Update (September 24): new response from Richard M. Stallman, and Eric S. Raymond (ESR) says the license revocation “threat has teeth.”
Linux powers the internet, the Android in your pocket, and perhaps even some of your household appliances. A controversy over politics is now seeing some of its developers threatening to withdraw the license to all of their code, potentially destroying or making the whole Linux kernel unusable for a very long time.
An open letter posted to the Linux Kernel Mailing List explains:
Date Thu, 20 Sep 2018 09:28:14 +0000 From [email protected] ... Subject Re: A Plea to Unfuck our Codes of Conduct Regarding those who are ejected from the Linux Kernel Community after this CoC: Contributors can, at any time, rescind the license grant regarding their property via written notice to those whom they are rescinding the grant from (regarding their property (code)) . The GPL version 2 lacks a no-rescission clause (the GPL version 3 has such a clause: to attempt furnish defendants with an estoppel defense, the Linux Kernel is licensed under version 2, however, as are the past contributions). When the defendants ignore the rescission and continue using the plaintiff's code, the plaintiff can sue under the copyright statute. Banned contributors _should_ do this (note: plaintiff is to register their copyright prior to filing suit, the copyright does not have to be registered at the time of the violation however) Additionally when said banned contributors joined the Linux team, they were under the impression that it was a meritocracy: in-fact this belief was stated or ratified by those within the governing body regarding Linux when the contributors began their work (whatever that body was at that time, it could have been simply Linus, or Linus and a few associates). The remuneration for the work was implied to be, or perhaps stated, to be fame as-well as a potential increase in the contributors stature, in addition to membership in the Linux Kernel club or association, or whatever it is that the Linux Kernel Community actually is (which a court may determine... it is something, suffice to say). Thusly for work, consideration was promised by (Linus? Others? There are years of mailing list archives with which to determine). And now that consideration has been clawed-back and the contributors image has been tarnished. Thus the worker did work, however the other side of the implied, or perhaps written (email memorandums), understanding has been violated (once the contributor has been banned under the new non-meritocratic "CoC"). Damages could be recovered under: breach of contract, quazi-contract, libel, false-light. (services rendered for the contractual claims, future lost income for the libel claims) In addition to copyright claims. (statutory damages, profits) For greatest effect, all rescission should be done at once in a bloc. (With other banned contributors). Contributors: You were promised something, you laboured for that promise, and now the promise has become a lie. You have remedies available to you now, as-well as in the close future . Additionally, regarding those who promoted the Code of Conduct to be used against the linux kernel contributors, knowing full well the effect it would have and desiring those effects; recovery for the ejected contributors via a tortious interference claim may be possible.
An anonymous commenter clarifies:
The Linux kernel is licensed under GPL Version 2. Under normal circumstances what this license entails is that the code can be freely copied and distributed (and also that the code must be made available with binary distributions but thats not important here). The thing that becomes confusing is that whoever authored the code still owns the actual copyright for the code they contributed. Some projects under the GPL like Emacs have a smart policy where the maintainers will not accept your code unless you also turn over complete control of the copyright. Since you own the copyright and are merely licensing it under the GPL you can technically remove that license at any time. The GPL Ver 3 has a clause that Ver 2 lacks which dictates though that you may not rescind your license over your code. In a court, a lawyer would make the argument that since the Free Software Foundation(the license’s publisher) saw the need to add the clause, that the Ver 2 allows for rescinding of the GPL license.
If the threat is put into action, ramifications could include large parts of the internet being left vulnerable to exploits, and companies around the world might even inherit bundles of unwanted legal liabilities.
As promised, LULZ.com reached out to a variety of experts and some results are in. Richard M. Stallman said over email that he thinks the licence revocation plan is “misguided.”
Eric S. Raymond (often referred to simply as ESR) on the other hand told the Linux Kernel Mailing List that he thinks the plan is viable: “I’m writing now, from all of that experience and with all that perspective, about the recent flap over the new CoC and the attempt to organize a mass withdrawal of creator permissions from the kernel.”
