GPLv2 - copyright code or contract?

'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.

Intention

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

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.

I don't understand the issue...

Personally I think GPL licenses are rather clear...

Mike

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.

@ 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.

@ 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.

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.

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.

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.

@ 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.

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.

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.