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GPLv3's Implications Hitting Home For Lawyers
Posted by
kdawson
on Tue Jun 03, 2008 01:01 PM
from the software-wants-to-be-free dept.
from the software-wants-to-be-free dept.
Specter writes "The GPL version 3 is getting some attention in legal circles, especially as it relates to its interaction with proprietary software and patents. Edmund J. Walsh penned an article for Law.com discussing the GPLv3 and the risks it poses for hardware and software companies."
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Lawyer he may be... (Score:3, Funny)
Re:Lawyer he may be... (Score:5, Funny)
Yes, I could see that. He's not red, because he's not a communist. And he's not yellow either, because he's no coward. He's not blue, because he's not sad. He's not green, because he seems to have experience. Yes, I think "maroon" could be a good word for describing him.
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Neeeehhh, What's up, Doc? (Score:5, Informative)
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Re:Lawyer he may be... (Score:5, Insightful)
This is very evident in his opening paragraph: "Two recent events should give for-profit companies new reasons to re-evaluate the ways in which they use open source software as well as the extent to which they use it."
This is a "heads-up" to let people know that they need to be more careful with how they use other peoples' work. The GPLv3 doesn't change the fact that they should have been more careful before, but it does make abuse more risky. I think this is what Mr. Walsh is trying to point out.
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Re:Lawyer he may be... (Score:5, Insightful)
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Re:Lawyer he may be... (Score:5, Insightful)
Of course, when he says "software" he really means "users," and when he says "users" he really means "developers," and that inaccuracy of terminology doesn't help him make his point clearly.
Of course, half the people talking about this issue make a similar mistake; there'd be a heck of a lot less argument about this sort of thing (as well as ancillary issues, such as why it doesn't make sense to argue that either the GPL or BSD license is "more free" than the other) if English didn't make it so hard to be precise.
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Re:Lawyer he may be... (Score:4, Insightful)
y'know, the whole reason why v3 was created in the first place.
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Re:Lawyer he may be... (Score:4, Insightful)
Hmm... The vibe I got from the article was that the "heads up" was regarding the need for more lawyers. "This is scary stuff man, you better watch out... You don't even know! I mean, you'll need, like, twice the number of lawyers now!"
It reads like FUD, but not so much against open source as for pair-programming with a lawyer. The first clue was his assertion that open source == GPL v3.0.
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Re:Lawyer he may be... (Score:5, Informative)
The article is very FUDdy in nature. For example: Well, clearly not. A reading of the GPL will generally show that the 'output' of a program isn't covered by the license unless, say, the output of that program reproduces part of itself or another GPLed work, for example. Complete FUD. FUD, FUD, FUD. The GPL's patent provisions only pertain to patents (whether currently existing, or existing in the future) that directly affect the particular software package conveyed. IOW, if Microsoft distributes the latest version of Samba, then it cannot subsequently sue the Samba developers or any recipients of the Samba code for patent infringement related to Samba.
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Re:Lawyer he may be... (Score:5, Insightful)
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It's crap (Score:3, Insightful)
That right there should tell you what you need to know about the guy's understanding of 1) the technical issues related to GPL software, and 2) the actual legal requirements of the GPL.
Re:It's crap (Score:5, Interesting)
The debacle last month with ExtJS proved this. They relicensed under GPLv3 and then began trying to demand money for a commercial license from everyone who used their javascript library in a commercial web site, stating that you cannot use their library in your website under the GPL unless you open source all of the code used to generate your website (html, css, js, and any server side code like PHP, Ruby, or Python).
Many people contacted the FSF over this issue, and the response was pretty much "we don't know the answer to that, the courts haven't decided it, and it would have to be decided on a case by case basis".
In my opinion it is 100% possible that a GPLv3 project will be able to get a court to rule that if you use open source software to power a web site then all of the source code that generates that web site must be open sourced. Again the FSF has NO ANSWER to this question.
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Re:It's crap (Score:5, Insightful)
The debacle last month with ExtJS proved this.
