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374
Harvard Journal on Legislation
[Vol. 47

gram, and are irrevocable provided the stated conditions are met.”[1] This guarantee makes explicit a promise of permanence that has always been implicit in the peer-production model: it “assur[es] . . . developers that their work could never be taken away from them,”[2] but will remain in the commons in perpetuity.[3] It is precisely this assurance that the Copyright Act’s termination provisions may place in doubt.

A GPL variant used for some FOSS works, the GNU Lesser General Public License (“LGPL”), incorporates most of the provisions of the GPL.[4] The key difference is that the LGPL relaxes the GPL’s copyleft condition as applied to application programs dynamically linked[5] to LGPL-licensed library code. This waiver from the GPL’s strict copyleft condition is believed to encourage the commercial use of LGPL-licensed content.[6]

  1. ↑ GPLv3, supra note 53, § 2 (emphasis added). Earlier versions of the GPL were silent on this point. See Kennedy, supra note 68, at 373.
  2. ↑ Shirky, supra note 11, at 273.
  3. ↑ See Robert W. Gomulkiewicz, De-bugging Open Source Software Licensing, 64 U. Pitt. L. Rev. 75, 83–84 (2002) (“The GPL makes creative use of a contract to reverse the copyright monopoly by permanently giving away the exclusive rights of a copyright holder, what Stallman whimsically calls ‘copyleft.’ ”); Johnson, supra note 70, at 404 (“The GPL dedicates software in perpetuity to a regime in which it must be shared with others.”); Daniel B. Ravicher, Facilitating Collaborative Software Development: The Enforceability of Mass-Market Public Software Licenses, 5 Va. J.L. & Tech. 11, 67 (2000) (Copyleft condition “achieves the goal of ensuring that all copies or modifications of the program are forever publicly licensed”); Mitchell L. Stoltz, Note, The Penguin Paradox: How the Scope of Derivative Works in Copyright Affects the Effectiveness of the GNU GPL, 85 B.U. L. Rev. 1439, 1475 (2005) (“The GPL guarantees that source code will be perpetually available, and this guarantee is an important part of GPL software’s commercial value.”). This is certainly how the GPL has been understood within the FOSS community. See, e.g., Jay Michaelson, There’s No Such Thing as a Free (Software) Lunch: What Every Developer Should Know About Open Source Licensing, Queue, May 2004, at 41, 42 (“GPL partisans like to call it a ‘protective license’ because it ensures that code covered by it will remain open source forever.”); Chris Maxcer, Free Software Licensing, Part 2: Beyond GPL, Linux Insider, July 27, 2007, http://www.linuxinsider.com/story/58530.html (“Basically, though, GPL v2 and v3’s key point is to make the code ‘free forever.’ ”).
  4. ↑ See FSF, GNU Lesser General Public License, Version 3 (2007), available at http://www.gnu.org/licenses/lgpl.html [hereinafter LGPLv3]. The Preamble of the current version of the LGPL states, in part, that “[t]his version of the GNU Lesser General Public License incorporates the terms and conditions of version 3 of the GNU General Public License, supplemented by the additional permissions listed” in the remainder of the LGPL. LGPLv3, supra, pmbl. Use of the LGPL is presently discouraged by the license’s drafters; the Free Software Foundation suggests that FOSS authors use the GPL instead, unless a compelling reason for adopting the LGPL exists. See FSF, Why You Shouldn’t Use the Lesser GPL for Your Next Library (2007), available at http://www.gnu.org/licenses/why-not-lgpl.html [hereinafter Why You Shouldn’t Use the LGPL].
  5. ↑ “Dynamic linking” refers to a software development technique that makes the functionality of a library accessible to an application program while running without actually copying the library’s object code into the application’s object code. See Stoltz, supra note 76, at 1449. Dynamic linking is believed to offer some technical advantages because the library may be updated separately from the application programs that rely on it and its improved functionality made available to all application programs that link to the library without requiring the applications themselves to be updated. See id. at 1449–50.
  6. ↑ See, e.g., Carver, supra note 55, at 459–60; Lothar Determann, Dangerous Liaisons—Software Combinations as Derivative Works?: Distribution, Installation, and Execution of Linked Programs Under Copyright Law, Commercial Licenses, and the GPL, 21 Berkeley
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