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Business Week article on GPL's potential weaknesse
Swampfox writes "This should technically be under GNU, though the article is entitled Linux May Be Running On Some Spindly Legal Legs. It's not a bad article, though, and it basically points out that since the GPL has *yet* to be really tested in court against a well-heeled and motivated opponent (hmm...can anyone think of a well-heeled and motivated opponent of Linux that might be on the horizon?) that it might eventually be an Achilles' heel that could weaken the movement.
" Hopefully, this is one of the areas that the FSF will continue to champion and support-and it's a 501(c)(3), so make a contribution to them. The article also talks about the fact that RMS is going to be revising the GPL later on this year.
> Hopefully, this is one of the areas that
> the FSF will continue to champion and support
the FSF is not the copyright holder of Linux,
so there's less they can do in the particular
case of someone violating Linux's license.
(at least according to them, that's a reason why
you should assign your copyright to them, in
exchange of which they license it to you for
any use and commit themselves to keep it free)
Be sure to check 'em all out. Definitely, the Muth Article is funny. The Master of FUD is at his best!
> they license it to you
shouldn't have rephrased at the last moment.
"it" should have been "your own code", of course.
I quote the FUD czar ... "[Linux] lacks a port for the great majority of hardware platforms in the
marketplace". Technically it's a true statement; but aren't there more ports of Linux than there are ports of NT? Jeez, what a cry baby.
Didn't this eventually make it to a courtroom?
This is telling PHBs to avoid Linux because it might not be there tomorrow. (What can you expect from a publication whose pages end in ".htm"?) But that ignores a major point in favor of unix [*] from business's point of view: it's relatively easy to switch between competing versions.
If Linux somehow disappeared off the face of the earth overnight, it would be straighforward for any Linux-dependent business to move to *BSD or some other unix.
If (when?) NT collapses in a pile of steaming bits, NT-dependent businesses will be fucked. (But they deserve it :-)
[*] small-u unix. TOG, grab a kleenex and some aspirin, and get over it. (Amusing reading there, BTW. And look at that filename -- I'm worried now!)
If I copy a book or a TV show and then change it and use it for my own personal use, that would probably fall under fair use.
If I tried to redistribute the changed book or TV show, I would be liable for damages although I didn't technically steal anything. Copyright is very specific about distributing "Deritive Works."
What you are stealing in the case of GPLed code is a benefit to the entire free programming community. While that benefit may not be a particularly tangable asset, have no doubt that it is a very important one.
It's been a few years since a lawyer visited my graduate software engineering class, but if the copyrighted material is *registered* statutory penalties apply independent of any economic loss. Registration doesn't even require full disclosure; I think the first 25 lines or so of each file is sufficient, and even then you can have portions elided.
Also, you only need to reregister the code after substantial changes; a bug fix doesn't invalidate the registration. IIRC, the lawyer recommended registering the code at every major release (approx. every 18-24 months). Registering GCC or the Linux kernel might cost over a thousand dollars since each file is treated separately, but it would also allow the copyright holder to sue for statutory damages, all proceeds of any infringing work, and get an injunction against further distribution.
The question is not whether these provisions are
explicit in the GPL. The question is whether they
are legally *enforceable*.
"Portions" The GPL makes this quite clear. ANY amount of source you pull from a GPL'd program, and you /must/ redistribute your work under
GPL.
A lawyer might argue that this is unenforceable
because it violates fair use laws. They might also
argue that it is just silly that the variable "x"
could be copylefted.
- "watering down" of the GPL further down the chain. Regardless of how many programs "down the chain" reuse the code.. it must be made available with all the provisions of the GPL intact.
Once again, the question is whether this is
legally enforceable. I take it there are complicated issues around the question of whether the second, third, fourth, fifth parties, etc. have really consented to the license. Remember that none of these secondary parties are signing anything!
I don't claim to be a lawyer but at least read the article carefully and understand the issues being raised: most of them aren't about ambiguity of the GPL but rather about its inherent legality.
I'm a little unclear on this, do all the copyright holders have to agree to the new GPL license?
If the second... parties don't consent to the GPL, the author has not given them a license to distribute and they are violating copyright law.
MS dropped NT for PPC, but I think there's still a MIPS port.
That's why it's "technically true". The jist of Muth's comments is patently false though.
I'd have liked to have seen something in there about GNU's definition of Free - you know, 'FREE' as it relates to GNU software is analogous to free speech. Not free beer. After using Debian GNU/Linux for a little over a year, I find this point to be a very compelling reason to continue to do so.
It seems to me that the article implies Free software and money are mutually exclusive.
Oh well. Maybe next time.
If, say, Microsoft blatently violated the GPL on Linux, not only would the FSF go after them, but Linux International too. As they did when that jerk tried to grab Linux as a trademark. Check the membership list of Linux International sometime, there are members with pockets even deeper than Microsoft's.
Most companies would also be detered by the bad press. And having a lot of software developers ticked off at you isn't a good thing, either.
