The role of lawsuits in GPL Compliance
GNU General Public License (GPL) compliance is a perennial topic of interest in the community. As authors of the GPL, and the first organization to release software under that license, the FSF has the longest organizational history in GPL compliance activity. Today, the GNU GPL is widely used by many projects with no FSF affiliation, so interest and discussion about GPL compliance has become varied and widespread.
Nevertheless, the FSF remains a leader in the enforcement of the GPL, and in considerations and discussions about appropriate behavior in the GPL compliance process. When questions arise, part of our role is to clarify the fundamental tenets of copyleft -- the tool we invented to advance and defend software freedom for all users. This year, the FSF co-published The Principles of Community-Oriented GPL Enforcement (Principles) with the Software Freedom Conservancy (Conservancy), which explain and formalize the principles that charities like ours follow when employing the GPL to advance software freedom.
That tool is undeniably one with legal backing. Understandably, projects that adopt the GPL regularly discuss its legal aspects, including how and when it is enforced. Many in the free software community read with interest one such discussion a few months ago surrounding Linux. That discussion aroused great interest, since the kernel Linux is widely used as part of the GNU/Linux system, but it also exposed some misunderstandings about how organizations like the FSF handle compliance work.
The zone of agreement in our community is actually much wider than these discussions suggest. We all agree that jumping into lawsuits will not bring violators into the community. Carefully executed compliance activity, fitting with the Principles, welcomes potential collaborators. Jumping into litigation dashes any hope for that ideal outcome. As stated in the Principles, a lawsuit remains a last resort.
That is how the FSF and Conservancy have always handled compliance. The FSF has done compliance work for the GNU Project for decades, and in all that time, we have only been forced to file a lawsuit once. The suit came about after years of working with the violator trying to correct their compliance. Even in that instance, where the FSF eventually did have to sue, the violator later went on to become a contributor to the GNU Project, and continued other free software activities as well. Conservancy has a similar track record of avoiding lawsuits; they are currently funding Christoph Hellwig's lawsuit against VMware in Germany, which marks the first time Conservancy has ever been involved with a lawsuit regarding Linux, and their FAQ explains the lawsuit came after four years of friendly efforts by many parties asking VMware to follow the GPL's requirements.
The vast majority of our compliance work happens behind the scenes, for good reason: it allows the majority of violators to quietly ameliorate compliance problems and join the free software community. Generally people will only hear about a compliance case if it ends up in court, where by necessity it becomes public. This leaves some with the erroneous impression that GPL compliance involves frequent litigation, and has caused some organizations to take an alarmist stance in opposition to all GPL enforcement. But this perception and policy is based on a confusion. Compliance is almost always an educational matter; most violators are unaware of their obligations under the license and simply need additional help to come into compliance. Almost all GPL compliance cases end quietly with the violator correcting their mistakes, with only a minimal notification of past recipients of the then-violating distribution that anything has happened.
While lawsuits are a last resort, they must unfortunately remain an option. The threat of litigation provides leverage that we need with the rare violators whose GPL compliance problems are not merely mistakes, but are intentional attempts to limit their users' freedom. While compliance work is primarily educational, we need a tool that can work with the rare few who are already educated but chose to violate anyway. Copyleft was designed from the start to serve as that tool.
After our decades of work in GPL compliance, we at the FSF welcome discussion and community feedback. We hope in future discussions that more developers will step forward to share their views, as this issue impacts everyone in the software freedom community. We also hope you will continue to support our compliance work, the work of Conservancy, and any nonprofit enforcing explicitly in line with the Principles, with your memberships and donations. Anyone who has fears about how GPL enforcement could be done in negative ways ought to support organizations who commit to doing it right.