GPL lawsuits: A reason to rejoice(?), not panic

Should we be happy or sad that the GPL is finally being litigated?

BusyBox has been busy. With the help of the Software Freedom Law Center, it recently sued Verizon for infringing the GNU General Public License (GPL). This marks a distinct shift in strategy for Eben Moglen, the SFLC's counsel, as Pamela at Groklaw notes:

Remember how Eben Moglen used to say that negotiations were the best solution years ago, because the GPL was new and funds were limited? And then when he went to the Software Freedom Law Center he said he'd be in a position to do more? I think he told us the truth.

For the record, I like the conciliatory approach. As a lawyer by training, I heartily dislike the use of the law as a club. Occasionally it is needful to right wrongs against the otherwise weak and defenseless, but I'm not sure this is the case with BusyBox. I don't remember Erik Anderson (primary developer behind BusyBox) being particularly litigious when we worked together at Lineo back in 2000, but something seems to have changed.

Maybe he got fed up with people free-riding on open-source software, using it without abiding by its license terms. This certainly seems to be the case with Eben, who let loose on Tim O'Reilly at last year's OSCON for not being enough of a friend to free software.

I certainly agree that many companies feel that open-source software is about obligation-free, cost-free software. It's as if they feel it's a public good, a resource that just happens without investment or toil that they can pillage for profit. They deserve to be swatted. As Fabrizio Capobianco suggests, there's a quid pro quo that is required:

Remember, GPL is not free, you have to give back the code. Or you can get sued.

BTW, for those panicking out there, there is another option provided by commercial open source companies built on the dual licensing concept. Pay and license the code. Get indemnification, support and a throat to choke....

Quid pro quo: you have to give back something. You do not want to give back the code? Give us cash instead. We'll put it back to build an even better open source product.

That's the bargain. You can have it cost-free, but you have to give back code. If you don't want to do that, you can pay cash (and generally at a much lower cost than proprietary alternatives). This seems fair. It's amazing that so many commercial organizations expect to get something for nothing.

With this in mind, I still wish we could resolve this free-riding without lawsuits. Perhaps, though, this is precisely what we need to further establish the legitimacy of the GPL and other open-source licenses, as The 451 Group notes:

...[T]hese GPL lawsuits bolster the open source license. It seems the ante continues to get raised and now, with Verizon involved, the GPL and open source will get even more attention and, most likely in the end, credibility. I would bet Verizon will wisely choose to comply and settle and while some would be happy to see a GPL case hit the U.S. courts, the recognition of GPL's legitimacy keeps on coming.

My primary concern is that this (and the other two ongoing BusyBox lawsuits) will create more misunderstanding about the requirements the GPL imposes. It won't be helpful to have this result in less GPL-licensed software being adopted.

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About the author

    Matt Asay is chief operating officer at Canonical, the company behind the Ubuntu Linux operating system. Prior to Canonical, Matt was general manager of the Americas division and vice president of business development at Alfresco, an open-source applications company. Matt brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. He is a member of the CNET Blog Network and is not an employee of CNET. You can follow Matt on Twitter @mjasay.

     

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