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IBM Moves To Enforce GPL By Summary Judgement

Posted by simoniker on from the kill-em-all dept.

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.

31 of 620 comments (clear)

  1. ack, meltdown by Loligo · · Score: 5, Funny


    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...

  2. It will be interesting... by numist · · Score: 5, Insightful

    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...

    1. Re:It will be interesting... by fishbowl · · Score: 5, Interesting

      > 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.
    2. Re: It will be interesting... by fishbowl · · Score: 5, Insightful


      "A more interesting situation would be if anyone ever mounted a successful challenge against EULAs, which would surely cripple the GPL"

      Why do you say that? The GPL isn't an EULA.
      The GPL doesn't even presume to restrict *use* in the sense that an EULA does, and it is quite explicit on this point. It bothers me when people refer to the GPL as a license respecting use of the software, because that misconception could be working against adoption of software, even when the believe is completely false.

      --
      -fb Everything not expressly forbidden is now mandatory.
  3. GPL did stand up in court, didn't it? by kjoonlee · · Score: 5, Informative
    So much for the GPL 'never being tested in court.'

    It stood up in court recently in Germany, AFAIK

    The German GPL Order - Translated from GROKLAW

  4. GPL and Copyright by sbszine · · Score: 5, Insightful

    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

    1. Re:GPL and Copyright by Anonymous Coward · · Score: 5, Informative
      Doesn't work that way. Since everyone involved have distributed the code believing they could validly place their code under the GPL, they will be prevented under the doctrine of promissory estoppel from suing people that have complied with the GPL because they believed the developers claims.

      IANAL, but promissory estoppel basically means that if you have said/promised/stated something and someone relies on those statements, YOU can't later turn around and change your mind and then sue people for violating your rights. Other people can still sue, but assuming all developers involved agreed to the GPL they're all limited by promissory estoppel.

      Further distribution might be risky, but then the judge is extremely unlikely to find the whole license invalid - the more likely scenario if the judge is wary about parts of the license is for the judge to ask for advice from someone with solid knowledge of the license and/or the copyright holders in question to try to interpret the license in a way that is both legal and meets the intent of the copyright holders.

    2. Re:GPL and Copyright by Spock+the+Baptist · · Score: 5, Interesting

      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
  5. Oh the irony by Manip · · Score: 5, Insightful

    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!

  6. In other news by zoloto · · Score: 5, Funny

    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...

  7. NEWS FLASH: SCO MESSES UP by Eric119 · · Score: 5, Funny

    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...

  8. What's love got to do with it? by AsciiNaut · · Score: 5, Insightful
    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.

    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.

    1. Re:What's love got to do with it? by MoralHazard · · Score: 5, Interesting

      "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.

    2. Re:What's love got to do with it? by egrinake · · Score: 5, Interesting

      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."

  9. Never tested in court???? by Anonymous Coward · · Score: 5, Interesting

    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

    1. Re:Never tested in court???? by Sv-Manowar · · Score: 5, Funny

      But SCO can produce something IBM can't - bullshit, and truckloads of it

      --
      Business Voyeur
  10. i'm not dead yet! by Anonymous Coward · · Score: 5, Funny

    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.

  11. Re:Possibly the best news ever... by ArcticCelt · · Score: 5, Funny

    I don't know why but seen IBM doing this stuff kinds of reminds me of Darth Vader changing camp after having been in the wrong one for most of is existence. :)

    --

    Yahh, hiii haaaaa! -Major Kong, from Dr. Strangelove
  12. Re:Just Linux? by ron_ivi · · Score: 5, Insightful
    " How about their stagnant Unix that is wrapped in GPL software so that it is functional?"

    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.

  13. Re:IBM Deserves something.... by willdenniss · · Score: 5, Insightful

    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.

  14. Welcome! by Brandybuck · · Score: 5, Funny

    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!
  15. Re:Just Linux? by killjoe · · Score: 5, Insightful

    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
  16. Except this isn't about the GPL, per se by achurch · · Score: 5, Insightful

    If you read the MSJ closely, IBM is actually saying: (emphasis added)

    As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works and therefore infringed IBM's copyrights.

