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31 May 2004

      http://www.linuxinsider.com/story/34109.html

The Future of the GPL

By David Halperin
LinuxInsider
05/31/04 6:00 AM PT

Among the allegations raised by The SCO Group in its current spate of lawsuits
is that the GPL -- the GNU General Public License, which is used for much
open-source software, including Linux -- is unconstitutional and in violation
of federal copyright and patent laws.

SCO bases this claim on the clauses in the U.S. Constitution that establish a
principle of copyright protection "to promote the progress of science and
useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries."

If that allegation is upheld in the relevant court case -- or, indeed, if SCO
prevails in any of its lawsuits -- what consequences might result for the GPL,
or for free or open software licensing in general?

The legal minds behind the design and implementation of the GPL don't seem
especially concerned. Professor Eben Moglen, currently on leave from the
Columbia University law faculty, has been -- as counsel to the Free Software
Foundation (FSF) -- the lawyer most involved with the application and testing
of the GPL for more than a decade. He says, "I believe the constitutionality
attack on the GPL is not a tenable legal argument but is rather a public
relations argument."

In a talk at Harvard in February, he addressed the issue of constitutionality
by referring to Congress' recent extension of copyright term limits. "It turns
out that there's no such thing as an unconstitutional copyright rule," he
said, "if Congress passes it, and if it observes the distinction between
expression and idea."
Referring to the Supreme Court's decision in Eldred v. Ashcroft, he continued:
"The existing copyright law is constitutional and our license, which fully
observes all the requirements that the copyright law places upon it, is also
presumptively constitutional."

The upshot, believes Moglen, is that "...the likelihood that there will be
changes in the GPL as a consequence of this litigation approaches zero."
All Things Must Pass

Whether or not he is correct in this interpretation, the GPL, like all
contracts in a changing world, will have to adapt to new conditions. After
all, Version 2 of the GPL was created and launched by Richard Stallman of the
FSF way back in 1991.
"Since that time," notes Moglen, "the world has changed quite a lot. In the
first place, the technical environment of software has changed. Compare the
Net of 1991 to the Net of today. And the second thing is that the commercial
environment surrounding free software didn't exist in 1991 and is now an
industry worth tens of billions of dollars.

"There will be changes in GPL," he says. "Mr. Stallman and I have been
developing Version 3 of the GPL for some while now, and we will in due course
release a discussion draft and begin the public conversation directed at its
adoption."
That public conversation will have many voices. "In 1991," Moglen recalls,
"the people who needed to be convinced that the license was good to use were
essentially independent software developers and research computer scientists
around the world. In order to change GPL now, you have to consult the needs
and attitudes of people in almost every country and legal system on Earth,
ranging from independent garage developers to IBM (NYSE: IBM) ,
Hewlett-Packard, Siemens, Nokia, Motorola.

"It's an unimaginable alteration in which multinational corporations as
sophisticated and well-funded as any on Earth need to have their opportunity
to speak on relatively equal terms with teenage program developers working in
their homes in far-flung corners of the world."
Asked what changes we might expect to see in Version 3, Moglen cites three
areas the new version will address. One is the on-licensing of additions or
modifications to the code when used in applications such as Web services. A
second concerns patents, which he says are found where they shouldn't be. The
third is the issue of "trusted computing," in which hardware polices the
software it runs -- a situation which, if allowed to take hold, he likens to
"the military occupation of the Net."

Building Code Standards
Moglen does believe there will be important results from the SCO suits, only
not in the terms of the license itself. "People are now realizing that how you
vet the code that you put in the free software project -- both how you legally
establish the rights in it, and how you factually establish who is giving it
to you and where they got it from -- are really important," he says.

"SCO is demonstrating how important it is to do what I call the 'assembly' of
free software -- the putting together of contributions to make a finished work
-- in a defensible way."
This means developing a standardized way of "assembling" free or open-source
software. "How you do the work of putting stuff together before you license it
is at least as important as how you license the software," according to Moglen.

A further consequence might be the rise of third-party insurers and
indemnifiers. "The activity of third-party insurers," believes Moglen, "will
give rise to a desire that code be put together according to standards which
are understood in the trade as minimizing risks, and thus making the insurance
market work in the most fluid possible way."
Red Hat (Nasdaq: RHAT) isn't a "third party," but it is already illustrating
this trend. According to spokesperson Leigh Bay, Red Hat offers two kinds of
indemnity. "First, we've set up a million-dollar fund so that if developers
find themselves being sued, or if they come into any legal issues with
developing software under the GPL, the fund will be available to pay for their
legal fees."

"The second part, which protects past, present and future Enterprise Linux
customers, says that if there is an intellectual-property violation in our
code, we promise to fix it and replace it and provide for uninterrupted use of
the code."
Red Hat's willingness to write such a warranty is, Bay says, based on an
ability to "vet" its code accurately.

-- 
Diego Saravia 
[email protected]

futuro de la gpl

Diego Saravia

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