Legal Issues

by Tom Lee

Filed Under:
gpl, licenses, open source


Does The GPL Still Matter?

from the expired-license? dept

The GNU General Public License heads to court again today, as Skype attempts to defend its distribution of Linux-enabled SMC hardware handsets that appear to be in violation of the operating system's open source license. It's easy to guess why Skype is fighting the suit, which was brought by GPL activists: the company relies on a proprietary protocol, and releasing the code could give competitors an advantage. You can't blame them for trying. Although in the past few years the GPL has made important strides in establishing its legal enforceability, it's still conceivable that a court could find something wrong with its unusual, viral nature.

Few think that this will be the court case that makes or breaks the GPL. Skype's already lost early rounds of this fight, and the claims it's now making seem so broad as to imply desperation. Besides, the case is being tried in the German legal system, which to date has proven friendly to the GPL.

But even if the license was invalidated, either in this case or another, there's an argument to be made that the GPL has already served its purpose. Its impact on the world of open source software is undeniable: by ensuring that an open project would remain open, the license encouraged programmers to contribute to projects without fear of their work being coopted by commercial interests. And by making it difficult, if not impossible, for a project derived from a GPLed project to go closed-source, it encouraged many programmers to license their efforts under open terms when they otherwise might not have.

But today, with open source firmly established as a cultural and commercial force, the GPL's relevance may be waning. The transition to the third version of the license left many in the open source community upset and intent on sticking with its earlier incarnations. And an increasing number of very high profile projects, like Mozilla, Apache and Open Office, have seen fit to create their own licenses or employ the less restrictive LGPL. The raw numbers bear out the idea of a slight decline in the GPL's prominence, too: Wikipedia lists the percentage of GPLed projects on and, two large open source software repositories, as 68% and 65%, respectively, as of November '03 and January '06. Today, the most recently available numbers show that Sourceforge's share has fallen to 65%, and Freshmeat's share has fallen to to 62%.

This is, of course, a small decline, and the GPL remains the world's most popular open source license by a considerable margin. But it does seem as though there may be a slowly decreasing appetite for the license's militant approach to copyleft ideals. I certainly don't wish Skype well in its probably-quixotic tilt at the GPL, but if they were to somehow get lucky at least they'd be doing so at a point in the open source movement's history when the GPL is decreasingly essential.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    mobiGeek, May 8th, 2008 @ 7:16pm

    Still as relevant as always

    But people already do speak freely. So isn't the whole idea of protecting that right now mostly irrelevant?

    Of course not. The same goes for any established set of rights. Just because they appear to have "already served their purpose" or are slipping in (current) popularity, doesn't make them any less relevant today. In fact I'd argue that the slippage in popularity shows that they will be needed in the future.

    Working for a closed-source company that considers releasing at least some of its products as open source, I strongly encourage the community to retain the GPL. The only way we can convince our investors that their investment into our company's IP (one of the many things their investment covers) is protected is if we release it under the GPL. Yes, we will maintain copyright controls and can license it to others in a different manner; but if we are to donate to the open source community (in the hopes of gaining the returns that the OSS community offers), then we don't want another entity having the ability to take our product and beat us in a closed-source game.

    From where I stand, I wish the GPL a strong, long life.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, May 8th, 2008 @ 7:19pm

    What a terrible trollish post. Not a single claim supports the thesis and some are flat out contradictory (Some people choosing v2 over v3 does not show GPL use is waning).

    reply to this | link to this | view in thread ]

  3. identicon
    JF, May 8th, 2008 @ 8:04pm

    I'll be honest, I do not ever believe I will be able to embrace the GPL either philosopically or in reality. Simply because its contrary to my personal belief of what source code actually is -- an intellectual property.

    Source code does not equate free speech, no matter how you try to sugar coat it. It is the next to final product in an investment (the binary object being the actual final product). Just because it can be replicated ad infinitum does not lessen its worth any. And the alturistic sentiment of "free as in speech" is so Star Trek in nature, that its scary.

