Dear Reader,

Things have been pretty quiet in Free Software for a few years now. When I started this job, Linux and the little mystery ship we call Open Source were fighting for survival. Microsoft, SCO, and other large companies were bringing all their powers to break up that delicate balance of code freedom established by the GNU Public License (GPL). Much of the battle was fought through PR stunts and misinformation, but some of it was fought in courtrooms – and the GPL always won.

But things could be heating up again. Red Hat recently announced that only paying customers will have access to Red Hat Enterprise Linux (RHEL) source code, and apparently, if the customer tries to exercise the rights to that code as defined in the GPL, Red Hat will terminate the customer agreement. This Kafkaesque bit of legal juggling seems like a blast from the combative past. Only this time, the lawyers have had 15 additional years to perfect their skills at surgical hair splitting.

Will Red Hat's lawyers win the day? I don't know, but I can tell you two things. This matter won't get decided based on anyone's idea of what is moral or affirming for the community. And it also won't get decided based on anyone's idea of what is essential or necessary for Red Hat's business. The question of whether Red Hat and its parent company IBM can get away with this power move will hinge on one thing alone: the GPL license and the case law that surrounds it.

I'm actually surprised at the number of commentators, many from within the FOSS community, who say, "Red Hat has to do this," and then they launch into a lot of business arguments, as if they weren't paying attention to these past 20 years. You can't really make a valid business argument for violating a software license. Can you picture someone saying, "Of course I had to pirate this Windows instance. It doesn't make business sense to pay the license fee." You can try it if you want to, but if you get caught, your "business" argument won't do much for you in court.

On the other hand, the broad pronouncements that IBM/Red Hat is violating the "spirit" of open source seem a little weak – as if IBM cares what you think of their spirit. To a multinational corporation, "spirit" is a motif for sales meetings and television commercials – use it when it helps, and lose it when you see an opportunity.

The license is what matters, and it is surprisingly difficult to find any solid information on the licensing issues. The reason for that is that people don't really know. The GPL looks simple on the surface, but it is a complex and precarious thing. Did IBM find a way around it? The best analysis I've seen so far is the post by Bradley Kuhn of the Software Freedom Conservancy, who writes, "Red Hat's lawyers clearly take the position that this business model complies with the GPL (though we aren't so sure), on grounds that nothing in the GPL agreements requires an entity keep a business relationship with any other entity. They have further argued that such business relationships can be terminated based on any behaviors – including exercising rights guaranteed by the GPL agreements. Whether that analysis is correct is a matter of intense debate, and likely only a court case that disputed this particular issue would yield a definitive answer on whether that disagreeable behavior is permitted (or not) under the GPL agreements." [1]

Of course, the other question is, what will the competitors do? Red Hat undertook this step to eliminate their clone competitors. Did they overplay their hand? Many eyes are on recent RHEL clones Alma and Rocky. So far AlmaLinux has adapted by dropping their claim of being 1:1 compatible with RHEL and will instead aim at "Application Binary Interface compatibility." Conversely, the attitude of the Rocky team appears to be "See you in court, Red Hat." They have announced that "Our legal advisors have reassured us that we have the right to obtain the source to any binaries we receive, ensuring that we can continue advancing Rocky Linux in line with our original intentions." [2]

I wonder if someone in one of those blue-suited IBM decision rooms mapped out the possibility that, instead of having fewer competitors, the company would end up with more competitors because of this decision. Now none other than Oracle is lecturing them on the importance of community values. (When Oracle is tacking to your left, you know you have veered far.) And SUSE, perhaps Red Hat's biggest competitor, has announced that it is forking RHEL and will invest $10 million on maintaining an independent version that will be available forever without vendor lock-in.

All of this makes it sound like Red Hat miscalculated, at least when you are peeking out through our Linux lens. But there is one more thing to remember: SUSE might be Red Hat's biggest competitor, but it isn't IBM's. IBM's biggest competitor is Microsoft, and in the Microsoft space, EULAs and code restrictions are not really controversial or even noteworthy – they're just another part of the landscape.

By Joe Casad, Editor in Chief