Freedom and Choice in Open Source Licensing: Comparing the EUPL v1.1 and the GPL v3

The European Union Public License (EUPL) version 1.1 was released and approved by the Open Source Initiative (OSI) on January 9, 2009. A major milestone in the evolution of open source licensing, the EUPL contains some important distinctions that set it apart from other popular open source licenses: it’s written with native language support for all EU member countries, it’s compatible by design with a number of OSI-approved licenses and — also by design — incompatible with the GNU General Public License version 3.0 (GPL v3). Could this possibly be a message to the Free Software Foundation (FSF) and the open source community that there really is a vital, innovative world outside the borders of the United States?

While members of the open source community often bristle at the mention of yet another license, many people have welcomed this one. The EUPL is unique in its encouragement of interoperability, freedom, and lack of license lock-in upon redistribution. By making specific distinctions, it represents a divergence from the typical freedoms afforded by whatever the latest iteration of the GPL may be.

As noted in the Wikipedia entry for the EUPL, the EU had some specific goals in mind when drafting this license:

“With license proliferation a growing problem, the European Union justifies its license as the first open source license to be released by an international governing body. The European Union also wishes to dispel legal uncertainties, real or perceived, in respect of other open-source licenses, such as the GNU General Public License, by creating a software license which takes due account of European Union Law. A third goal of this license is to create an open-source license available into 22 official languages of the European Union, and is sure to conform to the existing copyright laws of each of the 27 Member States of the European Union. Lastly, to dispel fears of license proliferation, the license was developed with other open-source licenses in mind and specifically authorizes covered works to be re-released under the following licenses: GNU General Public License (GPL) v. 2; Open Software License (OSL) v. 2.1, v. 3.0; Common Public License v. 1.0; Eclipse Public License v. 1.0; CeCILL v. 2.0.”

At the same time, the EUPL tries to take a more international view on the enforceability of an agreement that requires oversight in many jurisdictions. Licenses originating in the United States are derivatives of US copyright law, so as far as they’re concerned international considerations are non-existent. While translations of existing FSF licenses are informative and referential, the US English employed is the only contract language.



Both the EUPL and the GPL v3 are copyleft licenses, so some of you may be wondering whether there are any significant differences between them. Choosing the correct license could be as simple as using the GPL v3 if the software is originated in the US, and the EUPL v1.1 if the software is from Europe. Who really cares?

We do, and here’s why: the EUPL v1.1 is conspicuously missing something that could be fairly significant depending upon which side of the Atlantic you happen to live and work. The GPL v3 is not included in the EUPL’s list of “compatible licenses” under which subsequent works can be re-released — a provision included in the EUPL in order to help fight license proliferation. We agree that license proliferation is a growing problem with open source licenses, but why did the EU specifically exclude the GPL v3 from the list?

One explanation for the EUPL’s purposeful incompatibility with the GPL v3 might involve freedom, and what it means to open source licenses. As copyleft licenses, the aim of both the EUPL v1.1 and the GPL v3 is to free the code from proprietary copyright laws. However, the freedoms provided by the GPL v3 may be limited to the US, and so may not be “free” enough for the global community. For example, is it truly freedom if you’re protected from intellectual property claims, but then forced to use a specific license — one not of your own choosing — to distribute your original work? This may be one of the problems that the EU has with the GPL v3. Once a work is created under the GPL v3, all subsequent works will be licensed under it as well. In contrast, works licensed under the EUPL v1.1 can be re-licensed under any of the different licenses on their compatibility list. Perhaps the EU does not want software created under the EUPL v1.1 to be trapped within the confines of the GPL v3 later.

Here’s something else to consider. The GPL was originally derived from US copyright law, which creates a license bias toward issues unique to the United States. It may very well be that the FSF created their license to be specific to the US software community, but that distances it from the global community. There’s a large world of software developers and users outside of the US, and their concerns are different those of US-based developers and users. It makes sense that they want a license that addresses those differences. Many OSI-approved licenses (including but not limited to the GPL v3) do not address a global audience, and it’s a fair assumption that current efforts like the EUPL are just a hint of what is to come in global or regional licensing outside the US.

By excluding the GPL v3 from compatibility with the EUPL, the European Commission is indirectly pushing out the FSF as a presence in open source licenses in Europe. The GPL v3 is the FSF’s license for the 21st century, and it is now incompatible with what may very well become the predominant license in the EU. As the first license to be released by an international governing body, the EUPL has the potential to become widespread not only in Europe but worldwide. The 22 different languages in which the EUPL v1.1 is released also increase the likelihood that usage will spread quite quickly. Given these circumstances, we think it’s pretty significant that the GPL v3 cannot be merged with any code under the EUPL v1.1.



EUPL v1.1 and the European UnionThe European Union Public License (EUPL) v1.1 was released on January 9, 2009. This license was created by the European Commission, the executive branch of the European Union, and is available in all 22 languages of the EU. The European Union, for those who do not know already, is a union of 27 European countries (called Member States) that was established on November 1, 1993. These Member States joined together for various economic and political reasons. Primarily, the partnership allows for easier commerce and trade among the different countries. The creation of the EUPL is another step in unifying and standardizing the products — in this case software products — that are used within the European Union.

By creating a license in multiple languages, with equal validity for all linguistic versions, the EU has created a framework within which future open source projects in the European Union can work. It’s also worth noting that the EUPL is the first license to be released by an international governing body. The original version (EUPL v1.0) was created on January 9, 2007 and its provisions still account for most of the license. Only seven modifications were made to the original license, and these were included primarily for purposes of clarification. The main revisions in the 2009 version of the EUPL allow for other linguistic versions of the license to be created by the European Union, giving it worldwide distribution potential.

GPL v3 and the Free Software FoundationThe GNU General Public License (GPL) v3 was released on June 29, 2007. It was created by the Free Software Foundation (FSF), which is headed by Richard Stallman. The FSF, which was founded on October 4, 1985, is a US-based, non-profit corporation that promotes the free software movement — an ideology that combats US copyright law to allow for modification and redistribution of software code without restriction. According to Richard Stallman: “The free software movement is not merely personal. It is a political movement like the environmental movement, the civil rights movement, etc.”

The original GPL license was released in January of 1989 and we’ve seen two subsequent versions since then. The GPL v3 is considerably different from the GPL v2 (which makes sense, since the GPL has been around much longer than the EUPL). In each version, the FSF attempts to maintain their values while adapting to the current technological situation. The main revisions and concerns in the GPL v3 involve modern topics such as time-shifting restrictions, Digital Millennium Copyright Act (DMCA) specifics, and “tivoization”.




Copyright Airius Internet Solutions, LLC 2009, reprinted with permission from OpenLogic Corporation.





LicensesEUPL 1.1 —
GPL v3 —

Software patents

US Copyright

Jacobsen: Copyright Case

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