Perens Counters Claim of GPL Legal Risk

Microsoft Delenda Est writes "After ACT, a Microsoft front group, started claiming that the GPLv3 was legally 'risky' and could give rise to anti-trust liability, eWeek has published a rebuttal by Bruce Perens. Aside from the fact that IBM, HP, Red Hat, and a couple dozen corporate lawyers are watching over the creation of the GPLv3, there is already precedent that shows the GPL is unlikely to give rise to any significant liability — Daniel Wallace v. FSF. In that case, pro se litigant Daniel Wallace was all but laughed out of the courtroom for alleging the GPLv2 violates anti-trust law, and the GPLv3 clauses in question are simply clarifications and extensions of clauses in the GPLv2. Presumably, that is why the ACT neglected to cite any precedent substantiating their allegations."

Comments

Re:Why tagged Linux?

[Bruce Perens]

you'll realize that the GNU part (at least the non-LGPL) almost certainly will be GPLv3.

All the talk of GPL3 has overwhelmed the fact that there is an LGPL3, which will share most of the GPL3 language. It will most certainly be applied to GNU LIBC.

Bruce

Re:Why tagged Linux?

[Bruce Perens]

OK. Maybe I'm just behind the times or something, but what was "wrong" with GPLv2?

GPL has never stood alone, it has always depended on the local interpretation of copyright and other law to give it force, and those things change over time.

When the GPL was written, there was no web, music came from phonograph records, video from tape, and rather than DRM there was rudimentary software "copy protection". The renaissance of microprocessors, software, the web and digital media worked a tremendous change in the law with many changes to copyright, patents, the nature of consent, contracts, tear-open licenses, and copyright permissions. And there have been many trials over those years that added interpretation to laws that GPL 2 depends upon. As the law changes, GPL must change to keep up with it, or it will become increasingly un-enforcible.

Thanks

Bruce

Re:GPLv3 in the marketplace

[Bruce Perens]

You could argue that the restrictions that GPLv3 is intended to prevent -- web services running off GPL software without sharing code, for example -- are a marketplace effort to move open source licensing closer to BSD-style.

Well, this might be moot because GPL3 won't prevent the performance of web services using undisclosed modified internal GPL3 code. RMS feels that this is your right, and has only provided a way for people to optionally apply the Afero GPL, which does prevent this, to GPL3 code.

But your posting touches on a more fundamental topic, where the market is attempting to move Open Source licensing. There will always be a difference between the goals of companies who offer licenses along with their developed code, and companies who receive those licenses. Companies that receive Open Source code will always want BSD-style licensing as it gives them more options to keep their own development using that code proprietary. Companies that release Open Source code will tend to want a more restrictive license as this enables a dual-licensing revenue stream so that they can charge those folks who want to keep their development proprietary.

We can leave the motivation of non-companies to another discussion, since your question did not touch upon it, but they often have reasons to want a sharing with rules (GPL) license over a gift (BSD) license. And of course a detailed discussion of motivation for gift or sharing licenses would be much larger than this little posting.

Thanks

Bruce

Re:The only part I don't agree

[Bruce Perens]

Giving away coupons makes Microsoft a distributor of GPL2 software as much as giving away free BigMac coupons makes a radio station a BigMac distributor.

The word "coupons" might have led you astray. What Microsoft is giving out is paid-up Novell licenses which Microsoft pays for. Either the distribution or support inherent in those licenses, which is done on Microsoft's behalf, involves copying: a direct infringement if you haven't agreed to the license. And there is also the potential for contributory and vicarious infringement in the law. In contrast, when a radio station gives out Big Mac coupons, it is always doing so on behalf of Macdonands, who is paying for that form of advertising. So, it's not the same thing at all.

Bruce

Re:GPLv3 in the marketplace

[Bruce Perens]

One notable instance where creators (companies or no) often prefer a gift license over a sharing with rules license is when the software promotes a standard, where adoption of the standard (and a uniform reference platform for same) is often more important than the implementation itself.

I state this in paper on which Open Source license to choose that I give to corporate customers. If you really want everybody to adopt it, even your worst enemy, use BSD. But then don't complain if they make it work incompatibly from your version, as Microsoft is wont to do.

Bruce

Interesting twist

[gillbates]

The threat of being completely cut off from the ability to distribute GPL code can easily be seen as extreme and unfair for any company...

I believe even Microsoft is being forced to admit the power of free software.

Remember when Microsoft said Linux was irrelevant? When Balmer called it a toy?

Now it seems they are making the claim that free software developers must allow Novell to distribute their works, according to Novell's conditions, or suffer liability under a claim of tortious interference.

So it would seem that:

• Free Software does have an impact on the business world, and:
• Microsoft is laying claim to it, as if they own it.
• Developers of free software could be forced to distribute it under Microsoft's terms, or face liability under theory of tortious interference. That is, even though you gave away your software for free, you aren't allowed to change the license terms if it interferes with someone else's established business.

What is particularly galling about this position is that Microsoft's lawyers seem to be of the opinion that if someone stopped giving away their software - software upon which Microsoft has built a business relationship - that Microsoft can now sue the author, who received no money for his work, for damages.

Yes, this is our legal system at work. Where the refusal to give away software can get you sued.

I imagine by this reasoning, Microsoft could be sued for tortious influence the next time they raise the price of Vista.

Re:GPLv3 in the marketplace

[swillden]

Thus, if the marketplace already views GPLv2 as too encumbered, it is unlikely that commercial code released in the future will be licensed under GPLv3, or that commercial entities will contribute to GPLv3 open-sourced projects. Before you argue that this is irrelevant, consider the amount of commercial code that has radically improved Linux in the past five years or so.

Yes, do consider the amount of corporate contribution to Linux, and then think about why that work has gone into Linux and not into BSD. Why have IBM, SGI, Red Hat and others chosen to put so much effort into improving Linux rather than BSD? I posit that the GPL, far from being a bitter pill that corporate contributors unwillingly swallow, is the reason they chose to contribute to and work with Linux. IBM, for example, has no interest in putting its efforts into improving a codebase that can be ripped off by Microsoft or other competitors. Code contributed to a GPL project reaps returns in the form of other code that the contributor gets to use, but code contributed to a BSD project may or may not.

Consider Sun, also. They're in the process of open-sourcing Java, and there are strong rumors that Sun plans to license OpenSolaris under GPLv3. Why not BSD?

Because BSD is better for those who take, and GPL is better for those who give. There are exceptions, of course, but in general contributors have fewer concerns with the GPL than with the BSD, and that is why the corporate world has overwhelmingly favored GPL over BSD. IMNSHO, it's also why the volunteer community has overwhelmingly favored GPL over BSD.

What does this have to do with GPLv2 vs GPLv3? Well, projects that get corporate contributions are going to have to look and see if v3 poses any risks to the continued flow of contributions. In practice, I really doubt that any corporations who are willing to contribute and whose contributions we want are going to be put off by GPLv3 because v2 and v3 are essentially the same. v3 tightens up some loopholes and fixes the language, but the basic goals expressed by the license are identical, so the only people who might like v2 but not v3 are those who want to exploit the v2 loopholes -- meaning those who want to exploit the open source community and don't care about their reputation in that community.

If GPLv3 keeps such bad-faith contributors out, I think that's a bonus, not a cost.