Forgot your password?
typodupeerror
The Courts Software Government Linux News

Perens Counters Claim of GPL Legal Risk 145

Posted by Zonk
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."
This discussion has been archived. No new comments can be posted.

Perens Counters Claim of GPL Legal Risk

Comments Filter:
  • *Yawn* (Score:1, Insightful)

    by MikeRT (947531) on Tuesday April 10, 2007 @11:50AM (#18677693) Homepage
    Group that is backed by Microsoft to kill GPL says GPL 3.0 is bad.
    Respected open source partisan says GPL 3.0 is good.

    No bias on that one...
  • Why tagged Linux? (Score:2, Insightful)

    by gnuman99 (746007) on Tuesday April 10, 2007 @11:53AM (#18677743)
    Why is this tagged Linux? Linus already indicated that Linux will not be under GPLv3.
  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday April 10, 2007 @12:10PM (#18678019) Homepage Journal
    you'll realize that the GNU part (at least the non-LGPL) almost certainly will be GPLv3.

    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

  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday April 10, 2007 @12:13PM (#18678083) Homepage Journal
    OK. Maybe I'm just behind the times or something, but what was "wrong" with GPLv2?

    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

  • by twitter (104583) on Tuesday April 10, 2007 @12:27PM (#18678339) Homepage Journal

    I don't think you are going to get very far if you try to equate free software advocates with PR hitmen. One group is composed of volunteers out to promote software freedom and your rights. To do this, they share their code and documentation freely. The other group is composed of people who are paid to advocate positions, regardless of their personal beliefs - a job the more closely resembles prostitution than other professions. The company they represents thinks of developers as pawns to fuck over [slashdot.org] and routinely calls their users worse. It's a good thing that most people can see through the bullshit this second group has to offer.

    Of course, you might be able to point out some kind of vast conspiracy to strip me of my rights that I might have missed. I have not seen it in the GPL, or on the FSF site or in anything Perens has ever written. Go ahead, make my day.

  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday April 10, 2007 @12:27PM (#18678345) Homepage Journal
    You could argue that the restrictions that GPLv3 is intended to prevent -- web services running off GPL software without sharing code, for example -- are a marketplace effort to move open source licensing closer to BSD-style.

    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

  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday April 10, 2007 @12:33PM (#18678477) Homepage Journal
    Giving away coupons makes Microsoft a distributor of GPL2 software as much as giving away free BigMac coupons makes a radio station a BigMac distributor.

    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

  • by mr_mischief (456295) on Tuesday April 10, 2007 @01:05PM (#18679065) Journal
    I don't get the whole anti-competitive thing either.

    Let's look at three scenarios:

    Let's say you grant me a license to your software, and license it GPL. If I give or sell a copy to my competitor, I must give him the same chance to make changes that I had. How is that anti-competitive? It sounds like it levels the field, not the opposite. If I write software that does the same thing later, I have the choice to write it from scratch, to pay for libraries, or to release my sources and build on what you licensed to me already.

    If you grant me a closed-source license, then I might not be able to sell to my own competitors or customers, and I might not be able to give them the source even if I chose to do so. That gives you a competitive advantage over me, but that's okay because I bought the software from you according to my own judgment.

    If I write the software myself, I can pick and choose which customers and competitors can buy licenses to my software at what prices and can determine who, if anyone, gets the source. If I don't advertise a price and only sell by inquiry and quote, then I can even charge one customer more than another based on how much of a threat I consider them to be in the marketplace. I can intentionally make it more difficult for certain competitors to use my software in their IT environment, and they may never know. If it's completely closed source, they can't easily fix it. If it's open or I grant them their own license to the source, they can. However, if I'm picking and choosing who gets source licenses, my biggest competitors won't, even if I offer source licenses to other customers.

    It sounds to me like the first scenario is the most friendly to competition, not the least.
  • Key quote: (Score:3, Insightful)

    by gillbates (106458) on Tuesday April 10, 2007 @01:06PM (#18679075) Homepage Journal

    We note that the draft of the GPLv3 does not tear down the bridge Microsoft and Novell have built for their customers. It is unfortunate, however, that the FSF is attempting to use the GPLv3 to prevent future collaboration among industry leaders to benefit customers..

