Doubts Raised About Legal Soundness of GPL2 521
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"
Cause and Effect (Score:5, Insightful)
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?
Re:Conspiracy? (Score:4, Insightful)
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.
What would either the OSI or the Linux Foundation gain from such a thing?
And in other news.... (Score:2, Insightful)
Hindsight is 20/20.
This argument can be made for most of what's written into law. Where's the news here??
Naturally this would be said by the OSI. (Score:1, Insightful)
The plan was to create a proprietary-destroying license that spreads by itself and becomes more powerful the more it's used, but you couldn't do it all at once, because it would be too shocking a change to introduce. Hence, the GPL v2 was created as an interim step to soften people up, although RMS's goal was always v3. AGPLv3 was just plugging the gap he forgot. The plan hasn't been proceeding as fast as they hoped, so they seek to speed it up by spreading fear about v2.
"First they ignore you, then they laugh at you, then they fight you, then you win." - chiseled over the bearded guy's bed.
Ideology? (Score:4, Insightful)
How much of this is about nudging Linus... pushing him, really... into applying GPL 3 to the Linux kernel?
"Derivative work" (Score:3, Insightful)
Re:Naturally this would be said by the OSI. (Score:3, Insightful)
The plan hasn't been proceeding as fast as they hoped, so they seek to speed it up by spreading fear about v2.
Yes because I'm sure the OSI and the Linux Foundation are only concerned with what's best for the FSF.
Re:Cause and Effect (Score:5, Insightful)
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?
Then again, maybe the GPL is [freebsd.org] not [python.org] responsible [apache.org] for great free software and open source software being written.
Don't get me wrong, I think developers should be allowed to pick their license of choice, including GPL. But there are plenty of examples of free software and open source software being highly successful and widely used that are not GPL'd.
The assumption that the GPL is responsible for the success of FOSS reminds me of a Simpsons episode where Homer is carrying a rock around that supposedly repels lions (or something). Lisa says, "That's ridiculous! What makes you think that repels lions?" and Homer replies, "You don't see any lions around, do you?"
Re:Conspiracy? (Score:3, Insightful)
Re:Ideology? (Score:5, Insightful)
Linus is probably one of the most pragmatic members of the open source movement, along with being a self-proclaimed bastard (you say that like it's a bad thing). Linus will only think about moving from GPLv2 if Linus thinks it's necessary or beneficial, not because some pen-pusher, pundit or journo tells him to.
Re:Zealots caught in Gnu/Stallmans trap (Score:5, Insightful)
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.
Re:Zealots caught in Gnu/Stallmans trap (Score:3, Insightful)
I wonder who pays these gentlemen. And, again, who pays those who pay them...
Missing the Point (Score:5, Insightful)
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.
Re:Conspiracy? (Score:5, Insightful)
If Richard Stallman wanted to help open source, he would resign from the FSF.
RMS doesn't give a crap about open source. He advocates Free Software.
Re:"Derivative work" (Score:4, Insightful)
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.
Re:Cause and Effect (Score:4, Insightful)
It is very hard to avoid relying on FSF software unless you stick with vanilla MS Windows or old-school proprietary UNIX.
People still don't understand GPL vs. BSD (Score:4, Insightful)
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.
Re:USA is not the whole world! (Score:5, Insightful)
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.
Re:real issue, but is GPLv3 the solution? (Score:4, Insightful)
No you didn't. I didn't compose an open source song, and that guy over there didn't make open source blueberry jam.
Re:Conspiracy? (Score:5, Insightful)
I think/hope you mean among the non-vocal majority who actually like him :) Stallman has done a HELL OF A LOT for the IT industry, and ethical/free software in general. Lately there seems to be a vocal group out to generate hate towards him, but I like to think his record still more than negates their pitiful smear campaign.
That said...
lol. We must have met different people. I like what Stallman's done, but trying to have a conversation with him was like trying to swap stories with the loudspeakers at a rock concert --- I mostly just felt like my ears were bleeding and I had to get away ;)
Re:Zealots caught in Gnu/Stallmans trap (Score:5, Insightful)
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.
