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

[Nucleon500]

I don't think it's a grey area at all. The SCO case is almost exactly the kind of thing the GPL is supposed to prevent. (The difference is that SCO is trying to close the code "legally," not by embracing and extending.) It's crystal clear that SCO is attempting to infringe the copyright of thousands of developers. I'm glad that the test case is so clear-cut.

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.

Re:Either way it's a good thing

[minusthink]

"A legal test of the GPL is a good thing no matter how it turns out"

I agree, as long I'm not paying for it.

Re:Either way it's a good thing

[MuParadigm]

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.

Re:Either way it's a good thing

[shaitand]

I think it say something that nobody has dared to challenge it thus far, and that IBM's lawyers considered it solid enough to allow IBM to use it prior to this. This is no fragile piece of ground, this is rock solid and I've never heard a lawyer say otherwise.

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?

The GPL doesn't mean as much as people think

[HiKarma]

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.

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.

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

[HiKarma]

That's the point. There is a lot of contention over clauses that say that "merely by doing something, you indicate your acceptance of an agreement."

Most /.ers have been among those opposing such rules, by the way, in shrinkwrap contracts, and contracts on web sites that say that by using the web site you are bound to its terms.

A typical clause of high contention have been those that say that you can't reverse engineer the program, for example.

The reality is using and copying something can't bind you to arbitrary terms. Nobody seriously thinks they can. Copying any future articles of mine, by the way indicates acceptance of the terms on my web site, which include that you must pay me ONE MILLION DOLLARS for each article.

The debate is over what you can bind people to with such contracts. Some court cases have gone one way, others have gone other ways.

I would be amazed if a court were to say, "You put GCC in with your operating system, thus your entire OS must now be released under the GPL." I would be absolutely astounded.

What a court might say is, "You violated the copyright of GCC when you bundled it in your proprietary OS, and therefor the remedies of copyright law are available to the FSF."

Those remedies are:

a) Actual damages -- how much the FSF lost because you did this. (likely to be hard to make large.)

b) Injunctive relief -- remove GCC from your OS now, do what you can to remove it from copies you already released.

c) Statutory damages -- at the court's discretion if GCC had its coypright registered with the LoC before the suit, these can be quite hefty financial damages.

Now A won't scare anybody, but B and C could indeed force the OS vendor to do quite a bit, not because of the GPL or the court ordered relief, but to settle the copyright suit.

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

[E_elven]

>There is a lot of contention over clauses that say that "merely by doing something, you indicate your acceptance of an agreement."

And that is where the problem lies. In general when speaking of such clauses, they are taking a right *away* from you. The GPL, however, is *granting* rights. You are under no duress that you must use the program, and you could not use it anyway if that clause were not in place. If the code in question were not GPL'd, the end-user would have no rights to it -they could use it if given to them by the copyright holder, but they could not distribute it further (whether they culd resell it after they wouldn't use it anymore should be covered under fair use, of course) in any shape. That's the all-important distinction; the GPL *grants* rights.

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

[grnbrg]

An example (taken from memory):

The LAME mp3 encoder.

The LAME mp3 encoder was, for a long time, officially distributed not in binary form or in source form, but as a patch against the reference code published by Fraunhofer.

Due to patent encumberance and licencing restrictions, distribution of modified source or binaries was not permitted. But since the patches were 100% work of the LAME authors, they could distribute in this format. The fact that they were useless unless applied to the code distributed under a very restrictive license was irrelevant.

A similar argument could be made for a (closed source) application that accepted as an argument a specific tarball (which could even be included in the package -- the GPL makes it freely distributable!) and output an application different from what is in the tarball.

Sauce for the goose and all that....

--
grnbrg

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?

Re:Sooner is Better

[Anomander]

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...

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.

SCO's case is too weak

[jbolden]

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.

justice system

[h4x0r-3l337]

Do you have faith in the justice system (or IBM's Lawyers) to draw the right conclusions?

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.

GPL is stronger than other software "licenses"

[echo]

Read this article to understand why.

http://moglen.law.columbia.edu/publications/lu-12. html

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.

Courts rule software can be modified/redistributed

[jamienk]

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..."

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.

Old SCO Also Donated Code to Linux

[Picass0]

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

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.

Re:Isn't a Copyright a Contract?

[HiKarma]

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."

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.

Re:OJ

[Coventry]

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.

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. ...and doesn't pay. ...and leaves me in the lurch.
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.

Re:Isn't a Copyright a Contract?

[Webmonger]

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

Agreed..

[hndrcks]

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.

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.

Re:Isn't a Copyright a Contract?

[HiKarma]

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.)

For what its worth

[rssrss]

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.

I wish to point out........

[Allnighterking]

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.

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.