Slashdot Mirror
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
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.
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?
Anti SCO T-Shirt. $1 donated to OSI Fund on each shirt.
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
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.
Read this article to understand why.
. html
http://moglen.law.columbia.edu/publications/lu-12
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.
This lawsuit reeks of the USL vs BSDI lawsuit years ago. What's more important than testing the GPL (as someone has said, if it doesn't work then we can always re-write it), is that we keep raising the profile of Linux and OSS in general to non-geek friends and co-workers. That way we can help Linux avoid BSDs fate after their lawsuit was settled. But please do it in an even, unbiased manner, if not you'll freak people out...
Never underestimate the predictability of human stupidity...
Or did anyone else think that the ad for the O'Reilly book User Obliteration was part of the article on the Register?
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.
August 11, 2003
AP Wire
In a surprise 6-3 decision today, the US Supreme Court has ruled that the GNU Public Lisense is not enforcable and that programmers, users, and sellers do not need copyright holders' permission in order to modify, copy, or redistribute any machine- or human- readable code.
With IP law thus crippled, Free Software advocates expressed shock and confusion about how to proceed. "Now that I can just legally use a copy of NT with a cracked serial," Linux creator Linux Torvalds moaned in Washington, DC, "There doesn't seem much point..."
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.'"
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
The court date for the SCO-IBM suit is currently set for April 2005. Is it really reasonable to believe that SCO will be a functioning entity at that point? Their management team is dumping stock like mad, and should have long since divested themselves of any stock in the company. So who will be left to go to trial with IBM?
TheFrood
If you say "I'll probably get modded down for this..." then I will mod you down.
* 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.
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?
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."
The attitude presented behind this posting is an example of the growing trend of Judicial Activism. In essence, due to our current flawed process we read too much into historical cases and the cases themselves begin to define law - which is not the job of the judicial branch of government. This growing trend will increasingly effect our laws and our society by unelected leaders. Please read Ron Paul's take on this matter in a column of his called "Federal Courts and the Imaginary Constitution".
too_lazy_to_create_an_account
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.
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.
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/
What I feel is more important then the GPL in the SCO/IBM case whether or not SCO can freely distribute code either by free ftp or actual sales, then choose to charge licenses after the code is distributed.
The implications of this are far reaching esp for typical software where money is exchanged. To me, it's like Toyota asking me for extra money for driving my old 1979 360,000 miles when they expected me as a consumer to buy a diffrent car after only 100,000 miles.
There is no sanctuary. There is no sanctuary. SHUT UP! There is no shut up. There is no shut up.
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
The sooner it is tested, the better. If there is anything legally wrong with the GPL then wouldn't you rather know as early as possible, then close your eyes and hide in ignorance , only to open them when something bad happens later?
True genius is grasping a situation like a peice of fruit, and peircing it just right so that it drains dry.
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!
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.
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!
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.
- Who's there?
- OJ.
- OJ who?
- *You* can be on the jury!
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.
Wouldn't that program have the sole purpose of allowing you to violate copy protection?
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.)
Man, I knew this would happen. IBM is quoting all of Darl's crazy feverish rantings in their counter suit.
If anything, this case is going to make the GPL stronger because there is no way we can loose.
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.
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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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
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.
Shrinkwrap contracts are worse, but this is still too much power to give to copyright. Now, I can see a claim if you can prove that somebody did this knowing full well what the GPL means, but even lawyers debate exactly what the GPL means.
Consider this. I publish an item and in the licence I say, "You may not copy this unless you give me one million dollars!" And you copy it. Do you now owe me a million dollars? No, you owe me what I can extract for copyright infringment. Even though you "agreed" to the terms I put there, just like the GPL.
Let's make it worse. Say you know about my licence but decide your use is a fair use. Example, publishing the crucial part of Gerald Ford's book where he reveals why he pardoned Nixon. Very famous case.
Turns out the court says, "no, it's not a fair use." So now we go back to the regime you claim, which says I knew about the terms and I published it, so now I am bound by them. Can I have my million?
Nope. Copyright law only has so much power. The only power it has is to make you pay for copyright infringment. Not to bind you to an arbitrary contract.
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 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.
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!