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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
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?
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
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.
How practical would that be? Probably not enough to make a dent at the original program community, as any patches if useful would probably be small enough to be quickly replicated, and would be a pain to follow up with new versions.
Now, suppose these patches contain the implementation of an essencial patent... well, this are just like binary modules for the kernel and codecs for mplayer; they exist, but they tend to become roadkill to further development, as most patents are interesting but liable to workarounds.
Leandro Guimarães Faria Corcete DUTRA
DA, DBA, SysAdmin, Data Modeller
GNU Project, Debian GNU/Lin
I think it is too easy to underestimate SCO at this point. They must at least think they have something otherwise they wouldn't have come this far. Certianly the biggest mistake the open source communtiy could make is to not take them seriously.
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.'"
* 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.
HiKarma makes some good points about possible GPL loopholes that might need to be addressed in a future version of the GPL, but I disagree that the GPL doesn't mean as much as people think, in fact, it means much much more.
The *fact* that SCO has violated the GPL is the surest defense against the silly claims they are now making. The point of the GPL is that free software *remains* free, and that no organization (i.e. SCO) can use the embrace-extend-extinguish tactics that we've seen from Redmond.
Love it or hate it, the GPL (assuming the courts agree) is an extremely potent instrument that will be very difficult to circumvent in any practical way. The "program to modify GPL code" you suggest could only be used by end users (since further distribution would be against the GPL, however the changes themselves happened), and would not work in the real world.
In any event, if the GPL is tested and falls short, it will be revised and all our favorite projects will be relicensed under the new terms, and soon enough the old-GPL-releases will be obsolete. And Free Software lives on.
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?
I read their original case and several filings after this. There is no evidence that they are on to something. I think there original bet was that IBM would rather buy them then allow for this confusion, publicity... IBM decided that SCO was a great place to make a stand. So no I don't think they have a case and yes I think the open source community shouldn't take them seriously.
Serious companies complaining about a copyright or patent violation would be very anxious to see this violation corrected.
Ultimately, only handful of people very out of step of current events could be chosen for the jury. IIRC, there was a similar problem for the Ollie North trials, but not nearly as bad. Goes to show that sports celebrities are more widely known than political entities.
Anyway, I don't know how business suits relate to juries, if they have them or not. But the problems inherent in the OJ case hopefully shouldn't present themselves here. You should be more concerned with the problems from the MSFT antitrust case. Where the company lied in court, was found guilty, and still got off the hook.
I think Robert Frost summed it up best when he said "A jury consists of twelve persons chosen to decide who has the better lawyer."
make world, not war
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.
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 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!!!
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/
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!
Smart judges are not supposed to see the difference. The law must be applied consistently, and not nicely for things we like and badly for things we don't. Copyright law says you can't make copies. It doesn't say you can be bound to a contract if you do, only that you are infringing copyright. A judge shouldn't change that just because the contract you are alleged to have agreed with does nice things.
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
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.
Copyright law certainly DOES permit the author of the work to allow redistribution. Such a thing is called a redistribution license. They're pretty common in the world of IP. Read up on it sometime.
Not as I currently read the GPL, which mostly talks about restrictions on you redistributing your modified GPLed program.
I can take a GPL program and modify it to my heart's content on my machine, and keep the source secret, if I don't give the program to others. So far that's been the clear message from most GPL authorities.
The loophole might be that I can also tell you how to take the GPL program and modify it the same, and neither you nor I distribute the modified program. In fact, I "tell" you how to do it by selling you a program that does it.
That the GPL doesn't forbid, not directly. The one claim they could try would be to claim (as the mysql company does) that the program that does the modifying is a derivative work. That's a murky, less tested area.
At most the company bundling GCC with an OS would have to make the _GCC source_ available to anyone who wants it. That's it. If the OS maker used GCC code, added their own improvements, and released the new compiler (bundled with an OS, on cd's, or even off it's website for free) the company would have to make the source code for their _new complier_ freely available to anyone who wants it under the terms of the GPL.
The licensing of bundled pieces of software have nothing to do with one another. Bundling OSS and proprietary software together doesn't mean the GPL will "infect" the proprietary. Now if you take portions of GPL'd code and incorporate it in your OS, the OS is supposed to be GPL'd. If you don't want to GPL your OS, don't incorporate GPL'd code into it! Write your own.
Beware blue cats moving at
It's very simple. Because you can't legally modify and then re-distribute someone elses work. Period. You can have all kinds of arguments about what defines free, and what kind of freedom we want, but those are idealogical arguments, and not legal ones. In the absence of permission from the author (usually, but not always, in the form of a license), you cannot re-distribute copyrighted works, or create & distribute derivitive works. Period.
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.
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
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.
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!