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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.
How about their stagnant Unix that is wrapped in GPL software so that it is functional?
If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy. - James Madison
Well if IBM get their judgement this could be just about the best news for free software since GNU started.
It's certainkly worth the trauma of the last year to get the GPL publicly upheld in court.
Here's three cheers for IBM (and SCO;-).
Bad analogies are like waxing a monkey with a rainbow.
I only hope a difinitive judgement will be issued to answer the (legal) question of the GPL once and for all. IIRC, the question of the GPL has been brought up before but has always been settled out of court.
A major corporation using the legal system to enforce copyrights involved in a license the OSS movement agrees with?
What to do, what to DO...
Since the GPL has never really been tested in court (that I know of) it will be interesting to see how it is disassembled and twisted by the SCO lawyers to become ineffective.
IBM has a decent case, it brings to mind the image of a kitten poking at a Rotty.
The GPL is well written enough, it should stand up in court, even against SCO.
At least, I hope it will, or else we have a whole new battle on our hands...
It stood up in court recently in Germany, AFAIK
The German GPL Order - Translated from GROKLAW
Remember, if the the court finds the GPL to be invalid, regular copyright law takes effect and IBM can sue SCO for copyright infringement over the IBM-written code in Linux. The court may not have a position on the GPL yet, but it certainly understands copyright.
Vino, gyno, and techno -Bruce Sterling
SCO said their code is in Linux, files motion (breaks GPL) and now it is found that SCO has been illegally distributing IBM's code without licence (as the GPL has been invalidated).
If IBM's motion is successful this would open the door for IBM to sue SCO for the breach!
Hell reported unusually warm weather patterns emerging from the Upper North-West (aka Lindon Utah) where it's rumored Lucifer SoT Morning was last seen residing...
Well, it looks like SCO has really messed up now. "Hey, everybody! The license that let's us use your code isn't valid!" What on earth were they thinking? Talk about shooting yourself in the foot...
Or else the copyright would have been signed over to the Free Software Foundation, and IBM wouldn't be defending it right now.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
I suspect the judge will end up going along with this one, at least temporarily, though there's a strong likelihood it'll be permanent. Until the ownership issues of Linux are sorted out, the status quo is applicable, and the status quo in this case is Linux being distributed under the terms of the GPL. To that end, either SCO is ceding its ownership rights of the code by distributing it, or violating the GPL. Either way, given their current business model, it's pretty apparent that SCO is going to have to stop distributing the kernel.
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...
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. That they happen to help us geeks is certainly nice, but at the end of the day, Linux and such would survive anyway.
But if you really want to get them something fitting, how about some code?
"I think it would be a good idea" Gandhi, on Western Civilisation
In the end the big corporate winner of this story will be IBM. By first been a victim and then a defender and hero of the GPL they achieved the impossible: Removing the virtual big "EVIL" tattoo from their forehead and replacing it by the "GOOD KARMA" one.
Yahh, hiii haaaaa! -Major Kong, from Dr. Strangelove
Looks like even Wall Street sees where this is headed: SCOX
Speak before you think
Fortunately, because of the GPL, globalisation and the internet, GNU/Linux or some other functionally equivalent free OS will tend to survive, even if in the future IBM (for good business reasons) decides to change its stance.
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!
IBM (the big evil, the microsoft of the 80's) defending the GPL (the move started to combat proprietary lockin like IBM's). Richard Stallman must be turning in his... oh, wait.
Bitching aside, it is nice to have a real OVC (Original Villainous Company - IBM) show these wanna-bes how it's done.
US Democracy:The best person for the job (among These pre-selected choices...)
First IBM embraces Linux, then they position it as the next logical step from AIX, now they're standing up to, and trying to put an end to, SCO's harrassment. Additionally, IBM is doing a LOT of marketing of Linux. Plenty of traditional magazine and television ads are all over, and they clearly spell out the message that not only is Linux good for your business but IBM is the company that can successfully get you up and running. When companies like IBM put out that kind of marketing message it builds mindshare for the entire Linux community.
Let's not forget that Sun is beginning to do this. There are now full-page magazine ads appearing that feature StarOffice. However, these are of lesser interest to the Linux community in that the ads primarily benefit Sun without the broader appeal of the IBM ads. Still, adoption of StarOffice and OpenOffice will eventually make it easier to switch to Linux.
Another question is, "what do you think professional marketing' will bring to the table that Linux doesn't already have?" For instance, who in the United States does *not* already equate RedHat with Linux? You're unlikely to increase vendor/product identification in this case through traditional marketing (and RedHat is quite happy to pay for their own marketing). What you *might* do is increase market acceptance of Linux as a product. But IBM is already doing that. If your competitors' ads are working for you, why spend the dollars?
