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GPL in Court - Good or Bad?
Irvu asks: "The Register has a lengthy opinion piece today about IBM's lawsuit, and the GPL. Barring a settlement this case will see the first test of the GPL in a court of law. Previously the GPL has functioned as a social contract with the implicit (albeit untested) force of law behind it. Any ruling now could radically alter the free-software/open-source landscape for good or ill. Andrew Orlowski dwells on these possible ills in his piece. What does Slashdot think? Is this test a good or bad thing? Do you have faith in the justice system (or IBM's Lawyers) to draw the right conclusions? And, how do you see any outcome affecting you?"
A legal test of the GPL is a good thing no matter how it turns out. If the court case fails that just means that revisions need to be made, it would go against the philosophy of the open source community NOT to test the license. I don't know how much of a landmark case this is, it is kind of a gray area, not straight infringement.
Visualize the world of wine
I've always had doubts about the enforceability of the GPL in court.
It seems to me it would be possible to release a proprietary program
which takes a GPL'd source program, patches it and links it with
independent binaries to make a new proprietary program. One could
sell this program which does the patching, and the libraries, and
provide the GPL code under GPL terms while keeping the modifications
proprietary, as long as the modified code is never distributed.
I would be concerned with any claim that the modifying program is itself
a derivative work, though the mySQL folks make similar risky claims.
However, I don't see this coming up in the IBM lawsuit. What might
be tested there is just what it means to agree to a licence implicitly.
We don't want that to be too strong. We don't want to add a lot of
strength to those thousands of programs and web pages that say, "Use of
this program indicates acceptance of these terms." Only deliberately
agreeing to a contract should bind you to a contract.
If you violate the GPL, you are not guilty of violating a contract,
you are at most liable for infringing copyright. Which can result
in a suit to stop you from doing the infringing, and for actual damages
(hard to enumerate with free code) and statutory damages for the packages
that properly registered their copyright (now you're talking.)
In the latter case (the statutory damages) and with the injunction, you
can then put pressure on somebody using your GPLd code to get out of
the violation judgement by following the GPL. And indeed, the GPL says
that if you follow the GPL, you are inherently not violating the copyright.
However, the GPL itself can't make another person's code covered by
the GPL. The fact that another person's non-GPL distributing of
code is a copyright violation can be a tool to help you win a copyright
suit, and that victory, or the threat of it, can make you put the screws
to the defendant to do -- well, anything. Including giving you cash, or
releasing their code under the GPL. It's actually up to you, the real
owner of the GPLd code. If the FSF is the owner of GPLd code, it would
probably use its power to force the new code to be released under the
GPL, but that is its own philosophical decision. This is not inherent in
the GPL.
All the GPL says is, "If you modify and copy this code, and you release
your modified program under the terms of the GPL, you're not infringing
the copyright on it." It does not say, as some people think it does,
that if you modify the code and copy it, your new work is under the GPL.
How about inevitable?
Roving Web-Teleoperated Robot
The sooner we know if the GPL holds water, the better. A lot of people are counting on it to protect their work. How big a disaster would it be if a loophole were found 5 years from now?
Even if IBM wins in court, I think we will see the GPL and its spirit continue internationally for quite a while. The U.S. justice system will shoot the whole country in the foot if it rules against the main license used in all open-source software.
Anti SCO T-Shirt. $1 donated to OSI Fund on each shirt.
Good:
Once for all this "not yet tested in court" FUD will go away, and future violators might be deterred.
Bad:
Media circus. 'nough said.
Worst:
A bad result might make thousands of talented people loose faith in justice. This is actually good, as would be any acts of civil disobedience in consequence. The actual evil has been done in the last several decades in the slow, generalised erosion of morals... final defeat would be ugly, even the civil disobedience struggle itself would be honourable but containing scenes of unthinkable ugliness, stupidity and cruelty.
Leandro Guimarães Faria Corcete DUTRA
DA, DBA, SysAdmin, Data Modeller
GNU Project, Debian GNU/Lin
The problem with this case is that SCO's case is too weak for it to work as a test of the GPL. SCO is not going to be able to prove an original violation. Without a provable claim the case will stop. Its like a wrongful death suit where the prosecution doesn't have any evidence that the supposed victem is in fact dead.
more like inevitable .. good or bad depends on .. hopefully ..
how it goes, but it had to happen
clear heads will prevail and a good precedent
will be set
This may be the vetting linux needs to have complete acceptence.
After all, they're bigger than U.S. Steel!
(The Godfather Part II reference... and it actually makes sense, if you've seen the movie.)
Its good that IBM is helping put their won legal views of the GPL in a court setting as they would not have signed up orginally to do any opnesource code without a thorough review of GPL by their onw legal staff..
and as you may know IBM's legal staff is the best in the business even beter than SUN and MS's own legal dream teams
Don't Tread on OpenSource
IBM's lawyers are not out to defend the GPL, they are out to defend IBM. The two are not necessarily compatible. And in the end, whether or not IBM's lawyers "draw the right conclusions" (taken to mean they interpret and defend the GPL the way your average slashdot reader would like them to) is rather irrelevant. What matters is the judge's ruling. That brings us to the justice system... Given the choices that have been made in recent years, one could argue that there currently is no justice system. This started with the election of the president by the supreme court, and continued with the systematic suspension of basic rights guaranteed under the constitution.
Read this article to understand why.
. html
http://moglen.law.columbia.edu/publications/lu-12
It's not really a test of the GPL. It's a test of the validity of SCO's claims -- does SCO own what they say they do, and did IBM do what SCO says IBM did?
The fact that SCO themselves distributed Linux under the GPL is one piece of evidence against SCO, there's nothing about the case that would cause the validity of the GPL to be a major issue. Or am I missing something?
Are the claims of either side based on the (non-)validity of the GPL in any way?
<sig>Guvf vf abg n frperg zrffntr
...is a license to steal. The GPL needs legal validation, and I'm all for it happening in this case.
If the judge determines that the license is not legally binding because of X, we just modify X in the GPL 3.0. If the judge determines that SCO does have IP rights over Y in the Linux kernel, then Y is removed in Linux 2.6. Even the worst result I can imagine is just a temporary setback for Linux.
But to be perfectly frank, there's no chance in hell SCO will be able to prove their IP claims. A judge could invalidate the GPL on some technicality I don't know about, tho.
It's important to understand where the "force of law" exists, fundamentally, in relation to the GPL. The force of law which the GPL utilizes, at base, is the force of copyright.
In respect to SCO, given that they are redistributing the IP of others (i.e. the many, many coders who contributed to Linux), their only viable statements at this point are "We are, in fact, complying with the GPL" or "We are guilty of criminal copyright infringement"--not "The GPL sucks/is-legally-invalid/is-bad-for-business." Either they are complying with the GPL's conditions for duplicating copyrighted material, or they are guilty of criminal copyright infringement right now. Yes, right now.
Given this, the focus should arguably be on how the GPL can be enhanced to continue to provide a framework of conditions for the redistribution of Open Source which benefits everyone, rather than how the court might "test" its contents, or whether the GPL text passes some subjective opinion as to whether it's legally "neat-and-tidy".
~ Whence do you come, slayer of men, or where are you going, conqueror of space?
I know some will say that the fact that SCO continues to provide Linux source code means that GPL is involved. But once again, that issue would be valid if the released source code were BSD, MIT, ... license.
This lawsuit reeks of the USL vs BSDI lawsuit years ago. What's more important than testing the GPL (as someone has said, if it doesn't work then we can always re-write it), is that we keep raising the profile of Linux and OSS in general to non-geek friends and co-workers. That way we can help Linux avoid BSDs fate after their lawsuit was settled. But please do it in an even, unbiased manner, if not you'll freak people out...
Never underestimate the predictability of human stupidity...
See you all in the OS/2 forums!
j/k
Or did anyone else think that the ad for the O'Reilly book User Obliteration was part of the article on the Register?
I thought a Copyright binds the parties to the use the IP.
If someone agrees to use GPL code, aren't they agreeing to abide by it, or do they have to sign a document?
I am not a lawyer, but -- now that someone *has* indeed paid their extortion money, SCO is now officially guilty of fraud, no?
I mean, can't every single developer of Linux who has contributed code now sue SCO for a portion of that "extortion money" / and/or sue them for illegally charging for something that is supposed to be free?
In other words, now that there has been an exchange of money, isn't the "john" as guilty now as the "prostitute"?
Sale of stolen goods and all that nonsense? I mean, lets say for a minute that it is Microsoft that just paid to license linux.
By the legal system as I understand it, the recipient of the stolen goods is also liable. If you buy an illegal DVD on the street in Chinatown, can't you also be busted by the cops just as much as the seller?
So, this could be a double edged sword, even for those that want to appease their PHB's by forking over the money for the license, no?
I really liked the difference in parks US vis UK. Being a Brit in the US I totally agree.
