Here's a quick summary of the issue. Free (the name has nothing to do with free software at first glance), one of France's most important Internet provider (both in terms of customers and of technological innovation), lends to the user for some hi-speed access offers a kind of improved modem, the Freebox, that provides Internet access, telephone, and TV. However, it is known that on the Freebox are installed some free software programs under the GNU GPL, and this license indicates that the source code must come along with the program if it is distributed: Free does not provide it. The FSF France has criticised this; Free answers that, as the Freebox is still their property (it is only lent to the user), there is no diffusion of the software.

To be more precise, here is the excerpt of the GPL covering the topic:

"You may copy and distribute the Program [...] in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange;[...]"

(You know, this passage has been translated to French for my francophone readers; if only they all understood English!)

And here is a passage of the Conditions Générales de Vente de Free (that is, the Terms of Service, more or less):

"L'Equipement Terminal est la propriété de Free et est mis à la disposition de l'Usager pour les seuls besoins du Contrat."

You may need a translation, I'll take care of it, it's easy;-):

"The Terminal Equipment is Free's property and is provided to the User only for the needs of the Contract."

That's for the texts.

To understand the arguments of both parties, here are two articles (in French, sorry):

Here is a quick translation of some selected parts of the above links. (I do not guarantee that I am able to be faithful to the original authors' thoughts: I am very sorry if I have made a mistake, and encourage you to read the original texts if you can. What I mean is: I would not like you to get a false impression of their opinion because of my errors.)

For the FSF France:

"[...]

The questions that Free has to face are: why didn't you inform your two million users that the Freebox that you provided them contains free software? Why do you refuse to do this, although it is simple and respectful of the free software programmers and of copyright?

[...]

Free has refused to do what is fair for more than two years. Free software actors prefer no to go to court and what is proposed to Free so that we may be satisfied would only require a few lines to be added on the documents provided with the Freebox.

[...]

We hope that, by presenting publicly the debate, we will make Free realise at least that it is is not costing them much to do what is fair.

[...]

The GNU GPL is undoubtedly the most respected license in the world. We sincerely hope that the next version will have the same quality. A good license is one that is respected by everybody without going to court."

For Free:

"[...]

Just remember that the Freebox has been provided (lent) to subscribers for 4 years (and not 2 years), Free helps/hosts/finances a huge number of free software projects, there is a number of free software geeks per square meter in Free's buildings that is unbeatable in France, is there anybody believing that they would indulge to do something opposed to the GPL v2 while they probably are the first contributors to free software in France?

[...]

The GPL can not be discussed, it has to be respected, and Free respects it.

[...]

The FSF has forgotten the GPL v2, if we listened to them Google or Amazon would have to disclose their source codes, which is the direction in which the GPL v3 goes. Another example: I have a computer in a datacenter, with a modified Linux kernel, am I forced to give the sources of my modified version to the owner of the datacenter?

[...]"

This is an interesting debate, and there is of course no clear culprit, notwithstanding each side's strong belief that they are right. The question asked by this affair can, in my opinion, be summarised as such:

"Is the act of providing without giving away, in a for profit service, hardware including a copy in binary form of a software under the GNU General Public License version 2, that is not meant to provide the user with this copy of the software, a distribution of the program as understood by the GPL?"

Explanations:

  • "providing without giving away": the Freebox is provided to the customer, but is still Free's property;
  • "a for profit service": an Internet access service, provided by a for profit corporation ;
  • "a copy": modified or verbatim, there is no difference for the obligation to the provide the source code as far as the GPL is concerned;
  • "in binary form": it is a compiled version of the program, the source code is not provided;
  • "that is not meant to provide the user with this copy of the software": the Freebox is not intended to be a means of software distribution, it is not, for instance, a USB key.

There is no answer to this question in the GPL, justice therefore has to decide. The answer, I repeat, is not obvious. Contextual information about the problem with no direct link, such as Free's support to free software (they are one of the most important French mirrors for projects of this kind) might therefore be taken into account in the process.

Let's go back to the conflict's history. In the beginning was the private negotiations phase. What were the motivations of the FSF France and of Free? If Free won, they would not have to do what the FSF France asked ("a few lines" on the documents provided with the Freebox): that's not much. If they lost, they would have to do it: it's also negligible. The same thing applies to the FSF, they would not win much (a few lines that nobody would read) and would not lose much (not having these lines).

Not an important conflict, it seems. However, it's easy to imagine what took place. The FSF France asks Free for something that is not costing much. Free answers that it would bring even less to the FSF. They all believe that they are right according to the law, although the judicial base is not clear. The conflict intensifies.

Then, the debate is publicly disclosed. Everything changes. There is still nothing to be won, but there is much to be lost. If they go to court, the one which is wrong will have to pay fees, may be sanctioned. However, even if we do not reach this extreme, it easy to understand that, now that people are following the affair, they want a winner and a loser. Prestige is now involved, and there is no obvious compromise allowing the two to keep their credibility. There is still everything to be lost and nothing to be won, but there is no going back.

Clarifying the jurisprudence is a bet, because what will appear can be favourable to either of the protagonists. If it is decided in court that the FSF France's claims have no value, there is a risk that other Internet providers, that had chose to conform themselves to the constraint of providing the source code, stop to do so - and there could be clear violations of the GPL as well, as soon as the media will carry headlines such as "The GPL invalidated in court" or other nonsense. I do not know who will win, and, honestly, I don't really care. Free and the FSF France should work together! I know that it's not possible anymore, but it's necessary! They are complementary, they would win much from a collaboration. Free is already favourable to free software, and any promotion of free software from them would have a huge impact: this should be done! If they gave away their source code, it will be a wise action as far as marketing is concerned, and the free software community will be happy to improve this code. A virtual R&D space à la Firefox will be created. We nowadays know that ecosystems of this kind work and are a winner-winner scheme. Free and the free software community have everything to win from this. (Not only because of the similitude in names.)

Of course, this solution is one of an idealist and cannot be applied for insert a good number of reasons here: I know this. It could as well be that the FSF France and Free have no other option anymore than going to court. If this is the case, I once again can see how one can take huge risks for meagre profits, prefer loser-loser to winner-winner, and find oneself locked in a course of action putting much at stake, starting from a unimportant conflict. Congratulations, guys. You've done it all wrong. Both of you.