The European Union Public License (EUPL) version 1.1 was released and approved by the Open Source Initiative (OSI) on January 9, 2009. A major milestone in the evolution of open source licensing, the EUPL contains some important distinctions that set it apart from other popular open source licenses: it’s written with native language support for all EU member countries, it’s compatible by design with a number of OSI-approved licenses and — also by design — incompatible with the GNU General Public License version 3.0 (GPL v3). Could this possibly be a message to the Free Software Foundation (FSF) and the open source community that there really is a vital, innovative world outside the borders of the United States?

While members of the open source community often bristle at the mention of yet another license, many people have welcomed this one. The EUPL is unique in its encouragement of interoperability, freedom, and lack of license lock-in upon redistribution. By making specific distinctions, it represents a divergence from the typical freedoms afforded by whatever the latest iteration of the GPL may be.

As noted in the Wikipedia entry for the EUPL, the EU had some specific goals in mind when drafting this license:

“With license proliferation a growing problem, the European Union justifies its license as the first open source license to be released by an international governing body. The European Union also wishes to dispel legal uncertainties, real or perceived, in respect of other open-source licenses, such as the GNU General Public License, by creating a software license which takes due account of European Union Law. A third goal of this license is to create an open-source license available into 22 official languages of the European Union, and is sure to conform to the existing copyright laws of each of the 27 Member States of the European Union. Lastly, to dispel fears of license proliferation, the license was developed with other open-source licenses in mind and specifically authorizes covered works to be re-released under the following licenses: GNU General Public License (GPL) v. 2; Open Software License (OSL) v. 2.1, v. 3.0; Common Public License v. 1.0; Eclipse Public License v. 1.0; CeCILL v. 2.0.”

At the same time, the EUPL tries to take a more international view on the enforceability of an agreement that requires oversight in many jurisdictions. Licenses originating in the United States are derivatives of US copyright law, so as far as they’re concerned international considerations are non-existent. While translations of existing FSF licenses are informative and referential, the US English employed is the only contract language.

Why Should You Care?

Both the EUPL and the GPL v3 are copyleft licenses, so some of you may be wondering whether there are any significant differences between them. Choosing the correct license could be as simple as using the GPL v3 if the software is originated in the US, and the EUPL v1.1 if the software is from Europe. Who really cares?

We do, and here’s why: the EUPL v1.1 is conspicuously missing something that could be fairly significant depending upon which side of the Atlantic you happen to live and work. The GPL v3 is not included in the EUPL’s list of “compatible licenses” under which subsequent works can be re-released — a provision included in the EUPL in order to help fight license proliferation. We agree that license proliferation is a growing problem with open source licenses, but why did the EU specifically exclude the GPL v3 from the list?

One explanation for the EUPL’s purposeful incompatibility with the GPL v3 might involve freedom, and what it means to open source licenses. As copyleft licenses, the aim of both the EUPL v1.1 and the GPL v3 is to free the code from proprietary copyright laws. However, the freedoms provided by the GPL v3 may be limited to the US, and so may not be “free” enough for the global community. For example, is it truly freedom if you’re protected from intellectual property claims, but then forced to use a specific license — one not of your own choosing — to distribute your original work? This may be one of the problems that the EU has with the GPL v3. Once a work is created under the GPL v3, all subsequent works will be licensed under it as well. In contrast, works licensed under the EUPL v1.1 can be re-licensed under any of the different licenses on their compatibility list. Perhaps the EU does not want software created under the EUPL v1.1 to be trapped within the confines of the GPL v3 later.

Here’s something else to consider. The GPL was originally derived from US copyright law, which creates a license bias toward issues unique to the United States. It may very well be that the FSF created their license to be specific to the US software community, but that distances it from the global community. There’s a large world of software developers and users outside of the US, and their concerns are different those of US-based developers and users. It makes sense that they want a license that addresses those differences. Many OSI-approved licenses (including but not limited to the GPL v3) do not address a global audience, and it’s a fair assumption that current efforts like the EUPL are just a hint of what is to come in global or regional licensing outside the US.

