Advocacy Prompts Reconsideration of Anti-GPL Letter

Many people have noted that there has been a reaction (see also this AP story) to the story posted a few days ago about the GPL in government. (More links: Wired, Newsforge.) This is good, I guess: Congress should consider carefully how the government licenses the code it funds, because it's an important public policy question: it shouldn't be decided by a backroom push from business lobbyists (the lead Representative listed, Adam Smith, represents a district fairly close to but not including Microsoft headquarters). There are certain things that bother me about this whole story though, and I'm going to try to trace the trajectory of it below.

As far as I can tell, it started with this Newsforge story (Newsforge is also part of OSDN, Slashdot's corporate parent). The Newsforge story was excerpted and copied by an Australian newspaper, and from there, it was off and spreading. The headline chosen, "Washington State Congressman attempts to outlaw GPL", is not particularly accurate, but it did a great job at stirring up outrage. Outlaw the GPL! Over my dead keyboard!

From there it really started making the rounds. It was repeatedly submitted to Slashdot with all sorts of flaming, incorrect commentary - in fact, after reading a dozen different submissions, I didn't think any of them were even close to accurate. I picked one and posted it, trying to do my best to a) provide an accurate headline and b) provide an accurate summary of the issue at stake in a few sentences. To recap again: when the Federal government creates computer code (or any copyrightable work) directly, it gets no copyright whatsoever and the work is true public domain (quirk of the U.S. copyright laws - the 50 states, corporations, individuals, and other legal entities all get copyrights automatically, but the Federal government does not). If you want to copy, reproduce, or sell an .mp3 of the U.S. Congress singing "God Bless America" after September 11, go right ahead: there is no copyright on it whatsoever. (Actually, the song itself is still under copyright, but Congress' performance of it wouldn't be...)

However, when the Federal government hires a non-employee to create code or copyrighted works, there is no clear rule regarding the copyright status of the work. Sometimes the contract calls for rights to the work to be assigned to the Federal government (the Feds don't get original copyrights, but if someone else gets an original copyright, the Feds can acquire it). Sometimes the contractor keeps the copyright and gets to do whatever they want with it. Sometimes the contract doesn't specify. Note that this is NOT a BSD-vs.-GPL dispute, not by a long shot. Very little code financed by the Federal government is ever licensed under either of these two licenses - the choice is basically agency-proprietary (the Federal agency asked for the rights in the contract, and kept them) or company-proprietary (the agency didn't ask for the rights, and the contractor kept them).

And most of the time it doesn't matter. I've written code for the Federal government as both a contractor and an employee, and 99% of it was so specific and customized that it would be of use to no one else, regardless of its licensing or copyright status. Probably the majority of code written for the Federal government falls into that category - internal use software for very specific needs.

But some of it is undoubtedly useful. Some major projects funded by the government in conjunction with academia have escaped from licensing purgatory, typically through the efforts of the researchers working on them who approach the issue from an academic freedom viewpoint and want to see their work widely adopted. GRASS is one major one that I know of. A commenter pointed out ADA as an example. For code which is useful to others, either a BSD-like or GPL-like license would be truly beneficial and easily defensible as a public policy choice. In the non-code world, the government makes choices like that all the time - it might choose to purchase a particular piece of land and commit to making it available to everyone forever by declaring it a National Park and committing to maintain it, a GPL-like philosophy; alternately, it might choose to just dump a particular piece of property on the market, putting it up for auction and letting the purchaser do what he wills with it, a BSD-like philosophy.[1] Either of these two options might be optimal; but paying for code which ends up remaining proprietary is like buying a new stadium to benefit a very specific corporation which owns a very specific sports team: the type of use of public funds which is generally seen as sleazy and the opposite of good governance.

Either of the first two choices can be appropriate in certain situations. What does not seem appropriate is paying for proprietary code, although this is generally what happens when the government contracts for code. Since the government has the ability to provide a benefit to the public (open code) at essentially zero cost, it should do so. An example which has struck me several times over the past few years: every airport in the world has the same problem, coordinating planes taking off and landing and keeping them from running into each other. Yet each nation (and often each airport) solves the problem over and over, paying heavily for custom-designed, one-shot software development. Imagine if the world's airports could simply install GNU-AirTrafficControl 2.7, and have a complete, working, bug-free and cost-free air traffic control system. It would cost every nation less to do it this way, but it would also make a lot less money for the consultants retained to develop these systems.

But leave off the advocacy for moment - I was following the story itself. As noted above, the outcry has prompted many of the other Representatives who originally signed the letter to reconsider. The AP story even suggests that some of the signatories were actively misled - that the letter they thought they were signing didn't mention the GPL at all. However it actually played out, some good has been done.

That's good. What's not so good is that much of the outcry was probably generated by stories titled "Washington State Congressman attempts to outlaw GPL". The right outcome occurred, but for the wrong reasons and in the wrong manner. I am left wondering whether the community would have made the same sort of response on this issue if every story that had been posted about it was 100% accurate and non-inflammatory.

[1] If you're not familiar with the BSD-like and GPL-like classes of software licenses, this won't make a lot of sense to you, so please read up if necessary.

Comments

Re:BSD Should Be Used

[Anonymous Coward]

Let's look at two cases:

1) A company invests a lot of research and spends 3 years writing supersoftware X, and sells it under a proprietary license.

2) A company finds an agency that needs supersoftware X, spends 3 years writing it on contract, and then sells it under a proprietary license.

Case 1 is the typical copyrighted software situation; collectively we gave up the rights to make copies of that code, so that the company would have the incentive to write it in the first place. Then we pay. We pay 2 times: once with our right to copy it, whether we use it or not, and once with our money, if we actually use it.

Case 2 is also unfortunately typical. In this case we pay for our software 3 times: once when we paid to have it written, once when we gave up our rights to copy it, and once when we bought it.

How many times do I have to pay for what is essentially MY SOFTWARE since MY MONEY paid to create it ?

I want tax-funded software under the GPL, so that I will never face a copy of MY OWN CODE wrapped up in a new interface being sold to me for $500 under an oppressive EULA.

There is another issue in this:

Copyright is only constitutional in the US as long as it creates an incentive to create more works. Since software written for a government contract is going to be written whether there is coyright or not, there is no new incentive created. Therefore, prosecuting someone for copying and selling software written under government contract is unconstitutional.

Now, since as a society we seem to have collectively decided to ignore that document, maybe constitutionality has no bearing. But if you buy into that constitution stuff, the government can't release it under the GPL because that's a copyrighted license; they can only simply release it. However, including any part of it into a proprietary work, or making a derived work from it, may also place that work outside the scope of copyrightable material.

Re:hmmm

[Sean Riordan]

While I agree that some pieces of software that have security concerns for one reason or another might not be best released as open code, but the vast majority of government funded code is for more mundane applications and could be useful to the general public without potential harm from security issues. I have spent the last couple of months working on a piece of software for a government contract that has been written literally dozens of times before but is considered proprietary by the contractors that developed it. The cost and inefficiency is staggering. That is my opinion at least.