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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.
After all, where would Microsoft be right now if it weren't for IBM letting good 'ol Billy G. use them like a cheap inflatable sheep? Its refreshing to see them standing up for Linux, which embodies scientific collaboration, the forward progress of technology and the good of humanity rather than greedy irresponsible corporatism in sheep's clothing.
Still... I'm suspicious enough to wonder what their long-term (10+ year) plan for linux really is...
Look, it doesnt need to be. The GPL is based on copyright and it is a set of conditions that allow you to use someone's copyrighted work. It needs no testing in law because in law the copyright holder can set whatever (resonable) conditions to allow his / her work to be reproduced or used.
I cant see IBM loosing this one. i bet they can produce something SCO cant - evidence. This'll be good to watch
As usual, M$ will spin it to something like:
You cannot use GPL because you will be sued in court like SCO. Use our OS, we would never sue you! As compliment we will offer you a free browser, media player and firewall! Yay!
> Since the GPL has never really been tested in ...
>court
You know, my lease with my landlord has never been tested in court either, but I don't think anyone would reasonably presume that I don't need to pay rent, or that I can be kicked out without a reason.
I have to wonder whether people who say "the GPL has never been tested" have actually READ the GPL. It is quite straightforward. You don't need to be particularly used to reading legal documents to understand it. Read it, and find one single ambiguity that would require a hearing in court in order to settle its validity.
If the law doesn't protect the GPL on its face without a struggle at every step, then NO licence agreement is safe. The GPL is as simple, straightforward, and unambiguous as it gets!
What's to "test" in court?
-fb Everything not expressly forbidden is now mandatory.
The crucial element here is that the mentioned lines are copyrighted by IBM. Copyright law (and not the GPL) is what gives IBM the ability to prevent SCO from distributing the software. The GPL only enters into it because without it, SCO has no license to distribute the software at all.
GPL: Free as in will
there'll be a lot of riots around the world.
but seriously, how it would be? there's code from lots of people from all around the world. So is everybody infringing the copyright of everybody?
And what makes this more interesting is that SCO just might not be breaking the GPL. The GPL states: "Activities other than copying, distribution and modification are not covered by this License". SCOs continued distribution probably doesn't technically break this, so it may still hold. As someone pointed out on groklaw, the GPL does not cover Darl's mouth.
This scenario would, however, lend credence to IBM's other arguments (the GPL being valid etc).
"I think it would be a good idea" Gandhi, on Western Civilisation
It has been said the GPL has never been tried in court, because only a fool would try it. Enter SCO:
SCO has argued in the media, not in court, the GPL is unconstitutional. If the court found this to be true, then SCO is in violation of copyright, since by claiming it unconstitutional, SCO had no right to distribution under standard copyright law. Note in this case, IBM has not signed their copyrights over to the FSF, so still retains copyright on their code. This means, were the GPL found unconstitutional, IBM goes after SCO for standard copyright violation & SCO gets stomped by IBM in court. Regardless, SCO has presented no evidence to the court the GPL is invalid or unconstitutional. (OK, they haven't presented any evidence for anything, in any case)
Therefore, SCO HAS NO CHOICE but to argue the GPL is valid, otherwise, they themselves are in violation of copyright law and get sued into oblivion.This question hinges on a lot of "ifs", but nonetheless, it must be asked:
If SCO loses the right to distribute Linux because they repudiated the GPL, would they then be open to lawsuit for distributing other products under the GPL or GPL-like licenses (GNU CC, etc.)?
If so, perhaps it would be useful to not only go for the jugular, as IBM has done, but to violate the corpse as well.
To celebrate the occasion of my 1000th post, I will post no more forever on Slashdot. Goodbye.
All it takes is a new CEO and shit can hit the fan in an instant
I think that you hit on what I failed to even imply.
By SCO claiming the GPL was not a valid license, they are in effect distributing the work of others without a license to copy or distribute that work. There are very few outcomes to this that could be good for SCO.
