| |||||||||||||
GPL and linkingGPL and linkingPosted Feb 16, 2006 15:00 UTC (Thu) by mattdm (guest, #18)In reply to: GPL and linking by proski Parent article: On the dual-license model
I wonder if the GPL linking clause has ever been tested in court. It's very telling that it has been successfully enforced without going to court -- going to court is what you do only if there looks like there might actually be a question.
(Log in to post comments)
GPL and linking Posted Feb 17, 2006 1:12 UTC (Fri) by giraffedata (subscriber, #1954) [Link] It's very telling that it has been successfully enforced without going to court -- going to court is what you do only if there looks like there might actually be a question. It's telling, but not as much as this suggests. These successful enforcements are merely settlements. Both sides gave up something, in recognition by each of the possibility he would lose in court. In the settlements I've heard about, the copyright owner didn't get royalties, which he would be entitled to if the GPL really said everything he claimed. All he got was for the alleged infringer to stop infringing. In such a case, I don't think the alleged infringer really gives up much in the settlement, so he might actually be 90% convinced he's right, but it just isn't worth the 10% risk to go to court. A few years back, I read a quote from FSF's Eben Moglen, the foremost enforcer of GPL, about all the fact that GPL had never been to court because of all these settlements. He said the alleged infringer always says, "we don't know GPL means we can't link, because no one's ever lost in court" and Moglen replies, "but do you want to be the first?" That makes the choice not to defend sound more like a fear of litigation than a solid belief that FSF's interpretation is right.
GPL and linking Posted Feb 23, 2006 13:20 UTC (Thu) by Wol (guest, #4433) [Link] There's also something called "intent". And something else called "precedent".
It is widely accepted that the intent of the GPL is to control linking. There is a lot of precedent that that is the way it is interpreted.
If the judge was unsure which way to rule, then they would look to intent and precedent, and in that case they couldn't do anything except come down in favour of the FSF.
Cheers,
GPL and linking Posted Feb 23, 2006 16:50 UTC (Thu) by giraffedata (subscriber, #1954) [Link] I don't think either precedent or intent help us here.Several postings here say there is no precedent at all for the linking question. I.e. no authority has ever ruled on it. If you know of a precedent, please post it. As for intent, I think it's pretty clear that the intent of a person who distributed object-code-only code that links to GPL code was to link and still not violate copyright. The intent of the guy who licensed the GPL code to him may have been for him not to link, but why is his intent more important? In criminal law, intent of the perpetrator is important because we don't punish people for innocent actions. In contract law, the intent of the parties is relevant to the extent that all parties have the same intent. In ambiguous statutes, the intent of the legislature is sometimes called in to disambiguate. But I don't see any room for intent in deciding whether I have permission from Linus to distribute his kernel code along with an object-code-only program that links to it. It's the permission he actually gave, not what he intended to give, that matters.
GPL and linking Posted Feb 24, 2006 18:44 UTC (Fri) by Duncan (guest, #6647) [Link] Isn't it the case that it has now been enforced in (German) court, severaltimes, as Harald Welte and the Netfilter core team have aggressively enforced their rights with the various hardware manufacturers that used it? Google on court netfilter . Apparently, the German system has a pretty short clock on things, so once an alleged violator is notified, they have to respond rather quickly or find themselves in court. It cuts down on the stalling tactics and causes many companies to comply right away. Those that don't get dragged into court and ultimately have to comply or face no longer being able to sell their product in Germany (the entire EC??). It has happened to several that dilly dallied too long, at least one of which apparently got beyond the preliminary injunction to the permanent injunction -- backing the GPL. Of course, a German court isn't a US court, or a Japanese court, or... but to say the GPL hasn't been tested in court, blanket statement, is now factually incorrect. Also of potential interest is that the English version of the GPL is the only official version. Other translations specifically state that they aren't official, and that the English translation is to be considered legally authoritative, should there be any discrepancy. Thus, it was specifically the English version of the GPL that was held valid. Duncan
|
|||||||||||||