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GPL in Court - Good or Bad?
Irvu asks: "The Register has a lengthy opinion piece today about IBM's lawsuit, and the GPL. Barring a settlement this case will see the first test of the GPL in a court of law. Previously the GPL has functioned as a social contract with the implicit (albeit untested) force of law behind it. Any ruling now could radically alter the free-software/open-source landscape for good or ill. Andrew Orlowski dwells on these possible ills in his piece. What does Slashdot think? Is this test a good or bad thing? Do you have faith in the justice system (or IBM's Lawyers) to draw the right conclusions? And, how do you see any outcome affecting you?"
A legal test of the GPL is a good thing no matter how it turns out. If the court case fails that just means that revisions need to be made, it would go against the philosophy of the open source community NOT to test the license. I don't know how much of a landmark case this is, it is kind of a gray area, not straight infringement.
Visualize the world of wine
The sooner we know if the GPL holds water, the better. A lot of people are counting on it to protect their work. How big a disaster would it be if a loophole were found 5 years from now?
Good:
Once for all this "not yet tested in court" FUD will go away, and future violators might be deterred.
Bad:
Media circus. 'nough said.
Worst:
A bad result might make thousands of talented people loose faith in justice. This is actually good, as would be any acts of civil disobedience in consequence. The actual evil has been done in the last several decades in the slow, generalised erosion of morals... final defeat would be ugly, even the civil disobedience struggle itself would be honourable but containing scenes of unthinkable ugliness, stupidity and cruelty.
Leandro Guimarães Faria Corcete DUTRA
DA, DBA, SysAdmin, Data Modeller
GNU Project, Debian GNU/Lin
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.
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http://moglen.law.columbia.edu/publications/lu-12
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
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."
/.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.
Most
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.
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."
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.
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
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!
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.)
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.