by Bernard Golden

GPL 3: Where There’s Smoke

Jan 26, 20064 mins

There’s been lots of discussion about the new draft GPL3 license: the implications of “digital restriction management,” the depth of patent protection available via the GPL, and even how useful are the provisions surrounding coexistence with other open source licenses.

But one thing relatively unremarked upon is the motive behind the release of the new license. The primary reason advanced has been the desire for a license that can be enforced around the world, allowing for differences in intellectual property laws.

I think the motive is far more fundamental, however. Richard Stallman, the prime mover behind the GPL, is a very strong advocate of software freedom of use–the freedom of a software user to have access to the software code in order to study, modify, and redistribute it. He has gone so far as to say that this freedom is more important than any other attributes of a piece of software like usefulness, widespread distribution, or economic benefit. Stallman believes that freedom is primus inter pares – first among equals. If a conflict arises between freedom and some other benefit, it must be settled in favor of freedom. One might say that Stallman sells freedom; put a bit more politely, he is an entrepreneur of freedom, bent on seeing it triumph in the marketplace of software usage.

Many people liken the world of entrepreneurship to the world of natural selection. Natural selection is often characterized as a brutal competition for scarce resources, but another way of thinking about it is the constant change by species as they attempt to better adjust to their environment’s external influences (e.g., weather) and other actors (other species or other members of their own species).

Entrepreneurs constantly scan the business environment, looking for mutations by other business entities and modifying their own offering to better respond to the business environment of the moment. The mutual scanning and changing of all the businesses in a given market is the dance of entrepreneurship.

Just such a dance has gone on in the world of open source. Stallman inserted a new factor into software by devising the GPL, pursuing his vision of freedom of software use. Other actors, scanned the environment, noted the presence of this new entrant and considered how to respond to it. As a result, we’ve seen companies release appliances containing GPL-licensed software, companies use GPL software as components within their software-as-a-service (SaaS) offering, and even companies release software under the GPL as a tactic against proprietary competitors. In every case, the companies are attempting to increase their position in the software environment. Some of these offerings were impossible to imagine when GPL2 was written; for example, the notion of SaaS was impossible due to hosting and bandwidth limitations. With these new external factors in place, though, GPL-enabled businesses are now possible.

From Stallman’s point of view, however, some of these companies are competing by observing the letter of the GPL license but violating its spirit. SaaS companies may not distribute code, but certainly distribute software functionality. To Stallman, it seems, they should be required to distribute their code. Some of the appliance companies put mechanisms in place to preclude users from modifying and running the code they contain. To Stallman, that is a violation of the freedom of users regarding software.

Consequently, Stallman himself has now decided to adjust his offering to the new environment of software by modifying the GPL license to address these new environmental factors. In this way, he is acting as the entrepreneur of freedom, seeking to make it more competitive and ensuring its survival.

That said, it doesn’t end here. I’m certain that attorneys for the SaaS and appliance companies are carefully reading the new GPL3, looking for interpretations that will let their clients continue to take advantage of GPL code. One might say they are reading the music and preparing for the next dance.