    I believe what Horacio Gutierrez really meant was: "It is unfortunate, however, that the FSF is attempting to use the GPLv3 ... to benefit customers..."

    Because Horacio's argument just doesn't make sense. Typically, industry collaboration works to benefit the industry, not the consumer. In fact, I believe the boards of most corporations would consider collaboration among companies to reduce price and increase features (thereby reducing profit margins) to be a breach of fiduciary duty on the part of the CEO. I'm not aware of any company trying to decrease its profit margin, yet this is what Horacio suggests. In fact, I think it is just the opposite: industry collaboration tends to stifle new features, increase cost, and reduce the functionality and usability of software. The FSF is actually having a positive impact on the industry by virtue of its increasing competition. It is the classic example of how capitalism minimizes inefficiencies in markets - currently, the major proprietary software makers aren't very efficient at producing what the market wants. In comes the FSF, and solves the problem.

  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday April 10, 2007 @01:32PM (#18679535) Homepage Journal
    One notable instance where creators (companies or no) often prefer a gift license over a sharing with rules license is when the software promotes a standard, where adoption of the standard (and a uniform reference platform for same) is often more important than the implementation itself.

    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

  • Interesting twist (Score:5, Insightful)

    by gillbates (106458) on Tuesday April 10, 2007 @01:34PM (#18679573) Homepage Journal

    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:

    • Free Software does have an impact on the business world, and:
    • Microsoft is laying claim to it, as if they own it.
    • Developers of free software could be forced to distribute it under Microsoft's terms, or face liability under theory of tortious interference. That is, even though you gave away your software for free, you aren't allowed to change the license terms if it interferes with someone else's established business.

    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.

  • by swillden (191260) * <shawn-ds@willden.org> on Tuesday April 10, 2007 @01:52PM (#18679833) Homepage Journal

    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.

    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.

  • by dedazo (737510) on Tuesday April 10, 2007 @01:58PM (#18679953) Journal
    The fact that you claim the moral high ground does not mean you are some sort of saintly martir. Everyone has an agenda. If you are one of these free software "advocates" I hope you're the exception rather than the [slashdot.org] rule [slashdot.org].

    The company they represents thinks of developers as pawns to fuck over

    Nice language. This seems to be your favorite soundbyte of the moment. Something some mid-level manager at a company with 60,000 employees said years ago. Talk about hanging on for dear life.

    I was wondering though - what do you think about Stallman claiming anyone who does not subscribe to his beliefs is "immoral" and should be doing something else? Is that just his opinion, or should I generalize that to anyone who claims they're "advocating"? After all, if you can generalize your "pawns to fuck over" FUD, I don't see why Stallman's position should not apply to the community as well. Which means people would have a genuine right to be critical of him and by extension worried about the direction the GPL is taking.

  • by ericrost (1049312) on Tuesday April 10, 2007 @02:59PM (#18680879) Homepage Journal
    There is nothing in any GPL v1, 2, 3.. that says you can't partner with a commercial company. There are many commercial companies producing GPL'd code (Canonical anyone?).

    However, it was always the goal of the GPL to make it such that if you wish to benefit from the years of hard work GIVEN to you FREELY by developers that created the GNU toolset, you would have to play by their rules. Which are very simple. Make your work freely available. Distribute the source code... now.. you can charge for the distribution.. you can charge to set it up for someone.. you can charge for support.. you can charge for training...

    It is redirecting the money to where it belongs. In the information age, knowledge is power/money. If you have the knowledge to do your own support/training/deployment/sales pitch to management, more power to you, you have now become a consultant that can sell that service.

    There are VERY viable commercial models using the GPL, you just have to claw your way out of the proprietary software model that is so unnaturally imposed by our backwards IP laws (thus the GPL is helping you to make this cognitive shift).

    If you disagree, don't use GPL'd code.

    It's really pretty simple :)
  • by rohan972 (880586) on Wednesday April 11, 2007 @01:17AM (#18685793)
    This is the first time that the FSF has decided to use a change to the GPL as a means to attack an existing, legal agreement between two companies.

    I would see it as: this is the first time a legal agreement between to companies has attacked the existing GPL. The GPL is being "patched" to remove the vulnerability.

The key elements in human thinking are not numbers but labels of fuzzy sets. -- L. Zadeh

Working...