believe in user freedoms, are going to  enforce these licenses.  And if you don't listen to us, there's going to be consequences, but we are going to go  about this in a principled way, because we care about these values, right?  So you have organizations like the Free Software Foundation, Software Freedom Conservancy, who  have come up with community principles.  You have commercial actors like Red Hat, who's leading, you know, GPL cooperation agreements  on enforcement around the Linux kernel, right?  These are principled ways of doing enforcement.  It's not necessarily bad to do enforcement.  There might be good ways to do it, and there might be bad ways to do it, but just us as a  community opting out means that we're going to only leave the space open for the people who  are going to do it in the bad way, or at least in the way that it's not principled.  That doesn't care about free software values.  It doesn't care about user freedoms.  So we can't hide underneath the rock on this one.  This isn't a question of should we do it or should we not do it.  Someone's going to do it.  It's just a question of whether or not we give them the playing field there.  And really, there's lots of benefits to litigation, too, right?  There are companies out there.  There are commercial companies.  They know what the goals of litigation is.  It's to resolve a dispute.  Sometimes you need a third party to help you resolve a dispute.  What's wrong with that?  It doesn't actually mean that you hate the other person or you're scared of the other person,  or that you'll never work with that person again.  It just means that you had a dispute and you couldn't resolve it, and you need someone  to explain how it's going to be viewed by a third party.  So litigation actually has lots of benefits, right?  One of the benefits of litigation is that instead of people who are involved in the  community, who have beliefs about how these licenses should work, who have beliefs about  what the intentions of licenses should be, we can learn from people who weren't involved  in the community, who weren't involved in drafting licenses, what the words in the paper  mean to others, right?  There's an opportunity for us to learn, right?  This is about, this is some way as large as proofreading, right?  When you go in front of a judge, you ask them and say, well, this is what I think the  GPL means.  This is what I think the MIT license means.  Do you agree? Because this is what I wanted this license to do, and if the judge disagrees,  well, you have a problem, right?  It's not fair for you to go around saying, well, I intended this, I intended this when  other people are reading licenses say, but that's not what the license says, right?  So we can change what we're looking for in those pre-litigation activities, what kind  of compliance we're looking for on those licenses, and we can write new licenses, right?  New licenses that will achieve the results that we actually want to happen.  And litigation has happened in the past.  I think Pam conceded this, right?  Free software is being used more now than it ever has been, and we've already had litigation  on it, right?  In the early 2000s, we had some high-profile litigation cases.  The busybox cases were already mentioned.  However you feel about those cases, they happened, and it didn't actually stop companies from  adopting free software, right?  In the early 2000s, when those cases were being brought in and enforced, and other ones too,  GPLviolations.org, we had large commercial act there saying calling these licenses  virals in cancers.  Those companies aren't doing that anymore, right?  We also had litigation out there, where the question was, were these licenses even enforceable,  right?  Well, we had litigation that was resolved.  Every company knows they're enforceable now.  So, in conclusion, we don't have a choice.  Companies aren't scared of it.  We know that.  So, we might as well do it in a principled way so we can get the benefits of it.  So, let me start by saying I'm in a disadvantage here because Mark and I argued on the same  side of this a year ago at Copy Left Com.  But let me challenge some of the things you've said.  So, one of the pressures that creates compliance is people.  Can you move more to the center?  Yes, certainly.  Sorry.  One of the things that encourages compliance is that people like to abide by their contracts.  So, simply behavior of a...  But people don't go around intentionally.  They do intentionally breach contracts, but they tend not to.  People tend to stick to their contracts.  So, just the fact that there is an agreement, people...  It's not just the litigation.  It's not just the threat of litigation.  It's not just the threat of a breach that makes you not breach a contract.  It is you as an upstanding person will abide by your obligations under a contract.  So, it's not just litigation that is that sort of sword.  One other...  You've also ignored that there is a vehicle for these other lawsuits that are brought by  the enterprises of the world, which is the opportunity to participate as an amicus brief,  to come in and step and educate the court on these matters.  So, it may not be necessary for the free software community to bring the lawsuits,  but they can participate to inform and educate the court on the issues of amicus...  Through the vehicle of amicus briefs.  And I totally forgot what my third point was.  Whatever your last point was, it was hard to keep in my head as I was doing this.  Seven minutes is a long time.  All right.  Well, whatever your third point was, I think whatever I said has already rebutted it.  So, to your first point though, that people like to abide by their contracts,  I think some people do.  There are definitely some people in the world who view relationships with people that they have  through and they keep their word and the contracts reflect that.  But there are also people whose business model is to try to get every single edge.  And they will go about breaching contracts if they think they can get away with it.  But at the end of the day, we're also talking about contracts, you know, legally enforceable agreements.  And, I mean, around the world, can anyone have an idea how many lawsuits are initiated every day  for breach of contract?  Part of what makes contracts meaningful is that people know that they're enforceable.  There's a big difference between saying, well, I will promise that I will do this  and I'm just going to say that to you over the phone and writing down in a piece of paper  so it's objectively visible to someone else who can come in with enforcement power  and actually ask you to do it.  So it's part of some of the missions.  Can I just actually, I have my third thought that I just, we're running, the clock is running, so I just don't.  Can I see a show of hands of someone who has been sued  and has warm and fuzzy feelings toward the entity that sued them?  Oh, we got one. We have one person.  So that was my final point was you said, oh, it's just business. It's just business.  I think that's an easy, I think that's an easy out to say it's a business,  but I have never worked at a company that was subject to a lawsuit  that didn't just have hateful thoughts towards the other party.  So.  Yeah, yeah.  So I'm the second negative here on enforcement and I'm going to one up Giovanni and Pam by having two quotes.  It's an old debate.  You can have mine.  The first is from a Supreme Court Justice in the United States about 100 years ago.  He said, the life of the law has not been logic.  It is experienced.  The second is if it ain't broke, don't fix it.  I'll explain both of those in a little bit of detail here.  So the life of the law is not logic.  It has been experienced.  You can interpret that a lot of different ways, but to me, one way of to interpret that is we should not think of the legal system as something that's a logical system where we can select the inputs.  It will go through a systematic process of analysis that's predictable and that will get us a result that we like.  In fact, it's quite contrary to that.  Ideally, it would be logical like that, but it does not work that way in practice more often than not.  Or I should say somewhat frequently.  