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Follow the leader: The FSF sets good examples

When the Free Software Foundation experiences issues like these, it handles them in a quiet, professional manner; rarely does it have to go to court, Ravicher said.

"There is no one-size-fits-all solution to dealing with third parties who may be infringing your copyrights," Ravicher said. "For many people, the Free Software Foundation's procedures for handling GPL compliance matters can be a shining example of both successful resolution of such issues and successful promulgation of free software adoption."

To learn more about what FSF does, one can read articles by Eben Moglen, general counsel of FSF, regarding enforcement of the GPL (Part I and Part II), or attend an FSF seminar offered from time to time that gives an in depth discussion of FSF's GPL Compliance procedures. The process involves registering copyrights, approaching potential infringers in a respectful and discrete manner, and being reasonable and respectful in negotiating compliance, he said.

Balance and integrity: Making money ethically

The most-avoided question we asked our panel of experts was: "How do we balance open source software development with the desire to profit from software?"

Weathersby said, "That is what we're all trying to figure out. Open source software is only part of the total equation. The other part of the equation is your ability to combine, manage and service the program or solution you offer. From a business perspective, open source also demands a competitive economic landscape. Since we're all building with the same pile of blocks, you and I have access to the same basic resources. Your value add is how you put it together, manage it, and especially how you treat your customers."

Miro International paid a lot of money to redesign and recode the Mambo open-source CMS project, and then the company recoded it further to use as a commercial product. The commercial product shares no code with the open source project, a distinction which is necessary to maintain compliance with the licensing that both software packages are under.

"The only benefits Miro gets [by its support of Mambo] are by its association with the Mambo open source project," Lamont said. "Typically this is in the footer of many of the templates and in the header of the Mambo system files. There is usually no confusion about our commercial edition of Mambo CMS and the free Mambo OS, as we carry stories about the differences on both www.miro.com.au and www.mamboserver.com; however, some people opt to have their clients use our commercial version to take advantage of the commercial support we offer. This is the other benefit by association."

Ravicher had some advice on staying out of trouble with the GNU GPL. "In order to not violate the GPL, one either needs to not create a (proprietary and distributed) derivative work of GPL'd software (because doing so without permission of the copyright owner constitutes copyright infringement), or only create independent and separate works (because that is permissible under copyright law without the permission of the copyright holder in the original work). The line between derivative and independent is not clear. For a discussion of that issue, see my article on the subject."

Some people question what constitutes "redistribution" of GPLed software. Certainly you can make whatever proprietary modifications you want to, but you are not allowed to redistribute free software under a different license.

So what is redistribution, in the legal sense? "Redistribution of a copyrighted work is distribution of the work by one to whom it was distributed. Distribution of a work is any transfer (whether for fee or not, or for commercial or non-commercial purposes) of the work from one person to another, with the understanding that corporations are considered persons," Ravicher said.

If you have GPL code and are using it privately, do you have any recourse if someone else creates a derivative work from it and distributes it?

Open Source Initiative attorney Larry Rosen, author of the new book "Open Source Licensing: Software Freedom and Intellectual Property Law," said he "could not imagine any court issuing a judgment against any user of software released under the GPL, as long as the user abides by the rules of the license.

"By definition, all software released under the GPL means that one can assume the work may be copied, distributed, or otherwise modified by any other user," Rosen said. "The creator can't 'GPL' something and then turn around and say, 'I really didn't intend this to be used any other way.' That makes no sense."

Rosen pointed out the five main principles for designating an open source release under the GPL:

• The software may have unlimited usage.
• The user may copy and distribute copies -- as many as desired.
• The user may create derivative works on top of the source code.
• The source code itself can be reused for derivative work.
• The user has the right to combine the open source code with other (proprietary) software to create other derivative works.

Stanford University law professor and Creative Commons chairman Lawrence Lessig, asked what steps a person should take if he or she thinks proprietary code is being used in a free software program or project, replied: "It's very easy to know -- just look. The other way is not easy to know -- impossible for a free software project to know whether its code has been stolen."

What someone should not do when they suspect code misuse is "accuse," Lessig wrote in an email to NewsForge. "Ask first," he said. Lessig also said that "the FSF has begun a process of code authentication. It needs to be generalized."

Final advice and summary

So to sum it all up:

• Provide contact information for your project's leadership or designated liaison for code theft of copyright infringement issues.
• Maintain proper documentation for all contributors and their contributions.
• Assign copyright ownership immediately, preferably all to one person or entity.
• If you suspect code theft or copyright infringement, stay calm and be mature and professional. Have respect for the other party. Do not publish public statements or threats.
• Assume nothing until the code is examined and compared.
• Try to work out the dispute in a reasonable manner.
• If the other party refuses to negotiate, or if legal matters arise, it's time to get a lawyer.
• Don't try to create proprietary derivative works of free software projects and expect to maintain the sole copyright.

If you follow all of this advice, you will have a greater chance of avoiding public arguments and legal battles.

There are some good online resources available. Creative Commons, a two-year-old nonprofit whose board of directors is chaired by Lessig, has as its goal "to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules." Its Web site offers online versions of the GNU GPL, the GNU LGPL, and an application for the Founder's Copyright.

The U.S. Copyright Office has its own Web site with information on copyrighting computer applications. If you want to copyright your own code with the U.S. Copyright Office, you'll need to fill out Form TX and pay a $30 non-refundable filing fee.

One of the most valuable things we learned came from Weathersby. "We, as a community, need to establish a model and venue in which to address these issues," he said. "This entity would serve as an arbitration board, with legal, technological, and mediation experts with binding arbitration powers." Who will step forward to assume this responsibility?

Jem Matzan is the author of three books, a freelance journalist and the editor-in-chief of The Jem Report. Chris Preimesberger is editorial director of IT Manager's Journal and an editor/writer for NewsForge.

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