1. Concept of GPL
2. Basic principles of Free Software
3. Use of source and non-source codes
3.1 Source code-programmer’s creativity
3.2 Conflicting interests between free software & proprietary software
3.3 Linking of codes
4. Upsurge in GPL
4.1 GPL- A Viral license
4.2 Microsoft’s concern with GPL ‘viral nature’
5. Concerns over freedom of software- Is GPL really fair?
5.1 Attempts to make programmers contribute
5.2 High distribution charge under GPL
5.3 The marketability factor in using GLP
5.4 Redefining GPL v2 into GPL v3
5.5 Interpreting GPL provisions
6. Munificent Findings
6.1 Conveying the source code for private modifications
6.2 Boon to the end-users
7. Necessity in redefining certain provisions
7.1 Is propagation with or without conditions?
7.2 Distinction between distribution and conveying
7.3 Improper use of the word ‘May’ under ‘Patent License’
The concept of GPL
The GPL (General Public License) created by Richard Stallman serves as the de facto constitution for the Free Software movement. It has become the legal and philosophical cornerstone of the Free Software community.
The goal of GNU was to give users freedom, not just to be popular. The very freedom given to the users, i.e. to copy, distribute and modify the ‘covered work’ do create space in the market to be popular, as end-users could install, have access to ‘source code’ and can even have power to modify the covered work. This gives great flexibility as they can resort their means to free software rather than buying proprietary software. It has to be noted that the domain of this popularity is in consequence of this freedom.
“The intentions behind the license and the premise underlying it are explained in the license’s preamble, which is included here in its entirety”
The Preamble sets in brief that the developer’s rights are reciprocal to licensee’s rights in terms of asserting copyright on the software and offering legal permission to copy, distribute and even modify the covered work. To the effect of this, the text of the Preamble has been materialized under the provisions of GPL in its entirety.
Basic Principles of Free Software
When we speak of free software, we are referring to freedom, not price. The term “free software” does not imply freedom in sense of price. The idea is that software should respect the user’s freedom.
Four essential freedoms were enumerated Richard M. Stallman:
“Freedom 0: The freedom to run the program as you wish.
Freedom 1: The freedom to study the source code, and change it to make the program do what you wish.
Freedom 2: The freedom to redistribute copies of the program when you wish.
Freedom 3: The freedom to distribute copies of your modified versions when you wish.”
If we analyze each of these freedoms, all of them except ‘Freedom 0’ require the access to the source code.
“Therefore, by having the source code to a program you are usually given the power to change, fix, customize, and learn about a program—this is a power that you do not have if you are not given the source code. Source code is one of the requirements that make a piece of software free.”
Use of source and non-source code
Source code-programmer’s creativity
“Indeed, the question of having access to source code is orthogonal to programmer’s subsistence.” It is a healthy practice to appreciate the creativity and dexterity of a programmer who is the key owner of the source code and its access is somewhat depended upon the programmer’s readiness. A programmer need not make the source code public, if he personally modify and use it for his own use at any place. If he desires, then he could transpire his reciprocal rights under GPL to the licensee or the end-users in order to maintain and safeguard his original work.
Conflicting interests between free software & proprietary software
“… It can be very tempting when a business tells you: Just let us put your package in our proprietary program and your program will be used by many thousands of people! … The temptation and pressure are harder to recognize when they come indirectly, through free software organizations that have adopted a policy of catering to proprietary software.”
The programmers who write improvements to any GPL-covered programs are often employed by companies or universities. When the programmer wants to publish or distribute his improvements or modifications of any GPL-covered programs to the people, the head of such companies may ask them not to share the code of the improved version with the masses and may treat the code to turn into a proprietary software product. Here, the GPL safeguards the object of the free software and makes clear that such treatment would be a copyright infringement.
Linking of codes
The most controversial restriction placed by the GPL has to do with the commingling of free and proprietary software.
For instance, a person writes a program and releases it under GPL. Another person, who intends to use this program for his proprietary software product, combines the first program with his, thereby making a new program or product. This combination automatically releases the new product under the GPL. Whereby, the independent sections which are released separately need not be licensed under the GPL.
Upsurge in the use of GPL
“In an information economy increasingly dependent on software and increasingly beholden to software standards, the GPL has become the proverbial ‘big stick’. Even companies that once laughed it off as software socialism have come around to recognize the benefits.”
