When the free software movement started to make headway, proprietary software companies like Microsoft went to war against it, describing the licenses at its core (like the GPL) as "viral licenses" to scare companies off from using free software.

The GPL is a software license that coders add to their work that says, "You can do anything with this - change it, sell it, copy it, incorporate it into something else, BUT...you have to redistribute the new projects under the same terms."


In other words, we are making a software commons - code that anyone can use and improve, but only if they agree to maintain the commons. Like any shared resource, commons need protection from freeloaders who take but do not replenish.

When Microsoft called that a "viral" proposition, they meant that participating in free software meant that they'd be legally required to maintain the commons. Microsoft didn't want a commons - they wanted a private preserve with a big lock on the gate.


But the commons won - Microsoft, and most other tech companies - ended up embracing free software, using it, adhering to the license terms, and contributing back.

This isn't a fairy-tale happy ending. As Mako Hill described in his brilliant 2018 Libreplanet keynote, Big Tech found ways to comply with free licenses without giving back to the commons - they gave us "open source" and got "software freedom."



Smaller tech companies couldn't pull of that move. Most of them fell into line, but many of them just flat-out cheated, betting that no one would drag them into court.

They bet wrong. Linksys ripped off GPLed code and in 2008, the Free Software Foundation forced them to comply with the license. That worked out great! It led to the creation of DD-WRT, a widely used free/open wifi base-station firmware.




FSF was able to credibly threaten Linksys's parent company, Cisco, because the authors of the programs Linksys ripped off had assigned their copyrights to the Foundation. That gave it "standing" to sue.

You see, in order to seek civil justice in the courts, you need to be an injured party. If your neighbor punches pizza deliverator in the face, *you* can't sue, because you weren't injured. You don't have standing.


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The thing is, there's far more free software whose copyright *wasn't* assigned to FSF than code that the FSF has the copyright to, and thus standing to defend against violations like Linksys's.

For many of these projects, copyright is diffused over dozens or hundreds of programmers. They have standing to enforce the license, but likely lack the resources to sue a giant corporation. So some companies made a calculus that they could rob the commons with impunity.


One such rip-off artist is Vizio, a company with a long history of incorporating free software into its products and then stonewalling when demands come in for them to follow copyright law and release the code to the products they built from the commons.


Vizio's free ride is over. The nonprofit Software Freedom Conservancy has filed suit against Vizio to force it to comply with the GPL - and this legal challenge has the potential to change the game for GPL enforcement in a profound way.


You see, the Conservancy isn't suing on behalf of the copyright holders whose code Vizio is illegally using - it's suing on behalf of the *users* of free software who are injured by Vizio's attack on the commons.


The Conservancy's argument is that free software users *also* have standing to enforce the GPL, because a failure to comply with the GPL harms them. They call this "Community-Oriented GPL Enforcement."


And because the Conservancy's goal is to create a bigger commons, they have pre-committed to refusing cash settlements - they will settle for full GPL compliance, and nothing less.


If they manage to establish that free software users have standing to enforce the GPL, it will upend the broken system that has let companies like Vizio flout the law for years while making vast profits off the commons-based labor of software authors.

The Conservancy relies on donations for its operations. I'm an annual donor. Here's where you can give to them, too:


Nathan Keirn (modified)



@pluralistic Vizio has made unauthorized copies of BusyBox, GNU Coreutils, and glibc. Both the FSF and the Free Software Conservancy, on behalf of BusyBox, have standing to sue Vizio.

They’re only pretending to not have standing.


If I understand correctly, nobody's pretending not to have standing, but the FSC is trying to create a precedent by claiming to have standing as users.

Considering the cost of lawsuits in the US and the limited means of the FSC, concentrating on creating jurisprudence appears to me as a very valid strategy.


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