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Aiming at the GPL?
It is time to have a look at some statements
by Mark Heise of Boies, Schiller, & Flexner - SCO's outside law firm -
which were initially reported in the Wall Street Journal and extensively
repeated thereafter. According to Mr. Heise, the General Public License
(GPL), under which the Linux kernel (and much other code) is licensed, is
invalid because it is preempted by federal copyright law. The problem, it
is said, is that the GPL allows unlimited copying of the software it covers
(as long as its other terms are met) while federal law only allows the
creation of a single copy for backup purposes.
This is a breathtaking bit of legal reasoning. In one quick blow, Mr. Heise has blown away every free software license, every proprietary site license, and many other end user agreements that have been made over the years. We tried to discuss Mr. Heise's pathbreaking legal work with him, but he didn't feel the need to return our phone calls. So let's just have a quick look at the law he is talking about. The relevant bit of law is section 117 of the U.S. copyright law. It reads (in part):
§ 117. Limitations on exclusive rights: Computer Programs
(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
In other words, the "backup copy" language is an additional right granted to users of copyrighted material. Nothing in the GPL attempts to restrict this right. The biggest danger posed by Mr. Heise's argument would seem to be the potential for contempt of court findings against those who are unable to control their laughter. (See this article by Eben Moglen for a more complete demolition of the preemption argument). Bizarre statements out of the SCO camp are nothing new. But we should not let the clownish aspect of the SCO Group take attention away from what, increasingly, appears to be part of their real agenda: an attack on the GPL. Consider the latest from CEO Darl McBride, as reported in eWeek:
"In a nutshell, this litigation is essentially about the GNU
General Public License and all it stands for. That license has not
yet been challenged or tested in court, but it is now going to
be. We are also firmly and aggressively challenging the notion that
Linux is a free operating system," McBride said.
The "GPL and all it stands for" has made life difficult for SCO, and they want to take it out. The GPL stands for software which is free, software which is under the control of no company - not even SCO. It stands for a world where nobody can collect large taxes for the concept of "Unix-like systems on commodity hardware." The SCO Group evidently sees such taxes as its birthright. No wonder it wants to destroy "the GPL and all it stands for." This campaign is off to an amateurish start, but it may not stay that way. It bears watching. The GPL is strong, and so are its defenders; it is telling that, over the better part of twenty years, nobody has thought it worthwhile to challenge the GPL in court. The GPL will almost certainly prove far stronger than SCO. But every trip to court has its dangers, and the community cannot affort to be complacent with this one. If SCO follows through on its rhetoric, we have a big and important fight ahead of us. (Log in to post comments)
Aiming at the GPL? Posted Aug 21, 2003 5:23 UTC (Thu) by ksmathers (guest, #2353) [Link] SCO's argument is the GPL's rights waiver is meaningless if the copyright holder doesn't actually agree to waive those rights. Since the rights are reserved under copyright law, copyright trumps GPL. IBM will have to argue that SCO received consideration for the waiver of those rights, or else the license may indeed be considered too one sided to represent a valid contract. That is not true of other proprietary licenses, although it may be true of other open source licenses. The type of consideration that GPL relies on has never been tested in court to my knowlege, so it isn't clear where the court will side. Licenses like the BSD license are even more ephemeral than the GPL, waiving exclusive rights in exchange only for an agreement not to seek reimbursement on warrantee. Proprietary licenses which only further restrict use beyond those already reserved under copyright clearly involve direct consideration in the form of cash in exchange for the licensed uses. Here a court is much more likely to judge that there has been a meeting of minds in the exchange of license for cash, so proprietary licenses are not at all likely to be affected by a hypothetical ruling in favor of SCO.
Aiming at the GPL? Posted Aug 21, 2003 9:27 UTC (Thu) by brouhaha (subscriber, #1698) [Link] Huh? There is no "GPL rights waiver". The GPL doesn't take away any rights, it only grants additional rights beyond what a user would normally get from copyright law. Since it does not impose any restrictions on the rights granted by copyright law, it therefore does not conflict with copyright law.As an example, normally if I write a copyrighted program and distribute a copy to you, under copyright law you have no right to redistribute new copies of it. However, if I license that program to you under the GPL, that grants you the additional right (above and beyond what copyright law provides) to redistribute copies, provided that you meet a few additional requirements. Those additional requirements ONLY affect this GPL-granted redistribution right, and are NOT in any way applicable to your rights under copyright law. This is actually fairly clear if you read section 5 of the GPL: 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.
