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GPL's Strength
Morty writes "So, why hasn't the GPL been successfully
challenged yet? In this article, Eben Moglen, General Counsel to the FSF, explains that the GPL is in a stronger legal position than most licenses. Most licenses restrict the user from doing what would otherwise be legal. Because the GPL (and presumably, other free/open software licenses) let the user do things that are otherwise illegal (copy and redistribute software), the GPL is in a stronger position to dictate terms. If the user doesn't accept the terms of the GPL, the default is for copying and redistribution to be forbidden under copyright law. I had never looked at it that way before. . ."
This is Moglen's follow-up article referenced in the first one.
I'm sure the FSF people have gone over this a million times (e.g. in gnu.misc.discuss), but here it is, again. The GPL doesn't force you to do anything. It only prohibits you from doing some things. Quoting from the article:
Just like any other software, you cannot redistribute GPL'd software except by certain license provisions. You cannot distribute derivative works of GPL'd software except by certain license provisions.
That is all. When you use Emacs, you aren't forced to do anything. When you sell (or otherwise give) Emacs to someone else, the GPL kicks in. If I download an e-book from somewhere (or buy a CD), I cannot distribute the data as I see fit -- I must follow the license under which I got it. Software is the same. GPL'd software is also no different.
2 dashes and a space, or just 2 dashes?
Not really... Think of the "software as a book" metaphore. You don't need a license to read a book, just as you don't need a license to use software. The author of a book does not give up copyright when they sell a million copies of a book --- you didn't agree to a license, yet you cannot photocopy a book and sell it. Licenses are restrictive measures, above and beyond existing copyright law, put in place to dictate how software can be used and distributed.
The GPL does not restrict or regulate the use of software at all. The only activity the GPL restricts is the conditions under which covered software can be redistributed.
You quoted, "let the user do things that are otherwise illegal (copy and redistribute software)". Most Open Source licenses don't regulate that activity either. The other activity that is regulated is preservation of the original copyright notice: you can't claim someone else's work as your own. The BSD, Apache, X style licenses say you can't plagiarize but can do anything else you want
You are correct, though, Microsoft's EULAs do restrict use of the software as well as copying, redistribution, reverse engineering and reselling.
The point Professor Moglen was trying to make is that in legal terms the GPL is SIMPLER than such a EULA and is therefore less prone to failure. I would imagine that is largely true of most other Open Source licenses.*
* The MPL/NPL, APSL, IBM's public license and other corporate style Open Source licenses tend to be complicated and fail the simplicity criterion.
Yes, but without agreeing to the GPL, copying the GPL work is an illegal action, since the default under American and European Copyright Law and International Treaty is for all copyrights to be with the author unless otherwise stated.
It's not the GPL restricting your rights, it's copyright law, which is a LAW, not a contract, and thus does not need to be agreed to by signing.
The GPL says (greatly simplified - no doubt 1000 pedants will now jump on me) - "I, the author, will let you copy, and modify my software, provided you make the modified source code for any derived binary work you publish and publically distribute available to everyone.". i.e. agreeing to the GPL gives you more rights to the material, not less.
That's why MS hates the GPL - they can't "take" without "giving back". GPL = Free-as-in-speech, the Free-as-in-beer stuff isn't really true once you assign economic value to "intellectual property" - in fact, you're usually getting an incredibly good deal, being allowed use a wealth of GPL'd I.P. in return for a promise of details of modifications you may one day make to that I.P.
Think about it "I just got the source to SQL server, now MS won't let me change it a bit and resell it as my own without paying them millions of dollars". GPL software is just the same, only the price is not monetary, the price is to agree to "share and share alike".
This is the opposite of a "normal" EULA, which seeks to restrict further the rights of the end user over and above copyright law - and mostly, except in states with UCITA in America and in Ireland in Europe, EULAs are seldom legally enforceable.
You can even modify GPL software to your heart's content within an organisation, without giving the changes back to the author, so long as you don't distribute outside the organisation.
That's an interesting point. Because if a company used GPL'd software, and declined to release the source, they'd have two options:
1) Challenge the GPL in court. If it failed, the best they could hope for is that the code would revert to existing copyright law, which means they can't use it at all, and thus would have to pull that code out of their product.
2) Bow to pressure and conform to the terms of the GPL, which is what the FSF, et al, wanted all along.
A very interesting observation, and one that gets to the heart of the "If you don't like the conditions we attach to our code, write your own" argument. Other people would not normally be able to use GPL'd code at all, under standard copyright law, but for some reason, the GPL seems to lead to more "I should be able to do whatever I want with your code" responses.
I believe that you are mistaken. This recent post (thanks again, vercingetorix) opened my eyes to the use of Licensing in Software. Basically, the case law in the US is that you have to have a license because copying the software to RAM is violating the author's copyright.
I know it seems crazy, but that's the current US law.
It is the case. The relevant legislation (Copyright Designs & Patents Act 1988) was amended in 1995 (IIRC) to specifically cover non-infringing acts wrt software. So basically you don't need a EULA.
Every bloody emperor has his hand up history's skirt [Peter Hammill/VdGG]
D00D! RTFA!
The GPL is different from other licenses. The GPL grants rights of redistribution that copyright law does not. Most proprietary licenses restrict your behavior in ways that copyright does not, and hence may be unenforcable. Things like restrictions on reverse engineering, not using the software to promote [insert icky cause X], allowing the licensor to change the terms of the agreement at will and without notification, etc., should all be struck down in court.
In short, the article is claiming that the GPL is on far more stable legal footing than any other license in the proprietary world.
You want the truthiness? You can't handle the truthiness!
.. is that they somehow imply that all organizations that USE GPL-based software should have to carefully examine the license in counsel with lawyers.
This makes the GPL sound way more complicated than it is.
If an organization does nothing but USE GPL-based software (installing Linux one corporate servers or desktops), they need not bother with the GPL-license at all. They can just rest assured that the GPL-license gives them some rights over most other software, if they should ever decide to modify it.
Compared to Microsofts proprietary licenses. The GPL-license is nothing but added rights. There is no drawback whatsoever with the license itself. Though Microsoft might debate that free software can never be as good as non-free software (I would disagree), or that they might not get good enough support (I still disagree).
Now. The BSD-license grants you even more rights. But that is another story.