Free-ish Software [dot] Org!

Free software "advocate" Brandon Lozza, a long-time otherwise-non-participating-and-contributing "advocate", as well as a participant in the harassment directed at me and my family, is more than willing to fraudulently alter the comments that others have placed in his blog, presumably to mask his active involvement in criminal harassment.

Lozza tore down his blog for the second time the month before last (after having embarrassed himself horribly there, and on Twitter, with his free-floating shrieking and unfounded accusations), and put it up again a few weeks later, vowing to "turn over a new leaf". Seems like the "new leaf" isn't appreciably different than the old one.

Brandon and the pseudonymous "_Goblin", another "advocate" regularly quoted over on Roy Schestowitz's site, had a public falling-out on Twitter over _Goblin's (not inaccurate) that Lozza was indulging in sockpuppetry or "nymshifting" as he put it, and suggestions that Lozza was, in fact, hijacking the identity of another long-time "advocate", "AstralKnight".

It's clear that "_Goblin" is correct about the sockpuppets, anyway: after shutting down his prior Twitter IDs, "ender2070" and "boycottlefty", he's now using the ID "AtlasDX" (apparently he's an Astroboy fan: it's nice that he's been able to find material at his reading level). Further evidence is in "AtlasDX" having referring to "Brandon" in the third person, an obvious attempt at sockpuppetry.

The argument continued over in Lozza's blog, where he posted an entry on "When Advocacy Turns to Zealotry", a subject on which Lozza ought to be able to speak authoritatively. Mostly, it's a lot of whining about "not jumping to conclusions" (presumably like the unfounded conclusion that I'm a "Mono supporter"), and "not making accusations of nymshifting", presumably not even when there's clear and abundant evidence of such actitivities.

The argument continued into the comments, and Lozza claimed that he'd had no other ID on Twitter than "ender2070'. I pointed out that he'd had "boycottlefty" for starts in the comment here, but that's not what it currently reads. Lozza went in and edited it, after the fact, to change "boycottlefty" to "astralknight". Presumably he's attempting to do this to cover his involvement of the harassment of myself and my family using the "BoycottLefty" Twitter identity and the blog at boycottlefty.wordpress.com.

Lozza, it should be said, has been in the habit of hunting up press releases which only so much as mention my employer, and calling or mailing anyone with contact information included to complain about me, in an impotent effort to interfere with my employment. He's also directly harassed members of my family via email, in coordination with Jason Christopher Hughes. Both are named in the open criminal complaint here. This sort of pathological behavior isn't unexpected from someone with Lozza's track record.

The FSF enforcement action against Apple's iTunes App Store may have broader implications for developers of software which is licensed under the GPL.

To refresh things: according to Brett Smith's second posting, the FSF's recent "enforcement action" against the Apple App Store for violating the GPL hinged on the following point, emphasis added:

In effect, [Apple's App Store] Usage Rules do the same thing as Apple's Digital Restrictions Management—narrowly limiting what you can do with the software—but the method is different: they work legally instead of technologically. Rules (i) and (iii) say that you are required to accept the Terms of Service to use the software, and that you may only install the software on five approved devices. These rules are exactly the kind of 'further restrictions' that are prohibited by the GPL: they limit your ability to use and distribute the software.

It should be noted that the terms and conditions set out by Apple specifically call out that a "valid end user license agreement" (and presumably the GPL is a valid license agreement) trumps Apple's "Licensed Application End User License Agreement":

From Apple's App Store Terms and Conditions, §4 ("License of Products"), emphasis added:

Your license to each Product that you obtain through the Service is subject to the Licensed Application End User License Agreement set forth below, and you agree that the terms of the Licensed Application End User License Agreement will apply to each Apple Product and to each Third Party Product that you license through the Service, unless the Product is covered by a valid end user license agreement entered into between you and the licensor of the Product (the “Licensor”), in which case the Licensor’s end user license agreement will apply to that Product. The Licensor reserves all rights in and to the Product not expressly granted to you.

However, this is complicated by Apple's requirement that the use of applications from the App Store be governed by a set of usage rules. This requirement is laid out in Apple's App Store Terms and Conditions, §8b ("Security"), emphasis added:

You understand that the Service, and products transacted through the Service, include a security framework using technology that protects digital information and limits your usage of Products to certain usage rules established by Apple and its principals ("Usage Rules"). You agree to comply with such Usage Rules, as further outlined below...

Smith specifically calls out two of these "Usage Rules", laid out in Apple's App Store Terms and Conditions, §9b ("Usage Rules"):

(i) Your use of the Products is conditioned upon your prior acceptance of the terms of this Agreement and the applicable end-user license agreement.

Note that the "applicable end-user license agreement" is, in the case of GNUgo, the GPL. Smith's issue is that Apple also stipulates that "prior acceptance of the terms of this Agreement" is a condition of the use of the program and that Apple (deliberately or inadvertently) places some additional restrictions on the use of applications, regardless of their end-user license, such as the following one, from the same section

(iii) You shall be able to store Products on five iTunes-authorized devices at any time.

