Recently, I was asked to explain how I thought any company could protect their brand when releasing software under the General Public License. This shortly after I encountered a post stating CRE Loaded “Never made it clear” the software was released under GPL. The second assertion is quickly dealt with. Provided the user can read basic English – the licensing is posted in the footer of every CRE Loaded distribution as follows:
If this does not make it clear the observer is either illiterate, stupid or criminal and hoping his potential victims suffer those conditions.
Frankly, I don’t understand how this long after the initial GPL release anyone could not understand it’s implications. Probably the most important fact about the GPL is that is is a license. Let me say that again – slowly: the General Public License is a LICENSE.
A license is defined by Mirriam-Webster as “ c: a grant by the holder of a copyright or patent to another of any of the rights embodied in the copyright or patent short of an assignment of all rights”. Parse that slowly if you will. “A grant by the holder of a copyright or patent” – the developing authority holds either a copyright, a patent, or both to their software. “short of an assignment of all rights” – the developing authority retains rights to the software. There. Was that so hard?
So, the question is, to what rights to do the developers retain ownership and/or control. The nature of software licensing should make it pretty clear that those rights include the copyright – which the GPL allows them to enforce; and the rights to trademarks, service marks and other tools used to brand the software. Given that anyone in the software industry in general and ecommerce in particular deal with licensing every day by now we should understand this. A huge percentage of all computers sold around the world carry with them a Microsoft software license. This is a given. Yet no one doubts that that license allows them to use the software, but does not give them a right to call themselves Microsoft, claim a partnership with Microsoft, use the Microsoft Logo on their own products or in any other way represent themselves as being a part of Microsoft.
What the osCommerce Project has to say on these issues can be found here, in their own statements on Trademarks and Copyrights. They are well worth reading. In fact, I would go so far as to suggest that they should be required reading of anyone who installs the software. They are easy enough to understand, but equally easy to forget. I am thankful to have been given reason to review them – and plan some site modifications as a result. I want it to be clearly understood that this site is about all Open Source eCommerce, not just osCommerce. Nor is there any connection between this site and the osCommerce project. We are not reviewed or controlled by the project, and other than their clearly identified RSS feeds all content here is copyrighted under terms substantially similar if not identical to those posted by the osCommerce Project.
Their position boils down to normal usage and common sense – materials are copyrighted by the producers, some rights are granted them as the site owner, all software contributed is donated under the same GPL which applies to osCommerce itself, and their trademarks remain theirs. This is as it should be, and not substantially different than many other Open Source projects. Another interesting document which can be found on the osCommerce project site is their Open Source Definition
The first three items are of particular interest here. To quote their document, making fair use, those items are:
- Free Redistribution
No restrictions are placed on parties from selling of giving away the software.
- Source Code Availability
The software must include source code and must also allow for binary distributions when there is a well-publicized means of obtaining the source code.
- Derived Works
Modifications and derived works must be allowed, and must be distributed under the same terms as the license of the original software.
So, getting back to the remaining question of how branding can be protected while the software is given away.
The pertinent GPL Version 2 clause in my opinion is section 7 (aka the “Liberty or Death” clause”). It says the following:
“7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.
It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.
This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License”So – you can’t stop the software from being given away. But, ” It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims;” Brands and trademarks are property. They are subject to many property rights both implicit and explicit – though these vary significantly from one jurisdiction to the next (one reason there is a GPL 3.x). They existed when the first GPL was written – and this clause has the significance of requiring any further distribution for sale to be clearly identified as “Derived Works“.
So, you can modify commercial GPL software, you can give it away, or sell it. But you legally, morally or ethically cannot do so while claiming to be the original author.
There remain other issues, but from an ethical if not legal standpoint there is no real obstacle to commercializing Open Source software. In fact, there are many issues which push for it – the need or desire of business operators to be able to obtain support, or to acquire a version of the software which is less unstable than the free releases being just two good examples. More on those in a future posting.
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