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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?"
Read this article to understand why.
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http://moglen.law.columbia.edu/publications/lu-12
O'Really.
Copyright law does essentially one thing. It gives the copyright holder exclusive right to make copies, and thus to get a court to punish and stop those who make copies of something without permission.
The punishments are specific. Injunctions (stop copying!) Actual damages (pay me for what I lost because you copied it.) Statutory damages.
In extreme cases (wilful infringement that really pissed off the court) statutory damages can be up to $150,000 per copy. That's a lot of leverage which can get you to make people obey the GPL.
But copyright itself does not list among remedies, "Make them release their code under the GPL."
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.
I agree. The question is not if this is good or bad, it is necessary. If it holds up that's great but if it doesn't then the GPL has to be redone.
The problem with holes is not when they're found but how long they are there for ppl to exploit.
Sattinger's Law: It works better if you plug it in.
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.
The GPL forms the basis for many of IBM's counterclaims. That fact alone will cause SCO to raise questions about the validity of the GPL in court if the case ever makes it that far. There are a number of terms in the GPL that are not present in BSD style licenses, such as the restriction on sublicensing. SCO's many violations of the GPL opened the door for several of IBM's claims. The GPL will also play a huge role in the Redhat case
Actually not. The (reformed) BSD license and friends do allow anyone to do anything but stripe out the copyrights notice. So if Linux was BSD-licensed, SCO could have gotten away with its reasoning, and IBM wouldn't have been able to point SCO's distribution of Linux as hypocritical and infringing.
Leandro Guimarães Faria Corcete DUTRA
DA, DBA, SysAdmin, Data Modeller
GNU Project, Debian GNU/Lin
>There is a lot of contention over clauses that say that "merely by doing something, you indicate your acceptance of an agreement."
And that is where the problem lies. In general when speaking of such clauses, they are taking a right *away* from you. The GPL, however, is *granting* rights. You are under no duress that you must use the program, and you could not use it anyway if that clause were not in place. If the code in question were not GPL'd, the end-user would have no rights to it -they could use it if given to them by the copyright holder, but they could not distribute it further (whether they culd resell it after they wouldn't use it anymore should be covered under fair use, of course) in any shape. That's the all-important distinction; the GPL *grants* rights.
Marxist evolution is just N generations away!
Well, there is a huge difference between the GPL and the average EULA: the GPL allows you to do things you wouldn't normally be allowed to do, such as give verbatim copies to your friends.
The other EULAs make up arbitrary restrictions as they feel like, and hope that most will stick in court. Many of these restrictions take away rights that you would otherwise have (for instance they restrict the way you USE of the software, which expressly permitted by basic copyright law).
Yes, the terms are on the GPL are "arbitrary", but they can be ignored, in which case you don't get to copy the software, which is an exclusive right of the copyright holder.
I think any smart judge would see the difference. Considering how careful the FSF has been, even in the way they word things in their writings, I find it almost impossible to believe that a judge wouldn't find that someone violating the GPL is in fact violating copyright law.
The Holy GPL sayeth:
"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."
If you distribute GPLed code you either
a) have accepted the GPL implicitly
b) are violating the copyright on the GPLed work
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!
I think it say something that nobody has dared to challenge it thus far, and that IBM's lawyers considered it solid enough to allow IBM to use it prior to this. This is no fragile piece of ground, this is rock solid and I've never heard a lawyer say otherwise.
IBM carefully selected four patents. In their complaint, on each patent count, they list which SCO products infringe each of IBM's patents.
I admit ignorance of SCO's complete product line. But it seemed to me that thse four pagents are carefully chosen such that all of SCO's current or likely products will infringe at least one of the patents.
If IBM gets a preliminary injunction, then this will cut off all revenue to SCO!. Of course, there is something else that I would like to cut off of each of the executives, but I would settle for them each getting a comfortable jail cell with Buba.
Why only four patents? So that IBM doesn't come off in front of the judge as trying to abuse the legal system. If IBM countered with 2000 patents, it would seem very clear that IBM is just gaming the system.
IBM also, just like Red Hat, asks for SCO to be made to stop their license extortion. With this in place, then SCO will have no money comming in.
Patent lawsuits are expensive to defend. If I understand correctly, you must either (1) proove that you don't infringe, or (2) proove the patent is invalid. Either one takes lots of expensive patent research, sometimes on very old patents.
So we come back to the question: Will SCO last long enough?
Those who would give up liberty in exchange for security and DRM should switch to Microsoft Palladium!
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.
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Nice work if you can get it !
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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.
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.
These are all fine ideas, and ones I now use regularly in my business - I don't think I mentioned that despite the BS I went through I ended up deciding to be my own boss.
I think in my case, the bigest things I could of done differently were to have opened my eyes over two things:
1) Company Y had already proven itself, by how it shut down and sold off my employeer X, to be a ruthless and rude entity.
2) Person A had a bad reputation outside the tech departments of X and Y for being an ass, and being untrustworthy.
With #1, I had blinders on and saw the oppourtunity for making money. With #2, I had my blinders on and thought my previous experiences with person A entitled him to 'friend' status.
In both instances I was dead wrong, and If I'd of taken a step back I'd of given the whole thing more thought ahead of time.
sometimes some perspective is all we need, and I've found that keeping your perspective and seeing the whole, big picture can be an important part of keeping a biz afloat.
For example: I recently met with a client who had grand ideas, and wanted all sorts of things done. I wrote a proposal and sent it to them, a short proposal, very informal. considering the features involved, this could be a huge project, so why didn't I write a detailed proposal and send over a work order? Because the (potential) client is a startup, and has money problems. I know that If I spend too much time on proposals for them and they go under I've lost potential business I could of been landing. The (potential) client is bothered by the informal proposal - even though it was informal it has a price range in it. We keep in contact and if they want my services they'll either try to haggle or cut some features. Or, they'll come back 6 months down the line and say 'we're ready to do this now' - which happens more often then you'd believe.
If only perspective came in a can.
man is machine
The GPL isn't a "contract". It's a unilateral grant of permission to perform acts normally prohibited by copyright law. It's the exact opposite of most commercial EULAs, which are (IMO invalid) attempts to unilaterally remove your pre-existing rights in exchage for nothing.
Without a signed contract, there isn't any way to enforce said contract.
The GPL doesn't need to be enforced. Only copyright law does. If I modify and sell your GPLed software without providing source, you sue me not for "violating the GPL" but for copyright infringement. My only defense would be the GPL, but since I didn't abide by its conditions I won't be able to invoke it.
How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
That's not true. If they fail to meet the agreement (GPL) then they are in violation of copyright. They can be sued for monetary damages, up to $150,000 per copy. The GPL is a license not a contract.
Time makes more converts than reason
>Because GPL code is copyrighted, the owners of
>the copyrights have the final say in how the
>code can be used.
No, copyright does not give you the right to tell how something is USED. It gives you an exclusive right (with some exceptions) to make copies, derivative work, public performnace and such. That is is. It does not cover general use of a work, even though many software, music and film providers wants to make you believe otherwise.