The US is only now entering the phase were people understand the law is just a tool used by the monied people to keep their money. I would do the same if I had money.
Breaking the law is not a big deal, breaking certain laws can be a very big deal, but in general do as you would like others to do to you. Or do good things for the good of all.
well, if the gpl wins i may just consider stopping distributing my "own" binary-only proprietary version of slashcode (renamed of course) and not continute to make millions of dollars
August 11, 2003
AP Wire
In a surprise 6-3 decision today, the US Supreme Court has ruled that the GNU Public Lisense is not enforcable and that programmers, users, and sellers do not need copyright holders' permission in order to modify, copy, or redistribute any machine- or human- readable code.
With IP law thus crippled, Free Software advocates expressed shock and confusion about how to proceed. "Now that I can just legally use a copy of NT with a cracked serial," Linux creator Linux Torvalds moaned in Washington, DC, "There doesn't seem much point..."
I would love to hear the answer from a lawyer. Let's say the requirements of the GPL are, for one reason or another, held unlawful. Would that mean that anyone using GPL code would lose the benefit of the agreement? It seems preposterous that in the era of insane shrink-wrap license agreements, where you have to commit your pets and small children to research by aliens in order to use a calculator program, that something as simple as the GPL could be shot down. But if it were, would that leave code licensed so far under the GPL as freeware, or as code without any license that it would become illegal to copy?
only a madman would mod that down.
As such, it's fantastic that the people behind the test of the GPL are IBM. Besides being a three letter acronym themselves, and thus inherently well-suited to understand the GPL's plight, they also have so much money and so many lawyers that it seems inconceivable that they could possibly fail to make the GPL all it could be.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Has any licence been tested in court? Perhaps some commercial enterprise has threatened to sue or something, which may have resulted in a settlement, but has a court ever decided one way or another on *any* software licence?
Of course there's the problem with implicitly accepting a licence by opening a box or clicking a button. How vaild is that considering that real world contracts require signatures by both parties (in different coloured ink?) ?
What about the explicit denial of warrenty? Tort law (I believe) covers your Pinto's gas tank (and Firestone tires), but what about engine management software or the code in avionics systems? Can a licence wash the responsibility for due care and dilegence away?
If the GPL proves unenforcable, how will commercial licences be affected?
"It has no legal support."
Things only need legal support if they are inherently without the law on their side.
From Groklaw
http://radio.weblogs.com/0120124/
Old SCO Also Donated Code to Linux
Well, knock me over with a feather. It turns out that old SCO, The Santa Cruz Operation, also donated code to Linux. There is an article dated June 12, 2000, that tells us all about their Linux distribution and their plans, which included scaling it to the enterprise, as marketroids like to call it:
"While SCO may be rolling out its Linux distribution long after Red Hat and Caldera hit the market with theirs, SCO is no open source Johnny-come-lately. The company offers support services to Caldera and TurboLinux customers. In addition, the company's Tarantella middleware supports Linux, as will Monterey, the Intel-based version of Unix that SCO is building with IBM.
"SCO is expected to announce 32- and 64-bit versions of Linux for Intel-based servers, which will be available in the fourth quarter of this year. In early 2001, SCO plans to deliver a 32-bit Internet Infrastructure Edition that will come bundled with a Web server and other IP applications. The company is also working on a 64-bit edition for service providers, including ISPs and application service providers, which will feature special billing and management tools.
"The company is also expected to explore the following areas:
"--Building the Linux clustering capacity to be in line with SCO's NonStop Clusters technology, which scales to 12 or more boxes with advanced reliability for data and applications. Current Linux clustering technology is generally limited to two or four nodes.
--Beefing up Linux's symmetric multiprocessing capabilities. Currently the number of CPUs per Linux server is usually limited to eight; UnixWare can run on servers with up to 32 CPUs.
-- Managing multiple Linux servers as well as applications from a single console as if they were a single system.
-- Improving security and the ability of Linux to handle applications such as e-mail, including instant messaging.
-- Adding online support services and documentation."
Wait a sec. Isn't that what paragraph 85 of SCO's original complaint was talking about, and didn't they say that without IBM entering the picture, Linux could never have scaled? The complaint said:
"For example, Linux is currently capable of coordinating the simultaneous performance of 4 computer processors. UNIX, on the other hand, commonly links 16 processors and can successfully link up to 32 processors for simultaneous operation."
That wasn't accurate, but it does give me an idea. Maybe New SCO needs to sue Old SCO and leave the rest of us in peace.
One year earlier, in 1999, a press release from Old SCO described itself like this:
"We have over twenty years of experience with UNIX, Intel, and Open Source technologies. In fact, we believe that SCO has the largest staff of Open Source experts of any commercial software vendor.
"As a founding sponsor of Linux International, SCO is a strong proponent of the Open Source movement, citing it as a driving force for innovation. Over the years, SCO has contributed source code to the movement, and currently offers a free Open License Software Supplement CD that includes many Open Source technologies. SCO UnixWare 7 operating system, the fastest growing UNIX server operating system for the past two years, supports Linux applications as part of its development platform."
All the Tarantella-Linux press releases from June 1999 to February 2000 are here.All Tarantella press releases from June of '99 to July of 2000 are
The court date for the SCO-IBM suit is currently set for April 2005. Is it really reasonable to believe that SCO will be a functioning entity at that point? Their management team is dumping stock like mad, and should have long since divested themselves of any stock in the company. So who will be left to go to trial with IBM?
TheFrood
If you say "I'll probably get modded down for this..." then I will mod you down.
* Could a court revolk my GPL-given right to modify GNUCash?
* Could a court grant the right to Novel to sell a modified, binary-only version of Reiser v 4?
How, exactly, could the GPL be ruled against? There may be small, fringe issues, but overall, the GPL rests on the exclusive rights to modify and copy given to IP owners of their works. When a copyrighted work is GPL'ed, the owner gives me extra rights. It is difficult to see how a court could forbid me from allowing you to sell or give away some PHP code that I wrote.
Because GPL code is copyrighted, the owners of the copyrights have the final say in how the code can be used. The only change I could envision is that securing permission to use GPL code might become somewhat more formal (e.g. like the "one click license").
5 years from now?
Shit man, if this thing doesn't hold up in court I'd like to know 10 years ago!
If every corporate pirate can just swoop in and steal my code I might as well have been using a BSD the whole time instead.
Linux is nice and all but let's face it the only thing it's got going for it is the GPL.
I would love to see this guy defend the GPL.
It would be memorable for generations of geeks to come.
Sure the gpl should be tested in court but i dont think it is the best case to test it.
My reading of the GPL leads me to believe that it will be ruled enforceable. It is a well thought out contract that was crafted with instances like this in mind. Well maybe not SCO's Jerry Springer impersonations, but the general siuation nonetheless;-)
If brevity is the soul of wit, then how does one explain Twitter?
The attitude presented behind this posting is an example of the growing trend of Judicial Activism. In essence, due to our current flawed process we read too much into historical cases and the cases themselves begin to define law - which is not the job of the judicial branch of government. This growing trend will increasingly effect our laws and our society by unelected leaders. Please read Ron Paul's take on this matter in a column of his called "Federal Courts and the Imaginary Constitution".
too_lazy_to_create_an_account
I think this is a good thing. It was going to happen sooner or later. At least it's happening with a monsterous litigious bastard like IBM in the drivers seat. This is a wet-dream best case scenerio in the happening. I mean, damn. I'm going to have a friggin party. Money talks. Period. SCO could even win their pathetic lawsuit, and still get buried by the IBM patents they are infringing on. SCO is history no matter what. Gone. So long. Thank you for playing. So their only hope is to keep getting a story every single business day to drum up support for their ludicrous licensing scam, and hope more idiots bite.
For every annoying gentoo user, are three even more annoying anti-gentoo crybabies. Take Yosh from #Gimp for example.
Please provide some links ;)
Basically, I see three possible outcomes of any "test" of the GPL:
A. The court rules that the GPL is a valid agreement/contract between the copyright holders and a licencee permitting the licencee to re-distribute the copyrighted work under certain conditions. Everything continues along as normal.
B. The court rules that the GPL is not a licence agreement and that the GPL does not grant any rights in addition to copyright law. GPL3 is created by the FSF to fix any issues and automatically supercedes GPL2. Everything continues as normal after a slight delay.
C. The court rules that some part of the GPL is not valid. Depending on which part, some licencees may gain rights not intended by the copyright holder. GPL3 is drafted to plug the hole and everything continues as normal, except that licenced as GPL2 can now be used in an unintended and/or undesired manner.
Warning, the following assumes that SCO-owned code improperly made it into the linux kernel, an assumption which is far from proven true.