Aiming at the GPL? Posted Aug 21, 2003 16:14 UTC (Thu) by ksmathers (guest, #2353) [Link] Copyright law reserves certain rights to the author of creative works. In granting additional rights to the consumer, it waives the rights reserved under copyright to the author. Quoting section 5 is irrelevant. The question isn't about the person receiving the rights, but about the person waiving them. If you read to the end of the GPL you will find some good advice: You should also get your employer (if you work as a programmer) or your school, if any, to sign a "copyright disclaimer" for the program, if necessary. Here is a sample; alter the names: Yoyodyne, Inc., hereby disclaims all copyright interest in the program `Gnomovision' (which makes passes at compilers) written by James Hacker.
<signature of Ty Coon>, 1 April 1989 Absent such a disclaimer, the company is assumed to have an interest in works created by programmers that they have hired, as SCO claims to have in the code that is in Linux. Very simply, if SCO argues successfully that it received nothing of value in consideration for its waived rights in releasing their software under GPL, then the GPL may be terminated by the court as an invalid contract for anyone using SCO's code. Is that clear enough?
Aiming at the GPL? Posted Aug 21, 2003 17:00 UTC (Thu) by NAR (subscriber, #1313) [Link] If I understand you well, this argument would make lottery illegal - I buy a lottery a ticket (this is a contract) and if I don't win (pretty big chance :-), I won't get anything for my money, so this is a quite one-sided contract.
Aiming at the GPL? Posted Aug 21, 2003 18:20 UTC (Thu) by ksmathers (guest, #2353) [Link] If I understand you well, this argument would make lottery illegal - I buy a lottery a ticket (this is a contract) and if I don't win (pretty big chance :-), I won't get anything for my money, so this is a quite one-sided contract.First of all, lotteries usually are illegal, and where they are legal they are executed under special laws enacted just for lotteries. Secondly, lotteries, would be better compared to alienation (sale) of an asset than contractually licensed use of an asset. But the main problem with this analogy is that you are looking at it from the wrong side. In a lottery you provide consideration (cash) in exchange for nothing. By providing the consideration, you've pretty effectively demonstrated that you placed value on the lot that was given in exchange. In the case that SCO is making, you receive something of value (SCO source code) in exchange for no consideration of any value. Now, if you had purchased a copy of SCO's Linux then you could make a case that you provided consideration, and that SCO on further reflection has only come after you because it made a bad deal, but that the deal was understood by both parties up front. But in this case you (generally if not specifically) argue that you received the code under GPL and thus should be held to the terms of that license, even though you didn't give SCO anything of value in consideration of their license terms. The court takes a stance of easy come, easy go in cases like this. If you got it for nothing, and the gift giver wants it back, they won't be required to pay you any compensation for its return. I should add that it isn't quite that simple. The consideration that is offered by the GPL is of the stone soup variety. Everyone tosses their code into the mix, and the result is better than any one company or person could have created by themselves; and SCO has clearly benefitted from the stone soup. The problem is that SCO can reasonably argue that they had their own solution that substantially duplicated all of the value in the stone soup, so any benefits received there could have easily been generated from their own code if Linux hadn't been (as they see it) unfairly competing with them using parts of their own code. It is a complex legal argument, and I'm very interested in seeing how it comes out.
