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Book Review: Open Source Licensing: Software Freedom and Intellectual Property

Book Review: Open Source Licensing: Software Freedom and Intellectual Property

An outmoded GPL is the reason why business has trouble accepting Open Source software. It hampers adoption because of its polemics and its idiosyncratic interpretation of copyright law. It's so hard to understand that the FSF holds seminars for lawyers to explain it to them, and presumably to explain its views on copyright law. The FSF has been trying for years to write a new version of the GPL that will reduce circumventions, match previous versions seamlessly, and take new software technologies and practices into account. But these stumbling blocks could be overcome and the Free Software Foundation could achieve its dream of software freedom (www.gnu.org/philosophy/shouldbefree.html) while assuring wider use of software covered by the GPL and its invalid sister, the LGPL. Actually, the redundant LGPL could be eliminated.

The FSF licenses share the shortcomings of numerous Open Source licenses, compounded by the foundation's rigid refusal to accept licenses such as the Apache license as being compatible with the GPL. It rejects Apache's acceptance of trademark law (the Apache trademark can't be used without permission if the software is modified) and its patent language.

The long list of licenses found to be incompatible with the GPL (www.gnu.org/philosophy/license-list.html) necessarily limits the combination of GPL software with much Open Source software. As a result, business users remain skeptical of using software under the FSF licenses. The GPL's preferential terms for "noncommercial distribution" add further unease because the term "noncommercial" isn't defined. These features (or defects) of the GPL drag on the adoption of Open Source software.

The root of the problem lies in the FSF's attitude toward derivative works, which it doesn't distinguish from collective works. Treating collective works as derivative works is part of the FSF's strategy for pulling proprietary software into the Free camp by requiring a GPL license for any software that links to GPL'd software.

The simplest demonstration of this policy is its exception, the LGPL. The LGPL is the FSF's pact with the devil. The foundation wanted the GNU C library (glibc) to be widely used so it devised what was called the Library General Public License so proprietary software could link to glibc. It then disparaged the license and started calling it the Lesser General Public License, recommending that it be avoided (www.gnu.org/licenses/why-not-lgpl.html). The idea was to unlock proprietary software.

Its overreaching zeal has led the FSF into the legally untenable ground of forbidding un-GPL'd software to be linked to GPL'd software. It's time for the FSF to align itself with copyright law on derivative works. Its definition of a derivative work is a fork with copyright law, a fork that needs to be repaired.

Rosen is too polite to call for replacing the FSF licenses with his own, but in Chapter 6 of his book entitled "Reciprocity and the GPL," he makes certain observations:

  1. The FSF's refusal to incorporate outside improvements in the GPL and its denouncing them as "restrictions" handicaps the GPL with the courts. "Their avoidance of restrictions," he writes, "has delayed the adoption of new and useful licensing concepts for Open Source software." (p. 106). These "restrictions" include items such as clear grants of patent licenses.
  2. The FSF's language about software "containing" GPL'd software tries to turn collective works into derivative works, and is contrary to the usual interpretation of copyright law (p. 114).
  3. The FSF's language varies from simply untrue to inept. The GPL mandate that "you must give the recipients all the rights that you have," Rosen says, "is unnecessarily frightening and is not true" because you still have the right to give the work to others (p. 111). He calls the foundation's provisions for linking to LGPL'd code "an impenetrable maze of technobabble" (p. 124).
  4. The FSF's ideas about linking to GPL'd software (to wit, items 2 and 3 above) conflict with copyright law and practice to such an extent that the LGPL is unnecessary because a user who doesn't modify GPL'd software and simply incorporates it in a collective work and distributes it is well within copyright law. This means that one can link to GPL'd software and distribute the collective work. If the software has a use, simply using it is permitted under copyright law.
The FSF's unwillingness or inability to make the GPL/LGPL licenses conform to copyright law and modern software licensing practices under that law will eventually lead it into disrepute. So far it has been scrupulous about avoiding the courts and relies on quiet persuasion escalating to loud public indignation to pressure infringers to conform to its policies. And so far it's been successful. But its reputation for ferocious fanaticism frightens away not only those who abuse the GPL, but those who can't come to terms with its interpretation of the GPL. By holding that a collective work is actually a derivative work (and therefore violates the GPL) it invites gradual and, ultimately, wholesale violations of the GPL, and makes it increasing difficulty to decide which cases are defensible and which to ignore so its ideas won't be exposed to adjudication.

