[ILUG] Re: court cases involving the gpl...

[Richard Poynder]

At 09:28 22/03/2002 -0800, Rick Moen wrote:

>I would recommend to your attention a recent article by attorney
>Lawrence Rosen in _Linux Journal_, newly Web-accessible at
>http://www.linuxjournal.com/article.php?sid=5670 .  Mr Rosen, who is
>executive director of the Open Source Initiative and its general
>counsel, spends some time there dispelling myths about the General
>Public Licence -- including some that your piece as printed
>will unfortunately tend to perpetuate.
>
>Mr Rosen also points out that the spectre of "licence contamination", to
>the extent that it's real at all, applies equally to code received under
>proprietary licences.
>
>Thank you nonetheless, for your efforts to fairly cover a difficult and
>confused topic.  I'm aware from speaking with my friend Mikael Pawlo
>(whom you consulted) that you did attempt to cover the matter
>thoughtfully.


Rick,

Thanks for this, and thank you also to all those who have e-mailed me both 
on and off the list. I did in fact read Lawrence Rosen's article before 
writing the piece on GPL, and I did communicate with him by email 
(unfortunately he did not have a lot of time to answer my queries), as I 
also communicated with many, many people -- including the CEO of an Irish 
wireless ASP who said that while his company happily used open source 
software he wouldn't have any truck with GPL'd code. As he put it: "I would 
have a very positive approach to open source, but I would not touch 
copyleft with a barge pole." He added: "As a commercial person I would have 
a problem with GPL, because if you use a GPL component as part of your 
program it will taint other parts of your product." You may disagree with 
his conclusion, but this CEO reached that conclusion long before my article 
was written, and so suggests there is scope for a wider debate on the 
topic, and a better understanding.

Whether you like the content of the article or not, it was an attempt to 
take what is clearly an important debate out to a wider audience than the 
many open source magazines, mailing lists and conferences in which such 
discussions currently mainly take place. And if even only 1% of the letters 
to the FT and the Irish Times that people have copied me into get 
published, you can be confident that your point of view will not go unheard.

I would add that while it is true that the article I wrote was edited 
before publication I do not want anyone to think that I wrote a pro-GPL 
article that was subsequently subverted or distorted by the FT. It was cut, 
as inevitably has occasionally to happen given the huge pressure on space 
in national newspapers. Unfortunately, the more an article is cut, the less 
scope for bringing out the nuances and details of a topic, and the more 
likely that small errors will be inserted. For that reason I attach below 
the original draft. I doubt it will make any of you any happier, but at 
least you will know what I wrote, and will know -- for instance -- that I 
do not think that Apache is an operating system, or that Jason Matusow 
currently works or ever worked for Nvidia.

As a journalist all I do is write the stories. I do not attempt take sides, 
or push points of view. You may not agree that I was objective in this 
piece. All I can say is that that is what I tried to be, and that is what I 
always try to be when writing journalistic pieces.

The aim of the piece was simple: to draw to the attention of the many 
companies in which GPL'd software is being increasingly installed that -- 
contrary to popular belief -- they cannot do with it what they want, since 
it comes with a very defined set of rules. To pretend that these rules are 
not subversive of the status quo, or that they do not raise serious issues 
for companies is helpful neither to those companies nor, indeed, for the 
open source and free software movements themselves.

Regards,


Richard Poynder



 >>>>

The GPL

Richard Poynder

Open source software is rapidly growing in popularity. More than half the 
world's web sites now run on the Apache web server, and a recent survey by 
research company IDC found that 57% of companies polled now use the Linux 
open source operating system to run a major application within their 
enterprise.

This is not surprising. Open source software can generally be downloaded 
from the internet without charge. Moreover, where proprietary software is 
only distributed in the 1s and 0s comprehensible to computers, open source 
programmers also publish the source code of their programs. Since this is 
understandable to other programmers, companies can modify and adapt the 
software to their specific needs, and incorporate it into other programs.

"Open source software," says a recent Merrill Lynch report, "is software 
whose source code can be obtained, viewed, changed and redistributed 
without royalties or other limitations."

However, contrary to popular belief, there are restrictions on how open 
source software can be used. Like proprietary software it is distributed 
with a copyright licence, and while this may simply require anyone 
redistributing the software to acknowledge the original author, the most 
commonly used open source licence - the GNU General Public Licence, or GPL 
- is significantly more restrictive.

In fact, some believe that the GPL is a ticking time bomb for the many 
companies who - often without the knowledge of senior management or 
corporate legal departments - are increasingly integrating open source 
software into the enterprise infrastructure.

Any company using GPL'd software without a clear understanding of what can 
and cannot be done with it, they argue, is wandering into a legal 
minefield. Worse, they could be putting their own intellectual property at 
risk. In a speech last May, for instance, Craig Mundie, a senior vice 
president at Microsoft, said that the GPL "poses a threat to the 
intellectual property of any organisation making use of it."

