GNU Affero GPL version 3 and the “ASP loophole”

A few months ago I posted my initial impressions for a draft version of the GPLv3 license, and I am happy to say that as with other licenses developed with community input, the then-good GPLv3 has continued to improve. As I read the “final” draft version of GPLv3, which I think is truly excellent, I thought about the discussions from last year about some other licenses submitted to the mailing list. In particular, I thought about licenses that attempt to live the values of open source in the following context: a developer writes and releases code that’s useful as a web service. But because a use of the web service does not, itself, result in making a “distribution” of software, neither the GPL nor any other open source license guarantees (1) to users the freedom to read, modify, or share the code providing the web service, nor (2) that the developer has any guarantee that if others have made changes to their software, that they can themselves gain access to such changes. Thus the developer may confront a new competitor who can download, read, and modify their code the provide a competing web service (which the open source model does encourage) but then not release either the modifications or the derivative work (which the open source model does not permit). What’s happening? And what should happen?

There are some who argue that we’ve gone far past the point of usefulness of reciprocal licenses like the GPL. I don’t agree, but the argument is that it is so clearly beneficial to open one’s sources to the innovative potential of the community that the developer who chooses to hoard (out of fear, mostly) is just being stupid and will ultimately lose becuase they’ll have a higher cost basis and achieve a lower quality result than the developer who courageously chooses to practice sharing whether or not others are legally compelled to do so.

There are others who argue that the source cannot be protected by source alone–that the limitations of the license must reach beyond copyright and into the operation (or at least the look and feel) of the application itself. If they cannot force all freely licensed works to point back to the initial developer, they are not willing to share sources.

I think the GNU Affero GPL version 3 license walks a firm middle ground, and I would like to see it tested in the marketplace of ideas and commerce. I would like to see whether and how the Affero license balances the interests of developers and users for the benefit of both, while encouraging healthy competition that also benefits the original developer and the whole user community. If you plan to use the GNU Affero GPL license, please let me know so that I can write about how well this experiment works! And thank you.