Tag Archives: gpl

GPL and free software language for government contracts

This weekend at BuddyCamp Miami (which ruled btw) I chatted with a number of folks about putting GPL clauses into client contracts. It can be especially challenging when working with universities or other bureaucracies that have hardcore, work-for-hire-ish intellectual property clauses already built into their consultant contract boilerplate. On a number of occasions, my clients and I have worked with the legal departments at universities to develop new language that fits the spirit and law of GPL software. In my opinion, this kind of work is among the most important work I’ve done since I started in this business, even more important than most of the software I’ve written. By having the discussions with legal, and by getting free-software-friendly boilerplate on their books, we take steps toward legitimatizing free software in the university, and making it part of the culture.

Anyway, I was asked privately to share some of this contract language, and I figured it would be more useful to do it in a blog post than in an email. So here are a few examples that have been approved by the legal departments at large universities. (Side note: We should come up with a system for sharing these kinds of strategy docs in a more organized way.)

  1. This clause replaced one university’s extremely restrictive IP boilerplate:

    Foundation acknowledges and agrees that enhancements, bug fixes and other custom developments produced under the scope of this agreement will be subject to release under the GNU Public License v2, or another compatible and relevant open-source license.

  2. The following clause is added as a footnote to the existing language about IP:

    Section VIII (1-3) shall not apply when work is being performed in the public domain. Consultant agrees to comply with the GNU General Public License version 2, as set out in the Attachment #2, when work is being performed in the public domain.

    A few notes about the language in this second example (which their lawyers wrote, not me). First, “Attachment #2″ is a copy of the GPLv2. Second, I think there is a little bit of confusion here about “public domain”, because strictly speaking, “public domain” means that no one owns the copyright, while the GPL is dependent on copyright. I think the spirit of the phrase “performed in the public domain” is supposed to be something like “written for public consumption”. But a literal reading of this clause probably means that I must relinquish copyright over the work done under this contract into the public domain. In this specific case, the end goal is for me to extend one of my existing GPL-licensed WordPress plugins; so I will then be integrating this newly-created public-domain code into the plugin, and then distributing the whole thing under the GPL, with a note that the newly added library is in the public domain. This is not ideal, but it’s OK for this case where I’m building a standalone add-on for my own work – good enough not to continue negotiations :)

If I can dig up others, I’ll post them here. If you have real-life examples, please share in the comments.

‘Tis the season to support good things on the web

Today I’m going to spend down some of my PayPal slush fund by making donations to online causes that are important to me. I do this every year, usually on a day in December (Christmas! Last chance for tax breaks! etc). Doing it in a single day makes it fun, like an event. Here’s a partial list of where I’ll be sending moolah today:

You don’t have to give to these specific causes (though you should – they are awesome!), but you should get out there and support some of the causes that you believe in. Even a couple bucks can be meaningful. ‘Tis the season!

The GPL is for users

The General Public License (aka the GPL) is for users. This observation seems so obvious that it needn’t be stated. But for those who develop software licensed under the GPL (like WordPress and most related projects), it’s a fact that should be revisited every now and again, because it has all sorts of ramifications for the work we do.

Users versus developers

What do I mean when I say that the GPL is “about users”? Who are “users”? We might draw a parallel between software and books. Books have readers (hopefully!), and they have authors. Authors read too; proofing is a kind of reading, of course, and one might argue moreover that reading is an inextricable part of writing. Yet when we talk about a book’s “readers” we generally mean to discount its author. ‘Readers’ in this sense is a gloss for ‘just readers’, that is, those readers whose relationship to the book is limited to reading. The situation with software is more complex, but roughly the same distinction can be made between users and developers. ‘Developers’ refers broadly to those people involved in the conceptualization and implementation (and also often the use) of a piece of software, while ‘users’ refers to those who just use it.

My reading of the GPL is that it’s heavily focused on users. (References to the GPL throughout are to GPL 3.0. You can find older versions of the licence, such as version 2 that is shipped with WordPress, on GNU’s website.) Take the opening line from the second paragraph of the Preamble:

The licenses for most software and other practical works are designed to take away your freedom to share and change the works. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change all versions of a program–to make sure it remains free software for all its users.

Here as elsewhere in the text of the GPL, no real distinction is made between “you” as it refers to developers and “you” as it refers to users. Closer analysis makes it pretty clear, though. Take, for example, the freedoms that are purported to be taken away by proprietary licenses: the freedom to “share and change” software. Developers – or, to be more specific, license holders, who are generally either the developers themselves or, in the case of work for hire, the people who paid for the software to be developed – generally do not restrict their own rights to share and change the software that they create. Instead, restrictions are imposed on others, the (“just”) users.

