Canadian law in conflict with aspects of GPL

It appears that the General Public License (GPL) for free and open source software (FOSS) may contradict some Canadian regulations, said one Canadian intellectual property (IP) lawyer.

Canadian lawyers have only recently started to become interested in the way IP laws affect FOSS, said Barry Sookman, a lawyer in the technology, communications and IP group at McCarthy Tetrault in Toronto, speaking at the Open Source Conference at the University of Toronto on Sunday.

Until 2002, Canadian copyright law gave more rights to the authors and creators of property than did U.S. copyright law. U.S. law uses the idea of a “commons” to further knowledge in the areas of sciences and the applicable arts, Sookman said.

A commons allows certain concepts and works to become part of the public domain and gives the public the right, for example, to reverse-engineer software code. In the U.S., copyright is only infringed upon if there is a considerable word-for-word copying. Canadian copyright law still doesn’t include a commons but appears to be heading in that direction, Sookman said.

Although Canadian law provides authors with a set of rights that they don’t have in the U.S., the GPL requires users to give up these rights and allow individuals to use and copy their work directly. The result is that the GPL is in conflict with Canadian copyright law, Sookman added.

Additionally, the GPL requires that end users take on new free and open source software “as-is” with no warranty. This is contrary to U.S. and Canadian law, which allows some guarantee of product quality.

Eben Moglen, professor at Columbia University Law School and general counsel for the Free Software Foundation, agreed that the GPL cannot nullify product warranties guaranteed by law. However, he said the section was inserted into the GPL in the hopes that it would encourage smoother distribution of open source software.

Canadian copyright law also has a section dubbed “Moral Rights,” which protects the author from being associated with changes made to a work which could result in the defaming, dishonouring or comprising the author’s work.

“There are contexts where a subject in a moral rights system might change how the GPL is applied,” Moglen responded. But in a case of dishonour or defamation, it is often cured by a change of name, he added.

While Moglen conceded that the GPL will definitely be subject to different laws in different geographies, the FOSS movement simply cares about achieving its objectives regardless of whatever laws are in place.

Another lawyer, who declared he was neutral in the proprietary versus open source debate, contended there is often confusion about what the GPL actually is. David McGowan, a professor at the University of Minnesota Law School in Minneapolis, Minn., said individuals often confuse the concepts of “license” and “contract.”

The GPL is a license to copy, create and redistribute code but it doesn’t escape some aspects of being a contract, Moglen responded.

However McGowan takes issue with the GPL license because there are no clauses for termination or revocation of the license, which Moglen admitted are matters that need to be addressed.

McGowan also questioned whether the GPL is a license or a trademark because it essentially acts as a brand whereby software developers can get a GPL license, tack the name onto their product if it’s open source, which consequently lets users know that it is open source.

Moglen response was that it is both.

“[Viewing] the GPL as a trademark and as a social pact is correct,” Moglen said. “It is a symbol of an attitude.”

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Jim Love, Chief Content Officer, IT World Canada

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