Bruce Perens On Combining GPL and Proprietary Software

jammag writes "Combining GPL and proprietary software is ever more common, especially in the world of embedded devices like cell phones. But the question is: how to combine them legally. As sticky as the issue is, there is an answer, as self titled "open source strategic consultant" Bruce Perens explains. The proper procedure entails fully understanding what type of open source software you're using, and knowing why you need to combine these disparate licenses. The problem, he notes, is that many companies don't know or care about doing this legally. 'They're used to just "clicking yes" with no regard to what they're committing themselves and their company to.' Hopefully Perens' guide can be read by more company execs — resulting in fewer lawsuits going forward (but we're not holding our breath)." update 21:31 GMT by SM: Bruce wrote in to make sure we knew he was not a lawyer, even though he is weighing in on a legal issue; updated to reflect.

Comments

Re:Execs aren't going to read this

[Bruce Perens]

When I visit a company to help them develop their Open Source strategy, I schedule a 50-minute talk for the top execs and the head of legal. This talk tells them what I am doing with the middle management, gives them some anti-propaganda to reset their opinions and expectations about Open Source, and establishes who I am working with in the company so that when they have issues about Open Source they know where to go.

That's about all I can get out of the top execs. But I get a lot of attention from the middle management folks who actually do the work.

Some of the recent lawsuits have got their attention. But what it often does is cause them to put a "no open source" clause in their default supplier contract. I signed a contract with a big phone company that promised I would not give them any Open Source! Of course, I was giving them advice.

Bruce

Re:easy answer

[Bruce Perens]

The easy answer to the problem: don't redistribute whatever it is you make.

It sounds easy, but it is actually very difficult to keep from distributing. You see, a distribution is a transfer between any two legal entities. So, for example, you hire a consultant and give him a copy of the software. Then you decide not to use the consultant any longer. He's annoyed, and he asserts his GPL rights on your entire product, and distributes it. You go to sue, and the copyright holder of the GPL piece gets involved and makes a case that you don't have the rights you think you did. Your NDA does not apply to GPL software because GPL prohibits you from adding incompatible terms.

In some cases, transfer between divisions, especially partnerships with one or more additional firms, are distribution. So, in practice, I think that purposefully not distributing is too difficult to do reliably. It also does not work against Affero GPL3. If you perform that as a service, you have to give up the source code.

So, it is much easier to keep your software separate as I advise.

Thanks

Bruce

The silly multi-processor workaround

[Anonymous Coward]

(AC because I work on what I'm talking about, and this problem hampers me continuously, at my current job and all previous).

I am dismayed that this is a possible loop-hole to the GPL. There is a very real examples of this today: the T-Mobile G1, and its slightly-unlocked Developer handset counterpart.

The trouble is, these devices are completely unusable without the binary blob loaded into the other processor. A lot of the functionality is still inaccessible, and worse still the manufacturers can get away without even providing a data sheet. Even worse still - these devices can be totally locked down, signed, and remove the ability to replace the GPL parts.

It's self-reinforcing, too. The ARM9/ARM11 split (in this specific case) is an increasingly inefficient thing to do, as ARMs are very good at low latency response (FIQs), and the partition is NOT as simple as multiple processors. In the Qualcomm MSM7200 part used in the vast majority of handsets (including the G1), it's another core and they share RAM and all peripherals. There's an awkward memory partition that has to happen, and that's inefficient use of memory. There's a duplication of ARM pipelines and caches. It's not as efficient as people would have you believe.

In short, it's a bad use of hardware resources just to work-around licensing.

I hold out little hope that manufacturers will provide access to radio layers, unlock devices, and generally provide data sheets so long as the "it's on another processor" work-around is an acceptable solution. Perhaps market forces will change their mind as soon as one big player decides that the hardware cost is no longer worth it. Perhaps not.

To be honest, though, I'm slightly happier that there is the workaround and we can see GPL software in handsets, rather than nothing at all.

Are you actually happy with this solution (or only somewhat happy, like me!), or is it just a recommendation?

Re:The silly multi-processor workaround

[afidel]

Actually that split has to do with licensing, they are legally required in most jurisdictions to ship ONLY the tested and certified configuration with no (reasonable) possibility of end user reconfiguration. This is true in the US even for the unlicensed ISM bands, I imagine the licensed bands have even more strict confines if not from the licensing authorities then from the telco's who have to maintain their network.

Re:GPLSoftware in Consumer Products

[Bruce Perens]

I do believe the GPL does need to be re-written in a far less verbose manner as many executives still do not understand it.

Some folks have written GPL equivalents without the preamble. They've not become popular. The problem these days is not really the GPL. It is that there have been thousands of meaningful court cases about software creating precedents helpful or harmful, and there is a lot of rather pernicious legislation like DMCA. So, we have to craft a license that will protect us from a tower of existing legal paper higher than I can figure. The fact that you can still read it in one sitting is pretty impressive. If you read the findings in recent court cases, especially the appeal in the JMRI case, it's pretty clear that judges like the GPL. And that's what we really need. If it doesn't protect you in court, why is it there at all?

Bruce