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

GPLv3 in the marketplace

[Anonymous Coward]

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.

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.

I'm not sure if this an argument for or against GPLv3.

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: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

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.

Good rebuttal by Bruce Perens

[MarkWatson]

Hey, I actually read the article - I must be new here :-)

I am looking forward to the V3 release of GPL and LGPL. I especially like the way the new LGPL draft basically just references the V3 GPL (draft), with exceptions.

I believe that Microsoft's claims of anti-competitiveness of the new GPL is laughable. Microsoft sets a high standard for anti-competitive activities, in my opinion. Also, people and organizations who want to live, play, and build systems in the LGPL/GPL infrastructure world should be allowed to do so - Microsoft's push here seems to be desiring to remove people's freedom to pick alternative (to Microsoft) development strategies. No big surprise.

I have some influence on my customers (I am a consultant) and I use this influence to convince them to go open source on more of their projects.

Re:Good rebuttal by Bruce Perens

[Bruce Perens]

Thank you. You might find this one useful as well. I wrote it just before GPL3 version 3 came out, the conclusions are unchanged upon reading the third draft. The scope of GPL3's tivo-ization restrictions has been reduced somewhat, but my advice on how a company could handle DRM still applies.

Bruce

Re:Why tagged Linux?

[Bruce Perens]

As has been reported here previously, Linus is actually pleased with GPL3 draft 3, and will at least consider placing the kernel under GPL3. He really did not like previous drafts. But even if the kernel stays at GPL2, the C library, the main library in a Linux-based distribution, would go to LGPL3, it's copyright is owned by FSF in full. So are GCC, Emacs, a number of other programs. And no doubt other projects will go to GPL3.

Bruce

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: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: what was "wrong" with GPLv2?

[g2devi]

Besides the other reasons stated (the N-M deal, the GPL depends on US-specific concepts), the GPL v2 is incompatible with more free software licenses than it needs to be and this leads to some license fragmentation.

The GPL v3 attempts to fix this problem by adding a "permissions clause" which allows the original license owner to add other permissions (e.g. the LGPL is now the GPL plus some permissions) and by adjusting the license to be more compatible with the free software norm (e.g. the Apache license is now almost compatible with the GPL v3. The patent clauses are now compatible, unfortunately the Apache indemnity clause was a bit too strong for the GPL community to swallow. ).

This "permissions clause" makes it easy for the average user to understand how different flavours of the GPLv3 can combine -- just drop incompatible permissions and end up with the common subset (which would be no less restrictive than the GPL v3).

This could allow you to define the CPL, PHP license, Mozilla license, etc as GPL + some permissions and either get rid of the original license or publish "equivalent GPL+permissions versions" of these licenses along side the orignal (simpler) license so as to make it obvious how you can combine code from your license with other licenses.

Re:MY computer doesn't parse licenses

[Bruce Perens]

my computer doesn't parse licenses, it works just fine without one

Then, you are not running any recent Mac or Windows system. Your computer probably depends on the work of people who would not have released their code at all without the GPL. Like the GCC developers, for example, whose work started with Richard Stallman's first implementation. GCC is most likely used to compile the system you are running.

Richard Stallman agrees with you. He doesn't restrict your right to use the software. It is copyright law that restricts your right to distribute other people's software, to modify it, etc. Richard would rather that there were no copyright law. Since there is, he uses the GPL to turn copyright law upon its head as well as he can.

Bruce

Re:Why tagged Linux?

[Bruce Perens]

And those forks will have to be significantly better than the GPL3 originals if they are to last longer than a month or two. I can count the number of successful forks on one hand.

They will be significantly better for people who prefer GPL2 over GPL3.

That won't be the users, since GPL3 doesn't restrict them at all. So, a GPL2 fork of any GPL3 product will need to be technically better to attract the users. It's unlikely that anyone motivated to fork backward to GPL2 will be able to muster sufficient community resources to make such a thing better than the GPL3 version.

Bruce

Re:Why tagged Linux?

[Bruce Perens]

You'll be surprised how significant a fork over a license change can be.

Why has *BSD acheived less of a market than Linux? Which of these popular reasons do you believe?

• Because BSD came out for SCSI disks, and Linux came out for PC disks, and BSD has never been able to regain the early-mover advantage.
• Because people like and respect Linus.
• Because the good developers prefer sharing-with-rules licensing to gift licensing.
• Because even RMS is more warm and fuzzy than Theo.

:-)

Bruce

Re:Why tagged Linux?

[chihowa]

OT, I know, but Bruce... c'mon. It's impolite to usurp all of the +5 mods on an article about yourself!

Re:Why tagged Linux?

