GPL in Court - Good or Bad? 413
Irvu asks: "The Register has a lengthy opinion piece today about IBM's lawsuit, and the GPL. Barring a settlement this case will see the first test of the GPL in a court of law. Previously the GPL has functioned as a social contract with the implicit (albeit untested) force of law behind it. Any ruling now could radically alter the free-software/open-source landscape for good or ill. Andrew Orlowski dwells on these possible ills in his piece. What does Slashdot think? Is this test a good or bad thing? Do you have faith in the justice system (or IBM's Lawyers) to draw the right conclusions? And, how do you see any outcome affecting you?"
Either way it's a good thing (Score:5, Insightful)
Re:Either way it's a good thing (Score:5, Insightful)
Re:Either way it's a good thing (Score:3, Interesting)
The US courts are known for weird decisions that defy all logic (Microsoft vs DOJ anyone?). The problem is that a positive court decision for SCO will railroad other international governments and legal systems to adopt the 'US' way of doing things. This is a VERY bad thing. Why should US law influence the legal system in Australia?
As to the GPL - it is clear
Re:Either way it's a good thing (Score:3, Insightful)
Invalidating the GPL would hardly be "positive" for SCO since it would mean that they could easily be sued into oblivion for copyright violations.
Re:Either way it's a good thing (Score:5, Informative)
Copyright license revocation doesn't force PD. (Score:5, Insightful)
I think that's highly unlikely. I think it's highly unlikely the GNU GPL will be found to be somehow invalid because I think the GPL is amazingly carefully prepared and worded so it only leverages what copyright law allows. My experience is that courts generally favor the copyright holder and interpret licenses such that the copyright holder's concerns are sustained.
But if the GPL were hypothetically invalid, I think a court would be bound to say that the would-be GPL licensee defaults to whatever copyright allows for. I can't find an example that supports the notion of a work forcibly entering the public domain because of an invalid license. I think they would be non-distributable, non-modifyable, and no derivative works would be allowed to be prepared. Copyright holders would have to relicense the works in a way that is consistent with the court's problems.
Re:Either way it's a good thing (Score:5, Interesting)
It's important to remember that while this may become the first test in court (except the MySQL case), both RedHat's and IBM's lawyers are comfortable with it. And the other companies that have faced GPL issues have respected it; they didn't think they could fight it. SCO's leaders, a few armchair lawyers, and Microsofties are the only ones I've heard who don't think it'll be enforceable.
Re:Either way it's a good thing (Score:4, Interesting)
Why do you think that? There is no evidence that they did steal code but I don't think it's entirely out of the realm of possibility. It is much easier to steal open code and close it than it is to steal closed code and open it, for all to see. Besides Microsoft's track record isn't so good concerning illegal business practices. I am in no way suggesting it is fact, but it is entirely possible.
Re:Either way it's a good thing (Score:3, Informative)
That's not true. If they fail to meet the agreement (GPL) then they are in violation of copyright. They can be sued for monetary damages, up to $150,000 per copy. The GPL is a license not a contract.
Re:Either way it's a good thing (Score:5, Funny)
I agree, as long I'm not paying for it.
Re:Either way it's a good thing (Score:5, Interesting)
Having read the article, I disagree with the author's comment that the GPL is a "social contract." I've read it, I'm sure a number of you have too. It's not a long document. I'd post it here, but I don't want to look like a Karma-Ho.
Anyway, it *is* a document with teeth. Let's say you're an author, and a publishing company wants to publish your book. You have the copyrights. They cannot publish it without your permission. So you sell them the right to publish it for an advance of $40,000 and maybe a buck a book for every copy sold after the advance is paid off.
Now, in the case of the GPL, instead of paying with cash or a portion of the profits from distribution, you pay by agreeing to certain terms and taking certain actions. For instance, if you distribute the software, you must include a copy of the GPL and a copy of the source code. If you modify the software and then distribute it, then you must do the same thing. That's your payement. It is required. If you don't take those actions (make the payment) then you can be sued for copyright violation. Outside of those conditions, you can do with it what you want for your own personal use and not worry about it.
There isn't anything "nebulous" about the GPL, despite Blake Stowell's FUD. And it's not a social contract; it's a contract, pure, and simple, and legally enforcable.
I can't wait to see this get tested in court. SCO will get their asses laughed out of court.
Judge: Let me get this straight. You say code that you own was relesed under GPL by another company.
SCO: Yes, that's right.
Judge: And then you released it under GPL yourself -- but not really because you didn't know the code was in there.
SCO: Yes, your honor. That's correct.
Judge: You never read the code, even though it was freely available, and you were publishing and distributing it.
SCO: That's right, your honor.
Judge: (snickers) Get the fuck out of here. All claims resolved in IBM's favor.
Re:Either way it's a good thing (Score:5, Insightful)
Unfortunately, there are some nebulous areas in the license. Not in the basic concept, I agree.
But once the GPL starts talking about "linkage", and trying to claim that Application A linked with GPL'd Library L means A has to be GPLed, while App A linked with GPL'd Operating System O does not, it's on thoroughly nebulous ground. The concept of "linkage" just isn't that clear cut, especially in the modern day with dynamically linked libraries, or in embedded systems where the OS is more often than not statically linked with the "application". This nebulousity is entirely self-inflicted by the GPL; it's not "FUD" spread by some evildoer. Had the GPL never tried to make this distinction in the first place, it wouldn't be a problem.
While the obligations under the GPL are straightforward enough, it's not always clear when those obligations apply. Safest thing to do is assume that if you're anywhere near GPL'd code, then your code needs to be GPL'd as well. Over-broad, but it's the only way to be sure. The lack of clarity in the license one reason why the FSF has to maintain pages and pages of FAQs about the GPL, and perhaps one reason they're working on yet another version of the GPL.
