Examining an attack on the GPL [LWN.net]

Examining an attack on the GPL

Posted Nov 24, 2003 22:46 UTC (Mon) by vblum (guest, #1151)
In reply to: Examining an attack on the GPL by jamienk
Parent article: Examining an attack on the GPL

I respectfully disagree, after reading the license: There is nothing in the GPL that restricts the original licensor of a piece of code to 1) and 2). Yes, paragraph 4 or the GPL says that your rights to someone else's code under the GPL will be automatically terminated if you in non-compliance with the GPL.

But, it does not speak about what happens about GPL'd code that you have knowingly incorporated and distributed for some time.

One may very well interpret GPL Sect. 2b and Sect. 6 together with the implicit acceptance clause of Sect. 5 of the GPL as your acceptance to make available your already distributed modified product under the terms of the GPL of the original licensor.

I hate to side with the writer of the original inflammatory press release on that one - but the language of the GPL could be interpreted that way, and nothing which I see prevents an author of GPL'd code to demand compliance from a licensee with regard to already released code. But, IANAL.

And yes, Mr Henry is completely wrong in that anyone could force the opening of the code, IMHO. But the original GPL licensor might.

The message is simply, if you do not want to make your code available, don't use GPL'd code. No big deal, and especially nothing viral here.

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Examining an attack on the GPL

Posted Nov 24, 2003 23:09 UTC (Mon) by BrucePerens (subscriber, #2510) [Link]

Well, placing your infringing code under the GPL is an option. It's one of the ways you can remedy an infringement. The other ways are to cease infringing by ceasing distribution of the GPL code, or to negotiate a separate license with the copyright holder(s).

And then, you may have some damages as a result of the infringement.

It seems very unlikely that a judge would actually force someone to GPL their code if that someone was willing to take one of the other paths to remedy infringement.

Bruce

Examining an attack on the GPL

Posted Nov 24, 2003 23:19 UTC (Mon) by vblum (guest, #1151) [Link]

I agree with you regarding the likelihood: It's rather unlikely that a GPL author could force Evil Software Company X's infringing code into the open.

But, Mr Henry is evidently a lawyer. There is nothing factual in the GPL which _prevents_ a GPL copyright holder (e.g. FSF) from suing for exactly that, instead of other damages. The judge's decision is another matter, but technically it's not predetermined.

And, who knows what side circumstances might apply that render the payment of damages, negotiating a separate agreement etc. impractical in a given case.

Yet again, just to make sure: There is nothing viral about this anyway. Whoever falls for this virus has to do so maliciously, as for the famous text virus.
("I am a virus. Please copy me (by hand!) to every email address in your address book. Thank you very much.")

Examining an attack on the GPL

Posted Nov 25, 2003 2:11 UTC (Tue) by Ross (subscriber, #4065) [Link]

There is nothing specific in the GPL about that. People can sue
for just about any reason and just about any result is possible.

In a lawsuit with two non-free programs it is completely
possible that instead of monetary damages the winner might be
granted the copyright interests in the illegally distributed
program which were owned by the loser.

There are lots of ways to settle and there are lots of ways for
a judge or jury to award damages.

Examining an attack on the GPL

Posted Nov 25, 2003 6:00 UTC (Tue) by BrucePerens (subscriber, #2510) [Link]

It's also possible that the judge could repeal the law of gravity or legislate Pi equal to 3.0 . But not likely. There are appeals courts to handle much smaller breaches than that.

Bruce

Examining an attack on the GPL

Posted Nov 25, 2003 14:48 UTC (Tue) by vblum (guest, #1151) [Link]

Err ... white flag. I am almost ready to declare defeat, and do so here re: also the remainder of my comments in this thread.

I guess what I am trying to say is this:

I can perfectly see how a lawyer could read the GPL to be intended to force you to open your infringing code after the fact. Pars 2b, 6, together with 5 allow a lawyer to construe such an argument before a court with great ease. Whether it holds up is another matter, but the wording (esp of par. 5) sounds as if it were preparing the ground for such an outcome.

Most legal professionals are not Eben Moglen; most of them probably even believe in the legality/enforceability of "click-to-accept" after-purchase shrink-wrap licenses, after all; and if need be, they would probably even sue on behalf of a GPL client to force someone else to open their code, either; as long as it pays.