Re:Not as bad as it sounds! (Score:5, Insightful)
Why shouldn't they get the source code to a program they are using, even if it is over SSH? Isn't that the whole point of the Open source and the GPL. Software authors granting the same rights they enjoy to their users? When did having the program you're using running on your own computer become a prerequisite for obtaining GPL rights?
Re:Distribute seems fine; derivative work, maybe n (Score:4, Insightful)
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.
Re:Not as bad as it sounds! (Score:4, Insightful)
The article essentially says that the terminology used needs more rigorous definition, and needs to match more closely with the existing legal terminology.
The article also says, "This marks one of the core questions of GPLv2: Is it based on copyright or is it a contract that, while borrowing some copyright terms, ultimately stands on its own?", which is so bizzare that it makes me question the whole thing.
I have no idea why anyone who knows anything about contract law or the GPL would ask this question. The GPL involves no consideration (payment) and therefore is not a contract in any jurisdiction governed by Common Law. The GPL further depends explicitly on the software author's copyright for its legal force.
So why exactly would anyone think this is a "core question of GPLv2"? A core question of clueless jurnos writing far outside their comfort zone, maybe. But not a question anyone who wasn't that profoundly ignorant would ask.
Re:real issue, but is GPLv3 the solution? (Score:5, Insightful)
No open source licence of any kind has ever put restrictions on the output of a program or of code. If he uses your code to make illustrations, those are his illustrations, as if they were drawn by hand, and he can do with or licence them as he pleases. If this wasn't the case, then every picture ever made with the GIMP would be GPL'd!
Saber Rattling (Score:5, Insightful)
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
Re:Cause and Effect (Score:2, Insightful)
Re:Not as bad as it sounds! (Score:3, Insightful)
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.
I think there's a fundamental difference, though, in that the AGPL and related licenses are seeking to affect the instruments themselves and not their output.
I understand the rationale behind the license, but it seems like cutting off your nose to spite your face. Yeah, some people might get to abuse the system, but I think that's better than killing the ideals by trying to save them.
Re:Zealots caught in Gnu/Stallmans trap (Score:3, Insightful)
Re:Zealots caught in Gnu/Stallmans trap (Score:2, Insightful)
Re:Zealots caught in Gnu/Stallmans trap (Score:3, Insightful)
There's a very good reason few people listen to that fruitcake anymore.
Re:Not as bad as it sounds! (Score:3, Insightful)
I think there's a fundamental difference, though, in that the AGPL and related licenses are seeking to affect the instruments themselves and not their output.
Yeah, this.
Copyright demands a creative component. You can't claim that the algorithmic output of a webapp is somehow a work whose public performance needs to be protected. You could claim that the webapp needs to be protected, and it is! Through the GPLv3.
Now to go even further, say you have HTML templates or images that get distributed via the webapp. That's where the real public performance analogy is, but you're already protected if you stick a distribution license on them!
Re:"Derivative work" (Score:5, Insightful)
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.
Re:Not as bad as it sounds! (Score:5, Insightful)
I wish you could convince the US Congress of that, so that they'd overturn the Digital Millenium Copyright Act, which is about restricting what you can do with a work.
Re:Not as bad as it sounds! (Score:3, Insightful)
Which is more important to you. Having freedom or forcing someone to contribute code back to you?
I often see these discussions end up boiling down to "you have to give back" instead of freedom as the purpose of the GPL was originally supposed to be.
Re:Cause and Effect (Score:3, Insightful)
Just because they happen to use GCC to build their binaries does not make GCC integral to any of them. Several compilers exist out there, and there's often work done to ensure programs can be compiled with ICC, and others.
And it should be pointed out that the major BSDs are all directing their effort into improving BSD-licensed compilers so that they can eliminate GCC all-together. Not only is GCC NOT an important part of the underlying software, but it has now become a major hindrance... Everyone's put up with the bugs, insane political decisions, and horrible design for long enough. FreeBSD can now be compiled entirely with Clang/LLVM, and OpenBSD with PCC. It seems likely GCC will be replaced in the not-to-distant future.
