Is this legal? Is it ethical?

38 Comments »

1. If they hold the copyright to their own code (and make outside contributors sign an appropriate agreement) they can release new versions under a new license.

   Comment by Don Marti — August 17, 2009 @ 4:18 pm

2. Thanks Don… I did not realize that was possible with the GPL.. Most people do hold copyright to their code but I guess the real important part is “(and make outside contributors sign an appropriate agreement)”

   I still think it is a shame

   Comment by Biella — August 17, 2009 @ 4:21 pm

3. Wow. I hadn’t seen this. I spoke on a panel last year with the fellow who runs/ran Everyblock.

   Comment by Kris Cohen — August 17, 2009 @ 4:35 pm

4. there is the people, the code and the data. If the code is gpl’d, you can not ‘sell’ what is already out there as gpl code. Even if it is put under a new license, there will be at least one version that will be added to the commons. But you mention that its a web-based thing and that is where a bit of the value is. You can take the gpl´d code and host a new instance but then without the old data, it starts from square one. The everyblock people will have the most intimate knowledge of the software, so if they dont work on a gpl’d version after the take over, then the other devs will take a while to start working on innovating on the code. As for ethical, if the code is gpl’d, it is meant for use by anyone and is added to the commons. We already won. So how ever the code came to be and what happens after it no longer is gpl’d is mostly irrelavant.
   The only thing would have been if they made it agpl.

   Comment by Kevin Mark — August 17, 2009 @ 5:20 pm

5. The first ethical act was using copyleft, this puts at least one version in the commons. So we win. Of course, the agpl would have been better. How the code came to be or where it goes after it is no longer copylefted is not a concern as the gpl does not care. The missing detail is the data. You can make another instance of the web app but without the data, you start at square one.

   Comment by Kevin Mark — August 17, 2009 @ 5:34 pm

6. sorry about that. I though my 1st comment got lost.

   Comment by Kevin Mark — August 17, 2009 @ 5:35 pm

7. “since the code is under a GPL3, doesn’t MSNBC have to also keep it under the same license if modified?”

   Yes, of course they do. But that doesn’t mean the code has to be shared with anyone other than the people working on it internally at MSNBC. The GPL only comes into play when the compiled code is transfered to someone else (ie: installing it on your computer). If it is a web app there is no transfering of code.

   This very case is addressed by the AGPL which requires that as soon as you provide access to the service, web or otherwise, you need to provide the code. See section 13 (“Remote Network Interaction; Use with the GNU General Public License.”) of the license: http://www.fsf.org/licensing/licenses/agpl-3.0.html

   Comment by Greg — August 17, 2009 @ 7:45 pm

8. That is one of the reasons that FSF require the copyright to be transfered to the foundation for inclusion into the GNU sourcetree. This allows the re-licensing of future code – a problem that was raised with Linux and the question of moving to another GPL version. Together with the (let’s face it) extremely problematic relicensing of Wikipedia – as if the wikipedia ‘community’ have a legal right to relicense text that although licensed to them (the GPL does not explicitly transfer copyright to the wikipedia ‘community’ nor to the Wikimedia foundation). Strange that this move hasn’t been move controversial (even the FSF have waved it through even though the original copyright holders – dispersed and impossible to trace they might be – have not approved it). It is also interesting that Lessig and co haven’t questioned the move (but then they have a vested interest in getting it onto CC).

   So whilst we could argue that here the res universitatis dimension (as a community) is trumping the res privatae (as a private property right) the other side of the coin is demonstrated above when the private property right becomes reasserted against that of the community. And inevitably it *will* be asserted against the community as the software becomes profitable and the ‘community’ is no longer needed. A good example of this is the Kindle OS which is kind of hard to find on the Amazon site, and in any case impossible to compile and reinstall on the Kindle due to all sorts of DRM-like (I suppose TPM is more accurate) protections…

   I just wonder if the example of Wikipedia bypassing/ignoring the copyright restrictions of the GPL will one day be used against communities working within the same framework of copyleft code/content for a quite different reason, such as making huge amounts of money for a multinational…

   Comment by David Berry — August 18, 2009 @ 3:28 am

9. Greg,

   That is what I thought. Since Everyblock is produced, I think, by more than 1 person, I figured that well, not everyone signed over their copyright to Holovaty (I actually don’t know the details).

