Australian Legal Perspective On The GPL

Yabada writes: "Here's an interesting assessment of the GPL from an Australian legal perspective. AustralianIT is running a story on the GPL from an Australian legal perspective (mainly to explain away some of the Craig Mundie FUD). The interesting thing to note is that even though the GPL may not fit Australian laws (specifically some of the exclusion clauses), its emphasis on rights and not specific licence terms enables the possibility of modification to suit local laws. Food for FSF thought."

Cross-Border GPL Issues

[dricher]

The note in the article that Australian law may not recognise some of the exclusions in the GPL (using standard GPL wording) raises an interesting set of questions.

1. Can you break the GPL by working on a GPLed piece of software in a country where some important GPL exclusions cannot legally be excluded, releasing the resulting software under another license (assuming one of the exclusions blocked by law is that forcing release of derivative products under the GPL), and then modifying that software back in the USA into a proprietary version containing GPLed code?

2. If software developed in a country where not all of the GPL can be legally applied is then exported to the US, is the US user bound by the full terms of the GPL, or just those which are legally binding in the other jurisdiction?

3. If the answer to (1) is YES or the answer to (2) is NO, how difficult will it become to successfully enforce the GPL in a US court, when there is the possibility of a "void where prohibited" defence about GPL provisions?

I don't know if the FSF has the time to consider these issues, but if not I would strongly urge EFA (Electronic Frontiers Australia, the Oz equivalent to the EFF) to look into the law and start evaluating these implications.

The last thing we need is a large corporation either (a) finding a jurisdictional end-run around the GPL in existence, or (b) lobbying a sufficiently small nation which is conveniently a signatory to all the appropriate treaties to modify its consumer-protection laws to enable the end-run.

Re:Cross-Border GPL Issues

[DHam]

It is unclear from the article which exclusions Mr Knight is referring to but my guess is that the obvious one is the exclusion on warranty. In the case where GPL (or other Free software - it's in all the licences) software is *sold* then I think that Australian consumer law may impose statutory warranty provisions regardless of what's in the licence. I would imagine this is an issue in other countries as well.

Aside from that, the GPL is very clearly American-centric - it's written in American not English :).

I don't see the problem

[imclaren]

Firstly, I don't see the problem with the enforceability of the GPL in Australia. It is possible that the author thinks that it is US-centric because of the geographical exclusion provision, but licences (and copyright and patents) are enforceable in Australia in a similar way to the US - In fact Australia seems to follow the US on technology issues in a lot of cases.

1. Can you break the GPL by working on a GPLed piece of software in a country where some important GPL exclusions cannot legally be excluded, releasing the resulting software under another license (assuming one of the exclusions blocked by law is that forcing release of derivative products under the GPL), and then modifying that software back in the USA into a proprietary version containing GPLed code?

I would think not - If it's based on the US version, then someone somewhere must have violated the licence. This is one of the strengths of the DMCA and related international conventions and legislation (including the Australian Copyright Ammendment (Digital Agenda) Act). If it is brought back to the US in proprietry version, then the GPL can be enforced. Otherwise you could fiddle with MS products outside the US and re-introduce them - no way the US Courts would allow that.

2. If software developed in a country where not all of the GPL can be legally applied is then exported to the US, is the US user bound by the full terms of the GPL, or just those which are legally binding in the other jurisdiction?

Unclear - but if the software is in the US and the infringement is in the US, then the licence will probably be enforced (think Skylarov (sp?)).

Why does Microsoft care?

[Boiled Frog]

Nobody is forcing Microsoft to use the GPL so why does Microsoft care? The only problem is they can't take existing GPL code and use it in their products without releasing all their source. In other words, they can't expropriate GPL'ed source as they would like. However, they have thousands of programmers that could replicate the functionality of any GPL product if they wanted.

The reason that they care is because they see GPL'ed software as a competitive thread. GPL'ed software can provide something that Microsoft can't -- the source.