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Perens Counters Claim of GPL Legal Risk
Posted by
Zonk
on Tue Apr 10, 2007 12:42 PM
from the not-so-fast-my-friend dept.
from the not-so-fast-my-friend dept.
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."
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GPLv3 in the marketplace (Score:4, Interesting)
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.
Re:GPLv3 in the marketplace (Score:5, Insightful)
Well, this might be moot because GPL3 won't prevent the performance of web services using undisclosed modified internal GPL3 code. RMS feels that this is your right, and has only provided a way for people to optionally apply the Afero GPL, which does prevent this, to GPL3 code.
But your posting touches on a more fundamental topic, where the market is attempting to move Open Source licensing. There will always be a difference between the goals of companies who offer licenses along with their developed code, and companies who receive those licenses. Companies that receive Open Source code will always want BSD-style licensing as it gives them more options to keep their own development using that code proprietary. Companies that release Open Source code will tend to want a more restrictive license as this enables a dual-licensing revenue stream so that they can charge those folks who want to keep their development proprietary.
We can leave the motivation of non-companies to another discussion, since your question did not touch upon it, but they often have reasons to want a sharing with rules (GPL) license over a gift (BSD) license. And of course a detailed discussion of motivation for gift or sharing licenses would be much larger than this little posting.
Thanks
Bruce
Parent
Re:GPLv3 in the marketplace (Score:5, Insightful)
I state this in paper on which Open Source license to choose that I give to corporate customers. If you really want everybody to adopt it, even your worst enemy, use BSD. But then don't complain if they make it work incompatibly from your version, as Microsoft is wont to do.
Bruce
Parent
Re:GPLv3 in the marketplace (Score:5, Insightful)
Yes, do consider the amount of corporate contribution to Linux, and then think about why that work has gone into Linux and not into BSD. Why have IBM, SGI, Red Hat and others chosen to put so much effort into improving Linux rather than BSD? I posit that the GPL, far from being a bitter pill that corporate contributors unwillingly swallow, is the reason they chose to contribute to and work with Linux. IBM, for example, has no interest in putting its efforts into improving a codebase that can be ripped off by Microsoft or other competitors. Code contributed to a GPL project reaps returns in the form of other code that the contributor gets to use, but code contributed to a BSD project may or may not.
Consider Sun, also. They're in the process of open-sourcing Java, and there are strong rumors that Sun plans to license OpenSolaris under GPLv3. Why not BSD?
Because BSD is better for those who take, and GPL is better for those who give. There are exceptions, of course, but in general contributors have fewer concerns with the GPL than with the BSD, and that is why the corporate world has overwhelmingly favored GPL over BSD. IMNSHO, it's also why the volunteer community has overwhelmingly favored GPL over BSD.
What does this have to do with GPLv2 vs GPLv3? Well, projects that get corporate contributions are going to have to look and see if v3 poses any risks to the continued flow of contributions. In practice, I really doubt that any corporations who are willing to contribute and whose contributions we want are going to be put off by GPLv3 because v2 and v3 are essentially the same. v3 tightens up some loopholes and fixes the language, but the basic goals expressed by the license are identical, so the only people who might like v2 but not v3 are those who want to exploit the v2 loopholes -- meaning those who want to exploit the open source community and don't care about their reputation in that community.
If GPLv3 keeps such bad-faith contributors out, I think that's a bonus, not a cost.
Parent
So Glad I use SUSE (Score:3, Funny)
Think about the droves of people and organizations who will now be joining us (Microsoft and Novell) in ensuring their users and customers are lawsuit-free by only using GPL v2 and hiding behind the MS agreeements.
Thank you ever so much, Steve!
Thank you Ron!
Seriously - I figure the GPL v3 is being worked over so much that - like v2 - whatever challenges will hold up just fine.
Good rebuttal by Bruce Perens (Score:5, Funny)
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.
Re:Good rebuttal by Bruce Perens (Score:4, Informative)
Bruce
Parent
Interesting twist (Score:5, Insightful)
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.
