Chapter 13
Background

Copyright law grants exclusive rights to authors. Authors who chose copyleft seek to protect the freedom of users and developers to copy, share, modify and redistribute the software. However, copyleft is ultimately implemented through copyright, and the GPL is primarily and by default a copyright license. (See  1.2 for more about the interaction between copyright and copyleft.) Copyright law grants an unnatural exclusive control to copyright holders regarding copyright-controlled permissions related to the work. Therefore, copyright holders (or their agents) are the ultimately the sole authorities to enforce copyleft and protect the rights of users. Actions for copyright infringement are the ultimate legal mechanism for enforcement. Therefore, copyright holders, or collaborative groups of copyright holders, have historically been the actors in GPL enforcement.

The earliest of these efforts began soon after the GPL was written by Richard M. Stallman (RMS) in 1989, and consisted of informal community efforts, often in public Usenet discussions.1 Over the next decade, the Free Software Foundation (FSF), which holds copyrights in many GNU programs, was the only visible entity actively enforcing its GPL’d copyrights on behalf of the software freedom community. FSF’s enforcement was generally a private process; the FSF contacted violators confidentially and helped them to comply with the license. Most violations were pursued this way until the early 2000’s.

By that time, Linux-based systems such as GNU/Linux and BusyBox/Linux had become very common, particularly in embedded devices such as wireless routers. During this period, public ridicule of violators in the press and on Internet fora supplemented ongoing private enforcement and increased pressure on businesses to comply. In 2003, the FSF formalized its efforts into the GPL Compliance Lab, increased the volume of enforcement, and built community coalitions to encourage copyright holders to together settle amicably with violators. Beginning in 2004, Harald Welte took a more organized public enforcement approach and launched gpl-violations.org, a website and mailing list for collecting reports of GPL violations. On the basis of these reports, Welte successfully pursued many enforcement actions in Europe, including formal legal action. Harald earns the permanent fame as the first copyright holder to bring legal action in a court regarding GPL compliance.

In 2007, two copyright holders in BusyBox, in conjunction with the Software Freedom Conservancy (“Conservancy”), filed the first copyright infringement lawsuit based on a violation of the GPL in the USA. While lawsuits are of course quite public, the vast majority of Conservancy’s enforcement actions are resolved privately via cooperative communications with violators. As both FSF and Conservancy have worked to bring individual companies into compliance, both organizations have encountered numerous violations resulting from preventable problems such as inadequate attention to licensing of upstream software, misconceptions about the GPL’s terms, and poor communication between software developers and their management. This document highlights these problems and describe best practices to encourage corporate Free Software users to reevaluate their approach to GPL’d software and avoid future violations.

Both FSF and Conservancy continue GPL enforcement and compliance efforts for software under the GPL, the GNU Lesser Public License (LGPL) and other copyleft licenses. In doing so, both organizations have found that most violations stem from a few common, avoidable mistakes. All copyleft advocates hope to educate the community of commercial distributors, redistributors, and resellers on how to avoid violations in the first place, and to respond adequately and appropriately when a violation occurs.

13.1 Who Has Compliance Obligations?

All distributors of modified or unmodified versions of copylefted works unmodified versions of the works have compliance obligations. Common methods of modifying the works include innumerable common acts, such as:

Such distributors have obligations to (at least) the users to whom they (or intermediary parties) distribute those copies. In some cases, distributors have obligations to third parties not directly receiving their distribution of the works (depending on the distributors chosen licensing options, as described later in  15.1). In addition, distributors have compliance obligations to upstream parties, such as preservation of reasonable legal notices embedded in the code, and appropriate labeling of modified versions.

Online service providers and distributors alike have other compliance obligations. In general, they must refrain from imposing any additional restrictions on downstream parties. Most typically, such compliance problems arise from “umbrella licenses:” EULAs, or sublicenses that restrict downstream users’ rights under copyleft. (See  7.3 and  9.13).

Patent holders having claims reading on GPL’d works they distribute must refrain from enforcing those claims against parties to whom they distribute. Furthermore, patent holders holding copyrights on GPLv3’d works must further grant an explicit patent license for any patent claims reading on the version they distributed, and therefore cannot enforce those specific patent claims against anyone making, using or selling a work based on their distributed version. All parties must refrain from acting as a provider of services or distributor of licensed works if they have accepted, or had imposed on them by judicial action, any legal conditions that would prevent them from meeting any obligation under GPL. (See  7.4,  9.14 and  9.15.

