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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"
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?
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...
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
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.
The license was already proven in court numerous times in different countries. It can definately hold up. I don't care that there are two big IP lawyers. Especialy when you keep in mind the fact that IP has less chance of holding up. IP laywers don't like copyleft for a reason.
Nothing got disproven with that useless article. That, together with you post, will not make an impact at how FLOSS advocates look at the license and it sure as well will not stop them slow them down or even irritate.
Resistance is futile, proprietary pussy.
Here be signatures
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.
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.
I wonder who pays these gentlemen.
If you had read the summary you'd see they work for the OSI and the Linux Foundation. Hardly organizations that are anti-GPL, anti-FOSS or anti-Linux.
The GPLv2 author's "intent" is irrelevant in court.
To the extent that a word has not been specifically defined within the license, its common legal meaning will prevail.
The reason is that the license is intended to inform the potential licensee of his rights and restrictions before he agrees to it. If the "intent" was not clearly stated in the license and courts allowed it to apply anyway, the licensee's rights would be violated since he did not know what he was agreeing to.
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.
Yet the US courts are where the majority of this issue will be argued. Even I, as a Rightpondian, can see the sense in that. Chill. Not everything is a calculated insult to your national sovereignty.
Resistance is futile. Reactance buggers it up.
These are lawyers talking about a possible flaw in a legal document.
It's like a coder talking about a bug in a C program. You can say to yourself "Oh, that coder's just causing trouble. There's no real bug" - but that doesn't change the reality that the compiled program will do just what the C instructions tell it to do - nothing more, nothing less. (Well, except that a legal document is interpreted more subjectively - if the document is not written very precisely then different readers may interpret it differently... This is why we live in a world of "legalese" - it sounds arcane and needlessly complicated to non-lawyers but that's just because non-lawyers haven't learned the terminology and practice of precisely phrasing a legal document and guarding against the various rules which may be in effect "by default"...)
We have to be realistic about this - there have been some GPL-related court cases in which the GPL was upheld, but there are also issues surrounding the license, as well as how those are likely to play out in actual court cases, which may be unresolved or unfavorable to people who value software freedom. If one hopes to fix the problem, then one has to be realistic about where and what the problem is. We have a certain set of goals when we license something under the GPL - if we want to actually achieve those goals, we have to do our best to make sure the GPL is legally sound.
The problem of what constitutes a derivative work is one that I've heard before... The problem is that what you or I might consider a GPL violation could in fact be a very small piece of GPL code pulled into a very large non-GPL project. It's difficult to call that a "derived work" of the GPL'ed project. It's using GPLed code but the project as a whole may very well not be "derived" in a real sense from that GPLed work. If the project is big and the bit of borrowed GPL code is small, courts may not take the offense seriously. I don't know if this is something that can be solved with a better license, or if the kind of protection the GPL demands is beyond the scope of copyright... Anyway, it seems like a problem. Even if we want to tell people "you can't reuse parts of this code in other projects unless those projects are GPLed, too", we may not be able to rely upon that demand being fully effective...
Finally, it's worth emphasizing that law is not a static thing. It's a set of agreements between people subject to interpretation and alteration by people. Saying "it works and it doesn't need to change" may not be realistic. If people are working to undermine the GPL, then other people must work to reinforce and improve the license, if it is to be viable in the future. Basically, if the GPL matters to you then you need to fight for it.
Bow-ties are cool.
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
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.
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.
I wonder who pays these gentlemen.
If you had read the summary you'd see they work for the OSI and the Linux Foundation. Hardly organizations that are anti-GPL, anti-FOSS or anti-Linux.
OSI was founded by people who were unhappy with the Free Software Foundation and the GPL. OSI Founder Eric S. Raymond recently said that the GPL is no longer needed.
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
This is very petty lawyer-ing and typical misunderstandings from software EULA lawyers chasing their own tails for so many years.
GPL covers SOURCE CODE, and thru "derivative works" covers binary "performances". The whole reason we even have EULA's (End User LICENSE Agreements) is that there was one case 30 years ago where somebody argued that typing source code from a book to RAM and from the RAM to CPU was "infringement" and duplication of the work. So because of the internal machine copies needed, you have to be granted a special LICENSE to USE any kind of software (source code or binary). EULA writers have used US law's reliance on "contracts" to throw the "kitchen sink" in EULAs and call them "contracts" rather than license for use.
yes, the terms they point out have been more precisely defined since 1991. Judges respect stability and don't fall for dizzying logic like this. Judges will realize terms change and favor the UNMODIFIED document nearly every time as a matter of good faith. GPL v2 has been in heavy use unmodified for 18 years, that's incredible stability in an industry where other EULA writers reserve the right to edit/change/modify their EULAs online, without notice, and you pre-agree to the new terms you haven't even seen yet. The GPL is a legal rock, if the best they can do is mince words there's no threat at all.
The licensee has no rights whatsoever, except the rights received from copyright law.
Er, I think you have that backwards, but it's a common mistake, usually made by big media companies and their **AA agencies. Licensees have every right to copyright works except those rights specifically withheld by copyright law.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?