GPL Licencing Headaches

August 21st, 2008 By Scott Savage Categories: Business, software

Let me say this from the start, I think Open Source software is the way of the future. Let me also say that I am not a lawyer. On that point I find it incredibly ironic that the urban definition of the IANAL acronym disclaimer directly references the GPL. This is even taken one step further with another more ridiculous acronym created during a GPL discussion, which conclusively proves that giving acronym loving nerds a sniff of legal jargon is a recipe for disaster.

It also helps explain my point, the GPL isn’t the Open Source saviour some people think it is. I hate to list points, because the people feel they need to find a way to argue against each one rather than the logic as a whole, but I am going to do it anyway:

  1. Money = Evil – Any efforts to profit from Open Source development work is treated with scorn. Comments such as “To release a non-free program is always ethically tainted” frustrate me. Equally promoting an Open Source product does not give you licence to trash commercial software. They are your competitors, if you think you are on their level then treat them with respect.
  2. Discourages Integration – The GPL is brilliant for making utilities. Compilers, databases and graphics programs are all essentially utilities that you interface with in a certain way, but never extend or deeply customise for your own purposes. Deep integration is one of the biggest competitive advantages that Open Source has over commercial software packages, so why make it hard? For example SugarCRM allows web service integration; but even modules, templates and dashlets that integrate within the existing API’s are considered to be covered under the GPL. Is this really a deep extension of the core product?
  3. Patent Protection – Patents are either loved or hated, usually depending on whether your name is on one or not. Regardless, the fact is that they are not going away. Open Source products are just as vulnerable to patent infringements and litigation as commercial software is. As the lines between Open Source and commercial work continue to blur, it is emerging that corporate indemnification is almost becoming a quality assurance stamp. A community cannot offer indemnification, so they really need to focus on their competitive advantages. Stay away from heavy duty licences that just muddy the waters for smaller businesses and institutions, don’t forget a hatred of licences seeded your whole industry!

As with anything legal there is no ironclad solution. As far as I can see the solution is to make it as easy as possible for people to contribute maximum value with minimum overheads and receive value for whatever purpose they desire. Rely on the fact that producing a commercial product that is 99% Open Source is not a safe, competitor-free business model!

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One Response to “GPL Licencing Headaches”

  1. August 22nd, 2008 at 08:07
    1

    Many open source licenses purport to establish an exclusive right for a preexisting author to control the distribution of all subsequently modifying author’s rights in the scope of the public domain (i.e. General Public License). This goal of open source licensing is not legally possible.

    (1) Preemption

    When a derivative work is created the copyright ownership subsists in a “preexisting” author and a “contributing” author. See 17 USC 103(b). The Copyright Act does not speak to the distribution of derivative works as a whole. The distribution of a derivative work requires the authorization of both the preexisting author and the contributing author.

    Public domain rights are “in rem” or rights “against the world”. Exclusive rights granted under the Copyright Act are “in rem” rights controlled by copyright law. Rights created by contract are rights “in personam” or personal rights between the contracting parties are controlled by contract law. 17 USC sec. 301(a) prevents any new copyright from being established by contract that regulates rights in the scope of the public domain. See ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996):

    “A copyright is a right against the world. Contracts, by

    contrast, generally affect only their parties; strangers may do

    as they please, so contracts do not create “exclusive rights?.

    . . .

    Like the Supreme Court in Wolens, we think it prudent to refrain

    from adopting a rule that anything with the label “contract” is

    necessarily outside the preemption clause: the variations and

    possibilities are too numerous to foresee. . . But whether a

    particular license is generous or restrictive, a simple two-party contract is not “equivalent to any of the exclusive rights within the general scope of copyright” and therefore may be enforced.”

    (2) Misuse

    A copyright owner cannot leverage his copyright with licensing restrictions that have the effect of enlarging the scope of his copyright power beyond the limits imposed by Congress. Forcing a

    a modifying author to relinquish his exclusive rights in the scope of the general public was never contemplated by the Copyright Act and is contrary to 17 USC 103(b). Under the doctrine of “misuse of copyright” an author who attempts to leverage a copyright in this manner loses the right to enforce his copyright in that context. See Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).

    (3) Impossibility

    When a license condition is impossible to meet it is interpreted against the drafter of the license. A term in a contract that requires an underlying author to license his rights to a non-party (i.e. the general public) is not possible. A party to a contract cannot bind a non-party to the provisions of that contract. See EEOC V. WAFFLE HOUSE, INC. (99-1823) 534 U.S. 279 (2002) (“It goes without saying that a contract cannot bind a nonparty”).

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