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IBM Moves To Enforce GPL By Summary Judgement
gvc writes "So much for the GPL 'never being tested in court.' IBM, in its third motion for summary judgement against SCO, is seeking a permanent injunction against SCO's distribution of Linux, on the grounds that SCO has renounced and violated the GPL, and therefore has no right to distribute the 700,000 lines of IBM-copyrighted code therein. As usual, Groklaw broke the story." We previously reported on another IBM summary judgement from earlier this week.
It stood up in court recently in Germany, AFAIK
The German GPL Order - Translated from GROKLAW
We should put up something from the Open Source Community to thank IBM for standing up for us...they could have dropped us and ramped up AIX again. Or turned around and tried to get linux for itself... Instead, they are defending us. The problem is: What do you get a company that can afford everything?
How about their stagnant Unix that is wrapped in GPL software so that it is functional?
Termination only affects distribution of the specific program that you distributed in breach of the GPL. Also, IBM lack standing to sue in respect of any software that they don't hold copyrights to. They have copyright to bits of the Linux kernel but not to everything out there that's GPLd.
The only fact applicable to an End User for GPL is the "Use for anything but No Warranty" part . Excepting the Freedom 0, there is no End User Licensing applicable to GPL and it is NOT CERTAINLY AN AGREEMENT for the end user as it has NO CONDITIONS to agree to for him , only a notice of Warranty which is present in almost every product on the market (absence or presence of warranty).
However a developer or distributer has to agree to the license and comply or not choose to distribute it. The point to be noted is that GPL is applicable for code that is distributed. I can take gcc/binutils and modify it for my own OS , keep it private and never release the source. I can even take it to a couple of trade shows and demo it out . But only if I give the binary to someone else without sources will I be violating the GPL.
You have to understand the twists in GPL to really appreciate RMS and FSF - they essentially built a strong moral , ethical , and legal foundation for GPL (V1 and V2).Quidquid latine dictum sit, altum videtur
IANAL, but promissory estoppel basically means that if you have said/promised/stated something and someone relies on those statements, YOU can't later turn around and change your mind and then sue people for violating your rights. Other people can still sue, but assuming all developers involved agreed to the GPL they're all limited by promissory estoppel.
Further distribution might be risky, but then the judge is extremely unlikely to find the whole license invalid - the more likely scenario if the judge is wary about parts of the license is for the judge to ask for advice from someone with solid knowledge of the license and/or the copyright holders in question to try to interpret the license in a way that is both legal and meets the intent of the copyright holders.
The GPL is not a EULA!!!
EULA = End User Liscense Agreement
The GPL is a liscense for distribution of copyrighted code, it has no bearing on End Users. It only matters to Red Hat, Debian, IBM, etc. A EULA is generally a set of conditions under which you are allowed to USE code ( or usually a work derived from code). EULA's are invalid.
It turns out that in the Memorandum in Support, IBM does invoke part of the GPL--specifically, the part that says "no relicensing":
So while it's not the whole shebang, it looks like we can at least expect part of the GPL to be discussed.
SCO's sales of "SCO IP in Linux" licenses, such as the license it sold to EV1, clearly breach the GPL, in that they a) charge royalties for GPL'd code, b) restrict the licensee to use only, and don't permit modification, and c) infringe the copyrights of all the other Linux contributors who have not given permission to license their code under any other terms but the GPL.
I once saw Gregory Blepp (you know, the SCO FUD spreader here in Old Europe) talk live about the whole topic. When I asked specifically about that, he told me that you don't pay royalties for the GPLed code, but only for the SCO code. The only trick is that they currently won't tell you what is GPL code and what is SCO code, so you don't exactly know what you would pay royalties for, anyway. Nevertheless it's FUD what they spread, but at least you now know SCOs view of the whole case.
A monkey is doing the real work for me.
Memorandum in support, pages 26-28. A must read!
Having read the article you linked to, it seems to me that it is fairly neutral. I don't see how Forbes has any take. Your question is with the word choice of "robustly", I would say that they are using it in place of a word such as "vigorously." They are stating that SCO is fighting back.
:wq
This is about GPL, because this is how GPL works. You cannot "violate GPL", you can refuse to accept it (explicitly, or, as IBM claims in this case, by virtue of your conduct), then you don't have the rights which GPL would grant you. So far, no problem, nothing bad is going to happen to you, yet. But now you can commit copyright infrigement if you copy the code copyrighted by someone else, unless some other license or contract gives you the right to copy. The latter would be a consistent defense for SCO since they seem to claim that they gain full rights for anything which touches "their" code, the original Unix codebase, in any way. Not that I expect anyone to salute when they fly this.
SCO has, without permission, copied code from sixteen discrete packages of copyrighted source code written by IBM for Linux and distributed those copies as part of its own Linux products. SCO has literally copied more than 783,000 lines of code from these sixteen packages of IBM's copyrighted material. As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works and therefore infringed IBM's copyrights. It can be interpreted it that way.
If you go on to read the next paragraph:
Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.