Depending on how they turn this around, SCO may not have the permission of the original authors to distribute many of the functional parts of their own product. The Unixware kernel doesn't do much on its own.
If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy. - James Madison
"Don't forget, large corporations are amoral by nature, and any morality they display is either dictated by statute or is a side effect of their applying the profit motive. If IBM thought it made better business sense to side with SCO rather than mass against it, it would. Follow the money."
Okay, this is second time I've read kind of statement today, and probably the 50th time I've read it this month. And it's NOT true--it's a broad generalization that seems like it should be right, because we see corporate behavior in the news so often that seems to follow this principle.
I have worked within several actual corporations (LLCs and INCs, mostly) in my professional career so far, and done business with many, many more. My most recent job (investigations and litigation work) gave me an incredible inside view of high-level goings-on at a number of corporations, big and small. And it's just not that simple.
Corporate actors (managers, officers, executives) make moral/ethical decisions all the time--sometimes inside their own firm, sometimes outside. Even beyond the basic "ethics means not breaking the law" issue, most of these people are enlightened human beings with consciences. These decision-makers, as a group, will turn down moneymaking opportunities more often than you think in order to stay on the right side of ethics/morals, even if there's no legal or PR risk involved.
Not everyone acts like this all the time. But since it's not particularly newsworthy when a CEO does the right thing, quietly, in the privacy of a board meeting, you don't see it. This is a classic media bias problem: you assume that the world is a worse place that it really is, because you only get told about the bad things, by and large. That isn't the whole story.
Remember: Corporations are run by people, just like you, me, Abe Lincoln, and Hitler. We can only except "corporate" behavior to be within the range of human behavior, from the good to the bad, because corporate behavior is just HUMAN behavior. It's situational, sure, but most of the peculiar corporate manifestations (e.g., Dilbert) are really just bureacratic behaviors--you'd find similar stupidity in the government, the military, or non-profit orgs.
Irrespective of whether IBM has warm fuzzies about helping OSS, the OSS community can (try to) flex its muscle by supporting IBM.
How, exactly, I don't know -- one guy suggested recommending G5's.. word-of-mouth advertising is something of good value that a mob can offer.
And for companies that we don't like (Microsoft, SCO, and maybe IBM in 10 years), we can speak badly of them, boycott them, and encourage the opposition. I for one stopped buying and using M$ products sooner than I would have if it weren't for the OSS community influencing me, and I pass on influence of my own. Word of mouth, and apps I write will be portable to Linux/OSX, and I even plan to release a beta of a game for Linux users first, (I've even thought of a discount for the Linux/Mac version of the game.)
Things like this might not be much, but mindshare adds up and who knows how big of a mob we the OSS peeps can turn out to be.
The way things are going, M$ is losing it's edge and ability to lock-in customers. OOo is one example, as are WineX and Citrix, and more will follow. When CTO and lead IT guys start getting a choice between Linux and Windows (or IBM vs ???), they're going to obviously start choosing the one they love and scrap the one they hate.
As the playing field levels, general popular opinion starts to matter more. Companies like Microsoft do suffer in some ways right now for being "a soulless life-sucking entity that represents all that is evil in the world"... maybe negligibly compared to the billions they rake in, but the starry-eyed idealist in me hopes that karma as manifested in angering or pleasing we the consumers will start to matter someday.
I think that IBM has managed to devise a legal "fork". IOW IBM has created the legal equivalent of a logical tautology.
IF A THEN B, IF NOT A THEN B.
IF the GPL is Valid then SCO has violated Copyright law.
AND
IF the GPL is InValid then SCO has violated Copyright law.
THEREFORE: SCO has violated Copyright law.
QED
A no win situation for SCO.
Poetic justice based on hard Logic. Gotta love it.
"Oh drat these computers, they're so naughty and so complex, I could pinch them." --Marvin the Martian
If they fall a couple more percent, someone could buy them for their cash, if (and its a big if) they can make the legal risks go away. My guess is IBM won't buy them, for fear of setting a "please sue us" precident (like I think EV1 and Sun did by payingn SCO). But perhaps someone with a intellectual-property agreement with IBM that has a "we won't sue each other" clause could.