>What happens if someone blatantly violates the GPL and ignores the FSF's requests that they stop? What recourse does the FSF have? At best they can get an injuction, but they cannot sue for damages. Since the GPL provides the source code, there is no theft, thus there is no way to show that the copyright holder has suffered a loss due to the violation. The GPL does not enforce a fee for copying of the software, thus it has no "legal" value. Would the injuction hold up? IANAL, but I doubt an injuction would pass an appealate court.
The GPL does not remove the copyright owners' rights to distribute their source under other terms. What is being stolen is the potential fees that could be charged for permission to use the code under those other terms. Clearly, it is difficult to determine what the fees would be for the FSF since it is very unlikely that they would ever agree to any terms that did not include disclosure of sources. However, this does not change the fact that such permission is required.
Well, if you count each variation of x86 hardware a seperate platform, then the claim MAY stand.. Does NT have a better hardware support than Linux?
The GPL dictates that the source code must be made available to whoever has access to the binaries. As long as Cygnus only releases GCC/IA64 to Intel, they need not release the sources to anyone except Intel. Likewise, if they have not made the binaries available to anyone, they are under no obligation to release the sources either.
Nonprofits organized under Section 501(c)(3) of the Internal Revenue Code are not allowed to engage in the same activities as for-profit businesses and compete with them. But the FSF does software development and competes unfairly with for-profit developers! Nor is it an educational institution with a curriculum or a research institution that publishes formal scientific papers. And it isn't "charitable," because it doesn't exclusively benefit one of the classes that a tax-exempt charity is allowed to benefit.
Therefore, the legality of its claim to 501(c)(3) status is questionable. I wouldn't be surprised if the IRS revoked that status, and demanded back taxes, after the next audit.
--Brett Glass
The GPL's terms are absolutely clear to anyone with common sense. You accept that if you use ANY GPL code in something that the whole must be GPL. If you don't accept that, don't fall into the deal. End of story.
:-)
Only lawyers could come up with such irrational crap. I'm personally grouping this in with the same thinking that purports that guns/cars/knives/bricks/sticks/rocks kill people of their own volition, video games/movies/books/whatever cause people to be violent, and that idiots can actually smoke cigarettes for 40 years without a clue that it might be bad for them.
The GPL is not weak, the minds of juries are. Or perhaps law is like the dark side of the Force: it has power over weak minds!
In Australia, a company called Trumpet Software,
manufacturer of a shareware IP stack for MS
Windows, sued an ISP for violating the
terms of their license under the Copyright Act.
The court found that the license was valid.
The court also made other statements about
software licenses in its judgement. These
statements without much doubt establish
licenses for no-charge software on the same
legal footing as other licenses to use
copyrighted material.
Aside: In common with most other countries, but
not the US, Australia doesn't require any
notice or registration for copyright to
take effect. Simply having created the
work is enough.
the definition of a "portion" is very simple.
If you can prove it came from a GNU program, it is a portion of one.
Since you can readily find examples from many programs of
i++;
that snippet of code cannot be considered a portion of a GNU program.
I think it's pretty straightforward. (unfortunately, you can apparently patent XOR...)
no, but keep in mind the basis of the legal system in the US: $$$
A decision in favor of no-charge distribution of shareware would strengthen free software licenses.
A better example would be a decision regarding commercial "freeware" like the current Netscape browsers.
The GPL is very specific that you don't HAVE to disclose sources you've written if you don't distribute binaries.
In fact this was one of RMS's criticisms of the original Apple Public Source License: it required anyone who modified the code to give it to Apple under any circumstances.
Remember that their code has to be expressed in some definite form (machine language) at some point, and that that is a direct reflection of their code. Remember also that if they reformat the code and rename variables, it does _nothing_ to the underlying machine language representation. If, for example, the M$ code happens to have damn near exactly the performance characteristics of the GNU version, you have a reason to have a programmer look at it. If he finds that the underlying algorithms (including variable allocation) are exactly the same as the GNU code (compiled on the same platform), then chances are _extremely_ good that you could have one or more experts subpoena source code to check out -- and remember, Microsoft can't just write something and give it to them, because whatever said experts check out has to compile to byte-for-byte the same thing that Microsoft released commercially -- and if they rewrite something that compiles to exactly the same as the GNU thing and hand it over to the experts to check out, they've lost the case already.
I'm not saying this is tremendously likely; for starters, I think M$ is way too smart to get caught with its hands in the cookie jar of a hacker culture where every third user knows some assembly language and most users hate their guts and don't think they could write the code right in the first place to save their profit margins.
There's a way to catch them -- wait 'til they release something which is minimally buggy on the first try. _Then_ check its performance characteristics vs the GNU equivalent. Then, if it matches, you get a hacker to check over the function-call structure and possibly the actual bytes. If they do it directly enough, even something like 'diff' (but binary) could reveal some damning similarities.
The only way out is to do something the license is interpreted to allow, that Stallman didn't mean to allow. If the license simply can't be applied, copyright would prevent anyone from using the code at all.
