A lawyer visits the 'GNU Republic'

GPL V3 is here!

Well, at least the first draft... If thus far you have not been following the plans of the Free Software Foundation (FSF) to release and revise a new version of the GNU General Public License over the course of 2006, you can read ZDNet's coverage of the event here and the FSF's own materials here.

However, if you are interested in Linux, free software, the software business, or if you are just a fan of the uber-geeky or surreal, you should have been in MIT's famed 10-250 Auditorium on Monday and Tuesday of this week. You have to give the FSF a nod for playing a very sophisticated legal hand with this draft. The FSF's roll-out of its first proposed draft drew a Who's Who mix of net denizens and big IT company reps from their respective cyber caves. The ensuing interpersonal interactions were perhaps less theatrical than the press would have hoped, but great "people watching" nonetheless.

I attended more as a "corporate shill" than as a "member of the GNU Republic." As a lawyer with a dozen years in the software business, even with a focus on open source my bills are still paid primarily by companies licensing proprietary software. Still, I was welcomed to the kick-off discussions with open arms by community advocates and my views were actively solicited and considered. I am fortunate to be a member of the discussion committee process going forward and, at least for my committee, openness and a Wikipedia-style Neutral Point of View are the guiding principles for refining comments into issues.  

At the moment, I'm not going to talk about the legal verbiage of the current draft of V3 here. This is because the FSF has set up an active online system to solicit comments at http://www.gplv3.fsf.org/. Before I say anything about the draft in public, I'm going to go submit my comments there. And, before you read anything else about the draft, you should go there, read the actual text for yourself and see what people are saying.

I do, however, want to talk about the event environment and to summarize a bit of the "vibe" that you might not have gotten if you were not in attendance.

First, the Free Software Foundation REALLY wants your participation. Ultimately, Richard Stallman will be a "benevolent dictator" (or not so benevolent, depending on your perspective) and will have the final say on what goes in the draft. However, the FSF is strongly inviting everyone to participate in the process. Stallman is offering you the chance to be heard in a very public way, and you should take it.

Second, GPL V3 will matter, whether you think it will or not. You see, Eben Moglen (General Counsel of the FSF) was kind enough to remind us all that section 9 of GPL V2 provides that:

"9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.

Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation. "

This means that Linus Torvalds doesn't have to decide to release Linux under V3. Anyone who has a copy of source code under V2 can release that code under V3! Think about this for a second. You know the headache you have now tracking where all your code comes from? You really think you can keep V3 code separate from its V2 sister product? Unless you run a strict "No GNU" shop, you will end up using V3 code.

Third, Eben Moglen is really smart. I was always underwhelmed by the drafting of V2 (Eben didn't draft it). Yes, it is a powerful legal document and nothing will or should take that away. But, if you make your living reading contracts, you know it is just not all that well written. There are a number of ambiguities that are unintentional and create problems for the FSF (whether they admit them or not).

V3 is different. Yes, there are still a number ambiguities. But listen to Eben speak for a few minutes, and you will realize many are very intentional. Frankly, as a lawyer, I am stunned by the sheer audacity of trying to draft a single agreement that will have substantively the same legal result in every jurisdiction in the world. Disagree with their politics or not, you have to give the FSF a nod for playing a very sophisticated legal hand with this draft.

Finally, Free Software advocates are rightfully proud that their license and this movement has grown to this. They have earned the right to force a public debate over DRM, Software Patents, and code globalization, and we will have one. I tend to agree with a comment I overheard one FSF staffer make that "use of open source software for development has become an economic necessity" for new device companies. These are important topics and worth discussion. Whatever your (or your company's) position, now is the time to consider and to advocate.

David G. Rickerby, Esq. is the head of IT Licensing at Choate, Hall & Stewart LLP in Boston, Massachusetts. The opinions stated here are his own and do not represent the views of his firm or his clients. They certainly don't represent legal advice. If you need a lawyer, go get one!