By excluding the GPL v3 from compatibility with the EUPL, the European Commission is indirectly pushing out the FSF as a presence in open source licenses in Europe. The GPL v3 is the FSF’s license for the 21st century, and it is now incompatible with what may very well become the predominant license in the EU. As the first license to be released by an international governing body, the EUPL has the potential to become widespread not only in Europe but worldwide. The 22 different languages in which the EUPL v1.1 is released also increase the likelihood that usage will spread quite quickly. Given these circumstances, we think it’s pretty significant that the GPL v3 cannot be merged with any code under the EUPL v1.1.

The Players

EUPL v1.1 and the European Union

The European Union Public License (EUPL) v1.1 was released on January 9, 2009. This license was created by the European Commission, the executive branch of the European Union, and is available in all 22 languages of the EU. The European Union, for those who do not know already, is a union of 27 European countries (called Member States) that was established on November 1, 1993. These Member States joined together for various economic and political reasons. Primarily, the partnership allows for easier commerce and trade among the different countries. The creation of the EUPL is another step in unifying and standardizing the products — in this case software products — that are used within the European Union.

By creating a license in multiple languages, with equal validity for all linguistic versions, the EU has created a framework within which future open source projects in the European Union can work. It’s also worth noting that the EUPL is the first license to be released by an international governing body. The original version (EUPL v1.0) was created on January 9, 2007 and its provisions still account for most of the license. Only seven modifications were made to the original license, and these were included primarily for purposes of clarification. The main revisions in the 2009 version of the EUPL allow for other linguistic versions of the license to be created by the European Union, giving it worldwide distribution potential.

GPL v3 and the Free Software Foundation

The GNU General Public License (GPL) v3 was released on June 29, 2007. It was created by the Free Software Foundation (FSF), which is headed by Richard Stallman. The FSF, which was founded on October 4, 1985, is a US-based, non-profit corporation that promotes the free software movement — an ideology that combats US copyright law to allow for modification and redistribution of software code without restriction. According to Richard Stallman: “The free software movement is not merely personal. It is a political movement like the environmental movement, the civil rights movement, etc.”

The original GPL license was released in January of 1989 and we’ve seen two subsequent versions since then. The GPL v3 is considerably different from the GPL v2 (which makes sense, since the GPL has been around much longer than the EUPL). In each version, the FSF attempts to maintain their values while adapting to the current technological situation. The main revisions and concerns in the GPL v3 involve modern topics such as time-shifting restrictions, Digital Millennium Copyright Act (DCMA) specifics, and “tivoization”.

The Differences – An Overview

The primary differences between the EUPL v1.1 and the GPL v3 can be summarized in the following points:

• An EU commission created the EUPL license to be enforceable in the native languages of all the member countries.
• The EUPL’s defined compatibility with other licenses avoids certain downstream licensing conditions.
• The EUPL is purposely incompatible with the GPL v3, although it does allow under certain conditions re-licensing under CeCILL v. 2.0, which is GPL v.3 compatible.
• The EUPL does not contain language on time-shifting restrictions or DCMA-specific language, and it doesn’t address issues of tivoization.
  • Time-shifting is the recording of programming to a storage medium to be viewed or listened to at a time more convenient to the consumer. Typically, this refers to TV programming but can also refer to radio shows via podcasts.
  • The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes the production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as Digital Rights Management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.
  • Tivoization is the creation of a system that incorporates software under the terms of a copyleft software license, but uses hardware to prevent users from running modified versions of the software on that hardware.
• The EU’s license contains none of the GPL’s explicit (and US-biased) patent language.
• The EUPL doesn’t enforce a time limit (like 3 years) for the required distribution of source code — it’s more open-ended. As long as the program is being distributed, the source code will be available.
• The EUPL appears to be simple, clear, and less restrictive than the GPL v3 license. It reads more like the Apache license than the GPL v3. It’s simply formatted, with 15 explicit sections that say what needs to be said, and it contains little apparent excess.

Compatible Licenses

According to article 5 of the EUPL, the “compatible licenses” are:

• GNU General Public License (GNU GPL) v. 2
• Open Software License (OSL) v. 2.1, v. 3.0
• Common Public License v. 1.0
• Eclipse Public License v. 1.0
• Cecill v. 2.0

Summary

Original work, licensing for redistribution, and freedom are concepts that have legal and financial ramifications throughout the world. With the ever-increasing popularity of open source software and the need to protect such works and their associated freedoms, many open source licenses need to evolve in order to address global — or, as in the case of the EUPL, regional — concerns. The EUPL seems to have adapted to this open source climate and has the potential to challenge the GPL by differentiating on a few important key points:

• Some people feel that the FSF is too political, and regional users clearly feel that the organization is overly focused on the United States.
• The EUPL stands up to what some view as prohibitive and confusing constraints of the GPL licenses. Here is a license that appears more friendly to the intention of software openness, without the many constraints (patent, tivioization, US jurisdiction, etc.) that can make licenses too localized, and thus difficult to embrace and support on a broad scale.
• Lastly, in the EUPL there is no mention at all of money or freedom. Freedom means never having to be told you are free.