I'll give you two examples of this from the free and open source software licensing world or actually three examples.  The first is Jacobson v. Katzer, which Pam talked a little bit about.  I think most of us has probably heard about that and remember that, wow, that's one of the first cases, if not the first case, that validated the free and open source licensing model in a court decision and said that the authors have the ability to pursue somebody for violation of the terms of the license.  What a lot of people may not remember, although those of us who have been doing this for a while do remember, is that that case was really messed up for a long time.  The input into the system was not good.  In other words, the two parties that were disputing in that case were not optimal.  Their representatives perhaps may not have been advocating positions that we thought would have been good to get the result that we wanted.  And in the, at least in the district court, we got a decision that was contrary what I think most people would prefer to have an interpretation of how free and open source software licensing works.  It was through the efforts of a lot of people putting themselves in front of that litigation and lending assistance to the parties that we did get an appeals court decision that is now useful to all of us in understanding the licenses that we use.  So that is a first example of a suboptimal system processing that could have gone the wrong way, but for some advantageous actions that were taken and in the end a court that saw things the way that we think they should be seen.  By the way, the court that saw it that way, the exact same court that decided that Oracle should win with Google.  So you take what you get from these courts. Sometimes they find things the way that you like.  A lot of times they find things the way that you don't like. That's part of the system.  Two other examples, a little bit more recent from outside the United States.  So McCarty versus Genia Tech in Germany and Helvig versus VMware in Germany.  Now I don't know if anybody's read about these cases, either the decisions or the write-ups of them.  There's a good write-up in Joltz, the journal that everybody knows I promote regularly every time I open my mouth.  There's a good article on the Genia Tech case in Joltz from about a year ago describing how that went down.  There has not yet been an article. If somebody's willing to write one on the VMware case, we'd be interested in publishing it.  But the bottom line of those cases is the courts found or set what appeared to be fairly difficult to meet standards of proof for whether you had copyright rights  and that you could assert against somebody that you believe to be an infringer. That is something I think that is problematic for people who want to think about enforcement.  If the tests are hard, enforcement gets hard. And worse, if the output from the court is detrimental, there's a negative feedback loop there.  The next court takes a look at that and says, well, the test is hard. We should make this hard for people who come into the court and want to enforce.  That's why when you go to the system of enforcement through litigation, you are taking a risk that the inputs will be bad, the system processing will not be predictable,  the outputs will be unfortunate, and there may be a negative feedback loop that makes things worse.  So litigation has or enforcement has its downsides. We need to consider that. And we need to consider that cases in the future may come to conclusions about the licenses that we like  that may be detrimental to the way that we want the community of developers to work.  I'm not going to steal Van's thunder, but the Google versus Oracle case is another example where we need to watch that case carefully  because it may indeed have some disadvantageous effects on the way people are thinking about how these licenses work.  So I'll leave that at that. Now, if it ain't broke, don't fix it. We've got a big group of people in this room.  I think most of the people here probably owe their jobs to non-enforcement modes of compliance, and I think we should continue to have people encouraged to work in that way.  Okay, so now you get to cross-examine me.  I think we're going with two questions, or at least two questions that we can remember. I had three, but I actually forgot mine, third one as well.  All right, so my first question is, so you said that that could have been a disaster until a lot of people engaged and then we got a positive result.  Isn't that an argument for an engaging enforcement because we got a positive result when the people who cared about these licenses showed up to help educate the courts about how the licenses work?  And then my second question is going to be, you said...  As long as the system works in the way that you want it to, that's the right result. Don't assume that the system will always work that way.  That's my cautionary note.  My second question then is, you kind of implied that we shouldn't do enforcement because sometimes we might get negative results, and right now we're getting what we want because there's still the threat of enforcement.  But if we do too much enforcement, we might suddenly find out there is no threat of enforcement. Would we still get what we want if we take enforcement off the table?  So I'm going to echo what Pam said, which is I'm not sure that we can say for certain that enforcement in the past has resulted in compliance in the present.  Nevertheless, I think that the way that's most consistent with the way the Free and Open Source Software movement works is to go to conferences, set up compliance programs, talk, train, develop systems, internal systems, develop tools in a way so that everybody can benefit and that everybody can run their operations in a way.  That is compliant and is consistent with the philosophy of the movement. I would advocate, and I hope most of you who owe your jobs to that would also advocate that that's the best way to get things done.  Okay, so we have... I'll rest my case. Okay, now we have... I think we have ten minutes for questions.  Yeah, we combined the two. Questions?  Yes, we should. Yes, yes. So it was very interesting hearing the positions about whether or not enforcement of licenses is required. I'm curious to know if you collectively would agree that licenses themselves are required, not necessarily, not considering enforcement, just the licenses.  Well, in an ideal world, licenses would not be required. Everybody would operate in a community-appropriate way. I would say that a license, and I think this is the Free Software Foundation has said this, the license is the constitution of the movement.  So it's one way of outlining expectations for everybody who's operating in the space, whether or not you actually actuate that as a legal document versus a set of principles. You know, that goes into this enforcement question.  I think licenses are required. And one, that just happens to be how the legal regime that we work under works. If you don't have a license to use someone else's copyrighted work, you're not allowed to use it.  However, you articulate what that license is, whether it's through, you know, a passive acquiescence to someone's use or a casual conversation or a written document, licenses technically have to be granted. The advantage of written licenses, which might be going more to your question, is that it adds clarity and certainty.  It can be objective and it reduces misunderstandings. And I think it does go to McCoy's point of, right, these licenses in many respects do operate as kind of a constitution for projects or for the movement.  But if they're not clear, we need a way of bringing about clarity about it. And not everybody is going to always agree. And you just need to find a way of getting to clarity about what the relationship is.  Yeah, I would agree with that with sort of the only other, only thing to say in addition to that is that then if there were not written licenses, then the troll problem would be much, much broader.  So we see this happening all the time in collaborative communities that work with unwritten rules is all of a sudden there's a shift and someone doesn't follow the unwritten rules and creates a lot of disruption.  