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SGPL and GPL: Where and Why they differ?

Rahul Matthan
Legal Counsel for the Simputer(TM) Trust

We believe that the SGPL can do for hardware what the GNU GPL has done for software. Though the two models are different in many ways, they are similar in spirit.

This note examines various concerns raised by GPL enthusiasts with regard to the SGPL and attempts to present the view of the Simputer(TM) Trust and the principal draftsmen of the SGPL in the context of these remarks.

  • 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.

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