License Defamation

How the GPL has been sorely defamed.

Defamation is the “communication to third parties of false statements about a person that injure the reputation of, or deter others from associating with, that person.”

Unfortunately, under the law, you can't be sued for defaming a software license. If I could, I'd sue Microsoft for what it has said about the GPL. Their statements are false and are obviously intended to deter companies from associating with GPL-licensed software—specifically Linux.

The latest onslaught from Redmond came in the “Royalty-Free CIFS Technical Reference License Agreement”, under which Microsoft offers to license its CIFS technical specifications, along with certain of its patents necessary to implement those specifications, on a royalty-free basis. (Read it yourself at msdn.microsoft.com/library/default.asp?url=/library/en-us/dnkerb/html/Finalcifs_LicenseAgrmnt_032802.asp.)

At first I was thrilled to see that Microsoft was willing to license its patents on a royalty-free basis. Members of the Open Source community have long insisted on royalty-free patent licenses for any technology needed for interworking or other standard implementations. But there are so many exclusions and limitations to the CIFS license that this license is useless for anything except Microsoft's propaganda purposes; I can't imagine anyone who will want the CIFS technical specifications under those terms.

For example, the license is limited to implementations on “Non-Microsoft Platforms”. Whoopee! That's how Microsoft stops direct competition at the doorstep so that nobody can write better software to replace any of Microsoft's own software.

It was the insult in the CIFS license that really caught my eye. The CIFS technical specifications and patents are not available for use with software that is distributed under an “IPR Impairing License”. This term is defined as:

...the GNU General Public License, the GNU Lesser/Library General Public License, and any license that requires in any instance that other software distributed with software subject to such license (a) be disclosed and distributed in source code form; (b) be licensed for purposes of making derivative works; or (c) be redistributable at no charge.

So Microsoft again reveals that the only real competition it fears is from Linux and other open-source software.

The term IPR Impairing stands for intellectual property rights impairing. In Microsoft's confused lexicon, the GPL impairs intellectual property rights. Whose? How? Is the impairment good or bad?

There is nothing in the GPL that impairs anyone's intellectual property rights, and it is outrageous for Microsoft to assert otherwise. Anyone can use GPL-licensed software without any effect at all on his or her own intellectual property. For example, you don't have to publish your source code merely by running your software under Linux. You can even modify GPL-licensed code—including Linux—and as long as you don't distribute your modifications you incur no obligation whatsoever to distribute the source code to your modifications. (By way of contrast, don't you dare to reverse-engineer, much less modify, Microsoft code!)

You are not forced to license your software under the GPL and to distribute your source code—except in one rare situation: if you take GPL-licensed software, modify it and distribute your modified version, you must license your modified software under the GPL.

This reciprocity provision is based upon a legitimate bargain. In essence, the licensor is giving you broad rights to his or her software, including the right to create and distribute modifications, but only if you agree to reciprocate by returning your distributed modifications to the commons. You must pay for the right to create and distribute modified software, but the currency for your payment is not money—it is your improved software itself.

How does that differ in principle from the obligation to pay the asking price for Microsoft software?

The owner of GPL-licensed intellectual property is establishing a price for a license to his or her property. You are always free to decide not to make and distribute modifications to GPL-licensed software, but if you elect to do so, you must pay the price set by the owner of the original software. You received a benefit from the free software you modified to create your own software, and the price for that benefit is reciprocity.

That is simply capitalism at its finest. The GPL is not, despite Bill Gates' protestations to the contrary, the end of capitalism as we know it.

What can be far more serious challenges to capitalism are the monopolistic practices that Microsoft continues to engage in. That company pretends it is offering a royalty-free license to CIFS, but the license doesn't apply to implementations on either the Microsoft platform or on the major challenger to that platform, Linux.

Welcome to Microsoft's white elephant sale. I suggest you don't buy.

Legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation and the law of your jurisdiction. Even though an attorney wrote this article, the information in this article must not be relied upon as a substitute for obtaining specific legal advice from a licensed attorney.

email: lrosen@rosenlaw.com

Lawrence Rosen is an attorney in private practice, with offices in Los Alto and Ukiah, California (www.rosenlaw.com). He is also executive director and general counsel for Open Source Initiative, which manages and promotes the Open Source Definition (www.opensource.org).

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"modifications" to a GPL

Anonymous's picture

"modifications" to a GPL project is not the same as "usage". By the GPL definition, a modification of a library is merely using it in your project.

I see a problem with your response right there.

Re: Geek Law: License Defamation

Anonymous's picture

Excellent, very well written. I especially like the "capitalism at it's finest" bit. I'd not previously thought of opensource as a barter system. It certainly knocks down many of the "open source is communism" arguments I've seen floating around the web.

Re: Geek Law: License Defamation

Anonymous's picture

It certainly knocks down many of the "open source is communism" arguments I've seen floating around the web.
Not communism, socialism. ---But what does smack of communism is trying to paint a massive barter system based on code (not money) into being modern USA-style capitalism. Try and make your house payments or buy baby diapers with code.
This movement started when some under-funded academics rebeled against the commercial software industry. Their movement was then picked-up by contractors who are now mounting a war to reallocate their customer's budgets from commercial software products to commercial software services.
But in the end, the only things that get re-released for use by other contractors and their customers under OpenSource are works that were created in the public domain (for governments) or works created for ignorant customers who (knowingly or unknowingly) yielded the strategic/competitive advantage bought with their capital spending on services.

The result of this will be a shift from a system where capitalism/free-markets cause commercial software vendors to constantly improve and release better and better works (from DOS to WindowXp), to a bankrupt socialist system where everything is free and both quality and innovation suck
(from RHL4.2 to RHL8.0). People are making money now because they are draining it out of the commercial software product vendors (through services and distribution sales that stand on the back of open-source) --but when the commercial software vendors are truly gone, all customer needs will be addressed by free software. Only the process of downloading and installing it will remain as a viable way to make money (and rest assured, even that will be highly automated by the decendants of today's ISPs). In such a future, new and innovative software only gets written by customers who can financially afford it to gain strategic advantage over their competitors --and they are unlikely to release that back to the world for free --so stagnation occurs.

Perhaps after countless trillions of dollars of productivity and millions of jobs have been lost while mankind stagnates for 40-50 years with opensource-socialism, then commercial software companies will re-form to fill the innovation-void and defeat the socialist software movement --assuming the government/people let them.

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