Re: [Fsfe-uk] GPL and new EU antitrust proposals for licences

[Alex Hudson]

On Wed, 2003-12-03 at 20:50, James Heald wrote:
> Could it conceivably be argued that prima facie the terms of the GPL 
> might somehow be a restriction of freedom under 81(1)(a), 81(1)(b) or 
> 81(1)(e)  ?

81(1)(a) seems to be a restriction on collusion (or whatever the word is
;) - as in, a restriction on cartels. However, I guess it is possible
that the restriction within the GPL to do with resale value of source
code is such a cartel. 81(1)(b) I'm not hugely worried about - I'm not
sure how you might argue the GPL limits or controls production (there is
none) nor markets nor investment. Maybe development could be arguable.
81(1)(e) similar - it's a fairly pure copyright licence, so I would
suspect it would be difficult to argue any of it is supplementary in any
way (I think this clause is more aimed at something like the BitKeeper
licence, which would seem to contravene these regulations: it prevents
you from developing completing software, which would seem to be both a
supplementary restriction and a restraint on technical development).

81(1)(a) seems the most worrisome. Resale value of source code doesn't
just apply to the original code, but also to your derivations. That's
one point that I could see is arguable. However, I think 81(1)(a) is
framed at agreements between competitors, not between supplier and
customer, in which case it wouldn't apply to the GPL per se. 

> (b) any direct or indirect obligation on the licensee to assign, in 
> whole or part, or to a third party designated by the licensor, rights to 
> improvements to or new applications of the licensed technology.
> 
> Could this affect the GPL ??

Well, yes and no - yes, it does seem the GPL is such an obligation on IP
rights that both subsist now and will subsist in the future. The
introduction of software copyright under this umbrella is new, but the
patent licensing is not, and the GPL does both. So, to an extent it
would already be affected by the antitrust legislation (probably not in
a different manner either).

But, it seems to me that this just means the GPL is not eligible for the
81(1) Get Out Of Jail Free Card provided by Article 5(1)(b). That would
mean there is no exemption for price-fixing source code; that doesn't
tell us whether or not the GPL contravenes 81(1) because of the price
fixing. 

> It may be that I'm fretting about nothing... but I'd more more 
> comfortable if I knew that somebody who knew about these things had 
> looked over the proposals while they are still proposals, before they 
> harden into law.

I'm still a little amazed how you found this :)

In short, I think this legislation (competition legislation) _shouldn't_
affect the GPL - certainly, I don't think that it would stop me selling
GPL'd software to a client of mine. Maybe it would be anti-competitive
as a licence to other companies in the same marketplace as you: still
troublesome, but certainly not thermonuclear destruction of the free
software scene.

It would be a good idea to get this checked out though: it does seem to
be prima facie anti-copyleft; the outlaw of copyleft-style licences
wouldn't be a particularly progressive move...

Cheers,

Alex.