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PR: GPL Version 3: Background to Adoption

Jun 09, 2005, 21:15 (10 Talkback[s])
(Other stories by Richard Stallman, Eben Moglen)

The GNU General Public License ("the GPL") has remained unmodified, at version level 2, since 1991. This is extraordinary longevity for any widely-employed legal instrument. The durability of the GPL is even more surprising when one takes into account the differences between the free software movement at the time of version 2's release and the situation prevailing in 2005.

Richard M. Stallman, founder of the free software movement and author of the GNU GPL, released version 2 in 1991 after taking legal advice and collecting developer opinion concerning version 1 of the license, which had been in use since 1985. There was no formal public comment process and no significant interim transition period. The Free Software Foundation immediately relicensed the components of the GNU Project, which comprised the largest then-existing collection of copyleft software assets. In Finland, Linus Torvalds adopted GPL Version 2 for his operating system kernel, called Linux.

That was then, and this is now. The GPL is employed by tens of thousands of software projects around the world, of which the Free Software Foundation's GNU system is a tiny fraction. The GNU system, when combined with Linus Torvalds' Linux--which has evolved into a flexible, highly-portable, industry-leading operating system kernel--along with Samba, MySQL, and other GPL'd programs, offers superior reliability and adaptability to Microsoft's operating systems, at nominal cost. GPL'd software runs on or is embedded in devices ranging from cellphones, PDAs and home networking appliances to mainframes and supercomputing clusters. Independent software developers around the world, as well as every large corporate IT buyer and seller, and a surprisingly large proportion of individual users, interact with the GPL.

During the period since 1991, of course, there has developed a profusion of free software licenses. But not in the area covered by the GPL. The "share and share alike" or "copyleft" aspect of the GPL is its most important functional characteristic, and those who want to use a copyleft license for software overwhelmingly use the GPL rather than inventing their own.

Updating the GPL is therefore a very different task in 2005 than it was in 1991. The substantive reasons for revision, and the likely nature of those changes, are subject matter for another essay. At present we would like to concentrate on the institutional, procedural aspects of changing the license. Those are complicated by the fact that the GPL serves four distinct purposes.

The GPL is a Worldwide Copyright License

As a legal document, the GPL serves a purpose that most legal drafters would do anything possible to avoid: it licenses copyrighted material for modification and redistribution in every one of the world's systems of copyright law. In general, publishers don't use worldwide copyright licenses; for each system in which their works are distributed, licensing arrangements tailored to local legal requirements are used. Publishers rarely license redistribution of modified or derivative works; when they do so, those licenses are tailored to the specific setting, factual and legal. But free software requires legal arrangements that permit copyrighted works to follow arbitrary trajectories, in both geographic and genetic terms. Modified versions of free software works are distributed from hand to hand across borders in a pattern that no copyright holder could possibly trace.

GPL version 2 performed the task of globalization relatively well, because its design was elegantly limited to a minimum set of copyright principles that signatories to the Berne Convention must offer, in one form or another, in their national legislation. But GPL2 was a license constructed by one US layman and his lawyers, largely concerned with US law. To the extent possible, and without any fundamental changes, GPL3 should ease internationalization difficulties, more fully approximating the otherwise unsought ideal of the global copyright license.

The GPL is the Code of Conduct for Free Software Distributors

Beyond the legal permission that the GPL extends to those who wish to copy, modify, and share free software, the GPL also embodies a code of industry conduct with respect to the practices by which free software is distributed. Section 3, which explains how to make source code available as required under the license, affects product packaging decisions for those who embed free software in appliances, as well as those who distribute software collections that include both free and unfree software. Section 7, which concerns the effect of licenses, judgments, and other compulsory legal interventions incompatible with the GPL on the behavior of software distributors, affects patent licensing arrangements in connection with industry standards. And so on, through a range of interactions between the requirements of the license and evolving practices in the vending of both hardware and software.

