Wednesday, March 11, 2009

2009-03-11 Wednesday - When Open Source Isn't

Inigo Montoya (The Princess Bride): You keep using that word. I do not think it means what you think it means.

Note: In the following discussion - I do not suggest that all software should be free - my contention is that if you are going to label your software as GPL - then you should play by the GPL rules. Claiming your software is GPL - and then playing games with the EULA - could be construed as false advertising.

From the web site:

The Foundations of the GPL
Nobody should be restricted by the software they use. There are four freedoms that every user should have:

  • the freedom to use the software for any purpose,

  • the freedom to change the software to suit your needs,

  • the freedom to share the software with your friends and neighbors, and

  • the freedom to share the changes you make.

Not too long ago I assisted a client in evaluating a vendor's GPL'd "Open Source" community edition of a testing product (they also offer a Professional Edition for sale commercially). I think their use of the term "Open Source" - and more specifically their claim of it being released under the GPL - was perhaps a misguided crack induced delusion typo.

In 2007 the vendor's own web site trumpeted their release of their software under the GPL:
xxxxxxx is available under the GPL Open Source license. What does that mean?
The GPL License is the most widely used open source license, with its roots in the Linux Project. This license promotes free usage of the software while ensuring that all contributions and modifications will be freely distributed for the benefit of the community.

More information on the GPL license can be obtained from Under the terms of this license you can freely use the product for your own benefit with no guarantees or support from xxxxxxx. You are also free to make modifications to the source code provided that you redistribute the code under the same GPL license.

What many users apparently didn't realize, since they were lulled into a false sense of safety by the claim of GPL, was that the crafty bastards slick corporation included this clause in their EULA, basically attempting to override and invalidate the GPL:
2. License Restrictions. This License does not permit you or any third party to:
(i) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or otherwise attempt to discover the source code of all or any portion of the Software;
(ii) modify, translate or create derivative works of all or any portion of the Software;
(iii) copy the Software (other than a single copy solely for back-up or archival purposes);
(iv) rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to the Software;

This morning I received an interesting email from the vendor...declaring End of life (EOL) for the Community Edition. They also took this opportunity to emphasize a particular clause in their misbegotten Software NAZI EULA:
If you still have a version of the product we remind you that under the EULA, any distribution of the product or using it to service third parties is strictly forbidden.

By virtue of the vendor releasing the software under GPL, there are some interesting points in the GPL which I think might be of interest to review...which would seem to be in conflict with the vendor's EULA restrictions noted above:

"The licenses for most software and other practical works are designed to take away your freedom to share and change the works. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change all versions of a program--to make sure it remains free software for all its users."
"...General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software..."
"...Developers that use the GNU GPL protect your you legal permission to copy, distribute and/or modify it."
10. Automatic Licensing of Downstream Recipients.
"Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License"
"You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License."

Suggestion #1: Don't punk the GPL

In any event, I promptly wrote them back and assured them that I was happy to report that I was in full compliance with their "strictly forbidden" EULA restrictions (since my computers were happily and completely free of their software). And since I don't want to encumber my clients with their botched messy Open Source EULA issues - they will also happily be advised to avoid their software in the future.

It is interesting to contrast the vendor's EULA restrictions with what Wikipedia has to say on The Open Source Definition (emphasis added to the important bits):

The distribution terms of open-source software must comply with the following criteria:
(The definition was based on the Debian Free Software Guidelines, written and adapted primarily by Bruce Perens.)

1. Free Redistribution
The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.

2. Source Code
The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed.

3. Derived Works
The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.

4. Integrity of The Author's Source Code
The license may restrict source-code from being distributed in modified form only if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.

5. No Discrimination Against Persons or Groups
The license must not discriminate against any person or group of persons.

6. No Discrimination Against Fields of Endeavor
The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

7. Distribution of License
The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.

8. License Must Not Be Specific to a Product
The rights attached to the program must not depend on the program's being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program's license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.

9. License Must Not Restrict Other Software
The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.

10. License Must Be Technology-Neutral
No provision of the license may be predicated on any individual technology or style of interface.

When analyzed against this definition, the vendor's use of the term "Open Source" appears to simply be a marketing gimmick.

From another concerned community user:
"The EULA thing sorta blows my mind. How can you release software under the GPL and then revoke all the freedoms in a EULA?"

Suggestion #2: If you want to develop an Open Source community around your product, RESPECT the culture of the Open Source community.

When I contacted the VP of Sales, he characterized their decision to declare End of life (EOL) based on the following rationalization:
"Typically, firms providing a real load testing service found xxxxxx Open Source to be inadequate for their client needs."


I suspect the VP lives in a different reality truth may be somewhat different: The vendor probably discovered, like many Community Edition users, that the Open Source version of their software was sufficient for most user needs - and they found no urgent need to upgrade to the Professional Edition.

If someone wants to offer their software on a restricted XX-day evaluation basis - fine. If you want to charge a nominal fee for a trial version - fine. But don't try and blow smoke up my kilt and tell me your Community Edition is Open Source - when it isn't.

If the vendor benefits by claiming affinity with the GPL - to induce the Open Source community to contribute (quality assurance reviews, testing efforts, ideas for new features, bug fixes, code for new features) - then the vendor has an obligation to honor the letter, spriit, and intent of the GPL: Not just some of it; not just the bits that they like; and they certainly shouldn't be claiming a release under GPL - when they are in fact - not.

Suggestion #3: Don't b.s. the Open Source community.

There are plenty of other options out there - and I will happily direct my clients to consider every single alternative before they ever use this vendor's software.

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