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Comments on GPLv3

byLawrence Rosen[1]

Many long months ago I committed tohelp Eben Moglen and his colleagues at the Free Software Foundation and theSoftware Freedom Law Center write a better license than GPLv2. They have doneso and I applaud their efforts. GPLv3 is clearer about its purposes and effectsthan its predecessor. It is a legal document intended to be honored and obeyed,and so I am glad that we can now know more precisely what is permitted and whatis prohibited under its terms.

FSF’s software and certainly muchother software will soon be available for free under the terms of GPLv3. In somerespects, GPLv3 is like all other licenses imposed upon the world by the ownersof intellectual property. There is not a public domain commons of software thatruns commerce worldwide; it is software that is available by the goodwill ofits owners and licensed to recipients under terms stated. In the United Statesthere is a foundational legal principle of “freedom to contract [or license]under any terms you want,” and GPLv3 takes full advantage of that principle tobuild a collection of free software available to all under copyleft terms.

But that GPLv3 software isn’t theonly such collection of free software in the world. Many distributors,including most prominently the Apache, Eclipse, Mozilla and Perl foundations,have their own licenses and their own collections of software. I support thework of those other foundations also. The very first sentence of GPLv3summarizes it nicely: “The GNU General Public License is a free, copyleftlicense for software and other kinds of works.” Notice that the license doesn’tclaim to be “the” license, or “the best license for all purposes.” The GPLv3license is merely (but emphatically!) the next generation of a leading memberof a community of licenses for free and open source software.

GPLv3 is a statement of the rulesby which certain owners of software will distribute their works. From myperspective, it is a far better license for those purposes than many otherlicenses, although you probably will not be surprised to learn that I stillprefer my own Open Software License (OSL 3.0). No single license can satisfyeveryone. Richard Stallman and the FSF are entitled to the terms and conditionsthey believe in—to satisfy their own goals and purposes—for their own intellectualproperty. They are entitled to this, just as my other friends and colleagues inthe community are entitled to their open source licenses, indeed just as theowners of intellectual property are entitled to license it under proprietaryterms if they wish.

My major objective when I agreed(many long months ago) to help Eben Moglen and Richard Fontana on Committee Awas to ensure that GPLv3 played well in the entire ecosystem of free and opensource software. I define those terms more broadly than some in FSF, but I specificallyinclude software available for free under very generous terms from the ApacheSoftware Foundation. By way of disclosure, I am an attorney representing theApache Software Foundation. License compatibility between GPLv3 and the ApacheLicense was as important to my clients as it was to Richard Stallman.

Apache software can now be includedin GPLv3 projects. I’m particularly delighted that these two large communitiesare now able to work together compatibly in this way!

More broadly to my satisfaction,though, the GPLv3 license contains clearer language that will encourage itssoftware to be used in “aggregations” (what in United States law we call“compilations” or “collective works”) that include many independent works.Computer professionals will better understand these independent works asmodules of code, so I’ll use that word instead. As long as those modules areindependent works under copyright law, and as long as their own independentlicenses allow this to be done, verbatim copies of those modules can becombined to build larger systems of increasing sophistication and breadth.GPLv3, as I now read Draft 4 the license, allows that.

I have long counseled that GPLv2allowed that result also, but some argued otherwise. All the FUD that I andothers have spread over the years about linking—static, dynamic, otherwise—didn’thelp matters much. This argument can be replaced now by intelligentconversation about the actual words of GPLv3, which I understand to allowaggregations of verbatim copies of independently-written modules taken from theworldwide portfolio of free and open source software. I have always read theOpen Source Definition as mandating that open source licenses permit the copyingand distribution of verbatim copies including for collective works, and thisadded clarity in GPLv3 supports that interpretation. Perhaps now our software commonsis vastly larger for collecting independent open source modules into interoperatingsolutions for our customers.

Of course this all remains, despitethe increased clarity of GPLv3, a complex legal topic requiring carefulcounsel: From a copyright law perspective, the original licenses continue toapply to those verbatim copies, but not necessarily to the collective work as awhole. Collective works are independently copyrightable to the extent theyrequired creativity to collect. Also under copyright law, don’t confusecollective works with derivative works. The improved clarity of the definitionsin GPLv3 Section 0 may help explain these concepts to developers anddistributors of software, for which I thank the authors of the license. But youshould still consult with your own attorneys to ensure that you clearlyunderstand the legal distinctions I’m drawing here.

I predict that one of the biggestsuccess stories of GPLv3 will be the realization that the entire universe of freeand open source software can thus be combined into comprehensive open source solutionsfor customers worldwide.

My satisfaction with this aspect ofGPLv3 is partially offset by my concerns that the patent provisions in Section11 will impede the overall success of the GPLv3 license itself. I have foughtover the years about the wording of many a patent provision in many an opensource license, and I have discovered that some provisions make licensesunacceptable to big patent holders—and thus impede adoption of open sourcesoftware. Simply put, companies can conclude that free software is not worththe loss of their patent portfolios; if those companies are your potentialcustomers or business partners, they may not accept your software under your GPLv3license.

The Free Software Foundation isright to be concerned about software patents and right to want to defend ourcommunity from them. But I do not believe that the best way to do so is tothreaten to emasculate the patent portfolios of big companies so that theyrefuse to play with us at all.

These debates about patentprovisions in licenses usually take place in private because big companies thathave commercially-significant patent portfolios aren’t anxious to disclosetheir intellectual property strategies in public. (Recent press about the potentialuse of one company’s patent portfolio against open source illustrates thepublic relations risk of saying aggressive things about patents in public!) ForGPLv3, negotiations over its patent-related license provisions were undertakenprimarily in Committees B and C on which I didn’t serve, and so I don’t havemuch insight into the justifications for the compromises that apparently weremade. But I personally fear that the resulting compromises, and the words ofGPLv3 Section 11, will impede the development and distribution of free softwareby frightening patent owners away. That is a shame.

Bottom line: I believe GPLv3 is a goodlicense that many of us can live with, but it will never be the only licensethat serves the free and open source community. Owners of software have othergood licenses to choose from that will meet their own philosophical andbusiness goals. The Apache, Eclipse, Mozilla and Perl foundations and manyother projects will continue to build upon their own visions of free and opensource software using their own licenses. To the extent that GPLv3 embraces participationin that larger community, I’m quite satisfied with it, even though it won’t necessarilybe the license I’ll recommend.