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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."
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.
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.
Bruce
Bruce Perens.
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
Bruce Perens.
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
Bruce Perens.
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
Bruce Perens.
Why has *BSD acheived less of a market than Linux? Which of these popular reasons do you believe?
:-)
Bruce
Bruce Perens.
OT, I know, but Bruce... c'mon. It's impolite to usurp all of the +5 mods on an article about yourself!
If you want a vision of the future, imagine a youtube comments section scrolling - forever.
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
Bruce Perens.
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:
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.
The society for a thought-free internet welcomes you.
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
Bruce Perens.
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
Bruce Perens.
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.