Re: GPLv3 comedy unfolding -- Rosen: "Comments on GPLv3"

[Alexander Terekhov]

http://www.rosenlaw.com/GPLv3-Comments.htm

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Comments on GPLv3

by Lawrence Rosen[1]

Many long months ago I committed to help Eben Moglen and his colleagues
at the Free Software Foundation and the Software Freedom Law Center
write a better license than GPLv2. They have done so and I applaud their
efforts. GPLv3 is clearer about its purposes and effects than its
predecessor. It is a legal document intended to be honored and obeyed,
and so I am glad that we can now know more precisely what is permitted
and what is prohibited under its terms.

FSF’s software and certainly much other software will soon be available
for free under the terms of GPLv3. In some respects, GPLv3 is like all
other licenses imposed upon the world by the owners of intellectual
property. There is not a public domain commons of software that runs
commerce worldwide; it is software that is available by the goodwill of
its owners and licensed to recipients under terms stated. In the United
States there is a foundational legal principle of “freedom to contract
[or license] under any terms you want,” and GPLv3 takes full advantage
of that principle to build a collection of free software available to
all under copyleft terms. 

But that GPLv3 software isn’t the only such collection of free software
in the world. Many distributors, including most prominently the Apache,
Eclipse, Mozilla and Perl foundations, have their own licenses and their
own collections of software. I support the work of those other
foundations also. The very first sentence of GPLv3 summarizes it nicely:
“The GNU General Public License is a free, copyleft license for software
and other kinds of works.” Notice that the license doesn’t claim to be
“the” license, or “the best license for all purposes.” The GPLv3 license
is merely (but emphatically!) the next generation of a leading member of
a community of licenses for free and open source software.

GPLv3 is a statement of the rules by which certain owners of software
will distribute their works. From my perspective, it is a far better
license for those purposes than many other licenses, although you
probably will not be surprised to learn that I still prefer my own Open
Software License (OSL 3.0). No single license can satisfy everyone.
Richard Stallman and the FSF are entitled to the terms and conditions
they believe in—to satisfy their own goals and purposes—for their own
intellectual property. They are entitled to this, just as my other
friends and colleagues in the community are entitled to their open
source licenses, indeed just as the owners of intellectual property are
entitled to license it under proprietary terms if they wish.

My major objective when I agreed (many long months ago) to help Eben
Moglen and Richard Fontana on Committee A was to ensure that GPLv3
played well in the entire ecosystem of free and open source software. I
define those terms more broadly than some in FSF, but I specifically
include software available for free under very generous terms from the
Apache Software Foundation. By way of disclosure, I am an attorney
representing the Apache Software Foundation. License compatibility
between GPLv3 and the Apache License was as important to my clients as
it was to Richard Stallman. 

Apache software can now be included in GPLv3 projects. I’m particularly
delighted that these two large communities are now able to work together
compatibly in this way! 

More broadly to my satisfaction, though, the GPLv3 license contains
clearer language that will encourage its software to be used in
“aggregations” (what in United States law we call “compilations” or
“collective works”) that include many independent works. Computer
professionals will better understand these independent works as modules
of code, so I’ll use that word instead. As long as those modules are
independent works under copyright law, and as long as their own
independent licenses allow this to be done, verbatim copies of those
modules can be combined to build larger systems of increasing
sophistication and breadth. GPLv3, as I now read Draft 4 the license,
allows that. 

I have long counseled that GPLv2 allowed that result also, but some
argued otherwise. All the FUD that I and others have spread over the
years about linking—static, dynamic, otherwise—didn’t help matters much.
This argument can be replaced now by intelligent conversation about the
actual words of GPLv3, which I understand to allow aggregations of
verbatim copies of independently-written modules taken from the
worldwide portfolio of free and open source software. I have always read
the Open Source Definition as mandating that open source licenses permit
the copying and distribution of verbatim copies including for collective
works, and this added clarity in GPLv3 supports that interpretation.
Perhaps now our software commons is vastly larger for collecting
independent open source modules into interoperating solutions for our
customers.

