The General Public License

Dr. Daniel M. German

Department of Computer Science

March 10, 2006 Version: 1.1.0

1

Warning

• I am not a lawyer

• These are my interpretations, and therefore are not legal advice

2

Overview

• Introduction to Open Source and Free Software

• Some background on copyright

• The GPL

• GPL and other licenses

• GPL in court

3

Copyright

• If you are the copyright owner of a work, it gives you the

exclusiveright to:

1. reproduce the copyrighted work in copies or phonorecords;

2. to prepare derivative works based upon the copyrighted work;

3. to distribute copies or phonorecords of the copyrighted work

to the public by sale or other transfer of ownership, or by

rental, lease, or lending;

4

Collective works (compilation)

• A collective work is “a work ... in which a number of

contributions, constituting separate and independent works in

themselves, are assembled into a collective whole” (17 USC)

5

Derivative Work

• A derivative work is “a work based upon one or more preexisting

works, such as a translation.... or any other form in which work

may be recast, transformed or adapted” (17 USC)

6

Chain of title

• Collective and Derivative works have copyright by different

owners,

• “The copyright of aC or DW extends only to the material

contributed by the author of such work...

• ... The copyright of such work is independent of, and does not

affect or enlarge the scope, duration, ownership, or subsistence of

any copyright protection in the existing material”

7

Chain of title in open source

• Open source is frequently a collective or a derivative work

• The new authors are subject tot he licenses of previous authors

• Each part might have difference licenses and restrictions

• Depending on the licenses used, it might only be required to have

a license from the previous link in the chain

8

Joint ownership

• “A joint work is a work prepared by two or more authors with the

intention that their contributions be merged into inseparable or

interdependent parts of a unitary whole” (17 USC)

• Each of the joint authors may separately license the joint work

(and all of its parts)

9

Assigning Ownership

• Copyright can be assigned (or transfered) to another entity

• it has to be done in paper

• Only the owner of the copyright has the right to sue to enforce

his/her rights

10

License

• A license is the legal mechanism used by the copyright owner

(licensor) to grant permission to others (licensees) to usehis/her

intellectual property

11

Contract

• “A contract is a promise or set of promises for breach of which

the law gives a remedy, or the performance of which the law in

some way recognizes as a duty” (Restatement, Second, Contracts)

• “A promise is a manifestation of intent to act or refrain from

acting in a specified way, so made as to justify a promise in

understanding that a commitment has been made” (Restatement,

Second, Contracts)

12

Are open source licenses “contracts” or “licenses”?

• It is an open question, to be resolved by courts.

13

The General Public License

• A milestone in copyright law, it was written by RMS

• Based on the Emacs General Public License, and other specific

product license

• Version 1.0 was released in 1989

• Version 2.0 was released in 1991

• Version 3.0 is in draft 1 (2006)

14

GPL Bargain

• You can use this software on the condition that any derivative

works you create from it and distribute are also licensed under the

GPL.

• This is the foundation ofCopyleft and makes the GPL a

reciprocal license

• The commons of free software will therefore only grow

15

Copyleft

• (as told by RMS)

• When one redistributes a work, one cannot add restrictions to

deny people their software freedoms:

– Freedom 0. The freedom to run the software, for any purpose.

– Freedom 1. The freedom to study how the program works,

and modify it. (Access to the source code is a precondition for

this).

– Freedom 2. The freedom to redistribute copies.

– Freedom 3. The freedom to improve the program, and release

the improvements to the public.

16

GPL as a template license

• It can apply to any software by any author

• The author has to include a notice in the software that links it to

the GPL

• The FSF recommends using Version 2 or “any later version”

– This is both a risk and an advantage

17

GPL applies to programs and derivatives

• The GPL uses always the term program, not software

• In section 0 the GPL defines “work based on the Program” aseither “a Program” or a “derivative work under copyright law”

• But it also includes “a work containing the Program or a portionof it, either verbatim or with modifications and/or translated intoanother language”

– where does it become a collective work and not a derivativework?