Anyway, it's probably too risky for anyone to buy them because of the harm it would do to their brand image. Any company who bails them out of this mess will be hated by many for a long time.
...and IBM can sue SCO for copyright infringement...
Not only that, but anyone with any code in the kernel or anything else that makes up SCO Linux may also sue, and if they do it after IBM wins such a suit, they'll already have been found guilty. I don't think I'll be the only one amused when SCO starts hemmoraging punitive damages.
"You've missed the point. If the courts find the license to be invalid, there is no license for IBM to be complying with."
That depends on why they find it invalid and how much of it they find invalid. It's hard to imagine how they could find any of it invalid, but if they did find any of it invalid, it would probably only be a small portion. And what the results would be would depend on what that small portion was.
Saying, "if the courts find the GPL invalid, the results will be X" is sort of like saying, "if tuna fish could build cars, they'd look like X". It's pretty pure speculation, and unlikely to ever be tested in reality. (Not trying to pick on you here, I know you didn't start the thread, and were just playing along, but you post was a convenient place to hang mine.)
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.
On the other hand, IBM's other arguments that SCO is out of compliance due to "repudiating" and "disclaiming" the GPL might not be valid. SCO probably has a free speech right to criticize, repudiate, and disclaim the GPL without forgoing its benefits unless they actually breach the license.
Since they have breached the license via their "SCO IP In Linux License" scam, I expect the summary judgement to be granted in IBM's favor on those grounds.
It is a license to distribute a copyrighted work, not a contract.
You either accept the license and get the right to distribute the work under its conditions.
Or you refuse the license and you do not distribute the work.
The courts have nothing to do with it, until the moment the copyright holder decides that his rights have been infringed, and sues. SCO cannot (and of course they know this, but they are playing stupid buggers) claim that "the license is invalid". WTF does that mean?
If I write a license that says: "you can distribute my copyrighted work if you dance the makossa twice a day", that's perfectly valid. Up to you to accept it or not.
Sig for sale or rent. One previous user. Inquire within.
Rest assured, they are _not_ doing it for the warm fuzzy feeling you get by doing something nice. OSS and GNU/Linux are part of their business strategy. They are in it for the money.
Sure but they do seem to get the idea of producing a good product/service that people will *want* to buy, rather than forcing their tolls and products down people's throats. Hi Unisys. Hi Microsoft. Hi SCO. Hi Apple. Hi BT. Hi BSA. Hi US Government.
I for one welcome our new decent-product-producing overlords.
Cheers
Stor
"Yeah well there's a lot of stuff that should be, but isn't"
I think you're misunderstanding somewhat.
What IBM is arguing is that SCO's "GPL sucks" (and maybe other actions; have to wait for the full pleading to be sure exactly what they are saying) statements constitute a "renouncement" and a "disclaming" of the GPL and a statement that SCO is rejecting the terms therein. Without the permissions granted by the GPL, SCO has no rights to distribute the portions of IBM's code in Linux, apart from those granted by the fair use doctrine.
Furthermore, they are probably going to argue that SCO's addition of terms to the GPL (you can't distribute this) and failure to include the GPL with their distributions are a material breach of the GPL. They say this also means that they have rejected the GPL.
So, in fact, IBM's complaint isn't so much that SCO has breached the GPL, it's that SCO is infringing IBM's copyrights. The issue of the GPL is actually only incidental to this claim, and brought up because IBM needs to show why it dosen't grant SCO the permission to do what it does.
This will probably be modded down but...
Not really. SCO's original argument was that "the GPL is invalid, developers are effectively putting their work into the Public Domain".
If the court agrees with this, the GPL becomes invalid and SCO are well within their rights to do what they want with the code.
It's not quite over yet.