The EUPL v1.1 is a legal instrument, simple and clear to interpret, with less baggage than the GPL v3, and with the intent to enforce locally while inter-operating with certain key licenses. As the world increasingly sees the value of transparency in code development, it can be argued that licensing needs to be less about a “movement” and more about the proper identification of rights, restrictions, and obligations for use of third party software.

This brings to the forefront concerns about the complexity of open source licensing, and a need for much more clarity. Perhaps the community needs global license templates that can be used across borders, that will span language and continental gaps while still allowing local enforcement and understanding. The EUPL certainly makes an effort to localize the rules surrounding the freedoms of the use of original work, but we need to go further.

The use of open source software components is a simple idea. Software use is governed by just a few things:

• Use: personal, redistribution, modification and redistribution, and contribution to the core project.
• Requirements: maintenance of copyright notice, attribution, indemnification, license-free use of original and included third party work, and availability of source code (not always mandatory, depending on the license).
• Restrictions: regional, limitations of liability, legal jurisdiction, and time limits.

That’s it. While there are more clauses, and more complex ways to describe it, there are only so many ways that software can be used; the Apache license distinctly describes four, and the GPL v2 does not even reference personal use. It seems that software licensing needs to be simplified into a “representative language” that spans the globe, is legally enforceable, and is clear.

A big distinction here is that usually, when we talk about license proliferation, the discussion focuses on yet another derivation of US copyright law in the form of another license written and enforceable only in the US English language. Open source licensing needs to surpass the US English language barrier and address a global audience of users. Real freedom will happen when original works can be shared, with constraints and conditions, in a way that can be understood by users and enforced by courts in all parts of the world. For the global future of open source software, fewer licenses are better, but one license best.

The EUPL shows that by using compatible licenses, a simple message can be communicated, a broader scope of freedoms can be encouraged, and developers can be provided an “out”. It’s our guess that more OSI-approved licenses will eventually evolve to include a compatibility clause like that in the EUPL v1.1, which allows developers to take their code and get away from the current license if they’re unhappy with the way things are going. It remains to be seen if the FSF will embrace this degree of freedom in the future.

Is freedom just another word? No, freedom is choice. And while licensing choice is baked into the EUPL v1.1, it’s not currently afforded to developers modifying GPL v2 and GPL v3 licensed software.

References and Credits

Licenses

EUPL 1.1 — http://ec.europa.eu/idabc/eupl
GPL v3 — http://www.gnu.org/licenses/gpl-3.0.html

Software patents

http://gpl3.blogspot.com/2008/08/gpl-project-watch-list-for-week-of-0822.html

US Copyright

http://gpl3.blogspot.com/2008/06/gpl-project-watch-list-for-week-of-0613.html

Jacobsen: Copyright Case

http://gpl3.blogspot.com/2008/10/gpl-project-watch-list-for-week-of-1010.html
http://gpl3.blogspot.com/2008/01/gpl-project-watch-list-for-week-of-0125.html

The Research Group

The Research Group collects and manages data regarding software policy management, open source licenses, and global software vulnerability management issues. Data and references for this article were researched by Ernest Park and Antony Tran. The Research Group actively takes submissions regarding stories, FOSS issues, and project announcements, and we are grateful to the hundreds of core contributors who have devoted their time and resources at helping us provide up-to-date information. The Research Group has hosted over 80 interns in the last year from the leading schools in the United States. To submit stories and announcements, receive more information on products, or inquire about internships, please write to rdgroup@airius.com.

There’s been a lot of commotion around Oracle’s recent bid for Sun Microsystems. Oracle is in the process of purchasing Sun for $7.4 billion, which includes Sun’s $1.8 billion in debt. With this acquisition Oracle will purchase Java, Solaris, and a bunch of hardware and virtualization tools, which together will help Oracle realize a projected increase of $1.5 billion in revenue in the first year and over $2 billion in the second year.