SCO is in deep shit. They continued to offer the linux kernel under the GPL even after they were made aware that some of their copyrighted material made is way into the kernel through improper channels. It's going to be hard to convince a sane judge that they should be allowed to "take back" code that they previously licenced under the GPL. If, however, they can convince the judge that the GPL is invalid in some way, it might nullify any rights granted by the GPL. This would let SCO say "we never released the code under a valid licence, so no rights to use our code were ever granted." The kernel folks would also have a hard time releasing the kernel under another licence (a hastily drafted GPL3, for example) since they don't know which parts of the kernel are theirs and which are SCO's.
Come test your mettle in the world of Alter Aeon!
The big thing in favor of the GPL is that it is a private contract between two parties and anything the court does to disrupt that relationship is going to invite precendence for all of business, for any contract.
It's possible that a challenge to the GPL might get thrown out because it is a binding contract... or maybe they will decide that the GPL is not a contract for some reason. But, if they do, those reasons would have to be very narrowly defined or they would invalidate other contracts. Given that the propensity of the courts these days is to favor privacy of contracts and commercial relationships, I would be shocked if the courts actually ruled against GPL.
A bit of background. In the US system, the judiciary branch is charged with "interpreting the laws". Largely, if Congress drolls out some stupid bill, as they usually do, it falls on the courts to try and put a "sane spin on it." For this reason, the courts are not elected positions, they are appointed, and, the people once appointed are in for life. Usually the ruling political party puts in people of its philosophy, but there have been some famous goofs - like Bush - Souter.
Usually a court case does not make it to the supreme court unless it has some sort of constitutional issue associated with it. How a GPL case might make it to the SCOTUS is interesting indeed. Would it fall under free speech? Would it fall under Commerce? Would it fall under Intellectual Property? Would it fall under the bill of rights about the exclusion of business...
This is my sig.
How exactly is your work protected, by something that requires you to show the mechanism?
If you want to protect "your" work, obfuscate your proprietary source code and distribute only binaries.
Methinks it's not a coincidence.
No- but that's irrelevant. SCO could pull a legal rabbit out of its hat, and win, and it could all end up being 100% kosher. MAYBE there is some blatantly copied code.
The HUGE problem is that this would set a case precedence of sorts. Ie, everyone would think "the GPL is worthless." WORSE, people will violate it even more freely than they do now- and we know, from Linksys and others, that they do, wholesale. Imagine how much cut+pasting happens, or how many derivative works there are, etc...
Copyright holders have had many, many years to establish case history in far better cases than this- ones where people have violated the GPL, there's plenty of evidence, etc. It's a failing of the open-source model; because no SINGLE individual feels the need(or has the resources, perhaps) to challenge a violation, we ALL loose. This is sorta why the FSF exists.
Notice I said "copyright holders" at the start of the last paragraph, and not "The FSF". If you read their mission statement, you'll notice that they very clearly point out that they can't do JACK on their own if they don't own the copyright; the ball is in the court of those whose IP SCO is laying claim to. If you approach the FSF and ask for help, they'll help- but they can't just charge into court and yell "WE ARE HERE TO DEFEND THE PENGUIN'S HONOR!"
Please help metamoderate.
Well it isn't MS, they would not want it secret, and they get what they want with the Unix License.
It could be SUN, they tried to keep the last deal hidden.
The reality is probably that someone with very few Linux machines decided it would cost less to buy the licenses than it would cost to ask the lawyers.
A full priced license is only $1400 once, the lawyers want $150 just to pick up the phone...
if any of the contractual parties wish to take that route.
The GPL, as a contract between two or more consenting parties, is binding like any other contract unless part or all of it is nullified by a court decision, and then possible only in that court's jurisdiction. The same is true with Microsoft's contracts, IBM's contracts, etc...
The sooner the GPL is tested, the better. Under the current circumstances, having IBM in the ring fighting for you is a huge asset and advantage. IF IBM's legal department cannot defend the GPL against SCO's attacks then no one can.
A contract is an agreement entered into by two or more parties. A copyright license is not a contract. Copyright is stronger than any contract in US law, and copyright and the terms under which use of copyrighted material is granted are well tested in US courts.
If I write code, or a poem, or a novel, I own the copyright, EVEN IF NOBODY agrees to my terms of distribution. Nobody has signed a contract with me to use or distribute it, but the copyright is still mine, and I can dictate terms of use for my work as long as it's in effect.
The GPL states this very clearly; I have italicized the part that I believe relates solely to copyright vs contract:
"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."
Nothing in copyright law gives you any rights over the software, except the terms dictated by the copyright holder (in this case, the terms of the GPL). If I write a novel and drop the manuscript, and you find it, you have no right to publish it, because the copyright is not yours. Under copyright, law, you have ABSOLUTELY NO RIGHTS to a work EXCEPT those granted by the copyright holder.
The term "intellectual property," was invented by by people like those running SCO, because they want you and me to confuse an expression of an idea, which is under copyright, with the idea itself, which is not. Code is an expression, the algorithm or method is an idea. If SCO, MS, and others can obfuscate the fact that "intellectual property" does not exist in US law, they can make you think that expressing an idea with your own code (also called reverse engineering) is illegal. The only place in US law that ideas protected is patents, and there is much controversy about that.
All this means that if the GPL is found to be invalid, then all software licenses will follow, because copyright is the only thing that gives them their power.
If SCO survives this scam intact and the executives running this con are not held personally accountable, then the Open Source community will have lost regardless of the outcome. Any time somebody chooses a proprietary solution, because they are afraid of a phantom, the Open Source community looses. And with those people turning to other solutions, consulting jobs, careers, recognition for having built or contributed to a great product, etc., all of those things are damaged. My take is, that SCO has already caused tens of millions of dollars damage, a toll that could rise into the hundreds of millions even if IBM and the Open Source community prevail.
Therefore, it is essential that the community strikes back:
-- The FSF should establish a legal fund and sue to protect the reputation and joint property of contributors to GPL based products. Since it should be possible to portray the action of SCO as fraudulent and frivolous, it should therefore also be possible to pierce the SCO corporate shield and go after the executives and directors directly.
-- All of us should petition local, state level, and federal law enforcement agencies to investigate SCO for fraud, extortion, etc. (we need a lawyer to spell out exactly what it is the government should do). SCO is claiming ownership of an entire city, when at best they own a dusty parking lot. I cannot imagine a company could get away with this sort of a thing if real estate was involved. How is intellectual property any different? The goal must be to hold the con artists in charge of this circus accountable--personally accountable!
-- Petition the Justice Department to investigate Microsoft's payment to SCO, to determine if it was intended to generate Open Source/Linux FUD in an attempt to illegally damage the competition. I know, good luck with W in charge of things );
That would be a good start, as it would show would be con artists that the Nigerian Bank Scam might be a better opportunity after all...
I would use the SCO case as a litmus test for the GPL. The GPL's legal basis is in copyright. The GPL itself forbids anyone to submit code for which they do not own the copyright. If SCO's claim is true, the code in question should not be under GPL, by GPL's own standard. Therefore, even if SCO wins, it doesn't mean there was anything wrong with the GPL. It simply means that you can't always take someone's word at face value when you enter into a contract with him, which is a problem for any sort of contract, not just GPL.
Vote for Pedro
If you don't have faith in the legal system to uphold your license, then why have a license "with the implicit force of law behind it" in the first place? Indeed, why have a license at all? You can't have your cake and eat it, too.
If there's any case that is heavily weighted on our side, it's this one.
What would you prefer, that the GPL remain in legal limbo while people keep testing the edges without drawing enough attention to bring it to a full-on legal battle? At least we'll know one way or the other whether it's enforcable. Beats finding out 5 years from now when there's more open-source software out there.
WWJD? JWRTFM!!!
Do you read much?
What if (and this is a big "if", just for the exercise) SCO's copyrights were infringed upon and it unwittingly distributed those infringments via the Linux kernel. Does that mean that their copyrights are automatically invalidated and GPL-ized? No, of course not.
If the court perceives this as a possibility (ie, SCO says they didn't know "their" code was contributed to linux and accidentally GPL'd it via distrubution), then the court may rule against the GPL, setting a negative precedent.
I'm concerned that something like this could happen when the bullets (or rather, mountains and mountains of paper) start flying. If IBM can't prove that Caldera knowingly contributed the code in question to Linux, then it seems to me that the GPL need not be brought into the argument. I'd rather they left it alone and stuck to their contract infringements and fraud allegations.
I suppose I'm not too threatening, presently, but wait till I start Nautilus
One underlying assumption of this article, that the United States has no experience with widespread civil disobediance, is simply wrong.
I can think of at least two widespread laws that are regularly broken in America: Speeding laws (probably broken by the vast majority of driving adu;ts at one time or another), and marijuana prohabition laws (probably broken by tens of millions of people at the very least). And let's not forget historical examples such as alcohol prohabition. The author's selective ignorance of this matter (together with suggesting that a "Pacifica" successionist movement is "widespread") make anything he says rather suspect.
Besides, the real solution to bad laws is not just ignoring them; doing that only gives a chance for the ruling party to selectively enforce those laws against its enemies. The problem is to repeal bad and unnecessary laws. We need far fewer laws, but have those fewer laws better enforced.
