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Reciprocity and the GPL

Dec 10, 2004

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This chapter is from the book 

Open Source Licensing: Software Freedom and Intellectual Property Law

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"At No Charge"

There are three words in the GPL's reciprocity provision that I saved until now. Here's how the GPL reads:

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. (GPL section 2.)

The GPL, unlike most other licenses, requires that derivative works be licensed as a whole at no charge to third parties under the terms of this License.

The open source principles listed in Chapter 1 allow reciprocity conditions, under which a licensor can insist that li-censees operate on the exact same playing field as the licensor does. The GPL licensors distributed their software for free, and they insist that their licensee's derivative works also be zero price, as a reciprocal condition for being allowed to create derivative works in the first place.

Earlier in the license, however, the GPL left a big escape hatch for those who want to recover their costs of distributing software. It provides:

You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. (GPL section 1.)

Anyone familiar with business accounting will recognize that it is relatively simple to allocate costs to the "physical act of transferring a copy" when it is really a cost of getting copies ready to be transferred.

Regardless of this loophole, the laws of economics dictate that customers will only pay for value received. If they are free to make copies without paying anyone royalties for those copies, then the price that distributors can charge for copies of original software or derivative works will soon approach the marginal cost of production and distribution regardless of whether the GPL mandates a zero price.

There is also a problem that may prevent enforcement of the GPL's at no charge provision. It may be an illegal restraint of trade in some countries. Ordinarily, companies are allowed to set their own prices, and it is improper for a GPL licensor to constrain that in any way.

Most other reciprocal licenses do not require that derivative works be distributed at zero price. Their reciprocity obligation extends simply to requiring that the source code be published and that derivative works be distributed under the terms of this License. The price of the derivative work software is left for market forces to determine.

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