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

from the pen-is-mightier dept.

[gonerill]

Obligatory SNL Celebrity Jeopardy moment:

Sean Connery: I've got to ask you... about the penis mightier.

Alex Trebek: What? No nonono... That's the pen is mightier.

Connery: Gussy it up however ya want, Trebek --- What matters is, does it work? Will it really mighty my penis, man?

Trebek: It's not a product, Mr Connery.

Connery: Because I've ordered devices like that before. Wasted a pretty penny, I don't mind telling you. And if the penis mightier really works, I'll order a dozen!

Trebek: It's not a penis mightier, Mr Connery. There's no such thing.

Nicholas Cage: Wait wait wait... Are you selling penis mightiers?

Trebek: No! No I'm not!

Connery: Well you're sitting on a gold mine, Trebek.

Re:BSD Should Be Used

[HiThere]

If I considered money to be anything more fixed than a bit string, I might be forced to do tax withholding. That would be a gross inconvenience. Fortunately, before I learned just how vilely the government misspends money, I also learned that they print as much as they feel like. Money is only like a bookkeeping entry if your books are cooked.

The people who withhold taxes aren't inconveniencing anyone but themselves. The government will just print enough more money to cover what they didn't pay. And then they'll either have to spend enough money bribing politicians so it will cost them more than they saved, or they'll end up in jail, in exile, or in TRUE poverty. Or, possibly, dead.

So. We shouldn't take money as an honest accounting system, but we want to justify what license to release software under...
Clearly, since the money that bought the software was spent by the government, that doesn't count. But it was paid to people who couldn't print their own money, so that did count. What was being expended was the government control over the right of people to live their own lives (a tangible good?). Now if these people worked for the government, then they were already obligated, so the cost is that they couldn't be working on something else. If, however, it was done by an outside contractor, then that contractor also accumulated a share of disposeable hours. Now we are in an area where money acts more like we expect that it should.

So the government may have delegated to a contractor the right to control people for a certain amount of ??. In return, the contractor gives the software to the government.

To the extent that the government is, in fact, acting as a proper agent for the collective people of the country, the government has purchased the authorship of the software in their name. Therefore:

I propose that the software is copyright, and that authorship/ownership rights are property of every citizen of the country. Not as a collective, but as individuals. If someone who isn't a citizen wants to use the software, he must make an arrangement with some citizen. Possibly some citizens would choose to release their copy as GPL. Others might want to release it as BSD. Others might want to keep their copy (and what they did with it) secret. These are all fair. So is selling it. The owner of the copyright has broad rights.