My conclusion from all this is that if the GPL _does not_ intend to force anyone to open up infringing code after the fact (which it evidently does not, I know!), it should best say so explicitly; that would immediately end confusion such as the above press-release.

Examining an attack on the GPL

Posted Dec 4, 2003 11:47 UTC (Thu) by Wol (guest, #4433) [Link]

"There is nothing factual in the GPL which _prevents_ a GPL copyright holder (e.g. FSF) from suing for exactly that, instead of other damages."

And don't forget. Replace FSF with IBM, and assume that the software in question is OpenServer, and/or UnixWare, and you have EXACTLY that scenario.

IBM *HAS* sued for copyright infringement, and HAS asked the judge to place those two programs under the GPL should any infringement be found to have occurred!

Cheers,
Wol

Please tell me where IBM makes that claim

Posted Dec 4, 2003 14:12 UTC (Thu) by brokeninside (guest, #8722) [Link]

I am aware that IBM is suing the SCO Group (TSG) for copyright infringement over TSG's continued distribution of the Linux kernel which contains IBM copyrighted code.

And I am aware of IBM suing TSG for infringement of IBM owned patents in pretty much the entire product portfolio purchased from SCO. As part of this counterclaim, IBM is asking that TSG be prohibited from distributing OpenServer, UnixWare, etc.

I am not aware of any IBM counterclaims that are suing for release of TSG proprietary sofware purchased from SCO under the GPL.

As most of the documents for the case can be found at Groklaw and/or IBMSCOWeThey, would you please point me to where in IBM's counterclaims against TSG that IBM is suing for TSG proprietary code to be released under the GPL?

Examining an attack on the GPL

Posted Nov 24, 2003 23:13 UTC (Mon) by jamienk (subscriber, #1144) [Link]

Again, Eben Moglen explained this above. The GPL is a license (not a contract). When it comes to violating a license that allows copying or distributing a copyrighted work, the copyright holder has legal recourse to ask a judge for damages or to stop the infringement. (If the violator abides by the GPL -- by, in this case, releasing the code in their derived work -- then there is no longer any license violation.)

This isn't in the GPL itself. This is how license violations of copyrighted materials are handled by US courts.

Examining an attack on the GPL

Posted Nov 24, 2003 23:24 UTC (Mon) by vblum (guest, #1151) [Link]

Hm. I see that point more clearly now.

Still paragraph 5 is rather threatening in combination with 2a and 6 (and rightfully so). Why the appropriate "damages" should not be the forced opening of infringing code in a given case escapes me.

But, I've posted too much already! Thanks for the answers!

Examining an attack on the GPL

Posted Nov 25, 2003 0:18 UTC (Tue) by josh_stern (guest, #4868) [Link]

Is there some reason why a company that (perhaps unknowingly) steals GPL code for use in its proprietary product is more likely to have to lose a proprietary interest in their own contribution than a company that (perhaps unknowingly) steals code with some other license? For concreteness, say Rogue Wave code is somehow found in their product and they never bought a Rogue Wave license. Is the worry that "some judge" is likely to be much more punitive in the GPL stealing case?

If the point here is that GPL should actually be treated like a real license then I'm sure the FSF and others are in favor of that concern.

Examining an attack on the GPL

Posted Nov 25, 2003 1:22 UTC (Tue) by vblum (guest, #1151) [Link]

No 100 % compelling reason. BUT, one might argue that the nature of GPL makes the
argument much much easier to force code opening as a way of remedying damages. No
need to motivate it first ... it's already right there.

Examining an attack on the GPL

Posted Nov 26, 2003 16:29 UTC (Wed) by josh_stern (guest, #4868) [Link]

What the company with proprietary code and a court would care about is the overall monetary value of any awarded damages. Courts don't work like interior decorators and just award damages willy-nilly based on a coordinating "theme".

Examining an attack on the GPL

Posted Nov 30, 2003 12:04 UTC (Sun) by IkeTo (subscriber, #2122) [Link]

Is there some reason why a company that (perhaps unknowingly) steals GPL code for use in its proprietary product is more likely to have to lose a proprietary interest in their own contribution than a company that (perhaps unknowingly) steals code with some other license?