ExtJS is a case where people want the developer mindshare of open-source development without actually releasing their code as open-source. They are trying trick after trick to avoid the implications of open-source development. Right now it's a weird interpretation of the GPLv3. Before that it was "we are releasing under the terms of the LGPL, but you aren't allowed to redistribute as LGPL because we aren't offering it as LGPL, just under the terms of the LGPL". Before that it was another trick. This doesn't mean the licenses in question aren't any good, it means they aren't acting in good faith.
Again the FSF has NO ANSWER to this question.
Of course the FSF has no answer to this question. Courts are the final authority when it comes to licenses. The same was true of previous incarnations of the GPL as well. The same is true of every other license. Until there is case law, it's all speculation.
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Re:It's crap (Score:5, Insightful)
The ExtJS example is somewhat special because since it is javascript you clearly distribute their software. That's not the case for your database software, or the software you use to generate your HTML pages. However, even if using ExtJS required that you distributed your code under the GPL that's only problematic if you actually distribute the software that runs your web site.
Basically this sort of thing is pretty old hat in the Free Software community. Lots of companies, including MySQL AB and TrollTech, have proffered interpretations of the GPL that are more stringent than what the FSF has said it believes is defensible in court. The purpose of these interpretations has generally been to encourage people doing proprietary development using the vendor's tools from using the GPL version of the tool.
Personally, I don't have a problem with these tactics. If your project has grown to the point where you are concerned that you might get sued for copyright infringement, you probably can afford a commercial license. Alternatively, you can always use someone else's software.
The point is that just because someone at a Free Software vendor says you need a commercial license doesn't necessarily make it true. It's in their best interest to stretch what the GPL requires. Don't expect the FSF to contradict what the commercial Free Software vendors say either. After all, the folks at the FSF would *love* to wake up and find that a court had ruled in ExtJS's favor. That would give the GPL even more power than it currently has, and it would further their goal of making Free Software ubiquitous.
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Fear mongering (Score:5, Insightful)
Look at it this way, if you violate a proprietary license, you get sued and lose a bunch of money. If you violate the GPL, you get sued, and you have the option to settle and open the code, or lose a lot of money. Seems to me the GPL is the less risky option.
Re:Fear mongering (Score:5, Insightful)
And the final straw? I had NoScript enabled in Firefox, and when I first went to Law.com to read the article, I got a 404 error message because scripting was blocked. The kicker? Law.com uses Apache Tomcat server - open source software (albeit not GPL). Either Law.com knows better than Mr. Walsh, or is just too cheap to pay for a proprietary web server - can't afford their own dog food, eh?
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Base premise is wrong (Score:5, Insightful)
I've said this all along. (Score:3, Insightful)
Just another damned greedy lawyer voicing is woes at OSS.
FUD and more FUD (Score:5, Insightful)
"The new lesson is that the freedom belongs to the software, not to users." This is SO bogus and mis characterizes the whole point of the new GPL. The "freedom" is absolutely for the users, especially the end users. The restrictions quoted in the article have nothing to do with users, but everything to do with ISVs taking GPL software and screwing the users.
"Changes in the GPL impose other limits on the ability to leverage a proprietary position when open source is involved."
This is true, so, write it for yourselves then. Don't think you can capitalize on someone else's work and deny then the ability to capitalize on your modifications to their software, that isn't very fair.
I don't get what the issue is. If you want to develop closed source software, then so be it, however, don't take other's GPL code and try to close that off, that's theft. How hard is it for the reptilian lawyer brain to understand this very simple concept.
We even say what is needed to comply. But NOOO, they have to keep up with the FUD.
Last little bit:
"Edmund J. Walsh is a shareholder and a member of the electrical and computer technologies and the IP transactions groups at Wolf Greenfield."
Ahh, now I understand!
Bad assumptions (Score:5, Insightful)
This article is confused and makes all sorts of horrible assumptions. In short, the author seems to believe that the only way people make money off free software by adding "differentiating" proprietary software to it. Since the whole point of the GPL is to prevent people from making the software under its purview non-free, it shouldn't really be surprising, then, that the author finds it a huge pain in the neck. Personally, I'd say the license is a success, and I suspect a lot of the companies making money from GPLed software would agree with me.
