Can Software be “free”? – Taking the case of Qabel as an opportunity to discuss liberty and software freedom.

Statue of Liberty - Ingfbruno - Own work - CC BY-SA 3.0

Recently Matthias Kirschner, president of the Free Software Foundation Europe (FSFE), has renewed his critique of talking about open source software or open licenses in relation to the encryption software called Qabel. He emphasizes that its Qabel Public License (QaPL) is “neither approved by the Free Software Foundation (FSF) as a Free Software license nor by the Open Source Initiative as an Open Source Software license.” With his statement he reacts to media reports calling Qabel an open source product due to its license allowing access and modification of the source code. What is the difference anyway – and what are the problems the FSFE is worried about?

What most people know under the term “Open Source Software”, is also denoted as “Free Software”, which has some different political implications: Prominently Richard Stallman, founder of the Free Software Foundation, criticizes that the meaning of the words “open source” only suggest that the source code – the algorithms underlying the running software – are accessible. The fact that people “stretch the term so far that it only means ‘participatory’ or ‘transparent’, or less than that”, he argues, neglects the “users’ essential freedoms” (outlined below). He states: “[W]e say that a nonfree program is an injustice to its users. The open source camp declines to see the issue as a matter of justice to the users, and bases its arguments on practical benefits only.”

Access, in this logic, is a practical matter, whereas freedom translates into the moral question of justice. Consequently the rejection of an Open Source or Free Software qualification somehow implies that Qabel is neither practical nor just.

But what is the discussion about? Qabel is an encryption platform which aims to achieve as much privacy as possible through a high level of end to end encryption and meta-data obfuscation combined with ease of use in order to support civic subjects to preserve their civil liberties. Its creators conceive it as a fundamental need to publish the application’s source code to prevent hidden back-doors but ask to pay license fees for commercial exploitation in order to “make it possible to push the project forward in the long term and at the same time guarantee the greatest possible degree of freedom.” Finally they intend to exclude the “dark side” from deriving benefit from the software and therefore excludes the use for military and intelligence services.

So in fact Qabel tries to combine a level of software freedom with pragmatic restrictions for economic and political reasons. But the restrictions object the free software claim for freedom of purpose, which leads Kirschner to clearly demarcate the difference. For him it is important to defend the integrity of the free software ideals by emphasizing that Qabel is not free but proprietary software. However taking into regard Qabel’s purpose to preserve civil liberty, some fuzziness arises regarding the terms proprietary and more importantly: freedom.

Four Freedoms

By claiming “four freedoms”, the Free Software Definition apparently makes a reference to the Four Freedoms claimed by United States President Franklin D. Roosevelt:

  1. Freedom of speech
  2. Freedom of worship or religion
  3. Freedom from want or the right to an adequate standard of living
  4. Freedom from fear (of physical aggression of other nations)

The software users’ essential freedoms according to the Free Software Definition are as follows:

  1. The freedom to run the program as you wish, for any purpose
  2. The freedom to study how the program works, and change it so it does your computing as you wish.
  3. The freedom to redistribute copies so you can help your neighbor.
  4. The freedom to distribute copies of your modified versions to others.

Does Qabel support Roosevelt’s notion of Freedom?

Qabel framework -

Qabel tries to provide a high level of privacy through building an encryption platform which encrypts data end to end (from client to client). This should render useless any interception of private information during transport and storage outside of the client computers, including information requests from secret services addressed to Qabel as a service provider, since Qabel itself has no access to the unencrypted user data. Furthermore the software is designed to avoid the visibility of meta-data such as who shares data with whom and when, data which is at least as sensitive as the content itself.

So in this respect, Qabel supports freedom of speech. Thanks to Snowden we know that our paranoid nightmares are just a daily routine, so in order to preserve freedom of speech it makes sense to have the possibility to privately store and exchange information and to hide as much as possible our social networks which are visible in meta-data.

Moreover it is sad to say that nowadays privacy in some contexts is important to support freedom of worship, since governmental and non-governmental actors (e.g. secret services as well as so-called terrorist groups) discriminate strongly against the religions of individuals with strong consequences as to how they treat those individuals.

If it comes to the freedom from want, we need to think about how digital participation nowadays is part of an adequate standard of living. Regarding free software it is often argued, that this does not mean “free of charge” – but in practice through the right to redistribute copies, free software usually means access to software tools without paying license fees.

The restriction to only use Qabel free of charge if you are not gaining money from it has two implications. First of all, any individual or non-profit entity is allowed to use the software free of charge. So in this respect, from a civil liberty group or activist perspective, there is little difference between software licensed under a “free” public license and a “non-commercial” public license. So apart from the usual conditions of having resources like hardware, network connection and electricity, the usage of the respective software does not put any financial burden on the users.

The second implication of this restriction is that companies who use the software for making a profit help to financially support the sustainable development of the originating software. This by the way helps to support the adequate standard of living of the full-time developers of the software.

