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
>>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
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.
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
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
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
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