So the license acts as those written rules so that everybody has a common understanding of what's acceptable behavior.  Yeah.  I just want to point out that if you don't write any rules or so if you don't have licenses, lawyers will benefit greatly because we will have a total incentive.  And coming on my point, if the license is our constitution, then we have to fight for it.  So my question is especially for those who oppose enforcement, does the time ever get better to do enforcement?  Can we say maybe in 20 years some terms will be clearer in the industry so the courts will more easily get the right output from a certain input, for instance, or is the decision, let's say, forever?  So we will not do it even in a cent or from now.  So I think in your example actually would be run counter to enforcement if there were a court out there, the world court were to say here is how GPL works for every provision in it.  Everybody knows the rules.  There's no reason why anybody wouldn't follow that. So I think in that case it's less likely to be the subject of enforcement.  The ambiguity tends to allow people to raise questions about what the licenses mean.  So whether 20 years from now enforcement will be good or not good, I don't know, that's hard to predict. It really depends on a lot of different circumstances.  But I'm not so sure that more court decisions will, I think more clarity in court decisions will put the roadmap out for everybody on how they need to operate.  Do you want to respond to a family?  So this is a two-parter. The first is, do you believe that proprietary licenses are, there is a culture of the expectation of enforcement of proprietary licenses?  And number two, if you agree with that, why do you believe free and open source licenses should be any different?  That's for all actually.  Start with the, yeah.  I think there probably is an expectation that proprietary licenses will be enforced more readily than free software licenses.  I suspect it's probably because we just think companies are willing to be more litigious and free software is made by individuals who are less sophisticated when it comes to litigation and commercial dealings,  which I don't think is actually, that's just not true, right? Like free software is produced by large companies that are very sophisticated.  So that expectation might be out there. At the same time, too, I also think that the expectation that proprietary licenses will be enforced, they're not enforced quickly.  It's not like everyone who bought proprietary software got sued by the manufacturer, nor is it true that they were all in compliance.  I think the fact that there's that expectation of differences is a problem.  And to a disadvantage of the community though, right, is that somehow the community should be above doing litigation, but it's okay for companies to do it on their proprietary licenses.  Why should we give the proprietary license manufacturers that advantage?  I actually disagree with the premise that there's more enforcement going on in proprietary licenses.  I think, yeah, McCoy's nodding his head. I think that the companies that are doing enforcement work on copyright licenses, the very last thing they want to do is sue a customer,  and they will only do it if it's already a lost cause, and there's a lot of money involved that can be recouped.  But really, they would much rather have a paying customer who's paying a bit more because they've convinced them that they're non-compliance really means they should be coughing up a little more money than they are now,  but they much rather keep that customer and write off the loss rather than lose the customer entirely and lose all income from that customer.  So I don't think that proprietary companies have a culture of enforcement. I think it is just the opposite.  McCoy, do you want to answer? No, no, I agree with Pam.  I agree with Max.  I'm going to agree with Pam too.  Thanks for all that. Do you think that enforcement litigation, as you narrow it down, is it working on licensed by licensed case?  So if in the future that we said that maybe in 20 years time some court has already defined all the points of GPL,  but maybe then we should all have moved to another license which is still ambiguous by then.  Or do you think that results of enforcement and litigation apply to everything?  Is that for one side, one particular side of the other?  Yes.  Anybody want to take that?  So litigations over, let's say, GPL2 may have an effect on future licenses, GPL4, or whatever,  because in many cases these litigations, the courts are setting out general principles and not necessarily limiting the decision to the exact text.  That's why Oracle v. Google is an important case to things other than Java.  And that's why people care about it, right, because they anticipate the people who are arguing about it  are anticipate that it's going to set the rules for how we interpret what's copyrightable in software generically.  So I think that answers your question.  Okay. We have time for more responses.  Just a very quick comment on this.  I mean, every decision may have an impact on future licenses, and of course it depends on the license being litigated.  Theoretically, you could enforce also a B-Roy license, but I don't think that enforcing a B-Roy license may have an impact on future licensing.  Okay, so I know, but I don't think we have time for it, because there's one.  Okay, so what we need to do is for your debaters, raise your hand if you mostly agree with the position that you took in the debate.  Raise your hand.  Oh, if you don't want to. If you don't want to, raise your hand if you don't want to say whether you do or you don't.  It doesn't matter. You know what? You all did an excellent job.  So what? Weird rope? So let's applause. Yeah, we will.  Okay, now we are not having formal judging of these debates.  However, what I want to know is, so we stay up here.  Okay, so what I want to know is for the people against enforcement, raise your hand if they brought up something you hadn't thought about before.  Okay, and those for enforcement, raise your hand if they brought up something you hadn't thought about before.  Okay.  Now, raise your hand.  Raise your hand if you changed your mind due to something that was said by anyone on this debate.  Have you changed your mind based on this debate at all?  So like quite a few people.  Yeah.  Anyway, so let's give these debaters another...  The first one is doing it amazing.  Thank you.
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So our first debate is should false licenses be enforced at all? And we have Pamela Chastick, Giovanni Gauders, Mark Jones, and McCoy Smith. And who gets to go first? Giovanni. So we're still struggling with the projector. You don't need it. So let me give you a... Oh no, you have to give me a tongue no matter what we need that slide up. Yeah, yeah. Just one... Sit this side. Okay, good. Yes. Well, can I start? Yes. I'm sorry, we need that projector up now the whole time. Because we need that message that's on that paper to be up every time someone is speaking. So... It's not a paper. Basically, it's going to be reported to give me things we don't know. We need that projector up. Okay. It's more important than the slides right now. Okay. Wait, no. How do we get that projector? I'll do it. Where's the message? I'm going to use it to the right of the table. Yeah. I'll just put it on the left. I will do it. I'll just put it on the left. Okay. Wow. Oh, thank you. Thank you. It's a must. It's a must. We're taking attendance first. Okay. Okay, can we start? Are we good? No. Okay. Okay. Shall we start? Okay. Well, good morning everyone. Every time I have to talk at first, then something is going to happen. Last time I talked here, we went through three mics. This time, just the screen went out. So I don't know whether it's a coincidence or that's a problem we'll be. But anyways, so I have to talk about enforcement and why enforcement is good. Or what are the main points? And where can I start? Well, where can I start? I can start maybe by quoting some very famous quote by a well-known author, Shakespeare, who says, and it's very famous, the first thing we do, let's