    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:

    Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.

    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?

    1. Re:Except this isn't about the GPL, per se by Trackster · · Score: 5, Informative
      If you stop at this paragraph:
      SCO has, without permission, copied code from sixteen discrete packages of copyrighted source code written by IBM for Linux and distributed those copies as part of its own Linux products. SCO has literally copied more than 783,000 lines of code from these sixteen packages of IBM's copyrighted material. As a result of SCO's copying and distribution of IBM's code, SCO has unlawfully exercised IBM's rights to its works and therefore infringed IBM's copyrights. It can be interpreted it that way.

      If you go on to read the next paragraph:
      Although IBM's contributions to Linux are copyrighted, they are permitted to be copied, modified and distributed by others under the terms of the GNU General Public License ("GPL") or the GNU Lesser General Public License ("LGPL") (collectively, the "GPL"). However, SCO has renounced, disclaimed and breached the GPL and therefore the GPL does not give SCO permission or a license to copy and distribute IBM's copyrighted works.
      You can see that the axis of this motion really is the _GPL itself_.

  17. ARGGG! GPL is not a EULA! by Anonymous Coward · · Score: 5, Informative

    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.

    1. Re:ARGGG! GPL is not a EULA! by squiggleslash · · Score: 5, Insightful
      For what it's worth, while the GPL is a license (it only gives rights, it doesn't take any away, not even as an exchange. Note, I said rights. I know the less intelligent amongst the BSD advocates will say that the GPL "takes away" rights in that it doesn't let you include your code in a proprietary product, but actually that isn't a legal right to begin with, so the GPL can't take it away), EULAs are "license agreements". Legally, there is a distinction, an EULA arguably falls under the contracts category, not under the license category.

      The major distinctions being: EULAs are generally "compulsory", in that you must agree to them simply to use the software (using the software, by itself, is a fair use right, so your rights are immediately curtailed), and EULAs usually place limitations on how you can use the software and what you may do to back the software up, usually giving you less rights than you started with.

      People read the GPL like it's an EULA, but it isn't. The GPL basically says "Ok, you weren't allowed to do this, that, and the other, but we're going to let you do this and that." An EULA reads more like "You were able to do this, that, and the other, but we don't like that, so from now on you can only do this and the other, not that, and even then, when you do the other, you can only do it like ...".

      The point I'm making is that simply because a license might get legally enforced or struck down, doesn't mean that License Agreements will be likewise. I'd say the odds are in favour of the GPL being held up, because it would be an obvious restriction of an artist's rights if it wasn't, but EULA's are another matter because they impose upon consumers and take rights away, and that should, when coupled with basic "First Sale Doctrine" type precendents, make them invalid in most cases.

      Disclaimer: IANAL, but I do read Slashdot, and that's almost as good, right?

      --
      You are not alone. This is not normal. None of this is normal.
  18. That's not the best example by jesterzog · · Score: 5, Insightful

    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 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.

  19. Re:Forbes has a different take. by Anonymous Coward · · Score: 5, Insightful

    But "robust" doesn't mean what "vigorous" means. The latter just means they are trying hard (to counter-claim), but the former includes Forbes' judgment that the counter-claim is solid.

    And those are very different. Yes, the whole article was pretty neutral, but it was just poor word choice, Forbes should be more careful with the opening remarks (because those are what most people read/remember)...

    But I find it sligthly difficult to accept your explanation, even though I'm not with the tinfoil hatters. Forbes must have considered SCO's response as "robust" (rugged, durable) and I can't understand how's that.

    Ah well, nobody browses at "0" anyway so don't mind an AC challenging your view :)

  20. Not tested in court = good, strong by Anonymous Coward · · Score: 5, Interesting
    So much for the GPL 'never being tested in court.'

    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.

  21. Re:Just Linux? by ajs318 · · Score: 5, Interesting

    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!
  22. Re:Just Linux? by eam · · Score: 5, Interesting

    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?