Nimmer on FREE SOFTWARE: PATHS OF CO-EXISTENCE

[Alexander Terekhov]

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Posted By Raymond Nimmer 

With the noise about the likely to fail GPL 3.0, it is easy to forget
that we are still dealing today with existing GPL and its infectious
brethren. The issue for those licenses is: can other software coexist
with free and open source licenses? The answer is yes, but only with
care.

FSOS approaches are defined by a philosophy implemented in licenses.
Some FOSS licenses merely implement that approach as to their own code,
but others force their terms (and philosophy) on third party software.
These "viral" or "infectious" licenses undermine coexistence.

Coexistence implies two or more persons or products being together in
the same place or system peacefully despite their differences. For
software, it entails being able to have software that interacts with, or
uses, FSOS software despite differences in licensing philosophy and
approach. But coexisting with free and open source software entails
coping with FSOS license terms in each license used in a system.

Many open source licenses make this easy because they are permissive,
like the BSD license. Permissive licenses approximate openly dedicating
the code to the public domain. They should be philosophically preferred.

Other licenses are pass-through. In a pass-through license the terms
must be passed through to only as to the original licensed material.
License terms for new material are at the option of the party who adds
the material.

Then there are the viral licenses. These are the most restrictive. They
provide that, in defined circumstances, a licensee's use is conditional
on applying the license to the original work and to new code. The GPL
claims: "To protect your rights, we need to make restrictions ... These
restrictions translate to certain responsibilities for you ...." Shades
of the novel: 1984.

Let's look at paths of coexistence with viral licenses.

Path 1: End user modification
Since current licenses do not impose terms on end user modifications,
end users are safe today. Distributors can distribute works that are not
derivative of an FSOS work, but that enable the end user to create a
derivative for its use.

Path 2: Distributing non-expressive elements
Viral provisions often are limited to works that are copies or
derivative works of the original. A path to coexistence is to design
software distributed in a manner that does not contain expression of the
original work.
This may seem trivial, but the most valuable aspects of software are
often not protected expression. Ideas and approaches are not copyrighted
expression. Thus, code extracted from another's work is not expression
if it fits one of three characteristics:

    * What is used is so abstract or so changed from the original that
it simply uses the unprotected idea, rather than the expression.
    * What is used is so narrow and related to machine functions that it
is merged with the function and an unprotected process.
    * What is used is found in so many unprotected works that it does
not constitute expression.

Path 3: Distribution outside the scope
Viral licenses impose their terms only on code that connects to the free
software in a particular way. Avoiding that particular connection avoids
the viral effect.
For example, viral terms often cover "derivative works." This is a
copyright law term. A work is not a derivative work unless it contains
expression from the work from which it allegedly derives. It is not a
derivative work simply because it interacts with the other work or uses
ideas from it, regardless of how the links or other connection occurs
technically.

Path 4: Relying on exceptions
One can also rely on exceptions from the owner of the copyright or
obtain a separate agreement devoid of FOSS restraints. The task is to
identify sources of code and to obtain clearance from that source. Free
software licenses are private documents. The person who controls the
copyright can grant broader rights or exceptions. In fact, many FOSS
programs are dual licensed - available with and without viral terms.
The most significant exception deals with the Linux kernel. Torvalds
made clear early that the viral terms of GPL did not apply to
applications operating in "user space" even though those applications
made calls to or otherwise linked with the operating system kernel.

Path 5: Distancing strategies
A distancing strategy places valuable code in a safe harbor, even if
other code is used to link to it and, perhaps, constitute a derivative
work. The connecting code is "sacrificed code" that may fall under viral
terms. Whether, as distributed, the code constitutes a derivative work
does not matter, so long as the interaction between it and the
"Protected Program" falls into a safe harbor of permitted coexistence.

Summary
So, there are ways around the threat to coexistence. But I wonder why
they are needed. Why does a movement that refers to itself as free and
open, try to impose restrictions on others to act freely or openly?
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http://www.ipinfoblog.com/archives/licensing-law-issues-free-software-paths-of-coexistence.html

regards,
alexander.