INDUSTRY ANALYSIS

A Consumer’s Review of the General Public License

Last week, I examined the nuances of a marketplace for licenses and its relationship to a parallel marketplace for products that use those licenses. This time, for those readers who might actually be in the market for a license, let’s review the one that gets the most ink — the General Public License (GPL).

There is no question that the GPL is an important product. It enjoys a huge portion of the license market relative to other licenses. Out of all the distinct software packages available today, a large percentageare licensed using the GPL, and except for “licenses” that simply put the software into the public domain, it is probably the most commonly used.

Gaining a large market share has a network effect, much like ownership of telephone lines or operating systems. The more a license is used, the more software producers are aware of it, making it much more likely to be the one they select. Furthermore, increased use makes it more likely the language of the license will eventually end up being interpreted by the courts.

Case Law Certainty

Court activity produces case law and certainty, which adds another reason to use the license. Of course, for this to work, the license selected by a license consumer should be identical to the one tested in court, so that the certainty provided by case law applies.

Another reason the GPL is important is money. Whenever there is potential for large amounts of money to change hands, there are bound to be business people to fret about it and lawyers to analyze it.

And then there are the proprietary software developers, who no doubt have serious concerns about the “copyleft” provision of the GPL, since they investedlarge sums of money into software that must be sold on a per copy basis to recover the investment.

Taking the GPL for a Spin

The creator of the GPL is the Free Software Foundation (FSF). Anyone whowants the GPL needs to get it from the FSF. It is easy to obtain — itcosts nothing — and it is available in several languages. Like mostproducts, it is not perfect. The FSF is working on the next version, GPLversion 3, but since this is only vaporware for now, this column willconcentrate on GPL version 2.

The GPL is a nice product, but it could use some polishing. For onething, it was written by programmers, not intellectual property lawyers.How do I know? The first section of the GPL is section “0.” Lawyerswould never start counting with “0,” but that is a natural choice forprogrammers. Naturally, as a lawyer I am biased toward keepingattorneys in the loop, but even so, legal review of licenses is definitely a goodidea. In many cases, the only time when license details matter is when alegal dispute erupts or has the potential to develop. Fortunately,consumers of GPL version 3 can look forward to a lawyer-vetted upgrade.

When lawyers don’t get in on the act, questions of interpretation canlead to some serious problems. Take section “0.” It says, in part:

“a. ‘work based on the Program’ means either the Program or anyderivative work under copyright law: that is to say, a work containingthe Program or a portion of it, either verbatim or with modificationsand/or translated into another language.”

Before the colon, a “work based on the Program” is defined as including “derivative works under copyright law.” Following the colon, a “work based on the Program” is defined as “a work containing the Program or a portion of it.” Unfortunately, those two definitions are not the same, because the legal definition of “derivative work” is a term that hasbeen the subject of much case law, and it doesn’t happen to mean “a workcontaining the [original work] or a portion of it.”

If I were writing this license, I would include a definitions section that exactly defines everything I need and ensures that usage is consistent throughout.

Subtle Problems

Often, subtle problems — such as the lack of notice requirement for downstream users — don’t show up until some unusual confluence occurs. If someone receives software and the GPL is conspicuously noted, the copyright holder could argue that the recipient had notice of the license terms.

However, if someone removed the GPL from the software, or it just dropped off for unexplainable reasons, and another party received the software without notice of the licensing terms, a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be open source, they might have animplied license to use the software without the copyleft provisions of the GPL.

Lawyers might also argue that it is unclear whether the GPL is based in contract or property (that is, whether a licensee is bound because the licensee agreed to the provisions of the GPL, or a licensee is the owner of some limited property right granted to him or her by the licensor). It is also not clear if the GPL intends to bind the licensee beyond the scope of copyrights, restricting the licensee’s actions even more thancopyright law would. And which state or country’s laws should be used to interpret the GPL if there is a dispute?

Waiting for Version 3

I expect these bugs will be fixed in the new version 3. Ironically, when GPLed software has bugs, any knowledgeable programmer can try to fix them. However, since the GPL itself is not freely licensed, we have to wait for the manufacturer to release version 3 before the bugs can be fixed.