Making the license more complicated naturally increases the chances for bugs and unforeseen interactions and side effects. One of the nice things about the BSD license is that it's so bloody simple.
Just because you find the intent of a work admirable doesn't mean you must assume the work is therefore perfect. The GPL shouldn't be treated as Holy Writ and viciously preserved against all "attack" from evil FUDsters. It should be improved where required.
Re:Either way it's a good thing (Score:3, Insightful)
What are you referring to? How do you "link to an operating system"?
The concept of "linkage" just isn't that clear cut
Sure it is.
it's not always clear when those obligations apply.
No, it's very clear. When you distribute GPL'd code, you must abide by the GPL. If you distribute no GPL'd code, then th
Re:Either way it's a good thing (Score:5, Insightful)
The GPL guarantees you to have no restrictions on your use of the software. Above and beyond that, it grants you certain distribution rights that you would not have otherwise under copyright law. If you reject the terms of the GPL, you may not distribute the software, but you can still use it for whatever purpose you want. A EULA, on the other hand, is designed to disallow you to even make use of the software if you do not accept its terms.
See the difference now?
Re:Either way it's a good thing (Score:3, Insightful)
a) The law specifically exempts it
b) It is obviously implicitly permitted (like copying software from your harddrive into ram)
c) The license explicitly permits it
Don't agree to the GPL and you'd have to show you copies based on a,b or c.
Re:Either way it's a good thing (Score:3, Interesting)
Re:Either way it's a good thing (Score:3, Interesting)
I think it's even more simple than that. MS goes behind the scenes and maybe drops $20 million to send SCO off to battle knowing full well they will be crushed. If the net effect is that Linux is slowed down by say 1 fiscal quarter, then they probably make their $20 million back several times over.
The GPL doesn't mean as much as people think (Score:4, Interesting)
It seems to me it would be possible to release a proprietary program
which takes a GPL'd source program, patches it and links it with
independent binaries to make a new proprietary program. One could
sell this program which does the patching, and the libraries, and
provide the GPL code under GPL terms while keeping the modifications
proprietary, as long as the modified code is never distributed.
I would be concerned with any claim that the modifying program is itself
a derivative work, though the mySQL folks make similar risky claims.
However, I don't see this coming up in the IBM lawsuit. What might
be tested there is just what it means to agree to a licence implicitly.
We don't want that to be too strong. We don't want to add a lot of
strength to those thousands of programs and web pages that say, "Use of
this program indicates acceptance of these terms." Only deliberately
agreeing to a contract should bind you to a contract.
If you violate the GPL, you are not guilty of violating a contract,
you are at most liable for infringing copyright. Which can result
in a suit to stop you from doing the infringing, and for actual damages
(hard to enumerate with free code) and statutory damages for the packages
that properly registered their copyright (now you're talking.)
In the latter case (the statutory damages) and with the injunction, you
can then put pressure on somebody using your GPLd code to get out of
the violation judgement by following the GPL. And indeed, the GPL says
that if you follow the GPL, you are inherently not violating the copyright.
However, the GPL itself can't make another person's code covered by
the GPL. The fact that another person's non-GPL distributing of
code is a copyright violation can be a tool to help you win a copyright
suit, and that victory, or the threat of it, can make you put the screws
to the defendant to do -- well, anything. Including giving you cash, or
releasing their code under the GPL. It's actually up to you, the real
owner of the GPLd code. If the FSF is the owner of GPLd code, it would
probably use its power to force the new code to be released under the
GPL, but that is its own philosophical decision. This is not inherent in
the GPL.
All the GPL says is, "If you modify and copy this code, and you release
your modified program under the terms of the GPL, you're not infringing
the copyright on it." It does not say, as some people think it does,
that if you modify the code and copy it, your new work is under the GPL.
Re:The GPL doesn't mean as much as people think (Score:5, Insightful)
How practical would that be? Probably not enough to make a dent at the original program community, as any patches if useful would probably be small enough to be quickly replicated, and would be a pain to follow up with new versions.
Now, suppose these patches contain the implementation of an essencial patent... well, this are just like binary modules for the kernel and codecs for mplayer; they exist, but they tend to become roadkill to further development, as most patents are interesting but liable to workarounds.
Re:The GPL doesn't mean as much as people think (Score:3, Interesting)
On the contrary, the patches would probably be either large or hard to reproduce without knowledge entailed in patents / trade secrets. Otherwise why bother?
The viability of this approach would depend on the intrinsic "added value" of the patches, versus the costs to both the software vendor and the end customer. Bear
Re:The GPL doesn't mean as much as people think (Score:2)
Isn't that called a compiler. I know a friend who has one.
If it isn't under the GPL then you have no right to use the code - as it's only by complying with the GPL that you are given the right to use the
Re:The GPL doesn't mean as much as people think (Score:3, Interesting)
It seems to me it would be possible to release a proprietary program which takes a GPL'd source program, patches it and links it with independent binaries to make a new proprietary program. One could sell this program which does the patching, and the libraries, and provide the GPL code under GPL terms while keeping the modifications
proprietary, as long as the modified code is never distributed. I would be concerned with any claim that the modifying program is itself a derivative work, though the mySQL folk
Re:The GPL doesn't mean as much as people think (Score:5, Interesting)
Most
A typical clause of high contention have been those that say that you can't reverse engineer the program, for example.
The reality is using and copying something can't bind you to arbitrary terms. Nobody seriously thinks they can. Copying any future articles of mine, by the way indicates acceptance of the terms on my web site, which include that you must pay me ONE MILLION DOLLARS for each article.
The debate is over what you can bind people to with such contracts. Some court cases have gone one way, others have gone other ways.
I would be amazed if a court were to say, "You put GCC in with your operating system, thus your entire OS must now be released under the GPL." I would be absolutely astounded.