Re:Cause and Effect (Score:3, Insightful)
Re:Zealots caught in Gnu/Stallmans trap (Score:3, Insightful)
Sorry if I wasn't clear, but the 'insidious secret plot' was to handwave around GPLv2 and derived works (see anything GNU has ever said about "linking").
If OSI's lawyers just discovered this issue, which people argued about on Usenet back in the 80s, they're not doing a very good job.
Re:Conspiracy? (Score:3, Insightful)
Maybe their own software (not sure), but not the GPLed code. The whole Tivoization issue is that all binaries have to be signed if you want them to run on their hardware.
And nothing gives you the right to use their proprietary bits on third-party software, and even the GPLv3 doesn't change that; it doesn't apply to stuff that is installed with or distributed with GPLv3 software.
Finally, even if TiVo used GPLv3 bits, they could still make it impossible to modify it and still have a usable device. There are two ways that they can do this under GPLv3:
In short, the GPLv3 is completely broken, doesn't solve what they were trying to solve, and does so in a way that diminishes the use of GPL-encumbered works by corporations, making those works less relevant in the long term than equivalent works under less restrictive licenses.
Re:real issue, but is GPLv3 the solution? (Score:4, Insightful)
I don't understand your point. It is open source. The source code is in latex format. Latex is a Turing-complete programming language, which people use as a format for writing documents. You can download the source code of my book here [lightandmatter.com] (scroll down to the bottom of the page). The source code is under a copyleft license (CC-BY-SA). So I would say that that makes the book an open-source book by any reasonable definition of open source.
Re:Not as bad as it sounds! (Score:3, Insightful)
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.
That's because the input was creative.
Re:real issue, but is GPLv3 the solution? (Score:3, Insightful)
Re:Missing the Point (Score:3, Insightful)
The difference has to do with intention. Copyright was conceptualized in order to restrict distribution of copyrighted material in order to secure profit. The GPL does obey this basic premise in that it also is used to restrict the distribution of copyright material, but it is done in such a peculiar way that the ultimate result is that it actually does the opposite and enforces the copying of copyrighted materials. The GPL basically says, "Copy and share this, or else," whereas copyright law is meant to be, "Don't copy or share this, or else."
You are right that the GPL is like any copyright license in that it operates totally within the framework of the law, but it in fact produces a result that is the opposite of what lawmakers meant to happen. The GPL is a deliberate hack on the legal system, and it causes the state to enforce something it never intended to. This is bound to ruffle a few feathers, since governments and other powerful entities don't exactly like to be manipulated by clever subordinates into doing something it didn't decide for itself.
I believe it is entirely possible for the legal system to sabotage the GPL without harming "normal" copyright licenses. You just lack the creativity to imagine such a thing, but law is more twisted than you think. ;) This is why the GPL is consistently called into question for being unorthodox.
None of what I said can be considered "trolling." If anything, your accusation of trolling is in itself trolling (as is your illogical anti-GPL vitriol). If the GPL is just like any other license, then why are those who use it "douche bags"? Hmm... I smell a rat.
If you are mad because the GPL is popular, you should know that the GPL is popular for a reason. The main reason is that it actually works, and the results have been spectacular. I'm sure that not a day of your life has gone by for the past many years that you did not knowingly or unknowingly use some GNU software, from your favorite website to your ATM, DVR, or smart phone. GNU software only exists and has the quality that it does because of the terms of the GPL, and that includes Linux. People don't use the GPL because it's trendy--they use it because it gets the job done.
Free Software has had a huge impact on our lives, and it is unique. The GPL isn't the only Free Software license, but it has been the keystone of Free Software licenses.