With the advent of technology and the surge in the use of various software applications for smooth functioning of an organization, the need of having this appliance (GPL) was felt. It rather became a useful and important means for an individual, corporate firms and companies to rely on. They realized the social benefits and the urgent need to make things simpler and productive.
GPL has strong contenders in the market and has proven to be a good source to the end-users and that too in majority.
GPL- A Viral License
Interpreters have used different terminologies to give attributes to GPL. Some have termed it as a ‘viral license’, redefining it in terms of threat to the proprietary software holders. Depending on perspective, the new program has either been ‘freed by’ or ‘infected with’ the GPL.
“In simplest terms, the GPL locks software programs into a form of communal ownership….Once locked, programs remain irremovable. Derivative versions must carry the same copyright protection-even derivative versions that bear only a small snippet of the original source code. For this reason, some within the software industry have taken to calling the GPL a ‘viral’ license, because it spreads itself to every software program it touches.”
As Mundie himself noted in his May 3 address on the same campus, that the GPL’s ‘viral’ nature ‘poses a threat’ to any company that relies on the uniqueness of its software as a competitive asset. It also fundamentally undermines the independent commercial software sector because it effectively makes it impossible to distribute software on a basis where recipients pay for the product rather than just the cost of distribution.
Microsoft’s concerns with GPL ‘viral’ nature
The popular Windows operating system, Microsoft; has been stranded to lose the most in an industry-wide shift to the GPL license. “Almost every line of source code in the Windows colossus is protected by copyrights reaffirming the private nature of the underlying source code or, at the very least, reaffirming Microsoft’s legal ability to treat it as such.” If programs are incorporated into GPL, rival companies could use all the possible means to explore the Microsoft’s program, crippling its distinct identity and rendering it vulnerable. The growing rate of adoption towards GPL has raised concerns for Microsoft.
Concerns over freedom of software- Is GPL really fair?
Attempts to make programmers contribute-
“The GPL attempts to make programmers contribute to an evolving suite of programs, then to compete in the distribution and support of this suite.” The GPL is an attempt to keep efforts, regardless of demand, at the research and development stages. This maximizes the benefits to researchers and developers, at an unknown cost to those, who would benefit from wider distribution.
High distribution charge- not a hindrance to the purpose of GPL
“With so many ways to get copies, the price of distribution service has less effect on popularity.” Under the license, one can take a piece of software to modify the program and then distribute the copy at a charge which may be substantially high. But this would not create any hindrance to the very objective of GPL. The user’s freedom and the popularity in using the free software would remain the same. The fact that there are numerous ways of getting copies of the modified version, itself makes the free software marketable.
The marketability factor in using GLP
To elucidate the marketability stand while using GLP, one has to look into it from different perspectives as a user or a licensee. Different users pursue GPL in variety of use and development. One cannot set standards on the marketability effect by determining a single user. To put light upon, it is still a profitable way out for small companies under GPL, when they use the strategy of ‘buy-low, sell-high’ both in terms of money and quantity and give the end-user the products at a minimal cost or no cost. Sometimes, for large companies, GPL acts as a marketing weapon leading to monopolistic command but this is only so when the use of such GPL is less publicized.
“The GPL can present a real problem for those wishing to commercialize and profit from software. For example, the GPL adds to the difficulty a graduate student will have in directly forming a company to commercialize his research results, or the difficulty a student will have in joining a company on the assumption that a promising research project will be commercialized.” In the above text, the author has tried to portray the risk involved under GLP, while a user’s sole motive is to earn profit from the software, without analyzing and foreseeing the nature of the free software.
Redefining GPL v2 into GPL v3-
1. Provisions for defense against patent infringement law suits- expressly implemented
The Preamble of GPL v2 merely states that any patent must be licensed for everyone’s free use or not licensed at all and as a consequence of this, the last resort to avoid this, would be “not distribute the Program at all” .
Under GPL v3, the Preamble specifically assures that patents cannot be used to render the program non-free and that too in terms of a ‘patent license’ , which expressly connote, not to sue for patent infringement as agreed upon under the license. Moreover, it is pertinent to note that the ‘contributor’s essential patent claims’ does not include claims that would be infringed only as a consequence of further modification of the contributor’s version.
2. Protection to the licensor’s trademarks- incorporated
The word ‘trademark’ has not been used under GPL v2 and consequentially does not protect the licensor’s trademark to any respect.