What a court might say is, "You violated the copyright of GCC when you bundled it in your proprietary OS, and therefor the remedies of copyright law are available to the FSF."
Those remedies are:
a) Actual damages -- how much the FSF lost because you did this. (likely to be hard to make large.)
b) Injunctive relief -- remove GCC from your OS now, do what you can to remove it from copies you already released.
c) Statutory damages -- at the court's discretion if GCC had its coypright registered with the LoC before the suit, these can be quite hefty financial damages.
Now A won't scare anybody, but B and C could indeed force the OS vendor to do quite a bit, not because of the GPL or the court ordered relief, but to settle the copyright suit.
Re:The GPL doesn't mean as much as people think (Score:5, Informative)
And that is where the problem lies. In general when speaking of such clauses, they are taking a right *away* from you. The GPL, however, is *granting* rights. You are under no duress that you must use the program, and you could not use it anyway if that clause were not in place. If the code in question were not GPL'd, the end-user would have no rights to it -they could use it if given to them by the copyright holder, but they could not distribute it further (whether they culd resell it after they wouldn't use it anymore should be covered under fair use, of course) in any shape. That's the all-important distinction; the GPL *grants* rights.
Re:The GPL doesn't mean as much as people think (Score:3, Interesting)
This is not correct. You can use a GPL'd program, but you may not redistribute it. To quote section 0 (in part) [gnu.org]:
You don't have to agree to the GPL, but you have no rights to copy the program unless you do agree.
Re:The GPL doesn't mean as much as people think (Score:4, Insightful)
At most the company bundling GCC with an OS would have to make the _GCC source_ available to anyone who wants it. That's it. If the OS maker used GCC code, added their own improvements, and released the new compiler (bundled with an OS, on cd's, or even off it's website for free) the company would have to make the source code for their _new complier_ freely available to anyone who wants it under the terms of the GPL.
The licensing of bundled pieces of software have nothing to do with one another. Bundling OSS and proprietary software together doesn't mean the GPL will "infect" the proprietary. Now if you take portions of GPL'd code and incorporate it in your OS, the OS is supposed to be GPL'd. If you don't want to GPL your OS, don't incorporate GPL'd code into it! Write your own.
Re:The GPL doesn't mean as much as people think (Score:4, Insightful)
Re:The GPL doesn't mean as much as people think (Score:3, Insightful)
Copyright law certainly DOES permit the author of the work to allow redistribution. Such a thing is called a redistribution license. They're pretty common in the world of IP. Read up on it sometime.
Re:The GPL doesn't mean as much as people think (Score:4, Insightful)
Re:The GPL doesn't mean as much as people think (Score:3, Insightful)
The *fact* that SCO has violated the GPL is the surest defense against the silly claims they are now making. The point of the GPL is that free software *remains* free, and that no organization (i.e. SCO) can use the embrace-extend-extinguish tactics that we've seen from Redmond.
Love it
What about the DMCA? (Score:3, Interesting)
Wouldn't that program have the sole purpose of allowing you to violate copy protection?
Re:What about the DMCA? (Score:3, Insightful)
I can take a GPL program and modify it to my heart's content on my machine, and keep the source secret, if I don't give the program to others. So far that's been the clear message from most GPL authorities.
The loophole might be that I can also tell you how to take the GPL program and modify it the same, and neither you nor I distribute the modified program. In fact, I "tell" you how
Re:The GPL is a contract (Score:3, Insightful)
The click through agreements are attempting to impose additional restrictions on your rightful activities.
Installing software which you have purchased is your right. The click through is attempting to impose additional restrictions on what you may do.
The difference is that the GPL provides you with the right to redistribute someone else's property. The price exacted for that distribution is to
Re:The GPL is a contract (Score:3, Interesting)
Consider this. I publish an item and in the licence I say, "You may not copy this unless you give me one million dollars!" And you copy it. Do you now owe me a million dollars? No, you owe me what I can extract for copyright infringment. Even though you "agreed"
Re:Isn't a Copyright a Contract? (Score:5, Informative)
The punishments are specific. Injunctions (stop copying!) Actual damages (pay me for what I lost because you copied it.) Statutory damages.
In extreme cases (wilful infringement that really pissed off the court) statutory damages can be up to $150,000 per copy. That's a lot of leverage which can get you to make people obey the GPL.
But copyright itself does not list among remedies, "Make them release their code under the GPL."
Re:Isn't a Copyright a Contract? (Score:4, Interesting)
I think people tend to forget that the basic premise of the GPL is to point out how ridiculous and counter-productive it is to attempt to secrete source code for profit. The GPL might be called "copyleft", but its enforcement has little to do copyright law. The genius of the GPL is that it uses contract law to hack copyright law.
But.....of course.....IANAL.
--K.
Re:Isn't a Copyright a Contract? (Score:5, Interesting)
Many would dispute GPL's clause that since you can only copy the program under GPL terms, anybody who copies the program is agreeing to GPL terms. That is not correct. If you copy a GPL program in a way not permitted in the GPL, you are violating the copyright. That's it. That's all. You are not agreeing to a contract. The GPL wants you to think that you are, and the statutory penalties for violating copyrights are high enough that you might later wish to agree to the contract to settle, but you can't be made to agree to a contract because you copied something.
At least I certainly hope so. Courts might rule either way, but I think we would not want them to rule in favor of the GPL, because of all the other ways such implicit contracts are used (no reverse engineering, must donate firstborn son, etc.)
Re:Isn't a Copyright a Contract? (Score:4, Interesting)
GPL gives you the right to sell, provide for download and otherwise make copies abilible of a work.
As long as you dont distribute GPL has NOTHING to do with you at all as your not vialating copyright and you got your copy legaly.
GPL is a contract that you accept when you distribute not when you receive a copy.
Re:Isn't a Copyright a Contract? (Score:5, Informative)
"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."