Re: Aiming at the GPL? Posted Aug 21, 2003 18:36 UTC (Thu) by Ross (subscriber, #4065) [Link] If I understand your argument correctly, you are saying that the GPL doesnot come into play because the person who licensed the program under the GPL was not the copyright holder. That makes sense, but I fail to see how that invalidates the GPL or has In any case, there is also the matter of SCO releasing the program under
Re: Aiming at the GPL? Posted Aug 21, 2003 19:26 UTC (Thu) by ksmathers (guest, #2353) [Link] That makes sense, but I fail to see how that invalidates the GPL or has anything to do with insufficient compensation to form a contract. I don't think that it would invalidate the GPL. It might weaken specific uses of the GPL, and it would certainly weaken the perception that people have of how safe it is to use GPL'd software, but it would have very little impact on the legal meaning of the license. Much of that kind of weakening has already happened, with people getting skittish about installing Linux. If the SCO lawsuits against users actually succeed, Linux will be hurt pretty badly, and it may take a long time before people start trusting the GPL to protect them from such lawsuits again. But technically, the only invalidation that could be done under any of the legal theories that I've read, is in the applicability of the GPL to the code that SCO claims to own. Personally I consider this something like a divorce case. There is a whole lot of mutual property and one of the partners in that property wants out. It would be really nice if the rest of the community could buy out SCO's interest in the software so that the messy divorce wouldn't become even messier, but there isn't really a consortium to do that, nor does SCO seem to be willing to settle on terms that would be reasonable (ie: no ongoing royalties) to the open source community.
Aiming at the GPL? Posted Aug 21, 2003 19:56 UTC (Thu) by brouhaha (subscriber, #1698) [Link] Incorrect. The GPL does not take away any rights from the author, either. I myself have sold non-GPL licenses for software that I also release under the GPL.Copyright law allows the author to control distribution of his or her work. The GPL is one specific means by which the author can choose to control distribution, but the author does not lose any rights by doing so; he or she is only granting some restricted rights to others. This is an EXERCISE of the author's rights, not a waiver of them. By your reasoning, ANY license under which software is distributed which allows the user to make additional copies beyond those automatically allowed by copyright law could be interpreted as the author waiving rights. For that matter, the same argument could be made about an author of a book; by allowing a publisher to print and sell the book, your argument suggests that the author has waived some rights. (If the author assigns the copyright to the publisher, the situation is somewhat different.) The GPL is not unique in this regard; even some Microsoft EULAs have had clauses permitting additional copies. For instance, the license for Office 95 allowed installation on two computers, a main computer and a home or laptop computer. By granting that right, Microsoft exercised their right to control distribution of their copyrighted work.
Aiming at the GPL? Posted Aug 22, 2003 4:44 UTC (Fri) by ksmathers (guest, #2353) [Link] By your reasoning, ANY license under which software is distributed which allows the user to make additional copies beyond those automatically allowed by copyright law could be interpreted as the author waiving rights. For that matter, the same argument could be made about an author of a book; by allowing a publisher to print and sell the book, your argument suggests that the author has waived some rights. (If the author assigns the copyright to the publisher, the situation is somewhat different.)Most authors except those who are self published waive their rights to exclusively publish their own work, typically in exchange for a cash advance, ongoing royalty, distribution and some degree of publicizing. They often also waive their implicit right to do business with a publisher of their choice by entering into an exclusive agreement. All of these are forms of contract. A contract is predicated on an exchange of value for consideration, and a meeting of minds. I think that SCO has a pretty strong case that there was no appreciable consideration, and that there was no meeting of minds (which is a separate issue), and thus no contract ie: the GPL is invalidated as it applies to SCO code. At least their argument is strong enough that I wouldn't blithely assume that I know what the outcome will be.
Aiming at the GPL? Posted Aug 22, 2003 9:27 UTC (Fri) by brouhaha (subscriber, #1698) [Link] Certainly the GPL is not a contract, exactly because of the meeting of minds problem. However, no one is required to accept the GPL. SCO deliberately chose to accept the GPL and distribute software under those terms. I rather doubt that a court will let them get away with saying "Oops, we didn't know what we were doing", or "We can ignore the GPL because it isn't a contract". After all, if they decide they didn't accept the GPL for their Linux distribution, then they (SCO) could be found to have infringed the Linux kernel copyrights (not to mention other GPL'd software in their distribution) tens or hundreds of thousands of times. The statutory damages alone for that could rival the billions of dollars in damages they're asking from IBM. If actual and punitive damages were also added...No, the GPL isn't a contract. But it doesn't need to be.
meeting of the minds Posted Aug 22, 2003 15:59 UTC (Fri) by giraffedata (subscriber, #1954) [Link] Why is there certainly no meeting of the minds?It looks to me like there's as much meeting of the minds as with any other public (unilateral) contract, and GPL probably meets all the tests of being a legal contract.
