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GPL To Be Tested In Court?
KevinReichard to plug the interview on his site with Eben Moglen. "The general counsel to the Free Software Foundation tells us that the GPL may be tested as early as this summer, as the FSF debates whether to sue a major software house over violations to the GPL. The lawsuit, if it takes place, would be the first major test of the GPL in court. Obviously the legal status of the GPL is a prime issue to the Open Source and Free Software communities. "
Under copyright law, by default you can NOT redistribute a copyrighted piece of information. And all information is copyrighted for the first hundred years or so after it is created. Those little bloopers on videotapes are totally unnecessary (except possibly that they remove the defense through ignorance): you have no rights to redistribute BY DEFAULT.
However, you can redistribute a copyrighted piece of information if you have a license to do so. The GPL gives you a license to do this. If the GPL is ruled invalid (which I regard as highly improbable) then the situation reverts to normal: that is, no redistribution allowed.
The beauty of the GPL is that, unlike most licenses, it places no restrictions on what you can do except redistribute. And this is where copyright law is most clearly on the side of the GPL. In fact, redistribution is the only thing really covered under copyright law. Standard software licenses try to use copyright's restriction on redistribution to force a lot of other things down your throat (e.g. no reverse engineering) -- as such, they might be challenged on the grounds that they are unreasonable. But the core principle of copyright law is that an author has the right to restrict distribution of his work. As such, I just can't see a successful challenge to the core of the GPL.
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Insurance companies and banks have more or less perfected this strategy: go after someone who can't possibly win so that you establish legal precedent. Judges are hesitant to overturn an existing precedent. It is this strategy which has established the lopsided world in which we live, in which the effect of the law is slanted toward those who have money. While the law is meant to be fair; the reality of "money equals power" means that most of the time the law rules in favor of the wealthy.
An example can illustrate how lopsided things are: when was the last time that you heard of an employee writing an employment contract and getting a company to sign it? If both employees and employers were in equal bargaining positions half of all employment contracts would be written by the employees. But in fact, all of the employment contracts of which I am aware are dictated by the employers and are non negotiable; "Sign this or don't work". Such lopsided conditions exist because being in the right in a court of law hardly matters; what counts is who wins and who loses - why they lose doesn't matter.
Lawyers are people who simply don't understand right and wrong: that is why everything has to be written down for them.
If we are out to establish a legal precedent for the GPL the best strategy is crush a cockroach, not punch an elephant.
While the GPL requires it to remain open and be provided with source. You can charge to distribute it on physical media(CD, DVD, floppy, etc), but it must be available for download.
As broadband becomes more prevalent the requirement that it be available for download could be the most constraining to most companies. Most people still get their "free" OS via physical media such as a CD. That preserves a revenue stream for those companies. However if you can download and make your own cd in less than an hour, why drive to the store to buy it?
The GPL is a good thing, but whether or not it stands up to court is entirely another. The GPL is a license that you don't have to physically sign. If it loses on that basis, online privacy may still win in the long run, at the expense of "free" software.
I use "free" in brackets to represent free as in freedom
On the contrary. If the GPL is struck down, and people still have their act together, the GPL will adjust, heal and evolve into something better and stronger. A test is a great opportunity to see if something is broken, and then fix it if it is.
-- V was its Victim who cried out "But why?" --
The article doesn't seem to reveal the identity of the "major software house" but it's probably good to have a test case. If the GPL is to be given teeth via being held up in court, it is best to do so during a low-profile case. That way, a few years from now when Microsoft Linux is released, the FSF won't be pioneering testing the legality of the GPL at the same time it is battling its biggest foe.
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through community norms, like the Internet Death Penalty?
... In short, the notice is aimed at the perpetuation and enforcement of a norm that holds some force in this community, and it is therefore worth mentioning in a catalogue of rights in digital content.
Here is the most interesting quote:
Even so, copyleft no doubt carries some moral force in the on-line community. It therefore serves as an example of a non-binding, informal norm in cyberspace.
Is it feasible for the online community to self organize in such a way to effectively enforce its norms through extra-legal means? Would the community have enough clout in the software world, using a combination of more suasion, voluntary boycotting (including e-mail and packet filtering), and contracting/recruiting hassles, to outweight the benefits of stealing?
I for one would not work for a company that misused GPL'd code, nor would I contract with them; not because I'm particularly a GPL fanatic, but because it shows bad faith,and a willingness to freeload off the work of others.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
I think it depends what "not upheld" means.
If seems to me that if some part(s) of the GNU GPL is contradicted on court, that will NOT mean that everyone if suddenly free to do what they like with GPL code. (see the small part of the GNU GPL at the end of my post)
If however the GPL is somehow rejected in whole (I don't see how though) then it might be an entirely different story.
"If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."
-- MartinG To mail me: echo kewyjlcxyzvjfxbqwh | tr bcefhjklqvwxyz
Your quote, while interesting, doesn't really apply. It sounds like it was intended to guard against things like the following hypothetical example:
Company A gives Company B some code C under an NDA. B puts C into software S under the GPL and releases it. A sues B to make them stop releasing the source code. If the court agrees with A, the your snippet says "A can't stop releasing just the source code, they have to stop releasing EVERYTHING".
But if the court rules against some portion of the GPL ITSELF, then the meaning "satisfy...your obligations under this License" will change depending on what part was ruled against. In other words that snippet may not keep GPL'd code safe in the event of a negative court ruling.
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If UCITA can enforce all those crappy agreements that big software makers force on us, why can we not use that same LAW to protect GPL'd software.
I am not a lawyer, however I cannot find any reason why we cannot use a bad law to our advantage (I know this is slightly off topic, but it makes some sense to me)
Jason
I came, I conquered, I coredumped
Of course, I expect that most GPL programmers wouldn't copy Lars' music in this way because they know how it'd feel. I know I wouldn't.
