Missing GPL detail may make it harder to enforce

The GPL may be difficult to enforce due to a lack of clarity over who owns the copyright to the software, according to a legal expert on Monday.

Lucie Guibault, an assistant professor of intellectual-property law at the Institute for Information Law in Amsterdam, said at the Holland Open Software Conference in Amsterdam, that the GPL should clarify who is the author of the software to ensure that open source software distributed under this licence receives legal protection.

The copyright of the actual text of the GPL is owned by the Free Software Foundation, but the author owns the copyright to the GPL-licensed software. Authors that wish to release their software under the GPL are advised to include a line in the source code stating "Copyright © [name of author]". Guibault told ZDNet UK that it may not be enough to have the copyright statement in the code.

If the author of GPL-licensed product discovers that a company has not adhered to the terms and conditions of the licence, the individual may find it difficult to argue his case in court as the defending party could argue that the copyright appears to belong to the Free Software Foundation, according to Guibault.

"The only name that appears on the licence is the Free Software Foundation — they appear to be the licensor," she said.

But Richard Stallman, the founder of the Free Software Foundation and the author of the GPL, claimed that even if this is a problem in the Netherlands, it will not affect free software elsewhere.

"If free software licenses are not valid in the Netherlands, copyright law still applies, so the result could be that no one is allowed to distribute or change free software there. However, the FSF will continue to respect everyone's right to do so," said Stallman.

"Whatever happens in the Netherlands, it won't be a disaster for free software in general. If the Netherlands has put something foolish in its laws, it will just have to fix their laws to do the right thing," Stallman added.

Harald Welte, the founder of GPL-violations.org, said in an interview in March that he is able to take legal action against companies that have violated the GPL as he is the author of the GPL-licensed software that companies have misappropriated.

"Most of the violations we're seeing are happening in the embedded market," said Welte. "They are running the Linux kernel and I have copyright on parts of the Linux kernel. In the cases that went to court, it was me as an individual copyright holder [against the company in question]."

Although Welte has been successful every time he has accused a company of violating the GPL, Guibault claimed that he is primarily relying on the goodwill of companies to settle copyright violations out of court. Welte has so far negotiated about 30 out-of-court settlements, three preliminary injunctions and one court order. None of the cases has ever gone to trial, but if this happened the case could go either way, according to Guibault.

"The accused party could say — the only party I dealt with [in the licence agreement] was the Free Software Foundation," said Guibault. "The author of the software could probably argue their way out of it, but it depends on the judge."

The solution to this issue would be relatively simply matter of adding the name of the software author to the licence agreement, said Guibault. She said at the conference that the Mozilla Public License is better in this respect as it makes it clear who owns the software.

"It is technically very easy to correct this," said Guibault. "Mozilla may be one of most clearest examples [of an open source licence] — you can put you own name there as a developer or contributor. Users of the software don't have to look everywhere to see who grants the licence."

One UK legal expert said that Guibault's argument was effectively an issue of evidence, rather than law.

"If I write a piece of software (not as an employee) I am the copyright owner whether or not my name appears on the software or its packaging," said Joel Barry, a partner at legal firm Olswang.

"I get the right to prevent certain forms of misuse prohibited by copyright law. Evidentially if I put my name and the date on the software/packaging that creates a legal presumption under UK law that I am the owner and that the date is the date of creation. If I do not then I need to prove this as a matter of fact."

"If I release my software under a licence (e.g. the GNU licence) then I permit certain uses under that licence. If someone misuses my software I have to prove (i) I am the owner of the copyright in the software, that (ii) the misuse is a breach of the law and (iii) that is it not permitted under the licence. Strictly speaking the defendant must prove point (iii) - i.e. that he has a defence under the licence," Barry explained.