meeting of the minds Posted Aug 22, 2003 18:50 UTC (Fri) by brouhaha (subscriber, #1698) [Link] Why is there certainly no meeting of the minds?Because for a contract to be valid, both parties have to receive something of value. With the GPL, the licensee fairly clearly gets something of value, the right to copy the code, but the licensor's value (if any) is very abstract and probably not legally sufficient to make the contract enforceable. However, it doesn't NEED to be an enforceable contract per se. It works fine as a conditional grant of rights. No one can be forced to accept it, but if they don't accept it, they don't get any right to redistribute the GPL'd code. Disclaimer: IANAL.
Aiming at the GPL? Posted Aug 22, 2003 16:35 UTC (Fri) by ksmathers (guest, #2353) [Link] [...] However, no one is required to accept the GPL. SCO deliberately chose to accept the GPL and distribute software under those terms. [...] No, the GPL isn't a contract. But it doesn't need to be.The GPL is a license. Licenses are a subtype of contract. There is no other legal theory for interpreting the GPL than contract law. If the GPL is not a contract then it is legally meaningless. It can be argued that there was a meeting of minds, or as you put it yourself: I rather doubt that a court will let them get away with saying "Oops, we didn't know what we were doing" [...]. There are legal reasons that have been established typically for centuries, for judging whether there has been a meeting of minds, and accepting consideration is one of those, and GPL can be argued to offer a form of consideration. But conversely, SCO may have a good argument that they received nothing of considerable value in exchange for their code (due to their unique position as owner of the UNIX assets), and therefor that they must not be held to have effectively released their code under GPL license. SCO also has a second argument in that they may not have been aware that they were releasing their own code until they found it in the Linux source. If that is the case, then they can also ask that the GPL be invalidated on the basis that there was never an intention to release that code under GPL, but that may be difficult to argue since presumptively they would assume to be aware of the content of products that they release. If SCO does get a court to agree that there was not a contract on this basis, it will probably be because of the precedent set in an 1887 dispute involving an unexpectedly pregnant cow. A good description of the problems for SCO in the second argument is given in this C-Net article.
GPL gives up author's rights Posted Aug 22, 2003 15:49 UTC (Fri) by giraffedata (subscriber, #1954) [Link] You're not seeing the big rights picture. Any time one person gets a right, someone else loses one. The GPL or any other copyright license gives the licensee the right to make a copy and takes away from the licensor the right to keep the licensee from making a copy.Yes, the copyright holder retains other rights, such as the right to keep someone else from making a copy, but he has clearly ended up with less copy right than he had before he issued the license. That's why he normally gets something in return for the license, to compensate for the lost rights. In the case of GPL, he gets, among other things, a promise from the licensee that he will GPL his enhancements of the work. People usually talk about this transfer of rights as "licensing" the right rather than "waiving" the right, but "waiving" is clearly a correct term.
GPL gives up author's rights Posted Aug 22, 2003 18:57 UTC (Fri) by brouhaha (subscriber, #1698) [Link] People usually talk about this transfer of rights as "licensing" the right rather than "waiving" the right, but "waiving" is clearly a correct term.Perhaps it is technically correct, but I have NEVER seen a copyright holder granting a license described in this way before. People don't describe Microsoft's EULA for Windows or Office as a waiver of Microsoft's rights, but in the sense you describe, it would be. Perhaps I misinterpreted it, but the posting to which I was originally responding seemed to be attempting to make a point that the GPL was unique or at least rather unusual in acting as a waiver. I would claim that the GPL "waives" even less rights than the BSD license, and I have yet to see anyone claim the BSD license to be unenforceable because it is a "waiver".
