disappointing Financial Times article
has been more than adequately refuted
by commenters on LWN and many other places. As FUD attacks go, this one
was one of the more laughable in recent times. However, there is one point
this article raises which is still occasionally trotted out by those trying
to make people afraid of the GPL. It has been a while since we have looked
at this claim, so it is worth a quick review pass.
Here's what "distinguished professor" Richard Epstein has to say:
First, as a straight interpretive matter, [GPL section 2b] only states what the
obligation of each programmer is with his own private
improvements. It does not in so many words specify the appropriate
remedy when some portion of the open source code is incorporated
into an otherwise proprietary program. The apparent intention of
the provision is to "infect" that new program so that all of its
content becomes open source software subject to the GPL. In
principle, the entire Microsoft operating system could count as
"the work" that becomes open source because a few lines of open
source code have been incorporated into it by inadvertence.
Mr. Epstein does not, of course, tell his readers just where he obtains his
information about the "apparent intention" of the GPL. Certainly it does
not come from the vast amounts of text written by the creators and
supporters of the GPL, who have never made this claim. Only the SCO group
believes it has a license with this sort of power, and they seem to be
having a hard time convincing others of this fact.
The relevant section of the
GPL is this:
b) You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any
part thereof, to be licensed as a whole at no charge to all third
parties under the terms of this License.
What that means is that, if, say, Windows were to be combined with
GPL-licensed code in such a way so to create a derived product, the only
way of distributing Windows which would comply with the license would be to
put the whole thing under the terms of the GPL. Note that the GPL does not
address the use of a combined program at all - only its distribution.
Distribution under non-compliant terms would indeed be a violation of the
What happens then? Unlicensed distribution of copyrighted material is a
straightforward legal matter. The person or company doing this sort of
distribution can be sued for copyright infringement. Fines can be imposed,
and distribution of the offending product can be halted with an
injunction. Failure to comply with the license can also cause the
infringer to lose the right to use the software in the first place.
These can be heavy penalties. In particular, a company which has worked
hard to get a product to market can be devastated by a court-ordered halt
to that product's distribution. Such are the risks of working with other
peoples' copyrighted code; there is nothing unique to the GPL here.
Mr. Epstein is right to say that no court would force proprietary code into
the open as a result of a GPL violation. But it is only people like
Mr. Epstein who raise that issue in the first place. It remains true that
straw men are the easiest to knock down. What the community needs to do is
to help ensure that such straw men are recognized for what they are.
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