– that is one of the main ambiguities of the GPL

• Is linking a collective or a derivative work?

• The GPL seems to imply that linking is a derivative work!18

Linking

• “These requirements [you may modify...] apply to the modifiedwork as a whole”

• “If identifiable sections of that workare not derived from theProgram, and can be reasonably consideredindependentandseparate works in themselves, thenthis License, and its terms,do not apply to those sections when you distribute them asseparate works.”

• “But when you distributethe same sections as part of a wholewhich is a work based on the Program,the distribution of thewhole must be on the terms of this License, whose permissionsfor other licensees extend to the entire whole, and thus to eachand every partregardless of who wrote it.

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Linking...

• “As there is no record of anyone circumventing the GPL by

dynamic linking without backing down when threatened with

lawsuits by the FSF or the respective copyright holder, the

restriction is apparentlyde facto enforceable even if not currently

de jure” (Wikipedia)

20

The most beautiful paragraph of the GPL

• “You arenot required to accept this License, since you have not

signed it.

• However,nothing else grants you permission to modify ordistribute the Program or its derivative works.

• These actions areprohibited by law if you do not accept thisLicense.

• Therefore, bymodifying or distributing the Program (or anywork based on the Program),

• you indicate your acceptance of this Licenseto do so, and all

its terms and conditions for copying, distributing or modifying

the Program or works based on it.”21

GPL is a license

• It is not a contract: it does not ask for any promises in return.

• Disadvantage:

– Only the copyright owner can sue to enforce it

– At least in the US, copyright disputes are heard only in federal

court (true to Canada too for software)

• “If you want to pursue contract litigation, and obtain contract

remedies, you probably don’t want to use the GPL”

22

Assignment of Copyrights

• A project that owns copyrights has the ability to enforce them

• The project can change the license

23

GPL reuse

• All GPL-ed software is available for reuse in GPL-ed software

• No new agreement is needed

24

GPL Compatibility with other licenses

• Reciprocal Licenses:

– The GPL cannot be combined with software that is MPL, CPL

or OSL.

• Academic Licenses:

– BSD and MIT licensed software can be turned into GPLed

– Apache and AFL are contengious (Rosen says Yes, the FSF

says No)

25

Guidelines for applying the GPL

• The GPL as clarified by Linus.

– “The Linux kernel is licensed under the GPL, but with this

clarification:

– This copyright doesnot cover user programs that use kernel

services by normal system calls – this is merely considered

normal use of the kernel, and doesnot fall under the heading

of ’derived work.’ “

26

Legal tests

• SCO vs IBM, still going on

• 2002, MySQL AB sued Progress NuSphere for copyright and

trademark infringement in United States district court. Judge

Saris “saw no reason” that the GPL would not be enforceable.

The case is settled out of court.

27

Legal tests...

• In April 2004 the Netfilter/iptables project was granted apreliminary injunction against Sitecom Germany by MunichDistrict Court. On July 2004, the German court confirmed thisinjunction as a final ruling against SiteCom.

– “Defendant hasinfringed on thecopyright of plaintiff by [...]without adhering to the license conditions of the GPL. Saidactions would only be permissible if defendanthad a licensegrant... This is independent of the questions whether thelicensing conditions of the GPL have been effectively agreedupon between plaintiff and defendant or not. If theGPL werenot agreedupon by the parties, defendant wouldnotwithstanding lack the necessary rights to copy, distribute,and make the software ’netfilter/iptables’ publicly available.

28

GPL Version 3

• First draft in Jan. 2006

• Under public consultation

• It is more “layer” friendly

• Major changes:

– It is more specific in many terms

– Denies the use of the GPL to:

∗ Create DRM software

∗ Invade the privacy of users

– Denies the use of the GPL to create DRM software

– Addresses issues of patents, and patents licenses

29

Conclusions

• The GPL is a license

• If forces the creator of a derivative work to sublicense under the

GPL

• It has been a great success in achieving its goals

30