GPL gives up author's rights Posted Aug 22, 2003 21:04 UTC (Fri) by ksmathers (guest, #2353) [Link] Perhaps I misinterpreted it, but the posting to which I was originally responding seemed to be attempting to make a point that the GPL was unique or at least rather unusual in acting as a waiver. I would claim that the GPL "waives" even less rights than the BSD license, and I have yet to see anyone claim the BSD license to be unenforceable because it is a "waiver".To say that a license is enforceable means that neither party to the license can back out of the license after the fact. Thus to be enforceable, SCO must be required to continue allowing the copied sources to be distributed under the terms of the GPL, and anyone in posession of that code must comply with the terms of the GPL if they distribute that source code or binaries based on it. There is nothing unusual about the GPL with regard to its waiver. I have the feeling that we are getting stuck on semantics. Please feel free to substitute license, grant, or exercise for waiver throughout all of my messages if you are unhappy with the use of the word waiver. Regardless of the word you choose, I was attempting to explain why and how SCO can argue the legal rationale that they should not be bound to the terms of the GPL for code that they have rights to, and that originated from UNIX. If anything the BSD license would be even weaker with respect to these arguments than the GPL is, but not because it is a waiver, rather because it doesn't exact any consideration in exchange for the waiver/grant/exercise of rights. The question is whether SCO can back out of a bad bargain. There are two reasons that they can. First they can back out because there was no consideration, so the license can be invalidated. If the court decides that there was consideration then they can back out because of the mutual mistake of both SCO and the public that Linux did not contain UNIX source code. If both arguments fail and if SCO can't come up with some other theory under which the license can be invalidated, then the GPL can be enforced upon SCO.
Killing SCO means killing GPL! Posted Aug 21, 2003 9:28 UTC (Thu) by tpeters (guest, #4579) [Link] The SCO license quoted in the other news note above is "viral" in the same way as the GPL is: any derived work must fall under the same license. If SCO is not allowed to restrict authors of code related to Unix to contribute it elsewehere, then neither can the GPL be enforced - so derived work could be sold under a proprietary license.I believe that SCO indeed is trying to kill Free|Open SW. It does seem unlikely though that they can cash in if the GPL gets killed. I suspect a conspiracy: management gets paid by a third party that is wealthy and has an interest in killing the GPL. It starts with M, ends with t, and has icrosof in the middle.
Killing SCO means killing GPL! Posted Aug 21, 2003 12:27 UTC (Thu) by rjw (guest, #10415) [Link] Don't be an idiot.When you distribute something proprietary mixed with GPL code, you have four choices: In all these cases, you may be liable for $150,000 per violation for acts committed previous to the copyright holder bringing the infringement to your attention. But the copyright holder must prove you knowingly violated if you choose 1), 3) or 4). It would probably be hard. SCO is claiming that their Unix licence still applies after you have replaced the viral code. This requires a complete overhaul of copyright law, and a massive expansion of the domain of derivative works. In reality, the code does not become "tainted". Eg
Killing SCO means killing GPL! Posted Aug 21, 2003 15:46 UTC (Thu) by iabervon (subscriber, #722) [Link] This is not, in fact, the case, because the GPL only sticks to code which you distribute linked to GPL code, and don't recall in response to complaints. Code can only become "infected" by actually releasing it under the GPL. Furthermore, it is not an exclusive license or a copyright transfer, leaving the author of linked code able to do whatever else is desired with it. SCO is claiming that code which you write is a derivative of their code if you have a UNIX license, even if the result does not actually contain any UNIX code, simply because you had the license at the time. Copyright law doesn't see derivative works like that, and the GPL isn't applied that way either.On the other hand, I wouldn't be surprised to see SCO make the claim that the mechanism used by the GPL is the same used by their license.
Wasn't it just a contract dispute? Posted Aug 21, 2003 11:42 UTC (Thu) by dneto (guest, #4954) [Link] If memory serves me correctly, I thought SCO already "clarified" some time ago that it wasn't about copyright issues but instead the whole thing was just a contract dispute between themselves and IBM. Remember, contracts were weapons to be used against your customers and business partners!Oh well I suppose that had to go out the window. Maybe IBM's murmur of a response turned SCO off that line of attack...
Aiming at the GPL? Posted Aug 28, 2003 9:41 UTC (Thu) by russell (subscriber, #10458) [Link] Are they really after the GPL? Maybe there just prodding the community with a cattle prod just to see how well it can respond? Maybe they using the community for cheap research to highlight the weaknesses and strengths of the opposition? Maybe they want to keep everyone distracted from the real issues, whatever they are? That last one would make sense. I bet they haven't even shown there trump cards to the NDA signers.
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