3 posts • joined 15 Oct 2009
This article makes an important point about the ecosystem and how it works. The best book about it that I have read is Startup of You by Reid Hoffman. It is as important for its examples as its recommendations.
Fundamentally Flawed Legal Analysis
The analysis is fundamentally flawed because it does not take into account the modification of the GPLv2 which provides that programs that use Linux are not derivative works. I detail the problem in my blog http://lawandlifesiliconvalley.com/blog/?p=593. And Sean Hogle agrees with me for slightly different reasons http://www.epiclaw.net/2011/03/21/oh-noes-teh-angry-birds-gpld-googles-alleged-gpl-violations-android. This is really much ado about nothing.
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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