Shedding light on the new open source license
Version 3 of the GPL is clearer than its predecessor in many ways. But does that mean you should use it? Lawyer Mark O'Conor discusses the pros and cons.
Last summer saw the first update of the General Public License (GPL), the standard open source software licence for 16 years. The original version had stood since it was first written in 1983, and had only been updated once previously, in 1991.
The 2007 revision to the GPL - as version 3 is known - was, arguably, long overdue. Over a decade of emerging, unforeseen threats presented by legal and technological developments have tested the efficacy of the GPL version 2 to the limit.
But just how different or better is version 3 - and ought we welcome the change?
GPL version 3
1 Technological access and advancement vs copyright integrity
2 Anachronism of GPL version 2 and the advent of a new licensing structure
3 Incompatibility: organisations now need to choose which version to 'go open' with
The source of the problem
Before looking at the merits of the new licence, it's worth reminding ourselves of the original principles of open source and the legal challenges they pose. The central tenets of open source outlined in the original GPL were built on four 'freedoms', identified by the Free Software Foundation - that users should be able to use, amend, share and pool changes to software for any individual purpose.
'Copyleft' has now become the recognised shorthand for these 'freedoms'. It requires us to appreciate the four freedoms above, whilst realising that those freedoms are backed up by rights granted by licence.
In essence, copyleft is a complete reversal of traditional copyright values where the law sees software as a literary work under the Copyright, Designs and Patents Act 1988.
It is also an anti-Microsoft (and other traditional software companies) model in that traditional licensing models support proprietary rights, licensed many times over by non-exclusive licensing agreements.
However, open source advocates will argue that giving free and unrestricted access to a program's source code will lead to improvements in the software, with the community ironing out creases, identifying flaws and applying upgrades in the code before it is adopted by a broader user base.
The need for version 3
Open source licensing is a complex legal concept so it was perhaps inevitable that by 2007 numerous limitations in GPL version 2 had become evident. These ranged from basic enforceability, in terms of the extent to which the licences are enforceable contractually, to the scope of the licence itself.
The internet, products incorporating digital rights management protections and software patents have changed the landscape of open source, too. There were very few software-specific patents in existence when GPL version 2 was drafted.
Other high-profile issues also tested the boundaries of version 2 before it was amended. For instance, legislation prohibiting free software such as the Digital Millennium Copyright Act and the European Copyright Directive make it a crime to write or share software that can break digital rights management encryption.
In addition, discriminatory patent deals of note have challenged the enforceability of version 2. The 2006 agreement between Microsoft and Novell was struck ostensibly to make Linux and Windows work better together. But it also created an uneasy truce; indeed, commentators argue that Microsoft has recently started telling people it will not sue open source software users for patent infringement provided the users purchased software from a vendor that is paying Microsoft for the privilege of using its patented technology.
The result is a new version of the licence that is much clearer in its scope and application. It also takes greater account of software patents. To prevent software owners using patents to impose additional terms on users, the licence includes the use of any patents owned by copyright holders that fall within the scope of the software. The termination provisions are also made clearer and are now automatic instead of requiring a notice from a copyright holder.
The legal position is also certainly clearer. We are now beginning to see the emergence of case law which helps to determine whether the GPL is a 'licence' or a 'contract'. The recent case of Jacobson v Katzer, for example, held that breach of the GPL is in fact copyright infringement, which allows the innocent party to seek additional relief.
Regardless of opinion on the merits of the new GPL, the fact is it's here - and likely here to stay.
Conversion from GPL version 2 to version 3 is increasing as existing open source applications seek to benefit from the improved certainty afforded by the new terms. That's not to say that version 2 is unenforceable, it will continue to exist and be used by those who prefer it, but version 2 and version 3 are incompatible. Thus a decision needs to be made by those organisations 'going open' as to how they would prefer their software to be made available - and soon.
Mark O'Conor is a partner in the technology, media and commercial group at law firm DLA Piper.