Re:Think of it as a security patch (Score:3, Insightful)
You say that now, because you have motherboards available to you that don't even come with an operating system and are publicly documented so that you can run the OS you like. But your access to such things is by no means guaranteed. Consider a future in which embedded devices like phones are the way we use computers. Sometime in the future there could be no mass-market hardware that would allow Free Software to run. You won't be able to get the right code-signing, or a place in the app store. RMS was concerned about that. IMO for good reason. Thus the anti-circumvention material in GPL3.
By the way, we only get away with manufacturing hardware that runs Free Software for software-defined radio today because it's "test equipment". FCC has no intention of allowing open hardware for radio applications to reach the mass market. We could get into a similar situation with other open hardware.
Why doesn't he make LGPL into GPL? He gives you a choice and then recommends that you take a particular choice, but doesn't require it. IMO sometimes this is done to get better acceptance at the cost of less-well-enforced freeness.
Re:Not as bad as it sounds! (Score:3, Insightful)
Never, GPL isn't a right, and you're an idiot for thinking it is.
What the author is complaining about is that GPL screams loudly about freedom and then every time it changes it restricts freedom more and more by adding new stipulations and constraints.
GPLv3 is most certainly MORE restrictive than GPLv2. If you don't recognize that you are most certainly blind or just plain stupid.
You may prefer GPLv3's restrictions more than anything else for your needs. Thats fine and there is nothing wrong with you applying it to whatever copyrighted works you make, but just give up with this 'its about freedom' bullshit, its not, and never was for Stallman. Its about pushing an agenda on others through restrictions that shape the world into the way he sees fit.
The real problem for most people with GPL now days is that as soon as they read it a little bit they realize the 'free' part is a lie. Most software developers recognize that GPL is more restrictive than most proprietary licenses in terms of what you can do with source obtained from others.
The only people who seem to think its this great, end all, be all, save the worlds freedom! type of thing are ones who drink too much of Stallmans coolaid. I expect to hear about him and a large number of others who follow him dead in some rented mansion outside of San Diego soon.
Re:Not as bad as it sounds! (Score:3, Insightful)
I don't hate it, I just find it to be rather childish and not really in the OSS spirit.
Of course, I have the nice simple solution of just remaking what you've done in a BSD/Apache/MIT licensed code base. Don't worry, we'll get the same amount of contributions regardless of license, and your app will be able to use my work without worrying about some retarded restrictions preventing you from taking my changes and using them for yourself.
You don't want open source, you want someone else to do your work for you.
It is however completely fair. So it my choice to put your software right along side all the other AGPL and GPLv3 software packages in my 'banned' software list.
You aren't being unfair, you are being misleading by claiming to be open but really just wanting someone to fix your bugs and give you feature enhancments.
Re:People still don't understand GPL vs. BSD (Score:3, Insightful)
Which business would that be? Please exclude those that are surviving off IPO money, billionaire investors or VC money. Basically show me the company you are referring to that makes money off OSS directly and not off of funding from something else.
Go ahead, I'll wait.
Re:People still don't understand GPL vs. BSD (Score:3, Insightful)
"MySQL"
Sorry but while quite near the mark, you won't get the cake. MySQL makes/made its money not by its open source distribution but from its *closed* source distribution. They dual license their codebase, you know...
Re:Not as bad as it sounds! (Score:3, Insightful)
That poses an interesting question. Should every GPL app switch to AGPL because someone might build a web service around it? Someone could be gluing OpenOffice into a web application *right now*!
Meanwhile the stuff actually intended for web services probably will never use AGPL because it would limit adoption.
Re:Cause and Effect (Score:3, Insightful)
All of them build, have been built, and will continue to be buildable using compilers other than GCC on any OS where they want performance to not suck ass. Thanks for playing, now try again.
You don't build apache on solaris with GCC if you want performance. You certainly don't do so on Windows, and if you aren't using the intel compiler for Linux you again, don't care.
OSI didn't invent C, I was using it to compile open source software before GCC or the OSI were a stain in the Stallman/Perens love nest.
I build all of them with GCC when I need to, but its rather retarded to think that a C app depends on GCC when it has clearly been built using other compilers on MANY occasions.