Using GPL Software in for-profit companies (a response)

This post is a response to Edmund J. Walsh, who writes at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202421869652 :

Mr. Walsh, I believe the tone of your article is misleading, as it at best makes some incorrect assertions.

First, as you are probably aware, the GPL does not preclude the use of open software by for-profit companies. Nor does the license interfere with the distribution of free software. The important point which your article initially glosses over (although it comes back to this later) is that the problem comes when a for-profit company modifies free software, distributes the modified version, and refuses to distribute the modifications. This is precisely the behaviour for which Verizon and others have been accused. Except for the AfferoGPL, all other uses (including modification) are fine even by for-profit companies. So in fact these freedoms do accrue to the users not the software. In particular, this assertion is misleading at best: “Any activity that leverages software for business advantage is likely to restrict the software’s freedom, and the growing use of open source software by for-profit companies has been a growing irritant for free software advocates”, since the opening phrase is not true (“Any activity…”).

Second, your assertion that “Running commercial Web services using open source software without releasing source code has also caused consternation in some quarters” is tangential at best. While there may be “consternation in some quarters”, this is not an issue with the GPL and is a red herring. It adds to the negative tone without improving the reader’s understanding of how for-profit companies may be affected by the GPL.

Finally, you make an unsubstantiated assertion with “The next legal fight could be an attempt to force release of proprietary server code due to some part of the output of the server constituting a ‘work’ generated by open source components on the server”. The cases that I know of which involve GPL code embedding parts of itself in derivative “works” have been analyzed and resolved in favor of the user; the user is free to distribute those derivative works without being required to license them in any particular way (GCC, Bison, Flex, etc.). Unless you can provide an example to back up your assertion, you’re at best using this statement to sow fear, uncertainty, and doubt about the ability of for-profit companies to use free software.

Perhaps the best counter-argument to your article would be to simply point to Google and their use (and extension, maintenance, and in some cases distribution) of GPL-licensed and other free software. Clearly their own legal department have determined that they can use free software to create huge business value. I think it’s unclear that your article provides any new or relevant information which would cause their counsel to re-think their model or their use of free software.