\chapter{GPL Version 3: Background to Adoption}

\textbf{\textit{\large{by Richard Stallman and Eben Moglen}}}

\smallskip

The GNU General Public License (``the GPL'') has remained

unmodified, at version level 2, since 1991.  This is extraordinary

longevity for any widely-employed legal instrument.  The durability of

the GPL is even more surprising when one takes into account the

differences between the free software movement at the time of version

2's release and the situation prevailing in 2005.

Richard M. Stallman, founder of the free software movement and author

of the GNU GPL, released version 2 in 1991 after taking legal advice

and collecting developer opinion concerning version 1 of the license,

which had been in use since 1985.  There was no formal public comment

process and no significant interim transition period.  The Free

Software Foundation immediately relicensed the components of the GNU

Project, which comprised the largest then-existing collection of

copyleft software assets.  In Finland, Linus Torvalds adopted GPL

Version 2 for his operating system kernel, called Linux.

That was then, and this is now.  The GPL is employed by tens of

thousands of software projects around the world, of which the Free

Software Foundation's GNU system is a tiny fraction.  The GNU system,

when combined with Linus Torvalds' Linux---which has evolved into a

flexible, highly-portable, industry-leading operating system kernel

--- along with Samba, MySQL, and other GPL'd programs, offers superior

reliability and adaptability to Microsoft's operating systems, at

nominal cost.  GPL'd software runs on or is embedded in devices

ranging from cellphones, PDAs and home networking appliances to

mainframes and supercomputing clusters.  Independent software

developers around the world, as well as every large corporate IT buyer

and seller, and a surprisingly large proportion of individual users,

interact with the GPL.

During the period since 1991, of course, there has developed a

profusion of free software licenses.  But not in the area covered by

the GPL.  The ``share and share alike'' or ``copyleft'' aspect of the

GPL is its most important functional characteristic, and those who

want to use a copyleft license for software overwhelmingly use the GPL

rather than inventing their own.

Updating the GPL is therefore a very different task in 2005 than it

was in 1991.  The substantive reasons for revision, and the likely

nature of those changes, are subject matter for another essay.  At

present we would like to concentrate on the institutional, procedural

aspects of changing the license.  Those are complicated by the fact

that the GPL serves four distinct purposes.

\section*{The GPL is a Worldwide Copyright License}

As a legal document, the GPL serves a purpose that most legal drafters

would do anything possible to avoid: it licenses copyrighted material

for modification and redistribution in every one of the world's

systems of copyright law.  In general, publishers don't use worldwide

copyright licenses; for each system in which their works are

distributed, licensing arrangements tailored to local legal

requirements are used.  Publishers rarely license redistribution of

modified or derivative works; when they do so, those licenses are

tailored to the specific setting, factual and legal.  But free

software requires legal arrangements that permit copyrighted works to

follow arbitrary trajectories, in both geographic and genetic terms.

Modified versions of free software works are distributed from hand to

hand across borders in a pattern that no copyright holder could

possibly trace.

GPL version 2 performed the task of globalization relatively well,

because its design was elegantly limited to a minimum set of copyright

principles that signatories to the Berne Convention must offer, in one

form or another, in their national legislation.  But GPL2 was a

license constructed by one US layman and his lawyers, largely

concerned with US law.  To the extent possible, and without any

fundamental changes, GPL3 should ease internationalization

difficulties, more fully approximating the otherwise unsought ideal of

the global copyright license.

\section*{The GPL is the Code of Conduct for Free Software Distributors}

Beyond the legal permission that the GPL extends to those who wish to

copy, modify, and share free software, the GPL also embodies a code of

industry conduct with respect to the practices by which free software

is distributed.  Section 3, which explains how to make source code

available as required under the license, affects product packaging

decisions for those who embed free software in appliances, as well as

those who distribute software collections that include both free and

unfree software.  Section 7, which concerns the effect of licenses,

judgments, and other compulsory legal interventions incompatible with

the GPL on the behavior of software distributors, affects patent

licensing arrangements in connection with industry standards.  And so

on, through a range of interactions between the requirements of the

license and evolving practices in the vending of both hardware and

software.