The need to have protection has led the developers of GPL v3, to include it under ‘additional terms’ . It restricts the users for use of some trade names, trademarks or service marks when they convey modified work. This is to protect the originality of the programmer’s version and their use of trademarks.
3. Bestowing all rights of the licensor upon the user- technically incorrect
“The phrase, ‘gives the recipients all the rights that you have’ is unnecessarily frightening and is not true.” Under the Preamble of the GPL v2, the above phrase uses the word all which according to the author is ‘technically incorrect’ , as neither the free software guidelines nor the open source definition require a licensor to grant all his rights. The licensor retains the right to grant licenses to his own software under different terms than the GPL, and the right to refuse to issue new licenses.
In the later version of GPL v3, the editors have kept in mind these analyses and corrected by replacing it by “you must pass on to the recipients the same freedoms that you received”.
4. Author’s ‘additional obligations’ in choosing any version of GPL- in negative
Section 9 of the GPL v2 states about the revised versions of the license and in pursuance of it, did not specify any impositions in terms of additional obligations on the authors or the copyright holders. In such situations, the licensor has to peruse and interpret each and every part of the new version to adjudge its additional obligations.
But the GPL v3 makes it clear and certain with the insertion of an additional clause under Section 14, that no author or copyright holder would have additional obligations to perform in choosing any new version of GPL.
5. Ambiguity for the term ‘aggregated work’- simplified
Section 2 states:
“In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.”
It signifies that “only derivative works are covered by the GPL reciprocity provision, and that “mere aggregation” of separate works onto common media (or common computer memory?) does not require reciprocity, even if those mere aggregations are distributed in one unit (i.e., “as part of the whole”)”.
And in the furthermore text, uncertainty in terms of applicability has crept in.
Section 10 of the GPL v2 states:
“If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission.”
Herein, the GPL providing this clause, has made the term ‘mere aggregation’ more ambiguous and raised a call for improvising the conditions and thereby defining the term.
With the advent of GPL v3, the term ‘aggregate’ was defined and it simplified the text of Section 2 of GPL v2 and has well defined the rights and obligations of the parties in the same context.
Interpreting GPL v3 provisions
Clarity and simplicity are important goals for an open source license. On the purely practical side, the more dense the legalese, the more likely it is to have unintended side-effects.
GPL v3 tried its best to have a more simplified text and incorporated certain demands of the programmers and the users, but as it has been said- denser the aspects to be covered, more technical side-effects creeps in, thereby leading to fresh deliberations.
GPLv3 provides free software developers with more protection against patent aggression than any other license. “It’s one of the best reasons to adopt the license, but could not solve specific risks.” Brett Smith gives the same example of the Microsoft, as already cited above. He recommends abolishing software patents in order to stop their suing process and has rightly said that the new terms under GPL v3 is a part of it.
Following are the excerpts from the Free Software Foundation (FSF), Licensing Engineer, Brett Smith’s understanding and his application of mind into GPL v3:
‘Additional permissions’-its interpretation–Section 7
An example of using this feature in GPL would be that of a person adding limitation to one’s license to have it automatically expire when a new version of GPL comes in with an option that the person may re-license the previous one.
This can be done as it makes the license retroactively recovered from any misuse of unforeseen loopholes.
Conflict between domestic laws and the terms of the license– Section 12
A situation can be viewed where a country limits the distribution of the free software by the patent laws in any other country, thereby leaving the user or the licensee with an option to follow section 12 of the GPL v3.
A license cannot give the user or the licensee the permission to break the law. As long as the law doesn’t expressly prohibit from fulfilling the obligations under the GPL v3, it cannot be used as an argument under section 12 to cease the conveying of the program. Thereby, one could convey a copy of GPL software with or without source code, to anyone in a particular country and could do everything that is required to be done under the terms of the license.
It has to be kept in mind that it is the Government, who insists that the recipient could not convey the software to any other country, and therefore, the user or the licensee should not be held responsible for that, as it has been implemented by the Government itself.
‘Any attempt otherwise to propagate or modify it is void’, section 8: its interpretation-
The statement has to be read as a whole in context of the GPL. It only remind the user or the licensee, of what copyright law connotes, i.e. one is not allowed to change or share the work unless the copyright holder or the law itself gives them the permission to do so.
