II.  Background of the GPL

A.  Philosophy

The core philosophy of the GNU Project (“GNU”) and the Free Software Foundation (“FSF”)15 can be roughly stated as the idea that software “should be free.”16 This summary, however, falls far short of capturing the essence of the idea.  In order to qualify as free software, a software package must:  (1) be available at no charge; (2) be usable for any purpose, also at no charge; and (3) be open to anyone (at least, anyone with some programming skill) to study and change.17  GNU makes clear that the term free software goes beyond monetary cost.  Rather, “'[f]ree software' is a matter of liberty, not price.  To understand the concept, you should think of 'free' as in 'free speech,' not as in 'free beer.'”18 Further separating free software from the notion of price, GNU stipulates that money may indeed change hands when free software is distributed - as long as the payment is in the form of a fee for the distribution, and not for the software itself.19 “[I]f you are redistributing copies of free software, you might as well charge a substantial fee and make some money.  Redistributing free software is a good and legitimate activity; if you do it, you might as well make a profit from it.”20  Thus, the true meaning of free software advanced by GNU is both more and less rigorous than its name suggests.

GNU spends a considerable amount of time establishing specific semantics to describe the characteristics of free software.  For example, “commercial” does not mean non-free software, but rather any software developed as a business activity;21 “freeware” does not mean free software, but rather software available at no charge that is in other respects not “free;”22 and there really is no such thing as a “software industry,” because software development is not something that occurs in a factory.23

Another example sheds particular light on the true reasoning behind the GNU philosophy.  By definition, free software must be “open-source,” meaning that the source code to the software must be available so that the program's components can be studied and modified.24  But to GNU, simply making the source code available misses the deeper meaning behind free software.25  That is, while free software is by definition open-source and open-source software shares several critical requirements with free software,26 the motivations behind the open-source philosophy and the free software philosophy are different.  It has been stated that “'[o]pen source is a development methodology; free software is a social movement.' For the Open Source movement, non-free software is a suboptimal solution.  For the Free Software movement, non-free software is a social problem and free software is the solution.”27

The Free Software movement thus teaches not only that free software is preferable for practical and development reasons, but also that non-free software is inherently immoral.  In particular, the movement teaches that copyrights on software are unethical,28 that the terms “piracy” and “theft” are misleading when applied to software,29 that “sharing information with your neighbor” is a more appropriate term than “theft,”30 and that software publishers use “draconian measures” to enforce their copyrights and have instituted police-state style tactics to protect their “property.”31  The view that software belongs to some class of things that cannot legitimately be owned is obviously incompatible with the prevailing practices of the “software industry” (as that term is generally understood).

Intent upon bringing free software into the world, but mindful of the need for a legally viable instrument for enforcing the philosophy, the GNU Project developed the GPL, first applied in 1989.32  The license embodies the philosophy of free software, entitling anyone to download, use, and redistribute a GPL-covered software package at no charge-and most importantly, with GNU-style freedom.33  All subsequent recipients of the software enjoy the same rights.34  One may use the original source code to create new programs based on the software.35

To preserve the freedom of the software, however, the license imposes a condition:  if GPL-covered software is modified or used as a basis for some new project, and subsequently redistributed, no additional restrictions may be placed on the resulting work.36  This applies whether or not the distribution is for a fee and irrespective of whether the distribution occurs in source code or some other form.37  The practical effect of this requirement is that where, for example, a company creates a program based on GPL-covered software which it uses only internally, the company is not required to share the new program.38  However, if a company uses a modified version of a GPL-covered work in a product that it sells, then that changed version has been “distributed” and must be made available to the world under the terms of the GPL.39  GNU uses the broad term “copyleft” to describe this requirement that “anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it.”40

B.  The Successes of Free Software

Although in some respects at odds with typical business thinking, free software has had undeniable successes in the real-life marketplace.  Freshmeat.net, a web directory of software projects, states that about two-thirds of the roughly 40,000 projects listed are distributed under the terms of the GPL.41  Noteworthy examples include Linux, the popular operating system;42 MySQL, a database server;43 and Perl, a programming language.44  The continued growing use of Linux as a corporate server platform suggests that businesses have found the GPL's terms of use acceptable.45  IBM has gone so far as to contribute a version of one of its software products, the Journaled File System (JFS), to Linux, also under the GPL.46

In addition, the widespread use of free software has opened a new avenue for some hardware makers.  These companies have recognized that using a freely-available operating system as a starting point, and making modifications to support specific hardware, can have economic advantages over developing a new operating system from scratch, even if the GPL requires that the modified version be released to the public.  Device manufacturers following this route include Linksys, a manufacturer of wireless networking equipment, for some of its wireless routers;47 Hewlett-Packard, for one of its network switching devices;48 and Gamepark Co., Ltd., for its GP2X Personal Entertainment Player.49  This practice marks a shift away from the traditional practice of attempting to increase the value of products by keeping their inner workings a secret.

In addition, a new industry has developed around free software services:  selling not free software itself, but distribution, consulting, and support for those using or wishing to use free software.  This is explicitly permitted by the GPL50 and encouraged by GNU.51  This activity can take the form of selling a simple “distribution” of Linux (e.g., Slackware, available on CD for $39.95),52 a full-service package including software and different support channels (e.g., a Premium Subscription to Red Hat Enterprise Linux, at $2499.00 annually),53 or any conceivable form in between.  A remark from the GNU Manifesto, first written in 1985, seems especially prescient given this result:  “[U]sers who know nothing about computers need handholding:  doing things for them which they could easily do themselves but don't know how.  Such services could be provided by companies that sell just hand-holding and repair service.”54 Though the GPL rejects the idea of software as property, it can hardly be judged per se incompatible with commercial activities.

C.  Legal Status

The GPL has not been directly tested in an American court, and the enforceability of the license has been a topic of some speculation.  Despite the speculation, however, the license has fared well.  Eben Moglen, General Counsel for the Free Software Foundation, declares that “as a copyright license the GPL is absolutely solid.  That's why I've been able to enforce it dozens of times over nearly ten years, without ever going to court.”55  Moglen also explains that most violations have been unintentional and have been cured by simply bringing the violation to the violator's attention.56  Where parties have instead been unwilling to comply with the GPL-for instance, by distributing GPL-covered software within a commercial product without making that software available to others-Moglen claims that the problem has been solved by going directly to the product's customers, who can presumably apply pressure to the supplier under threat of taking their business elsewhere.57

True challenges to the GPL's enforceability have been less frequent.  A 2005 case alleging that the GPL is an illegal restraint of trade for fixing prices at zero was dismissed for failure to show harm to consumers.58  Currently, The SCO Group59 is litigating claims that Linux contains portions of SCO's proprietary source code, alleging that the GPL is “poorly written and unenforceable,”60 in part because it violates Article I, Section 8 of the United States Constitution.61  This particular allegation has been described as “ludicrous” by at least one commentator.62  A 2004 German case held that the provisions of the GPL requiring source code availability where a modified work is distributed, as well as providing for a loss of rights upon failure to so redistribute, are indeed enforceable in Germany.63

In sum, the GPL has proved to be a remarkably durable and flexible instrument for achieving its purposes.  It is no longer just part of a social movement; rather, a number of companies have recognized the GPL as a valid software license and voluntarily complied with its terms.  The trend appears to be toward a presumption that the GPL is indeed enforceable, even where it is raised as part of a legal dispute.64  As GPL Version 2 enters its fifteenth year of widespread use, there is little reason to doubt its legitimacy, even in the absence of a concrete American ruling on the issue.