All in all it adds up to one of the old/stuff tech GIANTS backing the fledgling OS that could, Linux. Thanks IBM, let me start repricing those t41 thinkpads now...
CB!
free ipod and free gmail!
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.
Next time you are in the market for linux server, use IBM hardware. That's what my company has done. The IBM hardware is rock solid so you're doing yourself a favour at the same time.
Will.
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
So much for the GPL 'never being tested in court.'
Welcome to the club, glad you could make it.
Sincerely, BSD License
Don't blame me, I didn't vote for either of them!
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.
What you and other people with similar views seem to forget is that even very large companies are usually under the direction of a small handful of people - and sometimes the group is even smaller than that.
You paint IBM as a directionless ship, blowing where the wind will take it. But the very best companies do not just do what is strictly best for money's sake - instead they have some kind of vision and execute plans to take them there, even if they might leave a little money on the table in the process.
IBM has done exactly that. They have seen the big "Open Source" event horizion off in the distance, and they are placing themselves in the best position possible for a company to survicve (and thrive) in that kind of storm.
No matter how much money IBM might have made siding with SCO, they still would not have done so - because doing so is 180 degress aginst the vision they are going for. Companies that truly follow the money might be good for a short hop, but will never go the distance.
If you want examples of other companies that really act more as extensions of individuals (for good or ill) just look at Oracle, Sun, and even Microsoft.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Years ago, my then boss remarked that operating system software should be like the sewage system: only noticed on the rare occasions it fails. The sewage system is, in effect, Open Source: anyone can read the rules for designing it, and anyone who follows the rules can connect to it. They will have to pay to dispose of waste through it, but that's another matter. What they pay in taxes is the cost of provision, not an IP tax to the person who designed the system in the first placed.
Equally, anyone can read the plumbing codes. I don't have to pay a fee for intellectual property to Home Depot every time I want to put a shower in, or connect two pipe lengths.
On the other hand, Home Depot makes good money, and highly skilled plumbers installing big shower rooms do very nicely, thank you.
So I think this is where IBM wants to be. IBM wants, in effect, to put in really big and impressive bathrooms. It's easier to do this if someone else, who hardly has to be thought about, is taking care of the water supply and the sewage. It makes sense to give away some of your knowledge of infrastructure, because others will build on it and make your life easier.
I apologise (a bit) for the extended metaphor, but I think my understanding of the basic economics is right. SCO builds high priced sewage pipes and charges a premium for knowing how to do it. They also want everybody else who digs holes in the ground to pay them a tax. In doing this, they are trying to backflow (sorry) against the entire trend of technology development. IBM, in classic Adam Smith mode, look to their own advantage but, without intending to, benefit everybody.
Panurge has posted for the last time. Thanks for the positive moderations.
When they started trying to charge people $699 for using code they've been distributing themselves under the GPL for years, you don't think that was maybe a breach of some kind?
Real Daleks don't climb stairs - they level the building.
I think we should all get behind IBM and support them. Does anyone know if they have a pay-pal account where we can make donations?
If you read the MSJ closely, IBM is actually saying: (emphasis added)
So this isn't really about the GPL--it's a simple copyright infringement issue. They're saying to the judge, "we own this code and SCO is distributing it without permission, so stop them".
On the other hand, they do go on to add:
So if SCO is going to mount a defense to this MSJ, they'll have to argue for the GPL, essentially countering their own earlier claims that the GPL is invalid and forcing them to tell the judge "uh, we were wrong". This isn't about IBM "testing" the GPL, it's about them grabbing two big boulders and squishing SCO between them. (:
If the GPL did end up being ruled on by the judge, about the only ruling I could see is that the GPL is valid and therefore SCO has not infringed IBM's copyrights--but IANAL, so what do I know?
The GPL is not a EULA!!!
EULA = End User Liscense Agreement
The GPL is a liscense for distribution of copyrighted code, it has no bearing on End Users. It only matters to Red Hat, Debian, IBM, etc. A EULA is generally a set of conditions under which you are allowed to USE code ( or usually a work derived from code). EULA's are invalid.
Memorandum in support, pages 26-28. A must read!
IBM tried their best to stop clones. Eventually they were reverse-engineered, but they certainly didn't go willingly into the "IBM-compatible" era.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
I more or less agree with the principle of what you've said, but I'm not sure if this is a great example. Even if you and your landlord have never been to court, chances are that the lease agreement is either a clone or a very close copy of a standard and legally scrutinised agreement. It's likely that a similar template agreement has been used in thousands or more lease agreements, and probably that template has been tested in court many many times already.