kill all the lawyers. Well, some of you may find it amusing, but on the other hand, it won't change the fact that controversies will happen. And therefore, whether we want or not, we need enforcement. That's the main point. And first of all, we have to define what we mean by enforcement. Is enforcement litigation? Is enforcement only when you go to court, only when you really bring your cause to the tribunal, or is just not a gentle nudge, but maybe asking for compliance, asking politely, and then asking maybe with a louder voice. Is this enforcement? I think it is. I think that's enforcement. And I think that this vision is upheld also by the principle of community-oriented enforcement, but also by the GPL cooperation commitment. This is another example. It doesn't rule out enforcement. It says that even if the scope is much less broad than the principle of community-oriented, sorry, oriented enforcement for GPL compliance, anyways, enforcement is still a possibility. And also, the Linux kernel enforcement statement does not deny enforcement, not only because it is in the name itself of the statement, but also because it only describes that enforcement has to be made, it has to be defined in scope. The scope of enforcement is not personal gain. The scope of enforcement is not copyright trolling. The scope of enforcement, it doesn't have to have a negative impact on the health and growth of software ecosystem. I'm quoting from the Linux kernel enforcement system. And so it is, as I pointed out, a necessary evil, because let's, I do just, let me do a personal example. Under Italian law, you may tell from my accent that I'm not exactly British, but when the code of, the code of public of digital administration came into force in Italy in 2006, it was a fantastic piece of legislation with fantastic principle, digital rise for the citizens, but there were no consequences at all for any violation. So an old professor of mine told me, okay, yes, but this is very fun, but what happens if you violated it? Well, nothing. Nothing, you cannot force the public administration, you don't have any cause of action, and so guess what, when the code of public administration got some momentum, when they introduced the consequences, when they introduced a way to force public administration to comply with it. So I'm not telling that we have to enforce every single violation, absolutely not. I'm not telling that we have to enforce even the most common or maybe just trivial violation. And I just have to tell that we cannot, we cannot deprive ourselves of the fact that we have to defend our freedoms. Also because a recent case of the European Court of Justice stated that when you breach a license agreement, you are in breach of copyright, you are in breach, you are availed of the same remedies you have for copyright infringement. And this, curiously enough, is the same statement that was given by the court in the first GPL compliance case, so the VELTE versus sitecom of the Munich Tribunal of 2004. And so we have, we really have a powerful weapon, but as any powerful weapon, we don't have to use it in a futile way. We don't have, as I said before, we don't have to use in any case, compliance is a process, and we already have some agreements which can be used for describing this process, but it is very important to do it and be prepared for litigation as well, which is a real complex topic. So enforcement is not something that you have the communities to be scared because we owe also to the copyright holders we owe to the community. We absolutely have to make people understand that they have the rights and their rights can be protected. Also because no one, not everyone is behaving correctly. There are, of course, some bad guys, I would say. I'm not going, I won't go against people who violate the copyright licenses just by mistake or by the fact that they misunderstood something. But when the violation is, when the violation is willful, then we will go and try to get compliance. And also just to conclude, we have to think that maybe some of the arguments against enforcement go and derive from a misconception. Copyright is not a patent, enforcing copyright is good. Copyright is a central copyright. We have to defend our rights. Thank you. Okay, so I think the format that we all agreed to was each of us is going to do a seven-minute presentation, which Giovanni volunteered to do first. And then the people on the opposing side, which would be Pam and I, get to do cross-examination or rebuttal. So you got to continue to stand up there while I cross-examine you. But first you need to raise your right hand and say it after me. So I got three minutes. I have two questions. One is not really a rebuttal. One sort of is. When you're talking about enforcement, you got any thoughts on whether that's a preferable course to take civil versus common law jurisdictions? Since you're from a civil law jurisdiction, I don't know much about that. I'm a common law person. Second, isn't it true that the GPL cooperation commitment by excluding certain forms of enforcement is not being beneficial? Doesn't that essentially concede that there are problems with enforcement? Well, first question. Of course, I will go for the civil law litigation. But I have to point to one issue. In several states, this kind of infringement may also be criminal. And I would never go for the criminal prosecution. I would say this would not be the right way to enforce it. Second question. Yes, you're totally right. Enforcement has problems. But you cannot rule out as a last resort. That's the main point. You cannot say we won't enforce whatsoever. You have to find a good way to benefit the community. No further questions. So I am taking the contrary view to enforcement. So first, I would like to say that the definition of enforcement that I am working on means litigation. It means bringing lawsuits. I'm not talking about politely asking people to provide source code or to comply with the license, but taking an aggressive action of litigation against them. So I'll start by saying Nelson Mandela said, if you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner. So then he becomes your partner. That's the critical point here. So free software has had wide adoption, widespread adoption. The various sources that I have seen cited say between 50% and 100% of all software distributed contains free software. So if we measure the success of software as use of it, then free software has been wildly successful. However, the success of this software is only because of the collaborative nature of the development model that's used for it. So collaboration brings fresh ideas. It brings enthusiasm when other people have waned. It brings new insight into old problems. So we need to have this continuous contribution, contributor feedback loop going. But collaboration, you can't have collaboration in an environment where there's not trust. And suing people for non-compliance will break all trust. And it will push away people instead of welcoming them into the community. They may abandon all use of free software altogether as a result of it. And they may switch to proprietary software. This switch like that would be something that the legal department would be advocate very strongly for. Legal departments are risk averse. This is a different world. And they're not happy with it. So to this day, as a result of the busy box losses, which were more than 10 years ago, they still strike fear into the heart of legal departments. And as a result, there are companies that are so mistrustful of open source software that the prospect of getting sued, that they forbid the use of the GPL altogether in their environments. So once you've created that mistrust, it is very hard to build that trust again. It'll take years to rebuild that. And what you're losing during all that time is all of those contributions that could have been made by that entity that was sued. So I'll also point out here that it's only commercial companies that get sued. We're not talking about individual developers here who are out of compliance who are being targeted. So you're talking about targeting huge swath of developers, companies that have a lot of people who may be contributors, but are going