Triggering Infection: Distribution and Derivative Works Under the GNU General Public License

Theresa Gue

Abstract

Imagine that Microsoft discovers that its profitable program, Microsoft Word, contains lines of code borrowed from an open-source software program. Further imagine that as a result of this oversight, all users of Microsoft Word now have a license to freely distribute, reproduce, and modify Word, and Microsoft is required to provide the source code to users in order to facilitate such actions. This is the exact scenario envisioned and feared by many corporations today. It is also the reason why the GNU General Public License (“GPL”), the most popular open-source license in the world, is also the most feared. The license contains a viral “copyleft” provision, which requires that all derivative works of a GPL-covered work that are distributed be licensed under the GPL or a compatible license. Copyleft can eviscerate the value of proprietary software by granting all users of the software the freedom to modify, distribute, copy, and reproduce the software.

Much uncertainty shrouds the copyleft clause and its twin triggers of distribution and derivative works—so much so that attorney Lawrence Rosen has likened public reaction to the GPL to the early days of the AIDS epidemic. While scholars have explored derivative works under the GPL, the topic of distribution has not been thoroughly discussed. This article seeks to fill the void by offering a comprehensive overview of both distribution and derivative works. It advocates applying copyright law’s limited publication doctrine to distinguish between limited publications that should not trigger copyleft and distributions to the public that should trigger copyleft. Courts developed the limited publication doctrine to mitigate the effects of authors losing their copyrights by publishing without notice. The doctrine provides a useful framework for concluding that scenarios such as cloud-computing and outsourcing should not constitute distributions. The paper next analyzes whether situations such as static linking, dynamic linking, use of Linux kernel modules, and intermingling software in a virtual cloud computing environment create derivative works. The article offers advice for using open-source software without infecting proprietary software and seeks to be a practical guide that enables individuals and companies alike to take advantage of the benefits of open-source software with ease of mind—and without fear of infection.