No. But that's an inappropriate comparison. You won't normally see the proprietary code lying there in web sites waiting for you to download without you signing an agreement, contract, whatever.

There are reasons why proprietary software writers would object GPL, and it is perfectly legitimate: GPL is written to crush them. While I'm perfectly for GPL and 100% against proprietary software, I think GPL software writers still have an obligation to remind people from falling into the trap and become forced to abandon their projects (or GPL their code). I mean, while the language of GPL is as clear as crystal, and while all the rules for using the software is clearly written there, we still shouldn't try misleading proprietary writers to believe that GPL is very safe to use for their project--and only after their projects started, tell them that they are violating the license and force them to stop. It's better to get them warned at the beginning.

If GPL wins over proprietary software, I'd much rather it win by a fair competition, rather than by misinformation by software writers.

Examining an attack on the GPL

Posted Nov 25, 2003 11:05 UTC (Tue) by dmantione (guest, #4640) [Link]

> The GPL is a license (not a contract).

Is there a difference between a license and a contract in US laws?

In my own country, the Netherlands, the law doesn't speaks about licenses and
contracts. Instead, it speaks about agreements between two parties and a
license or contract is just a proof of an agreement, not the agreement itself. (I.e.
an oral agreement can has the same legal status as a written contract, if you can
prove it).

Because of that, a license which you find inside packaged software and you have
automatically agreed to by opening the package is void; there is no proof the one
who opened the package agreed to it.

On the other hand, someone who copies GPL software must have clearly read
the license, because otherwise he is not allowed to copy. In this case, the license
is a proof of an agreement between two parties.

Examining an attack on the GPL

Posted Nov 25, 2003 16:28 UTC (Tue) by kay (subscriber, #1362) [Link]

> Because of that, a license which you find inside packaged software and you have
> automatically agreed to by opening the package is void; there is no proof the one
> who opened the package agreed to it.

this void only the "accept by open", so you can return the software if you dont agree with the licence inside.

if you use the software, the licence is accepted.

Examining an attack on the GPL

Posted Nov 26, 2003 9:13 UTC (Wed) by dmantione (guest, #4640) [Link]

You do not need a license to use software, just like you do not need a license to read a
book. You do need a license to install it, because that is copying, which you are only
allowed to do with permission from the author.

license vs contract

Posted Nov 28, 2003 17:22 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

In my own country, the Netherlands, the law doesn't speaks about licenses and contracts. Instead, it speaks about agreements between two parties and a license or contract is just a proof of an agreement, not the agreement itself.

Then you're just translating to English wrong. In English, "license" isn't a document or evidence of something -- it's a synonym for "permission." It is, by the way, very common to contract with someone to give you a license in exchange for something else (e.g. money).

It's hard for me to believe that Dutch copyright, patent, and other law doesn't have some word that means "license" in this way.

FYI, in American law, "contract" and "agreement" are synonyms and there is no good word for the proof of the contract. It's just called "documentation of the contract," or "evidence of the contract," or something like that.

Examining an attack on the GPL

Posted Nov 25, 2003 8:19 UTC (Tue) by iabervon (subscriber, #722) [Link]

It is not at all significant to read the GPL to deal with this situation.
In this situation, you've infringed on the original owner's copyright by
virtue of using it without a license (since you didn't accept the GPL,
and may not have actually realized you were offered the GPL). At this
point, the original owner can offer you any license (assuming the
original owner isn't under any particular obligations); this doesn't mean
you have to accept the license. Furthermore, there's no reason the owner
couldn't offer you the GPL at this point, having never done anything with
the GPL previously. If you refuse any license, it falls to the court to
determine a penalty, based on copyright law and not on the terms of any
license you might be offered, before or after the infringement.

In fact, there's no particular reason that, if Microsoft found that you
had violated the commercial licensing terms of some commercial code that
they no longer cared much about, they couldn't at that point offer you
the GPL, putting you in exactly the situation of having incorporated
GPLed code (and, if you didn't accept the GPL, there's no reason they'd
have to offer it to anyone else, either).