This was a depressing article, almost encouraging companies to think they could violate the GPL with impunity. Imagine how ridiculous it would be if BusinessWeek published an article stating that perhaps Microsoft's hold on the copyright of its own software wasn't very strong. - That if a piece of software is pirated and incorporated into illegal Chinese CD compilations enough times, then surely the copyright is `diluted' and MS would have no recourse in law. Free software developers should band together and reject such arguments in two ways: (1) make it absolutely clear when talking to journos that if someone illegally uses your GPLd software, you will take them to court, and (2) contribute to an organization like the FSF which has a chance of protecting your rights to your own code.
Rich.
Does anyone here remember around 1991-1992 before the world wide web when everyone on Usenet was absolutely paranoid that newpaper reporters would start finding out about Usenet and laws would be passed to shut it all down? As a frequent alt.drugs poster (heh heh heh, I'm not an anonymous coward, i'm just a lazy bastard that doesn't want to create an account) I got myself all worked up over the "Imminent death of the net predicted, film at 11" threads more than once. I see it happening again here with Linux.
... NetBSD. I don't want to see this happen, since I like having two development paths with different licenses. NetBSD is cool because companies can pick up the code and futz with it and not have to phear the GPL. On the other hand, those companies tend to not give as much back. The fact that people who modify Linux can't use it commercially may have something to do with Linux becoming more popular than NetBSD. Or it may just be the Torvalds mistique that makes Linux more popular than NetBSD (or FreeBSD or OpenBSD). Who knows? But it's cool that there's a GPL and a non-GPL alternative. However, if the GPL dies, Linux will not go with it.
Look, it's very simple, you could completely trash the GPL tomorrow and you'd have something which looked a lot like
Same goes for all the FUD about what is going to happen to Linux after Linus stops be the kernel-god. Well, all you have to do is look to Free/Net/OpenBSD to figure it out. You get different development paths, much in the same way that Linux currently has RedHat/ Slackware/ Debian/ etc distributions. This is not fatal. If Linus got hit by a bus and died tomorrow, Linux would go on, and there would not be total anarchy.
People in the "Linux community" would do well to pay a little bit of attention to the "*BSD community" since a lot of the FUD about Linux can be dispelled by checking out how they handle things.
ShareWare is commercial software. It's not open source, the owner generally does not allow anyone else to modify it, and a registration fee is required after an initial trial period In short, the fact that Trumpet's ShareWare license was upheld in court has nothing whatsoever to do with the validity of the GPL.
--Brett Glass
If I'm right about what you're trying to say, you're wrong. Windows 3.x is a shell over DOS, so it's restricted to the old 8.3 naming convention.
95 can handle extensions like .html, but the legacy of 8.3 is still with us -- I think that Netscape Composer, for instance, is by default most eager to make and edit .htm files.
Note that none of this means that a Web server hosting .htm files is running Windows -- it just suggests that the people making the pages are or recently were.
Mind the Gap
This is one case where the FSF was able to negotiate a solution without without going to court.
Note that the FSF can and will change the GPL to adapt to whatever happens. If a weakness is found it will be fixed. Free Software authors will simply change the wording to say "version X of the GPL or later".
The only way to really break things is to subvert the FSF. That's why I like the fact that RMS seems like such a zealot sometimes. He's certainly more extreme than me, but I will always use the GPL because I trust him to stick to his principles and defend free software. Extremists have their place, especially when fighting for principles.
Of course, even subverting the FSF won't have many long-term effects, since the real strength is in the community of coders. As long as enough people adhere to the idea of free software it will continue to exist.
It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail. - Abraham Maslow
I take it there are complicated issues around the question of whether the second, third, fourth, fifth parties, etc. have really consented to the license. Remember that none of these secondary parties are signing anything!
Wouldn't it be similar to copyright? I buy a book and I'm not signing anything, but I still can't copy and redistribute it with my own additions or omissions. I'd have corporate attack lawyers kicking my door down.
Of course it's more similar to shrinkwrap licenses. Except for one key point, that is. You can use and examine the program beforehand as well as read the license. I think that was the main complaint about shrinkwrap licenses.
I would think that a court would have a hard time finding fault with the GPL. People write code and give it away under this license. All it really wants is for others who use this code to release their code along with it. It's not difficult. It's pretty cut and dried really. If you want to use GPL'd code, be prepared to give your code away so that others can benefit as you did. If you don't want to release your own code, then don't take advantage of the work of others who did release their code.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
What happens if someone blatantly violates the GPL and ignores the FSF's requests that they stop? What recourse does the FSF have? At best they can get an injuction, but they cannot sue for damages. Since the GPL provides the source code, there is no theft, thus there is no way to show that the copyright holder has suffered a loss due to the violation. The GPL does not enforce a fee for copying of the software, thus it has no "legal" value. Would the injuction hold up? IANAL, but I doubt an injuction would pass an appealate court.
I suppose that somewhere in some GPL code is the line:
int i = 0;
Does the GPL apply if I look at that line in a GPL'd program and then type it verbatim into another non-GPL program? The definition of "portion" needs to be more definitive.
