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Doubts Raised About Legal Soundness of GPL2
svonkie writes "Two prominent IP lawyers have warned that the all-pervasive General Public License version 2 (GPLv2) is legally unsound. They claim GPLv3 and AGPLv3 are much better suited for the realities of modern open source software. 'If you go back in time to when GPLv2 was written, I don't think people were aware of just how ubiquitous this license would become and how closely scrutinized it would be,' said Mark Radcliffe, partner at the firm DLA Piper and general counsel for the Open Source Initiative (OSI). 'At that time, open source was not something as broadly used as it is now.' Radcliffe was joined by Karen Copenhaver, partner at Choate Hall & Stewart and counsel for the Linux Foundation, for a GPL web conference hosted by the license-sniffing firm Black Duck software"
Now suck his GNU/Cock.
The article essentially says that the terminology used needs more rigorous definition, and needs to match more closely with the existing legal terminology. For example, their use of "derivative work" might have legal connotations that don't completely follow from the terms of the licence. It's not like they've determined there's some fundimental legal principle which brings the whole thing crashing down, as you see in EULAs for example.
No kidding!!! What do you say at this point?
Should have used BSD rather than the Goatse public license.
Two prominent sexual therapists have warned that CmrdTaco's penis is microscopic. They claim that a real man's penis is more suited to the realities of sexually pleasuring his wife.
In other news, Darl McBride was seen dancing a little jig at the corner of 42nd and Broadway in New York City.
A source close to the situation informed Slashdot that he was in fact accepting small change to offset his legal fees for the next phase of his litigation against Linux users.
So, I actually count myself among the few that like Richard Stallman. I've met him, and he's a nice guy. But does anyone recall the furor over GPLv3 when it first came out, & some of the new provisions? This caused a lot of projects to stick with v2.
I'm wondering if this isn't just FUD to try to get people to switch to v3. Which is icky, but it did occur to me.
~dijjnn
They claim GPLv3 and AGPLv3 are much better suited for the realities of modern open source software.
...
"At that time, open source was not something as broadly used as it is now."
Maybe the way it was written is why FOSS is where it's at? Might not be such a bad idea to keep it around?
No comprende? Let me type that a little slower for you...
and 12 Microsoft employees have been assigned to post on /. using their wit and intelligence. If they can find it.
If you just take a GPL project, add a new UI skin and sell it in binary form, judge will make you release the source notwithstanding the license ambiguities. If what you are doing is not clearly a derivative work (like code inspired by reading a textbook) or you have a reasonable fair use case (like using the client part of client/server stack which is complex and not documented except for existence of the code itself), it's a good thing that the license will not be enforced.
Hindsight is 20/20.
This argument can be made for most of what's written into law. Where's the news here??
The plan was to create a proprietary-destroying license that spreads by itself and becomes more powerful the more it's used, but you couldn't do it all at once, because it would be too shocking a change to introduce. Hence, the GPL v2 was created as an interim step to soften people up, although RMS's goal was always v3. AGPLv3 was just plugging the gap he forgot. The plan hasn't been proceeding as fast as they hoped, so they seek to speed it up by spreading fear about v2.
"First they ignore you, then they laugh at you, then they fight you, then you win." - chiseled over the bearded guy's bed.
How much of this is about nudging Linus... pushing him, really... into applying GPL 3 to the Linux kernel?
Life is hard, and the world is cruel
These lawyers have some kind of agenda and should be kept out of the press. The GPL has been applied in court (successfully) many times.
I assume the agenda is to promote the truly awful GPLv3 and spread FUD about the not-so-awful GPLv2 so people will feel forced to 'upgrade.'
TFA claims that the term "derivative work" as used in GPLv2 requires further definition in the GPL itself because courts haven't clarified it, but this is wrong. The authors of the GPLv2 (i.e. RMS) clearly intended it to cover as much as possible: any and all works following under the statutory definition. It's true that software copyright cases are rare so the lgegal system hasn't developed the idea completely -- but that's not the GPL's duty.
But you don't like the patent provision, why not strike the patent language and call it GPLv2.1
Why can't people take responsibilities for themselves, do what is right in terms of copyright, and maybe then we wouldn't have lawyers nit picking us to death. Or as the old joke goes: "What is a thousand lawyers at the bottom of the sea?" Answer: "A good start."
Kosh: "Understanding is a 3 edged sword, your side, their side, the Truth."
How much of this is about nudging Linus... pushing him, really... into applying GPL 3 to the Linux kernel?
