% compliance-guide.tex                            -*- LaTeX -*-

\part{A Practical Guide to GPL Compliance}

\label{gpl-compliance-guide}

{\parindent 0in

This part is: \\

\begin{tabbing}

Copyright \= \copyright{} 2008, 2014 \= \hspace{.2in} Bradley M. Kuhn. \\

Copyright \= \copyright{} 2014 \> \hspace{.2in} Free Software Foundation, Inc. \\

Copyright \> \copyright{} 2008, 2014 \> \hspace{.2in} Software Freedom Law Center. \\

\end{tabbing}

\vspace{1in}

\begin{center}

Authors of this part are: \\

Bradley M. Kuhn \\

Aaron Williamson \\

Karen M. Sandler \\

\vspace{1in}

Copy editors of this part include: \\

Martin Michlmayr

\vspace{3in}

The copyright holders of this part hereby grant the freedom to copy, modify,

convey, Adapt, and/or redistribute this work under the terms of the Creative

Commons Attribution Share Alike 4.0 International License.  A copy of that

license is available at

\url{https://creativecommons.org/licenses/by-sa/4.0/legalcode}.

\end{center}

}

\bigskip

\chapter*{Executive Summary}

This is a guide to effective compliance with the GNU General Public

License (GPL) and related licenses.  Copyleft advocates

usually seek to assist the community with

GPL compliance cooperatively.   This guide focuses on complying from the

start, so that readers can learn to avoid enforcement actions entirely, or, at

least, minimize  the negative impact when enforcement actions occur.

This guide  introduces and explains basic legal concepts related to the GPL and its

enforcement by copyright holders. It also outlines business practices and

methods that lead to better GPL compliance.  Finally, it recommends proper

post-violation responses to the concerns of copyright holders.

\chapter{Background}

Copyright law grants exclusive rights to authors.  Authors who chose copyleft

seek to protect the freedom of users and developers to copy, share, modify

and redistribute the software.  However, copyleft is ultimately implemented

through copyright, and the GPL is primarily and by default a copyright

license.  (See \S~\ref{explaining-copyright} for more about the interaction

between copyright and copyleft.)  Copyright law grants an unnatural exclusive

control to copyright holders regarding copyright-controlled permissions

related to the work.  Therefore, copyright holders (or their agents) are the

ultimately the sole authorities to enforce copyleft and protect the rights of

users.  Actions for copyright infringement are the ultimate legal mechanism

for enforcement.  Therefore, copyright holders, or collaborative groups of

copyright holders, have historically been the actors in GPL enforcement.

The earliest of these efforts began soon after the GPL was written by

Richard M.~Stallman (RMS) in 1989, and consisted of informal community efforts,

often in public Usenet discussions.\footnote{One example is the public

  outcry over NeXT's attempt to make the Objective-C front-end to GCC

  proprietary.  RMS, in fact, handled this enforcement action personally and

  the Objective-C front-end is still part of upstream GCC today.}  Over the next decade, the Free Software Foundation (FSF),

which holds copyrights in many GNU programs, was the only visible entity

actively enforcing its GPL'd copyrights on behalf of the software freedom

community.

FSF's enforcement

was generally a private process; the FSF contacted violators

confidentially and helped them to comply with the license.  Most

violations were pursued this way until the early 2000's.

By that time, Linux-based systems such as GNU/Linux and BusyBox/Linux had become very common, particularly in

embedded devices such as wireless routers.  During this period, public

ridicule of violators in the press and on Internet fora supplemented

ongoing private enforcement and increased pressure on businesses to

comply.  In 2003, the FSF formalized its efforts into the GPL Compliance

Lab, increased the volume of enforcement, and built community coalitions

to encourage copyright holders to together settle amicably with violators.

Beginning in 2004, Harald Welte took a more organized public enforcement

approach and launched \href{http://gpl-violations.org/}{gpl-violations.org}, a website and mailing

list for collecting reports of GPL violations.  On the basis of these

formal legal action.  Harald earns the permanent fame as the first copyright

holder to bring legal action in a court regarding GPL compliance.