For storing small piles of change, all you need is a good clay piggy bank. But storing millions of dollars requires steel vaults and security guards. The same goes for the GPL. When the license is for a “Hello, World” demo, it doesn’t really matter how solid the license is. But when companies spend millions of dollars and thousands of hours developingsoftware, or large groups of programmers expect to rely on copyleft to keep their work open and free, the license needs to be steel-plated and flight rated.

The way the open-source world is evolving, my guess is that clay piggy banks are not going to cut it anymore.


Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.


4 Comments

  • I find it very ironic you should spend so much ink covering the import of adopting licenses that "have been tested in court." When was the last time one of these shrinkwrapped licenses were actually tested? I don’t know anyone with the funds or time to go up against a Microsoft or the SPA. But I do see quite a lot of wrangling going on at present over the GPL and a certain unix-ey corporation, and I also know several folks (a couple of them pretty good friends) who have _succesfully_ challenged inclusion of their GPL software in (non GPL) commercial products. Of course, those cases were much like the Microsoft (non) cases – when presented with the facts the infringer chooses the option of backing down and fixing the problem rather than spending money on one of those "legal challenges" you espouse.
    Anyway, last time I heard of one of these "tests" happening regarding shrinkwrap licenses it was… oh, let’s see… a certain Adobe case where the plaintiff (that would be the licensor in this case, Adobe) was pretty much left hanging because click-through licenses couldn’t be (at least in that case) considered a legally binding contract.
    Hmmmmmm….

  • Keep up good work, Phil. I invite folks to read
    http://www.ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp Don’t miss the definition of "derivative computer programs" (323). In German law, "derivative work" is called "Bearbeitung" (something creative enough to have a copyright on "derivative work") and "Umgestaltung" (modifications can’t be copyrighted). Compilations are "Sammelwerke". It’s quite clear that when you "compose" copies together (not modifying or even reading the code) the result is a compilation, not a derivative work. You should also read "Christian H. Nadan, A Proposal to Recognize Component Works: How a Teddy Bears on the Competing Ends of Copyright Law, 78 Cal.L.Rev." (it’s available on westlaw for just 12 bucks via credit card). His paper is cited in http://courses.cs.vt.edu/~cs4984/computerlaw/lewis.doc ("LEWIS GALOOB TOYS, INC. v. NINTENDO OF AMERICA, INC.") It’s probably the same "Christian H. Nadan" who wrote the devastating "legal review" of the idiotic FSF’s interpetation (which is nothing but politically motivated "FUD" and groundless bluffing) of the GPL. http://groups.google.com/groups?selm=40EE8CDC.977AE902%40web.de Hth.

    #include <war> // computer game war stuff 😉
    int main() {
    unsigned explosive_power = 0;
    while (still_not_eliminated("FSF"))
    send_a_bomb("FSF", explosive_power += 10/*kiloton*/);
    }

  • Since you seem to want to nitpick the GPL, here are some nitpicking answers to your argument.
    GPL3 is not vaporware. Pre-beta versions can be found on the web.
    ..
    GPL2 was written by Richard Stallman, who is not a lawyer. However, Eben Moglen is an intellectual property lawyer who has successfully enforced the GPL for over ten years without having to go to court. (Courts have to interpret the unclear language written in licenses and contracts by lawyers; apparently the GPL doesn’t have unclear language in any important respect.)
    ..
    Nobody approached by the FSF for a GPL violation has volunteered to be the first test case. You might say that SCOG is an exception, but FSF did not sue SCOG, and IBM’s countersuit against SCOG was for copyright infringement. SCOG might say that the GPL licensed it to distribute Linux, but SCOG did not satisfy the conditions of the license, so it did not have permission to distribute.
    ..
    Your nitpicking about "work based on the Program" is misleading. The definition is before the colon. After the colon comes "that is", which clearly indicates an explanation, not an alternate definition. The explanation is just a short description of how "work based on the Program" interacts with the copyright law definition of derivative work, but you mistakenly take it for an attempt to redefine "derivative work".
    ..
    Your argument on notice is over-simplified and incomplete. The GPL does not give anyone permission to remove the copyright notices in a GPL’d program, so anyone that does it is violating copyright law and distributing the illegal program also violates that law. Anyone who knows that the program is illegal has no right to receive it. Anyone who does not know still violates copyright law by using it, but may escape damages other than being forced to stop. Anyone who distributes the illegal program will have to show due diligence in determining what license he or she had to do it.
    ..
    Lawyers can argue anything they want. When they can’t pound on the facts or the law, they pound on the table. (For example, look at SCOG).
    ..
    Any lawyer that take an unbiased look at the GPL will realize that it is a license that gives conditional permissions. If you don’t obey the conditions, you don’t get the permissions. No contract.
    ..
    It is also possible to look at the GPL as containing a public offer that can be accepted by doing something contained in the offer. There is no contract, but if you do that thing, you accept the offer and create a contract. There is no practical difference in these viewpoints.
    ..
    Since companies like IBM and HP spend billions of dollars on GPL’d programs, they, as I, must think that GPL2 is steel plated and has no significant bugs. The clay piggy banks have not be used for more than a decade. All GPL3 has to do is to answer the nitpicking, and add additional armor in the form of discouraging patent predators.