That can't happen without a rewrite. Too much of Linux is composed of patches written by unreachable authors and whose copyrights haven't been assigned to Mr. Torvalds or the Linux Foundation.
And even then, Mr. Torvalds has stated that he prefers the spirit of GPLv2 to that of GPLv3. I'm pretty sure that the spirit of GPLv2 can be expressed in the GPLv3 framework by adding a set of exceptions, much like the Classpath license and the LGPLv3 are sets of exceptions to GPLv3.
nothing more, nothing less.
This is a real issue. For instance, I wrote a physics textbook, which is open-source, and I wrote a bunch of ruby and latex code that helps to produce the pdf from the latex sources, automatically handling some things relating to placement of figures on the page that are awkward to do with plain latex. My book, including the ruby and latex code, is under CC-BY-SA. I got an email from a guy at MSU who was writing a textbook, and had already started using my code to handle the illustrations. He wanted to check whether it was okay under the license, since he didn't intend to release his own book under a CC license. Well, my answer ended up being that I really didn't know whether it was okay or not. It wasn't clear to me whether his work counted as a derived work. On the one hand, you could say that what he was using was simply some software I wrote, so his book isn't a derived work based on my software any more than a book written in MS Word is a derived work based on Word. On the other hand, there's really no perfect separation between the software and our books. When you write a book in latex, the latex code *is* a piece of software. My code generates various boilerplate in its output, some of which is text that is visible to the reader, so it's under my copyright and license. Of course I could have just told him that it wasn't an issue, and I wouldn't sue him, but I had intentionally chosen the strong copyleft because that's what I wanted. I suspect that a lawyer would tell him his work was actually not a derived work, but I also suspect that he (and his eventual publisher) wouldn't even want to get into that issue.
Although the issue is real, it seems goofy to me to suggest GPLv3 as the fix for the problem. First off, there are huge philosophical differences between v2 and v3. Also, there is so much GPL v2 code out there that you can't necessarily just relicense under GPL v3 without causing yourself hassles with license incompatibilities. I also don't quite understand how they think they can bypass the fact that various countries have various inconsistent and ambiguous definitions of a derived work. The only thing that forces anyone to accept the GPL license attached to a work is that copyright law doesn't allow them to do certain things without a license from the author. Those things include (1) copying and redistributing the work, and (2) creating and distributing derived works from it.
Find free books.
Two Slahdot users are dissing your cowardance is public and got viewed and laughed at by aprox. 1 million readers due to you lack of social influence.
Here be signatures
The point of the GPL was that it was very simple and broad-sweeping. Naturally this does make it vulnerable to attack in the sense that the legal system might feel threatened by the massive impact of such a game-changing license; copyleft practically redefines IP law in a way that those in the legal institution (eg lawyers, judges, lawmakers, and the business interests that pay for them) don't acknowledge, understand, or otherwise feel comfortable with because they don't feel in control. All it takes is a mere technicality to disqualify the GPL from functioning at all, and the Free Software community is justifiably anxious about that, but the GPL has been successfully upheld in court time and time again, so I wouldn't worry.
At this point there should be no doubt of the legal soundness of any version of the GPL, but it all boils down to a matter of principle. If a society believes in Free Software, then the GPL's legal application is perfectly simple and valid. To those hostile to freedom in the society, then the application of the GPL becomes something artificially difficult/problematic.
Attention yankee blockheads!
From the article:
And...
I don't understand how 'propagate' and 'convey' are any better than 'distribute'. It would seem to me that 'distribute' is the better term.
Now this, I understand. If you borrow the phrase 'derivative work', which is defined by copyright laws, and then the definition of 'derivative work' is changed in the copyright laws, does that mean the definition in the GPLv2 has also changed? Or is the definition of the GPLv2's 'derivative work' the same as that defined by copyright laws at the time the GPLv2 was drafted? Or is it some third definition not in any way tied to the copyright law definition? If it's the second or third meaning, then you're probably better off using a different phrase altogether.
I could also see a slight advantage to tying the GPL's definition of 'derivative work' and other phrases to whatever the current copyright law says they are: As copyright laws get more restrictive, the force of the GPL gets stronger. If copyright laws ever relax, then so too does the GPL. As I see it, as long as copyright laws are sane, the need for the GPL lessens.
We always knew Comcast was corrupt, here's the proof: http://tech.slashdot.org/comments.pl?sid=1909890&cid=34545432
I wonder who pays these gentlemen. And, again, who pays those who pay them...
