Software Sharing Through New Licensing Model
Nicole James
Nicole James, an associate with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, in Nashville, Tennessee, can be contacted at lnjames@bakerdonelson.com.

Computer software can be copied and reproduced for very little cost. The source code of proprietary software (or closed source) is hidden from the public to prevent reproduction or resell, e.g., Microsoft operating system. Open source software, on the other hand, is made available to the general public with either relaxed or nonexistent copyright restrictions. Open source code is embedded in many products, such as handheld devices, portable music players, digital video recorders, and home security systems.
One of the most commonly used open source licenses is the GNU General Public License (GPL) ( http://www.gnu.org/licenses/gpl-faq.html). The GPL is “free” not in terms of cost but because a recipient is “free” to copy, modify, and distribute any software that is subject to the GPL. Anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. For example, with a GPL license, you can install the software on as many machines as you want, and you can make copies of the software and give it to as many people as you want. This file sharing between users is useful for business collaboration. However, attorneys should caution their clients to seek legal advice before making use of any GPL source code, particularly if the client does not intend for the end-product to be open source software.
On June 29, 2007, version 3 of the GPL (GPLv3) was released. The GPLv3 is the first update to the license since 1991 and has a broader scope than the previous version. The previous version of the GPL did not permit developers to add or remove terms of the license. Under GPLv3, a licensor may modify certain terms that disclaim warranties, preserve notice, impose limits on the use of past licensors and authors for publicity purposes, or require licensors to disclaim or indemnify the original license grantors. Specifically, the GPLv3 protects users from patent litigation and from certain technological developments.
Whenever a user conveys software covered by the GPL that he or she has written or modified, the user must provide every recipient with any patent licenses necessary to exercise the rights that the GPL gives them. If any licensee tries to use a patent suit to stop another user from exercising those rights, that individual’s license will be terminated. This allows users and developers the ability to work with the GPLv3-covered software without worrying that another contributor will try to sue them later for patent infringement.
The GPLv3 also changed the provisions of version 2 of the license that pertain to tivoization (discussed below). The GPLv3 requires that the user be provided with whatever information or data is necessary to modify that software. Such information may include a set of instructions, special data such as cryptographic keys, or information about how to bypass integrity checks in the hardware. The requirement to provide all necessary information or data needed to make modifications only applies to products that are expected to be used by consumers.
The GPLv3 prohibits the practice of providing the source code for GPL-covered software in compliance with version 2 of the GPL but not giving the user the freedom to modify the software. This practice is known as tivoization. Some users assert that tivoization is fundamentally inconsistent with the purpose of the GPL, which is to provide users the freedom to change the software and to protect that right. One of the reasons GPLv3 is widely debated is the addition of the anti-tivoization provisions.
Despite benefits that the GPLv3 may provide, commercial software vendors and individual software developers that use open source code may hesitate to use GPLv3 licensed code because of the updated tivoization provisions. On the other hand, vendors and their customers that reuse source code to create modifications in order to provide features that were originally not included may benefit from the updates because all information that is necessary to make modifications will be provided. This allows the user flexibility, whether the company uses the modifications internally or when incorporating such modifications into products that are marketed to its customers. The addition of the anti-tivoization provisions may be undesirable for companies that want to maintain some control over the use of their products. A company may need to maintain control to keep its products standardized to minimize the difficulty in servicing the product or to reduce competition.
Proponents of the GPLv3 assert that the updated version only provides clarification and serves to prohibit others from taking away the rights that the license already provides—whether through patent law or technological developments. Others assert that the legal and market impact of GPLv3 is uncertain. Before your clients shift to this new licensing model, you should analyze the effect that the updates may have on your client’s business and ensure that the updated GPL is in line with your client’s business model. You should ask questions that will help the client maximize the productivity of using open source while minimizing any potential risks. For example, how will the client use the source code? What type of products will include open source code? Will the open source code incorporate the client’s trade secrets or proprietary materials?
 
 
 
 
 
 

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