GPL 3 Draft Revives License Debate

The topic of licensing might not be the sexiest thing about the free and open-source software industry. But it is one of the most important issues, since the license governs exactly what companies and developers can and cannot do with their software.

The legal implications of software licenses may also not seem important to many nontechnical business executives. But the license essentially dictates what the company can do with its software going forward, which code it can or cannot be mingled with, and what patent and other protections are afforded to the user.

So it is not surprising that there has already been much debate within the free and open-source community over the first discussion draft of the GNU GPL (General Public License) Version 3, which was written by Richard Stallman, the founder of the Free Software Foundation, and Eben Moglen, the foundations general counsel. The draft was released in January.

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The fact that each provision and term and the very wording of the proposed new license are coming under such scrutiny underscores just how importantly the community views this draft. After all, this is the first revision in 15 years of the GPL 2 license, which governs more free and open-source software than any other license. The final version of the license is expected to be released in January 2007.

And it is not just developers, but also business people, who should care about the license and its terms, because those terms define the parameters in which companies can utilize open source, said John Brockland, a partner in the Technology Transactions Group of law firm Cooley Godward, in Palo Alto, Calif. The firm helps companies maximize their strategic relationships and the return on their intellectual property investments.

Brockland said a company needs to know, for example, whether code that it wants to use is under a license such as the GPL—which may require release of the companys own source code—or whether it is licensed under an academic-style license such as BSD (Berkeley Software Distribution), which does not.

"A companys potential investors and any potential buyer will very likely investigate the companys use of open source to find out if the company is in compliance with the licenses and if there is a risk that code the company wants to keep binary-only must be released in source code form," Brockland said.

On the flip side, a company considering the release of some of its code as open source needs to consider which license best furthers its business goals—whether those goals include achieving maximum adoption, facilitating further development by a community, limiting the ability of others to use the companys open source in proprietary, closed-source projects or others, Brockland said.

Licensing is also very important to the future of technology development, Brockland said, as this is one of the principal vehicles by which companies commercialize their developments. Licensing is also how companies share technology and take advantage of the innovations of others, he said.

"I believe open-source-style licensing is continuing to gain in importance as companies seek to take advantage of open-source technologies and platforms, such as the Linux operating system, Apache Web server, and MySQL database, and as companies find ways to use open-source licensing models to further their business interests," Brockland said.

Examples of this include dual-licensing models such as those employed by mobile open-source software company Funambol, of Redwood Shores, Calif.; Trolltech, in Oslo, Norway, which provides developer tools and libraries; and MySQL, the Swedish database company.

There also have been releases of code under open-source models by larger companies, such as Sun Microsystems, of Santa Clara, Calif., and its Solaris operating system, Brockland said.

Jonathan Schwartz, CEO and president of Sun, said he completely agrees with Brockland, and that the company is actively engaged with regard to the evolution of open-source licenses. "We think these are absolutely central to the future of technology," Schwartz said.

But many business executives seem to forget that open-source code is subject to many of the same legal and licensing challenges as proprietary software, said Jason Wacha, vice president of corporate affairs and general counsel at Monta-Vista Software, of Sunnyvale, Calif.

MontaVista provides an open-source platform allowing system designers to innovate across a wide range of interconnected intelligent devices and communications infrastructure.

"Its computer source code that can be compiled into binaries, written by a human, automatically subject to copyright and other laws, in most cases subject to a license agreement of some sort by which the copyright holder/licensor transfers or forgoes certain rights, and, in many cases, also subject to a commercial agreement, which provides for a transfer of money, additional protections [warranties, indemnities and so forth] and more," Wacha said.

Next Page: A shifting GPL and an infinite number of licensing agreements.