    I know some of you are trying to build this great community thing where everyone willingly shares and that is cool, I guess. But my question becomes if you don't want to make money off of your ideas, why stop the next man from using what you built? He can give you all that sentimental stuff (yeah I got this code from this guy who chose not to make money off it) and then go and incorporate it so he can make money. Perhaps that sounds cold, but guess what, you both get what you want. He gets money, you get recognizion. Simple.

    Like I said, this will sound unpopular, yes I grew up sharing code and such too, but I found I like money better. And the GPL really hinders that process. Just look at the stocks of your favorite open source companies (No, IBM does not count because they do not totally embrace open source).

    reply to this | link to this | view in thread ]

  4. identicon
    Richard Chapman, May 8th, 2008 @ 8:12pm

    He had a dream!

    Your post sounds like a case of wish unfulfillment. Yes, wouldn't it be nice for the proprietary interests if the GPL would just go away. It isn't going away. It's well on its way to becoming the development standard. It works too well not to be.

    I don't know anything about you, nor do I want to. If you're in the age bracket of Rob Enderle then you can rant on without much concern about future employment. But if you are still young, you may want to consider what the future landscape will look like. Making life difficult for those who are trying to make it better doesn't make for good reading on a resume.

    reply to this | link to this | view in thread ]

  5. identicon
    mobiGeek, May 8th, 2008 @ 8:32pm


    The GPL is a copyright license, meaning that everything under the GPL is intellectual property. So the GPL does not detract from your belief that source code is "intellectual property". [I'll stay away from the discussion as to what percentage of source code is truly an "invention" rather than merely incremental adjustments to previous iterations of software].

    The fact that source code is IP doesn't take away from my desire to share it with others in a way that people can't go off and hide it from their customers (note: by "customers" I mean people they give/share/sell it to, not necessarily a commercial customer).

    Let's make something 100% clear: there is NOTHING in the GPL stopping people from making money. NOTHING.

    What the GPL does do is it empowers your customers. It gives them the power to control what happens to the software that they purchase. If you can't figure out a way to use that customer-enabling philosophy to encourage people to purchase your product over a proprietary solution, then you have lots of TechDirt articles to be reading up on. Specifically, those focused on obsolete business models.

    Yes, once the code is in the hands of the person/company/entity that paid for it, they have the right to do whatever they want with it...they did, after all, pay for it. However, what organization wants to pay for something and then make it available to their competitors?? Seems like a pretty silly business decision to invest in something that gives you a business advantage and then go around giving it to your competitors.

    You need to look at the GPL beyond the currently limited view of the mainstream software business models. In fact, I wonder if you have really thought at all about what the software business models are? The vast majority of software written does not go into boxes to be sold at retail stores.

    And if the GPL is this evil, why are successful businesses such as IBM, Red Hat, Sun, Novell and many others either moving towards it or fundamentally based upon it? Because they recognize the power of empowering their customers (or at least, they recognize the power such a philosophy gives their sales and marketing teams...yes, SALES FOLKS LIKE THE GPL! Selling (F)ree software is good business.

    reply to this | link to this | view in thread ]

  6. identicon
    mobiGeek, May 8th, 2008 @ 8:55pm


    Source code does not equate free speech, no matter how you try to sugar coat it. It is the next to final product in an investment (the binary object being the actual final product). Just because it can be replicated ad infinitum does not lessen its worth any. And the alturistic sentiment of "free as in speech" is so Star Trek in nature, that its scary.

    The GPL is not about free speech. RMS describes it as speech vs. beer in order to get across a point: the source code under the GPL is not constrained in use by the holder of the software. That is, if someone acquires the software (given, downloaded, paid for, ...) then they have the right to the source code and can do whatever they like (*) with that code. You have the program, tinker with it to your heart's content; you are in control.