You can see that the axis of this motion really is the _GPL itself_.
Actually, in both cases they have violated IBM's copyright (well, actually they violated the copyright law), and in both cases by doing something they did not have the license to do.
Violating the license is strictly speaking not possible, because such "license violation" is done by doing something which is not covered by the license. The license grants you rights above those granted by copyright law, and granting of rights can't be violated. Of course a license can have a termination clause for the case you violate copyright law (or, for that matter, for any reason except those which are explicitly illegal; you could f.ex. state that a license terminates at the time of the next thunderstorm, except that no one would make such a silly clause).
IANAL, however.
The Tao of math: The numbers you can count are not the real numbers.
The Memorandom of Support makes this clearer. Either: (a) SCO's claim that the GPL is invalid and unconstitutional etc etc is true, in which case the only legal basis for SCO distributing IBM's work is destroyed. So they've been distributing IBM's work illegally. Or: (b) SCO's claim that the GPL is invalid is false, in which case they have breached the GPL by demanding license fees (from Autozone amongst others). Breaching the GPL in this fashion means that SCO loses the right to redistribute the GPL'ed software (per the GPL, which is valid in this line of argument). So they've been distributing IBM's work illegally.
Reality is defined by the maddest person in the room
hitting it again on with their classical line "The SCO Group is the sole owner of the AT&T Unix System V software licensing agreement" http://www.vnunet.com/news/1157433/
Except that, as someone pointed out on Groklaw, SCO repudiated the GPL in court filings . As I understand it, even a box of rocks wouldn't be dumb enough to assert something in a legal document and then expect to be able to blow it off with "hey, that was just me exercising my right to free speech".
To quote the GPL itself:
This means: Of course you can charge for the executables. But you have to provide the source code at no more cost than just handling and shipping, if the people who got the executables from you are interested. And you are not allowed to avoid the cost and hassle by just pointing at other sources than yourself, if you are charging for the executables.
That's an insane argument that has no basis in law. Anything you write is by default, copyrighted. It's a stronger copyright if you explicitly state that it is copyrighted. Even stronger if you register it. Code you write is only "public domain" if you explicitly say so.
As others have stated correctly many times, if the GPL is invalid then normal copyright applies. It wouild be unthinkable for the court to deny copyright protection to Linux, which is explicitly copyrighted. GPL and copyright are not mutually exclusive - they are very distinct and separate. The code is copyrighted. The copyrighted code is licenesed to you under the specific terms listed in the GPL. Even if the terms don't apply, the copyright still does.
IBM simply used COTS parts to make it quicker to market; they thought the proprietary BIOS would be enough to stop cloners. It wasn't.
Concerns like that is why some authors don't include that clause in their copyright notices. Not that they expect RMS to go off the rails, but that there may be clauses in later versions of the GPL that they don't agree with.
The reason the FSF wants authors to include it is that IF there is a legal issue (such as an unfavorable decision or opinion) that requires a change to the GPL they don't have to wait for every author to update their releases to use the new license.
It's unlikely that RMS could do anything so extreme even if he wanted to, though. Remember, this is an "or" clause, so if he put onerous restrictions on later versions of the GPL they wouldn't automatically apply to existing releases.
This is for all the mouthbreathers on here who have tried to come up with some assinine pseudo-legal reason as to why a breach of the GPL doesn't give way to copyright claims against the breacher. I have argued time and again on here that breaching the GPL simply opens somebody- like SCO- up to statutory damages for willful copyright infringement.
Well, you don't have to argue with me about it anymore, argue with IBM's lawyers:
Any questions?
Do you have ESP?
WRONG.
From SCO's Amended Answer to IBM's Amended Counterclaims, filed March 13, 2004:
Although they're not trying that angle anymore, they have argued it in writing in court documents.
http://www.vnunet.com/news/1157433
This District Court order on a motion for a preliminary injunction in the MySQL case mentions the GPL. The validity of the GPL was not an issue raised by the parties. The court assumed the GPL was valid and enforcable and ruled based on other issues.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
No, the GPL is permission from the copyright holder copy, use, and modify; subject to certain stipulations. It's not a contract, it's a license.
MCA cards could also be asked what they are, unlike pre-PnP ISA cards which were chiefly identified by blindly poking around in IO space and hoping you didn't accidentally launch an ICBM or something. This was so useful that EISA had to have it, PCI has it, and today anybody designing a new general-purpose bus for computers wouldn't even consider not having a similar feature.
Violating the GPL is not itself illegal. However commiting copyright infringment *is* illegal. Distributing someone else's work without any valid licence is infringment, thus illegal.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
"The GPL only give you rights, it doesn't take any rights away from you" Heard that one before? This is the principle that make the GPL a licence. If it took rights away from you, it would have been a contract, and that would require a signature (or a click-through) for it to be valid.
The thing is, I have the right to not agree with the GPL. If it is so that the GPL takes away my right not to agree with it, then the GPL is not a license, but a contract, and it's not valid unless I sign it.
Read The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling for some background info.