...that the corporate shrink-wrap licenses have _also_ never been seriously challenged in a court of law by a well-heeled and motivated opponent.
Microsoft is standing on just as spindly a set of legal legs as is Linux...
Cool! I didn't know it had become free software!
Ahh, but see, there still could be problems with this IN COURT.
Here is an example..
Let's say that a company modifies a part of a Linux driver to work with their propriatary hardware. What takes has ahigher legal standing, their rights via IP, or the GPL. No one as of yet tested this in court..
Just becouse something says one thing, doesn't mean it's able to be held up in court..
Take the shrink wrap licence idea. Sure the agreement says if you open it, you agree. But it has never been able to be enforced. The GPL COULD be the same thing.. It's never been enforced in a court of law. One loss by a judge saying he doesn't buy it sets a precedent..
-- I'm the root of all that's evil, but you can call me cookie..
That's a damned good question.. To me this would mean that they would have to supply their current code at any request..
I don't LIKE the idea of this happening, but if someone like AMD could pull that to get the specs on IA-64 before it's released..
-- I'm the root of all that's evil, but you can call me cookie..
All of your points are more then valid, but what concerns me is that something LIKE this could happen that could bury the whole idea OF the GPL. Big money can find all sorts of holes that could make then exempt. They could claim that some GPL'd source infinges on their IP,and hence making everything that came from it also suspect. Imagine if hey Microsoft looked at Linux kernel .01 and said 'Hey, this is based on Minux. We own Minux. We should have owned this. Let's sue for this AND ALL derivitive works!!'
-- I'm the root of all that's evil, but you can call me cookie..
Indeed it does... However the same concept of portion also applies to many other (commercial and non-commercial) licences, and there hasn't (to my knowledge) been any real fights over those.
,hacker Perl another Just)'
I certainly wouldn't want it to be too closely defined - what if it said "any method or function or subroutine copied as a whole", and there were code like:
sub isActive {
0;
}
(ok, so it's perl, but you get the idea)
That sort of thing can be quite common in OO base classes.
perl -e 'print scalar reverse q(\)-:
Matt. Want XML + Apache + Stylesheets? Get AxKit.
How exactly does the GPL define "keeping it to yourself." For example, Cygnus is under an NDA from Intel while working on the IA-64 gcc compiler. They are not required to release the modified source code until they make their changes "public." How do we define making something public? What happens if I make a product "public" by adding a license that makes anyone who downloads it an unpaid employee of my company? I can then argue that I haven't distributed my modified code beyond my own development group.. "We haven't released it yet, so we don't need to provide the source code."
Does the GPL provide for this?
I'm not a lawyer, but I do recall that when cases get up to the Supreme Court level, that court's "charter" is to view things with an eye to A) what is the "spirit" of the US Constitution on this issue, and B) what's the best thing for the long term public interest? Point B) is why there is a doctrine of "fair use" that allows schools to use copyrighted works pretty much however they want if it helps teach students.
So, even with a conservative bent to the current Supreme Court, the legal test of what best serves the public interest would be kind of a slam dunk for any lawyer arguing before the Supreme Court why the GPL should be regarded as binding.
There were actually four articles, one of them being a Q & A session with Ed Muth .
It would seem, according to the esteemed Mr. Muth, that Linux is missing many features, including security and Web services, which mean that it is no competitor to Windows NT. I though I was reading Segfault.
I spoke to the reporter for about an hour on this story, and am not too surprised at how it turned out. I think he's missing some major points.
The basic premise, I think, is faulty - that because the GPL hasn't been tested in court, that the status of GPL software is somehow shaky. I think the reverse is actually true, that the free software community is so healthy and is so good at dispute resolution that it has been unnecessary to call in the lawyers.
Think of how many heated technical disputes there have been - should KGI be in the kernel? The Egcs split from Gcc. Gnome vs. KDE. Even the ncurses debacle. All of these have been handled without legal action, and some have been resolved quite nicely (way to go, Gnu compiler folks!).
Now I think it is inevitable that lawyers will come into the fray, especially as there is more and more money in free software. Sooner or later, somebody who's market share is being decimated by free software is going to try to throw a legal monkeywrench into the development process. Other legal threats are also possible.
But the main hypothetical of this article, that a company would flagrantly violate the GPL, seems to me to be outlandish. After all, a snapshot of the code is far from the most valuable part of a vital free software project. It's the knowledge, the community, and the stewardship of keeping the project that's going. Violating the GPL is the surest way of alienating that community and thereby abandoning the benefits from it.
The reporter asked me what I would do if a big company flagrantly violated the GPL of a project I was involved in. My response was that, after making sure that they were in fact in the wrong, and that they had been contacted and turned down the chance to set things right, I wouldn't call a lawyer, I'd post to Slashdot! And I think that would be far more effective. No company wants that kind of bad publicity.
In summary, I think there's something wonderful about the culture of free software that's allowed it to resist the influx of lawyers. I have hope that it can continue to do so.
