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.
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.