On November 27, Red Hat, IBM, Google, and Facebook announced that they would give infringers of their GPL software up to a 30-day hold-off period during which an accused infringer could cure a GPL violation after one was brought to their attention by the copyright holder, and a 60 day “statute of limitations” on an already-cured infringement when the copyright holder has never notified the infringer of the violation. In both cases, there would be no penalty: no damages, no fees, probably no lawsuit; for the infringer who promptly cures their infringement. I’ll discuss this in a question-and-answer style:
Q: Does this change any court case involving the GPL that is presently in progress? A: No. Red Hat, IBM, Google, and Facebook are not known to be involved in any recent cases of enforcing their copyrights on any software under the GPL license. Red Hat once suggested that it could enforce the GPL against patent aggressors, but I am not aware of any cases in which they have done so.
Q: Does this change the way that GPL license on Linux or any Open Source program will be enforced? A: That’s unlikely. It is not in the interest of those four companies to become involved in enforcement of the GPL license in the future. Thus, their promise to allow an infringer to cure their infringement within certain time limits is irrelevant. Red Hat and IBM would rather sell Linux systems than make their customers afraid by bringing lawsuits. Google and Facebook have bigger fish to fry.
Q: Does anyone else have to provide the same time limits? A: No. The companies involved in the announcement are not the entities that bring GPL enforcement lawsuits. There are thousands of copyright holders in the Linux kernel who could theoretically bring a lawsuit, and perhaps one hundred thousand authors of GPL-licensed software other than Linux (but which might be included as part of a typical Linux system). None of those parties are compelled by today’s announcement. But in general those parties have been voluntarily waiting much longer for infringements to be cured without penalties.
Q: Does their announcement comply with the Principles of Community-Oriented GPL Enforcement drafted by the Software Freedom Conservancy? A: Sort of. It’s obviously inspired by them and by a previous announcement by the kernel team which is also inspired by SFC’s principles but doesn’t mention them. The Open Source developer community in general doesn’t just wait 30 days for an infringer to cure their infringement without any penalties. Historically, they’ve waited much longer and the community principles do not specify any particular duration. The infringements of some of my compliance customers would have been impossible to resolve in just 30 days. Some cases have been settled quietly after more than a year in progress, without any cost, or perhaps only a reasonable compliance auditing fee. One of my customers, a Fortune 100 company, was asked to pay $5000 in auditing fees in resolution of a GPL infringement in a Billion dollar product line. Current infringers may be asked for more simply because these cases are expensive to pursue, but in general the community prioritizes compliance over income and does not ask for huge damages as a company in the proprietary software industry would.
Q: Why was today’s announcement made? A: The companies are concerned by one person, Patrick McHardy. I have no personal knowledge of this, but attorney Heather Meeker has documented it. It is said that he has brought about 50 copyright infringement claims regarding the Linux kernel, with intent to collect income rather than simply obtain compliance with the GPL license. Pretty much everyone in the Open Source community and the companies involved all object to this behavior. Me too. But as far as I can tell, it’s McHardy’s legal right to bring such claims regarding the copyrights which he owns, even if it doesn’t fit Community Principles which nobody is actually compelled to follow. The big companies and community members (and I) wish to discourage McHardy and other parties who might wish to become “copyright trolls” in a similar style and exact damages out of unintentional infringers of GPL-liccensed and other software.
Q: Did the Linux Kernel Team make a similar announcement to that of the four companies? A: Yes. Here’s what they had to say. It is probable that in the future the kernel team will stop accepting contributions from people who don’t sign on to the policies at that link. They have presently excluded Mr. McHardy from the kernel team. But it’s important to note that there is lots of existing work in the kernel by copyright holders who are not required to comply with those principles, and the copyright holders all of the GPL software other than the kernel (a larger body of software than the kernel by far) are not required to comply with those principles.
Q: Is it true that the principles the four companies announced today are taken from the GPL 3 license, but they are applying them to GPL 2? A: Yes. If your software is under GPL 3, the same waiting periods that the four companies have promised are required. Thus, it is ironic that when originally presented with the opportunity to apply the GPL 3 to Linux, Linus Torvalds and the Kernel team were quite hostile about it, while the kernel team’s recent announcement attributes the principles they have adopted to the text in GPL 3. Perhaps they’ve learned something since those hostile moments.
Q: I have more questions. A: Send them to bruce at perens dot com.