P.S. I was quoted as "Raph Levien... who develops GIMP". I'm proud to be a part of the large and diverse Gimp development team, but I do want to point out I'm only responsible for a small fraction of the code that's in there.
LILO boot: linux init=/usr/bin/emacs
RMS talks about the NeXT and ncftp issues in Copyleft: Pragmatic Idealism.
Interesting point. However, I wonder exactly how many resources a DA is going to commit to pursuing a claim made by "a bunch of longhairs," especially if it was (for example) a DA in Redmond who might be depending on M$ for re-election support. Of course, if such a thing were actually to happen, I'm sure Redhat and VA (not to mention IBM and others) would ride in to the financial rescue- they'd all love to catch MS (or any other company slimy enough to violate GPL) with its pants down.
~luge
IAAL,BIANLY
I could have sworn that I heard somewhere that the GPL was tested: If I recall correctly, NeXT used GCC as their C compiler, and made some changes and modifications, namely enhancing it to compile Objective-C as well as regular C. They then refused to distribute the changes, and the FSF took them to task over it. I believe that it even went to court, but I don't have any documentation for that. I don't suppose that anyone has a URL?
A line of code can look much the same from onbe program to the next without being a duplicate. Suppose I copy a 5 line routine from a GPLd source, but change a loop variable from "i" to "loopvar" -- does that count? What if the variable only appears on 4 of the 5 lines? What if I only change the indentation, or collaps a couple of lines together?
Many concepts are independently invented. I imagine the odds are quite high that I have 5 lines of code somewhere that are very close to some GPLd code that I have never seen. How do you prove I have seen the GPLd code? How do I prove I haven't seen it? And again, if I change variable names, does that matter?
Not only am I not a lawyer, I don't even play one on TV. Imagine what fun a real lawyer could have with such arguments.
--
Infuriate left and right
The author of this article didn't seem to do much research. There are several mailing lists and public editorials available on the subject of the GPL - specifically debian-legal and license-discuss.
:)
/must/ redistribute your work under GPL. the LGPL is different - use that if this is your concern. /that/. ie. "Source must be distributed seperately from binary". Nothing in the GPL prohibits this.. it simply requires it be available publicily should it be requested.
My gripe is the same with most postings on linux - the reporters need to do research - ie look before you leap. It's not like we're hiding all this information from you - we make everything public, source included!
On the article's points:
- "Portions" The GPL makes this quite clear. ANY amount of source you pull from a GPL'd program, and you
- "watering down" of the GPL further down the chain. Regardless of how many programs "down the chain" reuse the code.. it must be made available with all the provisions of the GPL intact. Other licenses may not be so restrictive, but this one is. Of course, nothing prevents you from making a more specific license and redistributing your code under
--
Did you actually read the article? He talked to several legal experts about the GPL, and the experts have different opinions. He talked to the IP lawyer who helped draft the GPL. IMHO, that's better research than reading a mailing list.
As for the "portions" and "watering down" arguments, it's clear that he understands the concepts, but he is looking at it in terms of precedent. IE, would the legal concept of "fair use" weaken the GPL's intent?
In the end, it doesn't really matter what the GPL says if the court finds it unenforcible.
Of all the comments I've ever posted, this is definately one of them
How is it technically true?
It's hard to think of a platform in the marketplace that doesn't have a Linux port. The main ones that come to mind are HP-PA and IBM Mainframe systems. HP supposedly ported Linux internally to HP-PA and IBM is rumored to have done the same with their Mainframes.
By contrast, NT doesn't even support Sparc, one of the most popular non-Intel platforms.
Of all the comments I've ever posted, this is definately one of them
As we used to say, in a small town one lawyer will starve, but two lawyers can make a darn good living. :]
Chuck
try { do() || do_not(); } catch (JediException err) { yoda(err); }
No, you have to remember that all the features in Windows are really undocumented bugs. Of course it has more "features".
Seriously, he was really vague about that.
-harry
Sure, there would be screams of agony if the GPL were shot down. But how many of you folks who work on GPL'd software would stop contributing to the free software world? Raise your hands. I thought so.
As someone else here pointed out, the BSD projects are getting along just fine without the GPL, leaving companies free to `steal' code (in fact, we *BSD developers give it to them freely). And we even get changes back; Apple basically dedicated several weeks of developer time to bringing userland changes that Apple had made back into the NetBSD source tree.
I think people here really underestimate the amount of work required to privately maintain your own changes to public source. Most of the time it's just not worth it, and it's much cheaper to contribute your changes back. If you don't contribute them back, you lose in two ways:
- You don't get the rest of the community debugging and fixing your code; you have to do it all yourself
- You have to dedicate a lot of time and effort to merging the community's changes into your source tree, and testing the changes within your product.
The latter point is really important. For an example of what happens when you try this sort of split, have a look at NetBSD and OpenBSD. When OpenBSD split from NetBSD a couple of years ago, they took a complete copy of the code base as it stood. For a while they attempted to pull in all NetBSD changes, as well as making their own changes, but eventually it overwhelmed them (even with a couple of dozen developers working on this!) and they gave up. Now NetBSD has a new machine-independent device driver and DMA structure, a new VM system, and a lot of other changes, and OpenBSD has very little of that. They've fallen far behind and haven't much hope of ever catching up. The same would have happened to a commercial user without spending a large amount of money--and avoiding spending a large amount of money was probably the point of using free source in the first place.cjs
The world's most portable OS: http://www.netbsd.org.
