GPL Enforcement, Frogs & Funny Hats

The GPL has become the most popular of open source licenses in large part because of its "copyleft" status. Not only does it virally attach to software code, but it automatically terminates if its source code distribution obligations are not honored. The severe consequences of breach, along with community pressure for compliance are strong deterrents to violations that would require enforcement measures. Even so, every open source company using GPL will be faced with GPL violations and must carefully consider both when enforcement is appropriate and what factors should be weighed as part of that decision.

To those open source companies that assume GPL enforcement is always the quickest, best strategy, I quote the great open source guru Homer J. Simpson: "you're living in a world of make-believe! With flowers and bells and leprechauns and magic frogs with funny little hats." Yes, it's true that enforcement serves a critical function. Not only does it prevent abuse of open source code on a case by case basis, but it also upholds the legitimacy of the GPL as a license vehicle and meets the community's expectations of its fellow members.

On the other hand, enforcement is not a panacea. The community might view inconsistent enforcement as arbitrary and self-serving, or it might have different views on what a company's enforcement priorities should be. In addition, enforcement actions might actually slow the adoption of open source in proprietary companies. A great recent example of this type of unintended consequence is the discussion arising from the recent string of settlements related to the Busybox GPL enforcement cases. Though widely criticized by a number of open source commentators, intellectual property attorney Edmund Walsh wrote an article in which he analyzed these cases and concluded that "for-profit companies [have] new reasons to re-evaluate the ways in which they use open source software as well as the extent to which they use it."

Open source companies should also consider strategic non-enforcement as an option, or take a further step and grant limited exceptions to open source licensing (assuming the company controls adequate IP rights). Among the benefits of these approaches is the ability to encourage specific types of partner and end user activities that would have been difficult to otherwise achieve without radically altering a dual license strategy. However, these approaches should be used with caution because they can easily backfire. The community might view this type of manipulation of open source strategy as counter to open source philosophy. It also could lead to end users using the software in unanticipated ways that negate the perceived or realized benefits of the approaches.

The moral of the story is ... as you consider your options with respect to enforcing the inevitable GPL violations that all open source companies face, avoid the frogs with funny little hats!