In 2007, two copyright holders in BusyBox, in conjunction with the

Software Freedom Conservancy (``Conservancy''), filed the first copyright infringement lawsuit

based on a violation of the GPL\@ in the USA. While  lawsuits are of course

quite public, the vast majority of Conservancy's enforcement actions 

are resolved privately via

cooperative communications with violators.  As both FSF and Conservancy have worked to bring

individual companies into compliance, both organizations have encountered numerous

violations resulting from preventable problems such as inadequate

attention to licensing of upstream software, misconceptions about the

GPL's terms, and poor communication between software developers and their

management.  This document highlights these problems and describe

best practices to encourage corporate Free Software users to reevaluate their

approach to GPL'd software and avoid future violations.

Both FSF and Conservancy continue GPL enforcement and compliance efforts

for software under the GPL, the GNU Lesser

Public License (LGPL) and other copyleft licenses.  In doing so, both organizations have

found that most violations stem from a few common, avoidable mistakes.  All copyleft advocates  hope to educate the community of

commercial distributors, redistributors, and resellers on how to avoid

violations in the first place, and to respond adequately and appropriately

when a violation occurs.

\section{Who Has Compliance Obligations?}

All distributors of modified or unmodified versions of copylefted works

unmodified versions of the works have compliance obligations.  Common methods

of modifying the works include innumerable common acts, such as:

\begin{itemize}

  \item embedding those works as executable copies

    into a device,

  \item transferring a digital copy of excutable copies to someone else,

  \item posting a patch to the copylefted software to a public mailing list.

\end{itemize}

Such distributors have obligations to (at least) the users to whom they (or

intermediary parties) distribute those copies.  In some cases, distributors

have obligations to third parties not directly receiving their distribution

of the works (depending on the distributors chosen licensing options, as

described later in \S~\ref{binary-distribution-permission}).  In addition,

distributors have compliance obligations to upstream parties, such as

preservation of reasonable legal notices embedded in the code, and

appropriate labeling of modified versions.

Online service providers and distributors alike have other compliance

obligations.  In general, they must refrain from imposing any additional

restrictions on downstream parties. Most typically, such compliance problems

arise from ``umbrella licenses:'' EULAs, or sublicenses that restrict

downstream users' rights under copyleft. (See \S~\ref{GPLv2s6} and

\S~\ref{GPLv3s10}).

Patent holders having claims reading on GPL'd works they distribute must

refrain from enforcing those claims against parties to whom they distribute.

Furthermore, patent holders holding copyrights on GPLv3'd works must further

grant an explicit patent license for any patent claims reading on the version

they distributed, and therefore cannot enforce those specific patent claims

against anyone making, using or selling a work based on their distributed

version.  All parties must refrain from acting as a provider of services or

distributor of licensed works if they have accepted, or had imposed on them

by judicial action, any legal conditions that would prevent them from meeting

any obligation under GPL\@.  (See \S~\ref{GPLv2s7}, \S~\ref{GPLv3s11} and

\S~\ref{GPLv3s12}.

\section{What Are The Risks of Non-Compliance?}

Copyleft experts have for decades observed a significant mismatch between the

assumptions most businesses make about copyleft compliance and the realities.

Possibly due to excessive marketing of proprietary tools and services from

the for-profit compliance industry, businesses perennially focus on the wrong

concerns.  This tutorial seeks to educate those businesses about what

actually goes wrong, what causes disputes, and how to resolve those disputes.

Many businesses currently invest undue resources to avoid unlikely risks that

have low historical incidence of occurrence and low cost of remediation,

while leaving unmanaged the risks that have historically resulted in all the

litigation and other adverse outcomes.  For example, some ``compliance

industry''\footnote{``Compliance industry'' refers to third-party for-profit

  companies that market proprietary software tools and/or consulting services

  that purport to aid businesses with their Free Software license compliance

  obligations, such as those found in GPL and other copyleft licenses.  This

  tutorial leaves the term in quotes throughout, primarily to communicate the

  skepticism most of this tutorial's authors feel regarding the mere

  existence of this industry.  Not only do copyleft advocates object on

  principle to proprietary software tools in general, and to their ironic use

  specifically to comply with copyleft, but also to the ``compliance

  industry'' vendors' marketing messaging, which some copyleft advocates

  claim as a cause in the risk misassessments discussed herein.  Bradley

  M.~Kuhn, specifically, regularly uses the term ``compliance industrial

  complex''

provision, the copyright holder may have a range of requests in exchange

for reinstatement of rights.  These software developers are talented

professionals from whose work your company has benefited.  Indeed, you are

unlikely to find a better value or more generous license terms for similar

software elsewhere.  Treat the copyright holders with the same respect you

treat your corporate partners and collaborators.

