As Black Duck’s in-house counsel, I talk to many lawyers representing our customers and in the Global 2000 generally. I’ve found that there is a common misperception around the impact of the GPL on IP that is worth clearing up. Many lawyers (and non-lawyers) mistakenly conclude that the copyleft nature of the GPL – namely, the obligation for an author using GPL licensed code to make available their own source code to any recipients of that author’s work based on GPL licensed code – requires an author to give up their copyright in that code. While the GPL does require a sharing of the source code, the author is not required to assign or transfer their copyright to any entity, including the Free Software Foundation (the stewards of the GPL), or otherwise surrender their IP to the “public domain.” Let’s consider two cases.
Suppose you make and distribute some sort of device, maybe a tablet or a piece of networking equipment, and you build your software stack in the device by combining your code with GPL licensed code, and you do so in such a way that the GPL obligations are triggered over your code. Under the GPL you are required to make the combined work available under the terms of the GPL license, and at no charge. However, you are not required to assign your copyright. In fact, the GPL v2 makes this explicitly clear: “Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.”
Now, it may be the case that, since you’ve made your code available under the GPL, in effect, you’ve surrendered some of the value of that IP. But not in all cases. Going back to the example, if the code is used in one device with the GPL code but in another without, you continue to derive value from that IP. For instance, many companies actively pursue a dual-license strategy. In that case, a company may strategically release certain code under the GPL (and, importantly, not under a permissive license) in the hopes that others will adopt and improve on that code. Meanwhile, that same company may license that same code to OEMs, for instance, for a fee, as long as it contains no other third party GPL code. The trick, as always, is keeping the IP separate and having good practices in place manage OSS and to know what is in your code.
As the copyright holder, the licensor has the right to dictate under what licensing regimes its code is licensed. This strategy would not be possible if licensing under the GPL (intentionally or by application of the copyleft requirements) somehow resulted in the transfer of copyright.
