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Just a reminder, these posts are not legal advice. This site is the personal blog of Mark Radcliffe and the opinions expressed are those of Mark Radcliffe and not those of his clients, DLA Piper or the clients of DLA Piper.

About Me:

Mark Radcliffe

I earned a B.S. in Chemistry magna cum laude from the University of Michigan and a J.D. from Harvard Law School. I have been practicing law in Silicon Valley for over 25 years and am now a senior partner at DLA Piper. DLA Piper is a new global law firm formed in 2005 from the merger of three law firms. The firm now has 3600 lawyers in 25 countries and 65 cities. My practice is a mix of corporate securities and intellectual property. I work with many startups as well as large global companies. I have had the opportunity to work with companies in many industries, ranging from semiconductor to digital media to open source. I am the General Counsel, pro bono, of the Open Source Initiative and I ran the "Users" committee reviewing the GPLv3 draft.

Licensing Shift: Move Toward GPLv3 but away from GPL based Licenses

02/07/09

The most recent Black Duck survey of the use of open source licenses reveals some very interesting trends. http://www.marketwatch.com/story/gplv3-licenses-quadruple-in-2009-but-gpl-projects-drop-by-five-percent-from-2008-levels.

First, GPLv3, the first revision to GPLv2 in twenty years, is increasing in adoption: it is now the fifth most common license, passing Mozilla, MIT and Apache.  However, many large and important projects such as Linux, Hibernate and JBoss have chosen to remain with GPLv2.  According to Black Duck, GPLv3 is growing at four times the rate of last year.  GPLv3 is used on 9500 projects.  These numbers reflect both decisions by new projects as well as existing projects.  However, the decision to remain with GPLv2 has more than strategic dimension: large existing projects need to deal with the practical issues. For example, Linux has over 10,000 contributors and a shift to GPLv3 would require permission from each one of them (or rewriting the code) because Linus Torvalds licensed Linux under a “locked down” version of GPLv2. GPLv2 ,by its terms, permits any recipient of GPLv2 licensed software to shift to a newer version of the General Public License unless the licensor chooses to “lock down” the General Public License to a particular version.  However, even projects which are not “locked down” need to carefully consider this move because the terms of GPLv2 and GPLv3 are inconsistant and a shift to GPLv3 would “fork” the project.

Second, Black Duck notes that the use of GPL license variants declined by 5%. I have not seen this shift in my practice (which is more focused on companies with commercial interests), but I think that it may reflect the greater number of projects being made available by universities (and some corporateions) who are interested in ensuring the widest possible usage and, thus, pick a permissive license like BSD or Apache. Matt Asay has an interesting perspective on this issue http://news.cnet.com/8301-13505_3-10276903-16.html?tag=mncol;title. I don’t agree with him that the licenses are irrelevant, but I do agree that data is a new source of value.  Ironically, data is very difficult to protect under the US legal regime since its protection under copyright is limited.

I am surprised that we have not seen a greater growth in the use of the Affero General Public License v3. This license is the GPLv3 with a “network use” provision.  Essentially, the license broadens the situation in which the GPLv3 obligations (making source code available and right to modify etc) are imposed from distribution (GPLv3) to include making the software available over a network. As we move into a more web centric world, I think that projects (and companies) which are trying to achieve the GPLv3 level of a “commons” need to consider AGPL. However, I will note that for many prospective licensees, the scope of AGPL is very troubling and there is a reluctance to license software using the AGPL software.  For more information about aligning your business strategy and your intellectual property and licensing strategy, you can see by OSBC presentation at http://www.slideshare.net/markradcliffe/ip-and-licensing-strategy-for-open-source-companies

The Black Duck survey continues to provide very useful information about how the industry is evolving.

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