The way the GPL functions in the corporate environment is fairly subtle, actually. When develoeprs set out on a new project and they consider basing it on GPL (or LGPL) software, they generally discuss the pros and cons of open sourcing their enhancements carefully. If open sourcing doesn't make business sense, they usually simply won't bother with GPL software. If they do go with GPL software, they license itself serves as something that keeps the source release process on track; without the GPL, the tendency would be to procrastinate with source releases. But in that context, the GPL is not a legal sledgehammer, but a merely a nudge, albeit an important one, to encourage companies to follow through at release time on the commitment to open source they made when starting the project.
Now, let's say that Microsoft deliberately tried to ignore the GPL. So what? Are they going to ship "MS Linux" with a bunch of proprietary APIs and no source code? People use Linux because it's open source, because it's small and simple, and because it has standard APIs; if Microsoft shipped a proprietary version, they'd be missing the whole point.
Misappropriating Linux source code would only make sense for companies that are so strapped for resources and programmers that they can't build anything similar themselves. Microsoft suffers from generating too much code, not from generating too little.
Microsoft has the manpower to put together a proprietary Linux-like kernel in a year or two with no impact on any of their other projects. What they lack is the corporate culture and development processes to put together something like Linux, and that's something they can't buy, copy, or license. (Microsoft's corporate culture and development processes are, however, evidently quite successful for their market segment--for now.)
Finally, there are lots of open source software packages released under licenses that allow commercial entities to ship them without providing source. That doesn't seem to have killed those packages either.
I'm curious about if any individual or business has ever tried to enforce the GPL on some third party.
In some instances (like the Linux kernel) there is a brick-and-mortar type of entity sponsoring or shepherding large GPL projects (Linux International, RedHat, GNU), but in many cases there isn't.
What's to stop XYZ corp from just freeloading and reselling GPL'd stuff? Who hires the lawyers and takes them to court? In cases where a non-GPL'd product provides some kind of compatibility with a GPL'd product, can you ever hope to show just cause to subpeona source code or depose engineers simply based on compatibility with an otherwise publicly available standard?
My example is what happens if Microsoft releases Windows 2000 with an e2fs module? The presumption is that MS is too smart to just steal the code (which would open up Win2k to GPL) and that they have the resources to write their own code to a publicly known operational specification. So what's to stop MS from doing just that?
How can you ever convince a judge that MS or some other well-known company is not abiding by the GPL simply by having a product which emulates or otherwise functions in a like manner as a previously available GPL'd product? Particularly when the availability of the source code will show you how to write your own code to end up at the same exact results which can be the very basis for your defense.
How can you *catch* them doing it?
Intellectual property law purports to separate ideas from their particular expression. As an oversimplified example: I cannot copyright the notion of love but I can copyright a book about love. This is good because it means that even though there is legal protection against those who would copy the work for profit, there is little to prevent someone from borrowing ideas from existing works. I don't think it is an exaggeration to say that all intellectual creations are derivative in some sense. Northrop Frye, the great literary critic, said that poetry can only be made of other poetry. The same can be said of any other intellectual artifact. Given the ubiquity of derived material, how can we justify penalizing certain kinds of intellectual borrowing but not others?
Traditionally, this has been justified by the "differentness" of the work in question from prior art and the fact that the work bears the stamp or impression of the author's soul. As you can imagine, this is not at all a simplistic task for a court to determine. It requires the court to make subjective and somewhat arbitrary judgements. In most cases, an absolutist view would make the cases easier to decide, but judges would be less inclined to make those decisions. The situation would be analogous to one in which the only penalty for murder was the death penalty. You would probably see a lot of cases in which charges were lowered from murder to manslaughter. The more grey area there is, the more room there is to hide or ignore the underlying contradiction in the notion of intellectual property -- that no one really owns it. It's just a convenient fiction that allows people to make money. That's not a bad thing in itself, of course. What is worrying is that there seems to be no way to slow the ever-increasing level of protection that intellectual property receives. Eventually, we may find ourselves without the raw materials which we need to create new works of art, culture, technology etc.
What does this have to do with the GPL? If, as some previous posters have suggested, the meaning of "portion" is determined to be "any amount of material", then that is in effect a new and absolutist legal definition of derivative. That means that patent and copyright holders will be able to impose even more restrictions on allegedly derivative intellectual property. The tiniest borrowing by one inventor from another could constitute patent infringement.
The same can be said about the question of "dilution" of the GPL over several generations of code inheritance. If the absolutist position were accepted by the court, Thomas Edison could sue Sony for violating his patent on the grammophone. Joseph Conrad could sue Francis Ford Copolla for Apocalypse Now (being loosely based on Heart of Darkness) et cetera et cetera.
