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back to article GPLv2 - copyright code or contract?

Two prominent IP lawyers have warned that the all-pervasive General Public License version 2 (GPLv2) contains legally ambiguous wording that may be problematic for licensees. They claim GPLv3 and AGPLv3 are much better suited for the realities of modern open source software. "If you go back in time to when GPLv2 was written, I …

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WTF?

Plain Thinking

Did going to Law School force these two to not be able to read plain English? Their questions are right there in black and white.

If any part of something you write includes any code from a GPLV2 program, then your work is automatically a GPLV2 program and must be distributed as such. For the lawyers benefit, as they are unable to read a dictionary, distribute means to sell, give away, rent or lease, while following the terns of GPLV2.

If what you write does NOT contain any code from a program covered inder GPLV2, then you are free to license and distribute however you wish.

Rocket science it is not.

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'legally unsound' != entirely worthless

I think there's little doubt that GNU GPL 2 is relatively unclear - as are many contracts and many licences. However, under English law, ambiguity in contracts should be interpreted "contra proferentum" - against the party seeking to rely on the uncertainty. I'm not aware of any case law applying this principle to licences, but, I'd be surprised if a different principle were adopted. This might mean a weakening of the hoped-for effect of the licence, but, not a fundamental uprooting of the whole licence.

To my mind, the distinction is whether one must license all code which touches GNU GPL 2'd code under GNU GPL 2, or only code which is "based on" that GNU GPL 2'd code - the ambiguity doesn't stretch sufficiently far to allow someone to distribute GNU GPL 2'd code without ensuring the source is available, nor to distribute modified GNU GPL 2'd code without distributing the source of the modifications.

This may be important to some, but, the ambiguity does not negate every aspect of value in the licence; without the licence, or a statutory exception / permission, one has no right to perform an act restricted by copyright on the covered code anyway. "Legally unstable", whilst correct, perhaps make it sound as if the entire licence is worthless, which, personally, I do not think is the case.

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Linux

Open Source Software licenses

I agree with all that is being said. Here at RiverMuse we looked very closely at the GPL license and ultimately concluded that GPL V3 was a more sound and clearer choice. One caveat, we chose not to include the "default" extension that allows license under GPL 3 or "any future version", feeling that required too much faith in future revisions getting it right.

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Linux

interesting theory

But the practice is that no-one accused of a GPL 2 violation has ever had the guts or the budget to fight on these somewhat esoteric points. They all settle out of court before it gets that far, because it is cheaper and easier for them to do so. This only applies to those distributing GPL2 covered work anyway. Ordinary non distributing users don't need a licence, and those distributing GPL2 covered work generally seem to understand the straightforward obligation which comes with this license i.e. to make source code available to distributees.

No-one distributing work seems to want to have a court banning the sale of their products containing GPL2 code - it's much too big a commercial risk compared to the minor cost of publishing the source code.

This is old news anyway - anyone following the debate over the tightening up which came with GPL3 would understand why these points were tightened up with the GPL3.

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FAIL

GPL status

Your headline raises the question of whether the GPL is or is not a license; but your article text does not address that point at all, which makes the headline a trifle misleading.

See http://www.groklaw.net/article.php?story=20031214210634851 for a treatment of that question (written in pre-GPLv3 days).

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Gates Halo

Linus

Maybe now He Who Sees All can consider using GPL3? Or does he know better than IP lawyers too?

Where is the evil linux icon??

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Intention

The intention is commonly clear. But few things are incapable of incremental improvement.

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Bronze badge

relevance?

Ultimately, it doesn't matter if it's a license or a contract.

I say this because if you don't comply with the GPL's conditions then you don't have any agreement that you can use the code at all. Without that agreement, you'd be breaking the authors copyright.

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FAIL

@ Crimminy

You are just replacing ambiguity with more ambiguity. What is "code"?

If you write a plugin for a GPL2 app, and use only header files, is that a violation, even though every line of executable code in the plugin is yours? According to some interpretations, it is. So how often do the "evil" Microsoft or Adobe sue anyone for writing a plugin according to a published interface spec? While "good" GPL authors seem to C&D people on this basis with alarming regularity, and perhaps it would be useful for the recipients of those C&Ds to know whether or not what they're doing is actually a violation.

BTW, that whooshing sound is the entire point of the article going over your head. There is no such thing as "plain English". The GPL is weak *because* it tries to use plain English, and in doing so loses precision. And the author already covered the source of your believing this to be simpler than it is. His point is well proven.

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I don't understand the issue...

Personally I think GPL licenses are rather clear...

Mike

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Grenade

GPL

Personally, I refuse to use GPL code in anything I create, simply because if I write 99% of an application, and reuse 1% of something I liked from a GPL project, then I'm hosed.

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Anonymous Coward

Re: @ Crimminy

"If you write a plugin for a GPL2 app, and use only header files, is that a violation, even though every line of executable code in the plugin is yours?"

