Some Sophisticated Legal Sophistry, Otherwise Known as FUD

Wednesday, July 21 2004 @ 10:00 AM EDT

Contributed by: PJ

However does LinuxInsider find so many people willing to attack Linux and the GPL? They surely must work at it.

Today, there is some sophisticated sophistry by a lawyer attacking the GPL. In the nicest way possible, of course. Lawyers are good at subtle sophistry, of course, having gone to law school. His bottom line is that companies shouldn't use the GPL. But how he gets there is by saying a series of provably untrue things, which means that if the FSF were as litigious as some entities we might think of, there would be a slander action coming soon at a courthouse near you. Joke. But it is the case that the author appears to be seriously underinformed or misinformed about the GPL.

So, once again, so that misinformation doesn't grow legs, I hop on my white horsie and ride in the cause of truth and justice.

He calls his article, A Consumer's Review of the General Public License and the author is Phil Albert, an attorney with Townsend, Townsend and Crew. He has written some good articles in the past, and I trust he will in the future, but on reading this one, I can't help but remember Mr. Darl McBride telling us all about lawyers attacking the GPL, remember? In his Harvard speech. Mr. Albert really should take the FSF's seminar on the GPL. It would spare him embarrassment in the future. It never ceases to amaze me that lawyers write such strong words without first contacting the FSF or at least reading the FAQ on the GPL. For that matter, why not read the GPL itself? It does answer his questions. He seems to have read it without understanding it, which isn't a crime, but it does mean his conclusion is subject to question. Let me show you what I mean.

Here is the truth about the GPL in answer to what he wrote, beginning with his writing in colored text, and then the answers to his questions and worries:

1. "The GPL is a nice product, but it could use some polishing. For one thing, it was written by programmers, not intellectual property lawyers. How do I know? The first section of the GPL is section '0.' Lawyers would never start counting with '0,' but that is a natural choice for programmers. Naturally, as a lawyer I am biased toward keeping attorneys in the loop, but even so, legal review of licenses is definitely a good idea. In many cases, the only time when license details matter is when a legal dispute erupts or has the potential to develop. Fortunately, consumers of GPL version 3 can look forward to a lawyer-vetted upgrade. When lawyers don't get in on the act, questions of interpretation can lead to some serious problems."

Here is the answer. Lawyers have been involved with the GPL for approximately a decade. Google is your friend. Try searching for "Eben Moglen" and GPL and see how enlightening it can be. Here's a paper Moglen wrote on enforcing the GPL, which is what he does and has done since the early '90s. For the lazy or underinspired, here is a segment from the book, Chapter 13 of "Free as in Freedom":

"In the case of Sun, they desired to play according to the Free Software Foundation's conditions. At the 1999 O'Reilly Open Source Conference, Sun Microsystems cofounder and chief scientist Bill Joy defended his company's 'community source' license, essentially a watered-down compromise letting users copy and modify Sun-owned software but not charge a fee for said software without negotiating a royalty agreement with Sun. A year after Joy's speech, Sun Microsystems vice president Marco Boerries was appearing on the same stage spelling out the company's new licensing compromise in the case of OpenOffice, an office-application suite designed specifically for the GNU/Linux operating system. 'I can spell it out in three letters,' said Boerries. 'GPL.'

"At the time, Boerries said his company's decision had little to do with Stallman and more to do with the momentum of GPL-protected programs. 'What basically happened was the recognition that different products attracted different communities, and the license you use depends on what type of community you want to attract,' said Boerries. 'With [OpenOffice], it was clear we had the highest correlation with the GPL community.'

"Such comments point out the under-recognized strength of the GPL and, indirectly, the political genius of man who played the largest role in creating it. 'There isn't a lawyer on earth who would have drafted the GPL the way it is,' says Eben Moglen, Columbia University law professor and Free Software Foundation general counsel. 'But it works. And it works because of Richard's philosophy of design.' . . . .

"A former professional programmer, Moglen traces his pro bono work with Stallman back to 1990 when Stallman requested Moglen's legal assistance on a private affair. . . . Since then, Moglen, perhaps more than any other individual, has had the best chance to observe the crossover of Stallman's hacker philosophies into the legal realm. Moglen says the difference between Stallman's approach to legal code and software code are largely the same. 'I have to say, as a lawyer, the idea that what you should do with a legal document is to take out all the bugs doesn't make much sense,' Moglen says. 'There is uncertainty in every legal process, and what most lawyers want to do is to capture the benefits of uncertainty for their client. Richard's goal is the complete opposite. His goal is to remove uncertainty, which is inherently impossible. It is inherently impossible to draft one license to control all circumstances in all legal systems all over the world. But if you were to go at it, you would have to go at it his way. And the resulting elegance, the resulting simplicity in design almost achieves what it has to achieve. And from there a little lawyering will carry you quite far.'"