But let’s put the business of proprietary software and increased revenues aside for a second and consider: what will happen to all of the open source software (OSS) components of Sun — especially MySQL, which is a competitor of the Oracle database? After all, this is the question most people in the open source community are asking themselves right now. Sun is currently the firm with the largest contributions (lines of code, total dollars, and ongoing dollars) to core projects released under open source licenses. Just to name a few, they’re the backers of Java, MySQL, OpenOffice, Open Solaris, and NetBeans.

Considering the number of projects and amount of money that Sun contributes to open source, they have the power to influence the entire open source market — power which may now lie in the hands of Oracle. It’s clear that Oracle is purchasing Sun primarily to increase revenues, but what is not clear is if Sun’s open source projects were profitable themselves. It’s hard to calculate the marketing value that open source projects brought to Sun, but either way Oracle will gain the customer base that Sun built. This leaves a potentially undesirable outcome for Sun’s open source projects and the open source community as a whole.

It’s possible that Oracle will scrap many of Sun’s OSS projects to reduce their costs and cut out any unnecessary departments in order to simplify the merger and increase profits. As of 2006 Sun had contributed approximately $390 million to OSS. These are costs Oracle may not want to take this on as they are trying to make the acquisition profitable as quickly as possible.

Why should you care?

Sun has been responsible for the single largest corporate investment in open source software to date. In addition, Sun’s actively-funded and well-supported OSS projects are at the core of the open source community.

A short list (seriously) of some of the open source projects to which Sun contributes includes:

• GlassFish
• GNOME
• Grid Engine
• JavaDB
• java.net
• Jini Network Technology
• JXTA Technology
• Linux
• Mobile & Embedded
• Mozilla
• MySQL
• NetBeans
• OpenDS
• Open ESB
• OpenJDK
• OpenCDS
• Open Media Commons
• Open MPI
• Open HA Cluster
• OpenPrinting
• OpenPTK
• OpenOffice.org
• OpenSPARC
• OpenSSO
• OpenSolaris
• OpenxVM
• Portal
• PostgreSQL
• Project Darkstar
• Project Fortress
• Project LookingGlass
• Project Woodstock
• Roller
• VirtualBox
• X.Org

The Players

Sun Microsystems

Sun has been an advocate and champion of open innovation driving networked computing. Their recent direction seems to clarify who they are . . .

• Green Computing
• Open Source Software (of course)
• Security
• Open Standards
• Open Storage

And let’s not forget . . .

• Java
• The network is the computer
• The dot in dot com

Oracle

Oracle built its business around proprietary software licensing. It is a company not known for its sponsorship of the open source community. Oracle is more focused on very tactical investments in open source.

Oracle and MySQL

MySQL itself poses many problems for Oracle.

1. It costs lots money to maintain a project with limited license revenues.
2. MySQL is an actual competitor with the Oracle database.

So what is Oracle going to do with MySQL, “the world’s most popular open source database” and one of the top five databases in use? With a significant portion of the market, Oracle can’t just throw MySQL to the side once they get the chance. If they don’t control where the extra market share will go, competitors like Microsoft SQL Server — Oracle’s largest proprietary competitor — will benefit from the dismantling of MySQL.

Oracle might want to transition the MySQL user base over to the Oracle database. One way this could play out is Oracle offering MySQL as a “light” database, which would still be open source, and give customers the option to upgrade to the paid premium Oracle database. The transfer of database would be only one way so that customers filter into the paid Oracle database.

Oracle and OSS

Another way to analyze this situation (as opposed to profitability) is to look at the background and core values of each company. It is clear that Sun has a much larger stake in OSS than Oracle, as they are the largest commercial contributor to OSS, but Oracle has also had their hands in open source development. Oracle’s open source stance, as stated on their website is that:

Oracle is committed to developing, supporting, and promoting Open Source. Oracle has been, and continues to be, committed to offering choice, flexibility, and a lower cost of computing for end users. By investing significant resources in developing, testing, optimizing and supporting open source technologies such as Linux, PHP, Apache, Eclipse, Berkeley DB, and InnoDB, Oracle is clearly embracing and offering open source solutions as a viable choice for development and deployment. Today, many customers are using Oracle and supported open source technologies in mission-critical environments and are reaping the benefits of lower costs, easier manageability, higher availability, and reliability along with performance and scalability advantages.

