Hell hath no fury like an open-source developer scorned. In the red corner, we have Portable Apps and its developer, John Haller. In the blue corner, we have LiberKey and project manager Christophe Peuch. Both programs are suites of applications that can sit on your USB key for portable use. Both offer a number of open-source or freeware apps that assist you in your everyday PC tasks without costing you a single penny. At one point, it was argued that both shared an identical design, layout, and operation. But that's just one of the many charges being heaved across the battleground--its accuracy, along with the others, is subject to dispute.
I wrote a while back about the confusing issues surrounding open-source and freeware licensing. They haven't changed. The controversy over LiberKey is a perfect example of the confusion--enough so, that Maximum PC itself removed a mention of the suite from one of our freeware roundups after allegations of wrongdoing on the developer's part. But is this piece of software as guilty of the violations as the Internet chatter would have you believe? Or has LiberKey done its fair share to eliminate the liabilities caused by its inclusion of open-source and freeware apps into a large package manager?
Why should you care? That's the easiest answer of them all. Supporting applications that stick to the legal guidelines of trademark, permissions, and licensing ensures you're downloading stable, safe, and secure packages that foster the spirit of open source software. If you support software that flaunts the rules, you disrespect the work of those who contribute their works to the greater community. And I wouldn't want to lose these developers--nor their awesome (usually) free applications.
Here's a brief background: On various forum posts, John Haller--creator of the PortableApps software suite--has called out LiberKey for trademark and GPL violations related to the licensing of the open-source and freeware apps bundled in its software suite. Although LiberKey has responded to various forum posts on the topics, it's been difficult to track down their arguments for two key reasons. First, the developers are French. Their official forums are in French and their occasional replies to LiberKey criticisms come in the form of readable--but admittedly crude--English. Second, the developers have yet to release an official stance beyond these difficult-to-track forum replies. However, I contacted LiberKey for their side of the story, and they sent me an official statement they've created to respond to the licensing allegations.
It's easy to first misconstrue Haller's accusations as sour grapes. LiberKey, after all, is a direct competitor to Haller's work. He has also alleged that original incarnations of LiberKey directly ripped off his work with PortableApps by packaging his software routines alongside additional modifications--including stripping out PortableApps logos, modifying source code, and removing accompanying licensing materials. LiberKey refutes these claims, but did ultimately stop publishing its software suite for a time to create new installation and application launching software.
Backstory aside, Haller now cites three chief reasons why LiberKey is in violation of various legal requirements. It's no small surprise that his arguments all center on the three primary issues that often pop up when dealing with open-source distribution: permissions, licensing, and trademarks.
Haller's Accusation: According to Haller , LiberKey distributes open-source and freeware software without permission from the developers.
LiberKey's Response: "Regarding freeware, each license is different. Hundred software is hundred different licenses [sic] to be examined (each one may have specific limitations). These limitations have led us to numerous requests for permission to authors / publishers when license required."
If a software developer has an issue with LiberKey's inclusion of a program, they need only contact the LiberKey developers to have the application quickly removed. Accordingly, LiberKey's Christophe Peuch says that LiberKey will not be releasing any records related to the permissions it has gathered from freeware developers.
"Now, who, except a copyright owner is mandated to argue whether the agreement was granted or not? Is PortableApps mandated? Why don't they contact each author and ask them the question? Why don't they draw their attention on us and seek their position on how come we include their software [sic] into the LiberKey suite?"
Analysis: I contacted BitTorrent Inc., as its freeware uTorrent application has been frequently cited as one which the developers would "never give permission" for distribution. As it turns out, that's not the case. Simon Morris, Vice President of Product Management, stated that the company has no problems with users distributing its software in a free, unmodified format, provided an attribution to the source Web site is included. I could find no demands for permissions on the uTorrent site, nor did Morris indicate that permission would be required prior to distribution.
That's not the case with all freeware applications. But on this, it's difficult to deny LiberKey its point. The duty of negotiating permissions and following up the on illegal distribution of a piece of software falls on a developer's shoulders, not a third-party's. It's unfair to criticize LiberKey without direct proof that it's bundling an application without permission, as these allegations amount to little more than, "he-said, she-said" assaults. It's still a bit odd to see LiberKey refusing to refute the charges by showing off proof of the permissions it has gathered. LiberKey is allowed to fight this battle in public or private, and should not be taken to task just because it's chosen the latter option.
Haller's Accusation: According to Haller , "They distribute GPL/LGPL/etc software (OpenOffice.org, VLC, Miranda, etc) without also distributing the source as required by the license."
LiberKey's Response: "There are many types of licenses (LGPL 2.1, LGPL 3.0, GPL 2.0, GPL 3.0, MPL 1.1, BSD, MIT, Freeware etc.), Each with its own obligations. That is why, concerning each open source software, our position is as follows:
Analysis: The licensing issue is LiberKey's can of worms. I'll start with freeware. While BitTorrent would have no objections to LiberKey including a uTorrent installation executable as part of a general distribution package--a best-of apps CD, for example--Morris said the company would object to any modifications made to the installer. BitTorrent wants to manage the program's own, untouched installation routine. As Morris puts it, "If this [program] installs our app with a different installer then we’d probably not be too keen on it (we greatly prefer to manage the install process ourselves)."
