The Gentlemen's Agreement Soldiers On: Linux under GNU General Public License Versions 2 and 3

Abstract

Over the past five years, the open source community has continued its robust debate on the intellectual property issues surrounding the GNU General Public License (GPL) and its most successful project, the collaboratively developed Linux operating system. Commercial and non-commercial members of the Linux community have evolved Linux's open source software development model to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. The resulting "Gentlemen's Agreement" is still fragile, especially with the 2007 release of a new version of the GPL. Legal practitioners and commentators have the opportunity to help the Linux community strengthen the gentlemen's agreement by explaining its utility in both legal and technical arenas.

Arguments by strong supporters of the broadest interpretation of the GPL that overstate the effect of the license serve both to deny the existence of this Gentlemen's Agreement and risk undermining the commercial/open source balance that has served Linux well for more than a decade. This paper outlines the GPL's legal shortcomings and boundaries to help bolster the community's practical, and undervalued, gentlemen's agreement that enables commercial participation in open source projects.

Keywords: copyright, software license, GPL, Linux, GNU, intellectual property, GPLv2, GPLv3

JEL Classification: O34, K12, K33, O31