If you distribute GPLed code you either
a) have accepted the GPL implicitly
b) are violating the copyright on the GPLed work
Re:The GPL doesn't mean as much as people think (Score:5, Interesting)
The LAME mp3 encoder.
The LAME mp3 encoder was, for a long time, officially distributed not in binary form or in source form, but as a patch against the reference code published by Fraunhofer.
Due to patent encumberance and licencing restrictions, distribution of modified source or binaries was not permitted. But since the patches were 100% work of the LAME authors, they could distribute in this format. The fact that they were useless unless applied to the code distributed under a very restrictive license was irrelevant.
A similar argument could be made for a (closed source) application that accepted as an argument a specific tarball (which could even be included in the package -- the GPL makes it freely distributable!) and output an application different from what is in the tarball.
Sauce for the goose and all that....
--
grnbrg
Re:The GPL doesn't mean as much as people think (Score:3, Informative)
The GPL isn't a "contract". It's a unilateral grant of permission to perform acts normally prohibited by copyright law. It's the exact opposite of most commercial EULAs, which are (IMO invalid) attempts to unilaterally remove your pre-existing rights in exchage for nothing.
Without a signed contract, there isn't any way to enforce said contract.
The GPL doesn't need
Good or Bad? (Score:5, Insightful)
Sooner is Better (Score:5, Insightful)
Re:Sooner is Better (Score:4, Interesting)
The GPL is means to make your code more avaliable to the community, not for protection.
The danger of GPL failing would be to keep any project distributed under the GPL together. All the contributors must then agree on a new copyright scheme and that is probably a showstopper...
OJ (Score:3, Redundant)
Anti SCO T-Shirt [anti-tshirts.com]. $1 donated to OSI Fund on each shirt.
Re:OJ (Score:3, Funny)
If things pan out the same, I can't wait for SCO to lead the police on the Bronco chase.
Re:OJ (Score:3, Insightful)
Ultimately, only handful of people very out of step of current events could be chosen for the jury. IIRC, there was a similar problem for the Ollie North trials, but not nearly as bad. Goes to show
Knock knock. (Score:3, Funny)
- OJ.
- OJ who?
- *You* can be on the jury!
Re:OJ (Score:5, Interesting)
Heres a post-OJ example:
I used to work for company X, which was owned by company Y. Company X laid me off. The very next day I get contacted by a big honcho (lets call him A) at X (and Y, CTO for both) to do some contracting work on an unfinished project for Y. I agree and get to work. I work, and I work, and I rack up hours, all billable via the agreement I had with A. I fix all the bugs, I deliver the system.
And then Y doesn't pay.
I find out the software I'd written is about to be taken from its single location and rolled out nationaly by Y, and I get pissed and start bugging the hell out of my contact at Y (person B). Person B tells me that A was never allowed to authorize work for Y, and puts me in contact with a different honcha, person C. Person C claims they are evaluating my software and comparing it against other off-the-shelf systems. I make it very clear to C that this matters not: I agreed to do work for a specific price per hour, and they are using the fruits of my labor. He shrugs it off and says he is not bound by the agreements A made.
Over the next two months, I get the runaround, and then finally C offers to pay less than 1/4rd of the bill as 'a fair liscensing fee based upon our research'. By this time, I had debt upto my eyeballs, but I still had some sense of reason and pride. I made it clear to C that I, not they, get to set liscensing fees for any product I decide to sell, and also stress that liscense was never an issue: I did contract work for them modifying an existing piece of software and fixing bugs, and I expected to get paid. C said the 1/4th was the best he could do. I said I'd go talk to a lawyer.
Here's where the legal system steps in, the above was backstory.
I go talk to a lawyer. With my documentation in hand, he said I have a very strong case - should it ever go to court. But he sugests we do some research and try other tactics (letter from his law firm, etc) first, because of a (to me) glaring problem with how these sort of civil cases go: No matter how big the organization in the wrong is, or how obviously in the wrong they are, it is soley upto the judges discretion as to wether the party in the wrong has to pay legal fees for the complaining party (should the complaining party win). Added to this fact, was that in the conservative city I live in, judges rarely make defendants pay for the complaining party's fees.
This upset me quite a bit.
Then the research into the company came down - just googling stuff I and the lawyer did. Y was run by lawyers and ex lawyers, and no suit brought against them ever made it out of court - they dragged their feet for years on anything they could, and used heavy-handed tactics and threats of countersuits whenever possible to stop suits dead in their tracks by scaring off the person or company making the complaint.
So, here I am, almost a year later, still out TONS of $$ (>20k), and I can't afford to pursue the matter. For every letter they write in response to something my lawyer would send, I'd be out 100-250$ (assuimng it was a short letter my lawyer coudl respond to quickly). If I were to take the case to court, depositions alone could bankrupt me. I entered into a binding agreement with an officer of company Y, and I can't collect squat from it.
Meanwhile, company Y is doing well. They have over 100000 users nationwide using the software I fixed and improved for them.
What it comes down to is this (as the prosecution found out the hard way in the OJ trial): the legal system protects those who have money. If you have tons of money (for lawyers), you can get away with almost anything, or at least make it so painful, expensive and drawn-out for anyone to come after you that it isn't worth it.
Back to the story at hand though: IBM has very deep pockets. But SCO is going to spend eery penny it has on lawyers, and can draw this out for quite awhile. Realisticaly, we wont have an answer to the is-the-gpl-enforcable question for Years.
Re:Offtopic: How to get paid as a contractor (Score:3, Informative)
I think in my case, the bigest things I could of done differently were to have opened my eyes over two things:
1) Company Y had already proven itself, by how it shut down and sold off my employeer X, to be a ruthless and rude entity.