to be barred from contributing. And from those companies who have the financial wherewithal to support the development effort of free software. So this is how you impair the growth of the software commons. You're not feeding it. You're not fertilizing it. You're impairing it. And litigation then also has a ripple effect beyond just this core project that was the target of the litigation beyond just the non-compliant company and beyond even just this one plaintiff who brought the lawsuit. The community will lose value because of the potential contributions. The project will lose value because of these potential contributions by the sued party. But not only that, they may then not want to contribute to any other software projects that they use. The project will lose potential users and contributors who might have joined because of what the sued company brought to the table for that project, its improvements and developments on the project. And then even other members of the project may become so disenchanted by the litigation and the lawsuit that they break ties with the project. So you may lose developers as a result of this litigation. And let's also just recognize that litigation is really a copy-left problem. So Jacob Seenbeke hats in the United States was about the artistic license, which is not a copy-left license, but it was a claim. It was sort of an outlier because it was a patent infringement lawsuit with this copyright claim tacked on. But I've never heard of anyone complaining about non-compliance and certainly not even complaining about non-compliance, much less suing on non-compliance with the MIT, the BSD, or the Apache licenses. So it's really just a copy-left problem. And then also keep in mind that we're talking here about cases where the Ricalse-Trent-Sherer has been approached and advised the non-compliance back to Giovanni's point that it's not just, you know, we're suing people at the drop of a hat. They have had, they have been notified, and they have time to come into compliance. But for some reason they have chosen not to comply. This is a choice on their part. They have chosen to fight, and when they choose to fight, it's going to be a long and expensive one. And this is going to be time and energy spent on litigation that could be much better spent in other ways. And it's also likely just going to get some orphan bit of software that may not end up being valuable to the larger project as a whole because it's not been part of the development process all along. So is it really worth it? Is it really worth it to go through this expensive, time-consuming litigation just for maybe a loadable kernel module? Is it really worth the candle to do that? So, and there's even now less reason to sue for compliance than there was during the busybox years. Now there are more pressures to contribute to free software. Software is replacing hardware. It's becoming much more critical. It's replacing hardware. It's replacing machines. It's even replacing human acts in some cases, human intellect in some cases. And so software malfunctions are no longer just an annoyance, but everybody understands they're crucial, that there are security issues in software, planes crash, identities are stolen because of problems with software. Companies that embed software into their hardware projects are also now quite savvy and they're asking for bill of materials from their supply chain. They're no longer cavalier about the provenance and reliability of the software. They now have come to understand that communal effort is the best way to go about ensuring these problems don't arise, and when they do arise, that they are fixed quickly. So market forces are driving compliance and litigation doesn't have to any longer. So suing over compliance sends the opposite message of what we should be sending. Messages of inclusiveness. I do. No, I still have the mic. This time is working. I won't get rid of it. I will keep it. Anyways, two questions. First one, I like the way we lawyers play with words. I broaden the scope of enforcement while you tie to litigation. But if in this case, so would you consider it fair to just ask for compliance or issue season disease letter, even if you don't call it enforcement? That's the first question. And the second second question is you mentioned hardware vendors. Do you think and you said that now they are complying and they are they are or they are mostly complying and they are also driven by the value of community. Do you think this would have happened the same in the same way warranted for the litigation case back in 10 years ago? So to the first point on how to define compliance, no, I don't think there's anything wrong with pursuing people for compliance. And I think there are a lot of good players out there who are trying to comply. And if you bring an error to their attention, they will be happy to correct that. So that and that is why I define because I do think it's appropriate to ask people for copies of source code. As to the sort of embedded and the upstream and much more awareness, did it happen, you know, it's hard to it's hard to it's hard to say what would have happened in the absence of history. So the busy box lawsuits happened. But do I think that they play a big role in why there's compliance now? No, I don't think so. I think that what's happening is that manufacturers are being held responsible for the function of their products. And when those products malfunction, they need to turn to their upstream and learn that they don't actually know what their distributor has provided them with. They get a binary. And so it's simply business pressures that have caused them to become much more aware and much more cognizant and bring the hammer down much more on their distributors or, I'm sorry, on their upstream manufacturers to make sure that they have it. It's in their own self-interest to have it. It's not because they need it's in their simply their liability self-interest, not just that they need to provide the source code, make the source code available, but it's just in their business interest to do it. All right. Pam, thank you for sharing your thoughts. The problem with the argument about not doing enforcement though is that that kind of presupposes that the community has a choice about whether or not enforcement is going to happen because the reality is that enforcement happens. This isn't a question of whether or not enforcement should happen. It's going to happen. We see it happening all the time. You can narrow enforcement down to a definition like, oh, we're just talking about lawsuits and litigation. That's fine. But those are actually going on. And you don't need to be a member of the community to be involved in enforcement actions. There are lawsuits that are going on right now between large corporations who are using free software. They got into a commercial dispute. And what those licenses mean are part of that dispute. Pam mentioned that this is that commercial actors, part of what's happening is like, well, they need to be able to fix their products. So they're going to deal with upstream, right? Well, they have agreements with upstream. They're going to enforce those agreements. That's part of enforcement. If that relationship goes bad, there's going to be litigation. And all of the activities that she was okay with are often very commonly called pre-litigation activities. The reason why those work is because there is the threat of litigation there. So even if you want to narrow the definition down to litigation, it is not possible to say that you can just take that off the table and then all these other tools are going to be possible. The fact that litigation is possible is what makes the other tools work. And we're seeing this happen already, right? There are people out there doing enforcement. We have trolls. Everyone in this room is probably aware of the Patrick McCarty cases, right? Like, that happened. We can't tell people to not do that again. All we can do is see what's happening on the courts and decide how we're going to react to it. One of those could be we could just sit by the side, right, and let trolls define how it's going to play out in courts and let trolls define the playing field and hope that it doesn't