The Free Software Foundation, through its maintenance and enforcement

of the GPL, has contributed to the evolution of industry behavior

patterns beyond its influence as a maker of software.  In revising the

GPL, the Foundation is inevitably engaged in altering the rules of the

road for enterprises and market participants of many different kinds,

with different fundamental interests and radically different levels of

market power.  The process of drafting and adopting changes to the

license must thus approximate standard-setting, or ``best practices''

definition, as well as copyright license drafting.

\section*{The GPL is the Constitution of the Free Software Movement}

The Free Software Foundation has never been reluctant to point out

that its goals are primarily social and political, not technical or

economic.  The Foundation believes that free software---that is,

software that can be freely studied, copied, modified, reused,

redistributed and shared by its users---is the only ethically

satisfactory form of software development, as free and open scientific

research is the only ethically satisfactory context for the conduct of

mathematics, physics, or biology.  The Foundation, and those who

support its broader work, regard free software as an essential step in

a social movement for freer access to knowledge, freer access to

facilities of communication, and a more deeply participatory culture,

open to human beings with less regard to existing distributions of

wealth and social power.  The free software movement has taken

advantage of the social conditions of its time to found its program on

the creation of vast new wealth, through new systems of cooperation,

which can in turn be shared in order to further the creation of new

wealth, in a positive feedback loop.

This program is not, of course, universally shared by all the parties

who benefit from the exploitation of the new wealth created by free

software.  The free software movement has never objected to the

indirect benefits accruing to those who differ from the movement's

goals: one of the powerful lessons the movement has learned from

previous aspects of the long-duration Western movement for freedom of

expression is the value of working with, rather than against,

conventional economic interests and concerns.  But the movement's own

goals cannot be subordinated to the economic interests of our friends

and allies in industry, let alone those who occasionally contribute

solely for reasons of their own.  Changes to the GPL, for whatever

reason they are undertaken, must not undermine the underlying movement

for freer exchange of knowledge.  To the extent that the movement has

identified technological or legal measures likely to be harmful to

freedom, such as ``trusted computing'' or a broadening of the scope of

patent law, the GPL needs to address those issues from a perspective

of political principle and the needs of the movement, not from primary

regard for the industrial or commercial consequences.

\section*{The GPL is the Literary Work of Richard M.\ Stallman}

Some copyright licenses are no doubt known, in the restricted circle

of one firm or law office, as the achievement of a single author's

acumen or insight.  But it is safe to say that there is no other

copyright license in the world that is so strongly identified with the

achievements, and the philosophy, of a single public figure.  Mr.\

Stallman remains the GPL's author, with as much right to preserve its

integrity as a work representative of his intentions as any other

author or creator.  Under his guidance, the Free Software Foundation,

which holds the copyright of the GPL, will coordinate and direct the

process of its modification.

\section*{Conclusion}

The GPL serves, and must continue to serve, multiple purposes.  Those

purposes are fundamentally diverse, and they inevitably conflict.

Development of GPL version 3 has been an ongoing process within the

Free Software Foundation; we, along with our colleagues, have never

stopped considering possible modifications.  We have consulted,

formally and informally, a very broad array of participants in the

free software community, from industry, the academy, and the garage.

Those conversations have occurred in many countries and several

languages, over almost two decades, as the technology of software

development and distribution changed around us.

When a GPLv3 discussion draft is released, the pace of that

conversation will change, as a particular proposal becomes the

centerpiece.  The Foundation will, before it emits a first discussion

draft, publicize the process by which it intends to gather opinion and

suggestions.  The Free Software Foundation recognizes that the

reversioning of the GPL is a crucial moment in the evolution of the

free software community, and the Foundation intends to meet its

responsibilities to the makers, distributors and users of free

software.  In doing so, we hope to hear all relevant points of view,

and to make decisions that reflect the many disparate purposes that

the license must serve.  Our primary concern remains, as it has been

from the beginning, the creation and protection of freedom.  We

recognize that the best protection of freedom is a growing and vital

community of the free.  We will use the process of public discussion

of GPL3 drafts to support and nurture the community of the free.

Proprietary culture imposes both technology and license terms; free

software means allowing people to understand, experiment and modify

software, as well as getting involved in the discussion of license

terms, so that everyone's ideas can contribute to the common good, and

the development of each contributes to the development of all.