Open Source - Closed License

David Beckett
Institute for Learning and Research Technology
University of Bristol

$Revision: 1.6 $ $Date: 2001/02/22 23:52:53 $

Abstract

There are many Free Software / Open Source licenses, semi-free and semi-open liceses and the number of them is increasing. How should a developer choose between them when releasing software?

Keywords: Open Source, Free Software, GPL, LGPL

1. Introduction

At the time of writing (February 2001) there are 18 licenses on the Open Source[1] Initiative[2] Approved Licenses list[3] and on the GNU Projects'[4] / Free Software Foundation's[5] free software[6] licenses page[7] there are 15 GPL-compatible free software licenses, 2 free documentation licenses and in total 42 software licenses plus 4 non-software licenses.

This is a problem!

2. "I am Not A Lawyer"

This is the traditional declaration when any discussion of software licenses starts, usually written by a developer because understanding licensing is hard, and fuzzy - there is plenty of room for interpretion. Many of the licenses have been written by lawyers for lawyers and thus are basically impenetrable by most developers OR by developers and hence may not capture all the subtles of how a well-formed and complete license has to be written in order to be legal. An alternative way of putting that is since The Law uses its own jargon, license subtleties can be lost on coders just used to programming languages. The comparison between law and programming code has been discussed in Lessig[8].

3. License Testing

As far as this author knows, no free software or open source licenses have been tested in any court but that may happen soon [9]. In many places, case law is a large part of the legal process and this part has not been thoroughly dealt with. In some ways this is good, since it has shown over the years that peer-pressure can fix problems with the use of licenses, whether accidental or deliberate.

There have been some cases of parts of the Linux kernel being used contra to the GPL license but they have mostly been amicably settled. There are still some ongoing issues at this time such as the RTLinux patent and the GPL as reported in[10]. Similar things have happened with use of the GPLed Doom and Quake sources and an attempt to make a clickthrough license for users to disclaim their rights under the GPL.

Advice on choosing a license is available from SourceForge where all the projects there must be under it[11], from Rosenberg in [12] (1998)

Bruce Perens (co-author of the Open Source Definition) said:

The GPL has actually had a good deal of evaluation. Richard Stallman has an MIT law professor who helps him, and there has been a law school thesis and some private analysis.There are definitely holes, but there's also evidence that it could be enforced. Ironicaly, the UCITA, a proposed U.S. "uniform state law" that poses us problems because places a ban on reverse-engineering, also has provisions that make the GPL and other free software licenses much eaiser to enforce.
Bruce Perens Answers Open Source License Questions, [13]

An analysis by Lee[14] in 1999 concludes that Open Source Licenses are legally enforcable in the US (including restrictions). Lee looks at the GPL, BSD, Apache and NPL/MPl licenses but the analysis was done before the US passed some significant new laws such as UCITA and changes to the US Uniform Commercial Code (UCC).

Welsh gives some thoughts on the GPL and (at that time) proposed changes to the US UCC Code in [15]

4. License Bugs

There are some ambiguities in the GPL such as the words "release", "publish" and "distribute" as discussed in [16]. The march of technology has allowed software components to be more lightly 'linked' than previously available or using component technologies, web services[17], so the concept of distribution is rather different from that commonly defined when the GPLv2 was written.

Richard Stallman (RMS) has been reported [18][19][20] to be working (rather slowly) on a new version to handle these issues to develop a more "business friendly" GPL. There have been concerns raised[[21] within the embedded Linux community that the current GPL may consider proprietary OSes in violation of the GPL if they link with GPL applications directly, rather than via some system interface.

KDE and QT

Linux and Mosix

5. Religion

In a collaborative project, there can be conflicting morals and beliefs about licenses [22] which in broad terms are the GPL (virus) versus every one else, restated as, free software (GNU definition) versus open source (Eric Raymond and friends). Although versus is not really a good word to use here, more compare and contrast.

6. Politics

The GPL is not a communist license, plenty of people are making money from GPLed software such as GNU/Linux and RMS is happy for that to happen as long as the users' rights are preserved.

Linus Torvalds clarified[23] the Linux kernel use of the GPL in version 2.4.0-test8 to be GPLv2 only, and no other version since the usual wording allows use of "any future version" and apparently he was worried that future versions might be significantly different, or at least he wanted to see the new versions before allowing that.

7. Experiment, Theorise

Or you could take the experimental approach, construct a theory of the best license and use that one as described in [24] (where the GPL won the games)

8. Future

Somebody, please help!