work out for them. That's one possibility, but the trolls are going to keep trying. They're going to keep looking for a way to use these licenses. Companies are already doing this, right? You have two large insurance companies a couple of years ago in the United States or a large insurance company in a software manufacturer who didn't care about free software licenses. They didn't even realize that free software licenses were involved until they got well into litigation. They said, oh, here's my commercial, here's my advantage in this lawsuit. Now I'm going to turn this into an enforcement action. Like, it happens. And then we had somebody who produced the software getting notified, and they looked for the opportunity to profit off of it. They didn't do that in a principled way. They saw an opportunity to make money off of it, and we don't know how that actually got settled, but the fact that things got settled, it probably was not for the promise that people were going to behave better, right? They did it in secret. There was no compliance coming out of any of the companies afterwards. Somebody got paid for that. Like, that is typically why you settle, is you give me this bunch of money here, and I'll go away quietly, right? On the other hand, there are some enforcement actions, and there are some community actors who have principles around enforcement. And what's wrong with setting up a system where we say, we as a community, the people who actually believe in free software values, people who believe in user freedoms, are going to enforce these licenses. And if you don't listen to us, there's going to be consequences, but we are going to go about this in a principled way, because we care about these values, right? So you have organizations like the Free Software Foundation, Software Freedom Conservancy, who have come up with community principles. You have commercial actors like Red Hat, who's leading, you know, GPL cooperation agreements on enforcement around the Linux kernel, right? These are principled ways of doing enforcement. It's not necessarily bad to do enforcement. There might be good ways to do it, and there might be bad ways to do it, but just us as a community opting out means that we're going to only leave the space open for the people who are going to do it in the bad way, or at least in the way that it's not principled. That doesn't care about free software values. It doesn't care about user freedoms. So we can't hide underneath the rock on this one. This isn't a question of should we do it or should we not do it. Someone's going to do it. It's just a question of whether or not we give them the playing field there. And really, there's lots of benefits to litigation, too, right? There are companies out there. There are commercial companies. They know what the goals of litigation is. It's to resolve a dispute. Sometimes you need a third party to help you resolve a dispute. What's wrong with that? It doesn't actually mean that you hate the other person or you're scared of the other person, or that you'll never work with that person again. It just means that you had a dispute and you couldn't resolve it, and you need someone to explain how it's going to be viewed by a third party. So litigation actually has lots of benefits, right? One of the benefits of litigation is that instead of people who are involved in the community, who have beliefs about how these licenses should work, who have beliefs about what the intentions of licenses should be, we can learn from people who weren't involved in the community, who weren't involved in drafting licenses, what the words in the paper mean to others, right? There's an opportunity for us to learn, right? This is about, this is some way as large as proofreading, right? When you go in front of a judge, you ask them and say, well, this is what I think the GPL means. This is what I think the MIT license means. Do you agree? Because this is what I wanted this license to do, and if the judge disagrees, well, you have a problem, right? It's not fair for you to go around saying, well, I intended this, I intended this when other people are reading licenses say, but that's not what the license says, right? So we can change what we're looking for in those pre-litigation activities, what kind of compliance we're looking for on those licenses, and we can write new licenses, right? New licenses that will achieve the results that we actually want to happen. And litigation has happened in the past. I think Pam conceded this, right? Free software is being used more now than it ever has been, and we've already had litigation on it, right? In the early 2000s, we had some high-profile litigation cases. The busybox cases were already mentioned. However you feel about those cases, they happened, and it didn't actually stop companies from adopting free software, right? In the early 2000s, when those cases were being brought in and enforced, and other ones too, GPLviolations.org, we had large commercial act there saying calling these licenses virals in cancers. Those companies aren't doing that anymore, right? We also had litigation out there, where the question was, were these licenses even enforceable, right? Well, we had litigation that was resolved. Every company knows they're enforceable now. So, in conclusion, we don't have a choice. Companies aren't scared of it. We know that. So, we might as well do it in a principled way so we can get the benefits of it. So, let me start by saying I'm in a disadvantage here because Mark and I argued on the same side of this a year ago at Copy Left Com. But let me challenge some of the things you've said. So, one of the pressures that creates compliance is people. Can you move more to the center? Yes, certainly. Sorry. One of the things that encourages compliance is that people like to abide by their contracts. So, simply behavior of a... But people don't go around intentionally. They do intentionally breach contracts, but they tend not to. People tend to stick to their contracts. So, just the fact that there is an agreement, people... It's not just the litigation. It's not just the threat of litigation. It's not just the threat of a breach that makes you not breach a contract. It is you as an upstanding person will abide by your obligations under a contract. So, it's not just litigation that is that sort of sword. One other... You've also ignored that there is a vehicle for these other lawsuits that are brought by the enterprises of the world, which is the opportunity to participate as an amicus brief, to come in and step and educate the court on these matters. So, it may not be necessary for the free software community to bring the lawsuits, but they can participate to inform and educate the court on the issues of amicus... Through the vehicle of amicus briefs. And I totally forgot what my third point was. Whatever your last point was, it was hard to keep in my head as I was doing this. Seven minutes is a long time. All right. Well, whatever your third point was, I think whatever I said has already rebutted it. So, to your first point though, that people like to abide by their contracts, I think some people do. There are definitely some people in the world who view relationships with people that they have through and they keep their word and the contracts reflect that. But there are also people whose business model is to try to get every single edge. And they will go about breaching contracts if they think they can get away with it. But at the end of the day, we're also talking about contracts, you know, legally enforceable agreements. And, I mean, around the world, can anyone have an idea how many lawsuits are initiated every day for breach of contract? Part of what makes contracts meaningful is that people know that they're enforceable. There's a big difference between saying, well, I will promise that I will do this and I'm just going to say that to you over the phone and writing down in a piece of paper so it's objectively visible to someone else who can come in with enforcement power and actually ask you to do it. So it's part of some of the missions. Can I just actually, I have my third thought that I just, we're running, the clock is running, so I just don't. Can I see a show of hands of someone who