Now is a great opportunity for Oracle to show their support by taking on Sun’s larger commitments to open source software. Oracle has a choice to either cut out down Sun’s open source developments to increase profitability or harden their open source values.

Oracle and Commercial Open Source Software

Scott McNealy said in 2005, “Open source is free like a puppy is free.” According to Scott, Sun has a growing and dominant business taking care of puppies — all those enterprises with applications built on open source software and running on Sun hardware.

There is of course the third possibility that Oracle will increase their support of open source because it’s actually profitable. However, this remains an ongoing test for open source. Sun believes that open source support can be profitable, but does Oracle?

As Larry Augustin stated on his blog, it was rumored that Oracle was willing to pay $850 million for MySQL last year, before Sun ended up buying the company for $1 billion. It’s a bit ironic that Oracle could now get MySQL pretty much for free, but Oracle did once — and potentially still does — see value in MySQL and the open source model. OpenOffice also has the potential to battle Microsoft Office, with a little tweaking here and there. If Oracle can fit open source into their business model and make it a profitable venture, OpenOffice could be a contender in a market monopolized by the Microsoft suite, which would make it the real sleeper in this acquisition.

Hindsight

Looking back at other large mergers, we can see how this play by Oracle might end up.

Sun/Netscape, Who?

One case we can look at actually involves one of the parties currently involved, Sun. Back in the 90’s when Sun merged with Netscape, the merger was called the Sun-Netscape Alliance. A striking feature of this merger that you may notice is that the “Netscape” part of the deal disappeared along with the 90’s. Sun effectively bought Netscape’s software and discarded the brand name, which had value in itself and was later sold to AOL. Applying that model to the current situation generates a few interesting questions:

• Will we see Oracle dismantling Sun for only the parts that are explicitly valuable?
• Will they dismantle the hardware and open source departments and focus in on Java and Solaris?
• Could Oracle focus on taking out Microsoft with OpenOffice and disregard all of Sun’s good work in security, open source, green computing, and more?

The open source community should hope that this is not the scenario that the merger will follow. One of Sun’s core values is open source software, and as this merger takes place Sun may defend their open source departments if they are called into question.

The Time Warner Tail Wagged the AOL Dog

On the flip side, a merger that turned out quite differently was AOL-Time Warner, in which AOL bought the much larger Time Warner for $164 billion. In this case the business model of AOL turned out to be flawed, and it was Time Warner’s core values that ended up on the better side of the merger. Over the following years AOL-Time Warner reported large losses in the tens of billions, and in the end it was the buyer’s name that was dropped, leaving Time Warner as the company left standing.

This scenario may come to fruition if two things are true. First, Oracle would have to believe that open source is not worth capital investment. Second, open source would need to prove that it is indeed the business model of the future for tech companies. A misjudgment of the market such as this could lead to a decline in Oracle’s power while Sun’s power rises. If Sun’s core values ultimately lead the new company, it could be a large boost to open source software and Sun could rise again.

Summary

We may be getting far ahead of ourselves, seeing as the acquisition is far from complete. They still have to finalize the deal and go through the review process from the U.S. Justice Department and Federal Trade Commission. This is, however, an important development to the open source community. The result will depend on the truthfulness behind Oracle’s statement of support for open source. Many companies believe it still poses a risk too high to take on, but this could be due to excessive FUD (fear, uncertainty, and doubt).

There are plenty of upsides to Oracle strengthening its stance on open source. Oracle could better contend with competitors like Microsoft and may usher in a new business model for the next generation of computing. Open source has great potential to add value to a company, and this may be Oracle’s chance to explore the business possibilities.

References

• http://ab-at-sun.blogspot.com/2008/01/sun-is-largest-enterprise-contributor.html
• http://blogs.zdnet.com/BTL/?p=16598
• http://gigaom.com/2009/04/20/oracle-to-buy-sun-for-74-billion/
• http://blogs.zdnet.com/Gardner/?p=2903
• http://marketing.openoffice.org/planet/
• http://news.cnet.com/8301-13505_3-10223090-16.html
• http://lmaugustin.typepad.com/lma/2009/04/oracle-buys-java-and-mysql-for-free.html
• http://www.oracle.com/technology/tech/opensource/oracle-open-source-faq.html
• https://fossbazaar.org/content/free-puppies