Viral GPL Misconceptions Elegantly Explained

Scot W. Stevenson writes "Our favorite paralegal Pamela Jones of Groklaw has put together a short FUD-killer on the General Public License that explains why you can't lose your proprietary code if you inadvertently incorporate GPL code. This is not the only text of its kind, but it is so well explained that you might want to bookmark the page for future reference."

Comments

yes!!

[sujan]

The GPL states a single, specific requirement, above all else: that if you create a software program that is a derived work of another software program, then that combined work must be distributed under these terms, no more, no less. Making a derivative work of a software program IS NOT SOMETHING THAT CAN HAPPEN BY ACCIDENT. You, the hypothetical developer of the derived work, receive the program accompanied by its unambiguous terms of use, and IT IS YOUR RESPONSIBILITY TO READ AND FULLY UNDERSTAND THOSE TERMS. If you do not, then that is your fault, and ignorance of the law does not excuse its transgression.

You therefore have a choice. You can use works distributed under the GPL to create your own software and license that under the GPL, or you can NOT USE the GPL software and use any license you want. If the GPL were infectious, then you would have no such choice; since you do have a choice it is clearly not infectious in this regard.

Also remember that the GPL clearly states your rights with respect to parts of a program you write: that the GPL only applies to the combined work as a whole. You retain all rights to do whatever you want with the parts of the program you wrote. Furthermore, if a developer combines a GPL'd program X with a proprietary program Y of which he is not the owner, then the combination does not, and cannot legally affect how Y is licensed. All that happens in this situation is that the developer will be unable to satisfy the conditions of the GPL and the proprietary license at the same time, making any release of the software -- however licensed -- in breach of copyright law. Copyright law is pretty clear on the notion that the owner of a copyrighted work has the sole ability to set the terms of use of his copyright.

Re:yes!!

[cduffy]

GPL code owners have been pretty good about allowing accidental users of GPL code to back out things like that, however (replacing the library with a proprietary one, etc).

And if you'd read the article, you'd know that this isn't by accident.

Forcing compliance with a license isn't an available remedy for copyright violation. Period. Hence, a court will never force someone to release their application's code. That court *may* impose monitary damages, attourney's fees, or stop further distribution of the work until the infringing portion is removed -- but it will never require code to be released.

Re:yes!!

[AJWM]

If I tried to then sell my work, I would also have to release my source.

Didn't read the article, did you? That is one thing you would not have to do.

The only thing that copyright law could compel you to do would be to cease distribution of the work that incorporated GPL code. You might choose to scrap the product, or you might choose to write your own version of the offending code. Or, you might choose to release your code under the GPL. But you cannot be compelled to the latter.

(You might also be liable for damages on what you'd already sold, but that's a separate issue.)

If you like Groklaw....

[i_want_you_to_throw_]

Donate to it! Pamela is FAST approaching sainthood, support her site.

Useful for the Pathfinder debacle

[WatertonMan]

This FAQ is very helpful. I suspect a lot that happened to the poor developer of PathFinder for the Mac would have been avoided had this FAQ been available.

For those of you not familiar with that situation, the author borrowed and modified some open source code for a terminal app into a Finder alternative. A bunch of GPL zealots then started a flame war with many actually demanding that he release the entire source code to the world under the GPL! What was worse was that the author had already helped the community by releasing many of the classes he had developed!

While such zealots obviously can't be taken as representative of GPL supporters, it is cases like that which gives the GPL a bad name.

Re:Useful for the Pathfinder debacle

[nathanh]

For those of you not familiar with that situation, the author borrowed and modified some open source code for a terminal app into a Finder alternative. A bunch of GPL zealots then started a flame war with many actually demanding that he release the entire source code to the world under the GPL! What was worse was that the author had already helped the community by releasing many of the classes he had developed!

Hrm. I hadn't heard of this PathFinder GPL violation before, but a few minutes with Google paints an entirely different picture to the "GPL Zealots vs the Virtuous PathFinder Guy" that your story painted.