The rationale behind in bringing the concept of ‘notice on violator’- Section 8
The enforcers of the GPL are primarily concerned with bringing about compliance and the new provisions strikes a uniform balance between the licensor and the licensee. While the violation is on, a copyright holder can always put the violator on notice, and that gives a fair chance to the licensee to comply with the terms of the GPL and if the violator brings themselves into compliance, then it attributes the success of bringing in the concept.
Difference between propagating and conveying–
When one gives a copy of the modified work i.e. with the source code, to someone else; that is something which falls under the definition of convey. The main goal of these new terms is to draw a clear line between the acts of having a copy of the work, i.e. with the source code and those who don’t. So, the definition of propagation includes any activities that involve making a copy and conveying would be the subset of those acts that involve giving the copy to another party in terms of source code.
Apart from the above clarifications of certain provisions under GPL, there are few more to be exhibited for the convenience and understanding of the users.
1. Conveying the source code for private modifications:
A licensee can convey the source code of the covered work, i.e. the unmodified version of the copy to an organization for developing the desired modified version for the exclusive use of the licensee’s private work. These terms are enshrined under ‘Basic Permissions’ . It has to be kept in mind that the users cannot take this as a scapegoat and thereby consider such act as a step towards modification of a private copy because the very instant the licensee conveyed the covered work to another; he has bounded himself under the terms of ‘conveying verbatim copies’ .
2. Boon to the end-users:
2.1 Violator’s termination not to affect the one of end-users
Very interestingly, ‘termination’ provision gives ample scope to the end-user to be benefited even when they receive the copies of the program from a user, who is in violation to the terms of the GPL. Violations created by the user, doesn’t affect the rights of the end-users, rather it would terminate the formers right for not qualifying to receive new licenses through ‘Automatic Licensing’ .
2.2 Compulsory assistance to the end-users
“If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients.”
This provision strictly casts a duty upon the person who conveys a covered work under patent license; not to hesitate to assist the end-users providing them with all means to access the Corresponding Source of the work. It even asks the person to jeopardize his patent license benefit in order to make available appropriate source code to the end-users.
For this purpose the term ‘knowingly relying’ was inserted which exclusively states that even though the person knows and has reason to believe that conveying do infringe patents in a particular country, still he has to pursue the above quoted provision.
Necessity in redefining certain provisions
When we read through the above interpretations and clarifications given by Brett Smith, it seems that everything under GPLv3 has been rightly framed and formulated, but in reality, when we scrutinize it properly, we would come across certain conflicting provisions that would render the very intent of the GPL into nullity.
A. Is propagation with or without conditions? – needs clarity
The framers of this GPLv3 have erred by using words whose meaning does not substantiate the very objective of the statement. Section 2 of the License Agreement states-
“You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force.”
The above quote declares that to propagate a covered work, one can do it without conditions; whereas, the definition of ‘propagate’ as per GPL v3 states-
“To ‘propagate’ a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law.”
It simply certifies that it is necessary to take permission without which it would invalidate the existence of any covered work.
B. Distinction between distribution and conveying- required
It’s very unfortunate that under GPLv3, distinction between ‘distribution’ and ‘conveying’ has not been made. Instead of keeping the word ‘distribution’ away from propagation, it has been included in the definition of ‘propagation’.
“Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.”
This has not only muddled the following statement, but has and would create enormous ambiguity in the minds of the users or the licensee.
You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force.”
On one hand it says that propagation includes acts of distribution and on other hand, the above statement, declares that one can propagate covered works which we do not convey. Apart from simplifying the text, the framers need to understand the importance.
C. Improper use of the word ‘May’ under ‘Patent License’–
“You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software……who would receive the covered work from you, a discriminatory patent license…”.
By using the word ‘may’ in the above quote, the framers of the GPL has made it optional rather than mandatory for the users not to make arrangements with a third party, who may in turn grant discriminatory patent license violating the very purpose of the patent license under GPL. This would even keep the users guessing the consequence traits of it, i.e. whether it comes under the purview of violation norms and if yes, then how could it be enforced as it is optional according to the terms.
It is indeed a truth that with the inclusion of new traits of provisions, GPL v3 has leaped into the sea of interpretations from all concerned parties, but to be on the roll, the need was more vigorous to spell out the urgency of including these. It would take time to understand the overall impact of the license on the masses, and it has to be understood that this improved version has brought in new dept and complexity into open source licensing landscape.
By Sukumar Agarwal