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: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.)

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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