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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?"
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.
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.
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.
It's important to remember that while this may become the first test in court (except the MySQL case), both RedHat's and IBM's lawyers are comfortable with it. And the other companies that have faced GPL issues have respected it; they didn't think they could fight it. SCO's leaders, a few armchair lawyers, and Microsofties are the only ones I've heard who don't think it'll be enforceable.
Litigious bastards
Why? If GPL fails your code will automatically revert to normal copyright wich AFAIK requires your permission to use it in any circumstance.
The GPL is means to make your code more avaliable to the community, not for protection.
The danger of GPL failing would be to keep any project distributed under the GPL together. All the contributors must then agree on a new copyright scheme and that is probably a showstopper...
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.
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
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.
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.
If it took the well-publicized OJ trial to shake your faith, then you weren't paying much attention. It's been f-ed up for awhile.
...and doesn't pay. ...and leaves me in the lurch.
Heres a post-OJ example:
I used to work for company X, which was owned by company Y. Company X laid me off. The very next day I get contacted by a big honcho (lets call him A) at X (and Y, CTO for both) to do some contracting work on an unfinished project for Y. I agree and get to work. I work, and I work, and I rack up hours, all billable via the agreement I had with A. I fix all the bugs, I deliver the system.
And then Y doesn't pay.
I find out the software I'd written is about to be taken from its single location and rolled out nationaly by Y, and I get pissed and start bugging the hell out of my contact at Y (person B). Person B tells me that A was never allowed to authorize work for Y, and puts me in contact with a different honcha, person C. Person C claims they are evaluating my software and comparing it against other off-the-shelf systems. I make it very clear to C that this matters not: I agreed to do work for a specific price per hour, and they are using the fruits of my labor. He shrugs it off and says he is not bound by the agreements A made.
Over the next two months, I get the runaround, and then finally C offers to pay less than 1/4rd of the bill as 'a fair liscensing fee based upon our research'. By this time, I had debt upto my eyeballs, but I still had some sense of reason and pride. I made it clear to C that I, not they, get to set liscensing fees for any product I decide to sell, and also stress that liscense was never an issue: I did contract work for them modifying an existing piece of software and fixing bugs, and I expected to get paid. C said the 1/4th was the best he could do. I said I'd go talk to a lawyer.
Here's where the legal system steps in, the above was backstory.
I go talk to a lawyer. With my documentation in hand, he said I have a very strong case - should it ever go to court. But he sugests we do some research and try other tactics (letter from his law firm, etc) first, because of a (to me) glaring problem with how these sort of civil cases go: No matter how big the organization in the wrong is, or how obviously in the wrong they are, it is soley upto the judges discretion as to wether the party in the wrong has to pay legal fees for the complaining party (should the complaining party win). Added to this fact, was that in the conservative city I live in, judges rarely make defendants pay for the complaining party's fees.
This upset me quite a bit.
Then the research into the company came down - just googling stuff I and the lawyer did. Y was run by lawyers and ex lawyers, and no suit brought against them ever made it out of court - they dragged their feet for years on anything they could, and used heavy-handed tactics and threats of countersuits whenever possible to stop suits dead in their tracks by scaring off the person or company making the complaint.
So, here I am, almost a year later, still out TONS of $$ (>20k), and I can't afford to pursue the matter. For every letter they write in response to something my lawyer would send, I'd be out 100-250$ (assuimng it was a short letter my lawyer coudl respond to quickly). If I were to take the case to court, depositions alone could bankrupt me. I entered into a binding agreement with an officer of company Y, and I can't collect squat from it.
Meanwhile, company Y is doing well. They have over 100000 users nationwide using the software I fixed and improved for them.
What it comes down to is this (as the prosecution found out the hard way in the OJ trial): the legal system protects those who have money. If you have tons of money (for lawyers), you can get away with almost anything, or at least make it so painful, expensive and drawn-out for anyone to come after you that it isn't worth it.
Back to the story at hand though: IBM has very deep pockets. But SCO is going to spend eery penny it has on lawyers, and can draw this out for quite awhile. Realisticaly, we wont have an answer to the is-the-gpl-enforcable question for Years.
man is machine
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.
I think people tend to forget that the basic premise of the GPL is to point out how ridiculous and counter-productive it is to attempt to secrete source code for profit. The GPL might be called "copyleft", but its enforcement has little to do copyright law. The genius of the GPL is that it uses contract law to hack copyright law.
But.....of course.....IANAL.
--K.
Sig: Bad people happen. Try to avoid being one of them.