has been sued and has warm and fuzzy feelings toward the entity that sued them? Oh, we got one. We have one person. So that was my final point was you said, oh, it's just business. It's just business. I think that's an easy, I think that's an easy out to say it's a business, but I have never worked at a company that was subject to a lawsuit that didn't just have hateful thoughts towards the other party. So. Yeah, yeah. So I'm the second negative here on enforcement and I'm going to one up Giovanni and Pam by having two quotes. It's an old debate. You can have mine. The first is from a Supreme Court Justice in the United States about 100 years ago. He said, the life of the law has not been logic. It is experienced. The second is if it ain't broke, don't fix it. I'll explain both of those in a little bit of detail here. So the life of the law is not logic. It has been experienced. You can interpret that a lot of different ways, but to me, one way of to interpret that is we should not think of the legal system as something that's a logical system where we can select the inputs. It will go through a systematic process of analysis that's predictable and that will get us a result that we like. In fact, it's quite contrary to that. Ideally, it would be logical like that, but it does not work that way in practice more often than not. Or I should say somewhat frequently. I'll give you two examples of this from the free and open source software licensing world or actually three examples. The first is Jacobson v. Katzer, which Pam talked a little bit about. I think most of us has probably heard about that and remember that, wow, that's one of the first cases, if not the first case, that validated the free and open source licensing model in a court decision and said that the authors have the ability to pursue somebody for violation of the terms of the license. What a lot of people may not remember, although those of us who have been doing this for a while do remember, is that that case was really messed up for a long time. The input into the system was not good. In other words, the two parties that were disputing in that case were not optimal. Their representatives perhaps may not have been advocating positions that we thought would have been good to get the result that we wanted. And in the, at least in the district court, we got a decision that was contrary what I think most people would prefer to have an interpretation of how free and open source software licensing works. It was through the efforts of a lot of people putting themselves in front of that litigation and lending assistance to the parties that we did get an appeals court decision that is now useful to all of us in understanding the licenses that we use. So that is a first example of a suboptimal system processing that could have gone the wrong way, but for some advantageous actions that were taken and in the end a court that saw things the way that we think they should be seen. By the way, the court that saw it that way, the exact same court that decided that Oracle should win with Google. So you take what you get from these courts. Sometimes they find things the way that you like. A lot of times they find things the way that you don't like. That's part of the system. Two other examples, a little bit more recent from outside the United States. So McCarty versus Genia Tech in Germany and Helvig versus VMware in Germany. Now I don't know if anybody's read about these cases, either the decisions or the write-ups of them. There's a good write-up in Joltz, the journal that everybody knows I promote regularly every time I open my mouth. There's a good article on the Genia Tech case in Joltz from about a year ago describing how that went down. There has not yet been an article. If somebody's willing to write one on the VMware case, we'd be interested in publishing it. But the bottom line of those cases is the courts found or set what appeared to be fairly difficult to meet standards of proof for whether you had copyright rights and that you could assert against somebody that you believe to be an infringer. That is something I think that is problematic for people who want to think about enforcement. If the tests are hard, enforcement gets hard. And worse, if the output from the court is detrimental, there's a negative feedback loop there. The next court takes a look at that and says, well, the test is hard. We should make this hard for people who come into the court and want to enforce. That's why when you go to the system of enforcement through litigation, you are taking a risk that the inputs will be bad, the system processing will not be predictable, the outputs will be unfortunate, and there may be a negative feedback loop that makes things worse. So litigation has or enforcement has its downsides. We need to consider that. And we need to consider that cases in the future may come to conclusions about the licenses that we like that may be detrimental to the way that we want the community of developers to work. I'm not going to steal Van's thunder, but the Google versus Oracle case is another example where we need to watch that case carefully because it may indeed have some disadvantageous effects on the way people are thinking about how these licenses work. So I'll leave that at that. Now, if it ain't broke, don't fix it. We've got a big group of people in this room. I think most of the people here probably owe their jobs to non-enforcement modes of compliance, and I think we should continue to have people encouraged to work in that way. Okay, so now you get to cross-examine me. I think we're going with two questions, or at least two questions that we can remember. I had three, but I actually forgot mine, third one as well. All right, so my first question is, so you said that that could have been a disaster until a lot of people engaged and then we got a positive result. Isn't that an argument for an engaging enforcement because we got a positive result when the people who cared about these licenses showed up to help educate the courts about how the licenses work? And then my second question is going to be, you said... As long as the system works in the way that you want it to, that's the right result. Don't assume that the system will always work that way. That's my cautionary note. My second question then is, you kind of implied that we shouldn't do enforcement because sometimes we might get negative results, and right now we're getting what we want because there's still the threat of enforcement. But if we do too much enforcement, we might suddenly find out there is no threat of enforcement. Would we still get what we want if we take enforcement off the table? So I'm going to echo what Pam said, which is I'm not sure that we can say for certain that enforcement in the past has resulted in compliance in the present. Nevertheless, I think that the way that's most consistent with the way the Free and Open Source Software movement works is to go to conferences, set up compliance programs, talk, train, develop systems, internal systems, develop tools in a way so that everybody can benefit and that everybody can run their operations in a way. That is compliant and is consistent with the philosophy of the movement. I would advocate, and I hope most of you who owe your jobs to that would also advocate that that's the best way to get things done. Okay, so we have... I'll rest my case. Okay, now we have... I think we have ten minutes for questions. Yeah, we combined the two. Questions? Yes, we should. Yes, yes. So it was very interesting hearing the positions about whether or not enforcement of licenses is required. I'm curious to know if you collectively would agree that licenses themselves are required, not necessarily, not considering enforcement, just the licenses. Well, in an ideal world, licenses would not be required. Everybody would operate in a community-appropriate way. I would say that a license, and I think this is the Free Software Foundation has said this, the license is the constitution of the movement. So it's one way of outlining expectations for everybody who's operating in the space, whether or not you actually actuate that as a legal document versus a set of principles. You know, that goes into this enforcement