13.2 What Are The Risks of Non-Compliance?

Copyleft experts have for decades observed a significant mismatch between the assumptions most businesses make about copyleft compliance and the realities. Possibly due to excessive marketing of proprietary tools and services from the for-profit compliance industry, businesses perennially focus on the wrong concerns. This tutorial seeks to educate those businesses about what actually goes wrong, what causes disputes, and how to resolve those disputes.

Many businesses currently invest undue resources to avoid unlikely risks that have low historical incidence of occurrence and low cost of remediation, while leaving unmanaged the risks that have historically resulted in all the litigation and other adverse outcomes. For example, some “compliance industry”2 vendors insist that great effort must be expended to carefully list, in the menus or manuals of embedded electronics products, copyright notices for every last copyright holder that contributed to the Free Software included in the product. While nearly all Free Software licenses, including copylefts like GPL, require preservation and display of copyright notices, failure to meet this specific requirement is trivially remedied. Therefore, businesses should spend just reasonable efforts to properly display copyright notices, and note that failure to do so is simply remedied: add the missing copyright notice!

13.3 Understanding Who’s Enforcing

The mismatch between actual compliance risk and compliance risk management typically results from a misunderstanding of licensor intentions. For-profit businesses often err by assuming other actors have kindred motivations. The primary enforcers of the GPL, however, have goals that for-profit businesses will find strange and perhaps downright alien.

Specifically, community-oriented GPL enforcement organizations (called “COGEOs” throughout the remainder of this tutorial) are typically non-profit charities (such as the FSF and Software Freedom Conservancy) who declare, as part of their charitable mission, advancement of software freedom for all users. In the USA, these COGEOs are all classified as charitable under the IRS’s 501(c)(3) designation, which is reserved for organizations that have a mission to enhance the public good.

As such, these COGEOs enforce GPL primarily to pursue the policy goals and motivations discussed throughout this tutorial: to spread software freedom further. As such, COGEOs are unified in their primary goal to bring the violator back into compliance as quickly as possible, and redress the damage caused by the violation. COGEOs are steadfast in their position in a violation negotiation: comply with the license and respect freedom.

Certainly, other entities do not share the full ethos of software freedom as institutionalized by COGEOs, and those entities pursue GPL violations differently. Oracle, a company that produces the GPL’d MySQL database, upon discovering GPL violations typically negotiates a proprietary software license separately for a fee. While this practice is not one a COGEO would undertake nor endorse, a copyleft license technically permits this behavior. To put a finer point on this practice already discussed in  12.2, copyleft advocates usually find copyleft enforcement efforts focused on extract alternative proprietary licenses distasteful at best, and a corrupt manipulation of copyleft at worst. Much to the advocates’ chagrin, such for-profit enforcement efforts seem to increase rather than decrease.

Thus, unsurprisingly, for-profit adopters of GPL’d software often incorrectly assume that all copyright holders seek royalties. Businesses therefore focus on the risk of so-called “accidental” (typically as the result of unsupervised activity by individual programmers) infringe copyright by incorporating “snippets” of copylefted code into their own proprietary computer program. “Compliance industry” flagship products, therefore, focus on “code scanning” services that purport to detect accidental inclusions. Such effort focuses on proprietary software development and view Free Software as a foreign interloper. Such approach not only ignores current reality that many companies build their products directly on major copylefted projects (e.g., Android vendor’s use of the kernel named Linux), but also creates a culture of fear among developers, leading them into a downward spiral of further hiding their necessary reliance on copylefted software in the company’s products.

Fortunately, COGEOs regard GPL compliance failures as an opportunity to improve compliance. Every compliance failure downstream represents a loss of rights by their users. The COGEOs are the guardian of its users’ and developers’ rights. Their activity seeks to restore those rights, and to protect the project’s contributors’ intentions in the making of their software.

1One example is the public outcry over NeXT’s attempt to make the Objective-C front-end to GCC proprietary. RMS, in fact, handled this enforcement action personally and the Objective-C front-end is still part of upstream GCC today.

2“Compliance industry” refers to third-party for-profit companies that market proprietary software tools and/or consulting services that purport to aid businesses with their Free Software license compliance obligations, such as those found in GPL and other copyleft licenses. This tutorial leaves the term in quotes throughout, primarily to communicate the skepticism most of this tutorial’s authors feel regarding the mere existence of this industry. Not only do copyleft advocates object on principle to proprietary software tools in general, and to their ironic use specifically to comply with copyleft, but also to the “compliance industry” vendors’ marketing messaging, which some copyleft advocates claim as a cause in the risk misassessments discussed herein. Bradley M. Kuhn, specifically, regularly uses the term “compliance industrial complex” to analogize the types of problems in this industry to those warned against in the phrase of origin.