The only thing the GPL does is grant people rights they otherwise would not have. Now, if SCO had FOLLOWED the GPL, and THEN IBM had sued them for copyright infringement, and the judge ruled that they had not violated the copyright due to the GPL, then that would be a GPL test case. Or, if one of SCO's "customers" was sued by SCO and the customer prevailed due to SCO having given them the code under the GPL, then that would also be a test case.
But this is just the usual "You can't copy copywritten code without permission." Nothing new to see here folks. (Well, aside from a good stomping.)
paintball
But they distributed linux binaries themselves (even after they 'found' their code in it) with this code linked against the rest of the GPL code.
The GPL doesn't allow this kind of distribution unless the whole is covered by the GPL.
Therefore there is no non-GPL covered code in linux. (atleast not in the versions they distributed)
This is what IBM is kicking them for... either they accept the GPL as covering the whole binary and thereby made there own alledged code GPLed.
Or they don't accept the GPL in which case IBM is probably going to demand SCO pay a few billion for copyright violation.
Jeroen
Secure messaging: http://quickmsg.vreeken.net/
It is most unlikely that the GPL will be tested in court, because it is unlikely that SCO will challenge it in court.
Things that get challenged in court are things that have some ambiguity or uncertainty to argue about. The reason the GPL has never been tested in court is that nobody has ever devised a legal attack on it that a judge might take seriously. FSF lawyers have written to many companies which tried to get away with violating the GPL. Faced with the credible threat of legal proceedings, all these companies gave in, presumably on the advice of their attorneys.
The only cases of ongoing GPL violation I am aware of (e.g. Kiss Technology's piracy of Mplayer code) continue because the violator is not faced with a credible threat of being taken to court. The main advantage of assigning one's copyrights to the FSF is that the FSF has the resources (money, lawyers) to sue the bad guys, and has a track record of success.
The fundamental principle in capitalism is to minimize costs and maximize profits, you learn this the first day of business school. And consumers are pretty much only concerned with getting the cheapest products (which is also a fundamental principle of capitalism), so what happens is that the market actually *encourages* immoral behaviour. Media coverage of immoral behaviour rarely has any impact, and this is especially true for multi-national corporations where you would need massive, global media coverage.
A good example is food production - treating animals good is costly, the most effective way is to have large "factories" where animals barely have any room to live, are drugged with all sorts of weird growth hormones, and are slaugthered as soon as possible. And since consumers want the cheapest food, they most often buy these products, and thereby promote this animal abuse.
I think Milton Friedman, a Nobel prize winning economist, said it best in his essay "The Social Responsibilty of Business is to Increase Its Profits". Let me give you a few quotes:
"[B]usinessmen believe that they are defending free enterprise when they declaim that business is not concerned "merely" with profit but also with promoting desirable "social" ends; that business has a "social conscience" and takes seriously its responsibilities for providing employment, eliminating discrimination, avoiding pollution and whatever else may be the catchwords of the contemporary crop of reformers. In fact they are--or would be if they or anyone else took them seriously--preaching pure and unadulterated socialism. Businessmen who talk this way are unwitting puppets of the intellectual forces that have been undermining the basis of a free society these past decades."
"In a free-enterprise, private-property system, a corporate executive is an employee of the owners of the business. He has direct responsibility to his employers. That responsibility is to conduct the business in accordance with their desires, which generally will be to make as much money as possible[...]"
"[T]he corporate executive would be spending someone else's money for a general social interest. Insofar as his actions in accord with his "social responsibility" reduce returns to stockholders, he is spending their money. Insofar as his actions raise the price to customers, he is spending the customers' money. Insofar as his actions lower the wages of some employees, he is spending their money. The stockholders or the customers or the employees could separately spend their own money on the particular action if they wished to do so. The executive is exercising a distinct "social responsiblity," rather than serving as an agent of the stockholders or the customers or the employees, only if he spends the money in a different way than they would have spent it."
"[T]he doctrine of "social responsibility" involves the acceptance of the socialist view that political mechanisms, not market mechanisms, are the appropriate way to determine the allocation of scarce resources to alternative uses."
