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Freedom and Choice in Open Source Licensing: Comparing the EUPL v1.1 and the GPL v3

Article Source Wazi
June 11, 2009, 2:16 pm

The European Union Public License (EUPL) version 1.1 was released and approved by the Open Source Initiative (OSI) on January 9, 2009. A major milestone in the evolution of open source licensing, the EUPL contains some important distinctions that set it apart from other popular open source licenses: it’s written with native language support for all EU member countries, it’s compatible by design with a number of OSI-approved licenses and — also by design — incompatible with the GNU General Public License version 3.0 (GPL v3). Could this possibly be a message to the Free Software Foundation (FSF) and the open source community that there really is a vital, innovative world outside the borders of the United States?

While members of the open source community often bristle at the mention of yet another license, many people have welcomed this one. The EUPL is unique in its encouragement of interoperability, freedom, and lack of license lock-in upon redistribution. By making specific distinctions, it represents a divergence from the typical freedoms afforded by whatever the latest iteration of the GPL may be.

As noted in the Wikipedia entry for the EUPL, the EU had some specific goals in mind when drafting this license:

“With license proliferation a growing problem, the European Union justifies its license as the first open source license to be released by an international governing body. The European Union also wishes to dispel legal uncertainties, real or perceived, in respect of other open-source licenses, such as the GNU General Public License, by creating a software license which takes due account of European Union Law. A third goal of this license is to create an open-source license available into 22 official languages of the European Union, and is sure to conform to the existing copyright laws of each of the 27 Member States of the European Union. Lastly, to dispel fears of license proliferation, the license was developed with other open-source licenses in mind and specifically authorizes covered works to be re-released under the following licenses: GNU General Public License (GPL) v. 2; Open Software License (OSL) v. 2.1, v. 3.0; Common Public License v. 1.0; Eclipse Public License v. 1.0; CeCILL v. 2.0.”

At the same time, the EUPL tries to take a more international view on the enforceability of an agreement that requires oversight in many jurisdictions. Licenses originating in the United States are derivatives of US copyright law, so as far as they’re concerned international considerations are non-existent. While translations of existing FSF licenses are informative and referential, the US English employed is the only contract language.

Why Should You Care?

Both the EUPL and the GPL v3 are copyleft licenses, so some of you may be wondering whether there are any significant differences between them. Choosing the correct license could be as simple as using the GPL v3 if the software is originated in the US, and the EUPL v1.1 if the software is from Europe. Who really cares?

We do, and here’s why: the EUPL v1.1 is conspicuously missing something that could be fairly significant depending upon which side of the Atlantic you happen to live and work. The GPL v3 is not included in the EUPL’s list of “compatible licenses” under which subsequent works can be re-released — a provision included in the EUPL in order to help fight license proliferation. We agree that license proliferation is a growing problem with open source licenses, but why did the EU specifically exclude the GPL v3 from the list?

One explanation for the EUPL’s purposeful incompatibility with the GPL v3 might involve freedom, and what it means to open source licenses. As copyleft licenses, the aim of both the EUPL v1.1 and the GPL v3 is to free the code from proprietary copyright laws. However, the freedoms provided by the GPL v3 may be limited to the US, and so may not be “free” enough for the global community. For example, is it truly freedom if you’re protected from intellectual property claims, but then forced to use a specific license — one not of your own choosing — to distribute your original work? This may be one of the problems that the EU has with the GPL v3. Once a work is created under the GPL v3, all subsequent works will be licensed under it as well. In contrast, works licensed under the EUPL v1.1 can be re-licensed under any of the different licenses on their compatibility list. Perhaps the EU does not want software created under the EUPL v1.1 to be trapped within the confines of the GPL v3 later.

Here’s something else to consider. The GPL was originally derived from US copyright law, which creates a license bias toward issues unique to the United States. It may very well be that the FSF created their license to be specific to the US software community, but that distances it from the global community. There’s a large world of software developers and users outside of the US, and their concerns are different those of US-based developers and users. It makes sense that they want a license that addresses those differences. Many OSI-approved licenses (including but not limited to the GPL v3) do not address a global audience, and it’s a fair assumption that current efforts like the EUPL are just a hint of what is to come in global or regional licensing outside the US.