He continues: “First, let me confirm that this threat has teeth. I researched the relevant law when I was founding the Open Source Initiative. In the U.S. there is case law confirming that reputational losses relating to conversion of the rights of a contributor to a GPLed project are judicable in law. I do not know the case law outside the U.S., but in countries observing the Berne Convention without the U.S.’s opt-out of the “moral rights” clause, that clause probably gives the objectors an even stronger case.”
Activists from the feminist and LGBTQIA+ communities have been trying to force the Linux project to join the Contributor Covenant since at least 2015. The Contributor Covenant is an agreement to implement a special Code of Conduct (frequently CoC from now on) aimed at changing the predominantly white, straight, and male face of programming. CC’s Code of Conduct is controversial particularly because it allows anyone to be banned from contributing code for any reason, usually with no mechanism for oversight or accountability.
On September 16 the pro-CoC side got their wish (how this happened is a very strange story of its own, read recent news about Linus Torvalds’ departure if you want to know more) — Linux had officially committed to implementing and obeying the CC Code of Conduct — and they immediately set about using it to remove top Linux coders. Sage Sharp, who describes theyself as a “diversity & inclusion consultant, hufflepuff, non-binary agender trans masculine” and has 7k followers, cites GeekFeminismWiki and targets Google’s Theo Ts’o with accusations of being a rape apologist:
Many twitter users pointed out the apparent irony.
Calling someone a Rape Apologist is harassment and in violation of the new CoC..
— Wildhart (@wildhartz) September 20, 2018
Per the new Linux Code of Conduct, "unacceptable behavior" includes "insulting/derogatory comments" and "personal or political attacks". It seems to me as though calling another contributor a "rape apologist" fits both criteria.
— Devon McClure (@DevonRMcClure) September 20, 2018
Calling someone a "rape apologist" is insulting, derogatory, and personally attacking, especially publicly, and goes against the code of conduct.
— Cola (@ColaEuphoria) September 20, 2018
CC’s Code of Conduct replaces Linux’ earlier Code of Conflict (not to be confused with current use of “CoC”), which asked for civility without having political implications. The change is widely condemned by developers, and opposition has generated thousands upon thousands of posts on 4chan’s technology board alone. Here is a summary of their arguments:
1. Insertion of the CoC into other projects has heralded witch hunts where good contributors are removed over trivial matters or even events that happened a long time ago.
2. The lack of proper definitions for punishments, time frames, and even what constitutes abuse or harassment leaves the Code of Conduct wide open for abuse (see 1).
3. It gives the people charged with enforcement omnipotent and unaccountable power.
4. It could force acceptance of contributions that wouldn’t make the cut if made by cis white males.
5. CC’s Code of Conduct is purely about power.
6. “‘In all that time I never had to know or care whether my fellow contributors were white, black, male, female, straight, gay, or from the planet Mars, only whether their code was good’; namely, in a project that receives contributions from volunteers who are anonymous beyond a chosen handle, specious claims of exclusion and harassment crumble beneath the most haphazard scrutiny. Contributors reveal as much about their race, sex, and orientation as they want because no one cares about that tangential shit at the end of the day. If there really was some “straight white males only” mentality, the community would insist on determining whether a new contributor is “one of us” before accepting their code, but they don’t do that in the slightest. Thus, it’s patently clear there is no culture of exclusion, but rather a culture of total indifference to individual differences beyond coding ability. The rhetoric of diversity and inclusiveness is just a weapon being used to attack a community that is inherently opposed to identity politics, which is why they’re seen as such a threat to these SJW gestapo.”
On the other side of the aisle, arguments FOR CC’s Code of Conduct include:
1. Fostering an inclusive and safe space for women, LGBTQIA+, and People of Color, who in the absence of the CoC are excluded, harassed, and sometimes even raped by cis white males.
2. Lack of CC’s CoC sustains meritocracy, which “has consistently shown itself to mainly benefit those with privilege, to the exclusion of underrepresented people in technology“.
3. The vast majority of Linux contributors are cis white males. CC’s Code of Conduct would enable the building of a more diverse overall demographic as people who aren’t cis white males feel welcome to join and white male harassers are weeded out.
4. Being against the CoC means you want women, LGBTQIA+, and People of Color to be harassed.
Conclusion? Keep an eye on Linux.
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