Now, Moglen isn't the only lawyer involved with the FSF and the GPL. Larry Lessig is on the board of the FSF now. And Daniel Ravicher is Senior Counsel for the FSF as well. To write that lawyers need to get involved and help out is demeaning and inaccurate. Some of the finest lawyers in the world are involved already. Thanks. I'm sure any lawyers wishing to help out would be received graciously.

2. "When lawyers don't get in on the act, questions of interpretation can lead to some serious problems. Take section '0.' It says, in part:

a. "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

"Before the colon, a 'work based on the Program' is defined as including 'derivative works under copyright law.' Following the colon, a 'work based on the Program' is defined as 'a work containing the Program or a portion of it.' Unfortunately, those two definitions are not the same, because the legal definition of 'derivative work' is a term that has been the subject of much case law, and it doesn't happen to mean 'a work containing the [original work] or a portion of it.'

"If I were writing this license, I would include a definitions section that exactly defines everything I need and ensures that usage is consistent throughout."

If derivative work doesn't happen to mean "a work containing the original work or a portion of it," someone needs to tells the US Copyright Office quick. Here is what they say in their Circular 14 - "Copyright Registration for Derivative Works":

"A 'derivative work,' that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” . . . A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law."

And here is 'Lectric Law Library's definition:

"DERIVATIVE WORK - A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'. 17 U.S.C."

Now, lawyers like to make things complex-seeming, because then they can suggest that you need to hire them. Trust me. In the past, I used to help research and prepare articles with/for lawyers, and that is what they always wanted implied or included, so when you read an article by a lawyer, look for the sales pitch and evaluate accordingly. As you can see, derivative works, when simply defined, is exactly what the GPL says it is. As the SCO case has taught us, there can be issues. Each circuit has its own way of determining precisely what constitutes a derivative work in a particular pile of software, as the linked article by Ravicher details. Is Mr. Albert suggesting that we define derivative works by circuit in his suggested definitions? And then add each country? You'll note he didn't give his own suggested definition. First, he can't do so in the space of an article for LinuxInsider. And second, we'd laugh. And third, you wouldn't need to hire a lawyer.

3. "Often, subtle problems -- such as the lack of notice requirement for downstream users -- don't show up until some unusual confluence occurs. If someone receives software and the GPL is conspicuously noted, the copyright holder could argue that the recipient had notice of the license terms.

"However, if someone removed the GPL from the software, or it just dropped off for unexplainable reasons, and another party received the software without notice of the licensing terms, a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be open source, they might have an implied license to use the software without the copyleft provisions of the GPL."

Here is where reading the GPL itself more carefully would have helped him. First, let's assume that Mr. Albert means "license to copy, modify and distribute" instead of "license to use", since there are no restrictions on *use* of GPL code. Next, let's see what would really happen if someone removed the GPL notice, first from Section 1:

"1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program."

And now, let's add on Section 5:

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

Would a judge not interpret it according to what the license says? That you can't remove the notice, and that if you do you lose your rights to redistribute at all? Now, without the GPL, you would be restricted to what copyright law says you can do and no more, meaning you can't copy, modify or distribute. Yes. I believe he would. Because that is what the license says. If you don't accept the terms of the GPL, "nothing else grants you permission to modify or distribute". Mr. Moglen again, from the enforcement article:

"The license doesn't have to be complicated, because we try to control users as little as possible. Copyright grants publishers power to forbid users to exercise rights to copy, modify, and distribute that we believe all users should have; the GPL thus relaxes almost all the restrictions of the copyright system. The only thing we absolutely require is that anyone distributing GPL'd works or works made from GPL'd works distribute in turn under GPL. That condition is a very minor restriction, from the copyright point of view. Much more restrictive licenses are routinely held enforceable: every license involved in every single copyright lawsuit is more restrictive than the GPL.

"Because there's nothing complex or controversial about the license's substantive provisions, I have never even seen a serious argument that the GPL exceeds a licensor's powers. But it is sometimes said that the GPL can't be enforced because users haven't 'accepted' it.

"This claim is based on a misunderstanding. The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL'd software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed."

Removing the GPL notice is a violation of the GPL itself. If someone did that, and then distributed, I believe they'd be in violation of the copyright rights of the authors of the GPLd code, who authorize its redistribution only under the terms of the GPL, and that includes the notice. Substitute MS EULA in his paragraph where it says GPL, as suggested by superspod on Yahoo, and you'll see immediately what I mean:

"let's make a substitution:

'if someone removed the MS EULA from the software, or it just dropped off for unexplainable reasons, and another party received the software without notice of the licensing terms, a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be free of the EULA's terms.'

"How likely is that?"