"I have called [the doctrine of "social responsibility"] a "fundamentally subversive doctrine" in a free society, and have said that in such a society, "there is one and only one social responsibility of business--to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud."
If the GPL is ruled invalid it would impact on the validity of EULAs, for the following reasons:
EULAs such as Microsoft's are actually already illegal (or at least, not enforceable) in many jurisdictions -- where your rights under the law are sacrosanct, nothing can attempt to abridge them. Even if you promise not to do something that the law specifically says you have a right to do {such as reverse-engineering software for certain purposes, i.e. academic study or developing interoperable products}, you can't actually be held to that promise. In some jurisdictions, it's actually an offence to ask someone to make that empty promise.
The GPL -- as clearly stated in the Preamble -- makes no attempt to restrict your statutory rights. Instead, it gives you additional rights over and above your statutory rights, subject to certain conditions. These are clearly not inalienable rights.
So much for the difference and apologies to everyone who already knew that, but some people don't so it needed saying. The similarity is the way the licence is delivered and accepted without feedback to the licensor. (The GPL may even be at an advantage here, thanks to its wording; Sections 4 and 6 say if you receive GPL software from someone who is acting in breach of the GPL, this does not prejudice your rights as long as you play along. Section 5 clearly states the consequences of non-acceptance -- that you retain your statutory rights and nothing more.)
The only reason why the GPL could be found to be invalid is because the proper procedure to create a legally binding contract is not being followed -- there is plenty of evidence showing that is perfectly OK to give someone limited permission to make copies of a copyrighted work, and to impose conditions on their doing so. If this is the case, then any EULA which also failed properly to create a legally binding contract would be null and void.
Finally, even if the GPL is found to be valid, this does not mean that EULAs are valid. In fact, it might well substantially weaken EULAs; a "typical" EULA is almost certain to be read out in court as part of the proceedings, and it's very likely that someone will pick up on it.
Je fume. Tu fumes. Nous fûmes!
Don't forget that their cash value is encumbered by any outstanding judgements they may collect. It seems to me at $125K per hit for "willful infringement of copyright" (the same hammer RIAA use on teeny-boppers), judgement liabilities could easily exceed their asset value.
There does seem to be a fuzzy bit here:
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 you distribute code, you are indicating that you accept the license. Can you later reject the license, and if so does your continued distribution constitute a violation of copyright?
This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version.
Now the question: Who decides what a later version of the GPL is? And what if RMS writes a version 12 saying that "all this code belongs to RMS"?
RMS can then take any GPL'd software including the statement above and put it under his new version 12 license.
Especially since they published the assembly language source code for the BIOS in the Technical Reference manual...
It's not fuzzy at all. If you distribute GPL code, it's assumed that you're doing so having read and understood (and therefore will comply with) the terms of the license. If you haven't, then you're in violation of copyright law (period). You can later reject the license all you want - all you have to do is cease any activities covered under the license. Conformance is an ongoing thing, not a "once of".
Since distributing the code indicates acceptance of the license, it doesn't matter what comes out of your mouth. The action of distribution trumps your statements. It's like me saying I did not type this sentence.
A republic cannot succeed till it contains a certain body of men imbued with the principles of justice and honour.
Distribution is only legal if you accept. TSG have repeatedly rejected the GPL, declared it invalid - including in court. If they lied, they're guilty of perjury, and they've also distributed any code they're claiming to own under the GPL, so GPL use of it (such as by including it in Linux) is perfectly legal. If they told the truth, they're guilty of copyright violation. As someone in the thread said, there is no outcome which is good for TSG.
This is all completely independent of the issue of whether any code used in Linux was actually tainted, of which, of course, we've seen zero lines so far.
Got time? Spend some of it coding or testing
Can we please apply some comon sense to this discussion? When I release a program under the GPL, I indicate that everybody have the right to modify and distribute the program. They can't take away their own right to do so, just by disagreeing with the GPL. I don't care if they disagree or not, they have my permission anyway.
