Re: Re: Open Source Licensing

Lawrence E. Rosen wrote:

>Perhaps what you're describing is the effect of the so-called
>reciprocity provision in some licenses like the GPL and the
>Open Software License (OSL, www.rosenlaw.com/osl2.0.html
<http://www.rosenlaw.com/osl2.0.html>).
>If your client's work is combined with another open source
>work so as to create a derivative work, and if the other
>open source work is licensed under a reciprocal license, your
>client's work will also have to be so licensed.

The GPL uses contract language that is not co-extensive with US law on the meaning of "derivative work" in software source code copyrights (IMO).

The GPL defines "work based on the Program" to "mean[] either the Program or any derivative work under copyright law: **that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language**." (emphasis added)

US law defines a derivative work as: "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

I do not believe that every non GPL'd program running in memory that "contains [the GPL'd] Program or a portion of it" is "based upon" the GPL'd code.

Had the GPL simply stopped at "...derivative work under copyright law" it would be ok. But instead, it adds that next phrase which introduces ambiguity, because it is not the language used in the US Copyright law. So, what is the intention of the parties to a GPL license? To refer extrinsically to copyright law to define the scope of a derivative work? To use the copyright law as an aid but not a mandatory determinant of the scope of a derivative work? To redefine what is meant by derivative work?

It would even had been better, but not optimal, if the GPL simply did not make a reference to copyright law, and used instead its own lexicon to define "work based on the Program." (also to note, it would be preferable not to use "program" and instead use "source code" or "compiled code.")

The portion in asterisks above (or bolded) IMO is not consonant with US derivative work principles. Specifically: if a person statically links two programs (i.e. compiles two programs together from separate sources) is that a derivative work of both independent programs?

Prof Moglen (the FSF enforcer) thinks it is: see ( http://www.gnu.org/press/mysql-affidavit.html ) where he takes the position that a derivative work is any statically linked program. At the hearing the court was not convinced this was right (nor was the court convinced it was wrong), and the case settled before a ruling was issued. I have heard that the FSF also takes the position that dynamically linked programs can be derivatives as well (I guess the position is that when loaded into memory together, the new running program in memory is a derivative of the separate compiled codes).

This is just one of many areas where the GPL, in the opinion of this lawyer, is woefully deficient as a license agreement. Indeed, there is so much ambiguity in some parts of it that I counsel nearly all of our clients not to use GPL'd software in proprietary coding unless they can negotiate a real license with the holder, get real reps and warranties, and get an indemnity at least to the extent of that parties contributions (which raises another problem: because of the nature of the GPL - if code you want to license under some non-GPL based license itself used GPL'd code of another developer, can that licensor modify the terms??)

Though it may sound coarse to refer to the GPL as "viral" that is exactly what it is - once some code is licensed under the GPL, it can affect each successive layer in unpredictable ways, and often cannot be undone due to the number of contributors or "authors" of the copyrights embodied in the code. The last thing most of our clients want is uncertainty in their IP rights, which can affect everything from the ability to give a rep or indemnity, to the value of the company when it is sold.

I think you would find a ton of articles on the net if you googled a search of GPL open source license issues or something similar. But it all boils down to uncertainty, to me (whether I am right or wrong).

best regards, mike oliver
Bowie & Jensen, LLC Received on Wed Aug 20 2003 - 20:55:10 GMT