4. "Lawyers might also argue that it is unclear whether the GPL is based in contract or property (that is, whether a licensee is bound because the licensee agreed to the provisions of the GPL, or a licensee is the owner of some limited property right granted to him or her by the licensor)."

Lawyers might indeed argue, because that is what they do. But it isn't unclear, and there have been many, many articles explaining this. I even wrote one, "The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling" and here is a section, including a portion of an interview I did with Professor Moglen:

Eben Moglen, the Free Software Foundation's attorney, who is primarily responsible for enforcing the GPL, explains the difference between contracts and licenses like this:

"The word 'license' has, and has had for hundreds of years, a specific technical meaning in the law of property. A license is a unilateral permission to use someone else's property. The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property.

"A contract, on the other hand, is an exchange of obligations, either of promises for promises or of promises of future performance for present performance or payment. The idea that 'licenses' to use patents or copyrights must be contracts is an artifact of twentieth-century practice, in which licensors offered an exchange of promises with users: 'We will give you a copy of our copyrighted work,' in essence, 'if you pay us and promise to enter into certain obligations concerning the work.' With respect to software, those obligations by users include promises not to decompile or reverse-engineer the software, and not to transfer the software."

Very clear, but what about the GPL? Which is it? A license or a contract? First, the name tells you what the authors intended: General Public License. It doesn't say General Public Contract or even General Public License Contract. So they intended it to be a license, not a contract. Does it fit the definition? Professor Moglen:

"The GPL, however, is a true copyright license: a unilateral permission, in which no obligations are reciprocally required by the licensor. Copyright holders of computer programs are given, by the Copyright Act, exclusive right to copy, modify and redistribute their programs. The GPL, reduced to its essence, says: 'You may copy, modify and redistribute this software, whether modified or unmodified, freely. But if you redistribute it, in modified or unmodified form, your permission extends only to distribution under the terms of this license. If you violate the terms of this license, all permission is withdrawn."

5. "It is also not clear if the GPL intends to bind the licensee beyond the scope of copyrights, restricting the licensee's actions even more than copyright law would."

Oh? Really? Judge for yourself, from the wording of the GPL, and you will see that the clear intent is to give you more rights than you have under copyright law, not less. This is the selective blindness I was writing about the other day. When brains are fimly set in a certain, proprietary direction, they can read clear words and they do not register:


"The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. . . .

"When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. . . .

"We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software. . . .

"1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program."

I believe, aside from the clear statement of intent in the Preamble, that it's designed to expand your rights, just reading the list of things you *can* do that any lawyer knows you *can't* do under Copyright Law alone should make it clear, even to a lawyer, that the purpose of the GPL is not to restrict your rights beyond Copyright Law.

Why do people write such things? Why knows? Mr. Albert may be a fine person and a fine attorney. Unless the subject is the GPL. Let's face it. Law is a specialization profession. No lawyer can know all the areas of law, so I'm not belittling him when I say that this isn't his area of specialty. It doesn't have to be, and to his credit, he calls it a consumer's view of the GPL, which I take as a recognition that he isn't providing a legal view here.

If you want a legal view, you'd do well to hire someone who knows the GPL and has some experience. At least you need a lawyer who has attended the GPL seminar, so he or she won't mislead you, even in good faith, because of not understanding the GPL and how it works. If you need surgery, you don't go to a general practictioner. And if you really want the best results, you want someone who is not only a surgeon, but one who has done a lot of operations on the body part you need worked on. It's just logic. And law is the same.

As for his implied advice to businesses, perhaps they will wish to consider what Sun found out, as expressed in the snip from "Free as in Freedom." You pick the license depending on what community you wish to attract. That isn't at all, by the way, why I would pick a license. But if I didn't care about freedom and only cared about the bottom line, then I might pick one that way. After all, as Mr. Albert writes:

"There is no question that the GPL is an important product. It enjoys a huge portion of the license market relative to other licenses. Out of all the distinct software packages available today, a large percentage are licensed using the GPL, and except for 'licenses' that simply put the software into the public domain, it is probably the most commonly used."

Now I, personally, don't care if businesses use the GPL or sink like a stone in the marketplace instead or craft a license they like better that is compatible with the GPL. But any business that ignores the huge and rich body of work that they can have access to, and the community behind it, is not thinking altogether clearly, maybe because of all the misinformation out there, trying to undermine acceptance of the GPL as a valid license and make it seem like a frightening license with unclear terms that haven't been tested in court, blah blah. If I recall correctly, that is Microsoft's theme song.

As as for LinuxInsider, if they were really an insider, they'd have known already everything I wrote today, and they would have spared poor Mr. Albert by telling him to rewrite his article. Microsoft has no excuse. They've sent lawyers to the GPL seminars.