If they actually violate the GPL, which I firmly believe SCO has done, it's a whole different matter.
Distributing the code consitutes accepting a consideration: the consideration is a license from the copyright holder for that distribution. So if the conditions attached to the license say "distributing this code consitutes acceptance of these conditions" and you distribute the code, you're committed. For example, if the license said, "by distributing this code, you agree to pay me $10 per copy downloaded," you could be sued for the $10 per copy.
:)
You either commit to accepting the conditions or you admit to violating copyright law, the consequences of which are generally more severe than accepting the license. But you do have the option of saying that you don't accept the license and are intentionally violating copyright law. Of course you also have the option of just shooting yourself in the head, which has much the same effect but is both faster and cheaper.
As Moglen argues, the beauty of GPL (and the other licenses mentioned) is that it does not depend on this acceptance. If you accept it, you have to obey the conditions. If you don't accept it, distribution is illegal because you have no license at all. However you slice it (accepted or not accepted) it is illegal to distribute without obeying the conditions.
Exactly. Distributing it does not indicate acceptance of a license; it just means that if you didn't accept the license then you're really really screwed. Which is why companies, when pressed, accept the license. As SCO most likely will in response to this move by IBM. They'll be forced to assert the validity of the GPL in court to save themselves from being found guilty of copyright violations. Can't wait to see how Darl spins that.
That brings up an interesting point. What is the legal position of someone who under oath denies the validity of a document which gives him the only legal right to do what he does, if it turns out that he was mistaken about the validity of the document? He's said, in effect, "I'm aware of the law and I choose to ignore it," but the law itself doesn't condemn him.
It is encouraging that this time round, people seem to be grasping that copyright simply prevents copying, by default, and the author can choose (or not) to licence use on any legal terms (s)he wants, the GPL being one such licence, and a good one. In past debates there seems to have been confusion on this point, it was often suggested that if the GPL was found to be invalid, unscrupulous people could copy as much as they want and exploit it commercially by turning it into closed source. This time around, the true situation is being brought out, in particular that if the SCOundrel repudiate or breach the GPL, there is nothing to allow them to copy or use.
If someone really wants to go for the jugular, they should try a UK court, most software including SCO is sold worldwide of course. The reason I suggest this is that under UK law, violating copyright for commercial purposes is a criminal offence, punishable by a very large fine and/or jail, whereas a violation for non-commercial purposes is a civil matter, you can be sued for damages which would typically be small. IMHO (IANAL) there is a good chance of a term in one of Her Majesty's Penal Establishments for some directors of SCO if a case were to be brought here.
I understand they just recently decided to close their UK office, I wonder if this is because of the possible legal consequences of their criminal activity?
Yes. And winning would be a cinch. But there wouldn't be any assets left to recover from, so nobody will bother.
SCO is so dead it's a hole in the ground. The only question in IBM's mind is "Can I pierce the corporate veil and pull in damages from Canopy, also?"
I think we've pushed this "anyone can grow up to be president" thing too far.
If you'd bought SCOX 2 years ago you'd have made 150% profit compared to IBM 0%. With good timinging you;d have made over 2000% per year which is a good return.
Of course if we limit the view to the immediate present and the future then SCOX is dying, but surviving was never part of Darl's strategy. He threy the company in the fire, got a big blaze that attracted attention, made some people big money and lost some people big money and at the end leaves just ashes.
Engineering is the art of compromise.
IANAL and I haven't tried to plow through the GPL's language, but I thought that the notable penalties involved in violations of (non-GPL) copyright were damage awards connected to lost revenue-- any idea how damages can be assessed in a GPL violation case?
Assuming the GPL does stand up in court, what then is the actual risk involved in violating it?
Unless notable damages can be calculated in a GPL violation, it would seem to me that going after a violator could cost the infringee more than the violator-- you violate the GPL, someone sues, you stop distributing and pay a cheap lawyer to plead guilty. BFD. Looks to me the only risk is that someone may tell you you have to stop...