The Free Software Foundation, through its maintenance and enforcement of the GPL, has contributed to the evolution of industry behavior patterns beyond its influence as a maker of software. In revising the GPL, the Foundation is inevitably engaged in altering the rules of the road for enterprises and market participants of many different kinds, with different fundamental interests and radically different levels of market power. The process of drafting and adopting changes to the license must thus approximate standard-setting, or "best practices" definition, as well as copyright license drafting.

The GPL is the Constitution of the Free Software Movement

The Free Software Foundation has never been reluctant to point out that its goals are primarily social and political, not technical or economic. The Foundation believes that free software--that is, software that can be freely studied, copied, modified, reused, redistributed and shared by its users--is the only ethically satisfactory form of software development, as free and open scientific research is the only ethically satisfactory context for the conduct of mathematics, physics, or biology. The Foundation, and those who support its broader work, regard free software as an essential step in a social movement for freer access to knowledge, freer access to facilities of communication, and a more deeply participatory culture, open to human beings with less regard to existing distributions of wealth and social power. The free software movement has taken advantage of the social conditions of its time to found its program on the creation of vast new wealth, through new systems of cooperation, which can in turn be shared in order to further the creation of new wealth, in a positive feedback loop.

This program is not, of course, universally shared by all the parties who benefit from the exploitation of the new wealth created by free software. The free software movement has never objected to the indirect benefits accruing to those who differ from the movement's goals: one of the powerful lessons the movement has learned from previous aspects of the long-duration Western movement for freedom of expression is the value of working with, rather than against, conventional economic interests and concerns. But the movement's own goals cannot be subordinated to the economic interests of our friends and allies in industry, let alone those who occasionally contribute solely for reasons of their own. Changes to the GPL, for whatever reason they are undertaken, must not undermine the underlying movement for freer exchange of knowledge. To the extent that the movement has identified technological or legal measures likely to be harmful to freedom, such as "trusted computing" or a broadening of the scope of patent law, the GPL needs to address those issues from a perspective of political principle and the needs of the movement, not from primary regard for the industrial or commercial consequences.

The GPL is the Literary Work of Richard M. Stallman

Some copyright licenses are no doubt known, in the restricted circle of one firm or law office, as the achievement of a single author's acumen or insight. But it is safe to say that there is no other copyright license in the world that is so strongly identified with the achievements, and the philosophy, of a single public figure. Mr. Stallman remains the GPL's author, with as much right to preserve its integrity as a work representative of his intentions as any other author or creator. Under his guidance, the Free Software Foundation, which holds the copyright of the GPL, will coordinate and direct the process of its modification.

Conclusion

The GPL serves, and must continue to serve, multiple purposes. Those purposes are fundamentally diverse, and they inevitably conflict. Development of GPL version 3 has been an ongoing process within the Free Software Foundation; we, along with our colleagues, have never stopped considering possible modifications. We have consulted, formally and informally, a very broad array of participants in the free software community, from industry, the academy, and the garage. Those conversations have occurred in many countries and several languages, over almost two decades, as the technology of software development and distribution changed around us.

When a GPLv3 discussion draft is released, the pace of that conversation will change, as a particular proposal becomes the centerpiece. The Foundation will, before it emits a first discussion draft, publicize the process by which it intends to gather opinion and suggestions. The Free Software Foundation recognizes that the reversioning of the GPL is a crucial moment in the evolution of the free software community, and the Foundation intends to meet its responsibilities to the makers, distributors and users of free software. In doing so, we hope to hear all relevant points of view, and to make decisions that reflect the many disparate purposes that the license must serve. Our primary concern remains, as it has been from the beginning, the creation and protection of freedom. We recognize that the best protection of freedom is a growing and vital community of the free. We will use the process of public discussion of GPL3 drafts to support and nurture the community of the free. Proprietary culture imposes both technology and license terms; free software means allowing people to understand, experiment and modify software, as well as getting involved in the discussion of license terms, so that everyone's ideas can contribute to the common good, and the development of each contributes to the development of all.

Copyright Richard Stallman and Eben Moglen, 2005. Verbatim copying of this article is permitted in any medium, provided this notice is preserved.

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