Lawrence Person (lawrencepersonh@gmailh.com (remove all "h"s to mail)
http://www.lawrenceperson.com/
What I feel is more important then the GPL in the SCO/IBM case whether or not SCO can freely distribute code either by free ftp or actual sales, then choose to charge licenses after the code is distributed.
The implications of this are far reaching esp for typical software where money is exchanged. To me, it's like Toyota asking me for extra money for driving my old 1979 360,000 miles when they expected me as a consumer to buy a diffrent car after only 100,000 miles.
There is no sanctuary. There is no sanctuary. SHUT UP! There is no shut up. There is no shut up.
"There's a strong and growing secessionist movement in the United States, and when I last met the great Robert Anton Wilson (just before Christmas) I asked him which constitutional system he'd choose for 'Pacifica', which is Bob's name for the new breakaway Union of California, Oregon and Hawaii."
Well, he told me, "We've got one already. We could go back to the Constitution without any interpretation of what the Constitution says: free speech, and freedom of religion. Everything that has been destroyed in the last two hundred years that was intended by the original Constitution. We can start from that. "
I don't believe the founding fathers had any inclination for welfare, social security, anti-trust legislation, a tax code rewards and punishes based on your choices in life, or any number of other liberal policies that that are taken for granted today. The truth is CA OR, and HI, don't like the constitution, and are trying to turn the US into a socialist state, completely against the US constitution. If they want to secede and start their own socialist paradise like the USSR, N. Korea, Cuba, etc., good riddance. I'd leave CA that day.
A.k.a. "security through obscurity."
The sooner it is tested, the better. If there is anything legally wrong with the GPL then wouldn't you rather know as early as possible, then close your eyes and hide in ignorance , only to open them when something bad happens later?
True genius is grasping a situation like a peice of fruit, and peircing it just right so that it drains dry.
If SCO code did get into Linux by someone other than SCO itself then the GPL will not be tested. If SCO itself put the code into Linux then they will most likely be given the right to have the offending code removed from distros other than SCO Linux. This however is most likely not the case otherwise the kernel code would have a history time line that would state exactly when and who was responsible, and if this did happen I think the good computer journalists would have found out about it already, and let the cat out of the bag. Either way I have the feeling that the judge in the case will skirt the GPL issue all together. I feel that either way Linux will lose big time. The money being thrown at making Linux seem to be illegal is too large and has under the counter sponsorship from the big guys except perhaps IBM.
OH THE SHAME I fell off the wagon and use sigs again!
Sounds like a dangerous assumption. Yes, if the whole thing is declared null and void, then it 'fails safe'. But what if only one or two provisions were declared null and void? Or what if they're valid but don't mean exactly what people think, or otherwise allow some loophole?
I don't think we can make any 'fail-safe' assumptions.
(Of course, to my uninformed and untrained eye, it looks unlikely to fail. But we must make ourselves available for all eventualities.)
Ceterum censeo subscriptionem esse delendam.
Thank you for stating what I thought when I read this earier today.
The difference between Europe and the US is not about laws or respect for laws. Prohibition, and city parking are more current examples - Thoreau and the Whiskey Rebellion are examples from our country's earlier history. Rather, the difference is social norms vs. the social contract. Americans have a tradition of championing 'freedom' and 'individuality', but we still all drive our SUVs to McDonalds. Europeans seem to be much more in tune with social contracts and spend less time concerned with social norms. I think that was the point Mr. Orlowski was trying to make.
Everyone will start to cheer when you put on your sailin' shoes.
Personally I have alomost no faith in the justice system to do the right thing merely for the sake of "doing the right thing". If they do the right thing it will only be because the side defending the right thing has more money (IBM) so justice may prevail but certainly not because of our justice system. Can there really be any doubt in where the decisions made in our justice system come from? Big corporations, the RIAA, Disney, Oil Companies. As an added hurdle this case will be about technology issues, another huge stumbling block for our judicial system, our legislators, pretty much the majority of those in government office. Please don't get me wrong, I still believe that the United States is one of the greatest countries on earth in which to live, but unless we recognize the erosion of our rights, of our privacy, of our freedoms and stand up and do something about it, it will not remain so forever. I for one do not want to have to explain to my grandchildren why the only people with the law on their side are those with the money and power to buy it! Sorry for my rant...
The Matrix is real... but I'm only visiting!
- Who's there?
- OJ.
- OJ who?
- *You* can be on the jury!
If that were not true, you may as well be talking about copyrighting actual ideas or concepts, which SCO may think it has a claim to, but certainly doesn't have any validity in our copyright system.
Interestingly enough, this also means that "GPL tainting" is entirely a myth. You can learn as much stuff as you want from a GPL'd program, but it doesn't mean you can't apply that knowledge to be used in another closed-source program that you yourself write later. Mild cosmetic similarities between the source code of a closed-source program and a GPL'd work could be reasonably considered a result of the limitation that there are often only so many known reasonable ways to implement given algorithms.
As long as the GPL's concept of "derivative work" only extends to works that still contain some amount of GPL'd code, I would believe and hope that the GPL itself will fare well in court.
File under 'M' for 'Manic ranting'
Judicial Activism is one of those terms that has become horribly abused. Basically, if your side loses in court, you scream "judicial activism". When SCOTUS ruled that abortion is a right, conservatives screamed it. When they similarly ruled on conservative-favored issues (drug testing for athletes, etc), liberals screamed the same thing.
Life is hard, and the world is cruel
Eben moglen is a sucky name, doesn't he know wealthy elites in the ruling class (like law professors at elitist schools like Columbia) are supposed to take power names not stick with the sucky ass name their parents gave them?
Who would you side with in a case: Eben Moglen vs. Johnny Teknolojik?
Or
Eben Moglen vs. Brad Trustlots?
Even CEOs of Linux companies know if you are going to be part of the elite ruling class you can't have a work a day joe dork name, just ask Ransom Love!
Honestly, I'm a C/C++ programmer, and used Windows since the 2.0 days, I'm proficient in DOS, and I currently have a distro of Linux installed on my PC and would say I'm fairly proficient with it, too. The reason why I've never tried FreeBSD?
The name.
"BSD" sounds horrible, throw "Free" on it and I'm just confused. Anyway, that's just IMO.
I'm tired of the Supreme Court gag ... what happened in 2000 was that our election came down within the margin of error of the voting process (flawed as that was). Bush won by statistically zero in Florida, and Gore won by a statistical value of zilch nationally.
So what happened? Instead of descending into civil war, the coin toss was made by the courts and we moved on. The outcome of the election was handled roughly as fairly as it could have been.
If you want to be mad at the system, don't blame the Supreme Court -- blame the two party system that handed us two candidates so bland that the average voter stayed home. That wasn't an accident -- it's a deliberate policy of both party machines to select a safe, predictable and manageable candidate. If we had run Bradley vs McCain instead of Bush vs Gore, do you really think the election would have been decided by the courts? I doubt it -- because then voters would have cared enough to vote. And frankly, either of them would have been better than our actual choices.
Yes, the election was stolen -- but it happened long before the Supreme Court got involved, and the longer it takes us to notice the longer it's going to go on that way.
The speculation as to whether or not it holds up in court is IMHO a moot issue.
The GPL as written is a type of clever legal kung-fu that only a true hacker like RMS could come up with.
Here is a key passage:
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.
If the GPL was struck down, it would be the equivalent of striking down _ALL_ software licenses. In that case you could expect to see Microsoft's lawyers filing an amicus brief supporting the FSF.
The speculation that you can circumvent the GPL by writing "intermediate software" is a notion that only an engineer could have.
An analog is like claiming that you can build a robot, send the robot to break into someone's home, and get away with it because "The robot did it."
Regular people (like judges) find this sort of argument very irritating. Instead they tend to focus on the intent of what a law/contract might achieve rather then the exact wording.
In criminal cases it's called mens rea. If I send Paulie Walnuts to break Artie Bucco's legs because he hasn't paid me money, can I get away with it because I used Paulie's intermediate 'wetware'?
In most situations you would be laughed out of court with this argument. Look at Napster.
Wouldn't that program have the sole purpose of allowing you to violate copy protection?
Man, I knew this would happen. IBM is quoting all of Darl's crazy feverish rantings in their counter suit.
If anything, this case is going to make the GPL stronger because there is no way we can loose.
Even if SCO has IP in the Linux kernel, they are still distributing it under the GPL.
2b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
SCO is clearly trying to violate both these counts, by now charging for the "work" containing their source code, and to limit the rights to redistribute it explicitly granted to you under the GPL when you download it from SCO. Even if there is SCO IP in the kernel, it does not allow SCO to break the licence agreement with the thousands of third-party contributors. Just because someone stole my car, I can't blow up the highways...
Kjella
Live today, because you never know what tomorrow brings
Those of you who are sweating over whether the GPL will hold up need to answer one question: What legal right does SCO have to distribute the copyrighted works of Linus Torvalds et al? The answer: none.
