3. Profiting from Free and Open Source Software

GNU/GPL is an abbreviation for “GNU’s Not Unix/General Public License”.

A copyright license can be designed by the copyright owner. It is based on copyright law. These licenses concern what is called economic rights, since moral rights—like the author’s right to attribution and the protection of the integrity of the work—in much legislation cannot be licensed to any entity other than the original copyright holder. The economic rights concern, for example, the right to access, distribute and make derivative works. Another kind of license (based on contract law) can be used by a platform owner as a prerequisite for publishing an author’s content on their platform. The platform owner’s specifications of the rules that regulate the use of platform are often spelled out in so-called End User License Agreements (EULA). In both these cases, it is of central importance whether the copyright holder offers the content as (or, if the platform owner demands) an exclusive or as a non-exclusive right to the licensed content. A license is non-exclusive as long as it does not actively state the transfer of exclusive rights (Dodd, Lichter, & Reichman, 2019).

Originally, copyright covered only literary works, but during industrial capitalism it was expanded to cover also music, films and photographs, for example. This expansion included new forms of cultural products and was therefore quite logical. A shift came at the end of the 1970s in the USA when software was effectively included in copyright law. A regulatory regime designed to protect creative works thus started to be applied to protect a means of production, which usually comes under the patents regime. The 1978 National Commission on New Technological Uses of Copyrighted Works’ (CONTU) Final Report on how to protect software provided the justification for the 1980 amendments of Sections 101 and 117 of the Copyright Act of 1976 to address computer software. Later on, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) adopted this view (Article 10, paragraph 1 of TRIPS, which is the first appearance of copyrighted software in a multilateral treaty (UNCTAD, 2005)). The grouping of both cultural works and software under copyright is one of the bedrocks of cognitive capitalism. What these goods have in common is their vulnerability to unauthorized reproduction. Copyright gives the software owners, always threatened by illegal copies, the strongest protection by offering longer term coverage than patents and automatic protection that does not require you to reveal the technical functioning of the program. This was probably one of the reasons why patenting of software was rejected repeatedly in the USA in the 1970s, although there also exists a well-established doctrine that mathematical algorithms cannot be patented. Regardless of this, software has increasingly been patented since 1981 (Supreme Court ruling on Diamond v. Diehr).

Raymond calls himself a libertarian. This is a kind of right-wing individual anarchism that leaves capitalism out of the critique, in contrast to the original anarchist standpoint of Kropotkin and Bakunin (Lund, 2001), and which advocates the so-called free market.

Netscape’s Communicator was earlier called Navigator, but the browser actually went back all the way to one of the first web browsers, Mosaic. The company first released its core product, Netscape Navigator, for free (as in gratis) in 1995. You could download and install a compiled and binary version without paying anything (Kelty, 2008, p. 100). Releasing the source code openly in 1998 was a radically new step, at first counter-intuitive to doing business under competitive capitalism, in which digital technology had made copying costs near zero.

It played an important part in Red Hat’s history that its Linux distribution was endorsed and favored in March 1998 by the company SAP which ran the enterprise software platform R/3. And, at the end of that year Intel, together with Netscape and two venture capital companies (Greylock and Benchmark Partners), announced their investment in the distribution (Moody, 2001, pp. 218–19).

The differences between FSF’s GPL and the more permissive licenses of OSI thus have to be moderated, while still recognizing the political focus of FSF on building commons over time.

LGPL stands for Lesser General Public License, and was formerly known as Library GPL. It is used for tactical reasons by the FSF. Deek and McHugh explain: “if there are already other equivalent libraries that a proprietary developer could use, then in that case Stallman recommends that the new free library under consideration be released under LGPL” (Deek & McHugh, 2008, p. 259).

It is contested by some whether a generated driver is a derivative work of the kernel or if it just interacts with the kernel via systems call (The Linux Documentation Project, 2019).

“In the context of free and open source software, a binary blob is a closed-source binary-only piece of software. The term usually refers to a closed-source kernel module loaded into the kernel of an open source operating system, and is sometimes also applied to code running outside the kernel, such as system firmware images, microcode updates, or userland programs” (Wikipedia contributors, 2018a). Note that Wikipedia uses the word open source rather than the free software label that is stressed in this text.

FSF explains the separate license like this: “The GNU General Public License permits making a modified version and letting the public access it on a server without ever releasing its source code to the public. The GNU Affero General Public License is designed specifically to ensure that, in such cases, the modified source code becomes available to the community. It requires the operator of a network server to provide the source code of the modified version running there to the users of that server. Therefore, public use of a modified version, on a publicly accessible server, gives the public access to the source code of the modified version” (Free Software Foundation, 2007).

In 2016, to give some perspective on Linux distributions’ share of the desktop segment, Windows had 52.1%, Mac OS X had 26.2% and Linux distributions had 21.7% (Miller, 2016).

Ubuntu is criticized by FSF for offering the possibility to install the distribution with only free packages, which implies the option to install non-free packages of software. The company also calls all gratis downloadable proprietary software “free”, thus contributing to blurring the lines between the two (Free Software Foundation, 2018, 2019).