The broader the restrictions imposed on developers by the GPL, the tighter the noose will be on the flow of information generally, because any decision to support the absolutist notion of "derived work" will be quickly capitalized upon by corporate intellectual property lawyers anxious to make their salaries seem worthwhile.
Clearly the GPL will be tested eventually, and when it is tested, the court will not be likely to accept an absolutist interpretation of "derived works" because of the above mentioned collateral damage to the public domain. If the court is unwilling to draw the line to prevent the commercialization of free software (without at least returning the knowledge value) then the license will have to be re-drafted so that it is less vague on what, if anything, "portion" really means.
If someone tried to pin him down on the other, er, dubious statement,
he could wriggle out of it, either by defining "Linux" narrowly to exclude other free software available for it, or by finding some narrow set of "features" (e.g., Microsoft-sponsored protocols) that Linux doesn't have.send all spam to theotherwhitemeat@ropine.com
"...and/or modify it..." Linus, Cox, or Schmoe could add one line to the code and rerelease it as 2.2.9-Schmoe1, with the License stating "... under version 3 or later".
"...and/or modify it..." Linus, Cox, or Schmoe could add one line to the code and rerelease it as 2.2.9-Schmoe1, with the License stating "... under version 3 or later".
This wouldn't affect 2.2.9's code though.
PDP-1's, and a host of other old architectures are still ``in the market'', if the market is expanded to include what's being sold/"given away" 2nd and 3rd hand at flee markets and the like. When the number of architectures Linux does run on is at least 50% of all architectures ever created (possibly including Babbage's machines) this statement will no longer be true.
the subject says it all.
What would happen if a lawsuit was brought against a GPL-stealing company outside of the US? If the GPL doesn't hold up in the US, the company could always be sued in a different country.
That's what change of venue is about, if you were allowed it. A DA that didn't do everything in his/her power to prosecute could possibly be open for disbarment, as well as given excellent grounds for appeal.
I think the most telling thing in the companion interview with Ed Muth, noted M$ FUD artist, is the following:
[Linux] also lacks a port for the great majority of hardware platforms in the marketplace.
Do what?
Does Windows run on SGI's? RS/6000's? PowerMacs? Or anything else made by Motorola? No. Windows runs only on Intel-made hardware (while Dec/Compaq developed the Alpha, Intel is manufacturing them, so no flames there). Windows on a Netwinder? Ho, ha, it is to laugh.
People get upset about others yelling "FUD! FUD! FUD!" at Microsoft (and others (SCO)) without backing it up.... but there is a legal precedent that says that once you commit a lie of this magnitude, all your other testimony is automatically suspect. I would daresay there is very little in that interview which can't be discredited.
But, you know what? I'm not going to waste my time. I've got better things to do.... like whip up some new groovy apps for Linux. And get paid for it.
"... which is why we're going to take over the world." -- Linus Torvalds
The main argument of the article is that GPL hasn't been tested in courts and until this happens it's hard to be sure whether it will stand up in its entirety. This is a very valid point. You can write as clever a contract or a license as you want, but if the court refuses to enforce it (and courts have been known to do pretty weird things), you are completely out of luck. I'm actually betting more on the huge reputation backlash for any company that tries to break GPL.
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
I mean, look at this: world domination at hand and nary a lawyer in sight! That will never do. Lawyers are well known for being able to create work for themselves, so now that Linux has grown the esteemed members of the legal profession are looking to charg^H^H^H^H^H apply their legal skills in the service of Linux's friends and enemies. Never mind that nobody asked them in (so far), they are quite capable of inviting themselves.
I guess it's inevitable. Sigh.
The article does make one encouraging note, thought. A company that tries to break GPL is sure to generate enormous hostility on the Net and among computer professionals. This must be hammered into the whatever they use for heads of suits who might get ideas.
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
If a company offering proprietary s/w that used a 'sliver' of GPL code were to publicly dispute what a portion meant.....I would seriously doubt that their market credibility remained. Few people would buy s/w that had a publicly known potential to be rendered 'free' and available for mass copying (don't forget, GPL s/w can be copied en masse quite legitimately).
Leaving some vagueness in the GPL may be a useful (if risky) thing to do, and I'm not suggesting that the FSF's first response to possible GPL threats should be to bare its legal fangs and snarl. But prudently embracing moderation and flexiblity is one thing, and thoughtless ad-hockery is another. In light of the leading position the FSF is not slow to claim in the free software movement, the claims it makes for the GPL as a guarantee of software freedom, and, above all, the by now huge horde of software put under GPL by authors who believed those claims, there is no room for any of the latter. Of course it's not just a GPL or GNU issue: all the free/Open Source licenses need to be both well protected and watertight, and all the organisations who write or pass judgement on them should address the issue if they want to be taken seriously (Hello, SPI! Hello, OSI! Hello, Regents of the University of California! Hello, all the others!). Could they even possibly co-operate with each other on this one?