From here it seems that rather than "many actually demanding" a GPL release, it was very few people even hinting at a GPL release, and no actual demands were made. In any event, only the iTerm authors can make demands and even then they can't demand a GPL release.

For the most part, people were just exploring the possibilities in a mostly civil manner. If I was forced to polarise the discussion I would say the most significant minority of comments were anti-GPL trolls; typically saying things like "GPL BAD BSD GOOD" and other nonsense.

Later, the author of PathFinder apologises and admits it was an honest mistake. Many subsequent comments are then repeating that the mistake was honest so they should try and find a solution where everybody walks away happy. Nobody wanted to crucify the PathFinder guy... at least, not that I saw.

So I don't know where you got this entirely negative opinion of "GPL Zealots" from. My view is that the mistake was honest, the mistake was admitted, the iTerm authors seemed content to find an equitable solution, there were the typical anti-GPL trolls, and no actual demands for a "GPL release" were made.

Now contrast this with intentional violations of the GPL where the violator refuses to comply. For example, easyRDP.

Re:Main GPL Misconceptions

[Our Man In Redmond]

Remember that it was written by an OSS hippy, not a lawyer.

Bzzzzzt! Wrong. It was written by Eben Moglen, professor of law and legal history at Columbia University. I have no idea whether he is a hippy (although I would tend to doubt it), but I have little doubt that he's a lawyer.

It only grants rights, it doesn't take them away

Well, no.

Well, yes. Read the GPL. It grants you rights to do things that otherwise you could not do under copyright law. If you can't do things with the software, it's because copyright law won't let you do them, not because the license itself won't.

No.. you misunderstand

[mindstrm]

Did you read the article?

The GPL is not some weird contract, some new experiment in copyright law interpretation that requries a test in court.. it is a straightforward license (which is different from a contract). it is, in fact, very clearly a license, not a contract.

It DOES NOT take away any rights: Copyright allows you certain things by default. The GPL grants you other rights IN ADDITION to those allowed under copyright law, under certain conditions.

There is nothing to test in court (any more than any license needs to be tested in court).

We are not talking about freedom here.. or the relative freedom of various licenses..

As people keep saying, it's very, very simple. If the GPL is not valid... then show how you had permission to create a derived work from MY code. Plain and simple. Either you had no license to do so, in which copyright law applies, and what you did was illegal, or you have the GPL, which says you can do this, within limits.

License != contract

[Our Man In Redmond]

Nope. A contract implies a two-way promise. I contract with you to sell me two tons of sugar for five cents a pound. You promise to do something (produce the sugar) and I promise to do something (buy it from you). If either of us defaults on the contract, there are penalties involved.

A license simply allows you to do something you couldn't otherwise do. There's no contract because you don't have to perform any obligations. Simply because you have a driver's license doesn't mean you have to drive a car. (You do have to follow traffic rules but that is a condition of the grant of license, it's not a contractual obligation.)

PJ is not a lawyer, but she knows plenty of lawyers, and is meeting more as time goes on. If she says that the General Public License is a LICENSE, not a contract, she has the opinion of experts to back it up with. Those experts include Eben Moglen, the author of the GPL and a professor of law and legal history at Columbia University. What do you have?

Re:Main GPL Misconceptions

[flossie]

If somebody wants to sell it, they can't.

That's another GPL misconception. The GPL does not prevent anyone from selling GPL'd work:

program is free software if users have all of these freedoms. Thus, you should be free to redistribute copies, either with or without modifications, either gratis or charging a fee for distribution ...

In other texts, RMS explicitly encourages the sale of GPL'd code. The key point about putting work under the GPL is that those who distribute it (for no fee or for a price) cannot prevent the recipient from also selling or giving away copies.

No, you got it half wrong

[Royster]

Where's the consideration? There isn't one. It's a pure grant of rights with stipulations/conditions.

A contract only exists if the parties have the legal right to contract. A contract with a minor is voidable by the minor party of the contract. However, the GPL is enforcable against a minor.