Although the GPL is clear, concise and (we would hope) very straightforward, it's still out on it's own to a large extent. It's quite a different way of doing things from any software agreements that came before it (to the best of my knowledge, anyway), and it hasn't been tested. There seems to be quite an incentive to have it tested in court, too, if only to silence the people who might publicly dispute its validity for their own reasons.
If they lose because they repudiated the GPL (i.e. if the fact that they publicly claimed it's unenforcible, void, unconstitutional, etc.), then perhaps so, because that would seem to apply to all their other uses of GPL'd code. Still, I think the "repudiation" argument is the weaker of IBM's arguments, and I'm not sure it'll fly in court.
:)
If they lose for violating the GPL, and, in particular, for trying to charge people per-CPU fees for Linux, and for asking them to sign licenses agreeing not to use or distribute the source, then the answer is no. That's a violation of the kernel license, which just happens to be the GPL. It's not a violation of the licenses of any other software that may happen to be under the GPL, since they haven't tried to charge for or restrict the distribution of that other software. On the other hand, the violation claims should be a slam-dunk for IBM.
It helps to think of the GPL as boilerplate. The kernel has a license, gcc has a license, emacs has a license, etc., and they all just happen to use exactly the same words. Ordinarily, you can't actually "violate the GPL"; all you can do is violate a particular license that happens to be the GPL. It takes some really unusual (and spectacularly stupid) behavior to end up in violation of all the licenses of all software everywhere that uses the GPL. Before SCO came along, I would have said it was impossible. Now...I'm still not convinced it's possible, but if there was ever a company with the proper combination of chutzpah and stupidity to pull it off, it's SCO!
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"
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.
Calling the GPL an exception would be far more misleading IMHO. The GPL does not void copyright or exempt you from it. You are still subject to copyright law, but you are given permission to exceed what copyright law would normally allow; it's the GNU Copyright Extension, perhaps, rather than Exception, as it adds to your rights rather than taking away from them.
Your agreement with PJ consists of PJ allowing you to do something (copy one of her posts) that ou would not otherwise be allowed to do - in other words, she's giving you licence (or permission) to do so.
SCO's error has been that they *did* treat the GPL as an exception, thinking that it acted to erase copyrights somehow while adding a couple of conditions - and that voiding the GPL eliminated the conditions and left the code copyright-free. IBM is now demonstrating to them the errors in this interpretation. :-)
Still, it's definitely a puzzler why SCO continued to distribute Linux while claiming that the GPL was invalid.
(Incidentally, I notice Forbes now has an article giving SCO's "reply", which essentially pushes SCO's own dubious views concerning what a "derived work" comprises. Basically it looks like a SCO press release... not unusual for Forbes when it comes to the SCO/IBM case.)
Hey, put yourself in the shoes of a low-level manager at IBM:
New PHB: (pokes head into mid-level boss' office) Psst! Hey Boss! Gotta minute?
Old PHB: Yeah, what is it?
New PHB: Uh, you know how other companies have problems with employees surfing Fark.com, porn, eBay, et al? Well, I've discovered that our employees are goofing off by... (looks left, looks right, whispers)... developing that free Linux operating system during work hours, when they don't think I'm looking!
Old PHB: Hmmm... well, if we discipline them, we'll have a morale problem... if we fire them, they'll take our secrets to the competitors... tell you what, why don't you look into this Linux thing, see if we can make some money with it.
"He who throws mud, loses ground." - proverb
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.
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.
IBM spent millions (at least) for the code that IBM contributed to Linux. IBM has spent millions more defending Linux in court.
So what if IBM manages to make some money from their investment/contributions?
In accusing IBM of copyright infringment, while being extremly sketchy on what was being infringed, SCO is now accused of infringing on IBM's copyrights. The only difference is IBM can pinpoint the code they own.
Who the hell at SCO _ever_ thought this would be anything but a disaster?
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.
Most of the time, corporations behave "morally" because that's the best long-term strategy (see tit-for-tat). If you have to deal with the same actors repeatedly, or if the actors can share information about you, your reputation as a fair dealer becomes more valuable than the profit you make off one raw deal.
Where morals come into play is when tit-for-tat doesn't apply - one of the dealers is much bigger than the other, or has an opportunity to crush the other without repercussions. Microsoft (to pick a random example) screws its partners primarily because it can.
To a Lisp hacker, XML is S-expressions in drag.
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?
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
"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.