Hello all,
I have a project that is to be built by a great drupal team, but I am a little concerned about the way they are proposing to do it.
The plan is to create an enhanced type of interview engine with some special functionality. They want to use drupal, mainly because there are tons of content pages that aren't really part of the interview engine, and it seems like a great way to go for the CMS part of the site. The interview part was to be custom coded as a module. That code is intended to be used only by a single public facing website owned by the client company - they have no intention of selling it or otherwise distributing it. Actually their intention is to develop the product for a while, then sell it off.
My understanding was that while drupal was under the GPL, they could create a custom module and as long as they didn't contribute it or distribute it they could essentially retain rights/ownership of it. Then, the could essentially sell the rights to that module and the IP associated with their site content without getting into any sticky licensing issues.
I am still trying to confirm that my above understanding is correct. However, the developer is proposing to take the quiz module and extend it to get the functionality that we need. Now, technically I am not all that convinced that using the quiz module as a starting point will get us where we need to be. But, doesn't that sort of relinquish our rights to our own product, in a way? After all, quiz is under GPL and is freely distributed so if we blatantly take it and extend it, can we then say that it's custom, undistributed code and try to sell the interest in it?
Very confusing, to a non-lawyer type like myself. Can anyone help to clarify this?? Any help much appreciated.
thank you! Dave
Comments
If you build off of the Quiz
If you build off of the Quiz module, then all of the existing code in Quiz is owned by someone not-you, and licensed to you under the GPL, just like Drupal core itself. Any non-trivial enhancements you make to it you hold the copyright to, but as the resulting Quiz-enhanced module is a derivative work of Quiz if you distribute it, it must be distributed under the GPL. Simply running it on a site you control does not count as distribution. That applies equally to Drupal core, Quiz, and any other contrib module you use.
If you write a module from scratch, you hold the copyright to it but it is still a derivative work of Drupal and therefore if you distribute it then you must do so under the GPL.
Were you to sell the site later, you could sell the copyright to your extensions but, really, those are pretty worthless. What you'd be selling is the site content, user base, and customer good will. If you wrote your own module from scratch, that would still be the case. The code itself is not valuable; what you've built with it is.
Largely correct, except if
Largely correct, except if you write something from scratch, it's not a derivative work of anything. You can choose whatever license you like for modules you write, and you can still distribute them however you want, you just can't distribute them on Drupal.org.
scratch
Unless you mean "scratch" to be really zero (as in, no framework, code, drupal or any other source), the answer is no. if you start your won Drupal module and choose to distribute it, it is under the GPL(v2+). It doesnt matte rif you start your module from scratch, if it is using Drupal Core to function and cant be run without Drupal, it is GPL.
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bert boerland
What about PHP? Libraries
What about PHP? Libraries Drupal uses, gzip? What about the operating system APIs? POSIX? What about Drupal? None of these programs are being copied or distributed, and so under copyright law, do not constitute a derivative work (code is considered a literary work, read the statute!). If Drupal source code is not being distributed, the GPL does not apply. Period. I am not required to accept the GPL in order to write a module for Drupal, because all the GPL does is give me permission to redistribute Drupal, something which I as a module developer do not do. A newly written module that does not copy Drupal code is truly "from scratch". The fact the module code is executed by Drupal is no more relevant than the fact PHP or the OS executes the code in turn. As I linked to, the courts overwhelmingly support this position: Merely using an API, or executing code in a "shared code space" are not grounds to deem a work a derivative work.
The argument, that modules for GPL-software must also be covered by the GPL, is an argument that code which an independent developer writes may have its terms of use dictated by a corporate overlord. This position is extremely dangerous to free software.
not the same as PHP
Your comparison to PHP is a dishonest one. The PHP license is a BSD-style license which does not have the "copyleft" restrictions associated with GPL..
You might also enjoy reading about the "AFC" test, which is one way of determining what is a derivative work. The results of such a highly fact-dependent analysis could be different for each Drupal module, and it even depends on which court you are in!
If your goal is to build a business with Drupal, it would be safer to follow the SFLC's advice.
If your goal is to become the first GPL test case, then there are surely people ready to engage you.
