Doug Ferguson 1

The GNU General Public License (“GPL”) is the most popular license in use for free and open-source software projects.  Now in its fifteenth year, the GPL has endured both practical and legal challenges and today enjoys widespread use and a reputation as a legitimate legal instrument.  However, recently proposed changes to the GPL will harm this reputation and may prove counterproductive to the GPL's continued acceptance.  This Recent Development will briefly introduce the GPL and examine some of the more problematic changes of the proposed GPL.  Finally, this Recent Development will propose revisions which will allow the GPL to continue enjoying the legitimacy it has earned, while maintaining consistency with both its past and future intended effects.

I. Introduction

Most software is sold subject to a software license, which specifies what you may or may not do with the software that you have purchased.  For example, the End-User License Agreement (“EULA”) for Microsoft Windows XP Professional, which governs use of the product, stipulates that the purchaser may install one copy of Windows XP on a single computer.2  While a provision limiting installations to one computer per copy may seem reasonable, the license contains additional terms that are more arbitrary.  For instance, the EULA permits users to connect no more than ten “computers or other electronic devices” to the computer on which Windows is installed, and then “solely for File and Print services, Internet Information Services, and remote access . . . .”3  In addition, “[t]he ten connection maximum includes any indirect connections made through 'multiplexing' or other software or hardware which pools or aggregates connections.”4  Microsoft further provides that the licensee “may not reverse engineer,5 decompile,6 or disassemble7 the Product [Windows XP], except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.”8  Whether or not most purchasers of Windows XP Professional are interested in doing any of these things, it is clear that Microsoft intends to exert restrictions not only on how one may acquire its software, but also on what one may do with the software after it is acquired.  In fact, Microsoft cautions that one does not acquire their software, but only a right to use it:  “The Product is licensed, not sold.”9

Free and open-source software (“FOSS”) projects take a much different approach.  FOSS projects are not “owned” by any entity in the sense that Microsoft owns Windows XP Professional.  Rather, FOSS projects are collaborative efforts which welcome programming expertise, and sometimes financial contributions, from volunteers.  The resulting software may be used, free of charge, by anyone.10  There are no restrictions on using techniques like reverse-engineering, decompiling and disassembling to understand how the software works, although such techniques are rarely needed, since the source code (the human readable instructions written by programmers) to FOSS projects is freely available.11  Most FOSS projects do not apply any restrictions to what the software may be used for, or on how many computers users may install the software.  While these projects are usually subject to some license restrictions regarding how they may be distributed, as discussed below, these restrictions are designed to ensure that subsequent recipients of the software enjoy the same freedoms.12  Thus, licenses commonly used for FOSS projects are considerably more permissive than licenses used for commercial software, such as the Windows XP EULA.

The GNU13 General Public License (“GPL”) is the most popular software license for FOSS projects.14  Although its legal enforceability has been the subject of speculation, it nonetheless has proved to be a remarkably effective instrument for achieving its purpose:  making free software widely available for use and modification, all while ensuring that the software remains free.  However, a recently proposed update to the license, GPL Version 3 (“GPLv3”), contains provisions that are both ambiguous and poorly suited to a software license and, consequently, may compromise GPLv3's viability as an enforceable legal instrument.  This Recent Development will provide a brief introduction to the philosophy behind the GPL, and its successes in upholding that philosophy.  This article will also discuss some problems with the proposed revision, and offer a solution aimed at helping GPLv3 meet its intended goals without compromising its legal viability.