That being said, I am not a lawyer (but I play one on TV) but I find it difficult to believe that the GPL wouldn't be solid. As it only grants you rights you don't have under current law, if you don't agree to the obligations set forth in the GPL, you are still morally bound by the more restrictive requirements of Copyright law. You can still use the code for your own use, but if you distribute your changes, you're opening yourself up for a copyright lawsuit. The GPL is just a nice convention for saying "Play nice and we won't sue you for distributing derivative works." My idea of how copyright works may be too simplistic though (As I said, IANALBIPOOTV.)
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
This is a huge distortion. I've never heard any of the people who are really serious about the GPL complain about making a profit off GPLed code. Hell, RMS made money for a long time by selling tapes of GPL programs. On the FSF web site, in fact, they say:
That hardly sounds like people who don't want anyone to be able to make a profit from their code!
What people like the FSF do have a problem with is the idea of taking free/open source software and making it non-free/closed source. The GPL doesn't exist to prevent people from making a profit. The existence of companies that market GPLed software is proof that it doesn't accomplish that, even incidentally. The goal is to prevent people from taking software that is available in source form and releasing it without source.
There's no point in questioning authority if you aren't going to listen to the answers.
IANAL but when I read it closely the GPL seems to be an offer on the part of the copyright holder of a contract under which people are allowed to redistribute it. (Something that they would otherwise not have the right to do.) If the copyright holder later did something that lost them their copyright you might have a right to sue them for not maintaining their end of an offered contract, but you have no copyright on the code and hence no right to permit the code to be given away.
At least that is the way I read it.
In support of that view look at the terms:
Term 0: The license only applies if the Copyright Holder gives permission. By aquiring the code you do not become copyright holder.
Term 1: Permission is granted to redistribute verbatim copies. No copyright is transferred.
Term 2: You are granted the right to make modifications if you meet specific conditions. These modifications would leave the copyright intertwined. I would guess that at this point for the original copyright owner to give away control of the copyright would be a contract conflict.
Term 3: Distribution rights. Again no transfer of copyright here.
Term 4: You may not request any other distribution terms. (Question relevant to Perl. If foo accepts Perl under the GPL, are they *bar*ed from distributing under the original terms? Looks like it!)
Term 5: A reminder that copyright law prevents you from redistributing if you do not negotiate a license with the copyright holder.
Term 6: A note that you have no obligations for the actions of the people that you distribute to. Obviously true since your contract is with the copyright holder(s). They must likewise seek a license with the copyright holder(s) and that is then a matter between the copyright holder and them.
Term 7: Basically outlines in detail the consequences of term 4. If you have no right to distribute except as the license allows, and you are unable to meet the license, then you cannot distribute.
Term 8: Affirms that the copyright holder may add terms regarding geography if there are likely to be enforcement problems of the license in those countries.
Term 9: Outlines FSF policy, and outlines out the consequence of accepting the statement that the FSF asks people to use.
Term 10: An explicit reminder of the rights of the copyright holder to negotiate different distribution terms at their will.
Terms 11, 12: The usual disclaimer in lieu of warranty that we know and love in software.
So it seems pretty clear to me. The license is an offered contract with the copyright holder. Should the copyright holder give up copyright then they are in serious danger of breaching their end of the offered contract. But that doesn't give you any rights to the software.
Regards,
Ben
PS Again, IANAL but I am pretty convinced of this line of reasoning.
My usual seat in the cluetrain is at A HREF="http://pub4.ezboard.com/biwethey.ht
The big question then is this: With the licence gone, but surely not the author's copyright, how can anybody legally distribute the software ?
It looks like that if you don't have a licence at all, then you can't do squat with the software. And that includes any and all "violators".
From The GPL"
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
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Some legal precedent for ya:
Mellon v. Delaware L & WR Co.
Tiverton Bd. of License Comm'rs v. Pastore
From the latter:
When a development after this Court grants certiorari or notes probable jurisdiction could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay. See this Court's Rules 34.1(g) (petitioner's statement of the case shall contain all that is material to the issues); 34.2 (respondent's brief may correct any omission from petitioner's statement); and 35.5 (parties may file supplemental briefs after briefs on the merits to point out intervening matters not contained in the merits briefs).
The writ of certiorari is dismissed as moot.
I would say the GPL stands a good chance of holding up in court.
Or--here's a neat one--the author of a piece of code, perhaps a whole source file, who adds it to a project under the GPL and then, a week later, at work, decides to include it in a closed-source, commercial project there. Can code be un-GPLed?
This is wrong, wrong, wrong.
An author can reuse code all they want. They can license the code into the GPL common pool, and then turn around and do whatever they like with it--make their own secret derivations without deriving the source, most obviously.
This actually starts to get a bit sticky when core developers take patches from the outside world on GPL terms and then, since they're the copyright owner, incorporate those into closed source releases. But it's generally accepted that primary authors who do the initial work of coding the app, as well as all the request handling and patch integration, do have the legitimate right(as long as the patches are not too extensive) to relicense privately. Alladin, with Ghostscript, does this commonly to give printer manufacturers customized Postscript capabilities.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
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I'm quite libertarian myself, but I've noticed a disturbing anarchist streak among some. One must have some structure in order for us to preserve our rights. If there were no copyright and copyleft were the rule of the day, then software would merely be released under licenses agreeing to certain terms. At least copyright expires 70 years after the owner's death; those licenses would prob. never expire.
We need to learn to use the tools with which we are provided. The court system can be an effective weapon against proprietary software houses which steal our code. Let them release their proprietary software; over time we will exceed their capabilities and in the long run they will go out of business. But if they infringe on our territory, we should be merciless. Can you say punitive damages?