[personal profile] mjg59
(Note: While the majority of the events described below occurred while I was a member of the board of directors of the Free Software Foundation, I am no longer. This is my personal position and should not be interpreted as the opinion of any other organisation or company I have been affiliated with in any way)

Eben Moglen has done an amazing amount of work for the free software community, serving on the board of the Free Software Foundation and acting as its general counsel for many years, leading the drafting of GPLv3 and giving many forceful speeches on the importance of free software. However, his recent behaviour demonstrates that he is no longer willing to work with other members of the community, and we should reciprocate that.

In early 2016, the FSF board became aware that Eben was briefing clients on an interpretation of the GPL that was incompatible with that held by the FSF. He later released this position publicly with little coordination with the FSF, which was used by Canonical to justify their shipping ZFS in a GPL-violating way. He had provided similar advice to Debian, who were confused about the apparent conflict between the FSF's position and Eben's.

This situation was obviously problematic - Eben is clearly free to provide whatever legal opinion he holds to his clients, but his very public association with the FSF caused many people to assume that these positions were held by the FSF and the FSF were forced into the position of publicly stating that they disagreed with legal positions held by their general counsel. Attempts to mediate this failed, and Eben refused to commit to working with the FSF on avoiding this sort of situation in future[1].

Around the same time, Eben made legal threats towards another project with ties to FSF. These threats were based on a license interpretation that ran contrary to how free software licenses had been interpreted by the community for decades, and was made without any prior discussion with the FSF (2017-12-11 update: page 126 of this document includes the email in which Eben asserts that the Software Freedom Conservancy is engaging in plagiarism by making use of appropriately credited material released under a Creative Commons license). This, in conjunction with his behaviour over the ZFS issue, led to him stepping down as the FSF's general counsel.

Throughout this period, Eben disparaged FSF staff and other free software community members in various semi-public settings. In doing so he harmed the credibility of many people who have devoted significant portions of their lives to aiding the free software community. At Libreplanet earlier this year he made direct threats against an attendee - this was reported as a violation of the conference's anti-harassment policy.

Eben has acted against the best interests of an organisation he publicly represented. He has threatened organisations and individuals who work to further free software. His actions are no longer to the benefit of the free software community and the free software community should cease associating with him.

[1] Contrary to the claim provided here, Bradley was not involved in this process.

(Edit to add: various people have asked for more details of some of the accusations here. Eben is influential in many areas, and publicising details without the direct consent of his victims may put them at professional risk. I'm aware that this reduces my credibility, and it's entirely reasonable for people to choose not to believe me as a result. I will add that I said much of this several months ago, so I'm not making stuff up in response to recent events)

Re: FSF, SFC, and the SFLC

Date: 2017-11-21 03:29 pm (UTC)
From: (Anonymous)
When you distribute a work under the GPL 2.0, you aren't sub-licensing. A new original license is granted by the copyright holders. By distributing copies or derivative works, you agree to the terms at a particular point in time. By violating the GPL after that time, creates an obligation not to distribute the covered work. Even if you consider and new license to be offered upon every distribution, there is nothing in the GPL that would free anyone of prior existing obligation to the copyright holder.

Re: FSF, SFC, and the SFLC

Date: 2017-11-27 01:30 am (UTC)
From: (Anonymous)
> By violating the GPL after that time, creates an obligation not to distribute the covered work.

A license that requires no signatures is *always* on offer to everyone unless it explicitly says otherwise. It doesn't ... and, in fact, the text reinforces the view that it is always on offer by the use of the word "all" in section 2b as well as almost every aspect of Section 6. You can accept that offer as long as you are not currently violating it. This was a clear ruling in Germany (2004; Welte vs. Sitecom) and was implied in the US (2000; MySQL vs. Progress) when the judge ruled to not force Progress to stop distributing since they had likely cured their breach and could now accept the license again.

Do you have any contrary rulings? Do you have any actual law to site?

> Even if you consider and new license to be offered upon every distribution, there is nothing in the GPL that would free anyone of prior existing obligation to the copyright holder.

To be clear, even if they came back into compliance and were able to continue distributing, they would still be guilty of violating copyright during the period of non-compliance. This was also the substance of the Welte vs. Sitecom decision ... which the FSF hailed while simultaneously ignoring the fact that the decision was contrary to their "GPLv2 Death Penalty."


Matthew Garrett

About Matthew

Power management, mobile and firmware developer on Linux. Security developer at Google. Ex-biologist. @mjg59 on Twitter. Content here should not be interpreted as the opinion of my employer.

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