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In Defense of The GPL

The GPL is the most widely used open source license on Earth, yet it has never been tested in a U.S. courtroom.

That's not to say that alleged GPL license violations aren't already hitting the country's judicial system. In fact, the Software Freedom Law Center (SFLC), a pro bono legal firm assisting open source projects, has filed three different actions concerning the GPL this year. Two of those lawsuits came just last week.

The ultimate impact of these actions could well serve to either spurn or spawn even greater open source adoption, industry observers say.

All three suits involve violations with the codebase for BusyBox, a collection of UNIX utilities that have been optimized for size and are most commonly used in embedded environments.

The GPL is a reciprocal license and requires that users make the source code available to end users. In a pair of suits filed Nov. 19 in New York, the SFLC alleged that two companies, Xterasys and High-Gain Antennas, illegally distributed BusyBox without the source code.

In October, the SFLC settled an earlier lawsuit that had made similar claims against Monsoon Multimedia.

"BusyBox is the first client we've had who asked us to do this on their behalf," SFLC Legal Director Dan Ravicher told InternetNews.com. "This is because most clients, including BusyBox, do not want to go to court. Rather, they'd much prefer to resolve the matters privately and directly."

Ravicher added that the SFLC contacted both Xterasys Corporation and High-Gain Antennas and tried to settle privately, but failed to reach an agreement.

"We were forced to execute on our final option, litigation," Ravicher said. "No answer has been filed by either party in court. We have received initial communications from both parties, though."

Neither Xterasys nor High-Gain Antennas were immediately available for comment.

The suits filed in each of the three cases do not actually list GPL violation as the complaint. Rather, they cite copyright infringement as the alleged offense.

"The GPL is a license, granted by a copyright holder, which allows you or anyone else to copy, modify and redistribute the licensed software under certain terms and conditions," Ravicher said. "If you don't comply with those terms and conditions, then you have no license. If you have no license, you are violating the copyrights of the copyright holder."

As a result, the SFLC charges that even though the GPL is a license for free software, it doesn't mean that the developers lack copyright protections.

The growing number of suits filed by the group in support of that stance could mean greater prominence for the GPL, according to some industry watchers.

Illuminata Analyst Gordon Haff, for instance, said that publicized cases like the SFLC's actions on behalf of BusyBox could improve compliance.

"It will tend to increase awareness of the obligations attached to open source software for those who aren't complying out of ignorance," Haff told InternetNews.com. "And, for those not complying because they don't see any consequences, this also shows that there can be consequences."

On the other hand, those consequences could potentially scare some away from using open source, he added.

"If people get the impression that even inadvertent license violations will get them involved with lawyers, you could well see some making the call that it's safer to stay away from open source," Haff said.

Ravicher, however, said it is not yet clear whether the BusyBox litigation has had a measurable impact on proper GPL usage or caused potential violators to clean up their acts.

"There are too many factors at play to be able to reasonably allocate behavior to one thing," he said. "I am not aware of anyone saying that our activity has had an impact on their behavior."

In any event, Ravicher added that the SFLC is interested only in protecting and preserving the interests of its clients, rather than provoking confrontation.

"Everything we do for a client is for their best interest and with their direction," Ravicher said. "I am not aware of any evidence that would support a claim that we are itching for a fight."