The Open Source Alternative: Understanding Risks and Leveraging Opportunities

Chapter 14. The Border Dispute of GPL2

Defining the Border Dispute

There is one central, crucial question of GNU General Public License version 2 (GPL2) compliance whose importance to commercial developers eclipses all others, the question that I refer to as the border dispute. The "border" at issue is that between a "work based on the Program" and everything else.

As we know, the GPL is a hereditary license whose copyleft provisions apply to the original work (the "Program") and works "based on the Program." However, what constitutes a work based on the Program, and is thus covered by GPL, versus a new work can be very difficult to determine.

Resolving this border dispute is crucial to developers of proprietary technology products. Before I explain why this is so, it is worth observing who is not concerned. Mere users of GPL materials are not concerned about this issue. The boundary dispute matters only when you are concerned about the obligation to lay open source code in distributions. The reason is because the copyleft obligations of the GPL attach only to code that is distributed,^[178] not to code that is merely used.

On the other end of the spectrum, companies using a pure open source business model are not concerned either, because the hereditary nature of the GPL does not compromise their goals. They release all code in open source format because they want to, not because they must. But this is a relatively small constituency. Of all the companies today using free software in ...