   Under the conditions where there was various copyright owners, the sale/subsequent closure could still go through because it is a web app and not under the AGPL.

   Finally, Chris’ objection is more that the Knight Foundation should not be acting like a VC fund, and by closing off what was once a more public project, basically they acted in ways that go against the mission of Knight. i don’t quite know enough about the Knight Foundation to say but I tend to agree with Chris. There are plenty of Silicon Valley entrepreneurs to get your funding from without having to dip into foundation projects.

   Comment by Biella — August 18, 2009 @ 3:46 am

10. Thanks to Biella for launching this question into her community, and thanks for all the very helpful and smart responses.

    Biella is more or less right when she notes that my primary concerns have to do with the intentions (and transparency) of the Knight Foundation rather than the actions of the Everyblock team. [Indeed, you could make a strong argument that the cause of "journalism" is well served by the Everyblock project acquiring a substantial base of financial support post-grant, even if it is from a giant corporation like Microsoft.]

    But as person who is a novice in this world (but who also took one of Eblen Moglen’s law classes to know something about the difference between “Free” and “Open” software, or thought I did) the problem comes with the signals Knight has given off through its licensing process. Again, as a layman, when I have been reading about the Knight licenses I have always thought– “this is great! not only will the original code be open but all derivations and future versions of it will too because it has such a strong GPL!” Obviously, not the case, but as I said to me its partly a signaling problem, and it seems like a big one.

    I guess, at the root, my primary problem (which is more philosophical and reactive than informed) has to do when commons-based labor is skimmed and appropriated by capital. This seems like a very big danger coming out of our mostly good world of openness. And it is compounded when the original common labor is funded, not by a VC, but a strategically powerful foundation who is signaling certain things through the spirit of its initial licensing requirements.

    Comment by Chris Anderson — August 18, 2009 @ 4:22 am

11. Greg, Biella: I think it is worth clarifying that ‘of course’ MSNBC cannot ‘take back’ the GPL from the already existing code. But if Everyblock remains the only copyright holders (which is standard practice these days) then they can legally do whatever they want in the future- release regularly under GPL, not release at all, release only occasionally (a la Google.) Voluntarily releasing under the GPL does not constrain the copyright holder to do any future releases under the GPL- it just means that you can’t renege on already existing code. This is a common confusion.

    As far as treating Knight like a VC… I guess I’m mildly sympathetic, but if Everyblock retained copyright then either (1) Knight was OK with this outcome from day one or (2) Knight was incompetently advised from day one. This was a very predictable exit outcome, and very, very easily remediable if Knight was opposed to it- they could have demanded assignment of the copyright to themselves or to someone like FSF if they really were opposed to this sort of outcome.

    (I’m only mildly sympathetic because I’ve seen no evidence that there is an organic, contributing community around everyblock from which everyblock can be ‘taken’. Just because something has been GPLd doesn’t mean that anyone actually cares; mere abstract ‘the bad corporation is taking away the code from a hypothetical community’ doesn’t really do much for me.)

    Comment by Luis — August 18, 2009 @ 4:34 am

12. Luis,

    Thanks for the clarifications.

    We are indeed engaging in many many hypotheticals (but it is fun as it clarifying some issues for me). So I would love to find out–and Chris this is your research puppy so inquire away!–about the “community” behind Everyblock. Perhaps indeed it was mainly one coder or just a handful who handed the copyright over to Everyblock. Or perhaps it was a bit larger where people retained their copyright. .

    I would also love to hear Knight’s take and reaction when if presented in the terms Chris’ phrased it. My gut reaction, which can be completely wrong, is that Knight did not necessarily fully know the workings of the GPL/Free Software, unless there was a guru legal-geek working there, which is totally possible. If presented with this scenario, what would their reaction be? Chris, do you know folks there? It would be interesting to get their take.

    Comment by Biella — August 18, 2009 @ 4:47 am

13. I see the AGPL-misleaders have been at work. No copyright licence can protect future versions from closure if all copyright holders agree to relicense and all=one if contributors assign their copyright to the originator. The AGPL doesn’t address that at all and its “ensure cooperation” bug is worse than the small benefits it gives.