The consensus is that you can license your own code as you like, but as soon as a user fires up that application and your plug-in gets activated, they're using a derived work of the application that incorporates your code. Consequently, your code has to be licensed in a GPL-compatible way so that the user can both use and distribute the combined work under the GPL. So, "as you like" carries a caveat related to GPL-compatibility unless the application authors have added an exception to their particular application of the GPL.

There are various projects licensed under various Free Software licences that link to GPL-licensed libraries or are combined with GPL-licensed applications. Their authors get to choose how they license their code - in private they can obviously do what they want with their own code - but upon distribution, they have to be prepared for GPL-compatibility to kick in and affect their choice of licensing.

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Stop

@AC 11:28 GMT

There is no ambiguity. Any part of a program, whether it is executable, headers, or even descriptor text is part of the code for that program. If you use any of it, even just the headers, you are using part of its code.

On the other hand, if you write a plugin for a GPL2 app, using all your own information, including headers etc., then it is yours to do with as you wish.

Microsoft wrote an application called Windows. Other people have written apps that work with Windows, but they do not have to pay Microsoft to do so. However, if one of those people used any of Microsofts work in their apps, then yes, Microsoft would and has sued them.

The point hasn't gone over my head at all. I know how to read plain English and what is written in the article of GPL2 is very easy to read and understand.

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Boffin

Does money make the world go round?

I cordially invite the non-barrack room lawyers amongst us to comment, but as I understand it, copyright infringement is a civil matter -- whereby a party sues the infringer.

Now, usually copyright protects the copyright holder's right to earn money from their works. It is on this basis that they sue for damages. How does that sit with GPL?

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Alert

@ Peter2

"[I]f you don't comply with the GPL's conditions then you don't have any agreement that you can use the code at all. Without that agreement, you'd be breaking the authors copyright."

Almost.

You forgot that certain uses of copyrighted material do not, in fact, infringe copyright, however much the copyright holder would like to pretend that they do -- the "fair dealing" provision. The Law of the Land gives you certain statutory rights and *nothing*, not even a signed contract, can diminish them. In fact, a contract which even appears to seek to diminish your statutory rights may be null and void.

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Happy

Code Plexed

Just don't use the headers and load the dynamic lib with LoadLibary if you want to avoid this. But then what is software is it knowledge or is it a .h file?

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@ Gerhardt

"Now, usually copyright protects the copyright holder's right to earn money from their works. It is on this basis that they sue for damages. How does that sit with GPL?"

Copyright gives a rights holder a range of restricted acts; acts which only the rightsholder has the right to perform, save where there are statutory exceptions or rights (depending on how you construe various parts of the law of copyright).

However, copyright is not purely a financial issue; one need not prove loss to bring a successful action for infringement of copyright, nor need to bring a claim for damages - one can merely bring a claim for infringement, with a remedy akin to an injunction - a court demand that the respondent, if found to have infringed the claimant's copyright, ceases to do so - or delivery-up of the infringing goods.

(There are also concepts of "moral rights" (e.g. the right to be recognised as author of a work), which, intrinsically, have limited/no financial value)

One could also make a case for an equitable (discretionary) remedy of an "account for profits"; a claim akin to unjust enrichment that, through infringement of copyright, the respondent has made money which they should not have made, and which should be paid over to the claimant.

In short, when dealing with copyright, one need not prove financial loss to bring a successful case.

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@ A J Stiles

"the "fair dealing" provision"

Sadly, not all jurisdictions benefit from such a defence; in Europe, a limited "personal use" right was made available to Member States to incorporate into national law, but there was no requirement do so - there is no such personal use right, nor fair dealing defence, under English law.

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GPLv2 Not Legally Unsound But Has Challenges

I appreciate the coverage of our webinar since Karen and I worked hard to prepare. However, neither Karen nor I view the GPLv2 as "legally unsound". In fact, I (and I am sure Karen) have advised companies to adopt the GPLv2 in appropriate situations. TAnd the GPLv2 has been found to be enforceable in all of the cases in which it has been involved.

However, the GPLv2 has provisions whose interpretation is uncertain, many of which stem from the poor fit of copyright law to software. Any seminar that discusses the interpretation of the GPLv2 will, by its nature, focus on these uncertainties. Nonetheless, the GPLv2 has proved a very successful choice for many FOSS projects and many FOSS communities have developed a common understanding of the meaning of the GPLv2. And such understandings can have a legal effect in the US through the doctrine of "usages of the trade" under Section 1-303 of Article II of the Uniform Commercial Code. Moreover, many non FOSS licenses refer to "derivative works" despite the ambiguity of it meaning in the context of software. The GPLv2 has been instrumental in the success of the FOSS movement and needs to be recognized for that central role.

The GPLv3 and APGLv3 have the advantage of an additional 15 years of experience about the challenges in software licensing and a three year period of drafting by hundreds of lawyers. I believe that these licenses will be more clear because of those advantages. Moreover, the advent of cloud computing means that to meet the expectations of most FOSS communities about the availability of source code of modifications, they need to consider resetting the trigger for FOSS obligations (such as making source code available) from distribution to "making available" (the so called "network use" provision) as was done in APGLv3. The GPLv 2 remains a significant option for many FOSS projects and is always on the list of licenses that I discuss with my clients.