Blackduck is founded and stocked by Microsoft employees. Though it would be damning enough in this context to point out that it is an active Microsoft partner.
SCO was a pre-existing company re-purposed several times, turned pump-n-dump, turned sock puppet. Blackduck was founded from the beginning for the activities it is engaged in.
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
GPL2 is not about to become invalid. But consider all of the changes we have gone through since GPL2 came out. Back then, the most complicated input device that people were likely to have in their homes was a touch-tone phone. Music came from phonograph records and cassette tape. The "@" sign was a little-used oddity on the typewriter keyboard for most people. Home computers were more the exception than the rule, and their CPUs used 16-bit addresses.
With the advent of consumer digital media we got a ton of law, both legislative and case law. Garbage legislation like ECPA and then DMCA, and a great increase in software patenting. All of that law essentially blind-sided the GPL, which had to cope with it but was not written with knowledge of it.
So, a license upgrade to deal with all of this is like installing a security patch on your operating system. It's just a sensible thing to do.
Bruce
Bruce Perens.
You went with BSD because you were willing to make a no-strings-attached gift of your software to everyone. Had you not been willing to do that, you would have found a license that did acceptably what you had wanted from GPL2.
For many of us, sharing-with-rules is more attractive than gift. This is especially true for business, because sharing-with-rules admits the potential for dual licensing. This is one of the few ways to carry out Open Source business that actually works.
GPL vs. BSD is essentially a matter of business (or non-business) strategy. You pick the rules that work for you, and then you pick a license.
Bruce Perens.
without the device to run the software, how do you "use" software?
You're just bitter because you can't take someone else's code and use it without paying.
It's responsible for FOSS.
And note:
BSD is lame: compared to GPL it's a backwater. Great OS comes from it, but it is an also-ran. Because the license is "give it away!". What company would do that?
Perl is released under GPL too at v5. And the AL 2 is GPL3 compatible, so no difference: you can merge code between them and the rights and responsibilities are equal, so not very different from GPL3.
Poor examples.
If you borrow the phrase 'derivative work', which is defined by copyright laws, and then the definition of 'derivative work' is changed in the copyright laws, does that mean the definition in the GPLv2 has also changed?
It doesn't matter how you word it, when the legal definition of the words you use change, what they mean in the license will change. You have to use words that have legal meaning to write your license, if the legal meaning of those words changes, the meaning of your license will change.
The truth is that all men having power ought to be mistrusted. James Madison
I don't understand how 'propagate' and 'convey' are any better than 'distribute'.
In Anglo-Saxon law, the former terms have legal definitions and a set of case law.
This anonymous coward has some kind of agenda and should be kept out of the press. The GPL3 has been applied in court (successfully) many times.
I assume the agenda is to slur the truly wonderful GPLv3 and spread FUD about the so-awful GPLv3 so people will feel able to steal.
Oh I don't know....GPL V2 has been in and out of the court all over in Europe.
Most settle without a hitch.
Some, need to have it explained in front of a judge.
This guy doesn't know what he is talking about, and if the GPLv2 was unsound legally, it would have long been over turned.
GPLv2 even scares Microsoft's lawyers.
The guy just wants attention.
Send him a cookie.
-Hackus
Got Geometrodynamics? Awe, too hard to figure out? Too bad.
"They're a vendor"
"No they're not"
Thinks: I am NOT WRONG!!!! I'm NEVER wrong!!!!. "they are, they're a meta-vendor!!!"
A leap of weasel wording that would have Darl McBride blanch in horror...
OK, YOU'RE a meta-vendor. Therefore your point of view cannot be considered accurate and is therefore obviously biased.
Except that this is a story about a "web conference hosted by the license-sniffing firm Black Duck software". Blackduck is hardly going to allow any criticism of its partner, Microsoft, nor allow its major thorn, the GPL, to go unmolested. Go re-read plaintiff's exhibit 3096 about stacking conference panels. Even without a sock puppet organizing the conference, M$ has a prolific history now of interfering with and shutting down conferences on competing (that's everything by the way) technologies.