Similar reasoning applies to the core freedoms that are outlined in the Free Software Definition, a sort of unofficial sister document of the GPL, also maintained by the Free Software Foundation. The four freedoms:

  • The freedom to run the program, for any purpose (freedom 0).
  • The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this.
  • The freedom to redistribute copies so you can help your neighbor (freedom 2).
  • The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.

On the face of it, freedoms 1 and possibly 3 are focused on developers, in the sense of “those who are able to write code”. But, with respect to a piece of software that they did not write and whose license they do not control, coders are just regular users (in the same way that Vonnegut may have been a “reader” of Twain). All four freedoms, indeed, are user-centric. The license holder, almost by definition, doesn’t need permission to use the code (0); the developer doesn’t need to study the code to know how it works (1); owners can redistribute at will (2); owners can modify and redistribute at will (3). It’s only in the context of users – those who did not write the software – that these freedoms need protection in the form of free software licenses like the GPL.

The GPL does make a few explicit provisions for the developer/license holder:

For the developers’ and authors’ protection, the GPL clearly explains that there is no warranty for this free software. For both users’ and authors’ sake, the GPL requires that modified versions be marked as changed, so that their problems will not be attributed erroneously to authors of previous versions.

The second provision is a sort of legal convenience; the first intends to ease what may otherwise be a prohibitive consequence of the core freedoms guaranteed by the rest of the GPL. Both are important and valuable. But it seems fair to say that they are secondary to the user-focused parts of the document, at the very least because they are motivated by other parts of the document, while user freedom needs independent justification.

There’s no question that the people who bear the brunt of implementing and upholding the GPL are software developers. In that sense, the GPL is very much “for” them. But, in a broader sense, that’s a bit like saying that school is “for” the teachers because the teachers play a key role in education. Schools are for children; they provide the motivation and justification for the whole enterprise. Similarly, the GPL is for users; if everyone wrote their own software, and there were no “just users”, the GPL (or any free software licenses, or any licenses at all) would be unnecessary.

Sacrifice

If I buy a pizza, I trade ownership of money for ownership of pizza. Once I have the pie, I can do pretty much whatever I want with it. I can eat the whole thing myself, I can share with a friend or two, I can throw it on the sidewalk. I can save the pizza in hopes that prices rise so that I can make a quick buck in a resale, I can retail off the individual slices, or I can give the whole thing away. I can’t use the pizza to solve world hunger (not because I’m not allowed, but because it’s not possible); I can’t use the pizza as a deadly weapon (not because it’s impossible, but because I’m not allowed). In short, ownership bestows certain rights. Not all rights – I don’t have the right to murder with the pizza, or to do impossible things with it – but many, even most of them.

The situation is more complex with intangible goods; especially those, like software, which can be reproduced without cost or loss. Copyright law in the United States (so far as I understand it; IANAL etc), in accordance with the Berne Convention, grants rights over intellectual and creative works to the authors automatically, at the time of creation. Thus, if I write a piece of software (from scratch – set aside issues of derivative work for a moment), I am granted extensive rights over the use and reuse of that piece of software, automatically, in virtue of being the author. That includes copyright – literally, the rights related to the copying and distribution of the software. In short, the default situation, for better or for worse, is for the developer – and only the developer – to possess the rights and freedoms enumerated by the Free Software Definition. By default, nothing is protected for the users.

Free software licenses exist in order to counteract this default scenario. But keep in mind what that means: When a developer releases a work under a license like the GPL, certain freedoms and rights are granted to users, which necessarily restricts the freedoms of the developer. The GPL admits as much:

To protect your rights, we need to prevent others from denying you these rights or asking you to surrender the rights. Therefore, you have certain responsibilities if you distribute copies of the software, or if you modify it: responsibilities to respect the freedom of others.

“Responsibilities” is a nice way of putting what is essentially the stripping of certain rights (in the same way that, once you become a parent and thus responsible for your child’s well-being, you no longer have the right to go on a week-long bender). Once the software is released under a GPL, the original author has lost the right of exclusive distribution of the original software. Subsequent developers, those who modify and redistribute the software, are similarly restricted.

It’s a trade-off. Users get certain rights (viewing source code, copying, modifying, redistributing) because the developers have given up the default right of exclusivity. Examined in itself (without reference to subsidiary benefits for the moment), the trade-off is clearly made for the benefit of the users, and involves sacrifice on behalf of the developer, sacrifice which is usually quantified in monetary terms (Bill Gates didn’t get rich by writing open source software), but could also be associated with pride in being the sole author, etc. There are, in addition to this, secondary sacrifices involved in free software development (loss of identification with the software because of modifications or forking, less guaranteed income than in a proprietary development shop, increased support requests that come from wider use of a free-as-in-beer product [though the GPL explictly says that you can charge what you want, and that no warranty is implied]). To some extent, these secondary sacrifices can be mitigated by the realities of the market, and are anyway subject to the particulars of the scenario in which you find yourself. But the core sacrifice – giving up exclusivity over distribution – cannot be separated from free software licenses.

