The Daemon, the GNU and the Penguin

~ by Peter H. Salus

Excursus: The GPL and Other Licenses

A license is formal permission for something. In general, this is written permission. Historically, such things began with (unwritten) permission to "go upon or use the land of another" -- to cross a lord's manor or forest, for example -- as a "personal privilege, not constituting an interest in the land."

Copyright is a form of an exclusive license. It is a license granted by the state to the "author," granting them a monopoly on certain activities for a time. The first copyright statute was the Statute of Anne, usually cited as 1709. (As with almost everything, the date is ambiguous: the Statute was introduced in 1709, but "passed into law" on 10 April 1710. The actual publication of the Act [BL 8 Anne c. 19, 261] is just headed "Anno Octavo." But, as the eighth year of Anne's reign terminated on 17 March 1710, contemporaries must have thought of the statute as dating from 1709. On the other hand, Adam Budd [TLS 15 July 2005, p. 24] calls it "The Copyright Act of 1710.")

At any rate, the Statute required booksellers to record their titles in the Stationer's Register to gain protection for their "literary property." All registrations stem from this. 1

In addition to copyright, the law recognizes patents and trade secrets (as well as trademarks, service marks, and "trade dress"), insofar as intellectual property rights are concerned. Until a few years ago, it was generally held that patents needed to be capable of physical instantiation. In 1997, patents on "business methods" were recognized. The next year, Amazon.com filed for a patent on "one-click" purchasing. In 2005, the battle over software patents is still being fought, while interpretations of what is allowed seem to be expanding.

There is no formal filing where trade secrets are concerned, although there are recognized steps you must take to protect your secrets, and most lawsuits have concerned improprieties: breach of contract and outright theft, for example. Attempting to keep the knowledge secret (think of the famed Coca-Cola recipe) is basic here.

To all effects and purposes, software licensing began when UNIX was ported to the Interdata 7 (in Australia) and the Interdata 8 (at BTL). Prior to that, an OS ran only on the machine with which it was sold or, in the case of UNIX, on the PDP-11. (And, if you were running UNIX and had the misfortune to call DEC service, they would tell you they "didn't know" about the alien system.)

The first "open source" license was that of the University of California at Berkeley (I will not distinguish between "free" and "open" source at this time). It came about through an active belief in academic freedom -- the right to examine and investigate.

As has been related earlier, the specific impetus given to Stallman to write the original version of the GPL was the refusal of LISP Machines to share their code.

Though there are now over 500 variants of Free and Open Source licenses, more than fifty of them recognized by the Open Source Initiative (OSI), they all trace their roots to the BSD and the GPL licenses. And, actually, I see both of these as having a common origin in the concept of "the right to tinker."

My guess is that there is no one reading this whose childhood is not littered with the parts of alarm clocks, toy trains, toasters, robots, radios, etc. (Yes, there is always an extra screw, gear or spring.) Part of learning how things work is taking them apart and reassembling them (or attempting to). Part of learning is destructive analysis.

And that tinkering leads to improvements.

Both the BSD and the GPL are founded in the notion that opening source code to examination leads to extensions and improvements that can subsequently be reincorporated into future code.

But proprietary software (and hardware) doesn't permit that.

In fact, as Professor Edward Felten has repeatedly pointed out, the Digital Millennium Copyright Act (DMCA), specifically criminalizes tinkering. It has been alleged it also criminalizes, for example, access to no-longer-current Web pages. The Wayback Machine has just been sued by Healthcare Advocates for retaining archived pages. While the courts may dismiss the suit, its very presence is chilling.

In Prokofiev's "Peter and the Wolf," the wolf, in his haste, swallowed the duck whole. In their headlong run to "protect" everything, the US Congress more or less did the same with the DMCA Title V, sections 1301-1332. The result has been extreme interpretations, leading to vexatious lawsuits, such as the attempt, happily failed, to extend the DMCA to cover garage door openers.

While the excesses of the large media-producing companies are many, this "slop-over" into other areas was, I'm sure, unintentional. However, the DMCA in the US and its proposed parallel in Canada, and its support by WIPO, are having truly stultifying effects on research and development.

For details on the variety of Open Source licenses, see Rosen's superb book on the subject.2 However, I'd like to mention some things I believe make a few licenses beyond the GPL and the New BSD licenses important.

"Free as in freedom."

1 Anyone interested in the history should read Ronan Deazley's On the Origin of the Right to Copy (Oxford, 2004).

2Lawrence Rosen, Open Source Licensing, Prentice Hall PTR, 2005.