Oh, and can anyone actually get a response from the FSF on this issue? Some time ago I sent them a brief email asking some of these questions and got no reply, which didn't inspire confidence. I haven't been able to find anything on their website addressing the matter either.
I don't know that much about the legal soundness of the GPL but what appears to be legally sound and what actually washes out in court are frequently two different things. It is not uncommon for the US Forest Service to ask someone to sue them to find out exactly what the results of a new law or regulation will be. Laws can seem sound when you read them but until they are tested in court there will always be a possibility that the end result will not be what you intended. I for one hope that there is no need for it to be challenged in court but with more $$$ appearing in the Linux world the likelihood seems pretty good that it will be challenged some day.
I have been an advocate of Linux for a while now and I have begun to realize something ... People who USE the web ( and those are the ones we sell our services to , eventually ) don't get hostile when they are told that something was "ripped off" from another company or revolutionary . They follow advertising and marketing . ISP's will follow the demands of their customers as will web-hosting companies . Their customers are not impressed by things like stability , open standards or anyhting mutually benficial to a community of users . They are moved by proprietary software and specifications that they can be 'current' on by paying for . Let's not forget that
those of us who long for open standards and a free development environment are generally not the ones targeted by the marketing divisions of companies .
I have faced up to this fact ; The only reason that the internet is such a success is that it literally snuck up on most of corporate America .
refers to the option of the person who is redistributing the gpl'ed code, not the one who wrote it.
"If one is really a superior person, the fact is likely to leak out without too much assistance" -- John Andrew Holmes
9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
So for some existing GPL'd packages people will be able to use either the new GPL (when it comes out), or the old one, whichever they like best. So a legal gap allowing abuse of GPL'd software can never be repaired by issuing a new version of the GPL.
So what will change in GPLv3? My guess is that RMS will make it easier for other licenses (like the MPL and QPL) to be compatible with GPLv3.
In the interest of clarifying issues and pointing out what may be a weak link in the copyright virus license model:
(1) While Copyright is remarkably powerful for punishing literal infringers, as a fallback for protecting against non-literal derivative works absent an enforceable license or contract, it is a thin reed on which to rely;
(2) Enforceability of passive shrink-wrap agreements remain unsettled, despite clear dicta in some influential circuit court cases; and
(3) Opportunities exist for those who can argue they have not manifested assent to the license agreement, and who can effectively skirt the copyright to their advantage, either by careful copying or by "clean room" development.
In earlier threads, remarks such as the following were prevalent:
> What happens if someone blatantly violates
> the GPL . . . At best they can get an injuction,
> but they cannot sue for damages.
Not so! The Copyright Act provides not only for damages due to the owner's provable injury, but also for the infringer's actual profits attributable to the work taken. Moreover, in many cases where the work was registered, an owner may opt for statutory damages instead, even if the infringer didn't earn a dime, which amount can be NO LESS than $500, and up to $20,000, within the jury's discretion, and for which the judge can enhance damages to as much as $100,000, plus grant an award of costs including attorney fees.
But first you must prevail on infringement. For literal copying cases or cases where there is only de minimus changes, no problem. For non-literal copying, however, "look and feel" has gone the way of the yak, replaced by a brutal test of abstraction, filtration of all non-protectible elements, and qualitative measuring of the sufficiency only of what remains. Its an expensive test to prove, and plaintiffs tend to lose big, even for cases we technies might not consider to be close calls.
On shrink-wraps, the following was said:
> corporate shrink-wrap licenses have _also_
> never been seriously challenged in a court of
> law by a well-heeled and motivated opponent.
Not so again! There are several Circuit Court cases on point, the most recent of which, Pro-CD v. Zeidenberg, which directly addressed the enforceability of a shrink-wrap under certain conditions, and was decided with the benefit of more amicus curiae briefs from well-heeled and motivated advocates on both sides than some high-visibility Supreme Court civil liberties cases.
Even so, and despite the clear language advocating enforceability in Judge Easterbrook's opinion, a recent District Court from another Circuit dismissed the opinion, characterizing Pro-CD as a "minority opinion." So, while the smart money is bet on the proposition that shrink-wraps properly executed and with commercially reasonable terms probably are enforceable, the jury, so to speak, is still out on this point. And the answer may well vary from circuit to circuit and state to state!
Moreover, many of the assumptions that made the agreement in Pro-CD enforceable may be inapplicable to the average GNU transaction. I am concerned that without more careful steps to assure that assent to the license is manifest expressly, the GNU virus can readily be circumvented by a wily enough opponent.
So here's the deal as I see it. If shrink-wraps aren't enforceable (or a particular GNU package is received under conditions that would not render it enforceable as a contract, then the sources are free for either: (1) true fair use "borrowings"; and (2) true "clean room" derivations, which can thereafter be made proprietary.
Several solutions are apparent, including but not limited to direct-communication web-wrap or install-wrap dialogues and, perhaps, the unpopular prospect of obtaining patent protection for novel GNU software where available, which cannot be avoided by clean room or "fair use" processes. There are also some places where specific language can be beefed up to make the sneakeroo-defendant's arguments more difficult.