By excluding the GPL v3 from compatibility with the EUPL, the European Commission is indirectly pushing out the FSF as a presence in open source licenses in Europe. The GPL v3 is the FSF’s license for the 21st century, and it is now incompatible with what may very well become the predominant license in the EU. As the first license to be released by an international governing body, the EUPL has the potential to become widespread not only in Europe but worldwide. The 22 different languages in which the EUPL v1.1 is released also increase the likelihood that usage will spread quite quickly. Given these circumstances, we think it’s pretty significant that the GPL v3 cannot be merged with any code under the EUPL v1.1.

The Players

EUPL v1.1 and the European Union

The European Union Public License (EUPL) v1.1 was released on January 9, 2009. This license was created by the European Commission, the executive branch of the European Union, and is available in all 22 languages of the EU. The European Union, for those who do not know already, is a union of 27 European countries (called Member States) that was established on November 1, 1993. These Member States joined together for various economic and political reasons. Primarily, the partnership allows for easier commerce and trade among the different countries. The creation of the EUPL is another step in unifying and standardizing the products — in this case software products — that are used within the European Union.

By creating a license in multiple languages, with equal validity for all linguistic versions, the EU has created a framework within which future open source projects in the European Union can work. It’s also worth noting that the EUPL is the first license to be released by an international governing body. The original version (EUPL v1.0) was created on January 9, 2007 and its provisions still account for most of the license. Only seven modifications were made to the original license, and these were included primarily for purposes of clarification. The main revisions in the 2009 version of the EUPL allow for other linguistic versions of the license to be created by the European Union, giving it worldwide distribution potential.

GPL v3 and the Free Software Foundation

The GNU General Public License (GPL) v3 was released on June 29, 2007. It was created by the Free Software Foundation (FSF), which is headed by Richard Stallman. The FSF, which was founded on October 4, 1985, is a US-based, non-profit corporation that promotes the free software movement — an ideology that combats US copyright law to allow for modification and redistribution of software code without restriction. According to Richard Stallman: “The free software movement is not merely personal. It is a political movement like the environmental movement, the civil rights movement, etc.”

The original GPL license was released in January of 1989 and we’ve seen two subsequent versions since then. The GPL v3 is considerably different from the GPL v2 (which makes sense, since the GPL has been around much longer than the EUPL). In each version, the FSF attempts to maintain their values while adapting to the current technological situation. The main revisions and concerns in the GPL v3 involve modern topics such as time-shifting restrictions, Digital Millennium Copyright Act (DCMA) specifics, and “tivoization”.

The Differences - An Overview

The primary differences between the EUPL v1.1 and the GPL v3 can be summarized in the following points:

  • An EU commission created the EUPL license to be enforceable in the native languages of all the member countries.
  • The EUPL‚Äôs defined compatibility with other licenses avoids certain downstream licensing conditions.
  • The EUPL is purposely incompatible with the GPL v3, although it does allow under certain conditions re-licensing under CeCILL v. 2.0, which is GPL v.3 compatible.
  • The EUPL does not contain language on time-shifting restrictions or DCMA-specific language, and it doesn‚Äôt address issues of tivoization.
    • Time-shifting is the recording of programming to a storage medium to be viewed or listened to at a time more convenient to the consumer. Typically, this refers to TV programming but can also refer to radio shows via podcasts.
    • The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes the production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as Digital Rights Management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.
    • Tivoization is the creation of a system that incorporates software under the terms of a copyleft software license, but uses hardware to prevent users from running modified versions of the software on that hardware.
  • The EU‚Äôs license contains none of the GPL‚Äôs explicit (and US-biased) patent language.
  • The EUPL doesn‚Äôt enforce a time limit (like 3 years) for the required distribution of source code ‚Äî it‚Äôs more open-ended. As long as the program is being distributed, the source code will be available.
  • The EUPL appears to be simple, clear, and less restrictive than the GPL v3 license. It reads more like the Apache license than the GPL v3. It‚Äôs simply formatted, with 15 explicit sections that say what needs to be said, and it contains little apparent excess.

Compatible Licenses

According to article 5 of the EUPL, the “compatible licenses” are:

  • GNU General Public License (GNU GPL) v. 2
  • Open Software License (OSL) v. 2.1, v. 3.0
  • Common Public License v. 1.0
  • Eclipse Public License v. 1.0
  • Cecill v. 2.0

Summary

Original work, licensing for redistribution, and freedom are concepts that have legal and financial ramifications throughout the world. With the ever-increasing popularity of open source software and the need to protect such works and their associated freedoms, many open source licenses need to evolve in order to address global — or, as in the case of the EUPL, regional — concerns. The EUPL seems to have adapted to this open source climate and has the potential to challenge the GPL by differentiating on a few important key points:

  • Some people feel that the FSF is too political, and regional users clearly feel that the organization is overly focused on the United States.
  • The EUPL stands up to what some view as prohibitive and confusing constraints of the GPL licenses. Here is a license that appears more friendly to the intention of software openness, without the many constraints (patent, tivioization, US jurisdiction, etc.) that can make licenses too localized, and thus difficult to embrace and support on a broad scale.
  • Lastly, in the EUPL there is no mention at all of money or freedom. Freedom means never having to be told you are free.

