December 11, 2006

Could Congress Abolish the GPL?

The GPL is based on a license contract that is imposed upon those who copy GPL materials.  Those materials are covered by a copyright that allows the author(s) to sometimes (but not always) say "no" to those who wish to make copies unless the copier agrees to a the license contract.

(Those who think that the GPL is anti-copyright are wrong - the GPL is very firmly grounded on the concept of strong copyright and the power of authors to leverage that copyright to dictate the terms under which those copies may be used.)

There is usually no actual meeting of the parties; the contract comes into existence because we tend to assume that the person making the copy agrees to the license because to do otherwise would be making a copy without the permission of the author(s.)

The Supreme court has made it abundantly clear that Congress has very broad discretion to define how to shape and apply the copyright power granted to Congress by the US Constitution.  Congress also has the power to establish the jurisdiction of the US Federal courts.

One thing that sets open source based materials apart from more traditional works is that open source works are often the result of many hands applied many times over a period of time.  Even with good source code controls it can be hard to say with precision who authored what part.  And, perhaps more importantly, the contribution of many of the authors may be small, and the contribution of other authors, even if large, may be spread over many small changes spread over a long period of time.  In other words, the composit open source work is really a myriad of small works of many authors and many dates.

When someone is accused of copying a traditional work, that work is usually the product of a small and easily identified group of authors.  Such a group may be hard to define for an open source work.  And even if that group can be defined, the contribution of each author may be small and made through many distinct acts of authorship or reorganization of code previously authored by earlier contributors.

Suppose Congress were to amend the US copyright laws so that the right of copyright were limited only to those authors that could show clear authorship of substantial parts of a work?

If the US copyright laws were amended in this way, would this make the GPL enforceable only by a few of the authors rather than by any author?

Suppose Congress were to take a further step and deny protection to works that were created through the kind of open, collaborative, incremental development process that is the hallmark of open source?  I imagine that wordsmithing such a provision could be hard, particularly given that Congress probably would not try to remove copyright from materials produced by many hands over many years in by hired corporate programmers (I wonder if the existing for-hire rules may already resolve this.)  But hard does not mean impossible - I do not doubt that with effort Congress could draft language that embodied such distinctions.

I sense that the GPL advocates, because of their enthusiasm, indeed their almost fanatic zealotry, could drive the equally fanatic, but far better organized and far more wealthy, zealots of the intellectual property industry to use their considerable powers to persuade Congress to amend the copyright laws to cripple the GPL.

I have concern that GPLv3 might be the match that could ignite this kind of reaction.

Posted by karl at December 11, 2006 1:00 AM