    If it matters to them, the funder should have insisted on the funding recipient had an asset-lock that prevented them selling out. In the UK, there is a specific type of corporation, a CIC, which requires that, or it can be added to some other types – my own LLP co-op has a limited asset lock, but it is policed by the members rather than gov.uk. I think something similar is coming to much of the USA soon, isn’t it?

    Comment by MJ Ray (software.coop) — August 18, 2009 @ 5:35 am

14. The community research is pretty easy- their mailing list has a total of 10 posts since it started (a couple months ago) which does not suggest thriving community who are suddenly being disempowered. And of course they’re still empowered; the code is out there and won’t go away, so if there is a legitimate interest in further development then people can still work on that code, use it, and create a community around it- MSNBC can’t prevent that. In that sense, Knight’s goals will presumably still be met even if MSNBC never contributes another line of code.

    That said, it is entirely possible that Knight was ill-advised and believed (as many casual users do) in the magical power of open source licenses to create community. If this did indeed catch Knight off guard, it might be worth pulling people together to discuss best practices for grant-making organizations who want to create real value and not just lumps of well-licensed code.

    Comment by Luis — August 18, 2009 @ 5:41 am

15. Saying what Luis said, more vehemently:

    Copyleft (i.e., GPL, whether v2 or v3) is irrelevant here. If the code was under any kind of free software / open source license at any point, and there are copies of that code out on the Net, then the code cannot be “closed”. This does not change even if MSNBC becomes the copyright holder. They may become the copyright holder by purchasing the copyrights, but they can’t retroactively un-open-source the copies already released — they can only change the license on versions they distribute from now on (assuming they own the code free and clear; see below about contributors).

    The existing copies are already out there and will be forever. If someone wants to form a community around them and continue developing them, they’re free to do so; no permission from MSNBC or anyone else is required.

    So there is zero ethical question here. MSNBC has bought, at most, a domain name and the right to be a copyright holder. Even then, they won’t own code contributed by people outside Everyblock, unless those contributors signed copyright assignments to Everyblock. MSNBC hasn’t bought a community, and hasn’t bought the ability to “close” off anything.

    Many foundations feel that having someone (or even lots of someones) turn a profit from their investment is a desirable outcome. While MSNBC is certainly free to try to profit from the code, so is anyone else. The only difference is that MSNBC will have paid for the privilege .

    Comment by Karl Fogel — August 18, 2009 @ 6:12 am

16. Thanks Karl for clarifying. Still interested in “. Even then, they won’t own code contributed by people outside Everyblock, unless those contributors signed copyright assignments to Everyblock” but it does not look like there is not much of a community in the first place!

    They can, however, close future versions, no?

    Comment by Biella — August 18, 2009 @ 6:24 am

17. They can close *their* future versions. They can’t close your future versions, if you have decided to maintain a branch of the code based on the last open source copy published by Everyblock.

    The confusion comes from talking about “the code” as though it’s one indivisible entity. It’s not. Really, there are a bunch of copies that happen to be very similar to each other. Through development, the copies can diverge over time, until eventually you get what most people would recognize as different codebases. (This is exactly what happened with Linux, for example: it started out as a modified version of the non-open-source Minix kernel, and over time diverged so much that there was eventually no Minix code left at all.)

    Comment by Karl Fogel — August 18, 2009 @ 6:30 am

18. [...] Coleman wants to know what protections GPLv3 provides for EveryBlock code now that Everyblock has been bought by MSNBC. Here’s the answer: GPLv3 requires that, if MSNBC releases future versions of Everyblock, it [...]

    Pingback by Hacker Visions - Everyblock and GPLv3 — August 18, 2009 @ 7:32 am

19. My answers ran long, so I put it in a blog post.

    To sum up: GPLv3 doesn’t protect web services. Use AGPLv3. Don’t contribute to FOSS web services under GPLv3. Use AGPLv3. Don’t sign agreements that give companies the right to release your code under non-free licenses. Use AGPLv3.

    Comment by James Vasile — August 18, 2009 @ 7:35 am

20. [...] license, whichever one it is, is not a restriction on the copyright holder of the software; its the terms by which the owner of the intellectual property licenses all [...]

    Pingback by The Nuances of the Everyblock Sale to MSNBC « J-School: Educating Independent Journalists — August 18, 2009 @ 9:37 am

21. [...] Anderson, who is mentioned in my previous post on Everyblock, has penned a very thoughtful blog post The Nuances of the Everyblock Sale to MSNBC. He sums up the [...]

