Microsoft Buys GITHUB

This transaction is big news this week, and some have been tempted to call it the end of an era.  But a few years ago, Microsoft joined the Linux Foundation, and if we needed a symbolic act to to mark it, that was the end of the era of Windows vs. Linux — a red versus blue dynamic that as already outdated by that time.  So in a way, the acquisition of GITHUB by Microsoft is a bit of a coda.

Some open source advocates are still anti-Microsoft, and the announcement apparently caused many developers to move to competing services like GITLAB, which has reported a leap in subscribers this week.  The philosophical divergence between GITHUB and GITLAB may not be obvious to the uninitiated.  GIT was developed as a decentralized tool, in the spirit of the loose control of open source, and ironically, GITHUB used that to create a centralized hosting platform.  In broad terms, this is kind of like creating a private Internet funneled through a single company.

But most observe that the truth is more nuanced, as Microsoft has been gradually joining the rest of the industry in the open source revolution for quite some time.  We will leave aside, for the sake of politeness, their patent claims accusing Linux.

Setting aside the red versus blue dynamic, there are a few interesting aspects to this deal.  The first is the valuation applied to GITHUB — a huge $7.5 billion in an all-stock deal.  GIT, of course, is an open source product (the history here is a great read, particularly the explanation of the name), and that might lead some to conclude that open source can be big business after all.  That’s a bout half true; open source business strategies always have to include an upsell element other than the code.  Microsoft did not buy GIT, the open source software product, it bought GITHUB, a developer platform with a massive user base of 28 million developers — which happens to run on GIT.

Second, in recent years, Microsoft has made a strategic move squarely into the cloud services and SAAS space, with emphasis on products like Office 365 and Azure.  Azure, provides, for example, cloud services for application development, and so perhaps the acquisition of a popular online development tool by Microsoft should be no surprise.

Finally, it will be interesting to see how the acquisitions may change the licensing landscape for GITHUB code.  GITHUB has historically taken a hands-off approach to licensing: Unlike some other code repositories, it does not require an open source license to be applied to every project.  Some time ago it started recommending the practice of using license terms, but stopped short of requiring it.  It’s an open question whether this policy will survive acquisition by one of the world’s biggest proprietary licensors.



First GPL Case in China — or Is It?

The Beijing Intellectual Property Court recently handed down a decision relating to GPL.

See WYSIWYG note below on the facts.

The plaintiff Digital Heaven Internet Technology CO., LTD. (数字天堂网络技术) made publicly available its product HBuilder. One of the modules in HBuilder (“Aptana” released by Appcelerator, Inc., a third party) was licensed under GPL 3.0, and three modules developed by the plaintiff, “CIM plugin”, “ACR plugin”, and “HTML code drawing in real time plugin”, also included in HBuilder, had no other specific licensing terms.  Plaintiff alleged that defendant Pomelo Technology CO., LTD.(柚子科技有限公司) used some of its source code in a project called APICloud without permission.

The judges opined that the GPL license is enforceable in China, but that interpreting the copyleft conditions should be done on a case-by-case basis.  Asked to distinguish between mere “aggregation” and “derivative” works in GPL-3.0, the judges ruled that the relationship between the modules developed by the plaintiff to the GPL licensed Aptana is aggregation only, and thus the plaintiff’s modules need not be licensed under GPL 3.0. (Here, it is not clear whether the plaintiff or defendant alleged that plaintiff’s modules were under GPL 3.0, by inference.)

The judges ruled for the plaintiff and ordered damages of  “one million and 250 thousand” RMB, or approximately 165 thousand EU dollars, not including lawyers fees and court costs.  (See the decision for more information about the latter; the Google Translate feature does a decent job on this part of the decision.)  The judgement is appealable.

WYSIWYG: The decision is in Chinese, and the above is based on a description from secondary sources, which I will update if and when I receive a translation or learn to read Chinese, whichever comes sooner.  Actually, the facts are not clear to me at this time — particularly, it is not clear why the judges would rule that the Digital Heaven modules need not be under GPL, but state that the GPL is enforceable, because in that case the issue of enforceability does not seem ripe for decision.   The court awarded damages, but it is unclear to me whether these damages were for breach of GPL or simply copyright infringement.

Update: The defendant argued that the plaintiff’s software was under GPL. Note this may be a generally useful strategy to defend against copyright claims for proprietary software, though asking a court to interpret GPL as a matter of first impression may be an expensive defense to prosecute.  The damages were for copyright infringement, not violation of GPL.

Update: An English translation appears here.

More Companies Join the L/GPL Cure Pledge

Six more companies have joined Red Hat, Facebook, Google and IBM (after the lead of Linux Foundation) to provide a cure period for GPL2 and LGPL2.1 violations.  This initiative was originally announced in November 2017.  See the press release from Red Hat.

It’s great to see momentum for this effort, which enables licensors and licensees to work out GPL and LGPL violations amicably.

My post on the initial announcement is here.

Israel’s Information and Communications Technology Authority Bows to Pressure to Comply with Affero GPL

Under pressure from open source advocates, the Israeli Information and Communications Technology Authority recently shared its first open source software, extensions made by the ICT Authority to the CKAN data portal platform to help make the platform usable in Hebrew.  The case did not involve formal enforcement of AGPL, but resulted in a code release.

For more details, see the Momentum post.

More on the SFLC/SFC Trademark Dispute

Software Freedom Conservancy filed a motion for summary judgement in response to SFLC’s petition to cancel Software Freedom Conservancy’s trademark (noted previously here).  The motion is based on various grounds, but the most interesting part of the motion lays out the unclean-hands argument.

The motion states, “SFLC chose the name “Sotware Freedom Conservancy” and filed the legal documents forming the Software Freedom Conservancy, Inc. It then proceeded to provide Conservancy with legal services, including trademark services.”

The motion goes on to say:

After the SFLC filed this action Moglen stated in an interview with the newspaper The Register that he has no problem with the Conservancy name. The Register reports: “ ‘I have been trying for three years to have a conversation about some differences with some former employees,’ …he said that any outcome he could imagine that involves [Conservancy] would have the organization ‘continue to exist and flourish under its existing name.’”… These words, spoken by the Executive Director of the petitioner after it filed the petition to cancel the registration of the Conservancy mark, illustrate that the petition was filed, not because there is any confusion at all, but in an abuse of this legal process, wasting the Board’s time and resources, solely to inflict pain on former SFLC employees by attacking the organization that they are passionate about.

Once can only observe with awe and dismay as this internecine battle plays out.

Red Hat Commits to Cure Option on GPLv2 Violations

Today, Red Hat and several other major technology companies released a commitment to afford GPLv3-style cure terms to GPLv2 violations, in an effort to “provide greater predictability to users of open source software.”

Red Hat’s pledge comes on the heels of a community enforcement pledge by the Linux kernel developers, reported here,which was in turn preceded by the SFC/FSF community enforcement guidelines.

These commitments represent a consistent community effort to distance enforcers (or potential enforcers) — like Software Freedom Conservancy, the Linux Foundation, and other technology companies — from the kind of copyright trolls reported here.  They also represent an effort to resolve the legal questions raised by lack of an express cure provision in GPLv2, and other open source licenses.


UPDATE: Bruce Perens wrote an interesting FAQ on this.