Home opinion-and-analysis Open Sauce GPL: why can't a lawyer understand it?

GPL: why can't a lawyer understand it?

Nearly a year after the Free Software Foundation released an updated version of the General Public License - the GPLv3 - there appears to be a great deal of confusion about what the license actually means, if one goes by two recent publications.

In one case, this is due to the ignorance of the writer and I have already dealt with it in detail; in the second, it appears to be a wilful misinterpretation of the conditions imposed by the GPLv3, for reasons best known to the author.

No matter what the reason, Edmund J. Walsh, a lawyer based in Boston, has made some claims about the GPLv3 that do merit some comment.

Walsh starts out by saying that for-profit companies should re-evaluate the ways in which they use free and open source software because of what he calls recent developments - the release of the GPLv3 (released last July, 11 months ago) and cases filed against four companies for GPL violations (this occurred in December 2007, six months ago - and all the cases have been settled out of court).

It's actually fairly easy to verify these dates and events before putting finger to keyboard.

Walsh goes on to talk of "the irreconcilable conflict between open source software and its widespread use by for-profit companies." What conflict? Red Hat is selling open source software and always has and last I heard, they are starting to talk of the B word - billions. Free and open source software is issued under licensing terms which differ from those utilised by proprietary software companies and the license has nothing to do with the fact that the software can be sold.

Let me say it plainly: free software can be sold. Yes, free software can be sold. There is no restriction on how much you can charge for services connected to free software. The word free refers to the rights granted to the user.
Written by Richard Stallman in 1991, six years after he founded the Free Software Foundation, the GPLv2 concerned itself with freedoms that the software should provide to any user: freedom to run the program for any purpose; to study the source code and then change it if one wished; redistribution to help one's neighbour, and freedom to change it and redistribute one's improvements along with the original code.

The same rights are granted in the GPLv3.

In 1998, the Open Source Iinitiative was begun by Eric Raymond and Bruce Perens in order to make free software more appealing to businesses.

According to a research paper put out by market services firm Vision Mobile, "where the OSI and the FSF diverge is that the OSI also require that an OSI approved open source license should not restrict commercially important freedoms, such as the ability to distribute open source and non open source software together, and to not discriminate against any persons, field of endeavour or technology products."

When the GPLv2 was written, software patents were uncommon and software licensing was in its infancy. Over the years, as innovations in software have grown less - mainly because you can't invent something twice - companies have sought to gain a business advantage by taking out patents on what they deem to be their inventions. Some of these "inventions" are laughable and patent offices around the world have granted some ridiculous patents in their time.

Hence, after a long period of consultation, Stallman and lawyer Eben Moglen released the GPLv3 to plug some loopholes in the GPLv2.

Are there incompatibilities between open source software and many business models as Walsh claims? Sure, if you violate the terms of the licence of any software, you will have to pay for it. It doesn't matter if it's open source or closed source. Microsoft has paid out so often for using other people's code that I've lost count of the number of times it has done so.

The casual reader will skim through what Walsh has written and come away with the impression that the man has said nothing apart from the fact that proprietary software companies should be careful as to how they use open source code. That has always been the case and will continue to be the case.

But there are also insidious statements like this: "Any activity that leverages software for business advantage is likely to restrict the software's freedom..." Nope, you can take open source code, modify it to your heart's content and use it within the portals of your company and you would not have violated any licence. You cannot be touched. It's only when it comes to distributing the code, that the licence cuts in - you need to release all of it.

Under the GPL, you can write your own code which is dynamically linked to the original code - and you do not have to release the entire lot. If GPL code is statically linked to non-GPL code, then the latter constitutes a derivative work and you need to release all the code if you are distributing the product.

Walsh is of the opinion that it would be better if GPL violation cases went to court so that there was some precedent to go by. Of course, he forgets to tell us that it would also ensure that a number of lawyers would be able to bill X number of hours for representing this client or that. Settling a case outside court does not enrich lawyers as much as a prolonged trial does.

Have a look at this list of settlements, Walsh, and calculate how much it has cost your profession.

Let me leave it there. If Walsh was really trying to make a point, he would have followed the fundamental rule that lawyers do: see what kind of case your opponents have and then draft your own defence. All that he appears to be trying to do is to confuse people and leave one impression - free and open source software is like dynamite. It's best left alone, you never know when it might blow up in your hands.


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Sam Varghese

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A professional journalist with decades of experience, Sam for nine years used DOS and then Windows, which led him to start experimenting with GNU/Linux in 1998. Since then he has written widely about the use of both free and open source software, and the people behind the code. His personal blog is titled Irregular Expression.