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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.
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...
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
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...)
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
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
How 'bout a name change: GNU/SCOUnix! GNU/Openserver Cool.
More seriously, I'm starting to think it should be called GNU/Linux not so much because of Stallman's contributions of lots of user mode software, but rather in honor of his brilliance of the GPL. No matter what people say about RMS, the GPL is beautiful.
Note that this IBM move wouldn't work with the BSD license. To a large extent I think the GPL is a big part of the reason why Linux seems to havae more momentum than BSD. Companies like RedHat, IBM, Tivo, Linksys etc seem far more likely to "give back" to Linux; meaning a bigger pool of contributors.
If this works, I'll switch from thinking GNU/Linux is a silly name to thinking RMS deserves it for his legal brilliance that he foresaw long before anyone thought it might be important.
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.
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
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!
I hate to double reply, but I can't edit my previous post.
SCO is breaching the GPL. Remember how you could buy a license for Linux, but you could not redistribute it? That's a GPL no no.
Thanks to those few who signed a legally binding contract for SCO/Linux licenses, there is concrete proof that SCO is distributing Linux illegally.
If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy. - James Madison
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?
It's not just Darl's mouth. They said in court that the GPL is not valid. That's very important. By actually filing papers in court disputing the validity of the GPL SCO (the corporation) put themselves into a bind. There are only two possibilities here.
1) GPL is valid. If this is the case then MS just wasted all the money they funneled to SCO.
2) GPL is not valid and therefore SCO has no right to distribute IBM code. If the judge rules that the GPL is not valid then this would in all likelyhood make all EULAS invalid and that would be a happy day indeed.
You notice I said IBM code not samba, gimp or whatever. IBM is suing about IBM code was released under the GPL.
The case seems pretty open and shut to me but then again IANAL. In fact the more learn about the US legal system more bewildered and disgusted I get. How long has this suit been going on and they haven't even held a trial yet.
evil is as evil does
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.
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.
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.
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.)
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/
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.
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!
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.
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?
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?
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