The question

It’s been a while since I’ve dropped a post here. Hell, I even bypassed the entire coming into effect of the GDPR (though I have written about it elsewhere: The GDPR and its practical global effect, whether we like it or not). Life gets busy sometimes.

Anyway, yesterday I received an interesting question through the Ask me a question page of this site. The question was this (I’ve removed some names to make the example more generic):

“Let’s say a code project has been released under the GPL for years. The original author of the project (let’s call the author Charlie) or his or her company (let’s call it CharlieCo) wants to take it under a proprietary licence. Is Charlie or CharlieCo allowed to do this, given that the original work was released under the GPL (and has been licensed under the GPL for ages) and given that the original author has accepted contributions under that licence?”

When asked this question, most lawyers practising in this field can be expected to say things like: “There aren’t enough facts to give you an answer” or “what do you mean by ‘take it under a proprietary licence’?” or “tell me more…”. This is because we need to know:

• whether Charlie or CharlieCo owns the original code;
• whether contributors assigned/transferred their copyright in their contributions to Charlie or CarlieCo (with Charlie or CharlieCo becoming the owner and then freely deciding to license those contributions under the GPL) or, as is the case with contributions to WordPress, the contributors retained the copyright but released it to the project under the GPL; and
• whether Charlie or CharlieCo will distribute the code in its latest form.

The answers to these questions will determine whether the GPL permits what Charlie or CharlieCo may wish to do.

For the purpose of answering the question put to me, I’m going to chart out 3 different permutations to these questions, in three different fact scenarios. I suspect Scenario 2 is the scenario the person who asked the question had in mind, but it may help some people to chart out the different scenarios to get a better understanding of relevant aspects of the GPL.

The three scenarios

Scenario 1

In this scenario:

• Charlie owned (and still owns) the copyright in the original code;
• contributions to the code by third party developers were released to the project under the GPL but without any assignment or transfer of copyright ownership (i.e., the normal WordPress approach); and
• Charlie will adapt the combined codebase for a different and internal project, but will not distribute the adapted code.

On these facts, Charlie can do what’s proposed consistently with the GPL. In other words, Charlie will not be breaching the GPL. This is because the GPL’s ‘license your modifications under the GPL’ requirement is only triggered upon distribution of the codebase. In this scenario as I’ve described it, there is no such distribution.

Scenario 2

Scenario 2 is the same as Scenario 1 but there will be distribution of code:

• Charlie owned (and still owns) the copyright in the original code;
• contributions to the code by third party developers were released to the project under the GPL but without any assignment or transfer of copyright ownership (i.e., the normal WordPress approach); and
• Charlie will adapt the combined codebase for another project and sell that adapted combined codebase under a proprietary licence.

In this scenario, there would be a clear breach of the GPL. This is because Charlie is distributing the adapted combined codebase but is not licensing it under the GPL. There are actually at least two breaches: first, presumably Charlie will have removed the GPL licence statements from the original combined and GPL-licensed codebase (this alone is a breach); and second, Charlie is not licensing the adapted combined codebase under the GPL, that is, Charlie is not licensing Charlie’s own contributions to the combined codebase under the GPL (the pre-existing code components were already GPL-licensed).

Scenario 3

Scenario 3 is the same as Scenario 2, but Charlie owns all the code:

• Charlie owned (and still owns) the copyright in the original code;
• the copyright in contributions to the code by third party developers was transferred to Charlie; and
• Charlie will adapt the combined codebase for another project and sell that adapted combined codebase under a proprietary licence.

This is an interesting scenario. It wouldn’t happen in the ‘WordPress core’ space (by which I mean the downloadable WordPress CMS) because, as noted above, contributors to WordPress core retain the copyright in their own contributions but release them under the GPL. However, it could happen in other open source contexts.

The short answer is this: if Charlie owns the copyright in all the code in the combined codebase (i.e., both Charlie’s own contributions and the contributions of others because those others transferred copyright ownership to Charlie), then Charlie can license the combined codebase as s/he pleases. As the copyright owner, Charlie can license the combined codebase under the GPL, or under a proprietary licence, or both.

This may sound counter-intuitive to some people but, from a copyright perspective, it’s not. A copyright owner can choose to license copyright code or other content s/he owns in whatever way s/he likes, and s/he can do that under multiple different licences if s/he likes. An exception to this is where a copyright owner grants an exclusive licence that precludes other forms of licensing, but that is not the case with the GPL. The GPL is not an exclusive licence. So, in this scenario, Charlie can license as s/he pleases.

Parting comment

As noted above, I suspect the person who asked this question had Scenario 2 in mind. In that scenario as I’ve described it, there would be clear violations of the GPL.

(Thanks to Kristina V for the Freedom image, available on Unsplash)