    Pingback by Interprete » In Detail: The Nuances of the Everyblock Sale to MSNB — August 18, 2009 @ 9:55 am

22. The Knight Foundation should have had their contract with the EveryBlock folks require a copyright assignment to the Knight Foundation. Then the code could stay free and MSNBC could only use it under the term of the copyleft license.

    Comment by Benjamin Mako Hill — August 18, 2009 @ 11:41 am

23. [...] Is this legal? Is it ethical? [...]

    Pingback by The Knight Foundation News Challenge, Open Source, and the Future or Hyperlocal | Open Parenthesis — August 18, 2009 @ 2:14 pm

24. [...] folks at Journalism School and Interprete go into detail about this, and suggest the Knight Foundation should keep the copyright themselves, [...]

    Pingback by Microlocal Going Mainstream: EveryBlock and MSNBC, Patch and AOL, and Your Mapper — August 18, 2009 @ 7:04 pm

25. [...] And we’ve been asking the same question as Gotham Gazette… … anyone familiar with the Knight News Challenge knows about Knight’s open source requirement: projects developed with Knight funding must be released under an open source license — it is one of the terms of funding. EveryBlock released their source code a few months ago, but Biella Coleman posed an excellent question [...]

    Pingback by Hyperlocal news site bought by MSNBC.com at Ghost of Midnight — August 18, 2009 @ 8:17 pm

26. It’s good to see Luis and Karl working hard to correct many of the misunderstandings people have about the GPL, but I see that there is still work I can do.

    Benjamin Mako Hill, what real difference would it have made in this case if the Knight Foundation was the copyright holder, rather than Everyblock?

    It seems extremely unlikely that MSNBC is going to distribute the code themselves, therefore even if they weren’t the copyright holder, they’d still be under no obligation to distribute the changes to the code. The only difference I can see is that then the Knight Foundation would be free to relicense the code over another license. I’m not sure what the point of that would be. They could rerelease a BSD style license, but then they’d 1) risk fracturing any community that forms around the code and 2) invite even more criticism since BSD-style licenses don’t even require that the source code be made available when the software is distributed.

    I’ve known about Everyblock for a while now, and while I only have casual knowledge about the Knight Foundation’s aims, the sale to MSNBC seems entirely reasonable to me given my initial understanding of the terms of the project.

    For those that think that the Knight Foundation was somehow hoodwinked, or at the very least very naive, try doing a little legwork, the FAQ on the site for the Knight News Challenge, which funded Everyblock, specifically addresses the point that the grantees retain rights to the IP they create, and that grantees can be a for-profit entity.

    It might help if people better understood the important fact of opensource software. For every person coding away on their own time motivated by idealism and/or the promise of glory, there are probably two others who are getting paid for their work. To this point, the everyblock codebase was developed by paid professionals.

    As for whether the Knight Foundation should require grantees to work to build community around their software, that’s an interesting idea. It might make sense to require recipients of large grants, like Everyblock, do an initial release 6 months before the end of the grant period, and work to foster community and make additional releases before the end of the grant period.

    Comment by eas — August 18, 2009 @ 9:07 pm

27. [...] funded everyblock.com project, and now a bunch of people I know – from  journalism, free software, law, and software development are all talking about the ethics and implications of choosing [...]

    Pingback by Alchemical Musings » Freedom of the (hyperlocal) Press? — August 18, 2009 @ 10:40 pm

28. I was (and still am) under the impression all along that everyone working on Everyblock was on staff and being paid. So in the context of Everyblock, the contributed code question is mostly academic — which makes this a great time to ask these questions.

    I know that Everyblock is a bit different from Gotham Gazette and our games project, but I always saw the source code release as being decidedly not the point. The “point” of our project was to look for and experiment with new and better ways to make public policy reporting engaging. So we’ve built our games and released the source code for one (more on the way) but we never made any commitment to building community around our software tools and, frankly, I don’t really think the code we’ve developed (our shoestring budget shows) is all that interesting.

    Still, I appreciate that in the cases where our games are more successful, it is worth something for someone else to be able to look at how we did it. Even if they plan to start from scratch themselves.

