|| ||"Henry, Steven J." <Steven.Henry-AT-WolfGreenfield.com>|
|| ||"'Viral' Open-Source License Can Destroy Software's Value"|
|| ||Sun, 23 Nov 2003 16:24:39 -0500|
Thanks for your note to Audra Callanan, in response to our press
Firstly, the press release went out only because the topic is timely and
our agent thought there would be interest in it.
Secondly, our position is based purely in the language of the GPL and in
copyright and contract law.
Those who portray the GPL as an entirely innocent and voluntary
instrument take a simplistic view of the GPL itself as well as of both
copyright law and contract law. They often project onto others the
benevolent behaviors and actions they attribute to themselves. The
problem is that others are not always so benevolent and if the GPL is an
enforceable contract, then it may not only be enforceable by the
licensor, but also by third-party beneficiaries (under at least some
conditions). One does not know what the licensor or a third party
beneficiary would actually do - only what they have the right to do.
Once a publication occurs under the GPL, there is no way to retract it.
Even if the licensor stops using the GPL, licensees are free to continue
re-distributing under the GPL. That makes for the potentially devilish
situation. Removing the GPL code the company had adopted and ceasing
its re-publication does not put the horse back in the barn; that is, it
does not retract the prior distribution under the GPL.
Consider the following two provisions of the GPL, which your note fails
First, Article 2.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."
Second, Article 6:
"Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions."
So, if a company downloads a GPL product, and incorporates it into the
company's product in such a way that the company's product is considered
a "derived" work or a work "containing" the downloaded code, not only is
the company obligated to use the GPL to distribute its product, but also
it is obligated not to charge. And its licensees automatically receive a
license under GPL terms for the original code. If the company uses a
different license (a) it could be liable for copyright infringement, (b)
it could be liable for breach of contract, and (c) it could be subject
to a court order for "specific enforcement" of the GPL obligation to
distribute the derivative work under the GPL. The licensor of the
downloaded code could enforce the GPL, as might a licensee of the
company (as a third-party beneficiary).
If the specific enforcement only applies to future copies of the
software, then it is true that the company can avoid the court order by
ceasing all distribution or by modifying the product to remove the
original GPL-ed code. But, to reinforce, the removal option does not
return the horse to the barn. Moreover, the risk exists that the court
would order that the company's licensees actually received a license on
If even one copy of the composite product is distributed under the GPL
because the user of GPL code concludes it is so obligated, then the
receiver of that one copy can freely make and distributed an unlimited
number of copies. So for all practical purposes, the developer of the
composite code loses all ability to charge for the composite product.
Even if it removes the original GPL code (the remedy suggested by most
GPL-adherents) and releases a non-GPL replacement, the GPL version can
go on and on, cutting into the market for the proprietary replacement.
In other words, once the horse is out of the barn, it can't be put back
in. So the remedy of code removal is effective to protect the developer
only when it realizes GPL code has been included before the release
What happens, then, if GPL code has been included in a product that
Article 2.b is invoked, and the product is released under a non-GPL
license before the developer realizes the situation? An interesting
question. Maybe the developer's customer (licensee) gets no GPL rights
and the developer has not lost its rights. Maybe, however, the
developer can be forced (legally) to live up to its GPL obligations,
meaning it has to extend GPL terms to that customer and anyone else who
wants the product.
There has been no definitive interpretation of the GPL by a court.
Consequently, the only prudent position to take is that the GPL must be
avoided if one does not want one's own product to be required to be
distributed for free. I stand behind that analysis. That there is no
case reporting an aggressive use of the GPL is of no import to the
analysis. It just says nobody has yet aggressively enforced its terms.
So the argument that nobody has used the GPL as a club is, in my
opinion, unavailing. If the GPL is not intended to force downstream free
adoption and charge-free redistribution, it would not need or include
My position is hardly "at odds" with the text of the license; it is
drawn from that text. Your single quotation is out of context.
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