1. The GPL isn’t magic
Even after twenty years, the GPL still seems to have a certain magical aura and in part that has been the reason for its success. But reality is that the GPL is much more mundane than has been made out. It’s just a private contract between two parties … or is it?
Perhaps the most interesting and still debated technical point is whether the GPL is a bare "licence" or a "contract", and that’s really a point of interpretation based on the jurisdiction. In summary, if the GPL is enforcing obligations over and above what is governed by copyright, it’s a contract. If it’s just providing a permission to do something, it’s a licence. Breach of a licence would be a copyright infringement issue. Breach of a contract is a contractual issue. So it depends, and in some countries it just doesn’t matter.
2. The GPL needs copyright
Regardless of whether the GPL is a licence or contract, it relies on copyright.
This point is often missed and is fundamental the GPL. If I own copyright in some software, I own the exclusive right to permit reproduction of that software (and in most countries, some sort of distribution right). If I own the exclusive right to permit reproduction, I can dictate the terms on which that reproduction is made. In this case, I make those terms the terms of the GPL.
If we didn’t have copyright, you could just reproduce the software without my consent and without agreeing to my choice of terms. (Obviously I could just keep the code secret as a practical step, but open source isn’t really about confidential information). So copyright, open source and the GPL are actually best friends, not enemies.
3. The GPL isn’t a model document (for something designed to be used globally)
Now I’m not saying it’s a bad document, but if there are any complexities from the GPL, they come from within itself. At least in earlier versions it was very US centric, non-legalistic (when some terms of art were required) and inconsistent. Much of this has been improved in the recent version, but there remains issues in using the one document in different legal systems all around the world (such as what is meant by “distribution”).
None of that means open source is a poor business model or the GPL is ineffective at achieving what it’s designed to achieve. It just means that relying on a strict legal interpretation of the terms is more difficult.
4. The GPL has a strong following of enthusiastic supporters
For me, this is the key point. Ignoring all the legalities and issues, there’s a community understanding of what the GPL “should be”, not necessarily what it is. At very least as a public relations issue, working against that community spirit is a disaster. There are many examples of non-litigious “enforcement” of the GPL through community pressure. And rightly so, after all it’s the community that has often done the heavy lifting in development. As a consequence though, something more often enforced through community pressure than litigation means the legal issues raised are somewhat academic.
Even the current version of the GPL has issues, including issues relating to the global nature of software, inconsistent copyright regimes and difficulties with interpretation. On top of that, unlike many other “business grade” software licences, there is no indemnity – so if something goes wrong, you’ll likely be without coverage. The GPL is a popular licence and will continue to be. It’s just not any more or less complex than other licence agreements.
[Photo credit: jin.thai]