    So I think Knight got what they wanted–the project they funded succeeded as a project and even though, post-funding its been swallowed by the borg, the work that Knight funded is available to anyone who wants to pick up where Everyblock left off.

    Comment by amanda — August 19, 2009 @ 7:04 am

29. PS. Whatever you think of Everyblock as media, I’ve never heard it described as “grassroots” before.

    Comment by amanda — August 19, 2009 @ 7:21 am

30. Hi Everyone,

    I put some general thoughts here, but in this thread I think its worth noting that msnbc.com just adopted an open-source brat. Software projects like everyblock are living, changing, organisms – don’t be deceived by Everyblock’s apparently thin community – it depends heavily on a deep stack of free software, and arguably much of its magic comes from PostGIS (and python, of course).

    Behind the scenes of EveryBlock.com

    The application is part of a much larger ecosystem, and I really doubt it will survive long if they cut off its access to the open air.

    Moving toward hybrid economies means we need to stop begrudging capital – instead, we need to teach capital to share. Think of the implications of this purchase – if they weren’t already, msnbc.com will pretty much be forced to run linux, postgres, python, and start getting to know many members of these open communities. Exposure to these open cultures is certainly not enough to guarantee that greed will be exorcised, but its a start.

    And consider a few counterfactuals – where might this funding have gone w/out Knight’s stipulations? Straight into ArcGIS, .NET, Oracle, Flash, most likely. Instead, many open source developers were supported, running code was created, and most significantly, new business models and UIs were seeded and explored.

    I am not convinced that Knight got duped here. In fact, they might be quite pleased with this outcome. Funding is always a gamble – at least they are taking risks and venturing into uncharted territory. There are way too many failed software projects/communities that were sheltered by funders, and mostly suck.

    Comment by Jonah — August 19, 2009 @ 7:24 am

31. EveryBlock, MSNBC.com and the General Public License…

    By now everyone has heard the news: EveryBlock is now part of MSNBC.com. And anyone familiar with the Knight News Challenge knows about Knight’s open source requirement: projects developed with Knight funding must be released under an open source lice…

    Trackback by MediaShift Idea Lab — August 19, 2009 @ 7:24 am

32. Just FYI, MSNBC isn’t buying EveryBlock, but msnbc.com is.

    They’re half-sisters.

    MSNBC is the cable TV company, owned by NBC, based in New York, while msnbc.com is the news Web site, owned by Microsoft and NBC, based in Redmond, Wash.

    It’s the Web site that’s buying EveryBlock.

    Comment by Abe — August 19, 2009 @ 1:20 pm

33. Thanks for the clarification Abe!

    Comment by Biella — August 19, 2009 @ 1:26 pm

34. “(This is exactly what happened with Linux, for example: it started out as a modified version of the non-open-source Minix kernel, and over time diverged so much that there was eventually no Minix code left at all.)”

    False. Linux did not get a single line of Minix since they one.

    Comment by test — August 19, 2009 @ 6:25 pm

35. [...] journalism program director has blogged about their perspective on the sale, and some great conversations have continued.  I have also had a wonderful opportunity to discuss the purchase [...]

    Pingback by Alchemical Musings » Interview: Christopher Mackie on Knight’s Hyperlocal Gambit — August 25, 2009 @ 8:56 am

36. That said, it is entirely possible that Knight was ill-advised and believed (as many casual users do) in the magical power of open source licenses to create community. If this did indeed catch Knight off guard, it might be worth pulling people together to discuss best practices for grant-making organizations who want to create real value and not just lumps of well-licensed code.

    Related to this, Berkman has released a whitepaper on (apparently) just this topic today. Probably worth checking out for folks interested in this topic.

    Comment by Luis — August 27, 2009 @ 1:28 pm

37. [...] few updates on the EveryBlock case and the Knight Foundation. Tieguy (Luis Villa) left a , comment which I am quoting in full below: That said, it is entirely possible that Knight was ill-advised [...]

    Pingback by Interprete » Updates: Private Foundations and Licensing — August 27, 2009 @ 1:58 pm

38. [...] there is the question of “whether it is ethical to take foundation money and turn around such a high profit from a [...]

    Pingback by Everyblock, Nonprofiteering, and the Affero License « Digifesto — October 6, 2009 @ 12:58 pm

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