2) Person A had a bad reputation outside the tech departments of X and Y for being an ass, and being untru
SCO bandits have deep pockets too (Score:3, Informative)
BROUGHTON, REGINALD C.: Declared Holdings
SCO GROUP INC
Senior Vice President
NasdaqSC:SCOX (historical quotes, profile, other insiders)
2003-08-05 120,000 Direct Insider & restricted shareholder transactions reported over the last two years
Date Shares Stock Transaction ADVERTISEMENT
A good side, a bad one (Score:5, Insightful)
Once for all this "not yet tested in court" FUD will go away, and future violators might be deterred.
Bad:
Media circus. 'nough said.
Worst:
A bad result might make thousands of talented people loose faith in justice. This is actually good, as would be any acts of civil disobedience in consequence. The actual evil has been done in the last several decades in the slow, generalised erosion of morals... final defeat would be ugly, even the civil disobedience struggle itself would be honourable but containing scenes of unthinkable ugliness, stupidity and cruelty.
SCO's case is too weak (Score:5, Interesting)
Re:SCO's case is too weak (Score:3, Insightful)
Re:SCO's case is too weak (Score:3, Insightful)
Serious companies complaining about a copyright or patent violation would be very anxious to see this violation corrected.
I would trust IBM... (Score:2)
(The Godfather Part II reference... and it actually makes sense, if you've seen the movie.)
Its Good that IBM is helping (Score:2)
and as you may know IBM's legal staff is the best in the business even beter than SUN and MS's own legal dream teams
justice system (Score:5, Interesting)
IBM's lawyers are not out to defend the GPL, they are out to defend IBM. The two are not necessarily compatible. And in the end, whether or not IBM's lawyers "draw the right conclusions" (taken to mean they interpret and defend the GPL the way your average slashdot reader would like them to) is rather irrelevant. What matters is the judge's ruling. That brings us to the justice system... Given the choices that have been made in recent years, one could argue that there currently is no justice system. This started with the election of the president by the supreme court, and continued with the systematic suspension of basic rights guaranteed under the constitution.
GPL is stronger than other software "licenses" (Score:5, Informative)
http://moglen.law.columbia.edu/publications/lu-12
It's not a test of the GPL (Score:5, Insightful)
It's not really a test of the GPL. It's a test of the validity of SCO's claims -- does SCO own what they say they do, and did IBM do what SCO says IBM did?
The fact that SCO themselves distributed Linux under the GPL is one piece of evidence against SCO, there's nothing about the case that would cause the validity of the GPL to be a major issue. Or am I missing something?
Are the claims of either side based on the (non-)validity of the GPL in any way?
Re:It's not a test of the GPL (Score:3, Insightful)
Not yet, but unless IBM abandons at least its claim about SCO infringing the GNU GPL, or SCO bucks, stop redistributing and negotiate a license with all interested owner of distributed code, then it might come to a test case. Which obviously isn't necessary, as per Moglen's famous paper on the GNU GPL enforceability...
Yes. When IBM pointed finger at SCO infringing distribution of Linux,
I license that cannot be enforced... (Score:2, Insightful)
If the judge determines that the license is not legally binding because of X, we just modify X in the GPL 3.0. If the judge determines that SCO does have IP rights over Y in the Linux kernel, then Y is removed in Linux 2.6. Even the worst result I can imagine is just a temporary setback for Linux.
But to be perfectly frank, there's no chance in hell SCO will be able to prove their IP claims. A judge coul
Once more, with feeling this time... (Score:4, Insightful)
In respect to SCO, given that they are redistributing the IP of others (i.e. the many, many coders who contributed to Linux), their only viable statements at this point are "We are, in fact, complying with the GPL" or "We are guilty of criminal copyright infringement"--not "The GPL sucks/is-legally-invalid/is-bad-for-business." Either they are complying with the GPL's conditions for duplicating copyrighted material, or they are guilty of criminal copyright infringement right now. Yes, right now.
Given this, the focus should arguably be on how the GPL can be enhanced to continue to provide a framework of conditions for the redistribution of Open Source which benefits everyone, rather than how the court might "test" its contents, or whether the GPL text passes some subjective opinion as to whether it's legally "neat-and-tidy".
GPL will have very little to do with the case (Score:5, Insightful)
I know some will say that the fact that SCO continues to provide Linux source code means that GPL is involved. But once again, that issue would be valid if the released source code were BSD, MIT, ... license.
Re:GPL will have very little to do with the case (Score:3, Informative)
Re:GPL will have very little to do with the case (Score:3, Informative)
Actually not. The (reformed) BSD license and friends do allow anyone to do anything but stripe out the copyrights notice. So if Linux was BSD-licensed, SCO could have gotten away with its reasoning, and IBM wouldn't have been able to point SCO's distribution of Linux as hypocritical and infringing.
Something more important than testing the GPL (Score:2, Interesting)
Is it just me... (Score:3, Funny)
Parks (Score:4, Interesting)
The US is only now entering the phase were people understand the law is just a tool used by the monied people to keep their money. I would do the same if I had money.
Breaking the law is not a big deal, breaking certain laws can be a very big deal, but in general do as you would like others to do to you. Or do good things for the good of all.
Courts rule software can be modified/redistributed (Score:5, Funny)
AP Wire
In a surprise 6-3 decision today, the US Supreme Court has ruled that the GNU Public Lisense is not enforcable and that programmers, users, and sellers do not need copyright holders' permission in order to modify, copy, or redistribute any machine- or human- readable code.
With IP law thus crippled, Free Software advocates expressed shock and confusion about how to proceed. "Now that I can just legally use a copy of NT with a cracked serial," Linux creator Linux Torvalds moaned in Washington, DC, "There doesn't seem much point..."
