gated in 1989 (“GPLv1”);[1] Version 2, in 1991 (“GPLv2”);[2] and Version 3, in 2007 (“GPLv3”).[3] The various versions of the GPL do not displace or supersede one another, and authors of FOSS works may select earlier versions of the GPL if those versions better reflect their intent.[4]
Although a FOSS author’s use of the GPL effectively places the software into the commons, thereby making it available for copying and modification, GPL-licensed software is not in the public domain.[5] Rather, all GPL-licensed software is copyrighted.[6] The Preamble of GPLv3 includes
- ↑ See GPLv1, supra note 17.
- ↑ See FSF, GNU General Public License, Version 2 (1991), available at http://www.gnu.org/licenses/old-licenses/gpl-2.0.txt [hereinafter GPLv2].
- ↑ See FSF, GNU General Public License, Version 3 (2007), available at http://www.gnu.org/licenses/gpl.html [hereinafter GPLv3]. For a review of the drafting process that produced the GPLv3—a distributed, international endeavor conducted over the Internet—see Christopher M. DiLeo, Comment, “Bazaar” Transnational Drafting: An Analysis of the GNU Public License Version 3 Revision Process, 10 San Diego Int’l L.J. 193 (2008).
- ↑ A division presently exists within the FOSS community between authors who are migrating to GPLv3 and those who are continuing to license their works under GPLv2 due to certain new conditions added in the GPLv3, such as a broadened patent-licensing clause and a restriction on the use of GPL-licensed code in digital rights management technologies. See Andrés Guadamuz-González, GNU General Public License v3: A Legal Analysis, 3 SCRIPTed 154 (2006) (critically reviewing changes introduced in GPLv3); see also Kumar, supra note 50, at 3 n.14 (quoting Linus Torvalds explaining why he will not adopt GPLv3 for the Linux kernel). But cf. Perens, supra note 31 (downplaying significance of GPLv2-versus-GPLv3 rift). The new provisions introduced in the GPLv3 are important to a full understanding of the tradeoffs entailed by the license in practice, but will not be further considered herein.
- ↑ See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1198 (11th Cir. 2001) (“[s]oftware distributed pursuant to [the GPL] is not necessarily ceded to the public domain”); Brian W. Carver, Share and Share Alike: Understanding and Enforcing Open Source and Free Software Licenses, 20 Berkeley Tech. L.J. 443, 469–70 (2005) (summarizing German court ruling rejecting claim that GPL effectuated a waiver or abandonment of copyright); Natalie Heineman, Computer Software Derivative Works: The Calm Before the Storm, 8 J. High Tech. L. 235, 262 (2008) (“Calling source code ‘open’ or ‘free’ under the GPL or its equivalent may give the false impression that the copyright owner has waived her copyrights in the work, thereby releasing the work into the public domain.”); Joseph Scott Miller, Allchin’s Folly: Exploding Some Myths About Open Source Software, 20 Cardozo Arts & Ent. L.J. 491, 496–97 (2002) (“In sharp contrast to placing a piece of software into the public domain by utterly disclaiming copyright protection, using a free software license such as the GPL prevents downstream recipients from using the software to create new programs for distribution under a closed source approach.”); cf. supra note 40 (recognizing other authorities that distinguish contractually constructed information commons from public domain).
- ↑ Issues surrounding the scope of copyright protection for software lie outside the present inquiry, but would necessarily complicate any actual case involving possible infringement of a GPL-licensed FOSS work. See, e.g., Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 701–12 (2d Cir. 1992) (developing analytical methodology for identifying and excluding unprotectable elements of work in software copyright infringement case); Pamela Samuelson, Why Copyright Law Excludes Systems and Processes From the Scope of Its Protection, 85 Tex. L. Rev. 1921, 1961–73 (2007) (reviewing history of copyright protection for software and significance of 17 U.S.C. § 102(b) (2006)).
Software Search, http://sourceforge.net/search/? (last visited Mar. 28, 2010) (listing number of projects by license status under “License” heading in left margin). A further 18,000 projects were available under the LGPL license (discussed infra notes 76–79 and accompanying text) and 12,000 under BSD-style licenses (discussed infra notes 80–88 and accompanying text). See id.; see also Sapna Kumar, Enforcing the GNU GPL, 2006 J.L. Tech. & Pol’y 1, 3 (“Between sixty-five and seventy percent of open-source software is GPL-licensed.”).