The EUPL v1.1 is a legal instrument, simple and clear to interpret, with less baggage than the GPL v3, and with the intent to enforce locally while inter-operating with certain key licenses. As the world increasingly sees the value of transparency in code development, it can be argued that licensing needs to be less about a “movement” and more about the proper identification of rights, restrictions, and obligations for use of third party software.

This brings to the forefront concerns about the complexity of open source licensing, and a need for much more clarity. Perhaps the community needs global license templates that can be used across borders, that will span language and continental gaps while still allowing local enforcement and understanding. The EUPL certainly makes an effort to localize the rules surrounding the freedoms of the use of original work, but we need to go further.

The use of open source software components is a simple idea. Software use is governed by just a few things:

  • Use: personal, redistribution, modification and redistribution, and contribution to the core project.
  • Requirements: maintenance of copyright notice, attribution, indemnification, license-free use of original and included third party work, and availability of source code (not always mandatory, depending on the license).
  • Restrictions: regional, limitations of liability, legal jurisdiction, and time limits.

That’s it. While there are more clauses, and more complex ways to describe it, there are only so many ways that software can be used; the Apache license distinctly describes four, and the GPL v2 does not even reference personal use. It seems that software licensing needs to be simplified into a “representative language” that spans the globe, is legally enforceable, and is clear.

A big distinction here is that usually, when we talk about license proliferation, the discussion focuses on yet another derivation of US copyright law in the form of another license written and enforceable only in the US English language. Open source licensing needs to surpass the US English language barrier and address a global audience of users. Real freedom will happen when original works can be shared, with constraints and conditions, in a way that can be understood by users and enforced by courts in all parts of the world. For the global future of open source software, fewer licenses are better, but one license best.

The EUPL shows that by using compatible licenses, a simple message can be communicated, a broader scope of freedoms can be encouraged, and developers can be provided an “out”. It’s our guess that more OSI-approved licenses will eventually evolve to include a compatibility clause like that in the EUPL v1.1, which allows developers to take their code and get away from the current license if they’re unhappy with the way things are going. It remains to be seen if the FSF will embrace this degree of freedom in the future.

Is freedom just another word? No, freedom is choice. And while licensing choice is baked into the EUPL v1.1, it’s not currently afforded to developers modifying GPL v2 and GPL v3 licensed software.

References and Credits

Licenses

EUPL 1.1 — http://ec.europa.eu/idabc/eupl
GPL v3 — http://www.gnu.org/licenses/gpl-3.0.html

Software patents

http://gpl3.blogspot.com/2008/08/gpl-project-watch-list-for-week-of-0822.html

US Copyright

http://gpl3.blogspot.com/2008/06/gpl-project-watch-list-for-week-of-0613.html

Jacobsen: Copyright Case

http://gpl3.blogspot.com/2008/10/gpl-project-watch-list-for-week-of-1010.html
http://gpl3.blogspot.com/2008/01/gpl-project-watch-list-for-week-of-0125.html

The Research Group

The Research Group collects and manages data regarding software policy management, open source licenses, and global software vulnerability management issues. Data and references for this article were researched by Ernest Park and Antony Tran. The Research Group actively takes submissions regarding stories, FOSS issues, and project announcements, and we are grateful to the hundreds of core contributors who have devoted their time and resources at helping us provide up-to-date information. The Research Group has hosted over 80 interns in the last year from the leading schools in the United States. To submit stories and announcements, receive more information on products, or inquire about internships, please write to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Ernest Park
Ernie Park is a senior technology professional specializing in information about free and open source software, license and software usage and proliferation, and the creation and management of FOSS usage policy. He has delivered significant innovations specific to the use and identification of FOSS within enterprise environments, and he is also an advocate for the development and maintenance of policies for the use of FOSS. Currently employed as an independent consultant specializing in software risk management, Ernie is also an active writer and contributor to thought leadership within the FOSS community. His writing can be found on sites including FOSSBazaar, The Open Source blog, and the GPL3 blog.

 

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