The GPL simply says that the copyright holder will grant you the right to redistribute as long as you follow a few simple rules.
Copyright law is alive and well. The same law that gives the RIAA $150K/incident protects us. Don't worry, the GPL is irrelevant.
Michael
Do you have ESP?
Please provide a link to where go got this information. I have searched the AP wire and found no such info. Of course we all know who you "the original Poster" really is. Take it easy Bill, You have your billions Retire.
If it came from Microsoft, Flush it!
This posts meanders a bit, but I eventually get to a point, bare with me...
I read a comment by an American astronaut (or perhaps it was a European astronaut, I forget) who had gone into space with both the European Space Agency and NASA. When asked to compare the two, he said that in Europe, they have a lot of rules, but enforces them loosely. In NASA, they much less rules, but enforced them much more strictly.
I once had a German language teacher who explained to the class that there were social and moral differences between Americans and Europeans that were deeper than mere cultural or language differences. He said that in America, there was a strong sense that if you didn't get caught, you never did anything wrong, and that in Europe, that same logic didn't exist.
While both of these I believe to be strong characterizations, there is a ring of truth to both of them. On the whole, Americans are a regimented and ordered society that believe if someone gives an order then it must be the correct course of action.
One unfortunate side effect of this 'moral logic' is that it favors those who break the rules. If I can break the accepted rules, and get away with it, then not only will I have broken the rules, but now others will find it acceptable and follow me. With each transgression the dam gains another leak.
Europeans tend to lack this 'follow the leaders' mentality not out of moral superiority, but out of the experiencing a thousand years of corrupt leaders. We Americans have only had 200 years, and we have only really been culturally aware of it since Nixon.
Developers tend to not fall into this mental trap. We have a much more single minded approace to knowledge, and approach that is shared with most scholastic professionals, that of a single shared knowledge base, and that knowledge is free. No one objects to Microsoft selling Windows for profit, but developers get a little angry when someone figures out some new API call, and Microsoft get's angry and tells them they can't share that information.
Businessmen, however, do tend follow this pattern. Rockefeller and Hearst (and some might add Gates,) violated many moral ideals to attain market dominance, and became economic (and in many respects, social and political,) gods.
In the long run, the survival of the open source software movement relies not on the GPL, or on Linus Torvalds, but on forstering in the general public the basic idea that regardless of law, court rulings, or public announcements by famous businessmen, sharing of information is a right. Cooperation is a right. Free exchange of ideas is a right. Perhaps not an absolute right (I don't have the right to copy someone elses work verbatim and give it to you, if I haven't been given explicit rights to do so,) but an irrevokable right non-the-less.
In America, the politicians, businessmen, and media are fond of the term capitalism, extoling how it is the foundation of American society. Anything else is communism, and therefore, bad. I won't go about arguing economics here, as it is well outside the scope of my now very overly long point, but I will say that there is now need for a fear of intelectual communism, especially if it is elective. This is what the GPL is, elective intelectual communism. This is what bothers SCO, and Microsoft. This is what bugs the anti-GPL crowds. This is why Europeans look at Americans and wonder, "What's wrong with those people," because they have long since learned that it doesn't matter what the governement says, it's still OK to share with your neighbors.
IAAL, but I am not a copyright guru. I think that there are some misconceptions floating around that I should comment on.
No court conducts a general review and commentary on any document (law, contract, what have you) that is part of a case before it. The court will review those portions of the document that are relevant to the case in front of it and will neither review nor comment on other portions that are not at issue in that case.
In this case the issue that IBM raised is whether SCO lost its right to prevent third parties from copying, distributing, modifying, or running Linux by releasing Linux under the GPL. The court can and will answer this question without worrying about whether any other clause of the GPL, say the limitation of damages clause, is valid in another context.
Now I do not know if every clause of the GPL is valid or if it will work in the way that St. Stallman wants it to work in every conceivable situation. But, if software licenses mean anything, then at the very least IBM's claim (if I have correctly understood and described it above) ought to be sustained. Other portions of the GPL may not work, but I do not think that they at issue in this case.
In the land of the blind, the one-eyed man is king.
BROUGHTON, REGINALD C.: Declared Holdings
SCO GROUP INC
Senior Vice President
NasdaqSC:SCOX (historical quotes, profile, other insiders)
2003-08-05 120,000 Direct Insider & restricted shareholder transactions reported over the last two years
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Nice work if you can get it !
[x] auto-moderate all posts by this user as insightful
Though GPL will likely not affect this case, it will affect SCO's attempts to extort licensing fees for their "binary" licence (assuming of course there is at least some truth to their code being in linux). If they can collect such a fee, then the GPL is essentially useless as people could get away with adding proprietary code to a GPL'ed project and then demand money (and perhaps any other restrictions the company wishes) to use it.
From what I understand of the GPL, any source code that had these addition restrictions would be GPL (and/or copyright) infringement against the GPL'd code as code that could not be used freely can't be mixed with that code. While some sort of "binary" licence from SCO might protect you from legal actions from SCO, it does not make the program fully legal.
OMG who is the fucking homo who modded this down!?!?!?!?!
That was part of the USL - BSDI lawsuits.
The Regents of the University of California copyrighted their code.
The Regents licensed their code under the BSD license (obviously) including the advertising clause.
USL, a company related to AT&T, sued the University of California for distributing their proprietary code.
UC sued back, on the grounds that AT&T was distributing files developed at UC without honoring UC's license.
Ray Noorda of USL swiftly settled the suit after that, essentially abandoning almost all the original claims. The BSD license did not get tested by a judge, as far as I know.
Ray Noorda gets around. He went on to found the Canopy Group.
I bet if Ava was about to sit on your dick and fuck you stupid, you wouldnt say no ;)
That this isn't the first test of the GPL!!!!! Mysql recently won their suite concerning illegal usage of Mysql code in a competitors non GPL'd product. It took nearly 2 years but they won hands down. THAT was the first test. That is the case that made the GPL viable. Take a look here.
Linux Magazine and search for the section, "Jurist Judges GPL as Just"
The point here is that in his opinion the judge establish legal precident for the GPL and it's validity as a "contract". I'm no lawyer but I do know that the SCO bulldink might be the most current test... but it's not the first.
I'm sorry, I'm to tired to be witty at the moment so this message will have to do.
Oh she is quite fine! I'd like to see her slob a knob or something but she never gets down and dirty for the camera you know!
I could sign myself over to you as your slave, but it would be unconstitutional.
Since the U.S. is currently a nation of, by and for the corporations for which it stands, please explain why the courts couldn't rule that the GPL is an invalid sport of nature with no standing in current Commerce statutes and has no use/meaning in a capitalist society?
Isn't enough to be a well-worded contract -- the heart of the matter seems to be whether it the type of contract the judiciary will honor.
Suggestion: File RIAA type subpoenas against the company and their customers. It's a journey to the dark side, but will start to get around their customer base.
Either, EULAs and copyright code are valid, therefore SCO will lose, or they are not, In which they may win, but it is a strike against EULAs.
The Kruger Dunning explains most post on
When entering into a new contract relationship, insist on clear deliverables and terms of payment: allow frequent invoice submission frequency, short terms (no more than net30), learn what their accounts payable pipeline is (regular invoice approval/check cutting schedule) and then follow each of the first invoices until the check is in your hand and in your account.
Follow the invoices like a bloodhound. If asked (or even pre-emptively), make it clear that you will not be working (or billing) the hours that you're managing billing and then do it in front of them. The instant one of your invoices leaves the regular billing cycle to actually get close to net30, get ready to leave. When one breaks net30, stop working until the invoice is paid in full.
I've never had a bum payee, though a few have tried. The real secret to success is to have an initial invoice to them after a week of work and a second in the pipeline by the time the first is paid. In most cases, there won't be enough work that they can afford to stiff you yet, no matter how much they may like to. In addition, the attitude about the early invoices results in a "squeaky wheel" treatment.
Finally, the secret to success with this strategy is to work very hard and very well on the tasks that need doing. If you're a pain in the ass about your billing and you're not much of a self-starter, you're in trouble and you'll be looking for another client fairly quickly (without a reference). If you're a productivity monster and you let them know that you absolutely insist on being paid on time, you'll get paid and you'll get the reference when the job is done.
Regards,
Ross
The GPL explicitly makes no restrictions on your USE of the code. Thus the "U" in "EULA" doesn't apply. The GPL is a "DL" -- Distributor's License. No agreement is necessary either; but nothing except that GPL gives you the right to distribute it.
I can think of at least two widespread laws that are regularly broken in America: Speeding laws (probably broken by the vast majority of driving adu;ts at one time or another), and marijuana prohabition laws (probably broken by tens of millions of people at the very least).
The first immortalized by the CB radio (and Fuzzbuster) craze... talk about organized anarchy (oxymoron too) deliberately intended to thwart the 55 MPH enforcement. Even the theme of the Smokey and the Bandit movie.
