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Packaging Open Source, by Mark Webbink

By Pamela Jones et al.

There is an article by Mark Webbink, Esq., "Packaging Open Source", in the International Free and Open Source Software Law Review, Vol 1, No 2 (2009) that I think you'll find interesting. It compares various FOSS licenses and how they handle compilations and collective works. The context of the article is specifically packaging Linux with an application into a software appliance, but the descriptions of the licenses and how they work are broadly useful in other contexts as well. I am republishing the article here because many of you face choices about what license you will use on your works, so you also need to understand, and others of you are lawyers who would like to understand FOSS licenses better.

Mark was at Red Hat and is now Visiting Professor of Law and Executive Director of the Center for Patent Innovations at New York Law School. He's also on the board of the Software Freedom Law Center. So whether you are a lawyer trying to understand FOSS licenses or a programmer trying to decide what license to use on your work, X marks the spot. The article is also available as a PDF.

I couldn't help but notice the part that SCO lawyers apparently didn't understand about GPLv2:

Finally, GPLv2 does not include an express patent license grant. Rather, in Section 6 the GPLv2 makes clear that no other restrictions can be imposed on recipients, which would include any restriction arising from a patent held by the distributing party. In section 7 the GPLv2 makes clear that, if conditions are imposed on the distributing party that would interfere with the rights granted under the license, the distributing party is not to redistribute the software.

Hence, as I read it, their SCOsource license, which purported to restrict rights previously granted by the GPL, was in violation of GPLv2, and SCO was not allowed to redistribute Linux, but it did, repeatedly. Even lawyers misunderstand FOSS licenses sometimes, but in the end, it costs you, so it's worthwhile to take the time to learn how the licenses work if you plan to benefit from the software attached to the license.

You will also note that I am not alone in finding the Artistic License, the one that is in the toy trains litigation, an unholy mess, or as Webbink more tactfully puts it:

It is worth noting that the Artistic License, version 2 does not appear to be widely used at this time, and perhaps for good reason. I have included it here to indicate another variation in approach and to demonstrate the need for careful drafting.

OSI, in my view, was derelict is approving the first version, and it ought to remove all versions from any approved list before it causes more trouble.

Full post as published by Groklaw on February 04, 2010 (boomark / email).