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  1. 1. The General Public License Dr. Daniel M. German Department of Computer Science March 10, 2006 Version: 1.1.0 1
  2. 2. Warning • I am not a lawyer • These are my interpretations, and therefore are not legal advice 2
  3. 3. Overview • Introduction to Open Source and Free Software • Some background on copyright • The GPL • GPL and other licenses • GPL in court 3
  4. 4. Copyright • If you are the copyright owner of a work, it gives you the exclusive right 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
  5. 5. 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
  6. 6. 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
  7. 7. Chain of title • Collective and Derivative works have copyright by different owners, • “The copyright of a C 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
  8. 8. 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
  9. 9. 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
  10. 10. 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
  11. 11. License • A license is the legal mechanism used by the copyright owner (licensor) to grant permission to others (licensees) to use his/her intellectual property 11
  12. 12. 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
  13. 13. Are open source licenses “contracts” or “licenses”? • It is an open question, to be resolved by courts. 13
  14. 14. 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
  15. 15. 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 of Copyleft and makes the GPL a reciprocal license • The commons of free software will therefore only grow 15
  16. 16. 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
  17. 17. 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
  18. 18. 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” as either “a Program” or a “derivative work under copyright law” • But it also includes “a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language” – where does it become a collective work and not a derivative work? – 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
  19. 19. Linking • “These requirements [you may modify...] apply to the modified work as a whole” • “If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works.” • “But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it. 19
  20. 20. 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 apparently de facto enforceable even if not currently de jure” (Wikipedia) 20
  21. 21. The most beautiful paragraph of the GPL • “You are not required to accept this License, since you have not signed it. • However, nothing else grants you permission to modify or distribute the Program or its derivative works. • These actions are prohibited by law if you do not accept this License. • Therefore, by modifying or distributing the Program (or any work based on the Program), • you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.” 21
  22. 22. 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
  23. 23. Assignment of Copyrights • A project that owns copyrights has the ability to enforce them • The project can change the license 23
  24. 24. GPL reuse • All GPL-ed software is available for reuse in GPL-ed software • No new agreement is needed 24
  25. 25. 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
  26. 26. 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 does not cover user programs that use kernel services by normal system calls – this is merely considered normal use of the kernel, and does not fall under the heading of ’derived work.’ “ 26
  27. 27. 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
  28. 28. Legal tests... • In April 2004 the Netfilter/iptables project was granted a preliminary injunction against Sitecom Germany by Munich District Court. On July 2004, the German court confirmed this injunction as a final ruling against SiteCom. – “Defendant has infringed on the copyright of plaintiff by [...] without adhering to the license conditions of the GPL. Said actions would only be permissible if defendant had a license grant... This is independent of the questions whether the licensing conditions of the GPL have been effectively agreed upon between plaintiff and defendant or not. If the GPL were not agreed upon by the parties, defendant would notwithstanding lack the necessary rights to copy, distribute, and make the software ’netfilter/iptables’ publicly available. 28
  29. 29. 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
  30. 30. 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