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Doubts Raised About Legal Soundness of GPL2 521

Posted by CmdrTaco
from the no-you're-unsound dept.
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"
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Doubts Raised About Legal Soundness of GPL2

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  • by Sockatume (732728) on Thursday October 15, 2009 @12:33PM (#29758873)

    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.

  • Re:Conspiracy? (Score:5, Informative)

    by Timothy Brownawell (627747) <tbrownaw@prjek.net> on Thursday October 15, 2009 @12:48PM (#29759059) Homepage Journal

    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.

    I doubt it, the crappy language choice in v2 was one of the reasons for writing v3 in the first place (other reasons being that they wanted explicit anti-patent language, that Tivo had pissed off all the extremist nuts, and maybe a few others I don't recall offhand).

  • 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 [lkml.org] 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.

  • by Disgruntled Goats (1635745) on Thursday October 15, 2009 @01:09PM (#29759351)

    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.

  • by SgtChaireBourne (457691) on Thursday October 15, 2009 @01:19PM (#29759481) Homepage

    I wonder who pays these gentlemen. And, again, who pays those who pay them...

    Blackduck is founded and stocked by Microsoft employees [socializedsoftware.com]. Though it would be damning enough in this context to point out that it is an active Microsoft partner [eweek.com].

    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.

  • by nacturation (646836) * <[nacturation] [at] [gmail.com]> on Thursday October 15, 2009 @01:21PM (#29759493) Journal

    As the copyright holder, you're free to release the code to this one individual under whatever terms you want. Just because you released it once under one set of conditions doesn't mean that you're bound to release it to the MSU guy under the same conditions. Being the creator, you're free to re-license anything you want. Assuming your code isn't mixed up with someone else's, just license the Ruby code as a separate work.

  • by Anonymous Coward on Thursday October 15, 2009 @01:25PM (#29759557)

    The license was already proven in court numerous times in different countries. It can definately hold up.

    It looks like you didn't RTFA.

    What they're arguing, is that there might be corner cases (and these have not been in court) where the license isn't going to apply, or do what it is intended to do.

    Copyright law (which copyright law? Well, let's say USA's...) plus all the loads of case law that have come from it, defines derivative work a certain way. Assuming you are a well-trained lawyer and have a shitload of money for research and an IQ and Judge-Psi scores of 300 each, you can look at, say, Project Beta and declare whether or not it is a derivative work of Project Alpha.

    Let's say Project Alpha is GPL2 licensed.

    If Project Beta is not a derivative work, then you don't need to bother to read GPL2 and worry about it's wording, so there's no problem here (for the Project Beta people -- let's get back to this in a little while).

    If Project Beta is a derived work of GPL2-licensed Project Alpha, and you don't want to infringe copyright, then you need to follow the terms of GPL2. Now this is where it gets interesting: under the GPL2's definition of derived works -- not the same as copyright's -- Project Beta still might go either way. It might be a derived work under copyright law, but not a derived work under GPL2's defintions, which means that GPL2's terms that talk about derivative works, might not apply. So you might have something that is legally a derivative work, but GPL2 might not give you any distribution rights. Or it might give you distribution (GPL2 defininition) rights, but then legally you might find that you still don't have distribution (copyright definition) rights.

    What has gone wrong, is that GPL2 is using copyright-related terms. The license doesn't change, but copyright changes all the time. This can make a big fucking mess and create ambiguities that no one can guess how courts will resolve.

    Let's get back to the case where Project Beta is not (according to copyright law) a derived work of Project Alpha. But let's say that it is a derived work according to the definitions in the GPL, if only those definitions actually applied (which the don't). Project Alpha released their code under GPL2 because it does what they want. But now the GPL2 has let them down, because the people who built on their work, aren't having to comply. Maybe that's ok. From a public policy viewpoint, it is ok. But nevertheless, Project Alpha just got "tricked" by RMS into believing they were going to get what they want. (No, I don't really blame RMS.)

  • by kestasjk (933987) * on Thursday October 15, 2009 @01:48PM (#29759905) Homepage
    I chose the AGPL for a web project of mine, and the protection it gives is pretty essential. Without it someone could take the code, improve it and run their site based on it without sharing the improvements back.
    You may hate that etc, and prefer not to share the improvements back, but for my web project I've been able to add lots of improvements to my code that derivative sites wouldn't have been obliged to share otherwise, and everyone enjoys the better code as a result.

    If you don't think that's fair I'd be interested to hear why not.
  • Re:Cause and Effect (Score:3, Informative)

    by Anonymous Coward on Thursday October 15, 2009 @01:49PM (#29759913)
    All three of them.

    Python and Apache are built with Microsoft's C compiler.
    The BSD kernel and userland predate gcc, but currently require it, though clang will most likely take gcc's place soon.
  • Re:Cause and Effect (Score:3, Informative)

    by onefriedrice (1171917) on Thursday October 15, 2009 @02:03PM (#29760115)
    You're missing the GP's point who is not saying that GPL licensed software should not be relied upon or has played no role in bringing us to this point. Rather, he makes the very good point that people often think that the GPL is responsible for either the success of Linux or the success of free and open source software in general. As he communicated so well, that assumption is debatable at best and certainly not self-evident as there are many, many successful free and open source software packages which are not GPL.

