Slashdot Mirror
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
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.
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
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.
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?