The second was immortalized by Cheech and Chong's various movies, comedy acts and antics.
Ahh, the 1970's.
Copyrights, Patents, Trademarks: temporary loans from the Public Domain, not real property ("intellectual" or otherwise)
that because the GPL is too "vague", the coders who published under it have effectively (albeit accidentally) released their work into the public domain. Right...
Of course, if you suggest that perhaps SCO's deliberately publishing their own code on a public FTP server with an attached license allows people to take advantage of that license, then they'll be the first ones to swear that you can't "accidentally" give your copyrighted material a less restrictive license than you would like. They want to have their kernel cake and eat it too.
From article:
It's almost redundant to point out that resisting the setbacks that might result from a ruling involve civil disobedience on quite a wide scale - every sysadmin will fiind himself a potential criminal, and this is a horrifying concept for such a young nation as the United States. But maybe the US can catch a clue from the rest of us, and conclude that not only is the law an ass, but that selective civil disobedience is a walk in the park.
What kind of crap is this? Am I completely insane or is he saying that civil disobedience is something foreign to the US, and that it's greatly followed in the UK?
So then I suppose the person who invented civil disobedience, Henry David Thoreau, wasn't an American. I suppose he didn't write an essay titled Civil Disobedience (originally titled Resistance to Civil Government).
And I suppose it wasn't Ghandi who used civil disobedience against the British.
And there was never anyone named Martin Luther King in the US.
And there were certainly no protests of a civil disobedience nature against the Vietnam War or anything.
For a very short history and some of the ideals of civil disobedience head here.
We always knew Comcast was corrupt, here's the proof: http://tech.slashdot.org/comments.pl?sid=1909890&cid=34545432
How could anyone miss the irony? Surely "Funny" would be more appropriate :S
[ UNSIGNED NOT NULL ]
Actually, it could be worse. (B) and (C) as you have them assume that GPL3 is compatible with GPL2. If not, there will be a lot of consultation with authors persuading them to re-release under GPL3.
Copyrights, Patents, Trademarks: temporary loans from the Public Domain, not real property ("intellectual" or otherwise)
If you are not bound to a spouse or children, leave the country.
Even if you are, if they can accept starting a new life elsewhere, leave the country.
I think you will find that it is surprisingly easy to disappear, that is, if as of now you are not a wanted man; that would complicate things.
Before you go, place the code on freenet.
Of course there would probably be legal issues involved here, and so I can not recommend or endorse your doing this, but certainly it is quite likely that if you were to attempt to do this, that you would be successful.
In your case, you live in a country which does not provide for justice to be done for you, a country in which the more time you spend pursuing justice, the further you are from obtaining it.
How can anyone not sympathize?
Why couldn't it have been the "Heuristic Algorithm License"? Much more appropriate.
inside 2001 pun. Apologies. Had to be done.
What would happen if someone sued a friend knowing they could win just so the rueling could be used against a deep pocketed defendant?
Microsofties are the only ones I've heard who don't think it'll be enforceable.
I don't know of any time Microsoft has ever asserted that the GPL would not be enforcable. In fact many of their anti GPL claims are based on how truly enforcable the GPL is -- i.e. a company that casually uses GPL code accidentally mixes in their propietery product could end up having their product GPLed. Many have argued that claim is too strong, but regardless it isn't a claim that the GPL is not enforcable.
There is a fundamental difference between crapola click thru agreements on web pages and software and the GPL.
The click through agreements are attempting to impose additional restrictions on your rightful activities.
Installing software which you have purchased is your right. The click through is attempting to impose additional restrictions on what you may do.
The difference is that the GPL provides you with the right to redistribute someone else's property. The price exacted for that distribution is to comply with the terms of the GPL.
This is straight contract land. Offer, acceptence, consideration. There is no confusion. No ambiguity.
Unlike the click through license, the GPL does not come into play until you attempt to do something that would be prohibited in the abscence of the GPL (or other license): redistribute the code.
Click throughs and lame web Terms of Service controls your use of intellectual property. The GPL controls your distribution of intellectual propery.
Big difference.
Eben Moglen would disagree with you in that the GNU GPL is a contract--it's a license. The licensee is given permission to copy, modify, and make derivative works and otherwise you have whatever copyright law allows for by default.
There is not necessarily payment being made by the licensee, there need not be agreement with the terms of the license (you might find the terms attached to distributing derivative works to be too onerous, for instance). The licensee either behaves according to the terms of the GPL or they only get what copyright law allows for.
It's this careful crafting of the GPL, leveraging only the powers that are granted to copyright holders, that makes the GPL very likely to survive any court scrutiny. It's also what makes other licenses seem relatively poorly worded (like those licenses that try to place terms on running a program, a power not granted to copyright holders).
Digital Citizen
Shrinkwrap contracts are worse, but this is still too much power to give to copyright. Now, I can see a claim if you can prove that somebody did this knowing full well what the GPL means, but even lawyers debate exactly what the GPL means.
Consider this. I publish an item and in the licence I say, "You may not copy this unless you give me one million dollars!" And you copy it. Do you now owe me a million dollars? No, you owe me what I can extract for copyright infringment. Even though you "agreed" to the terms I put there, just like the GPL.
Let's make it worse. Say you know about my licence but decide your use is a fair use. Example, publishing the crucial part of Gerald Ford's book where he reveals why he pardoned Nixon. Very famous case.
Turns out the court says, "no, it's not a fair use." So now we go back to the regime you claim, which says I knew about the terms and I published it, so now I am bound by them. Can I have my million?
Nope. Copyright law only has so much power. The only power it has is to make you pay for copyright infringment. Not to bind you to an arbitrary contract.
I think that's highly unlikely. I think it's highly unlikely the GNU GPL will be found to be somehow invalid because I think the GPL is amazingly carefully prepared and worded so it only leverages what copyright law allows. My experience is that courts generally favor the copyright holder and interpret licenses such that the copyright holder's concerns are sustained.
But if the GPL were hypothetically invalid, I think a court would be bound to say that the would-be GPL licensee defaults to whatever copyright allows for. I can't find an example that supports the notion of a work forcibly entering the public domain because of an invalid license. I think they would be non-distributable, non-modifyable, and no derivative works would be allowed to be prepared. Copyright holders would have to relicense the works in a way that is consistent with the court's problems.
Digital Citizen
...due to the fact that the media has not weighed in heavily on one side or the other.
Seastead this.
I would have to agree, the basic philosophy of the GPL is not going to be tested in the SCO vs. IBM lawsuit. The whole thing is going to go down to license issues other than the GPL (for example, IBM's AIX and its own additions to that codebase) and a number of patent issues.
What is going to start to raise the GPL issues is when those buying the SCO license start to discover that there are hundreds of people they also have to pay, since the GPL has been violated they have to obtain a seperate license from each and every copyright holder. In some cases, this is going to be hard to even track down, and this is where court cases can end up taking decades to resolve. Yes, decades. This is a Pandora's Box of legal worms that SCO doesn't even know what is going on, and the affected companies will have to deal will long after SCO goes belly up.
This should also be a huge wakeup call for project maintainers for GPL'd projects, to absolutely make sure that copyright for any submitted sections of code is totally cleared. I realize that this is not quite as easy as it would appear, but it is something that must be done. The free software/open source software community must come up with industry standards to remove source code that has conflicting copyright concerns.
For his part, Linus Torvald had plenty of reason to believe that IBM had cleared their portions of the kernel for copyright violations, and that is perhaps the #1 reason why he isn't directly named as a defendant. Other project maintainers might not be so lucky.
I would have to say that your argument about the SUVs going to McDonalds is a really good example of how Americans try to circumvent the law to their own advantage.
In the 1970s and earlier in America it would have been driving the Station Wagon with the kids to the local McDonalds instead. The problem here was that environmental and fuel economy laws were enacted that forced the auto industry to try and improve fuel effency by governmental decree. The tranditional 4 door with swing back hatch Station Wagon was classified as a passenger automobile, and had to go through the much tougher restrictions and higher standards.
Eventually, through these regulations, the Station Wagon was sent into obsolescense, partly because the auto makers couldn't meet the legal requirements for fuel economy if they kept making them.
These legal restrictions didn't apply to trucks, which had different standards to allow for commercial transportation needs. If you look at the vehicle title for an SUV, you will see that it is classified as a truck, just like a flower delivery van. The SUV is essentially an end-run around a silly law, which also has unintended consequences. Some people really do need a bigger vehicle than a 2-door coup with a 0.5 m^3 trunk storage.
This reminds me about another silly law (that has since been repealed) that only allowed quartz halogen lights on garbage trucks. A company was trying to sell them to consumers a few years ago, and you had to sign an agreement with the company that at some point in the future you would convert your vehicle into a garbage truck. They even had a picture of a Cadallac with a garbage compactor on the back to prove it "could" be done.