References

[1] Open Source Definition (V1.7) at http://www.opensource.org/osd.html

[2] Open Source Initiative at http://www.opensource.org/

[3] Open Source Initiative Approved Licenses at http://www.opensource.org/licenses/

[4] GNU Project, http://www.gnu.org/

[5] Free Software Foundation, http://www.gnu.org/fsf/fsf.html

[6] What is Free Software?, Free Software Foundation at http://www.gnu.org/philosophy/free-sw.html

[7] Various Licenses and Comments about Them, GNU Project, http://www.gnu.org/philosophy/license-list.html

[8] Code and Other Laws of Cyberspace, Lawrence Lessig, 2000, ISBN 046503912X, 1999.

[9] Judgment Day for the GPL? Determining the Legality of the GPL, Dennis E. Powell, LinuxPlanet, 26 June 2000, http://www.linuxplanet.com/linuxplanet/reports/2000/1/

[10] RTLinux Patent, Linux Weekly News in various issues: 15 February 2001 - http://lwn.net/2001/0215/; 10 February 2000 - http://lwn.net/2000/0210/ and 19 September 2000 - http://lwn.net/2000/0914

[11] Help Chosing an Open Source License, SourceForge, http://sourceforge.net/docman/display_doc.php?docid

[12] Evaluation of Public Software Licenses, Donald K. Rosenberg, Stromian Technologies at Atlanta Linux Showcase, October 1998, http://www.stromian.com/Public_Licenses.html

[13] Bruce Perens Answers Open Source License Questions, Intervew on Slashdot, 30 July 1999, http://slashdot.org/interviews/99/07/30/2220240.shtml

[14] Open Source Software Licensing (draft), Steve H. Lee, April 1999, 115 pages, GPL/Open Literature licensed, http://eon.law.harvard.edu/openlaw/gpl.pdf

[15] The GNU General Public License and UCC Article 2B, Matt Welsh, 7 December 1998, http://www.cs.berkeley.edu/~mdw/linux/gpl-ucc2b.html

[16] Loophole in the GPL?, Duncan Cragg, osOpinion, 9 February 2001, http://osopinion.com/perl/story/7367.html

[17] GPL and Web Applications, thread on Slashdot, 13 July 2000, http://slashdot.org/askslashdot/00/07/13/1831245.shtml

[18] Sneak preview of GPL v. 3: More business friendly, Eric Ries, 2 November 2000, NewsForge, http://www.newsforge.com/article.pl?sid=00/11/01/1636202

[19] Sneak preview of GPL v. 3: More business friendly, Eric Ries, 15 December 2000, NewsForge, http://www.newsforge.com/article.pl?sid=00/12/14/1910252&mode=thread

[20] Thus Spake Stallman - Interview with Richard Stallman on Slashdot, 1 May 2000, http://slashdot.org/interviews/00/05/01/1052216.shtml

[21] Revision 3.0 of open-source GPL stirs concern in embedded space, Mike Downing, Integrated Communications Design, 19 February 2001, http://icd.pennnet.com/Articles/Article_Display.cfm?Section=Articles&SubSection=Display&ARTICLE_ID=92350

[22] To GPL or Not to GPL, Nick Roberts, osOpinion, September 2000, http://www.osopinion.com/Opinions/NickRoberts/NickRoberts1.html

[23] Linux-2.4.0-test8, Linus Torvalds on linux-kernel mailing list, 8 September 2000, http://www.uwsg.iu.edu/hypermail/linux/kernel/0009.1/0096.html

[24] Open Source as ESS, David Rysdam, September 2000, http://www2.fastdial.net/~drysdam/essays/GPL-as-strategy.html

Open Source - Closed License

David Beckett
Institute for Learning and Research Technology
University of Bristol

$Revision: 1.6 $ $Date: 2001/02/22 23:52:53 $

Abstract

Keywords: Open Source, Free Software, GPL, LGPL

1. Introduction

2. "I am Not A Lawyer"

3. License Testing

4. License Bugs

5. Religion

6. Politics

7. Experiment, Theorise

8. Future

References

Further Reading

Resource Hubs

Articles

Open Source - Closed License

David Beckett Institute for Learning and Research Technology University of Bristol

$Revision: 1.6 $ $Date: 2001/02/22 23:52:53 $

Abstract

Keywords: Open Source, Free Software, GPL, LGPL

1. Introduction

2. "I am Not A Lawyer"

3. License Testing

4. License Bugs

5. Religion

6. Politics

7. Experiment, Theorise

8. Future

References

Further Reading

Resource Hubs

Articles

David Beckett
Institute for Learning and Research Technology
University of Bristol