The problem? LiberKey's installation routines use a program's unmodified installer, but it comes packaged as part of a larger, automatic LiberKey installation mechanism that the company brands with the extension .LKS. Each program that LiberKey offers comes in an .LKS package. When you click on these packages to install them into LiberKey, the program automatically places the results of a program's typical installation into your LiberKey folder. In fact, LiberKey completely takes over the installation process--you get none of the usual pop-up screens found in the program's default installation mechanism. You get no options; nothing.
Unfortunately, this very scenario takes us back to the chicken-and-egg permissions issue from before. If LiberKey has received permission from a freeware developer to distribute software in this fashion, then it's in the clear. But just because a piece of software is "freeware" doesn't mean that it's "free-to-do-whateverware." In the case of uTorrent, the EULA clearly specifies that the license to use the software is granted for personal, non-commercial purposes. Thus, to distribute uTorrent, LiberKey would need permission from the company to overlook this clause in the license. Given BitTorrent's preferences for uTorrent's original installer, it's hard to believe that the company has been willing to grant LiberKey permission to distribute its software in such a fashion. But absent of concrete proof from either side, we're back to finger-pointing.
As far as open-source software goes, however, LiberKey is in the wrong and does indeed violate provisions of software licenses. I won't get into the specifics of each potential license (we could be here all day). Suffice, its blanket treatment of all open-source licenses using the four aforementioned points is incorrect when it comes to software that's been licensed under the GPL 2.0. Yes, the GPL 3.0 is the latest version of the license. But that doesn't automatically upgrade GPL 2.0-licensed software with additional rights and permissions.
Why is that important? Because the GPL 2.0 does not allow for linking to source code over the Web to satisfy the requirement of source code availability. When distributing a piece of open-source software licensed under the GPL 2.0, an entity must one of the following criteria:
LiberKey is incorrect in assuming that its inclusion of links to hosted versions of the code satisfies the requirements of the older GPL 2.0 license. It doesn't. LiberKey is violating the license of software like KeePass and the VLC Media Player, amongst others.
Haller's Accusation: "And they're using the trademarks of Google, Mozilla, Opera and many others in connection with modified software, also apparently without permission, which isn't permitted by any of the trademark guidelines I've seen."
LiberKey's Response: "..."
Analysis : Here's the deal. Although you might have the legal right to distribute a piece of freeware or open-source software based on the license, you still have to abide by the rules for a company's registered trademarks and logos. You can distribute the unmodified executables and code all you want, but you might still have to seek permission to use a company's trademarked names when referring to the software.
In the case of Firefox, for example, a user can distribute an unchanged version of the installation application and refer to it using Mozilla's trademarked titles without seeking permission from the company. But are LiberKey's changes--packaging the unmodified installation executable into a larger installation program--considered a modification? Typically, the word "modification" relates to the source code or unpacked files from an installation program: Change the default favorites in Firefox, and you won't be able to actually call the package Firefox without seeking permission, for example. I contacted Mozilla for clarification on situations like these, but they elected not to comment.
OpenOffice.org did get back to me, however, and suggested that the combination of an installer application and an unchanged OpenOffice.org installation executable would be acceptable as a matter of licensing. The trademark issue still stands--a distributor would need to seek permission from OpenOffice.org to use the title and accompanying logos.
Has LiberKey extended the arm for these permissions? It doesn't really matter: Even if they have, the developers are in violation. Tossing aside the questions of installers and modifications, LiberKey abuses Mozilla's trademarks by calling its version of the application "Firefox Portable." Mozilla explicitly states that use of its trademarks must be done , "in their exact form -- neither abbreviated nor combined with any other word or words." Similarly, the size of the depicted on-screen logo --16 pixels by 16 pixels--runs below the Mozilla's minimum guidelines of 40 pixels tall .
Let's just assume for a second that LiberKey has indeed contacted Mozilla--much like John Haller himself did--and secured permission to title an portable version of Firefox, "Firefox Portable." The same issue crops up again for OpenOffice.org . The trademark, as LiberKey displays it, is just plain wrong: "OpenOffice (OOo) Portable" instead of "OpenOffice.org" or, assuming permission was granted for a portable version, "OpenOffice.org Portable." There is absolutely no reason why OpenOffice.org would allow a company to shorten its trademarked name. As for the accompanying logo LiberKey uses on OpenOffice (OOo) Portable's description page, I can't find it in any of the image archives that OpenOffice.org has released for (permission-backed) use.
In short: LiberKey's modified software might not be such a big deal, but the trademarking provisions are. And even if LiberKey has obtained permission to use trademarks--which it has offered no proof or suggestion of doing--it's still using some trademarks incorrectly.
John Haller and others have had some pretty strong words against LiberKey. While their assertions might not be entirely correct as a matter of law or licensing, LiberKey's own actions have created doubt that the company is fully compliant with all licensing, permission, and trademark requirements. We'll never know the he-said, she-said back-and-forth surrounding the company's alleged outreach to software developers--not until one of them sues LiberKey, that is. I wouldn't hold my breath if I were you.
To their credit, the LiberKey developers did a great job of reaching out and contacting me to discuss their side of things. The facts remain the facts: LiberKey violates the GPL 2.0 license and incorrectly uses trademarks and logos, permission or not. A numbre of LiberKey's issues could be cleared off the table if the permissions its allegedly been granted ever saw the light of day. The company refuses to do so. That single sentence says almost as much as the 2,000+ words preceding it.
David Murphy (@ Acererak) is a technology journalist and former Maximum PC editor. He writes weekly columns about the wide world of open-source and roundups of awesome, freebie software. Shoot him a message via Twitter, especially if you have an awesome app or game you're dying to recommend!