The license is extremely disturbing, because it claims that information
is a trade secret and its use is restricted, even though it is available to
the whole world.
The license is no more disturbing in this context than the GNU GPL. However,
it may appear to be so since they are each addressing two very different
types of subject matter.
The GNU GPL licensing model, prevents any person who modifies GPLed software
from claiming a monopoly right in respect of such modified software. Since
intellectual property law is based on the grant of monopoly rights to the
creators of intellectual property, the GNU GPL had to devise a mechanism
that defied the natural tendency of the law towards perpetuating a monopoly.
This it sought to achieve by ensuring that it had copyright protection in
respect of the protected software and then, having established ownership
over the software, immediately released the "protected" software to the
world at large.
To quote from the GNU GPL:
"We protect your rights with two steps: (1) copyright the software, and (2)
offer you this license which gives you legal permission to copy, distribute
and/or modify the software."
Since the copyright established ownership the GNU GPL operated as a valid
contract, the terms of which had to be adhered to by all who used it. Thus
obligations such as those stating that no-one using the GPLed software could
claim exclusive monopoly over their modifications (even though they had an
intellectual claim over it) were sustainable.
The SGPL does not seek to protect copyrightable subject matter. As a result
the same mechanism could not have been adopted in the context of the
Simputer hardware specifications. While we could attempt to claim copyright
over the specifications as stated, such a claim would be easily defeated by
anyone who made sufficient modifications to the form and expression of the
specifications in the form in which it was stated so as to escape copyright.
In the context of the hardware specifications such modifications are much
easier to carry out than in the context of software source code.
Accordingly, we had to devise a different form of ownership upon which we
could base the free distribution. Clearly patent protection was out of the
question as the process to obtain patent protection was too long drawn out
to make realistic sense. Furthermore, to take out a patent on essentially
"free" subject matter was philosophically inaccurate.
The solution that we came up with was to ensure that each person who
downloaded the specifications agreed contractually to refrain from assuming
ownership over modifications. Thus each download of the software could only
take place after the person downloading agreed to be bound by the terms of
the SGPL. Since there was no in rem copyright type protection, the only
protection we could achieve to suit the purpose was a contractual protection
in the form of the SGPL.
This is the context in which the SGPL mentions "trade secret" protection.
Rather than keeping the intellectual property secret (as is the case with
traditional trade secret mechanisms) the SGPL uses trade secret law in the
same way that the GNU GPL uses copyright law - to prevent the creation of a
monopoly. Even a cursory glance at the terms of the SGPL would indicate
that.
In that light, the SGPL is no more dangerous than the GNU GPL. Both licenses
have established "ownership" one by seeking copyright protection, and the
other trade secret protection. Both licenses, having established ownership
as the basis of the contract, have ensured that no-one using the
specifications can create a private monopoly on their own terms. Both allow
the public at large to access the specifications/ source code without
discrimination, provided the terms of the license are observed. Both
stipulate consequences of a failure to adhere to the terms of the license.
In these and many more ways, both forms of licenses are extremely similar.
Another issue is that nobody is allowed to manufacture anything without
paying for a license.
While it is true that the Trust has adopted a license mechanism for the SGPL
and that this is a departure from the GPL model, the need to impose such a
mechanism was felt to be necessary in the context of hardware distributions
such as these.
In the first place, it is not correct to state that no-one can manufacture a
Simputer(TM) without a paying for a license. There is no restriction on the
manufacture of non-commercial Simputers(TM) for which no license fee is
required. Technically anyone seeking to make one, two, fifty or five hundred
Simputers(TM) for their personal use can do so without restriction and
without paying anyone a license fee. However, before the first commercial
sale of any such Simputers(TM), persons manufacturing such Simputers(TM) are
required to seek a license from the Trust for such manufacture. Once again
it must be pointed out that any license fee paid is a "one-time" fee that
holds good for the entire life of the organization seeking the license.
There is no per-copy royalty nor even a per-modification royalty. Once an
organization pays the license fee there is no further need to pay a license
fee at any time thereafter.
These provisions of the SGPL were much debated and ultimately included in
order to ensure that the standards and social emphasis of the Trust were
achieved. It is important that the SGPL be seen in its social context. In
the light of what is seeks to achieve (in terms of bridging the digital
divide) its targets are much greater than the GNU GPL and accordingly, some
of the provisions of the SGPL must necessarily address those concerns.
Accordingly, it was felt that, particularly in order to ensure that the
technology does not meet an untimely death at the hands of irresponsible or
inefficient manufacturers, provisions be included in the SGPL itself to
ensure that the Trust had a measure of control over the quality of the
devices produced under the name of the Trust.
If this means that the SGPL is not fully "free" in the same sense as the
GPL, then this is a cross that the Trust is willing to bear if such
restrictions will help spread the Simputer(TM) message. To the Trust, while
the philosophy of the Simputer(TM) distribution is rooted in the GPL
philosophy where departures from the philosophy are mandated to achieve the
social purpose, the model will be appropriately altered.
