Monday, April 19, 2010

The General Public License

File:Heckert GNU white.svg

The article was first published on 6/2/2008.

In the twenty first century, people in developed countries interact with computers on a daily basis. The interaction could be with a personal computer or a computer embedded into a device such as a television or microwave. Regardless, all computers rely on a set of instructions that describe how the hardware should operate. These instructions are collectively called software.

Software is normally developed in human readable text and then compiled into a machine readable binary file. Whilst binary files are normally distributed with hardware or sold separately, the human readable text (or source code) is not. This is mainly because distribution of source code is unnecessary plus doing so would comprise the software developer’s competitive advantage.

When a consumer purchases software, the software may be duplicated on a hard drive and in the random access memory (RAM) for routine use. In 1980, the legislature introduced section 117(a)(1) into the Copyright Act to specifically permit this type of software duplication. This amendment may have contributed to the software industry’s reluctance to distribute source code even though it may have hindered innovation.

Open source is essentially a counter to proprietary (or closed source) software. The philosophy was first introduced in the early 1980’s by Richard Stallman when he started working on the GNU project. Stallman’s intent was to make software source code available to the public with relaxed (or non-existent) copyright.

In the late 1990’s, Microsoft and Netscape battled for supremely in the legendary “browser wars”. The early dominance of Netscape’s Navigator was eventually overtaken by Microsoft’s Internet Explorer. In 1998, Netscape conceded defeat but also brought “open source” to the public’s attention by releasing Navigator’s source code under an open source license, specifically the GNU General Public License (or GPL).

The GPL is one of many licenses approved by the Free Software Foundation and the Open Source Initiative but it is by far the most popular. GPL is used by more than half of the projects hosted on freemeat.net and sourceforge.net, the two most popular open source websites.

Richard Stallman, an open source pioneer, founded the Free Software Foundation in 1985 but also wrote the GPL. The popularity of GPL could be explained by the fact that contributors to a GPL project felt assured that their contributions would benefit all and not be exploited by software companies.

The GPL was first released in 1989. The key clauses in the license are as follow:

  1. The licensee has permission to modify, copy, redistribute the original or derived work.
  2. The pre-compiled binaries must be accompanied by the source code or a mechanism to access it.
  3. The distributor of the derived work is compelled to use the GPL.
  4. The distributor can charge a fee. However, this is somewhat muted with full disclosure of the source code.
  5. The distributor cannot impose restrictions that contradict the GPL. For example, a distributor cannot distribute software under a non-disclosure agreement.
  6. The GPL is designed to be interpreted as a license rather than a contract. In common law jurisdictions like the United States this means that the GPL is enforced by copyright laws.

As stated in (6), a person can choose to disagree with the license and continue to use it legally. However that person is not permitted to distribute the software.

Commercial software companies generally avoid using GPLed software because the software is usually unsupported, changes rapidly or has an uncertain roadmap. But the most important consideration is the “viral” nature of GPL software as stated in (3), that is, derived software must adopt the GPL. Whilst GPL software may be low cost (or free) it does present a significant risk to organizations that wish to keep their source code proprietary.

A prominent issue today in the open source community is whether dynamic linking to GPL libraries is considered a “derived work”. The community is split on the question but Determann (2006) concludes:

…dynamic linking to GPLed programs would not normally trigger the application of the GPL to the linking program, even if both programs are distributed together.

Now consider Mozilla Firefox, a popular web browser licensed under GPL. Could a hypothetical software developer distribute a proprietary add-on? Determann (2006) says yes:

…contrary to the views expressed by the Free Software Foundation, distributors can separately distribute add-on products intended for combination with GPLed code without fear of incurring contributory liability.

In Wallace v. International Business Machines Corp. et al. 467 F.3d 1104 the plaintiff alleged the defendants IBM, Red Hat and Novell used the GPL to illegally stifle competition. Chief Judge Easterbrook in the seventh court of appeals ruled that the GPL did not contravene federal antitrust laws. Fayle (2006) states:

Chief Judge Easterbrook, writing for the court, dismissed these arguments and reassured free software advocates that “[t]he GPL and open-source software have nothing to fear from the antitrust laws.”… …The GPL actually results in increased output and the lowest possible prices, this antitrust law has no interest in breaking up the GPL’s “conspiracy”.

In 2006, a German court ruled that DLink Germany Gmbh infringed copyright by using parts of the Linux operating system in its Network Attached Storage (NAS) device. This was the first time that a court had judged that the GPL was enforceable.

The following statement by Carver (2003) still holds true today:

Historically, the GPL has been primarily enforced through private negotiation and settlement agreements. This process has been successful thus far because most alleged violators have apparently been eager to correct any defects in their compliance. These extra-judicial resolutions have generally satisfied the goals of the copyright holders enforcing the GPL, but left questions of the GPL’s enforceability in court largely unanswered.

From 2007, there have been four cases that have centered on a small Linux utility called BusyBox. The BusyBox software was published under a GPL license but was found to be used in the firmware of Monsoon Multimedia Inc., Xterasys, High-Gain Antennas and most recently Verizon Communications. All four cases resulted in the hardware manufactures agreeing to pay the plaintiff’s legal costs and publishing their “derived” works.

References

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