"So you want to love those conferences to death. I've killed at least two Mac conferences. First there was the Mac App Developers Conference. I was on the Board of Directors of the Mac App Developers Association long ago, and after I left I worked to try to turn it into a cross- platform developers conference, and I did. I managed to make their last conference was very cross-platformn, both Windows and Macintosh, which of course turned off their Macintosh audience; half of the conference was irrelevant to them. They didn't care about Windows. They were a bunch of Mac guys. Which diluted the value of the conference. And they didn't know how to advertise the Windows guys when the Windows guys showed up. So they lost money that year and the group folded. Oh, well. One less channel of communication that Apple canuse to reach its developers." Plaintiff's Exhibit 2456, Comes v MicrosoftWhen you're dealing with Microsoft, you're dealing with cockroaches. Get over it.
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
better story: OSI attempts earth-shaking announcement about GPL to draw attention away from fact that their status as nonprofit in California is suspended. Perhaps it was due to failure to file required tax documents (for California and U.S. IRS) for many years, that issue was discussed on Bruce Peren's now-defunct site Technocrat
http://kepler.sos.ca.gov/corpdata/ShowAllList?QueryCorpNumber=C2224685
A lot of the supposed ambiguity can be eliminated if you first look at the code as not being computer programs, but just being another written work, then evaluate any potential "derivative works" from that perspective, and let existing copyright law and case law guide the evaluation. Once you've done that, then look at the license-specific terms of the GPL regarding what it says constitutes distribution, as well as what it says triggers the requirement for distribution, and I think you'll find it's not nearly as convoluted as these two jokers are making it out to be.
I think you'll find that content of the license would be quite relevant should the original author want to take legal action against somebody who he believes is violating the GPL. If the terms of the GPL applied automagically, there'd be no reason to write the GPL in the first place.
The GPL is an agreement between two parties and the fact that it invokes copyright law or wasn't negotiated doesn't change that.
"The intent of the author of the GPL is irrelevant, but not for the reason you say. The intent of the author is irrelevant because the grant of rights is from the copyright holder to the recipient. The intent of the author in releasing his work under the GPL could be relevant."
The intent of the author of the original code is also irrelevant for the reasons I mentioned before.
"You can dual-license something all you want."
Dual licenses don't work for open source ... without an assignment of rights.
Specifically, if I license something under the "GPL or the Artistic License", and someone takes it under the terms of the GPL, makes modifications to it, and donates those changes back to me, those changes are a derivative of a GPL licensed work, and therefore must be under the GPL. Only if in their donation back to me there is an assignment of rights to me, am I free to relicense the changes out under the Artistic License.
This is what bit SGI, when they thought they were gong to get a boatload of developers jumping on their attempt to step out in front of the open source parade with a baton and lead the parade; almost none of the changes that were made by outside developers were usable to them, due to them lacking an assignment of rights.
-- Terry
Read the article, the web conference is hosted by the "license-sniffing", Microsoft partner Black Duck software.
stacked panels are an ongoing tactic of M$.
Anyway, the GPL has already been proven more than a few times in court on both sides of the Atlantic.
First U.S. GPL lawsuit heads for quick settlement
A GPL compliance case against Iliad
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
One thing that's often confused me is the exact relationship between the GPL and interpreted languages. For example, if I write a perl script which calls perl functionality which is part of the base interpreter, my script need not be distributed under the terms of the GPL. This is akin to using a GPL word processor or other software, where the output of a program is not subject to the GPL.
If, on the other hand, my script calls a perl function which is itself written in perl (licensed under the GPL), the FSF argues that this constitutes a derivative work akin to dynamic linking. Thus, my script (if distributed) must be distributed under a GPL-compatible license.
I can see it both ways. On the one hand, calling a function written in the same interpreted language is very much like calling a function in a library from a compiled binary. On the other, it's strange to think that there's a distinction based on whether the function being called is written as part of the interpreter (in, for example, C) versus the interpreted language itself. In addition, there seems to be disagreement about whether the GPL really binds like the FSF claims. Lots of interpreted code gets released as the GPL when it seems likely that the LGPL is what the authors really intend; that is, they do not want to restrict scripts and functions which call the code.
A good example of this is R This statistical language has fairly small interpreter and a large set of both included and downloadable packages, themselves written in R (and licensed under the GPL). Clearly most of the primary authors do not intend for all R scripts using the most basic of functionality to be released in a GPL compatible way; for one, they make the header files necessary for writing C-based libraries for use in R LGPL to explicitly allow such libraries to be non-free. In addition, they are fine with a large number of downloadable packages which restrict commercial use (obviously not allowed under the GPL). Their interpretation of the GPL seems at odds with the FSF. Even if you want to release all your code in a GPL-compatible way, it may be (IANAL) that you cannot call both code restricted from commercial use and GPL-licensed code (basically unavoidable) in the same project.