My main experience of living somewhere other than the United States is living in South America, where they have a tradition of governments changing every generation or so. And I don't mean a new party going into power, I mean somebody trashing whatever constitution was in effect and writing a new one, and throwing out all of the old laws, releasing the prisoners only to lock up the murderers and rapists in a few weeks (if they can catch them), and total civil instability.
This has lead to a near total distrust of the government and has some very subtle effects on everyday life as well.
One really good example was a classic eight-sided "Stop" sign. When I was in Brazil, I saw these in many places, but people hardly ever actually stopped in front of the sign. When I asked a local resident what the purpose of them was for, they said that it was a marker for where an accident occured a few years earlier. Or at least that was the punchline of a joke regarding those signs.
If you tried to run through a Stop sign in the United States, one of two things would happen: 1) A small town cop would throw the book at you and you would have to deal with a bunch of grief trying to get out of the ticket (at least by paying the fine...don't you even think about trying to bribe the officer) or 2) You would get side swipped by a car going across the intersection in the other direction. Even while living in Brazil I never understood how they avoided this second problem, but the drivers there always seemed to avoid the problems.
I will say that cultural differences with the United States vs. other countries, while subtle, are significant and tough to deal with for the unprepared. I am not proud of the lawsuit happy nature of America, but this is something that unfortunately is here to stay. I considered going to law school myself as a career path, but I felt there were too many lawyers in America as it was and didn't want to add to the problem.
Read de article in http://www.nwfusion.com/newsletters/linux/2000/080 7linux1.html
Before the acquisition announcement, SCO had made some Linux-related noise of its own. Earlier this year, the company announced complete compatibility between Linux and its SCO OpenServer and UnixWare operating systems, as well as Linux compatibility for its Tarantella middleware product. The company also furthered its Linux push by creating a Linux professional services group. Most recently, there were reports that SCO had even been working on a Linux distribution of its own. That project probably won't see the light of day now, but any of the planned features SCO had intended for the new Linux distribution - clustering, SMP and remote server management improvements - will probably be integrated into the next version of OpenLinux.
For enterprise users, the most important aspect of the deal could end up being technology development. When SCO acquired the rights to Unix years ago, it charged heavy royalties for the use of the operating system, as well as for developer licenses to use and modify the Unix source code. With Caldera in control of SCO's Unix, and with its pledge to provide "open access" to its Unix and Linux technologies, the open source community may finally get an outside-in look at commercial Unix source code. Caldera's plan is to "blend" the two technologies to deliver its unified OIP system for enterprises. Could this blurring of the line that separates Linux and Unix eventually make the two systems into one powerful open-source operating system? (How would you pronounce Lunix?) We'll have to wait and see.
If you read the counterclaim of IBM
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SIXTH COUNTERCLAIM
Breach of the GNU General Public License
76. SCO has taken source code made available by IBM under the GPL, included that code in SCO's Linux products, and distributed significant portions of those products under the GPL. By so doing, SCO accepted the terms of the GPL (pursuant to GPL 5)
77. The GPL prohibits SCO from asserting certain proprietary rights over, or attempting to restrict further distribution of any source code Distributed by SCO under the terms of the GPL.
79. As a result of SCO's breaches of the GPL, countless developers and users of Linux, including IBM, have suffered and will continue to suffer damages and other irreparable injury. IBM is ntitled to an award of damages in an amount to be determined at trial and to an injunction prohibiting SCO from its continuing and threatened breaches of the GPL.
Hmm, interestiong, you can not ask licensence money for GPL software, but you can sue for irreparable damage, even for software you dont own. isnt this exactly the thing SCO is doing?
Cant they just ask licence money for the linux kernel since the GPL licence was revoked (they did misconduct according to the gpl)
If the GPL comes into it at all, it will be regarding whether or not SCO/Caldera had already published the so-called infringing code.
The GPL itself is watertight. It rests on the solid body of copyright code, and if you don't accept the GPL, you must believe that you have no right to copy the code, as the GPL grants you rights you would not normally have.
Indeed the GPL states: "5. You are not required to accept this License, since you have not signed it."
Most assuredly, these cases are NOT about the GPL. They are about contract infringement, or patent law, or trade-secret protection.
I cannot take (say) Microsoft Windows, strip out the Microsoft Copyright notice and EULA and replace it with the GPL. I will be sued nearly out of existence if I tried to distribute such a thing. This has nothing to do with the validity or otherwise of the GPL, as I never had copyright on the code in question in the first place. I cannot release it under any licence except that of Microsofts.
At no point in any of this will the validity of the GPL come into question. The only question is that of ownership of the original copyright.
The author wrote: "It's almost redundant to point out that resisting the setbacks that might result from a ruling involve civil disobedience on quite a wide scale - every sysadmin will fiind himself a potential criminal, and this is a horrifying concept for such a young nation as the United States. But maybe the US can catch a clue from the rest of us, and conclude that not only is the law an ass, but that selective civil disobedience is a walk in the park. We do it every day" The problem is that there is no litigant with a vested interest in making your life miserable in the park. If SCO wins this case, they will pursue users and force the legal system to be an accomplice to their greed.
I have reported GPL violations to RMS, and he simply asked me to go to the program authors. Specifically, the codebase for Indiatimes Messenger contained some GPL'ed code from Everybuddy (now Ayttm). I reported this to the authors of Everybuddy, but they didn't seem to care beyond a point. After that, I've seen so many license violations, GPL and otherwise.
Thus, in practice, the GPL is not a strong instrument. Personally, I've come to believe that either I'll go for a closed-source license for my programs, or I'll go for something like BSD.
Thousands of telented people decided to take revenge. I wounder how many skilled computer crackers are working full time on the linux project who will have nothing to do.
Time to do nothing can let free the worst evil on networks.
Now this could be 10 times worse than any thing you can think of most virus writers are unskilled at programing so they are not great writers so if some truely skilled people write virus you will see more mult platform virus more mult attack point virus and more hell.
I have been trying to follow this case in the last few weeks so as to understand what SCO's case is all about. I don't think most readers have really bothered to find out why SCO is suing IBM and Linux companies. SCO's problem with IBM is that, SCO owns UNIX code which they have licensed to IBM. IBM improved on the original code and distributes a UNIX derivertive under the name AIX. Then came Linux and IBM started contibuting code to Linux which is GPLed. SCO claims that IBM took part of the original UNIX code (AIX code) and put it in Linux, which is GPLed. SCO recons that everything that IBM has put in Linux ought not to have been there as they were contibuting closed scource material owned by SCO!
SCO now thinks that they can solve the problem (they can't stop GPLed stuff from being further distibuted because its out there already) by getting linux owners and companies to pay them for the code that IBM introduced into Linux. Thats all there is to it!
The GPL will NOT be tested! It cannot be tested, it will only be a tool for SCOs case
Every problem has a better solution when you start thinking it differently than the normal way.[Steve Wozniak]
I've always had doubts about the enforceability of the GPL in court.
Have you read the actual IBM's claims? It seems to me that you're discussing non-existing issue. Here's a relevant part of the claim:
IBM is entitled to an award of damages in an amount to be determined at trial and to an injunction prohibiting SCO from its continuing and threatened breaches of the GPL.
You see, nobody (except some /. crowd) is claiming that the court should force SCO to give away all of their code (if any) under the GPL. All IBM wants is "award of damages" and "injunction". What they're saying is that IBM is one of the contributors of GPL-ed code, and SCO has redistributed all these GPL-ed codes without respecting the GPL, and thus IBM has certain right to claim as one of the copyright holders.
As a matter of fact, I think it's the beauty of the GPL that you don't have to worry about such things as the "enforcability of the GPL in court". It doesn't matter if it is enforcable or not. The GPL is to allow something that is otherwise prohibited, and when something nasty happens, the punishment-part is taken care by the normal copyright law (or some other existing law, whatever it is).
It seems to me that the general disregard for copyright as applied to music serves only to weaken copyright as applied to GPL.
Here's what I do: Bitty Browser & Andromeda
This case presents some interesting spin on copyright law and licenses of copyrighted material. There are two interesting Copyright/license issues here. I'll give my view and any comments I make should not be taken to imply that I agree with either party on the facts or merits of the case. First, let's look at the SCO side.
;incense and owes SCO whatever damages the Courts set. Further, as I understand the law, any product that contains this source must be withdrawn from the market immediately. The products can not be used until the offending code is removed and replaced. That means that folks who are running Linux systems would have to shut them down as soon as they are notified or know that they are using a product containing the code.
SCO appears to own the copyright and intellectual property rights to the UNIX system source code. UNIX source has always only been made available under a license that protects the source code and the trade secrets contained within the code. Your license does not allow you to use any of the code in other products unless that product is subject to the same license. Sort of GNU'ish, isn't it?
