Looks like I'll be storing up posts for later again - I'm attending a seminar on Open Source (from a legal/licensing standpoint) in Tyson's Corner, VA. The seminar is being put on by LSI (Law Seminars International). Why am I attending this, you ask? Well, we (the Cincom Smalltalk team) get asked about open source with respect to our product quite frequently. We don't have any plans to go that way at present - but I'm always on the lookout for more and better information. First up - Rick Statile of RedHat, on the GPL and the LGPL. Looks like Rick is a General Counsel for RedHat - his background is in M&A, where OSS license issues can crop up in interesting ways

The agenda:

• Cover the GPL and the LGPL
• History of the GPL
• GPL Themes and Issues
• Discussion of the text of the GPL
• LGPL differences
• Q&A

This is looking at the GPL (and LGPL) from the legal side - and from that standpoint, the GPL is short - only 3000 words (as opposed to many commercial licenses - which are often much longer). Interesting stats here - of the (at the time the stats were gathered) projects on SourceForge:

• 63,094 projects
• 43,578 under the GPL
• 7095 under the LGPL

So roughly 80% of the SF projects are under the GPL or the LGPL. His take - the license reads more like a manifesto or political document than like a license. First written in 1989, version 2 in 1991 - never challenged in court. Inspired by Stallman's experience with EMACS authorship.

GPL Themes and Issues:

• "Free"- gratis vs. libre
• Reciprocity/Copyleft
• "Viral" nature of the GPL - what does this mean?
• Is it a contract or a naked copyright license?
• What about software patents and the GPL?
• Revising/future versions
• Compat with other OSS licenses
• Warranties/Limitations of Liability

The preamble is like a manifesto, although it's not "formally" part of the license itself. It's not at all clear whether a court would take it into account when interpreting the license. Rick believes that the preamble would be taken into account, since a court may not find the actual contents clear enough. There's also Stallman's public comments and the FSF website FAQs on it.

The outline of the GPL - Rick states that it's clear here that the license was not written by a lawyer. It's also not necessarily congruent with copyright law (especially with respect to derivative works) - but this license was written before a lot of current jurisprudence was determined. Trademarks are completely left out of the license (example - redistribution of RedHat Linux involves stripping the trademarks out).

Section 1: covers redistribution rights. You have to include the GPL, note the absence of a warranty.

Section 2: covers modification/derivative work. This is where the "viral" nature comes in. Defines derivative works very broadly - any inclusion of any GPL code potentially makes the entire thing fall under the GPL. Rick: "Uses Copyright law against itself" - forces an author to keep their programs open. It's explicitly not a public domain thing - copyright is still in force.

Section 3: Specifies that you have to either include source, or make it available on request at nominal (i.e., only shipping) costs. Clearly written pre-internet (no cost of distro).

Here's the kicker - the viral nature of the license can open software that you would like to keep proprietary. Running a proprietary application on a GPL OS (i.e., Linux) is ok. Shipping on the same CD is fine as well, and does not open it. On the other hand, including GPL software with yours can open it. Question: "What do you mean by including?" So loading GPL code into an application may well infect it - another speaker is going to cover this later.

Rick's take - he thinks that it's unlikely that a court would force proprietary code to be opened (even if distributed) - he instead thinks that there might be copyright infringement, and damages might be assessed - and an injunction would forbid further distribution. This is clearly a point that much of the audience isn't in agreement with. In fact, one of the audience members pointed out that in Germany, the GPL has been enforced such that shipping software has been pushed under the GPL (under mutual agreement though - so still not clear).

The key reason that Rick believes this is that the GPL is a license, not a contract. There's no contract to specify specific damages, which is why the theory is that you would get an injunction preventing further shipment without a contract or removal. Big question here to define the difference between "shipping" and "distributing" - of concern to government agencies (if agency 1 gives code including GPL to agency 2, is that shipping of distributing?). The theory is, certainly within an agency it's not shipping (i.e., does not trigger the viral nature). People differ when you cross agency lines. Which raises the same question in my mind about distribution between business units of a firm, depending on the legal structure of the firm. Hmmm.

My take here - a court is going to have a lot of fun with this when it finally gets tested :)

The Acceptance clause (Section 5) - modifying or distributing implies acceptance (which is why Rick says it's a license and not a contract). The really tricky thing is patents - when the license was first written, Microsoft had no software patents. Now, they've exploded. There are firms (insurance firms wanting to make money) claiming that Linux infringes 283 patents, including 27 held by MS (but a lot are held by Linux friendly companies like IBM) - so Rick's thought is that we have what amounts to MAD protection here - MS won't launch because it would result in a large IBM response. Joy :)

How does it differ from the LGPL? The LGPL attempts to address the "viral" nature of the license in the face of link libraries. The consensus seems to be that static links trigger, while dynamic links don't. However, Rick says: Consult a lawyer.