Another IP lawyer milking the GPL FUD

A recent article from Edmund J. Walsh in Law.com has generated a few negative echoes in the FOSS community. The article is not very interesting as such since it provides with many allegations, almost no facts and only 3 links: a law firm, the author's bio and a link to the Software Freedom Law Center.

What's more interesting is the way Mr. Walsh spread his FUD arguments. Basically the entire document is built so that the reader forgets about 2 things:

• Fair comparison: Every time an open source license obligation is analyzed, it should be compared to the similar or the more stringent obligations of a standard commercial license for an equivalent product/code.

• Risk analysis: The number of lawsuits involving proprietary licenses is much larger than the number of lawsuits involving open source licenses,  even when the number of lines of code is factored in. So from a pure statistical standpoint, an open source code is always much safer, regardless of any legal interpretation.

I Should stop here, but I cannot resist, giving you a few excerpts.

Two recent events should give for-profit companies new reasons to re-evaluate the ways in which they use open source software as well as the extent to which they use it.

In other words, that's only because of law suits that one should re-evaluate.  Does it mean that the law should matter only when there is a risk to be caught red-handed?

Although the lawsuits are not about changed provisions in the GPL, both events are muscle-flexing by the free software community and, taken together, may foreshadow new risks in the irreconcilable conflict between open source software and its widespread use by for-profit companies.

Here I'm a bit puzzled by the argument:

1) What is a for-profit company? Aren't all commercial companies for-profit? Or is that just a name game to let us think that open-source companies are not for-profit companies?

2) If there is an irreconcilable conflict between open source and for-profit companies, how can we explain such avowed widespread use? Are for-profit companies plain stupid or is irreconcilable  to be understood as a simple wish dream from people who are in the business of making a living out of irreconcilable differences like... divorce lawyers?

Open source software had its origins in the free software movement. By now, most open source users understand that free refers to freedom, not to price. The new lesson is that the freedom belongs to the software, not to users.

Yeah, you've got to admit, only a lawyer could have missed that free software did not mean free users. BTW, the Free Software Foundation  has been around since 1985, some 23 years ago. .. and you consider this a new lesson?  Slow learner, huh?

Any activity that leverages software for business advantage is likely to restrict the software's freedom, and the growing use of open source software by for-profit companies has been a growing irritant for free software advocates.

The GNU GPL has been engineered so that no legal activity (commercial or not) can restrict the software freedom. So once you have understood this, the sentence can be more appropriately rewritten:

Any legitimate activity (no matter the purpose) does not restrict the software's freedom, and the growing use of open source software by for-profit companies has been a growing irritant source of pride for free software advocates and open-source-friendly companies like Red Hat, Ubuntu, SUN or IBM.

See,  no need to invent a GPL rash or a mad GNU disease. BTW .... did you get tested?

For example, implementing proprietary features on top of open source utilities to provide a low-cost computer-controlled product ("smart box"), and distributing a program on hardware that blocks execution of modified software, have proven to be contentious issues

Here is the trick: what's not legit often tends to be contentious, any lawyer will tell you.

Cisco who respects the license and hence abides by the law, publishes all of the sources from their linksys routers. And doing so never prevented Linksys to generate revenues in the amount of of several USD 100M every year.

Running commercial Web services using open source software without releasing source code has also caused consternation in some quarters.

A quarter without even a link to point to, that's not a quarter, that's a dark corner in another galaxy.

This issue by the way has been answered in 2002 with the first publication of the Affero license. More recently the GNU AGPLv3 has replaced it. Ooops yes, I forgot: slow learner.

Under the new version of the GPL, those limits even extend to hardware that companies may provide to run open source software by prohibiting use of open source software on hardware that blocks execution of modified software.

Well, the thing is: if you want to modify software you've got to be able to run it somewhere. Duh. Hence the GPLv3 which precises exactly under which circumstances you should be able do that.

Companies are also required by the new GPL to license to others all patents they own or control related to open source software, even those not related to code they add to open source software, and even if they did not own the patents at the time they distributed the open source software.

Not exactly (but hey, I'm not a lawyer). The patent is licensed only to this extent that it cannot interfere with the freedom of the software (i.e. the other clauses of the GPL). This is a much better protection against patent trolls than many proprietary software.

This provision applies whether that distribution is part of a conscious marketing strategy or a casual sharing with others outside the organization.

Casual sharing? Yes many companies do that: they organize Software BBQ sharing party where everybody brings along a few USB keys and something to grill. The most daring ones organize white-elephant parties with the software of their company.

Last time I got unlucky: a pack of 1,375 USB keys with Vista.

 

Didn't anybody tell you that casual sharing might bring you ... viruses? In retrospect, don't you feel already Fear, Uncertainty and Doubt creeping in?

 

Comments

[Jeff Read]

Freedom damn well belongs to the users. It's distributors who are limited by the GPL: they lose the freedom to decide whether or not to grant the freedoms they were granted when they received the software. Such freedoms must be granted with GPL-licensed software (but of course not all free software).

[Hassan Ibraheem]

So basically his message is : "Free Software is bad, it doesn't allow you to control and restrict the users",
didn't he learn that this is the point :D .

[Wes Felter]

I did think that "free software" meant "software that provides freedom for people" for many years. After all, look at the free software definition:

The freedom (for users) to run the program, for any purpose
The freedom (for people) to study how the program works...
etc.

Eventually I realized that the GPL is about freedom for software and the BSD license is about freedom for programmers. So I'm not surprised that it took a lawyer some time to realize this.

[mtg]

@Wes

Thanks for taking the time to comment.

One of the issues is that Freedom is a moot point if you don't have a space onto which to exert it.

Somewhat the GNU GPL and it's killer app Linux managed to offer such space, allowing FOSS to grow.

I'm a big fan of BSD but I really think that BSD would have been able to generate the FOSS movement the way the association between Linux and the GNU GPL did it.

The GPL is the reason why an eco-system of companies are now contributing to GPLed and other FOSS codes.

I don't think BSD could have done it, regardless of its technical merits.

mtg