Of course this all remains, despite the increased clarity of GPLv3, a
complex legal topic requiring careful counsel: From a copyright law
perspective, the original licenses continue to apply to those verbatim
copies, but not necessarily to the collective work as a whole.
Collective works are independently copyrightable to the extent they
required creativity to collect. Also under copyright law, don’t confuse
collective works with derivative works. The improved clarity of the
definitions in GPLv3 Section 0 may help explain these concepts to
developers and distributors of software, for which I thank the authors
of the license. But you should still consult with your own attorneys to
ensure that you clearly understand the legal distinctions I’m drawing
here. 

I predict that one of the biggest success stories of GPLv3 will be the
realization that the entire universe of free and open source software
can thus be combined into comprehensive open source solutions for
customers worldwide.

My satisfaction with this aspect of GPLv3 is partially offset by my
concerns that the patent provisions in Section 11 will impede the
overall success of the GPLv3 license itself. I have fought over the
years about the wording of many a patent provision in many an open
source license, and I have discovered that some provisions make licenses
unacceptable to big patent holders—and thus impede adoption of open
source software. Simply put, companies can conclude that free software
is not worth the loss of their patent portfolios; if those companies are
your potential customers or business partners, they may not accept your
software under your GPLv3 license. 

The Free Software Foundation is right to be concerned about software
patents and right to want to defend our community from them. But I do
not believe that the best way to do so is to threaten to emasculate the
patent portfolios of big companies so that they refuse to play with us
at all. 

These debates about patent provisions in licenses usually take place in
private because big companies that have commercially-significant patent
portfolios aren’t anxious to disclose their intellectual property
strategies in public. (Recent press about the potential use of one
company’s patent portfolio against open source illustrates the public
relations risk of saying aggressive things about patents in public!) For
GPLv3, negotiations over its patent-related license provisions were
undertaken primarily in Committees B and C on which I didn’t serve, and
so I don’t have much insight into the justifications for the compromises
that apparently were made. But I personally fear that the resulting
compromises, and the words of GPLv3 Section 11, will impede the
development and distribution of free software by frightening patent
owners away. That is a shame.

Bottom line: I believe GPLv3 is a good license that many of us can live
with, but it will never be the only license that serves the free and
open source community. Owners of software have other good licenses to
choose from that will meet their own philosophical and business goals.
The Apache, Eclipse, Mozilla and Perl foundations and many other
projects will continue to build upon their own visions of free and open
source software using their own licenses. To the extent that GPLv3
embraces participation in that larger community, I’m quite satisfied
with it, even though it won’t necessarily be the license I’ll recommend.

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[1] Copyright © 2007 Lawrence Rosen. (See www.rosenlaw.com.) 

Licensed under the Academic Free License version 3.0. (See
www.rosenlaw.com/AFL3.0.htm). 

None of the opinions in this article necessarily represents or reflects
the views of my clients, including the Apache Software Foundation or any
of the other projects or organizations mentioned herein and whose work I
support. My views about GPLv3 are my own. I thank Eben Moglen for
inviting me to participate on GPLv3 Committee A, and I thank Richard
Fontana for ably representing FSF’s interests on that committee. Lawyers
and engineers alike should recognize that giving birth to a new license
is always a difficult task, particularly in a very public process where
there are almost irreconcilable views about important legal matters. I
congratulate FSF as they approach the end of that process. Richard
Stallman and the Free Software Foundation now have the license they
want, and they are entitled under the law—and under free and open source
software principles—to apply it to their valuable software. I wish them
success.
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regards,
alexander.

--
"Live cheaply," he said, offering some free advice. "Don't buy a house,
a car or have children. The problem is they're expensive and you have
to spend all your time making money to pay for them."

        -- Free Software Foundation's Richard Stallman: 'Live Cheaply'