Does the GPL Take Away Your "IP" Rights?

Tuesday, March 23 2004 @ 01:12 PM EST

Contributed by: PJ

Bloor Research has put out a story on IT Director that shows a lack of understanding of how the GPL works. A lot of people may think that if there is a lawsuit, the outcome is up in the air. When it comes to the 'GPL is Unconstitutional' concept, I haven't found a single attorney I respect who thinks that proposition can stand. So why does Bloor think there might be a problem? Reading the report shows it's because they misunderstand the terms of the license. They think the GPL robs you of your "Intellectual Property Rights" on any improvements and enhancements. That's not true.

Here's what Bob McDowall, Bloor's Financial Director, wrote:

"It is contended that under General Public License, 'free software code' may be passed on through improvement and enhancement to anyone but that the transfer is made under the original 'free terms' of the General Public License, namely that it is Transferred, 'unfettered' by any Intellectual Property Rights derived from improvements and enhancements. Other would argue that the principles of intellectual property rights override any such form of license. Unfortunately, there are commercial and legal risks in its use until this has been satisfactorily resolved by the litigation in a range of legal jurisdictions, where there is no certainty of consistent and clear outcomes for corporations to determine the risks with a strong degree or certainty. This will, unfortunately, but, undoubtedly, inhibit continuing growth and more extensive use of 'free software.'"

This is seriously wrong. No doubt it's an honest mistake on their part, but it's just wrong.

To put it in terms that they might grasp easily, the GPL works more like this: If I write an article and publish it, and you want to add material and publish the combined work, then you must get my permission, because I am the copyright holder of part of the combined work you have in mind to publish, and you cannot publish it without permission of all copyright holders. That's true whether my article was published under the GPL or not.

Normally, you would offer me money in order to get my permission as copyright holder to get me to agree to let you publish my work in combination with yours. But if I published my article under the GPL, then there is a simpler, cost-free way to get my permission. All you have to do is to publish the combined article under the GPL. You don't have to contact me or pay me.

Whether you want to do this is entirely up to you. You may have good reasons not to want to publish the combined article under the GPL. That's fine. However, you still need my permission to publish a combined article that contains my copyrighted work, and if the simple method of publishing under GPL is not for you, and you can't convince me in other ways to give my permission, then you can't publish the combined article.

After all, you are using my work, so it's only fair. The GPL is not public domain. It's a license that I have chosen to protect my work and direct how it may be used.

However, if they don't use my article but instead just publish the part they themselves wrote, even if inspired by my thoughts, they don't have to publish under the GPL.

It's their work in that case, 100%, so they can do whatever they want with it. But if they take my work, 50%, and add their improvements and changes, their 50%, then they have to respect the terms for using my work with theirs. Alternatively, they can leave my 50% out and just publish their part. The GPL doesn't take away anyone's rights. But you can't use my work, if it's made available under the GPL, unless you agree to do the same. The GPL is designed to build up a community pot of knowledge. You can draw from the pot, but only if you put something back. If you don't want to put something back, don't draw from the pot.

What SCO types would like to do is steal from the GPL pot and not have to give anything back. It's not the GPL that is the thief of people's rights.

You don't believe me? Let's take a look at the GPL FAQ. Here's the exact question that pertains:

"Q: What is the difference between 'mere aggregation' and 'combining two modules into one program'?

"A: Mere aggregation of two programs means putting them side by side on the same CD-ROM or hard disk. We use this term in the case where they are separate programs, not parts of a single program. In this case, if one of the programs is covered by the GPL, it has no effect on the other program.

"Combining two modules means connecting them together so that they form a single larger program. If either part is covered by the GPL, the whole combination must also be released under the GPL--if you can't, or won't, do that, you may not combine them.

"What constitutes combining two parts into one program? This is a legal question, which ultimately judges will decide. We believe that a proper criterion depends both on the mechanism of communication (exec, pipes, rpc, function calls within a shared address space, etc.) and the semantics of the communication (what kinds of information are interchanged).

"If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.

"By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs. But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program."

Notice in this question, that the answer makes a clear distinction between GPL code and public domain code:

"Q: If a program combines public-domain code with GPL-covered code, can I take the public-domain part and use it as public domain code?

"A: You can do that, if you can figure out which part is the public domain part and separate it from the rest. If code was put in the public domain by its developer, it is in the public domain no matter where it has been."

The same goes for your personal improvements. They are copyrighted to you and are yours. If you can separate them out from the GPL code, you can do whatever you like with your code. It's yours. It's only if you want to distribute the combo that you need to respect the GPL and that's because the GPL code isn't yours. It belongs to someone else and that person has terms for you to respect on his copyrighted and then GPL-licensed code.

Note that you can use GPL code with your modified code as much as you please for your private, in-house use:

"Q: Does the GPL require that source code of modified versions be posted to the public?

"The GPL does not require you to release your modified version. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization. "But if you release the modified version to the public in some way, the GPL requires you to make the modified source code available to the program's users, under the GPL.

"Thus, the GPL gives permission to release the modified program in certain ways, and not in other ways; but the decision of whether to release it is up to you. . . .

"Q: Is making and using multiple copies within one organization or company 'distribution'?

"No, in that case the organization is just making the copies for itself. As a consequence, a company or other organization can develop a modified version and install that version through its own facilities, without giving the staff permission to release that modified version to outsiders.

"However, when the organization transfers copies to other organizations or individuals, that is distribution. In particular, providing copies to contractors for use off-site is distribution."

I hope that clarifies. I'd explain why using the term "intellectual property" is confusing, but let's take this one step at a time.