Some years ago I came across a guy Alexander Terekhov who worked then for IBM and had outspoken views about the viability of the GPL.
If I understood it, his opinion was that the license terms of the GPL would not survive resale, due to the well established
"first sale doctrine" and its EU equivalent
"exhaustion". It basically means that the copyright holder cannot stop you reselling your software, and that the license terms will not apply to the guy receiving it.
I tried to understand this further, but Alexander was not always easy for me to comprehend and had then a habit of linking to his own posts elsewhere to bolster his position, leading to a kind of echo chamber of Terekhovs all nodding vigorously at each other. He also back then and evidently more recently too explained legal decisions that did not fit his understanding by
calling the Judges in question "morons", etc. Well the forum I met him at had a very high trolling quotient so it just joined the rest of the anti-GPL sentiment there for me in the end and I ignored it.
GPL is a license too
But I was reminded of this last night when I read about a recent
decision against Autodesk which is being widely seen as a victory for Joe Softwarebuyer. From the Patry blog post link above:
...many software companies have taken the position that they can convey the copy to the customer in an over-the-counter transaction for a one-time payment, but describe that transaction as a license; as a license, the first sale doctrine doesn't apply, meaning copyright owners can prevent further distribution of the copy...
Doesn't this vindicate Alexander's position? How can GPL terms stick past resale if Autodesk EULA ones don't? Nothing stops "built-in" or "automated" resale to clense software of any licensing restriction.
A lot of people seem to be happy about the paid-for world being freed from license conditions, are they going to be happy if it turns out that everyone is also freed from GPL conditions?
Civil infringement and Punishment
What effect would this have on contribution I wonder. It seems to me the real-world advantages from being active in a project by contributing will still apply. But it will enable private proprietary forking for products, the kind of thing that Harald Welte's
gp-violations.org has had success attacking and punishing to date. Contributors will see their work used in commercial products without the changes being open.
But the BSD folks seem to survive this outrage without it removing their motivation. And from time spent looking at music licensing over the years, I kind of recognize an element of proprietary vindictiveness in gpl-violations... of course the member companies hiding behind the RIAA attacks are also "perfectly within their rights" to embark on much worse vindictive destruction, but they are not entirely dissimilar and that always bothered me.
Playing ball or going home?
Well, this decision is subject to appeal, will only apply to the jurisdiction of that court, etc, so the sky didn't fall in already. But there is quite a bit of harmonization of copyright law thanks to the insistence of rich rightholder companies mainly from the US side. But if this is upheld, it may come to contaminate most Western countries and turn GPL terms in unenforcable noise -- the choices would be in effect public domain or closed.
I guess some people will go closed rather than have their work exploited, but I expect most people will just continue on, and contributions will continue to come perfectly fine. The advantages from being a visible contributor and taking upstream directly are still going to apply, so will the bitrot that happens to any additional code put on top and maintained privately.
Too mature to care?
Maybe now we reached a point that the social, financial, engineering and public advantages from cooperation are ingrained enough that we don't need a license to protect them anyway? But I read this and I feel a sinking feeling about the naivity of such a proposal.