\chapter{Special Topics in Compliance}

There are several other issues that are less common, but also relevant in

a GPL compliance situation.  To those who face them, they tend to be of

particular interest.

\section{LGPL Compliance}

\label{lgpl}

GPL compliance and LGPL compliance mostly involve the same issues.  As we

discussed in \S~\ref{derivative-works}, questions of modified versions of

software are highly fact-dependent and cannot be easily addressed in any

overview document.  The LGPL adds some additional complexity to the

analysis.  Namely, the various LGPL versions permit proprietary licensing

of certain types of modified versions.  These issues are discussed in greater

detail in Chapter~\ref{LGPLv2} and~\ref{LGPLv3}.  However, as a rule of thumb, once you have determined

(in accordance with LGPLv3) what part of the work is the ``Application''

and what portions of the source are ``Minimal Corresponding Source'', then

you can usually proceed to follow the GPL compliance rules that

discussed above, replacing our discussion of ``Corresponding Source'' with

``Minimal Corresponding Source''.

LGPL also requires that you provide a mechanism to combine the Application

with a modified version of the library, and outlines some options for

this.  Also, the license of the whole work must permit ``reverse

engineering for debugging such modifications'' to the library.  Therefore,

you should take care that the EULA used for the Application does not

contradict this permission.

Thus, under the terms of LGPL, you must refrain from license terms on works

based on the licensed work that prohibit replacement of the licensed

components of the larger non-LGPL'd work, or prohibit decompilation or

reverse engineering in order to enhance or fix bugs in the LGPL'd components.

LGPLv3 is not surprisingly easier to understand and examine from a compliance

lens, since the FSF was influenced in LGPLv3's drafting by questions and

comments on LGPLv2.1 over a period of years.  Admittedly, LGPLv2.1 is still

in wide use, and thus compliance with LGPLv2.1 remains a frequent topic you

may encounter.  The best advice there is careful study of

Chapter~\ref{LGPLv2}.

However, to repeat a key point here made within that chapter: Note though

that, since the LGPLv2.1 can be easily upgraded to GPLv2-or-later, in the

worst case you simply need to comply as if the software was licensed under

GPLv2.  The only reason you must consider the question of whether you have a

``work that uses the library'' or a ``work based on the library'' is when you

wish to take advantage of the ``weak copyleft'' effect of the Lesser GPL\@.

If GPLv2-or-later is an acceptable license (i.e., if you plan to copyleft the

entire work anyway), you may find this an easier option.

\section{Upstream Providers}

\label{upstream}

With ever-increasing frequency, software development (particularly for

embedded devices) is outsourced to third parties.  If you rely on an

upstream provider for your software, note that you \emph{cannot ignore

  your GPL compliance requirements} simply because someone else packaged

the software that you distribute.  If you redistribute GPL'd software

(which you do, whenever you ship a device with your upstream's software in

it), you are bound by the terms of the GPL\@.  No distribution (including

redistribution) is permissible absent adherence to the license terms.

Therefore, you should introduce a due diligence process into your software

acquisition plans.  This is much like the software-oriented

recommendations we make in \S~\ref{best-practices}.  Implementing

practices to ensure that you are aware of what software is in your devices

can only improve your general business processes.  You should ask a clear

list of questions of all your upstream providers and make sure the answers

are complete and accurate.  The following are examples of questions you

should ask:

\begin{itemize}

\item What are all the licenses that cover the software in this device?

\item From which upstream vendors, be they companies or individuals, did

  \emph{you} receive your software before distributing it to us?

\item What are your GPL compliance procedures?

\item If there is GPL'd software in your distribution, we will be

  redistributors of this GPL'd software.  What mechanisms do you have in

  place to aid us with compliance?

\item If we follow your recommended compliance procedures, will you

  formally indemnify us in case we are nonetheless found to be in

  violation of the GPL?

\end{itemize}

escalated because of petty finger-pointing between the distributor and its

upstream.  In our experience, agreements regarding GPL compliance issues

and procedures are rarely negotiated up front.  However, when they are,

violations are resolved much more smoothly (at least from the point of

view of the redistributor).

Consider the cost of potential violations in your acquisition process.