It's a fair comparison
It's a fair comparison because no one is arguing that Drupal is a derivative work of PHP. What about programs written in Perl? Drupal ships with Perl code. What about the numerous PHP libraries including MySQL? Drupal makes heavy use of the MySQL client. Now this may be legal because Drupal is also GPL'd, but what about all the other programs? What about propritary code? What about my choice of license, Unlicense? Is one really going to argue that I have no right to place my code that I write into public domain merely because it's written for Drupal?
The SFLC has no position on this that I am able to discern, neither does the FSF. Even if they did, how about cite an organization that has actually won court cases, including high profile judgments favorably citing the source of the AFC test, Computer Associates Intern., Inc. v. Altai, Inc., where the defendant copied in entirety the logic and API of a program in a clean-room rewrite, the court finding that does not constitute a derivative work. The opinion utterly destroys the notion that in all cases whatsoever a copyrightable Drupal module would be a derivative work of Drupal.
There's no doubt that the GPL holds up as a copyright license, restricting distribution of that program to the terms and conditions it specifies. But you actually have to be distributing the program in question! Distributing a Drupal module requires NO permission from the Drupal copyright owners, via GPL or otherwise. You too are arguing in favor of a view that would grant a corporate overlord, instead of the developer, the ability to permit distribution of modules for their software, and so would be able to grant or restrict permission at will if they decided. Such a reality would not favor the GPL, but instead would be the end of free software as we know it.
umm
actually, you are the very first one I ever heard say that a PHP programming (like Drupal) is a derivate of the language PHP. So the fact that no one is debating your PoV might have something todo with the fact that you are alone in this thinking :-)
While there havent been many many cases in court about the validity of an open source license like the GPL, there actually have been some if you look outside the USA. The great site http://gpl-violations.org/ is mainly active in the EU (started in DE) but lists some real cases where the GPL has been testen in court. Dlink, Fritzbox, Kiss, TomTOM, Cisco all have either prevented a court decision by making a deal or actually lost in court.
See some real verdicts at http://gpl-violations.org/news/20111110-avm-cybits.html , http://gpl-violations.org/news/20060922-dlink-judgement_frankfurt.html , http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf but there are alos some cases in the USA http://www.groklaw.net/article.php?story=20100803132055210
And then there is/was the great site of http://www.groklaw.net/ Yes, in fact it can be considered a lost that SCO didn't really loose the way open source advocates would have liked it. On the other hand, the outcomes changed the landscape, it changed Microsoft, Unixes and it sure as hell changed anyone who thinks they can fight with and win from a community without lots of pain.
Then your "But you actually have to be distributing the program in question!", yes. That is the point of a license. Without a license or right to own an original work, one is copyright violator. And that is why I dont understand the next sentence: "Distributing a Drupal module requires NO permission from the Drupal copyright owners, via GPL or otherwise." If you dont accept the GPL, then who or what gave you the right to distribute the original work of others? Under what logic can you copy he work of others without having the license to do so? I dont understand this logic at all and no law in the world follows your logic.
But then again, if one doesn't accept the boundaries of the freedom of the GPL, one always has the freedom not to use it, not to write code for it or not to distribute it.
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bert boerland
All Drupal modules are GPL
Acubed: The Drupal Association (with guidance from the Software Freedom Law Center) has taken the position that all Drupal modules are GPL. See http://drupal.org/licensing/faq#q7.
While the DA's taking this position doesn't make it law, it was written by experts. Other GPL projects (such as WordPress and the Linux kernel) have similar positions.
(btw Crell has served as the DA's Director of Legal Affairs, so he also has expertise on the subject.)
I'm making the point that
The SFLC has not defended that position when I have asked them, nor is it a position held by kernel developers as a whole, as you can specify any license you want for kernel modules (if they get included in the Git tree is another matter). I've taken issue with the FAQ with relatively extensive legal research, or relative to what I've seen, which is absolutely nothing except "we've talked with lawyers" (who won't even defend the position in public that I've been able to see) "and they say it's sound" (to paraphrase in general). Claiming copyright law should be able to allow a software developer to control distribution of any products that merely work with their product is an extremely dangerous one, and a position the courts have struck down numerous times, as I linked to... A discussion is already there, a continued discussion should probably go there too.
I'm making the point that I believe to be correct by saying that copyright statute defines what a derivative work is (and it's very explicit about it), so writing code from scratch that provides entirely new functionality is not covered by the definition, and clarifying that the GPL requirement is (and can only be) a contractual requirement of getting your code hosted on Drupal.org.