Without precedent, it means nothing (Score:5, Insightful)
Old SCO Also Donated Code to Linux (Score:5, Interesting)
http://radio.weblogs.com/0120124/ [weblogs.com]
Old SCO Also Donated Code to Linux
Well, knock me over with a feather. It turns out that old SCO, The Santa Cruz Operation, also donated code to Linux. There is an article [nwfusion.com] dated June 12, 2000, that tells us all about their Linux distribution and their plans, which included scaling it to the enterprise, as marketroids like to call it:
"While SCO may be rolling out its Linux distribution long after Red Hat and Caldera hit the market with theirs, SCO is no open source Johnny-come-lately. The company offers support services to Caldera and TurboLinux customers. In addition, the company's Tarantella middleware supports Linux, as will Monterey, the Intel-based version of Unix that SCO is building with IBM.
"SCO is expected to announce 32- and 64-bit versions of Linux for Intel-based servers, which will be available in the fourth quarter of this year. In early 2001, SCO plans to deliver a 32-bit Internet Infrastructure Edition that will come bundled with a Web server and other IP applications. The company is also working on a 64-bit edition for service providers, including ISPs and application service providers, which will feature special billing and management tools.
"The company is also expected to explore the following areas:
"--Building the Linux clustering capacity to be in line with SCO's NonStop Clusters technology, which scales to 12 or more boxes with advanced reliability for data and applications. Current Linux clustering technology is generally limited to two or four nodes.
--Beefing up Linux's symmetric multiprocessing capabilities. Currently the number of CPUs per Linux server is usually limited to eight; UnixWare can run on servers with up to 32 CPUs.
-- Managing multiple Linux servers as well as applications from a single console as if they were a single system.
-- Improving security and the ability of Linux to handle applications such as e-mail, including instant messaging.
-- Adding online support services and documentation."
Wait a sec. Isn't that what paragraph 85 of SCO's original complaint was talking about, and didn't they say that without IBM entering the picture, Linux could never have scaled? The complaint said:
"For example, Linux is currently capable of coordinating the simultaneous performance of 4 computer processors. UNIX, on the other hand, commonly links 16 processors and can successfully link up to 32 processors for simultaneous operation."
That wasn't accurate, but it does give me an idea. Maybe New SCO needs to sue Old SCO and leave the rest of us in peace.
One year earlier, in 1999, a press release [archive.org] from Old SCO described itself like this:
"We have over twenty years of experience with UNIX, Intel, and Open Source technologies. In fact, we believe that SCO has the largest staff of Open Source experts of any commercial software vendor.
"As a founding sponsor of Linux International, SCO is a strong proponent of the Open Source movement, citing it as a driving force for innovation. Over the years, SCO has contributed source code to the movement, and currently offers a free Open License Software Supplement CD that includes many Open Source technologies. SCO UnixWare 7 operating system, the fastest growing UNIX server operating system for the past two years, supports Linux applications as part of its development platform."
All the Tarantella-Linux press releases from June 1999 to February 2000 are here. [archive.org]All Tarantella press releases from June of '99 to July of 2000 are
Will SCO last long enough? (Score:3, Interesting)
TheFrood
Re:Will SCO last long enough? (Score:3, Informative)
I admit ignorance of SCO's complete product line. But it seemed to me that thse four pagents are carefully chosen such that all of SCO's current or likely products will infringe at least one of the patents.
If IBM gets a preliminary injunction, then this will cut off all revenue to SCO!. Of course, there is something else that I would like to cut off of each of t
How would a court rule against it? (Score:5, Insightful)
* Could a court grant the right to Novel to sell a modified, binary-only version of Reiser v 4?
How, exactly, could the GPL be ruled against? There may be small, fringe issues, but overall, the GPL rests on the exclusive rights to modify and copy given to IP owners of their works. When a copyrighted work is GPL'ed, the owner gives me extra rights. It is difficult to see how a court could forbid me from allowing you to sell or give away some PHP code that I wrote.
Re:How would a court rule against it? (Score:3, Insightful)
SCO Blew its Chance (Score:3, Insightful)
My reading of the GPL leads me to believe that it will be ruled enforceable. It is a well thought out contract that was crafted with instances like this in mind. Well maybe not SCO's Jerry Springer impersonations, but the general siuation nonetheless;-)
Personally, (Score:3, Informative)
Choices, choices... (Score:4, Interesting)
A. The court rules that the GPL is a valid agreement/contract between the copyright holders and a licencee permitting the licencee to re-distribute the copyrighted work under certain conditions. Everything continues along as normal.
B. The court rules that the GPL is not a licence agreement and that the GPL does not grant any rights in addition to copyright law. GPL3 is created by the FSF to fix any issues and automatically supercedes GPL2. Everything continues as normal after a slight delay.
C. The court rules that some part of the GPL is not valid. Depending on which part, some licencees may gain rights not intended by the copyright holder. GPL3 is drafted to plug the hole and everything continues as normal, except that licenced as GPL2 can now be used in an unintended and/or undesired manner.
Warning, the following assumes that SCO-owned code improperly made it into the linux kernel, an assumption which is far from proven true.
SCO is in deep shit. They continued to offer the linux kernel under the GPL even after they were made aware that some of their copyrighted material made is way into the kernel through improper channels. It's going to be hard to convince a sane judge that they should be allowed to "take back" code that they previously licenced under the GPL. If, however, they can convince the judge that the GPL is invalid in some way, it might nullify any rights granted by the GPL. This would let SCO say "we never released the code under a valid licence, so no rights to use our code were ever granted." The kernel folks would also have a hard time releasing the kernel under another licence (a hastily drafted GPL3, for example) since they don't know which parts of the kernel are theirs and which are SCO's.
Conservative Courts Reticent to Break Contracts (Score:4, Interesting)
It's possible that a challenge to the GPL might get thrown out because it is a binding contract... or maybe they will decide that the GPL is not a contract for some reason. But, if they do, those reasons would have to be very narrowly defined or they would invalidate other contracts. Given that the propensity of the courts these days is to favor privacy of contracts and commercial relationships, I would be shocked if the courts actually ruled against GPL.