-- Brett Smith, License Compliance Engineer, Free Software Foundation
misleading (Score:5, Insightful)
What a lousy, misleading article. He makes it clear upfront that he's talking about two separate things, but then he goes on to mix them together indiscriminately throughout the rest of the article. (1) If you build your business on GPL 2 software, you'd better read the GPL 2. People who don't are getting sued. (2) GPL 3 is different from GPL 2, and may be incompatible with some business models that GPL 2 is compatible with.
Re #1: Duh. Don't agree to a license without making sure you can abide by the license. Re #2: Similar duh, and it's relatively inconsequential because very little software is under GPL 3 so far. (The typical PHB reading this is probably not going to understand that GPL 2 doesn't automatically update GPL 3, but the article could easily leave you with the impression that it does.)
With the filing of court documents, a philosophical debate about the proper place for software in society has become a business dispute with the risk of substantial consequences.
Well, no, it's not a risk. A risk refers to something you can't predict. If you agree to a license and then violate the license, that's not a risk, that's intentionally shooting yourself in the foot.
For-profit companies using open source software should take notice
He talks about "for-profit" like this all through the article. That's stupid. The GPL doesn't discriminate between for-profit and not-for-profit use. Of course the people getting sued are all for-profit companies. Is this a surprise? A nonprofit probably wouldn't have any motivation to violate the GPL, and anyhow you don't usually pick people to sue who don't have money.
The new lesson is that the freedom belongs to the software, not to users. You are not free to do whatever you want with the open source software and may find yourself in a legal fight if what you do restricts the freedom of the software.
Huh? This is idiotic. Software doesn't have human rights. The GPL also doesn't place any restrictions on how software is used. In fact, you can use GPL'd sofwtware without even agreeing to the license. You only have to agree to the GPL if you want to modify the software and then redistribute it.
Any activity that leverages software for business advantage is likely to restrict the software's freedom
Hmm...say Joe's Garage uses Firefox and OpenOffice. Can anyone explain why that's likely to "restrict the software's freedom?" Or say Barnes and Noble runs Linux on their servers. Does that mean they're "likely to restrict the software's freedom?" What he really means is that if you try to violate the GPL by making OSS into proprietary software, you've got a problem. That's a lot narrower than "leveraging software for business advantage."
and the growing use of open source software by for-profit companies has been a growing irritant for free software advocates.
Oh, God, it just gets dumber and dumber. The OSS community wants users. Everyone I know in the OSS community is typically overjoyed that IBM got on the Linux bandwagon. They're happy that Google is generally OSS-friendly. They love it that more and more OEMs are offering machines with Linux preinstalled.
Author may actually understand.... (Score:4, Interesting)
By now, most open source users understand that free refers to freedom, not to price. The new lesson is that the freedom belongs to the software, not to users. You are not free to do whatever you want with the open source software and may find yourself in a legal fight if what you do restricts the freedom of the software.
I disagree with several statements that the author doesn't understand the GPL. While the article does tend toward "scaremongering" I think the author has a pretty fair understanding and is looking forward from a legal point of view and he's a tad nervous about what he sees as potential areas of conflict.
Re:Author may actually understand.... (Score:4, Insightful)
If I were a PHB, this article alone would be enough to scare me off GPL'd software -- because I would interpret this as a potential threat of unknown magnitude. Remember the average PHB isn't going to distinguish between GPL2 and GPL3, either. A lawsuit against a GPL3 violator WILL be perceived as a lawsuit against ALL companies that use GPL'd software, regardless of which license version. And in at corporate management levels, the perception is what counts.
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crying over presents (Score:5, Insightful)
Hey, nobody forces you to use it, you know? You can write your own if you don't like the GPL. Different from patents, the GPL doesn't prevent you from coming up with the exact same thing, on your own time and expense.
FUD but well founded FUD... (Score:4, Interesting)
This article is FUD, but it is actually well founded FUD.