“The fourth is freedom from fear, which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor – anywhere in the world.” F. D. Roosevelt

It seems to me that excluding “military, intelligence or related purposes” from the usage of the encryption software can be regarded as an attempt to hinder the power of governmental institutions which are capable of committing physical aggression against their neighbours. Even if those kind of actors might disregard those kind of terms of use, as some argue, it provides a legal ground for litigation. So, it can be argued that this restriction is in support of the freedom from fear. Last but not least, a high level of privacy protection in itself serves the freedom from fear, since it protects civic subjects from being spied out by intelligence services.

So in conclusion Qabel seems to strongly support Roosevelt’s understanding of freedom. The limitation for commercial use does not restrict non-profit use, which is the main use in the context of civil rights, and the restriction of use by the military and intelligence services can even be seen as strengthening the freedom from fear.

Qabel and Software Freedom

“[T]raditional software is made available in object code only, where the software user is not entitled to study or even modify the source code. We believe that this is a salient shortcoming in particular when it comes to software which is designed to help the user protect his privacy in a virtual world.” QaPL

This quote from the preamble of the Qabel license shows that a key goal of publishing the code is to put the functioning of the software to scrutiny in order to open the black box of software. This serves the software freedom to study the software (#2) and to change how it works. And this is a key issue in order to avoid obfuscated hidden back-doors in software applications.

The freedoms to redistribute original (#3) and modified (#4) versions of the software are not restricted. So anyone is free to improve, modify and even fork the software (i.e. maintain a modified version under a new name).

Finally only the freedom to run (#1) it for any purpose is limited through charging fees for commercial use and prohibiting military and intelligence use. The latter might be hard to enforce in practice, but as argued above has a reasonable intention regarding the freedom from fear.

To a good extent Qabel respects the user’s freedoms, and fully supports the freedoms of civil non-profit users. But since it does not qualify as free according to the Free Software Definition, how is Qabel related to the attribution of being proprietary?

Towards a “Proprietary Software Definition”

Does a software like Qabel, which excludes military use and which binds commercial use to license fees, qualify as proprietary software? If we assume for a moment, that proprietary is not simply the counter term of free, the wiktionary provides an applicable notion of proprietary:

“(3) Created or manufactured exclusively by the owner of intellectual property rights, as with a patent or trade secret.”

Regarding the discussion about software freedoms above, it becomes clear that Qabel is not intended to be exclusively developed by the Qabel team itself. Moreover except the restriction for commercial use and the prohibition of military use, there is the freedom to modify and distribute the software. As quoted from the QaPL its most important intention is to open the source code up to scrutiny, which is the opposite of a trade secret.

Interestingly the Qabel creators indeed intend to patent parts of its framework’s technical process, even if they concede that the patent system “is broken”. This is not the major criticism in the discussion about the freedom of purpose, but highlights a remarkable legal construction of Qabel.

The problem that Qabel’s creators try to avoid is, that there is the legal possibility to patent parts of the technical process, so there is a risk of a third party patenting it and prohibiting any usage of such technical process. The only possibility they see to escape the potential closure through a patent is to apply for a patent themselves. However in order to achieve a separation of powers, and to not possess the patent, they decided to transfer the patent to a trusted agent. Ironically they even tried to convince the Free Software Foundation Europe to be that trusted agent. However the FSFE refrained from taking that role due to the “lacking freedom” of Qabel (and probably due to a reasonable general rejection of patents).  Finally Qabel found a trusted agent in lawyer and civil rights advocate Meinhard Starostik, who is known for filing a constitutional complaint against the German law on data retention and is actively engaged in establishing the Cultural Commons Society (C3S).

Does this patent construction stand for proprietary software? Rather, to me this looks like a patent hack, akin to the original Copyleft. The Copyleft was invented through a hack of the Copyright. This hack actually used the Copyright law (originally designed to protect intellectual property) to conserve the licensed software as a common good and to protect it against any appropriation. Following this logic, the use of a patent which is then transfered to a trusted agent, is intended to avoid the appropriation through any untrusted legal entity – a minimal concession to be proprietary, necessary to avoid becoming fully proprietary.

It becomes clear that a main interest in this legal construction of license and patent is the availability of the source code and thus its scrutiny, accessibility and the freedom to fork. Consequently – coming back to the above definition of proprietary – it is not conceived as being exclusively developed by the manufacturer, or let us say the originator. Neither is it conceived as being exclusively possessed by the originator, since the patent is not owned by the copyright holder but by a trusted agent.

Paradoxically, in response to earlier critique from free software advocates, the QaPL currently qualifies itself as “proprietary software” stating that this “means software that is not licensed under an open source license as defined by the open source definition”. This seems like a bug to me, but it is the outcome of an earlier debate about the openness or freedom of Qabel lead by free software advocates. We definitely should reconsider this intermediate solution because this implies a very limited understanding of free and open, or at least a somehow exuberant definition of proprietary.

