What is Free Software?

Forget that “Open Source” stuff. I’m talking about the good stuff here. Good old “Free-as-in-Freedom-Fries” Free. How do we define Free software?

There are two common checklists: the “Four Freedoms” of the Free Software Foundation, and the Debian Free Sofware Guidelines. Let’s take a look at each one first:

Here’s the thing

We generally consider software Free based on the license under which it is released. Basically, if it falls under a GPL- or BSD-like license we call the software “Free”. This is because the entire implementation of Free Software is built upon the very clever use of copyright law that Richard Stallman saw. However the foundation of the concept is not restricted to the license alone. It is a lazy shortcut to determine if software is Free based solely on its license.

Consider this: Say I create a small bit of software and I get a clear patent on it. Assume there is no prior art and software patents are being upheld. I release the code under your favorite OSI-approved license while at the same time publicly stating I will sue anyone who distributes modified copies of the code for violating my patent. Is that software Free?

If you define your software as being Free based solely on its license, then yes it is. If, however, you define your software as being Free based on the ideas of the Four Freedoms or the DFSG, I would say it is not Free. This not just a silly thought experiment, there have been some creative attempts at parsing licensing in the past.

Consider this: Say in the future, there exists some new sort of legal classification of ideas. Call it “mindright”. Courts uphold that creators of a work control the “mindright” to a work, and if someone violates that “mindright” they can be sued. No existing license today speaks to “mindrights”. If I release a small bit of software under your favorite OSI-approved license while at the same time reserving “mindrights” for myself and publically stating I will sue anyone who violates my “mindrights”  with the code, is that software Free?

Again, if you only consider the license, you may say yes. But if you consider the whole picture, you probably will say no.

This is because it is not the license alone that makes software Free. The license is a way in the existing legal system to try to realize the concept of Free Software. If something in our legal system (or business practice) changes, then it could become true that the existing licenses are no longer sufficient to enforce or permit the necessary freedoms, and therefore software so licensed is no longer Free.

That’s where GPLv3 comes in

Agree or disagree with it, but that is why the GPL often says “or any later version”, and that is also much of the reason for the GPLv3. At the time of the GPLv2, software patents were not a consideration. Now they are. So the text of the GPL had to be updated to stay effective in the changed business environment. Understand clearly that the principles behind the GPL never changed. Because it is not the license that makes Free Software, rather it is what the license enforces that makes Free Software.

Consider this: Say the GPL was found in court to not do what we all think it does. The judge decides some clause or two is wrong and so the GPL is invalid and not legally binding. The GPLv4 will have to be introduced to deal with this new development. Software that is released under the old versions of the GPL will no longer be Free Software, because the license can not enforce the requirements of being Free Software.

Whither now, Mono?

Because we know Microsoft holds patents over C#, the CLI, and other parts of .NET, it becomes risky to think that a license alone makes Mono Free Software, because the licenses Mono is released under are silent on the point of patents. We need some additional assurances. International standard bodies requires RAND licensing, but that alone is not enough for Free Software. A one-time payment of $5 is reasonable and non-discriminatory if required of everyone, but that certainly is not Free software in any sense of the word. No-royalty helps, but again there could be other terms that prevent RAND-Z technologies from being Free.

You could promise not to sue, but the problem with a promise like that is there are all sorts of doubt about what a promise actually covers. Companies go to court all the time for differences of interpretation in legal documents, and Microsoft making up a Community Promise or Open Specifications Promise mitigates, but does not eliminate all risk. (All risk can not be eliminated, of course, so that alone is not a failing of the Community Promise.)

The question then becomes: Do you think that the licensing of the software, when combined with the patent assurances Microsoft has given are sufficient to meet all the requirements of the Four Freedoms? Of the Debian Free Software Guidelines?

Think on that in great detail and see what answer you come up with – think on it first trusting Microsoft to do the “right” thing, and once again assuming Microsoft will do the “wrong” thing. Can software be conditionally Free, depending on the intention of Microsoft? It is a sort of Schrödinger’s Freedom – how Free the software is depends on how Microsoft decides to act!

Perhaps you think that the assurances of the ECMA/ISO standard and the Community Promise are sufficient when combined with the licensing terms to consider Mono Free Software. I do not think that is an unreasonable conclusion. Now, read Microsoft’s Moonlight Covenant, and see if you get the same answer about Moonlight.