EG, the GPLv3 is specifically designed to limit the "set top box" model, as the provider can no longer treat it as a sealed appliance if GPLv3 code is involved (the anti-TiVo clause).
The GPLv3's patent liscence clause is deliberately broad:
A contributor's essential patent claims are all patent claims owned or controlled by the contributor, whether already acquired or hereafter acquired, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version, but do not include claims that would be infringed only as a consequence of further modification of the contributor version. For purposes of this definition, control includes the right to grant patent sublicenses in a manner consistent with the requirements of this License.
Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.
Likewise, the recent lawsuits have made it clear that the FSF crowd has grown more willing to carry the GPL into court, and as another poster mentioned, there is the ExtJS's use of the GPL: Since the Javascript gets into the final product (the page), you can argue that by using ExtJS, your web site page, as rendered, is now GLPv3, the same problem Bison used to have before they changed it from being pure GPL, not to mention the attempt to "atheroize" the GPL because of the "googleization" problem.
I'd rephrase the conflict (Score:4, Insightful)
I'd rephrase that as ".. the irreconcilable conflict between users and those who wish to limit the maintenance options available to those users."
Re:GPL 3 (Score:4, Insightful)
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Re: (Score:3, Insightful)
The article also explains the so called anti-corporate stance. The article says that it restricts the ability of companies to provide differentiated solutions, which is correct. As long as the differentiation exists only in software and the hardware is non-unique (even if DRM locked down), GPL will level the playing field. T
Restrictions on which "users"? Muddled arguments (Score:4, Insightful)
There appears to be a goodly bit of confusion in this discussion about how the word "users" is employed. Some posts include the word to indicate end users, generally the consumers that purchase the end products and use the software included. Other posts seem to include the word to indicate anyone making use of the software, mostly intimating the developers who would leverage the software as part of producing the end product.
The lack of proper distinction here is causing a real absence of clarity in what people mean. AFAICT, there is as-yet little legal precedent in the US backing up any sort of EULA-type "agreement" that restricts how end users can actually use the end products. Corporations are increasingly trying to dictate various limits, but so far I'm not sure that case law really backs this up. As such, *all* end users are essentially free to do what they want with software under *any* license, within the (admittedly obfuscated, and currently imperiled) bounds of copyright.
Meanwhile, for intermediate users such as developers, there are much more cut-and-dried legal definitions for how and what folks can do. I think TFA is dealing mostly with this aspect (though I haven't completely RTFA). Just in terms of basic ethics, which might well be very foreign territory both for the author of TFA and the PHB target audience, most folks can agree that, if you're essentially selling something that belongs to someone else, that someone else has a say in how you go about doing so.
-----
The assumption that anyone can own what are essentially ideas (i.e. book plots, computer code, artistic designs, etc.) is the foundation of the whole concept of intellectual property. If we accept that such ideas can be owned, then we must accept all the rest of the baggage of ownership that goes with this position -- including the stipulation that selling someone else's things as your own, without proper permission, is in violation of property rights.
The GPL in all its various forms simply attempts to define that proper permission. If folks don't like what such permission entails, fine -- bloody well don't use GPL-covered code. They're still completely free to develop their own code that does what they need it to (note that I'm totally ignoring the whole issue of patents, which is plenty of grist for another mill or twenty). Whining about not getting a free ride just makes people look like wankers. Whine, whine, whinge. Meh.
Cheers,
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Re:GPL 3 (Score:4, Insightful)
You can use GPL code however you want, it explicitly states it is not a usage license. What you can't do is distribute GPL code in a manner that gives those who receive it less freedom that it gave you.
BSD gives you the right to give, GPL gives you the right to receiving.
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Re:GPL 3 (Score:5, Informative)
The GPLv3 is no more or less "intellectually honest" than the GPLv2 was, and the "political ax" is no different. The agenda of the GPL was, and is, to give end users the freedom to modify the software, redistribute their changed versions, and put those changed versions to effective use. The changes in the GPLv3 are there because some companies figured out a way to sneak around that last one.