"The universe seems neither benign nor hostile, merely indifferent." --Carl Sagan
for example.
Installation (in the US, this is explicitly allowed without license, EULA tries to say you only have that right when you agree: you do not. In the UK until Jan 2009 it was strict civil tort so the damages that could be awarded by installing a program would be Nil).
Criticising.
Moving to a new computer (see installation above).
Decompiling.
Reverse engineering.
Benchmarks.
Arbitration clauses.
Need more?
Blame your copyright law.
It defines for source code what a derived work means.
This is why you have to agree to an EULA to install Microsoft DirectX (shared libraries) or the SDK to make a game linking to Direct X (shared libraries).
If linking shared libraries were not derived works, MS's EULAs for Direct X et al would be worthless.
I think you'll find them fighting you tooth and nail over that one, but go ahead, if you think you're hard enough.
That argument makes no sense. Properly written software should be easily portable to *any* device unless it's a driver, performance considerations notwithstanding.
Check out my sci-fi/humor trilogy at PatriotsBooks.
The FSF said 'FFS'.
Bruce is quite right. License incompatibility can be a real problem; by sticking to a small set of certain widely-used licenses, you avoid the problem. If you're interested in license compatibility issues, you might look at The Free-Libre / Open Source Software (FLOSS) License Slide and Make Your Open Source Software GPL-Compatible. Or Else
- David A. Wheeler (see my Secure Programming HOWTO)
Good article
Hey Bruce,
sorry for hijacking this thread, but could you give your opinion on the Vernor vs AutoDesk case, and the "threat" this is supposed to have on Free Software, as PJ on groklaw and more recently Nimmer have been writing. Do you believe that software being sold not licensed poses a significant threat to FOSS?
Cheers
Cyco
A more limited interpretation is that ownership of a copy embodies a limited right to use, period. Which doesn't bother us.
Bruce Perens.
Even if as a result of that ownership model, the AGPL's required redistribution clauses become toothless?
Thanks for your reply
Cheers
C
I don't think it will happen. If it does, we'll have to modify the license language.
Bruce Perens.
I do not write, or interpret, the Copyright law. The Parliament, and the courts, respectively, do. The Parliament or whatever you have in your country.
Copyright law disallows certain acts *unless I give permission*.
If an act is not regulated by Copyright law, then the question of my consent does not arise. If an act by its nature is regulated by Copyright law, but the object of the act is a work that is not so related to any work in which I hold rights, as to to require my permission according Copyright law, then the question does not arise. I case of doubt, any court should first determine if my permission is required, then ask if I have given such permission. Only then my answer is the GPL.
The GPL must then be interpreted in light of the question to which it is answering.
The GPL v. 2 contains this passage:
This may seem like a contradiction: Does the license permit running the Program? But the whole document is clearly written in non-legalese language, with a long preamble, and many passages that clearly tries to explain to non-lawyers how copyright law works. What here is expressed is that the law, as the author of the license knew it at the time, did not require permission for the running of the program. This is of course unfortunate, as there are different laws in different countries. However, the GPL also says
If any act requires permission from a copyright holder, and the text of the GPL forgets to give that permission, this is not a disaster. The copyright holders can always issue additional permissions later. In any case, permission is not given in the GPL in such cases.
I am not denying the virtues of clear unambiguous licenses. But courts routinely interpret contracts and agreements written by laypersons. Courts are supposed to estimate the intentions of the parties, and whether they have made reasonable efforts to communicate their intentions to the other party, and made reasonable efforts to understand the other party's intentions. No party shall be bound by conditions that he reasonably remained unaware of when he entered into the contract.
Underlying this is the understanding that an agreement is an attempt by two or more parties to establish a cooperation to mutual benefit. While standards may vary in different regions as to the extent of the obligation of the parties to actually read the small print -- that is, receive the communications from the other party about his intentions, or conversely the extent of the obligation to communicate your conditions with clarity, in no region is the entering into an agreement seen as a challenge to the other party to "game me if you can".
In the case of the GPL, the intention of the person who chooses the GPL for his work transpires with clarity from the whole document. The long preamble helps setting the context. It transpires that the copyright holder wish to initiate a commons, to which others may contribute, or to contribute to an existing one. In no statement of the GPL is it expressed any consent, supposing such consent is required, to contribute in any way to anything that is not itself in such a commons.
There is no substitute for common sense. Especially, no body of rules will do.