A bit of background. In the US system, the judiciary branch is charged with "interpreting the laws". Largely, if Congress drolls out some stupid bill, as they usually do, it falls on the courts to try and put a "sane spin on it." For this reason, the courts are not elected positions, they are appointed, and, the people once appointed are in for life. Usually the ruling political party puts in people of its philosophy, but there have been some famous goofs - like Bush - Souter.
Usually a court case does not make it to the supreme court unless it has some sort of constitutional issue associated with it. How a GPL case might make it to the SCOTUS is interesting indeed. Would it fall under free speech? Would it fall under Commerce? Would it fall under Intellectual Property? Would it fall under the bill of rights about the exclusion of business...
No, we've needed clearer case history (Score:4, Interesting)
No- but that's irrelevant. SCO could pull a legal rabbit out of its hat, and win, and it could all end up being 100% kosher. MAYBE there is some blatantly copied code.
The HUGE problem is that this would set a case precedence of sorts. Ie, everyone would think "the GPL is worthless." WORSE, people will violate it even more freely than they do now- and we know, from Linksys and others, that they do, wholesale. Imagine how much cut+pasting happens, or how many derivative works there are, etc...
Copyright holders have had many, many years to establish case history in far better cases than this- ones where people have violated the GPL, there's plenty of evidence, etc. It's a failing of the open-source model; because no SINGLE individual feels the need(or has the resources, perhaps) to challenge a violation, we ALL loose. This is sorta why the FSF exists.
Notice I said "copyright holders" at the start of the last paragraph, and not "The FSF". If you read their mission statement, you'll notice that they very clearly point out that they can't do JACK on their own if they don't own the copyright; the ball is in the court of those whose IP SCO is laying claim to. If you approach the FSF and ask for help, they'll help- but they can't just charge into court and yell "WE ARE HERE TO DEFEND THE PENGUIN'S HONOR!"
Copyright is NOT a contract, it is the law (Score:5, Insightful)
If I write code, or a poem, or a novel, I own the copyright, EVEN IF NOBODY agrees to my terms of distribution. Nobody has signed a contract with me to use or distribute it, but the copyright is still mine, and I can dictate terms of use for my work as long as it's in effect.
The GPL states this very clearly; I have italicized the part that I believe relates solely to copyright vs contract:
"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."
Nothing in copyright law gives you any rights over the software, except the terms dictated by the copyright holder (in this case, the terms of the GPL). If I write a novel and drop the manuscript, and you find it, you have no right to publish it, because the copyright is not yours. Under copyright, law, you have ABSOLUTELY NO RIGHTS to a work EXCEPT those granted by the copyright holder.
The term "intellectual property," was invented by by people like those running SCO, because they want you and me to confuse an expression of an idea, which is under copyright, with the idea itself, which is not. Code is an expression, the algorithm or method is an idea. If SCO, MS, and others can obfuscate the fact that "intellectual property" does not exist in US law, they can make you think that expressing an idea with your own code (also called reverse engineering) is illegal. The only place in US law that ideas protected is patents, and there is much controversy about that.
All this means that if the GPL is found to be invalid, then all software licenses will follow, because copyright is the only thing that gives them their power.
Social contract was broken according to SCO (Score:3, Insightful)
Why Not? (Score:3, Insightful)
What would you prefer, that the GPL remain in legal limbo while people keep testing the edges without drawing enough attention to bring it to a full-on legal battle? At least we'll know one way or the other whether it's enforcable. Beats finding out 5 years from now when there's more open-source software out there.
Unknowingly distributing copyright infringments (Score:3, Insightful)
If the court perceives this as a possibility (ie, SCO says they didn't know "their" code was contributed to linux and accidentally GPL'd it via distrubution), then the court may rule against the GPL, setting a negative precedent.
I'm concerned that something like this could happen when the bullets (or rather, mountains and mountains of paper) start flying. If IBM can't prove that Caldera knowingly contributed the code in question to Linux, then it seems to me that the GPL need not be brought into the argument. I'd rather they left it alone and stuck to their contract infringements and fraud allegations.
Widepread Civil Disobediance in the U.S. (Score:5, Insightful)
I can think of at least two widespread laws that are regularly broken in America: Speeding laws (probably broken by the vast majority of driving adu;ts at one time or another), and marijuana prohabition laws (probably broken by tens of millions of people at the very least). And let's not forget historical examples such as alcohol prohabition. The author's selective ignorance of this matter (together with suggesting that a "Pacifica" successionist movement is "widespread") make anything he says rather suspect.
Besides, the real solution to bad laws is not just ignoring them; doing that only gives a chance for the ruling party to selectively enforce those laws against its enemies. The problem is to repeal bad and unnecessary laws. We need far fewer laws, but have those fewer laws better enforced.
Agreed.. (Score:5, Interesting)
The difference between Europe and the US is not about laws or respect for laws. Prohibition, and city parking are more current examples - Thoreau and the Whiskey Rebellion are examples from our country's earlier history. Rather, the difference is social norms vs. the social contract. Americans have a tradition of championing 'freedom' and 'individuality', but we still all drive our SUVs to McDonalds. Europeans seem to be much more in tune with social contracts and spend less time concerned with social norms. I think that was the point Mr. Orlowski was trying to make.
More important (Score:3, Interesting)
The implications of this are far reaching esp for typical software where money is exchanged. To me, it's like Toyota asking me for extra money for driving my old 1979 360,000 miles when they expected me as a consumer to buy a diffrent car after only 100,000 miles.
Better now then later... (Score:3, Interesting)
Not really a test of GPL (Score:4, Informative)
Faith in the justice system... (Score:5, Insightful)
GPL does not need to be tested (Score:5, Insightful)
The GPL as written is a type of clever legal kung-fu that only a true hacker like RMS could come up with.