The general motive for dual licensing, or multi-licensing, is to be able to profit from free software, or to “support free software business models in a commercial environment”, in a similar way as in the case of shareware (Wikipedia contributors, 2019i). The blogger DPS David provides this illustrative picture of dual licensing involving the GPL license: “Licensing is sometimes done in this way to reduce restrictions and create greater freedom for the software being licensed. For example, in the case of a GPL/MIT dual licensed piece of software (and source code), if this was just licensed under the GPL then anybody creating derivative works of, or incorporating the source code/functionality of the GPL software into their own commercial software would be obliged to release the source code of the commercial software (and the software itself) under the GPL license, allowing free distribution and access to the source code. Now obviously, this isn’t good if you want to include the said software in a commercial proprietary project!” (DPS David, 2012).

Version 3 and 4 of RHEL were active and supported by Red Hat for up to 7 years, whereas later versions have been supported for 10 years. In relation to later versions, Red Hat gives “Full support” for the first 5 and a half years, “Maintenance support 1” for one year, and “Maintenance support 2” for 3 and a half years. An extra ongoing “Extended Life Phase” can be added from year 11, which includes limited technical support and access to previously released content and self-help through Red Hat’s customer portal. Some extra add-on support services can also be purchased “to extend limited subscription services beyond the Maintenance Support 2 Phase” (Red Hat, 2019f). During the phase of full support updates of software and hardware, drivers are provided. These updates are gradually reduced in later phases, which focus predominantly on “security and other important fixes” (Wikipedia contributors, 2019j).

Red Hat’s workers’ agreement is called Fedora Project Contributor Agreement (former Fedora Individual Contributor License Agreement), and it is not a copyright assignment agreement, but an agreement that “ensures that contributions to Fedora have acceptable licensing terms” (Fedora Contributor, 2015). This means that they are compatible with GPL, as open source licenses are. The default license if a contributor does not make a choice is the MIT license (Fedora Contributor, 2015).

The older agreement was a clear form of CLA and made the contributor provide a license to the company: “You hereby grant to Red Hat, Inc., on behalf of the Project, and to recipients of software distributed by the Project: (a) a perpetual, non-exclusive, worldwide, fully paid-up, royalty free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute your Contribution and such derivative works” (Fedora Contributor, 2011).

Free software’s enforced openness in derivative uses focuses on fostering effective social actions (built on freedom of speech), often within commons-based peer production, and open source’s openness for subsequent enclosures, as well as commodification, focuses more on the formal right to act, interoperability and informational goods. OSI in the end downplays the effective freedom to act in relation to the source code, as it, on a larger societal level, accepts the enclosure of the originally open source code. This subsequently leads to relatively more enclosed source code on a societal level that in the same proportion impedes effective freedoms to act on, or use the code. The position can be mapped onto traditional political ideologies of liberalism and socialism.

This openness ideology found clear expression in Open Knowledge Foundation’s (today Open Knowledge International) Open Definition (OD) from 2005. OD was derived from the Open Source Definition (Open Knowledge International, 2017). OD conflates the two perspectives in a way that is illustrative of the ideological workings of Open Source in contrast with Free Software (Lund, 2017). In June 2017 the presentation of the influential open definition, version 2.1, was introduced in a pedagogical short version, in which some words were highlighted:

Open means anyone can freely access, use, modify, and share for any purpose (subject, at most, to requirements that preserve provenance and openness).” (Open Knowledge International, 2017). This statement was followed by a claimed more succinct formulation: “Open data and content can be freely used, modified, and shared by anyone for any purpose (Open Knowledge International, 2017). (In January 2019 the presentation of the Open Definition 2.1 does not include this pedagogical short-version.)

Ideologically, we can see that the copyleft option is downplayed and put within parenthesis, far from being put in bold. This non-highlighted parenthesis is then completely omitted in the following and more succinct formulation. “Any purpose” conceals that it includes commercial uses (Lund, 2017). The ideology analysis deepens when we look at the two first paragraphs of the full definition where the OD says it promotes a “robust commons” where “interoperability is maximized” (Open Knowledge International, 2017). “Robust” is a static word, whereas interoperability should be maximized, a dynamic word. In cognitive capitalism, dynamic is a more positively valued characteristic than static. The definition and presentation of it are silent on the issue of robust commons potentially being weakening by a maximized interoperability that involves commercial enclosures (Lund, 2017).

This line of ideology analysis should not be stretched too far. To some extent, the conflict could be meaningless to stress for Red Hat and its co-founder, as the company bases its business on a General Public Licensed Linux distribution that is possible to combine with proprietary software in various ways. The GPL can be used in Red Hat’s commercial business models, albeit within more limiting conditions than if the code had been licensed under an open source license. However, the downplaying of the difference and the relative lack of attention given to commons-based peer production still indicates Red Hat’s ideological and political values.

Velkova and Jakobsson’s study also points to the fact that hierarchies of power are at play that “enable some actors to move between different spheres and to reconcile the different regimes of value, whereas others remain for longer periods of time in a single regime”. Some can convert their commons-based activities into employments, and others not, remaining instead in perhaps precarious labor conditions (Velkova & Jakobsson, 2017).