Between January 16 and January 23, there was an interesting discussion at the Open Source Initiative (OSI) "license-discuss list." It turns out to be a good name for the list. As noted a few weeks ago, the OSI recently split its license-discuss list from the license-approval list because the group wanted to encourage just such give and take among newbies who had no need to get bogged down in the minutia and inside-baseball that comes into play in OSI license approval. Typically the latter concerns whether a particular company or license is strictly adhering to all 10 OSI commandments, whereas this OSI license-discuss participant just wanted some help getting his company to adopt more open source software (OSS).
The net of it is that his company's "legal department... will not allow any use of GPL'ed software anymore in the company (except Linux)" [GPL, for those just tuning in, is the GNU General Public License, the most "free" of the dozens of different terms and conditions under which open source software (OSS) is licensed.] I saw a similar issue recently (not necessarily exactly the same) when I was "talking to" John Roets of createtank, developers of elemenope. Roets originally made his OSS code available to the world under GPL in 2003 but had to add the Apache license as an option in 2006 because of the objection of a large customer's legal department against GPL.
According to the initial question to the OSI license-discuss list, the guy's legal department says it "is an open question what constitutes/does not constitute distribution. Some consider on-site access/use by contractors to be distribution; and... the Free Software Foundation (FSF) has previously stated that remote access/use by contractors is distribution. The unfortunate part with the GPL is that it defines modifications broadly and, at least under v.2.1 of the GPL, linking to/with other programs whether dynamically or statically, is considered a modification."
The lawyers continued, "The GPL, especially v. 3.0, contains provisions which are adverse to Company X's intellectual property right interests. What constitutes distribution is not clear, which is why internal use does not fully negate some of the more onerous provisions of the GPL (e.g., access/use by non-Company X employees is considered by some to be distribution; remote access by non-Company X employees is considered by almost all to be distribution)."
Among many responses, the OSI discuss-list member got some high-powered OSS guys to respond.
• Oft quoted Dutch patent attorney Arnoud Engelfriet gave the questioner the European Union view.
• Chris DiBona, Google's OSS guru, suggested he ask his lawyers "what they know that Google doesn't." He said Google uses "GPL'd code on our production, internal corporate and shipping on the search appliance."
• Brian Behldenorf, one of the founders of both Apache and Collabnet, weighed in on a finer point of FSF legal history.
This kind of response would be like your asking a question about the rules of golf on golfdigest.com and getting answers from Tiger Woods, Ernie Els and Vijay Singh in a matter of a few hours. Or---coming up on Super Bowl week--asking about some NFL rules and hearing back from Tom Brady and all the Mannings, including Archie.
By the way, although they were all probably involved in writing or approving the GPL and other OSS licenses, the OSS gurus' advice was focused on how to work with the questioner's lawyers. They weren't giving legal advice.
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