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Re:GPL 3 (Score:4, Informative)
RMS's defining moment was when his printer wouldn't work. The printer driver had a bug and he could not fix it because the driver's source code was not available.
This was his printer (well technically his department's) and yet he was dead in the water - there was nothing he could do to fix it. Buying another printer was not an option - the money had been spent. Sure he could try to reverse engineer and printer driver from scratch and write it correctly. But with no guarantee of success that sure sounds like a poor way to do things.
So he decided that such a situation sucks, sucks big time, and so he decided to make a difference and change the way the world works so that other people would not find themselves in such a situation.
THAT's why "build your own tivo" is not good enough for people like RMS.
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Re:GPL 3 (Score:4, Insightful)
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Re: (Score:3, Insightful)
Re:GPL 3 (Score:5, Insightful)
Tell that to frustrated Tivo users. Don't like GPL3 software? Use software with a BSD license. But getting the code and locking it in so that users can't modify THEIR software inside your box, isn't what we could consider "freedom".
You're still thinking commercially. ALL software should be free. The only reason why companies use "secret" software is so that they can implement their proprietary extensions and charge for them.
You know, like the iPhone.
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Re:GPL 3 (Score:5, Insightful)
It seems the lawyer gets some of it, GPLed software truly is free software.
As far as BSD vs GPL, they are both open source licenses for free software but they both have their restrictions. If you don't consider GPLed software to be free software then BSD licensed software is not free either as there are still restrictions, i.e. you cannot remove copyrights from the code and claim it to be your own.
The BSD license is more acceptable to businesses who see open source as a resource to be harvested but never invested in. The GPL is not and is designed to keep the software free. Does this mean the GPL in any of its forms is "anti corporate licensing"? Absolutely not, it simply enforces the give and take nature of open source, it in no way stops corporations from using the software to enhance their business as long as they are not in the business of leeching free software and attempting to create false monopolies and false supply limitations with the same software.
Really I find the entire anti-GPL fray to be an outlandish waste of time and effort, the GPL is not forced on anyone, if you don't like the license then stop coveting the code, pay the cost and develop your own stinking code.
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Re:GPL 3 (Score:4, Interesting)
It doesn't restrict anyone from USING it.
It prevents 'other people' from RESTRICTING you from using it. If YOU are those 'other people', it prevents you from preventing other people from using it.
BSD is truly free license
Yeah it is, if you are lucky enough to get something BSD licensed. No guarantee that's going to happen even if all the projects it was based on were BSD, it might be all locked up proprietary when you obtain a derivative software.
People who write GPL software want the end users to be able to modify and redistribute the software. That's freedom. And the GPL ensures that goal is met.
What freedom do you get with the 'truly free' BSD? You get the 'freedom' to restrict people further down the line so that they can't modify or redistribute the software. Ever wonder what people 'down the line' think of this truly free BSD software? Oh wait... they didn't get any. By the time the software got to them it wasn't BSD anymore, it wasn't free anymore.
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Re:GPL 3 (Score:5, Insightful)
I haven't lost anything, because no one took MY code and told me I couldn't use it anymore. Likewise, I didn't *TAKE AWAY* their ability to do what they wanted with THEIR WORK.
No freedom is lost under BSD.
Under GPL, if someone uses my code to do something else, then their code effectively becomes my code as well, and they have to play by my rules. Therefore, I am restricting their ability to access control over their own time and creative works. I have effectively limited the other developer.
"End users" by the definition probably don't give a crap if they can see the code. If they did anything with it, they'd be developers. I don't see how end users lose out either way -- license arguments really only affect other developers.
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Re:GPL 3 (Score:5, Insightful)
Users want to develop on the code aswell. Users can be companies, experienced software developers and even regular old Joe, who just wants to have an annoying bug fixed in his favorite software package. The nonexistent distinction between users and developers is exactly the reason why BSD is less free than GPL.