    (*) with the caveat that the recipient of GPL'ed software must themselves abide by the GPL when they distribute any derived software.

    As a creator of GPL'ed software, I have a number of current options for generating revenue from that software...and there are many, many more ways that will be invented as society progresses.

    Those who push against the flexibility and power of the GPL typically do so because it goes against their pre-conceived notion as to what "making money from software" means. Realize that the vast majority of people making money from the creation of software do it at cost (of equipment, labour, profit, etc...), not through massively underpriced, massively volumed sales.

    Many people today make a good living from the creation of GPL'ed software. Most of those people are not out to have the financial success of a typical s/w CEO. Most are happy to support a good lifestyle (an incredible lifestyle when compared with 95% of the world's population), put in a productive work life, retire quite comfortably at a reasonable age. The GPL offers many advantages to make this a reality.

    The GPL does not sit well with people who have a modicum of skills beyond the average computer user, who earn success through lucky breaks or deceiving business practices, or who look to take advantage of an existing hostage customer base.

    But, those people don't sit well with me nor likely their potential customers either.

    reply to this | link to this | view in thread ]

  7. icon
    slimcat (profile), May 8th, 2008 @ 8:58pm


    a point in the open source movement's history when the GPL is decreasingly essential.

    It would appear you insight is becoming increasingly irrelevant; or just terribly uninformed, not to mention the fact that when you posted this article skype had already 'decided' to skip the appeal. The GPL wins, again! You could read more over at Groklaw but I seriously doubt you care.

    reply to this | link to this | view in thread ]

  8. identicon
    Lawrence D'Oliveiro, May 8th, 2008 @ 10:44pm

    GPL Wins Again

    Skype has accepted the court's judgement.

    I don't see how you can claim the GPL is irrelevant as long as there are companies still trying to rip people off in this way. How else would we stop them?

    reply to this | link to this | view in thread ]

  9. identicon
    alan p, May 8th, 2008 @ 11:27pm

    Do I hear the seductive tones of commercial interest?

    There is mounting "interest" in the commercial world in overthrowing open source precept,s as it gains in value. We wrote a few weeks ago about the "three-pot-shuffle" approach of endless small arguments resulting in open source licence subversion:

    A tweak here, a tweak there and suddenly its all gone - now is the time for vigilance, not ignorance.

    reply to this | link to this | view in thread ]

  10. identicon
    inc, May 8th, 2008 @ 11:29pm

    GO GPL!!!!

    reply to this | link to this | view in thread ]

  11. identicon
    Andrew, May 9th, 2008 @ 2:31am

    There is an another argument for GPL's decreasing relevance: Software as a Service. Making software available as a service is not distribution, and so the GPL has no bearing.
    The AGPL is an attempt to plug this "loophole."

    reply to this | link to this | view in thread ]

  12. identicon
    Kiba, May 9th, 2008 @ 3:10am


    Look like you skipped over the word "commercial forces" in techdirt posting.

    Free software are about economic freedom, not free speech or free stuff. Free as in speech is an analogy used to indicated that this is about freedom.

    Sharing is merely one of the freedom guaranteed by the GPL, However, it does not mean that I want to share the modified code on my Desktop with you.

    reply to this | link to this | view in thread ]

  13. identicon
    KD, May 9th, 2008 @ 5:47am

    Shame on you, Tom Lee

    Shame, shame, shame, for falling in with the likes of Microsoft in trying to pin the label "viral" on the GPL.

    The only way the provisions of the GPL become attached to code you write is if your code is created by modifying or extending existing code that was released under the GPL. The rule is simple: If you want to save yourself time and effort by basing your code on our work, you must license your code with the GPL, too. That's the condition for using our work. Otherwise, write your own code from scratch (or steal some BSD-licensed code), and you can license it any way you want.

