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?"

Comments

Either way it's a good thing

[mjmalone]

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.

Re:Either way it's a good thing

[Anonymous Coward]

I agree that the GPL should be tested, but given the nature of how law works in the US, I'm darned glad it's IBM's lawyers defending it.

Re:Either way it's a good thing

[Anonymous Coward]

There isn't anything "nebulous" about the GPL

Unfortunately, there are some nebulous areas in the license. Not in the basic concept, I agree.

But once the GPL starts talking about "linkage", and trying to claim that Application A linked with GPL'd Library L means A has to be GPLed, while App A linked with GPL'd Operating System O does not, it's on thoroughly nebulous ground. The concept of "linkage" just isn't that clear cut, especially in the modern day with dynamically linked libraries, or in embedded systems where the OS is more often than not statically linked with the "application". This nebulousity is entirely self-inflicted by the GPL; it's not "FUD" spread by some evildoer. Had the GPL never tried to make this distinction in the first place, it wouldn't be a problem.

While the obligations under the GPL are straightforward enough, it's not always clear when those obligations apply. Safest thing to do is assume that if you're anywhere near GPL'd code, then your code needs to be GPL'd as well. Over-broad, but it's the only way to be sure. The lack of clarity in the license one reason why the FSF has to maintain pages and pages of FAQs about the GPL, and perhaps one reason they're working on yet another version of the GPL.

Making the license more complicated naturally increases the chances for bugs and unforeseen interactions and side effects. One of the nice things about the BSD license is that it's so bloody simple.

Just because you find the intent of a work admirable doesn't mean you must assume the work is therefore perfect. The GPL shouldn't be treated as Holy Writ and viciously preserved against all "attack" from evil FUDsters. It should be improved where required.

Re:Either way it's a good thing

[runderwo]

The GPL is an implicit contract. Anybody who happens along and acquires a copy of the GPL'd code is supposedly bound by this 'contract.'

Wrong. Notice that it is typically contained in a file called 'COPYING'. The GPL only applies when you redistribute the software.

It's a heck of a lot like an EULA in that regard, and nobody here takes binding EULA's seriously. Why should we take the GPL seriously either?

It's not like a EULA at all. A distribution license like the GPL is not invoked until you distribute the software to someone else. A EULA is a contract that is invoked when you install a piece of software (or sometimes, when you open the box).

The GPL guarantees you to have no restrictions on your use of the software. Above and beyond that, it grants you certain distribution rights that you would not have otherwise under copyright law. If you reject the terms of the GPL, you may not distribute the software, but you can still use it for whatever purpose you want. A EULA, on the other hand, is designed to disallow you to even make use of the software if you do not accept its terms.

See the difference now?

Good or Bad?

[Hayzeus]

How about inevitable?

Sooner is Better

[mhotas]

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?

A good side, a bad one

[leandrod]

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.

It's not a test of the GPL

[turg]

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?

Once more, with feeling this time...

[Empiric]

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".

GPL will have very little to do with the case

[MyNameIsFred]

From the articles that I have seen, I don't believe GPL will play any significant role in the case. The issues are whether IBM broke its contract with SCO by creating a "derivative work" and whether SCO source code was improperly copied into source code that IBM released. The fact that the source code is under GPL is only marginally important. The same issues would be raised if the source IBM released was under BSD, MIT or any other license. I seriously doubt whether the validity of the GPL license will even be raised.

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.

Re:The GPL doesn't mean as much as people think

[leandrod]

> 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

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.

Without precedent, it means nothing

[drinkypoo]

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.

How would a court rule against it?

[jamienk]

* 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.

Copyright is NOT a contract, it is the law

[47PHA60]

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.

Widepread Civil Disobediance in the U.S.

[Nova Express]

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.

Faith in the justice system...

[jmors]

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...

GPL does not need to be tested

[digitaltraveller]

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 license revocation doesn't force PD.

[jbn-o]

The GPL could end up nullified in such a way that the Linux kernal became sort of a free-for-all public domain piece of code. In that case, IBM wouldn't lose, nor would they lose if the GPL as it's interpreted by most people is upheld. It could be a win-win situation for IBM.

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.