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. "

Comments

Missing the point

[Amphigory]

I see a lot of people here missing the point of the GPL.

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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Re:microsoft proprietary linux?

[RingTailedLemur]

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.

Re:3 options

[MartinG]

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."

Irony...

[Greyfox]

I find it amusing that many of the same people who try to justify Napster get all up in arms over the idea that the GPL might not get held up. It's OK to send Lars' music around the net, but even hint that Microsoft might be able to repackage the vast amount of GPLed code out there and profit from it without releasing changes to the community and everyone flips out. Not so funny when it's happening to you, is it?

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.)

Seems dubious to me

[tilly]

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.

Does no-licence grant a permission ?

[AftanGustur]

So, let's say that they go to court and that the GPL doesn't hold up.

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.
--
Why pay for drugs when you can get Linux for free ?

GPL Does Not Apply To Authors

[Effugas]

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

Re:Does it mean anything?

[anatoli]

If you have a piece of code with no license attached to it, you can do whatever you want with it.

Nope. Suppose a drunk MS developer have lost a CD-R with the next version of Windows on it (with sources), and you've found it. No license on that piece of software. Can't use it in any lawful way though (except as a coaster) because it's still copyrighted by Microsoft. Even simpler: you buy a book. There's no license. There's still copyright.
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Re:And another phrase:

[Bob Uhl]

I posted that because a lot of people seem to see the justice system as the opponent. It's not; it is the means for defeating our opponents. Yes, it does make mistakes. But for the most part it works.

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?