question. I think licenses are required. And one, that just happens to be how the legal regime that we work under works. If you don't have a license to use someone else's copyrighted work, you're not allowed to use it. However, you articulate what that license is, whether it's through, you know, a passive acquiescence to someone's use or a casual conversation or a written document, licenses technically have to be granted. The advantage of written licenses, which might be going more to your question, is that it adds clarity and certainty. It can be objective and it reduces misunderstandings. And I think it does go to McCoy's point of, right, these licenses in many respects do operate as kind of a constitution for projects or for the movement. But if they're not clear, we need a way of bringing about clarity about it. And not everybody is going to always agree. And you just need to find a way of getting to clarity about what the relationship is. Yeah, I would agree with that with sort of the only other, only thing to say in addition to that is that then if there were not written licenses, then the troll problem would be much, much broader. So we see this happening all the time in collaborative communities that work with unwritten rules is all of a sudden there's a shift and someone doesn't follow the unwritten rules and creates a lot of disruption. So the license acts as those written rules so that everybody has a common understanding of what's acceptable behavior. Yeah. I just want to point out that if you don't write any rules or so if you don't have licenses, lawyers will benefit greatly because we will have a total incentive. And coming on my point, if the license is our constitution, then we have to fight for it. So my question is especially for those who oppose enforcement, does the time ever get better to do enforcement? Can we say maybe in 20 years some terms will be clearer in the industry so the courts will more easily get the right output from a certain input, for instance, or is the decision, let's say, forever? So we will not do it even in a cent or from now. So I think in your example actually would be run counter to enforcement if there were a court out there, the world court were to say here is how GPL works for every provision in it. Everybody knows the rules. There's no reason why anybody wouldn't follow that. So I think in that case it's less likely to be the subject of enforcement. The ambiguity tends to allow people to raise questions about what the licenses mean. So whether 20 years from now enforcement will be good or not good, I don't know, that's hard to predict. It really depends on a lot of different circumstances. But I'm not so sure that more court decisions will, I think more clarity in court decisions will put the roadmap out for everybody on how they need to operate. Do you want to respond to a family? So this is a two-parter. The first is, do you believe that proprietary licenses are, there is a culture of the expectation of enforcement of proprietary licenses? And number two, if you agree with that, why do you believe free and open source licenses should be any different? That's for all actually. Start with the, yeah. I think there probably is an expectation that proprietary licenses will be enforced more readily than free software licenses. I suspect it's probably because we just think companies are willing to be more litigious and free software is made by individuals who are less sophisticated when it comes to litigation and commercial dealings, which I don't think is actually, that's just not true, right? Like free software is produced by large companies that are very sophisticated. So that expectation might be out there. At the same time, too, I also think that the expectation that proprietary licenses will be enforced, they're not enforced quickly. It's not like everyone who bought proprietary software got sued by the manufacturer, nor is it true that they were all in compliance. I think the fact that there's that expectation of differences is a problem. And to a disadvantage of the community though, right, is that somehow the community should be above doing litigation, but it's okay for companies to do it on their proprietary licenses. Why should we give the proprietary license manufacturers that advantage? I actually disagree with the premise that there's more enforcement going on in proprietary licenses. I think, yeah, McCoy's nodding his head. I think that the companies that are doing enforcement work on copyright licenses, the very last thing they want to do is sue a customer, and they will only do it if it's already a lost cause, and there's a lot of money involved that can be recouped. But really, they would much rather have a paying customer who's paying a bit more because they've convinced them that they're non-compliance really means they should be coughing up a little more money than they are now, but they much rather keep that customer and write off the loss rather than lose the customer entirely and lose all income from that customer. So I don't think that proprietary companies have a culture of enforcement. I think it is just the opposite. McCoy, do you want to answer? No, no, I agree with Pam. I agree with Max. I'm going to agree with Pam too. Thanks for all that. Do you think that enforcement litigation, as you narrow it down, is it working on licensed by licensed case? So if in the future that we said that maybe in 20 years time some court has already defined all the points of GPL, but maybe then we should all have moved to another license which is still ambiguous by then. Or do you think that results of enforcement and litigation apply to everything? Is that for one side, one particular side of the other? Yes. Anybody want to take that? So litigations over, let's say, GPL2 may have an effect on future licenses, GPL4, or whatever, because in many cases these litigations, the courts are setting out general principles and not necessarily limiting the decision to the exact text. That's why Oracle v. Google is an important case to things other than Java. And that's why people care about it, right, because they anticipate the people who are arguing about it are anticipate that it's going to set the rules for how we interpret what's copyrightable in software generically. So I think that answers your question. Okay. We have time for more responses. Just a very quick comment on this. I mean, every decision may have an impact on future licenses, and of course it depends on the license being litigated. Theoretically, you could enforce also a B-Roy license, but I don't think that enforcing a B-Roy license may have an impact on future licensing. Okay, so I know, but I don't think we have time for it, because there's one. Okay, so what we need to do is for your debaters, raise your hand if you mostly agree with the position that you took in the debate. Raise your hand. Oh, if you don't want to. If you don't want to, raise your hand if you don't want to say whether you do or you don't. It doesn't matter. You know what? You all did an excellent job. So what? Weird rope? So let's applause. Yeah, we will. Okay, now we are not having formal judging of these debates. However, what I want to know is, so we stay up here. Okay, so what I want to know is for the people against enforcement, raise your hand if they brought up something you hadn't thought about before. Okay, and those for enforcement, raise your hand if they brought up something you hadn't thought about before. Okay. Now, raise your hand. Raise your hand if you changed your mind due to something that was said by anyone on this debate. Have you changed your mind based on this debate at all? So like quite a few people. Yeah. Anyway, so let's give these debaters another... The first one is doing it amazing. Thank you.
first of all, we have to define what we mean by to be defined in scope. The scope of enforcement And so it is, as I pointed out, a necessary evil, license, which is not a copy-left license, but it going to happen because the reality is that matters. So, it may not be necessary for the free interpret that is we should not think of the legal system as something that's a logical system and open source software licensing world or every provision in it. Everybody knows the rules.