In cases where the FSF isn't the copyright holder, and so lacks standing in court, the actual copyright holder would face the same decisions before bringing an infringement suit. The hardest case would involve the distribution of binary software linked to unmodified GPL'd software. You can bet that the GPL would be found invalid because it's ambiguous - courts favor licensees if the licensor hasn't written a clear license - and because it clearly misinterprets copyright law. Rosen believes that the courts would find in favor of the GPL's restrictions on derivative works, but not on collective works.

The GPL would be exposed as a paper tiger because it's been stretched too far in trying to kill off proprietary software. No one in the Open Source world wants an archetypal Open Source license to be legally repudiated. The sensible thing to do would be for the FSF to adopt Rosen's Open Source License, and for everyone who has put out software under the GPL to relicense it under the OSL.

The FSF knows that the current version of the GPL has problems, but doesn't recognize these problems. It's bothered by the way object-oriented programming and ASP applications evade its intentions. It's been secretly working for years now (outsiders aren't allowed to see the drafts) on a 3.0 version of the GPL trying to fix its perceived problems while keeping it consistent with the two previous versions. It thinks all of its problems result from its efforts to keep code free in the sense that received source code must never be distributed (modified or not) in binary-only form; source code must always be available (that is, free).

The FSF could solve all of its real problems in one stroke. It could clear up its anomalous stand on derivative works and encourage the wider use of free software by ceasing to frighten potential users (suppliers of software for OEM use must now warrant that there's no GPL'd software in their package), and still keep the source code "free." Its source code availability requirement is what Rosen calls reciprocity, and the easiest solution would be for the FSF to replace the GPL and LGPL with the OSL for all the software it holds the copyrights on, and encourage parties using its older licenses to relicense under the OSL. The FSF would gain respect, avoid the inevitable court struggle, and promote the spread and creation of free software. Acknowledging that it's legal under copyright law for GPL'd libraries to be called by proprietary software would accelerate the business use of Open Source software and increase software productivity (http://oetrends.com/news.php?action=view_record&idnum=388).

The FSF may have a chance to make this move. It rejected an earlier version of the OSL as incompatible with the GPL, but it has yet to speak to version 2. But since it doesn't hold the copyrights on most GPL software, its approval of the OSL, while desirable, isn't necessary. Copyright holders could simply re-license from the GPL to the OSL. Bold parties who want to call the APIs of GPL'd software could simply exercise their rights under copyright law and see who objects in court. Open Source software is far past the hobbyist and enthusiast stage and, as many of its creators and proponents have dreamed, it's spreading in wider circles of freedom and productivity around the world.

Now that the OSI and FSF have recently changed their leadership, it would be a good time for both to catch up with the rapidly moving world around them. The OSI needs to move away from license proliferation to its original evangelical purpose, this time emphasizing Rosen's Five Principles and the OSL and AFL. The FSF needs to figure out that its problem isn't reciprocity; it's the GPL, and it needs to move to the OSL.

The great service Rosen's book performs isn't just explaining Open Source licensing, copyrights, patents, and standards; it's in offering the evidence and opportunity to make the great leap forward in the propagation and use of Open Source software.

More Stories By Donald Rosenberg

Longer bio:

Donald K. Rosenberg is president of Stromian Technologies, a marketing consulting firm specializing in OEM software licensing and Open Source licensing and marketing issues. He is the author of Open Source: The Unauthorized White Papers, (Wiley), a book taking a business approach to Open Source software, now on the Web at ftp://ftp.novell.com/pub/forge/documents/Open%20Source:%20The%20Unauthorize
Don has twenty years of marketing experience and has worked with companies large and small in the U.S. and Europe, both in Open Source and
proprietary software licensing and marketing. Besides consulting on
these issues, Don has given talks about them at USENIX, ALS, Linux.SYS-CON.com (San Francisco, Frankfurt/M), Wizards of OS (Berlin), CeBIT (Istanbul), Comdex (Las Vegas, Basel), and in Taiwan and Slovenia. His column, Rosenberg's Corner, deals with Open Source and business issues.

Shorter bio:

Short bio:

Donald K. Rosenberg assists software companies with licensing and business/marketing strategies at Stromian Technologies and wrote Open Source: The Unauthorized White Papers, (Wiley), a book taking a business approach to Open Source software, now on the Web at ftp://ftp.novell.com/pub/forge/documents/Open%20Source:%20The%20Unauthorize

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