Criminal Copyright Infringement

Posted Mar 2, 2004 17:11 UTC (Tue) by JoeBuck (subscriber, #2330) [Link]

No, as Eben Moglen has explained, you have it exactly backwards. The copyright owner doesn't have to argue that the GPL is valid. What happens is this: the copyright owner says "Judge, this person is distributing my copyrighted work without my permission. Make him stop." Notice that there is no mention of the GPL at this point. The defendent then must say "But I have a license" and pull out the GPL. This forces the defendant, not the copyright owner, to defend the GPL, because only the GPL gives the distributor any rights to distribute. Moglen then points out the line from clause 4:

You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

At this point, the violator's attorney usually tells the violator that the FSF's case is slam-dunk, and they should negotiate terms of surrender. And this is exactly what has happened in about 100 cases over the last decade.

But in SCO's case, they have not only violated the GPL (by trying to sublicense the code, that is, to require an additional license), they argue that the GPL is invalid. If the GPL is invalid, then SCO has admitted to copyright violation, as only the GPL gives them any permission at all to distribute the Linux kernel, or Samba, or GCC, or all of the other GPL-covered works they distribute.