[Bruce Perens]

There is no practical way for [Linus] to contact all copyright holders to get approval for a switch in the license. The Linux kernel will always be GPL2.

Fortunately, it's not as big a problem as you believe. But how can the Linux kernel project, with its thousands of developers, change its license? We can't even reach them all, and some of those developers are dead and their estates don't know software licenses from driver's licenses. But changing the license is easier than most people think.

First, it's not a fundamental change: the intent of GPL 3 is that of GPL 2, the change is in the implementation. Given that, what would be required for such a change would be for Torvalds (or someone else) to publish his intent to start making releases with the new license, as a legal notice. A certain number of people would object, and they would have the right to require that their contributions be removed from the new release.

The kernel team has never been loath to replace code when necessary, and never slow to handle the job, no matter how large the item to be replaced. Just look at the replacement of Bitkeeper with "git", a big job that took a ground-up rewrite and yet was working in five weeks. So, code belonging to GPL3-objectors would be swiftly dealt with.

After some time passed, the release would happen under the new license, and life would go on. There is precedent for this, as Torvalds has already made two significant changes to the prelude to GPL2 on the kernel, publishing his intent and then making a release.

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:Why tagged Linux?

[Bruce Perens]

OT, I know, but Bruce... c'mon. It's impolite to usurp all of the +5 mods on an article about yourself!

I'd rather you hear it from the horse's mouth than from the other end of the horse :-) I guess that's a pretty good description of ACT's lawyer, isn't it?

Bruce

Re:Why tagged Linux?

[Bruce Perens]

But, really, how about a separate analysis of LGPL v3? Can an LGPL v3 library be linked to a closed source device that uses DRM with unknown keys?

As long as you can change the library without limitation. Don't lock down that library. And your DRM must not depend on the integrity of that library to work.

Bruce

Read the Papers

[Dick Wilder]

Bruce Perens has responded to the papers I wrote for ACT without having read them. He made the absurd statement to eWeek, repeated here, that the Daniel Wallace case "shows the GPL is unlikely to give rise to any significant liability." I was talking about GPLv3, not an earlier version and the Daniel Wallace case was based on a predatory pricing theory - not group boycott theory as I discussed. Different facts, different law, different result. It would be great if someone with some legal training look at this, if not Mr. Perens. They are at http://www.actonline.org/documents/ACT-GPLv3-Legal -Risks.pdf and http://www.actonline.org/documents/GPLv3-License-o r-Contract.pdf.

Re:Read the Papers

[Bruce Perens]

Mr Wilder, had you sincrely wished to solve any problems with GPL3, there were avenues open to you including participation in the committees and use of the feedback process. But that's not your role here. Your employer is a lobbying front for Microsoft, a company that has a vested interest in spreading fear and doubt about GPL3.

I checked with Eben Moglen, general counsel of the Free Software foundation, before writing a rebuttal to the eWeek material. Moglen had seen your paper and did not consider it worth his time to respond.

I responded to your quotes in eWeek since they had already run in the press. I have no desire to propogate the rest of your material.

I think it would be helpful for you to debate your material with an attorney supporting GPL3, instead of me. Unfortunately, we have not yet found an attorney who sees sufficient merit in your work to find it interesting to engage you.

Bruce

Re:"open source partisan," what is that?

[ericrost]

There is nothing in any GPL v1, 2, 3.. that says you can't partner with a commercial company. There are many commercial companies producing GPL'd code (Canonical anyone?).

However, it was always the goal of the GPL to make it such that if you wish to benefit from the years of hard work GIVEN to you FREELY by developers that created the GNU toolset, you would have to play by their rules. Which are very simple. Make your work freely available. Distribute the source code... now.. you can charge for the distribution.. you can charge to set it up for someone.. you can charge for support.. you can charge for training...

It is redirecting the money to where it belongs. In the information age, knowledge is power/money. If you have the knowledge to do your own support/training/deployment/sales pitch to management, more power to you, you have now become a consultant that can sell that service.

There are VERY viable commercial models using the GPL, you just have to claw your way out of the proprietary software model that is so unnaturally imposed by our backwards IP laws (thus the GPL is helping you to make this cognitive shift).

If you disagree, don't use GPL'd code.

It's really pretty simple :)

RMS/Theo popularity contest?

[The Monster]

Because even RMS is more warm and fuzzy than Theo.

You're INHUMAN! And your inhumanity retroactively excuses code theft. Which we didn't do. How dare you accuse one of our developers of code theft! It wasn't deliberate; it was a mistake. We meant to rewrite the copied code before committing it to the tree, and thereby create merely a derived work of the original, but not 'derived' in the legal sense, mind you. We didn't really steal anything because it didn't actually run or anything.

You inhuman bastards are the reason we hate Linux.

</Theo>