SCO says IBM took some of its source code and put it in Linux. If IBM did this, then it violated its
I believe that a problem in replacing the code is that the people doing it have to find a way to replace it without using the knowledge they have to essentially copy the code. It may be difficult to do this, but it can be done. Further, SCO may have the right to examine any replacement code and potentially hold up release until they and possibly a Court agree that the replacement code is free of any of their source. This all takes time, and in the meantime, no LINUX use.
The second issue relates to SCO shipping Linux under the GPL with the offending code. One of the more interesting things about this case is that the GPL is essentially an equivalent license to the UNIX license. Whereas the UNIX license asks for cash for using the code, the GPL asks for your source code additions as compensation. Both licenses rely on the same basic copyright law to protect the code that is being licensed. Both licenses are binding not just on the licensee, but also require the licensee to only license any product built using any of the code under the same terms as the original code. Pretty interesting symmetry.
Now comes the interesting part. If IBM violated the UNIX license and placed code from UNIX in Linux, it did not have the right to agree to the license terms for the code in question. The question then becomes one similar to this: if someone steals something from your house and you wind up in possession of the item, which is disguised, without realizing it and then give it away, do you lose title to it, even if you would never have given it away if you knew?
Does this mean Scalia, Rehnquist, and Thmoas voted to uphold the GPL? OMG!!
Because GPL licensed code is habitually ripped off by commercial companies, through evil or plain old ignorance. I've seen it both ways, and I've seen it at every company I've worked at.
You, dear reader, might not have seen it, but that doesn't mean that I haven't, or that it doesn't happen.
GPL needs a huge public case to bring it to the attention of both developers and pointy haired idiots. It must be made clear that the GPL can't be retrospectively revoked (that it doesn't specify "irrevocable and in perpetuity" beggars belief), but that once violated, you are commiting copyright violation (or "theft" in newspeak) every time you duplicate. This needs to be made clear in no uncertain terms, with a fat headline grabbing fine, not just another quiet non-disclosed settlement by that pussweed Moglen.
The GPL is so badly understood even by people that use and comment on it every day (yes, you, dear reader), that this is a long overdue public test of it. If it ain't broke, let's say so. If it's broke, let's find that out and fix it.
If you were blocking sigs, you wouldn't have to read this.
time as ever.
Reasons why timing is good:
1. IBM a mega-corporation is using it in their defense case (among other things they have). But they still reference it as one of the key's to their case. Thus they have some belief in it, whatever that might be.
2. If it is never tested in a real court of Law.. then well its worthless. There is no precedent for it and if people realize nobody wants to use it in court, then its just as worthless as all those EULA's everybody just blindly clicks through.
So here's hoping the make the good fight and the GPL comes out on top.
But you can't back down when a big fight comes just because you have a fear of the system striking it down. If you never come to the table THEY'VE ALREADY WON.
thats all
Who makes you Sig?
Note: This is not a positive note about him or his posts, so if you love the guy please forgive me.
I don't know whether the GPL will be properly tested under the current circumstances, as it seems that the US legal system is one where your chances of winning are dependant on so many factors that have no real bearing on the core case, such as lawyer quality and quantity, the attitude of the judge and their mood and a jury who is more often than not in no way qualified to give opinion on highly technical matters such as these.
I do however think Andrew Orlowski is an opinionated man with a personal view of what is right and wrong in this world. There's nothing wrong with that but I noticed quite a while ago that his personal opinion was anything but positive towards things that didn't fit in his opinion and he never seems to even attempt to qualify his statements. His op-ed pieces often take the position that HE is right. Point.
I first took notice of him when he was the Reg's resident Mac writer, and he never failed to write scathing attacks on everything Mac and Apple related, be it horrific reviews of the ibook when it came out or sarcastic criticism of Steve Jobs business plan. While it can be refreshing to not have someone who is a mac zealot reviewing Apple stuff, I would point out that both the ibook and Apple's business plans have been success stories in a generaly bleak IT sector. His comments on OSX would have made you think it was 1996 again and Apple was going to die "any day now".
This piece on the marvels of people in the UK ignoring the law as opposed to people in the states being a bunch of sheep is as ridiculous. He has a point in that traditionally in old world countries the power of the individual has been minimal leading to individuals ignoring it, but he so conveniently ignores the fact that the GPL needs to be seen as legally legitimate, no matter where it is implemented, for it to be taken seriously by businesses.
And that applies to the UK, the US and just about anywhere else where businesses enforce their licences through the legal system.
The Law of the Land:
- Copyright law says basically that you need permission from the author to make copies of software and the like, except in certain limited circumstances which may vary from one jurisdiction to another.
- If the law of the land says that you have a right to do something, then nothing and nobody can take that right away from you. Ever. Even if you sign a piece of paper saying you have given up that right, in the eyes of the law you still have that right. This is what that catch-all phrase "Your statutory rights are not affected" means.
- Civil law gives you remedies, as a copyright holder, if someone performs unauthorised acts in relation to your work. The courts may decide on the nature and magnitude of such remedies. In general, whistling a tune in the street is likely to attract substantially smaller damages than broadcasting an unreleased movie.
The GPL:- The GPL gives you the necessary permission to make and distribute copies of the work, in addition to any statutory rights you may have, if and only if you comply with certain restrictions. For instance, if you modify the work, you must not restrict distribution of your modified version, save that you may keep it entirely to yourself.
- If you fail to comply with the conditions of the GPL, then your special permission to copy, modify and distribute is withdrawn. Copyright law is what bars you from making copies, not the GPL.
There's nothing complicated in there; it is all quite straightforward. SCO has released code under the GPL, thereby granting a licence to others to copy it. That licence cannot now be withdrawn.I've said it before and I'll say it again. When you want to do something critical with Free Software - such as running a system where people will get hurt or killed if it fails - reading the source code is due diligence. Don't want to read it yourself? Don't know how and can't be bothered to learn? Then pay someone to read it for you. That's the way people make money out of Free Software. What SCO was doing was critical in a different way, because SCO was trying to keep proprietary code separate from GPL code. Nobody's life was in danger, but SCO mucked up anyway by not checking for things they didn't want in the code before releasing it.
Je fume. Tu fumes. Nous fûmes!
also be a loss for propriatory/closed source licenses too would it not? A loss in court couldn't simply be a loss for GPL and GPL alone, it would have to have broader implications.
Click-thru licenses also haven't been tested in court and, as I understand the situation, the software powers that be are quite happy about this as a court challenge may well invalidate (and rightly so) these licenses.
What would the wider implications be beyond GPL (for closed source) if the GPL loses in court?
In Bushworld, they struggle to keep church and state separate in Iraq as they increasingly merge the two in America.
...if it doesn't have a leg to stand on. I think that either way this case goes it will, in the long run, be beneficial to the OSS movement. I also think that IBM and the GPL will win out if this case goes to trial. Once the GPL is upheld in a court of law I have a feeling Linux and OSS will gain a great deal of credibility and more people will be open to using it.
Since the idea of GPL was conceived by Richard Stallman, will he be called to stand as a witness to explain some of the notions presented in the GPL? It'll be wild if he does:)
Carpe Diem: Seize The Day!
The GPL has to be tested.
It's a simple fact.
A law that's on the books, but never applied isn't a real law, it's just words on a page. You have to actually get the words out, hold them up to the person standing against them, and impliment them.
If you've read the IBM filing, there is a line:
A jury doesn't nessisarly represent the more intellegent in society.
Jim Bob Bumble-Fsck with a GED and a drunken slur had better not be on the juror's list.
this is my sig, there are many like it, but this one is mine.
Somewhere, somehow, Microsoft must be behind SCO. Idealisticly for sure. Financially? Maybe. After all, you have to have some PRETTY DEEP POCKETS to butt heads with the IBM legal team. And that costs MONEY. Does SCO have it? I doubt it. But Microsoft has money out the wahzoo.
The best thing that could happen for Microsoft is if SCO wins. But I am thinking that they would settle for a long, protracted battle (measured in years) so that they could (continue to) spread FUD. Perhaps they can even get an injunction against the GPL until a ruling is made (again, years later).
The worst that could happen to Microsoft is if the judge squishes SCO like a bug because they filed a frivolous lawsuit. But that is not likely to happen.
Remember, Microsoft isn't just an 800 lb financial gorilla, getting what it wants; it also has a solid litigation team. Bill Gate's dad was an attorney, and I am sure he taught Bill a few lessons there.
So, overall, I smell Microsoft in this picture somewhere. A conspiracy, perhaps?
A ruling that finds the GPL or its parts unenforceable will also tell us why those parts are unenforceable and provide a guideline for revision. I would definitely find it ideologically appalling if the courts declined to enforce the GPL while consistently enforcing much more onerous and apparently legally tenuous shrink wrap licenses. The windows XP license is ok but the GPL isn't?
Are you sure copyright needs to be registered for imposition of statutory damages? You might be right, but I don't recall that being the key. I thought the key was being able to establish intent to infringe, willful and wanton, stuff like that. I don't even know where my IP Nutshell is anymore...