Commonly referred to as "copyleft", the GPL predates the open source 
movement. Created in the mid-1980s by Richard Stallman, the founder of the 
Free Software Foundation, it was designed to help non-commercial 
programmers ensure that their software remained "free" for anyone to use, 
and would never be incorporated it into the proprietary products of 
commercial software developers.

To achieve this, Stallman devised a licence with a number of unconventional 
restrictions. "It says that if you distribute source under the GPL you 
cannot charge a software licensing fee for it, but only for the cost of 
distribution," explains Jason Matusow, Microsoft's shared source product 
manager. "It says that if you distribute code under the GPL, then you must 
distribute source with it; and it says that if you include any GPL code 
into a larger body of work the whole body of work is then covered by the GPL."

This last condition is particularly controversial, as it means that the GPL 
can "convert" proprietary software into open source software - since any 
company incorporating GPL'd code into their own software products is 
obliged by the terms of the licence to open up their code too.

In this respect, argues Microsoft, the GPL threatens the entire software 
industry. "All IP developers ought to retain the rights to release their IP 
under whatever license they choose - be it open source or commercial," says 
Matusow. "But the GPL attempts to take this choice out of their hands, and 
force all IP into a single anti-commercial licence. Our concern with the 
GPL is that it seeks to break up the software ecosystem."

Open source advocates dismiss this as the scare tactics of a proprietary 
software company concerned about the growing popularity of open source. 
"Microsoft represents the old school of software licensing and they are 
defending an old business model," says Mårten Mickos, ceo of MySQL, a 
Swedish open source software developer.

Moreover, an increasing number of commercial software companies - including 
Hewlett-Packard and IBM - now happily combine open source software with 
their proprietary products. Managed effectively, the viral aspects of GPL 
can be contained, says Scott Handy, IBM's director of Linux solutions 
marketing. "We have over 50 commercially licensed software products 
shipping on Linux, and we find no problem managing that environment."

Nevertheless, the management challenge of mixing proprietary and open 
source software, particularly when incorporating GPL'd components into 
larger programs, has wrong-footed some. Last year even IBM stumbled, when 
it discovered it was distributing a software product that violated the GPL. 
Reluctant to discuss the details, but insisting that the mistake was made 
by a third-party contractor, IBM PR manager John Reilly comments: "The 
contract owner [Free Software Foundation] brought an issue to our attention 
and in a cooperative manner we resolved their concern to our mutual 
satisfaction."

Third-party mistake perhaps, responds the general counsel of the Free 
Software Foundation's, Eben Moglen, but "the distribution of such code 
would violate the GPL regardless of who wrote it."

Mistakes like this can be expensive. Two years ago, says Matusow, a 
programmer at California-based communications device developer, Nvidia, 
incorporated into a commercial video driver he was developing a portion of 
code freely available on the internet - without realising that it was 
licensed under the GPL. Subsequently faced with the choice of releasing its 
own proprietary driver under the GPL, or re-writing it without the GPL'd 
code, the company chose the latter course. "As a result", says Matusow 
"Nvidia incurred significant additional cost in rectifying the situation."

Opinions vary, however, over the degree of legal risk posed by the GPL. 
Since the licence has yet to be tested by the courts, some even question 
its enforceability. It had been hoped that this would be clarified in 
February, when MySQL applied to a Boston court for an injunction to 
restrain US software company NuSphere from distributing software allegedly 
in violation of the GPL. In the event, the judge declined to hear technical 
arguments during the preliminary hearing.

Is this an issue for software companies alone? No, says Paul Lambert, a 
lawyer at Matheson Ormsby Prentice, in Dublin. "There is a very real risk 
for any company using open source software, and it won't be long before a 
contentious case comes to court."

Moglen disagrees. "The GPL imposes an obligation only on those who choose 
to redistribute modified or unmodified versions of software outside their 
own enterprise, an activity which is deliberate and - for firms other than 
software firms - unusual. For 99.9% of the users of GPL'd software, the 
licence never poses the slightest legal consequence."

Nevertheless, any company using GPL'd software could be putting its 
intellectual property at risk, says Matusow. "Suppose a financial services 
company made modifications to some GPL'd software, and then attached to 
those modifications an internal application it had developed for 
competitive differentiation. If the software was then distributed to 
colleagues, the source code would have to be published - which could lead 
to competitors gaining access to the same technology."

An unlikely scenario perhaps. However, Mikael Pawlo, an associate lawyer at 
Stockholm legal firm, Advokatfirman Lindahl, advises companies to view the 
debate over GPL as a wake-up call. "Many programmers will download and use 
code without considering the licence issues," he says. "Companies really 
need to undertake regular audits of their computer programs, and check the 
associated licences."

-- ends --