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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
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."
>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!
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.
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.
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.