Using Free Software allows software vendors to reduce costs significantly, but be

wary of vendors who have done so without regard for the licenses.  If your

vendor's costs seem ``too good to be true,'' you may ultimately bear the

burden of the vendor's inattention to GPL compliance.  Ask the right

questions, demand an account of your vendors' compliance procedures, and

seek indemnity from them.

In particular, any time your vendor incorporates copylefted software, you

\textit{must} exercise your own rights as a user to request CCS for all the

copylefted programs that your suppliers provided to you.  Furthermore, you

must ensure that CCS is correct and adequate yourself.  Good vendors should

help you do this, and make it easy.  If those vendors cannot, pick a

different vendor before proceeding with the product. 

\section{Mergers and Acquisitions}

Often, larger companies often encounter copyleft licensing during a Mergers

and Acquisitions (M\&A) process.  Ultimately, a merger or acquisition causes

all of the other company's problems to become yours.  Therefore, for most

concerns, the acquirer ``simply'' must apply the compliance analysis and

methodologies discussed earlier across the acquired company's entire product

line.  Of course, this is not so simple, as such effort may be substantial,

but a well-defined process for compliance investigation means the required

work, while voluminous, is likely rote.

A few sections of GPL require careful attention and legal analysis to

determine the risk of acquisitions.  Those handling M\&A issues should pay

particular attention to the requirements of GPLv2~\S7 and GPLv3~\S10--12 ---

focusing on how they relate to the acquired assets may be of particular

importance.

For example, GPLv3\S10 clarifies that in business acquisitions, whether by

sale of assets or transfers of control, the acquiring party is downstream

from the party acquired.  This results in new automatic downstream licenses

from upstream copyright holders, licenses to all modifications made by the

acquired business, and rights to source code provisioning for the

now-downstream purchaser.  However, despite this aid given by explicit

language in GPLv3, acquirers must still confirm compliance by the acquired

(even if GPLv3\S10 does assert the the acquirers rights under GPL, that does

not help if the acquired is out of compliance altogether).  Furthermore, for

fear of later reprisal by the acquirer if a GPL violation is later discovered

in the acquired's product line, the acquired may need to seek a waiver and

release of from additional damages beyond a requirement to comply fully (and

a promise of rights restoration) if a GPL violation by the acquired is later

uncovered during completion of the acquisition or thereafter.

Finally, other advice available regarding handling of GPL compliance in an

M\&A situation tends to ignore the most important issue: most essential

copylefted software is not wholly copyrighted by the entities involved in the

M\&A transaction.  Therefore, copyleft obligations likely reach out to the

customers of all entities involved, as well as to the original copyright

holders of the copylefted work.  As such, notwithstanding the two paragraphs

in GPLv3\S10, the entities involved in M\&A should read the copyleft licenses

through the lens of third parties whose software freedom rights under those

licenses are of equal importance to then entities inside the transaction.

\section{User Products and Installation Information}

\label{user-products}

GPLv3 requires you to provide ``Installation Information'' when v3

software is distributed in a ``User Product.''  During the drafting of v3,

the debate over this requirement was contentious.  However, the provision

as it appears in the final license is reasonable and easy to understand.

If you put GPLv3'd software into a User Product (as defined by the

license) and \emph{you} have the ability to install modified versions onto

that device, you must provide information that makes it possible for the

user to install functioning, modified versions of the software.  Note that

if no one, including you, can install a modified version, this provision

does not apply.  For example, if the software is burned onto an

non-field-upgradable ROM chip, and the only way that chip can be upgraded

is by producing a new one via a hardware factory process, then it is

acceptable that the users cannot electronically upgrade the software

themselves.

Furthermore, you are permitted to refuse support service, warranties, and

software updates to a user who has installed a modified version.  You may

even forbid network access to devices that behave out of specification due

to such modifications.  Indeed, this permission fits clearly with usual

industry practice.  While it is impossible to provide a device that is

completely unmodifiable\footnote{Consider that the iPhone, a device

  designed primarily to restrict users' freedom to modify it, was unlocked

  and modified within 48 hours of its release.}, users are generally on

notice that they risk voiding their warranties and losing their update and

support services when they make modifications.\footnote{A popular t-shirt

  in the software freedom community reads: ``I void warranties.''.  Our community is

  well-known for modifying products with full knowledge of the

  consequences.  GPLv3's ``Installation Instructions'' section merely

  confirms that reality, and makes sure GPL rights can be fully exercised,