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Real licenses v.s. contracts

I write a program. I copyright it. I can give the binaries to whoever I want, any way I want.

If I license it under the GPL I can't do that unless I give them source. I call that a restriction. They've taken my right under copyright, to distribute as I see fit. There sure are a lot of contracts going around these days pretending to be licenses.

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re right to use

Regarding the discussion between peter2 and AJ Stiles...In some legislations, for example the US, there is a right to use. This is not part of "fair use" which is a defense against uses that might otherwise be an infringment, eg quoting from a book. The relevant part of the US statute allows copying which is required in order to use the software with a computer, eg the necessary copies of all or part of the software into the hard drive and ram. So given that you have a legal copy of the software, you are allowed to use it with a computer. This is consistent with the fact that given a CD or a DVD, you are allowed to play them. Remember that most players for CDs and DVD do contain buffers, so do copy at least part of the contents into memory while playing. A result of this is that you do not need a license to run software which has been legally obtained, at least on a (singular) machine, although this seems to be widely misunderstood by both copyright owners and users. Note that the GPL itself says that you do not need a license to use the software, or that if you do then you have one.

I would argue in any legislation that if there is no right to use then no sale has taken place, eg you have received nothing of value. It follows that it should not be necessary to agree to any further license (eg an EULA) in order to use the code. This does not affect the GPL, which is only involved if you wish to do things that would not otherwise be legal under copyright law, eg copy and distribute.

To the Anon at 12:06 GMT, quite right, and you would be even more hosed if the 1% of the code came from someone like Microsoft. It is really very simple, if you want to use someones code, you must conform to their license conditions. If you don't like the conditions, don't use the code.

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@ Bounty

Bounty - your post is confusingly. As the copyright owner, you can make your own code available under the GNU GPL 2.0 without releasing the source code; it produces a perverse result, which is largely useless, but, you are not restricting yourself in any way.

In any case, there is, most probably, a difference between a conditional licence and a contract; the mere fact that a licence contains obligations need not make it a contract.

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Stop

Re: Linus

“Maybe now He Who Sees All can consider using GPL3? Or does he know better than IP lawyers too?”

More to the point, can all of the copyright holders be contacted? Unless I'm very much mistaken, at the last count (at least for Linux), the answer was "no".

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re: Linus

Swapping from GPL2 to 3 is not something Linus wants to do, and is not something that he could do.

Even if he wanted to do that, he'd still have huge problems. Linus has no right to make that decision on his own. The reassignment of code to a new license would require the OK from the thousands of contributors that have provided that code.

Sure, you could start out by dual licensing all new code and slowly wean the Linux code base over to GPL3, but there are probably more important things to be getting on with.

There are some curious holes in the GPL2. Most notably is the lack of an explicit definition of linking which continues to raise the dynamic linking is or is not OK debate. Some, like RMS, would like "binding" to include any code - including app code bound to an OS. Some would like to include dynamic linking and some only static linking.

Interestingly this is clarified in LGPL2, but that is a separate license and has no binding on GPL2.

Legally, the Linux license is not GPL2, but is GPL2-based. There is a difference because the Linux license contains the clarification at the top.

Ultimately GPL2, or any license doc for that matter, is an expression of values more than an article of faith. Nuns didn't rip off their habits when the shroud of Turin was shown to be bogus, nor will OSS developers quit just because the GPL has a few holes in it.

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Bronze badge
Linux

@Bounty

"I write a program. I copyright it. I can give the binaries to whoever I want, any way I want.

If I license it under the GPL I can't do that unless I give them source."

No, if it's your own work entirely, as you suggest, then there is nothing to prevent you from providing it under GPL (versions of your choice) to whomever you want, and under other terms to others as and how you choose. It is only when you _receive_ work (e.g. part of a program) under the terms of the GPL, under this license from someone else, that you are under any obligation to provide source code, and this obligation only occurs if and when you perform onwards (downstream) distribution of work you obtained under GPL terms from someone else.

So you only break the GPL license obligation in connection with the ability of someone upstream of you to enforce your license. The person downstream of you only has rights to source code in the sense you break the license provided from your upstream provider if you don't provide your downstream with source code. Your downstream distributee can't enforce this while the upstream copyright owner can.

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Thumb Down

No wonder it's confusing

They wrote the stupid thing in legalize.

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Anonymous Coward

Re: Not a call for GPLv3

"It's a call for a GPL2.1, fixing these issues. Rather than going with the badly, badly flawed conceptulaisation process which lead to GPLv3."

Nonsense! The GPLv3 more or less remedied the more blatant shortcomings of the GPLv2, as the subjects of this article admit. If anything, the GPLv3 held back on various issues which probably will need addressing in the future, although this is mitigated by the existence of the AGPLv3 and its explicit compatibility with the GPLv3.

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