Here is a key passage:
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 the GPL was struck down, it would be the equivalent of striking down _ALL_ software licenses. In that case you could expect to see Microsoft's lawyers filing an amicus brief supporting the FSF.
The speculation that you can circumvent the GPL by writing "intermediate software" is a notion that only an engineer could have.
An analog is like claiming that you can build a robot, send the robot to break into someone's home, and get away with it because "The robot did it."
Regular people (like judges) find this sort of argument very irritating. Instead they tend to focus on the intent of what a law/contract might achieve rather then the exact wording.
In criminal cases it's called mens rea. If I send Paulie Walnuts to break Artie Bucco's legs because he hasn't paid me money, can I get away with it because I used Paulie's intermediate 'wetware'?
In most situations you would be laughed out of court with this argument. Look at Napster.
SCO shot themselves in the foot (Score:3, Funny)
If anything, this case is going to make the GPL stronger because there is no way we can loose.
For what its worth (Score:5, Informative)
IAAL, but I am not a copyright guru. I think that there are some misconceptions floating around that I should comment on.
No court conducts a general review and commentary on any document (law, contract, what have you) that is part of a case before it. The court will review those portions of the document that are relevant to the case in front of it and will neither review nor comment on other portions that are not at issue in that case.
In this case the issue that IBM raised is whether SCO lost its right to prevent third parties from copying, distributing, modifying, or running Linux by releasing Linux under the GPL. The court can and will answer this question without worrying about whether any other clause of the GPL, say the limitation of damages clause, is valid in another context.
Now I do not know if every clause of the GPL is valid or if it will work in the way that St. Stallman wants it to work in every conceivable situation. But, if software licenses mean anything, then at the very least IBM's claim (if I have correctly understood and described it above) ought to be sustained. Other portions of the GPL may not work, but I do not think that they at issue in this case.
I wish to point out........ (Score:4, Informative)
Linux Magazine [linux-mag.com] and search for the section, "Jurist Judges GPL as Just"
The point here is that in his opinion the judge establish legal precident for the GPL and it's validity as a "contract". I'm no lawyer but I do know that the SCO bulldink might be the most current test... but it's not the first.
Good, and here's why (Score:3, Insightful)
Because GPL licensed code is habitually ripped off by commercial companies, through evil or plain old ignorance. I've seen it both ways, and I've seen it at every company I've worked at.
You, dear reader, might not have seen it, but that doesn't mean that I haven't, or that it doesn't happen.
GPL needs a huge public case to bring it to the attention of both developers and pointy haired idiots. It must be made clear that the GPL can't be retrospectively revoked (that it doesn't specify "irrevocable and in perpetuity" beggars belief), but that once violated, you are commiting copyright violation (or "theft" in newspeak) every time you duplicate. This needs to be made clear in no uncertain terms, with a fat headline grabbing fine, not just another quiet non-disclosed settlement by that pussweed Moglen.
The GPL is so badly understood even by people that use and comment on it every day (yes, you, dear reader), that this is a long overdue public test of it. If it ain't broke, let's say so. If it's broke, let's find that out and fix it.
GPL in court (Score:4, Insightful)
The Law of the Land:
- Copyright law says basically that you need permission from the author to make copies of software and the like, except in certain limited circumstances which may vary from one jurisdiction to another.
- If the law of the land says that you have a right to do something, then nothing and nobody can take that right away from you. Ever. Even if you sign a piece of paper saying you have given up that right, in the eyes of the law you still have that right. This is what that catch-all phrase "Your statutory rights are not affected" means.
- Civil law gives you remedies, as a copyright holder, if someone performs unauthorised acts in relation to your work. The courts may decide on the nature and magnitude of such remedies. In general, whistling a tune in the street is likely to attract substantially smaller damages than broadcasting an unreleased movie.
The GPL:- The GPL gives you the necessary permission to make and distribute copies of the work, in addition to any statutory rights you may have, if and only if you comply with certain restrictions. For instance, if you modify the work, you must not restrict distribution of your modified version, save that you may keep it entirely to yourself.
- If you fail to comply with the conditions of the GPL, then your special permission to copy, modify and distribute is withdrawn. Copyright law is what bars you from making copies, not the GPL.
There's nothing complicated in there; it is all quite straightforward. SCO has released code under the GPL, thereby granting a licence to others to copy it. That licence cannot now be withdrawn.I've said it before and I'll say it again. When you want to do something critical with Free Software - such as running a system where people will get hurt or killed if it fails - reading the source code is due diligence. Don't want to read it yourself? Don't know how and can't be bothered to learn? Then pay someone to read it for you. That's the way people make money out of Free Software. What SCO was doing was critical in a different way, because SCO was trying to keep proprietary code separate from GPL code. Nobody's life was in danger, but SCO mucked up anyway by not checking for things they didn't want in the code before releasing it.
One man's activism is another man's justice (Score:3, Insightful)
BSD License w/ advertising clause almost tested (Score:4, Informative)
The Regents of the University of California copyrighted their code.
The Regents licensed their code under the BSD license (obviously) including the advertising clause.
USL, a company related to AT&T, sued the University of California for distributing their proprietary code.
UC sued back, on the grounds that AT&T was distributing files developed at UC without honoring UC's license.
Ray Noorda of USL swiftly settled the suit after that, essentially abandoning almost all the original claims. The BSD license did not get tested by a judge, as far as I know.
Ray Noorda gets around. He went on to found the Canopy Group.
Re:GPL code is copyrighted code (Score:3, Informative)
>the copyrights have the final say in how the
>code can be used.
No, copyright does not give you the right to tell how something is USED. It gives you an exclusive right (with some exceptions) to make copies, derivative work, public performnace and such. That is is. It does not cover general use of a work, even though many software, music and film providers wants to make you believe otherwise.