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.
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