How Should the Free Software Movement View the Linux Foundation?

By Eben Moglen | April 11, 2016

The opinions offered here are my own. I am not expressing the views of any SFLC clients, the Free Software Foundation, or Richard M. Stallman.

There has been much recent controversy concerning the relationship between the Linux Foundation and “community,” or non-commercial organizations in the world of free software. I’ve been somewhat confused by the dynamics of that conversation, which has spilled out from private mailing lists into the public eye occasionally, and I have found it useful in clarifying my own views to state my thoughts on the subject, which I’ve now decided to share.

The Linux Foundation, which was formed by merging OSDL and the Free Standards Group, is a trade association, which is a special form of legal entity under US tax law. It is not a charity, or a public service organization. It’s an association of businesses, paying dues, in order to achieve common business purposes, which in the case of LF results in a wide range of activities, all centered around promoting the success of Linux. Because it does not pay federal income taxes, and its exemption—like those of charitable or public benefit organizations—comes from section 501c of the Internal Revenue Code, lay observers might suppose that it has some “community benefit” function, but the precise opposite is true. The tax-exemption rationale for trade associations is that their primary income is the dues paid to them for achievement of business purposes. Since that expenditure would be a business expense netted against revenue for the member businesses if they performed the same tasks individually, there is a sharp disincentive to group together for common business purposes unless the dues are also untaxed in the hands of the recipient. It is axiomatic to their identity that trade associations aren’t charities, that they only benefit their donors (as opposed to 501c3 tax exempt charities, which must not benefit their donors specially), and that they pursue business goals, not social interests.

Several consequences follow from this fact.

First, the trade association LF doesn’t make legal decisions or take legal actions for the software development project that makes the Linux kernel. It isn’t responsible for copyright enforcement, and it doesn’t make decisions for the collective of kernel developers. This is as it should be, and no one on either institutional side of that relationship—so far as I, a mere bystander, can see—doubts it. If that weren’t the case, it seems to me, there would be more to worry about, and it’s therefore surprising that very well-informed people aren’t sure about it.

Second, it isn’t reasonable to expect the trade association to act as a compliance cop with its members. Its function is to help them according to their definition of helping. There are many ways for LF to provide compliance assistance to its member companies, and it does so. SFLC works with LF to provide, for example, a different form of compliance advice and assistance, with respect to US cryptography export control regulation. We have a particular expertise in that subject, given the nature of my personal practice since PGP, and the needs of our primary client base, free software projects. We have built some compliance assistance tooling, released as free software, to help identify software source code potentially subject to export control regulation, and template advice on how to use the relevant regulatory exceptions. We used that tooling to provide advice to LF on FOSS it is itself responsible for releasing in its members’ interest, and we are assisting LF to provide such assistance to its member companies, including for some large collaborative FOSS projects in which LF members have substantial business interest.

LF is in many respects productively and valuably involved in assisting with copyright compliance, but it makes neither legal nor political sense to expect that assistance to be about “policing its members.”

Third, LF’s value to the communities that make software, SFLC’s clients and others, does not lie in our being “part” of LF. We have no stake in its internal governance or its decision-making, and we don’t seek one. That would be as inappropriate as the LF’s corporate members seeking to have their lawyers on the board of SFLC. Once again, precisely the opposite is true. LF’s value to us is that it provides industry parties with a place to discuss and decide on common strategies—carefully and responsibly conducted within the sphere set by competition law—that as non-commercial parties we can then talk with them about, seek to inform or modify with respect to our own needs, negotiate with, and seek help from. LF helps businesses both determine their collective interests and execute collaborations built on those interests. For those of us who are not representing businesses, LF thereby performs an essential and invaluable function.

In negotiation, as professional negotiators all know, it is never a friendly activity to tell counterparties what their interests are. Describing the other fellow’s interests is an attribute of hostile negotiation. For us as non-commercial parties, negotiation is only possible on the basis of the common interests identified by our counterparties. LF, and the other means by which businesses meet among themselves to discuss their common needs, are indispensable to us as preconditions of the discussions we wish to have. In such discussions, LF is also an invaluable diplomatic resource, because its lines of communication with its member businesses are friendly and always open.

