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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.
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
> 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.
"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.
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
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!
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?