In conclusion, I am very reluctant to qualify Qabel as proprietary software according to the above quoted definition, also I am reluctant to qualify it as proprietary just because it does not fully comply with the Free Software Definition. Rather it seems necessary to discuss what kind of “freedom” we strive for.

What freedom do we need?

Probably more important than discussing definitions and terms like free software, open source and proprietary is to discuss which freedoms a civil society needs and how we can establish a common standard which enables the private exchange of data. Qabel tries to “keep the project going, while at the same time ensuring the greatest possible freedom.” What is more, it tries to achieve ease of use in order to allow non-technical users a high level of privacy. But how do we balance pure software freedom and realpolitik?

The big players have no interest in either investing their money in solutions that stop their money flow from personal data business or solutions that undermine their monopolies through opening interfaces for data exchange between different platforms. Rather, they follow a fully proprietary closed source policy, denying even to use a common protocol. (Free software projects like GNU social, Diaspora and other free software projects show how e.g. different social network applications can exchange data, connect their users, and enhance their networks, yet they remain niche products. As an analogy it would seem quite strange to restrict e-mail exchange within each provider, and force e-mail users to have a proper account at the recipient’s provider.)

Facing global players governing the Internet, the pioneering times of cyberspace seem outpaced. Nowadays new founded free and open source software projects have little potential to establish new free and open standards like the email protocol back then. Given our current capitalist ecosystem as well as its real-existent license and patent regimes and the capital power of global players, it seems quite reasonable to ensure a monetary backflow to keep a project alive and sustainable and create measures to prevent getting bought up.

Software Freedoms - FSF CC BY 4.0

Against this backdrop it appears that the freedom we discuss here is always limited through established socio-legal regimes. There are many other limitations to individuals beyond those of software-user freedom. Only two of these limitations, monopolies of capital and power of intelligence services, are addressed by Qabel’s license through limitations of use.

Acknowledging that, it seems like a reasonable compromise to request license fees from those who gain profit through services based on the project while private and non-profit use is free of charge. If that means to discriminate between for-profit use and non-profit use, does this make the software unfree?

If we think of the user’s freedom, it seems like there are situations where one user’s freedom restricts the other user’s freedom. Richard Stallman argues that open source digital restriction management software (DRM, usually coined as digital “rights” management)  is not free software, because it restricts the user’s freedom to use digital contents.

Who are the target users of a software whose freedom we would like to preserve? If we talk about users exerting their civil liberties, the users of the software are most probably civic subjects, which already excludes military by definition.  Moreover thinking about exerting civil liberties, is the freedom to get financial bargain through the software an essential freedom?

Software does not exist without context. Software can affect the freedom of consumers of digital contents as well as the freedom of civic subjects criticizing their government. DRM as well as encryption technology has societal implications which underpin the discrimination of users in regards to restricting or granting certain freedoms. So a certain kind of discrimination of users is connected to societal implications of technology. The Political Agnosticism of free and open source software (Coleman 2004) often assumes technology as neutral. But technology has societal implications and ignoring them makes these implications more powerful.

Qabel neglects technological neutrality and takes a political stand for civil liberties of civic subjects. I do not think that acknowledging civil liberties as a political stand in a license necessarily leads to the pluralism of various licenses of arbitrary interest groups Richard Stallman is worried about, because civil liberties are not a question of taste but the fundament of democratic societies.

We should ask what software freedom is good for? Is free an end in itself? Do we mean free as in free speech, or free as in free market (what would be in accordance with the European “Four Freedoms”)? Or do we want liberty as in civil liberty? Claiming free software as essential for a free society, these notions of freedom should be carefully considered.

Taking Roosevelt’s four freedoms as a reference, Qabel has a lot of potential to support civil liberty. I find it quite interesting how Qabel tries to bridge the oxymoron of monetary sustainability and public source code. This challenges the hegemonic understanding of Free and Open Source Software with its libertarian freedom of purpose claim as well as the usual understanding of proprietary exploitation of software through closing the source code and prohibiting distribution and modification.

Unfortunately trade-offs are sometimes unavoidable, and pure software freedom is not achieved by Qabel’s approach, some choices may not be perfect. However the originators acknowledge the societal implications of the software they propagate. They try to link economic sustainability and civil liberty and at the same time to reduce their power of ownership. I think that is an interesting endeavour which deserves some sympathy. I am very curious where this will lead, and how this socio-economic experiment develops.

Finally this should remind us to keep the conversation alive about our concepts of software freedom, license regimes, patent systems as well as the societal implications of the technologies we use and propagate.

References and Acknowledgements

Coleman, Gabriella. 2004. “The Political Agnosticism of Free and Open Source Software and the Inadvertent Politics of Contrast.” Anthropological Quarterly 77 (3): 507-19.

Thanks to Carla Ilten, Vincent Gengnagel, Hector Postigo, Hannes Glück and Ben Wagner for helpful comments and discussions on the draft of this essay.