It is thus in our interests as communities and community representatives to support and facilitate LF’s roles. We do that not because LF is an agent of community interests or an entity participating in any way in community governance, but because it is an entity helping to coordinate alliance among those very businesses with whom we as communities are most engaged for mutual benefit.

LF, like OIN, has specific valuable roles to play in the coordinated activity of securing, peacefully, respect for free software copyrights, and for copylefted software rights in particular. Having done the work of securing and maintaining respect for GPL’d rights longer than anyone but Richard Stallman, I have a unique basis for respecting those roles. Because of LF and OIN, the work of securing, peaceably, the necessary respect for my clients’ rights is infinitely easier than it was in, let us say, the latter 1990s. That’s good, because there is infinitely more to do, as well. It is only the organizations that we do not control, organizations that are primarily committed to business rather than community goals, that make it possible for us to scale the necessary processes. This is an ironic outcome of the immense success we planned for and have enjoyed.

It is unhelpful and unproductive to attempt to change the nature of this dynamic by resetting organizational roles. We need to improve the quality of coordination among parties, not change the nature of the parties coordinating. I have spent the last three years trying to help evolve improvements in that coordination. Like all diplomacy, it is slow and sometimes frustrating: people do not always keep the commitments they have made. But at no time in that process have I found LF to be unwilling to improve the terms on which all the relevant parties mutually inform one another and arrange for facilitated settlement of potential disputes.

Some frustration has been expressed that LF does not seem to be as favorable to copyleft as those of us who care deeply about free software licensing might wish. This is a perfectly comprehensible feeling, which I share. But I think the reasons for our frustration should be sought in another quarter, namely our own.

LF will be as favorable to copyleft as its members are. Copyleft licensing is easy for businesses to doubt: required sharing of work that could be instead “owned” by the capital investors seems to be mere loss in conventional calculations. I have spent most of my adult lifetime not telling businesses that copyleft was in their interest, but educating them about copyleft and others’ experience with it, in order to allow them to draw their own conclusions. Experience has taught me that this process, though uncertain and unscalable, is absolutely crucial to the attainment of the free software movement’s fundamental objectives. It is, however, all too easily destroyed by any form of overly aggressive copyleft enforcement that fully confirms businesspeople’s skepticism.

This delicate dual process—of securing respect for the free software copyleft licenses while also increasing their acceptability to businesses—is now in danger of failing. The results can be seen in an unnecessary increase in acrimony, on the one hand, and a decrease in willingness to support the value of copyleft in even core infrastructure projects—from which all businesses, societies and persons in the Net will benefit—on the other. If we are to avoid the erosion of what we most value, it is apparent that we must redouble efforts at a new general social consensus on processes of copyleft compliance. We need to demonstrate in action, not declare, that the means by which we ensure fair sharing are—like traffic enforcement, environmental regulation, and fair labor standards—not losses to businesses, but gains to society and to the businesses that live there. Supply-chain based initiatives like OpenChain; educational outreach efforts conducted at the Legal Network mailing list, at ALN, and elsewhere; and closer mutual information and facilitation or mediation arrangements among SFLC and all other relevant community parties as well as LN, OIN, etc., are all urgently required.

Two decades ago, all the work required for this purpose could be done by two people, Richard and me. It is neither disappointing nor troublesome that this is not true anymore. There are now thousands of people around the world directly involved with these issues, and hundreds of thousands more in communities and businesses with substantial stakes. Recent decisions about the makeup of Android will change the relationship between copyleft and a substantial fraction of the human race. Those following directly in our footsteps—trying to put copyleft more and more at the center of everything in the technology that either supports or eliminates freedom in human life, for social and political as well as technological reasons—must now work in careful and shifting alliance with many other social and economic powers, still much greater in all measures of puissance than we are. The sort of antagonism once represented by Microsoft has vanished. But a combination of creeping distrust resulting from mistakes on our part and a deterioration of commitment among young developers could spell our doom anyway.

The free software movement’s policy, while requiring subtle care in execution, is obvious. We must be firm without undue truculence. Our priorities must be carefully selected. We must not choose fights that are not worth winning. And we must make optimal use of the extraordinarily beneficial institutions that have grown up in our neighborhood.

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