Having read the article, I disagree with the author's comment that the GPL is a "social contract." I've read it, I'm sure a number of you have too. It's not a long document. I'd post it here, but I don't want to look like a Karma-Ho.
Anyway, it *is* a document with teeth. Let's say you're an author, and a publishing company wants to publish your book. You have the copyrights. They cannot publish it without your permission. So you sell them the right to publish it for an advance of $40,000 and maybe a buck a book for every copy sold after the advance is paid off.
Now, in the case of the GPL, instead of paying with cash or a portion of the profits from distribution, you pay by agreeing to certain terms and taking certain actions. For instance, if you distribute the software, you must include a copy of the GPL and a copy of the source code. If you modify the software and then distribute it, then you must do the same thing. That's your payement. It is required. If you don't take those actions (make the payment) then you can be sued for copyright violation. Outside of those conditions, you can do with it what you want for your own personal use and not worry about it.
There isn't anything "nebulous" about the GPL, despite Blake Stowell's FUD. And it's not a social contract; it's a contract, pure, and simple, and legally enforcable.
I can't wait to see this get tested in court. SCO will get their asses laughed out of court.
Judge: Let me get this straight. You say code that you own was relesed under GPL by another company.
SCO: Yes, that's right.
Judge: And then you released it under GPL yourself -- but not really because you didn't know the code was in there.
SCO: Yes, your honor. That's correct.
Judge: You never read the code, even though it was freely available, and you were publishing and distributing it.
SCO: That's right, your honor.
Judge: (snickers) Get the fuck out of here. All claims resolved in IBM's favor.
I'm usually not a "conspiracy theory" type, but my gut tells me that Microsoft is behind this, and that the whole idea is for SCO to lose. This gives Microsoft a poster boy for the fight against the Evil, Viral, IP-Corrupting GPL. "Look at poor SCO," they'll say. "They tried to work with the Open Source crowd, but those evil commies stole their IP and tricked them into giving it away, and as a result, they were destroyed." It doesn't matter that it's not true -- it'll look true enough to people.
The GPL attempts to do this. It is a court test that would find out if it has done this.
Many would dispute GPL's clause that since you can only copy the program under GPL terms, anybody who copies the program is agreeing to GPL terms. That is not correct. If you copy a GPL program in a way not permitted in the GPL, you are violating the copyright. That's it. That's all. You are not agreeing to a contract. The GPL wants you to think that you are, and the statutory penalties for violating copyrights are high enough that you might later wish to agree to the contract to settle, but you can't be made to agree to a contract because you copied something.
At least I certainly hope so. Courts might rule either way, but I think we would not want them to rule in favor of the GPL, because of all the other ways such implicit contracts are used (no reverse engineering, must donate firstborn son, etc.)
I think it would be clearer to think of it like this.
GPL gives you the right to sell, provide for download and otherwise make copies abilible of a work.
As long as you dont distribute GPL has NOTHING to do with you at all as your not vialating copyright and you got your copy legaly.
GPL is a contract that you accept when you distribute not when you receive a copy.
No sir I dont like it.
Why do you think that? There is no evidence that they did steal code but I don't think it's entirely out of the realm of possibility. It is much easier to steal open code and close it than it is to steal closed code and open it, for all to see. Besides Microsoft's track record isn't so good concerning illegal business practices. I am in no way suggesting it is fact, but it is entirely possible.
Time makes more converts than reason
All i'm going to say is - why should a US court decision reflect or change the way the rest of the world looks at the GPL or SCOs 'invalid' claims?
The US courts are known for weird decisions that defy all logic (Microsoft vs DOJ anyone?). The problem is that a positive court decision for SCO will railroad other international governments and legal systems to adopt the 'US' way of doing things. This is a VERY bad thing. Why should US law influence the legal system in Australia?
As to the GPL - it is clearly laid out. SCO cannot simply argue they didn't read the GPL, understand it, or mean to distribute a Linux (or open source) distribution under those terms. They knew very well.
I know i'd be ignoring all results for IP based on a US court decision, until decisions were made fairly and logically by a Australian Court of law. US law is completely only valid within the US, or territories part of the US.
What needs to be done now is for everyone who uses Linux to complain to their local court systems - unfair trading complaints and misrepresentation. Subpoena SCO to provide evidence based on licensing claims. etc Linux is used in just about every country in the world - if you can shut down SCOs case because they are refusing to provide evidence but want people to buy licenses with evidence (i.e unfair trading and misrepresentation) then you have won half the case. Quite elementary dear Watson...
Dave W Pastern
Slashdot can go and get fucked.