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Re:GPL 3 (Score:4, Insightful)
Something changed in GPL3, where code becomes almost secondary to how the code is used. It no longer cares about the code, or changes to it. It cares more about who, how, and what it is being used for.
No matter if you agree with the changes or not, you have to admit that the changes have nothing to do with improving the code, because GPL2 already handled this perfectly fine.
The changes have nothing to do with improving the code, which makes the changes philosophical, and restrictive.
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Re:GPL 3 (Score:4, Insightful)
They don't care until $APPLICATION_THEY_DEPEND_ON stops being maintained or the manufacturer of $EXPENSIVE_HARDWARE_THEY_BOUGHT decides it needs more money so the people that bought its hardware should better move on and buy a new $EXPENSIVE_HARDWARE_THEY_BOUGHT and, to `motivate' them, stops releasing drivers...
End users do not care about licenses in the same way as people being subjected to experimental drugs unwillingly do not care: they do not know they care.
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Re:What a stupid article (Score:4, Insightful)
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Re:What a stupid article (Score:4, Insightful)
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Re:What a stupid article (Score:5, Informative)
It was basically "I heard some things about the new GPL, and that there were some lawsuits about open-source code, so I'm going to write a definitive article explaining all the nuances and traps that businesses should be afraid of."
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Re:Article Worthless FUD (Score:5, Funny)
Did you? Then how do you justify writing
? When you do RTFA, note the 6th and 7th paragraphs, from which I quote:
Clueless post, more like.
Do I disagree or agree with the article? Doesn't matter. Though I really do like the closing paragraph:
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Re:Article Worthless FUD (Score:5, Insightful)
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Re:Article Worthless FUD (Score:4, Insightful)
Not really - most of the text seems to be claiming that it's incompatible with commercial use, which is the opposite of most peoples' interpretation.
(this is achieved in the article by suggesting that commercial anything requires placing restrictions on other peoples' software)
There are plenty of clues that this article differs substantially from the plain language of the GPL, for example suggestions that you could be sued for merely using the software (what does freedom 0 say again?)
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Re:Conceptually Accurate (Score:5, Interesting)
I spent 2 years building an embedded panel. We could have bought some proprietary software and gone on from there. Instead we used linux, elinks, and some open source libs. We also used open hardware, and even sponsored the development of additional hardware. All of that allowed us to bring a full-fledged completely industry standard control panel that's ethernet enabled, has an industry standard web server built in, is easily field modifiable, and, best of all, has no license fees. Our competition uses proprietary technology. They have a 300 baud serial connection. We have wifi, 100 mbit ethernet, and web connectivity - all for about the same investment up front, with about the same hardware costs, and we pay no royalties.
Who has the market advantage?
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Re:Conceptually Accurate (Score:5, Insightful)
you write the software once and can sell a billion copies with no overhead costs to you. Do you think dell or apple can sell a million computers without buying a million computer cases? if everyone was a millionare how much would a loaf of bread cost?
Software by it's very nature means unlimited supply of the product thus making it worthless. Novell, IBM, Red Hat, etc are making Billions by not selling software, but by selling the service, and customization of said software for particular needs.
Software doesn't follow standard economic rules of supply and demand. Stop trying to pretend that it does.
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Re:Look at the bile flowing here (Score:4, Interesting)
What, competition without state protection? Build a business advantage by being better, cheaper, faster, leaner? That sounds almost like a free market; cant have that, eh?
will GPL3 ruin open source development in the business world
No. It will create problems for free riders and make it easier for good corporate citizens to abide by the GPL because they wont have to worry about their less ethical brethren using it against them.
One corporations proprietary advantage is everyone elses disadvantage; some companies actually realize this and figure that having an advantage for 6 months in one area while their competitors have an advantage in another area for 6 months means they get a clean slate with _both_ advantages at the beginning of the next cycle. Plus their new advantage for that cycle... Moving technology forward much faster and not subject to anyone elses whims.
Linux would not be where it is today without business support
Businesses who have, to a large extent, been part of formulating the GPLv3. The corporate objectors to GPLv3 tend to be more in the non-contributing camp.
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