There are some thorny issues starting to arise here. Since Smith specifically calls out §9b(i), even though Apple seems to clearly recognize that the end-user license governing the softwareis the GPL, it would seem that in the FSF's view, simply asking the user to agree to any additional terms or conditions beyond those expressed in the GPL ("...you are required to accept the Terms of Service to use the software...") puts the provider of the application in violation of the GPL.

Since the 5-device limit is managed on the Apple end via the iTunes Store and not on the user end, it's very difficult to see how GPL-licensed applications could be specifically exempted from this limitation.

Microsoft's Windows Marketplace for Mobile

More interesting is the impact of Smith's reasoning on other mobile device application stores. We can find similar language in the terms and conditions which govern the use of Microsoft's Windows Marketplace for Mobile. The following language is from the Windows Marketplace for Mobile Customer Service Agreement, Preamble:

By clicking “I accept” or by downloading an application, you agree to be bound by the terms and conditions contained in this contract and the Standard Application License Terms at the end of this contract (unless alternative application license terms are provided with the application).

So, just as with the iTunes App Store, by downloading and application, or by clicking "I accept", one has agreed to be bound by Micorosoft's CSA, in addition to the application application license, in the case of GNUgo, again, the GPL. The following is the preamble to the afore-mentioned "Standard Application License Terms":

These license terms are an agreement between Application Provider and you. Please read them. They apply to the software application you download from the Windows Marketplace for Mobile (“Application”), unless the Application comes with separate terms (“Third Party License”), in which case the terms of the Third Party License will apply. This agreement also applies to any

• updates and
• supplements

for the Application, unless other terms accompany those items. If so, those terms apply.

BY DOWNLOADING OR USING THE APPLICATION, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT DOWNLOAD OR USE THE APPLICATION.

Except for the foregoing, if the Application enables access to any Internet-based services, your use of those services will be subject to the separately-provided terms of use.

Again, just as with the iTunes App Store, an exemption is made for alternative licenses, such as the GPL. However, according to Smith's argument, this is likewise immaterial here. Since Microsoft's agreement is constructed a little differently from Apple's the following terms, found in the Windows Phone Marketplace "Standard Application License Terms", §1a ("Installation and Use Rights"), may not apply in the case of a GPL-licensed program.

Installation and Use. You may install and use one copy of the Application on up to five (5) mobile devices you personally own or control and which are affiliated with the Windows Live ID associated with your Windows Marketplace for Mobile account. You may not install or use a copy of the Application on a device you do not own or control.

However, if this policy is enforced by Microsoft in the same fashion as the analogous policy is enforced by Apple, without regard to the end-user license on the application tiself, the problem is essentially identical.

Regardless, obtaining a GPL-licensed application from the Microsoft Windows Marketplace for Mobile requires acceptance of the Customer Service Agreement as a precondition, and is therefore at odds with the GPL.

It seems that a GPL-licensed application cannot be placed on the Microsoft Windows Marketplace for Mobile, either, at least not by anyone other than the original copyright holder, and—in that case—not under the GPL.

Google's Android Market

Similar problems exist with Google's Android Market. In order to get an application from the market  at all, one is obligated to accept Google's Terms of Service, emphasis added:

1.3 You accept the Terms by either (1) clicking to agree or accept where these options are presented to you, or (2) actually using the Android Market application or web service.

Google extracts some interesting agreements from you in those terms:

2.4 From time to time, Google may discover a Product on the Market that violates the Android Market Developer Distribution Agreement or other legal agreements, laws, regulations or policies. You agree that in such an instance Google retains the right to remotely remove those applications from your Device at its sole discretion.

So, by using the Google Android Market, you are required to abandon your right to "Freedom Zero": you can run the program for any purpose, but only as long as Google aggrees that it's okay. Even more interestingly, use of the Android Market requires the user to recognize and acknowledge existing intellectual property law, something clearly at odds with the FSF's position:

3.8 You agree that Google and/or third parties own all right, title and interest in and to the Market and the Products available through the Market, including without limitation all applicable Intellectual Property Rights in the Products. "Intellectual Property Rights" means any and all rights existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights worldwide. You agree that you will not, and will not allow any third party to, (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management or forward-lock functionality) in the Products, (iii) use the Products to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iv) remove, obscure, or alter Google's or any third party's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Products.

Clearly, the Android Market is no better-suited for the distribution of GPL-licensed software than the iTunes App Store or the Windows Marketplace for Mobile.

Conclusion

WIth its enforcement action against Apple, the FSF has opened a can of worms. Since there are clearly instances of GPL-licensed software on both the Windows Marketplace for Mobile and the Android Market, it would seem that the Free Software Foundation is now obligated to bring enforcement actions against Google and Microsoft as well. For their part, developers who work with GPL code on which they do not hold the copyright should be very cautious in making it available through any of these venues, or through similar services which may post similar problems (which is, almost certainly, all of them).

Developers who produce GPL-licensed code and who do hold copyright on it can probably expect the use of the GPL to be banned increasingly in these contexts. It almost certainlywill be from the Apple store, and it's not unreasonable to expect the the respective legal departments of Google and Microsoft, who are at least as capable of going through these issues as I am, will most likely insist.