    There is absolutely nothing "viral" about the GPL.

    reply to this | link to this | view in thread ]

  14. identicon
    mobiGeek, May 9th, 2008 @ 6:23am

    Re: Re:

    Want is irrelevant in a discussion about licensing. But you are in the right of the GPL not to share that code so long as you don't share the corresponding application.

    reply to this | link to this | view in thread ]

  15. identicon
    Shannon VanWagner, May 9th, 2008 @ 6:48am

    GPL is more important than ever

    Whoa buddy...

    The GPL is a planet-sized pillar of technological progress of humankind.

    The GPL is also a symbol of the good will and future-oriented endeavor of humans and technology.

    Technological Progress is driven by the GPL in more ways that could ever be described in a single article or even by a single person.

    In these prosperous technological times, the GPL will continue to become ever stronger, while the vendor-lockin types and monopolists who seek to destroy human progress will(and must) diminish.

    Make no mistake, it is the ambition of a license such as the GPL to keep such precious arts and sciences like arithmetic, astronomy, language, and so many others available to humankind as means to build upon our futures as organisms and as a collective lifeform.

    Sir Isaac Newton(a great scientist of all time) endorsed the ideal of GPL himself when he said, "If I have seen farther than others, it is because I was standing on the shoulders of giants."

    Let us not question the validity of the GPL, rather we should embrace like we embrace our children. For the GPL is a future of humans that are enabled by technology.

    reply to this | link to this | view in thread ]

  16. identicon
    Nasch, May 9th, 2008 @ 7:53am

    Re: Shame on you, Tom Lee

    Shame, shame, shame, for falling in with the likes of the RIAA in trying to pin the label "stealing" on... wait a minute, you weren't even referring to infringement, you were talking about PERFECTLY LEGAL ACTIVITIES ALLOWED BY THE LICENSE! Using BSD code and closing it up and selling it *is permitted by the BSD license*. See exhibit A: Apple, Inc. You may not like the license, but don't use weasel words to denigrate it. If you want to express a problem with BSD license, explain your case rationally.

    reply to this | link to this | view in thread ]

  17. identicon
    Chris Maresca, May 9th, 2008 @ 7:57am

    It's very easy to go closed source ...

    ... as long as all the copyright holders agree. This is a common fallacy that GPL and closed source cannot exist, and it's wrong. MySQL is a perfect example of this. Since they own the copyright to all the code, they can license it anyway they please.


    reply to this | link to this | view in thread ]

  18. identicon
    Chris Maresca, May 9th, 2008 @ 8:01am

    Re: Do I hear the seductive tones of commercial interest?

    Hmmm, Open Source is actually really, really useful for commercial companies. I don't know why they would want to kill it. Even Microsoft is enthusiastic about it (just not about the GPL...).


    reply to this | link to this | view in thread ]

  19. identicon
    Chris Maresca, May 9th, 2008 @ 8:07am


    You can actually make money with GPL code, it just requires slightly different business models and a wider variety of revenue streams. SugarCRM is a very good example of this.

    Also, keep in mind that if you are the author of the code, you retain the copyright and are able to re-license it anyway you wish. MySQL followed this model.

    Finally, I would point out that Open Source is about knowledge transfer, not about free. Source code is the way one programmer communicates knowledge to another. That's why it's important and has been successful.

    Fianlly, I would point out to you that there have been more than $2 billion of open source company exits in the last 18 months (MySQL, XenSource and JBoss, along with a bunch of smaller ones). So it does create real value, although not in the same way as a closed source company.


    reply to this | link to this | view in thread ]

  20. identicon
    citizenj, May 9th, 2008 @ 8:46am

    And the winner is...

    Yeah, the GPL takes it. Skype gave up. More info here:
    (too lazy to html it, copy and paste, kids)

    reply to this | link to this | view in thread ]

  21. identicon
    citizenj, May 9th, 2008 @ 8:50am

    well hey

    nifty- auto links. guess i can keep bein' lazy

    reply to this | link to this | view in thread ]

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