Software licenses are political documents

Developers have all sorts of reasons for releasing software under free software licenses like the GPL. A few, off the top of my head:

  • You want to modify and redistribute existing software that is GPLed
  • You want to distribute somewhere that requires GPL-compatibility, like the wordpress.org plugin repository
  • You believe that forkability and other GPLy goodness makes for a better product
  • You want to develop for a platform, or contribute to a project, that requires GPL compatibility

I classify these reasons as prudential, in the sense that they are focused on the material benefits (money, fame, better software) that you believe will come from developing under the GPL. All of these reasons are great and important, and many of them have motivated my own work with GPL-licensed software. Taken together or even individually, it’s easy to imagine that these (and other) benefits would outweigh the sacrifice involved in giving up exclusive distribution rights over your work.

There’s another kind of justification for releasing under the GPL: you endorse, and want to advance, the political and moral ends that motived the creation of the GPL. The GPL assumes that it’s a good thing for users to have maximal freedom over their software:

If you develop a new program, and you want it to be of the greatest possible use to the public, the best way to achieve this is to make it free software which everyone can redistribute and change under these terms.

The assumption here is that “greatest possible use to the public”, and by the extension the good of the public, is something to be actively pursued – a moral claim par excellence.

And, among free software licenses, the GPL is perhaps the most explicit about the ways in which user freedoms (and thus the greatest good of the public) should be guaranteed and propagated. The “viral” nature of the GPL constitutes a kind of normative statement about the value of user rights over developer rights, which goes beyond other free software licenses that do not share its viral nature. The difference might be summed up like this. Alice and Bob are coders, and Carol is a potential user of the software. If Alice writes a piece of software and licenses it under a free software license like those in the BSD tradition, Bob can fork the software, make a few changes, and sell it to Carol under any terms he’d like – he can compile a binary executable for distribution, without making the source code available, converting his fork into closed-source, proprietary software. If Alice licenses the software under the GPL, on the other hand, Bob can still modify and sell to Carol, but he may not change the terms of the original license – in particular, the source code must be made available for further modification and distribution.

The normative aspect of the difference is in the value that each license scheme ascribes to the rights and freedoms of various individuals involved. BSD is more permissive with respect to Bob; GPL limits his ability to license the derivitive work as he pleases. GPL is more focused on Carol, and protecting her – and other “just users” like her – at the cost of some of Bob’s freedoms. (The GPL is for users.) One might express the difference in political terms thus: the GPL is more liberal, and less libertarian, than the BSD. Users, who are on the weak end of the power spectrum when it comes to software, are protected under the GPL, in the same way that society’s underprivileged and weak are often the focus of political liberalism. On this picture, licenses, like laws more generally, are designed in part to create the restrictions necessary to protect the positive freedoms of a vulnerable population.

For developers who agree independently with the normative principles underlying the GPL, its moral benefits can outweigh the sacrifices it entails. Such a justification is the starting point for Stallman and the Free Software Foundation (see, for example, the FSF’s about page). You may, of course, foreground other aspects of free/open-source software when justifying your licensing. I’ve listed some justifications above, and entire movements have sprouted to focus on prudential, rather than moral, justifications for open source development.

But – and here’s the rub – licensing your work under the GPL constitutes an endorsement of its moral justifications, even if it’s not (from a cognitive point of view) what motivated you personally to apply the license. If you choose a free software license for prudential reasons, you are not justified in complaining when your project is forked. If you choose the GPL for prudential reasons, you can’t altogether disavow the inherently altruistic underpinnings reflected in the license’s preamble. Put another way: Among other things, software licenses are political documents, and it’s incumbent upon developers to understand them before adopting them.

It’s important for developers to think carefully about this before diving into a license. My own take is that the original motivation for free software – that user control over the software they use is fundamental to their autonomy – becomes truer every day, as more and more of our agency is mediated through software. For that reason, licenses like the GPL are ethically important, at least if your worldview depends (as mine does) on respecting the agency of other human beings.

This post was prompted by a recent post by Ipstenu. Much of my thinking on the matter is clarified and inspired by the first few chapters of Decoding Liberation: The Promise of Free and Open Source Software, a book about free software written by philosophers/computer scientists Samir Chopra and Scott Dexter. You can (and should) buy the book here.