Aiming at the GPL?

Posted Aug 21, 2003 18:20 UTC (Thu) by ksmathers (subscriber, #2353) [Link]

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.