# Is SFLC Shooting Open Source in the Foot?
The [academic article by SFLC about ZFS][sflc-on-zfs] is troubling
and may unintentionally shoot free software licensing in the foot.
When I was at Sun (as part of the team that released the Java
Programming Language by starting the [OpenJDK][openjdk] project) I often
heard community concerns about the [CDDL][cddl] license. At the time
the big complaint was about the ["Choice of Venue"][webmink-on-cddl] clause.
I got involved because Sun had developed many essential
Java libraries and distributed them under CDDL. The community
requested a more permissive license and I was able to
convince internal project leaders (and Sun's lawyers) to make
a licensing change for a handful of these projects.
And there was much rejoicing.
Based on my experience in helping Java to become open source
I came to appreciate the legal hacks on copyright which
make open source possible. It's the free software license
which uses copyright to *enable* sharing (vs. the default
of *disabling* sharing).
And so I have appreciated many of the writings and speeches
from SFLC on the mechanisms of software freedom. I was
particularly moved by the talks about the ["Freedom Box"][freedombox]
concept.
That's why this SFLC post on ZFS sounds so off key:
if open source works because of free software licenses
it seems weird to weaken that foundation by prioritizing
the "equity" (or intended spirit) of the license.
Allow me to mention that as I do most of my computing these days on
GNU/Linux I miss the super cool features of ZFS from Solaris. I did
try an early version of btrfs and was quite disappointed (but that's
another story).
In this happy case the source code for ZFS is available, but what
about the future, when we aren't so lucky and someone asserts in
court that the "you know, the software license was really
about the spirit of sharing and that means we are allowed
to use it -- and not be held to the pesky details as written in the license".
A lawyer I respect called this out: ["Equity" has no place in US law][pchestek-on-sflc]. The point is that for lawyers software licenses work because
they have clear, written rules to guarantee the spirit is upheld; but spirit
doesn't work in front of a judge -- clear rules do.
Free and open source software has made so much progress in
all facets of life why on earth would we second guess
the licensing tools that made it possible? And why would SFLC
try to shift the spotlight (and in this case the legal burden)
to "a good-faith belief that the conduct falls within the equity
of the license". Especially given the earlier comment which clearly states
"[the combination] is inconsistent with the literal meaning of
GPLv2 section 2(b)."
**Wat?**
The entire [*raison d'ĂȘtre*][raison] for open source software licenses
was so that developers (and users) would have clarity and
wouldn't have to *ask permission* to use the software!!!
As stated elsewhere (and like I did with those Java libraries)
the easy solution is to have the ZFS copyright holder (now Oracle)
reclicense (or dual license) the code under a compatible license
(permissive or copyleft). If OpenSolaris was still a thing I might
understand some hesitancy, but why not liberate ZFS now?
So we have to wonder what could possibly be motivating this
odd "spirit of the license" position on the part of SFLC?
Fortunately charities that enjoy non-profit status are required
to make public filings of their income in something called a "Form 990".
The [latest SFLC 990 I could find][sflc-990-2013] shows SFLC getting 78%
(or just over $5 million) from "non public support" (see page 14).
A number with "two commas" would even be interesting to
for-profit companies. Just *whom* is making these "donations"
and what exactly do they get in return? Apparently [I'm not the only one
wondering about this question][emacsen-on-sflc].
On one hand it's important to know if SFLC as a non-profit is, indeed,
acting in the public interest (as the IRS requires). Yet the even
bigger issue here is **would "asking for a consensus about the spirit"
trump the written copyright license and set a scary precedent for open
source software in general?**
[[!tag sflc gpl cddl zfs floss]]
[sflc-on-zfs]: http://softwarefreedom.org/resources/2016/linux-kernel-cddl.html
[openjdk]: http://openjdk.java.net/
[webmink-on-cddl]: https://blogs.oracle.com/webmink/entry/choice_of_venue
[cddl]: https://opensource.org/licenses/CDDL-1.0
[freedombox]: https://freedomboxfoundation.org
[pchestek-on-sflc]: https://twitter.com/pchestek/status/703933428341805056
[sflc-990-2013]: http://990s.foundationcenter.org/990_pdf_archive/412/412165986/412165986_201401_990.pdf
[emacsen-on-sflc]: http://blog.emacsen.net/blog/2016/02/28/why-is-sflc-siding-with-oracle-over-linux-developers/
[raison]: https://en.wikipedia.org/wiki/Raison_d'%C3%AAtre