    Since you brought up gcc, I'll note that llvm is looking extremely promising and even has corporate backing (by Apple). It's not GPL. It's not even LGPL. The assumption that companies only like to back GPL projects doesn't seem to hold much water either.
  • Re:"Derivative work" (Score:3, Informative)

    by Crispy Critters (226798) on Thursday October 15, 2009 @02:10PM (#29760201)
    "the licensee's rights would be violated since he did not know what he was agreeing to."

    This is also a mistake. The licensee didn't agree to anything. The GPL is not a negotiated contract. It is a grant of rights. The licensee has no rights whatsoever, except the rights received from copyright law. The GPL does not attempt to take away anything granted by copyright law, so no rights of the licensee are violated.

    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 GPL intends explicitly for "derivative" to have its common legal definition. This is a feature, not a bug.

  • Re:Conspiracy? (Score:2, Informative)

    by 10101001 10101001 (732688) on Thursday October 15, 2009 @02:19PM (#29760359) Journal

    The hardware can't prevent the user from using the software. The user merely has to provide hardware without those restrictions.

    The hardware can prevent the user from using the software on said hardware. If the point of buying the hardware is to use the software on said hardware, then clearly there's a problem for the user. That of course leads to...

    Boo hoo, my $30 router won't let me upgrade it with unsigned firmware. Buy a real router.

    If that $30 router uses GPLv3 code in its firmware, then I've already bought a "real router". That's a major point of the GPLv3, by the way. It also means that developers can release GPLv3 code and be assured that legally, no "fake" router can contain their code (barring fair use, of course). TiVo chose to follow the letter of the GPLv2; now, the letter of the GPLv3 allows makers and users of GPLv3 code to not experience TiVo-like behavior when they stick with GPLv3 code. I'm not quite sure what there is to boo hoo about.

  • by TheSpoom (715771) * <[ten.00mrebu] [ta] [todhsals]> on Thursday October 15, 2009 @02:26PM (#29760473) Homepage Journal

    Further, chances are that those distributions of software that aren't bound by the license are likely copyright infringement by default as they are not licensed to be distributed.

  • by prgrmr (568806) on Thursday October 15, 2009 @02:37PM (#29760569) Journal
    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.
  • by Bruce Perens (3872) * <bruce@perens.com> on Thursday October 15, 2009 @02:44PM (#29760655) Homepage Journal

    This is a work-around for the bug that copyright law does not define a public-performance right for software, although a similar right is defined for audio recordings, movies, and theatrical scripts.

    Thus, we had a loop-hole in that companies which performed the software over the net without ever distributing it can make substantive derivative works of the program from which they derive tremendous profit but have none of the obligations. Think of google in this context.

    I think the first FSF meeting where we discussed this was in 1994. It was seen as a significant problem even before google.

  • by Bruce Perens (3872) * <bruce@perens.com> on Thursday October 15, 2009 @03:30PM (#29761205) Homepage Journal
    We made movies the algorithmic output of software at Pixar. They were protected under the performance right, and nobody doubted that the work was creative. I don't see a substantive difference where other software is concerned.
  • by topherhenk (998915) on Thursday October 15, 2009 @04:12PM (#29761695)

    Recipes (at least the ingredients list) are not covered by copyrights. There needs to be "substantial literary expression in the form of an explanation or directions".

  • by kestasjk (933987) * on Thursday October 15, 2009 @04:33PM (#29761939) Homepage
    I consider "freedom of the code" to mean access to the code, and I think if you want to argue with that you're arguing with the FSF definition of free code which I posted.
  • by roju (193642) on Thursday October 15, 2009 @05:30PM (#29762863)

    Can't speak for the GP, but the AGPL is still a freedom based license. The fundamental purpose of the GPL is to enshrine the four freedoms [fsf.org], all of which are user freedoms. The AGPL simply recognizes that webapps were a loophole that people could use to deny users their (FSF) rights.

  • by Fred Foobar (756957) on Thursday October 15, 2009 @05:35PM (#29762933)

    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.

    Except that under Copyright Law, you don't need any special license to USE software. See Section 117, which was amended in 1980:

    (a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

    (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

    Source: http://www.copyright.gov/title17/92chap1.html#117 [copyright.gov]

    I believe that the Copyright Act preempts your statements. :)

  • Re:Cause and Effect (Score:2, Informative)

    by Anonymous Coward on Thursday October 15, 2009 @07:54PM (#29764361)

    If gcc wasn't available, I'm pretty certain another would have come along. Yes, compilers are relatively difficult projects, but the lack of one is equivalent to a big case of the itchies.

    BTW, OpenBSD imported pcc into their tree some time ago. It's not functional yet, but they want to get away from gcc, and not simply because of the license.

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