  • <quote>For one thing, it was written by programmers, not intellectual property lawyers.</quote>

    Have you heard of Eben Moglen? Didn’t you know the FSF has lawyers?

    <quote>If I were writing this license, I would include a definitions section that exactly defines everything I need and ensures that usage is consistent throughout.</quote>

    They did – the passage you were referring to is exactly that. The *intention* of the passage is perfectly clear – they simply intend the phrase "based on the Program" to encompass derivative works (as defined by copyright law).

    Why pin a meaning like that down to a potentially flawed definition when, as you say, there is a great deal of doctrine on the subject? Firstly, you couldn’t possibly hope to encompass all of the doctrine in a short definition. Secondly, by pinning it down, you open the possibility of creative lawyers getting around it.

    <quote>subtle problems — such as the lack of notice requirement for downstream users </quote>

    Not a problem at all – users don’t even need to know about the GPL. See section zero: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted…".

    <quote>a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be open source, they might have an implied license to use the software without the copyleft provisions of the GPL.</quote>

    That’s just so wrong. If I receive some of Microsoft’s code without any attached license do you really think the court would conclude that it’s in the public domain for me to do with as I please? Of course not. You appear to be confusing ‘open source’ with ‘public domain’. The base position is that if someone received copyrighted work (without any accompanying license) then they are simply not permitted to copy/modify it. That’s true whether the code is Microsoft’s code or my "hello world" code. The fact that I release my "hello world" code under the GPL does not alter the fact that it’s a copyrighted work.

    <quote>Lawyers might also argue that it is unclear whether the GPL is based in contract or property (that is, whether a licensee is bound because the licensee agreed to the provisions of the GPL, or a licensee is the owner of some limited property right granted to him or her by the licensor)./quote>

    They might. It shouldn’t take them long to realise, however, that the GPL merely allows you to do certain things that, under copyright law, you would not otherwise have the right to do. Read paragraph 5 – it’s perfectly clear.

    <quote>It is also not clear if the GPL intends to bind the licensee beyond the scope of copyrights, restricting the licensee’s actions even more than copyright law would.</quote>

    Isn’t that’s what EULAs are for? The GPL isn’t an EULA. Why would the GPL even want to do that?! The GPL grants you rights that you otherwise would not have.

    <quote>However, since the GPL itself is not freely licensed, we have to wait for the manufacturer to release version 3 before the bugs can be fixed. </quote>

    No you don’t. You can write your own implementation of it from scratch, including whatever modifications you like. In fact, you could even turn it into an EULA (it seems that’s what you’d prefer). You’re a lawyer, so you shouldn’t have much trouble doing that.

    <quote>The way the open-source world is evolving, my guess is that clay piggy banks are not going to cut it anymore.</quote>

    Well, why don’t you ask the FSF how many parties have backed down when threatened with breach of the GPL. I’m not aware of the GPL ever being successfully challenged. Are you? I guess it isn’t a clay piggy bank. It seems it is steel plated and flight rated after all.

    Do you understand the GPL at all? I’m a consumer and I didn’t find your review very helpful at all.

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