Read the Papers (Score:4, Interesting)
Re:Read the Papers (Score:4, Interesting)
I checked with Eben Moglen, general counsel of the Free Software foundation, before writing a rebuttal to the eWeek material. Moglen had seen your paper and did not consider it worth his time to respond.
I responded to your quotes in eWeek since they had already run in the press. I have no desire to propogate the rest of your material.
I think it would be helpful for you to debate your material with an attorney supporting GPL3, instead of me. Unfortunately, we have not yet found an attorney who sees sufficient merit in your work to find it interesting to engage you.
Bruce
Parent
Re:Why tagged Linux? (Score:5, Informative)
Bruce
Parent
Re: (Score:3, Informative)
You'll be surprised how significant a fork over a license change can be [xfree86.org].
That said, I seriously doubt there will be much traction in GPLv2 forks, as most of the people who appear to oppose GPLv3 either have little respect behind the principles of GPLv2 (and argue as such), or oppose the GPL altogether (I am really not seeing heavy opposition from any group that believes in strong copyleft licenses, using arguments that are based upon the superiority of strong, copyleft, licenses.) Neither of the groups I
Re:Why tagged Linux? (Score:5, Funny)
Why has *BSD acheived less of a market than Linux? Which of these popular reasons do you believe?
:-)
Bruce
Parent
RMS/Theo popularity contest? (Score:4, Funny)
You inhuman bastards are the reason we hate Linux.
</Theo>
Parent
Re:Why tagged Linux? (Score:4, Interesting)
That won't be the users, since GPL3 doesn't restrict them at all. So, a GPL2 fork of any GPL3 product will need to be technically better to attract the users. It's unlikely that anyone motivated to fork backward to GPL2 will be able to muster sufficient community resources to make such a thing better than the GPL3 version.
Bruce
Parent
Re:Why tagged Linux? (Score:5, Interesting)
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
Parent
Re:Why tagged Linux? (Score:5, Insightful)
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
Parent
Re:Why tagged Linux? (Score:5, Funny)
Parent
Re:Why tagged Linux? (Score:5, Funny)
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
Parent
Re:Why tagged Linux? (Score:5, Interesting)
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
Parent
Re:Why tagged Linux? (Score:5, Insightful)
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
Parent
re: what was "wrong" with GPLv2? (Score:4, Informative)
The GPL v3 attempts to fix this problem by adding a "permissions clause" which allows the original license owner to add other permissions (e.g. the LGPL is now the GPL plus some permissions) and by adjusting the license to be more compatible with the free software norm (e.g. the Apache license is now almost compatible with the GPL v3. The patent clauses are now compatible, unfortunately the Apache indemnity clause was a bit too strong for the GPL community to swallow. ).
This "permissions clause" makes it easy for the average user to understand how different flavours of the GPLv3 can combine -- just drop incompatible permissions and end up with the common subset (which would be no less restrictive than the GPL v3).
This could allow you to define the CPL, PHP license, Mozilla license, etc as GPL + some permissions and either get rid of the original license or publish "equivalent GPL+permissions versions" of these licenses along side the orignal (simpler) license so as to make it obvious how you can combine code from your license with other licenses.
Parent
Re:The only part I don't agree (Score:5, Insightful)
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
Parent
Re:MY computer doesn't parse licenses (Score:4, Informative)
Then, you are not running any recent Mac or Windows system. Your computer probably depends on the work of people who would not have released their code at all without the GPL. Like the GCC developers, for example, whose work started with Richard Stallman's first implementation. GCC is most likely used to compile the system you are running.
Richard Stallman agrees with you. He doesn't restrict your right to use the software. It is copyright law that restricts your right to distribute other people's software, to modify it, etc. Richard would rather that there were no copyright law. Since there is, he uses the GPL to turn copyright law upon its head as well as he can.
Bruce
Parent
Re: (Score:3, Interesting)
This started with a legal theory that Eben Moglen, FSF general counsel, gave at the FSF annual meeting. Someone should interview him on it.
Bruce