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IBM brings the GPL to court
IBM's memo in support of its motion for a partial summary judgment on its
copyright counterclaims is now available, via Groklaw, in plain
text format. This one is truly worth a read; it is far shorter than
the complex memo for IBM's other motion (the attempt to do away with the
breach of contract charges), and it shows just how a GPL infringement case
can be brought to court. SCO, which has made its disdain for the GPL clear
over the last year and a half, is going to have an interesting time trying
to dance around this one.
Summary judgment motions depend on the lack of a dispute over the relevant facts, so IBM leads off with its list of the facts which, it says, are undisputed. The very first one is a statement that Linux development started with Linus; this, of course, is very much a disputed fact in many circles. The SCO Group, however, is unlikely to have a great interest in ensuring that the GNU Project gets proper credit for its work, and thus will probably not make a big deal out of this issue in court. IBM goes on to list its contributions to Linux; these include the Enterprise Volume Management System (which was never actually merged into the kernel), PowerPC64 support, the Omni print driver, JFS, PCI hotplug support, and more. Copyrights for all of these contributions have been registered. Each contribution is also listed with the exact number of lines of code; IBM is showing that it is possible to be specific about such topics. IBM points out just where SCO has distributed copies of each of the claimed contributions to Linux. The final set of "undisputed facts" has to do with the GPL and SCO's actions relative to the GPL. IBM notes that it has not authorized the copying, modification, or distribution of its code except under the terms of the GPL. SCO, meanwhile, has denied the validity of the GPL and has attempted to add restrictions to IBM's GPL-licensed code by way of its lawsuit threats and "Linux license" scheme. Several paragraphs describing SCO's activities have been redacted from the publicly-available version of the memo. It would be most interesting to know what IBM is arguing that cannot be made available to the world as a whole. With the "undisputed facts" in place, IBM moves on to the "argument" portion of its memorandum. The first step is to reiterate that IBM owns its copyrights, and that SCO has, beyond doubt, redistributed the code. The full memo includes a "side-by-side comparison" of IBM's code with the version that appeared in SCO Linux Server 4.0. This step may have been a bit more than was truly necessary, given that SCO does not dispute that it distributes Linux, but IBM is being sure that all the bases are covered. IBM still has to show that SCO's copying was copyright infringement, however. So that's where the argument goes next:
As stated, IBM has not authorized the copying, modification, or
distribution of the IBM Copyrighted Works, except pursuant to the
terms of the GPL or LGPL. SCO does not have permission or any
license to copy, modify, or distribute the IBM Copyrighted Works
for at least two independent reasons: (1) SCO has repudiated
and disclaimed the GPL (and thus also the LGPL) as a source of
legal rights, and (2) SCO has breached the GPL and LGPL and
thus lost any rights it might have had under the GPL or LGPL.
The first argument is interesting. IBM has no trouble citing statements from SCO challenging the validity of the GPL; some of them appear in SCO's own filings in the same case. But the argument that, by publicly trashing the GPL, SCO has forfeited its right to distribute GPL-licensed code does not convince everybody. The case law on the subject appears to be inconclusive; there is no real way to know how the court will treat this argument until the time comes. The second part of the argument - that SCO has flat-out breached the terms of the GPL - is more straightforward. SCO has very clearly attempted to impose additional restrictions on GPL-licensed code, and that is not an action that the GPL allows. IBM should have little trouble establishing this breach as a fact. Inquiring minds are most curious to see how SCO will respond to this argument. SCO's lawyers would appear to have these options:
The third alternative above is the only one which holds out any hope for SCO in this case. Given that the U.S. courts have, in general, not been hospitable to the idea of rolling back the rights of copyright holders, it seems unlikely that this court would take a different tack now. It is also hard to see how the court could strike sections of the GPL without creating grave difficulties for many other software licenses. So SCO is unlikely to prevail in an attempt to disable the operative terms of the GPL - in the long term. What SCO might be able to do is to create enough confusion around the issue that the judge is unable to hand down a summary judgment. In that case, IBM would have to argue its case in a full court trial next year, and SCO would get some breathing room to continue its campaign. Such an outcome seems improbable, however. The facts seem clear, and SCO appears to be very much on the wrong side of them. In your editor's untrustworthy opinion, IBM seems much more likely to prevail on this motion than on its companion motion regarding the breach of contract claims. That result would clearly paint SCO's actions as an infringement of copyright, and it would put an end to SCO's attempts to put a tax on Linux. At the same time, it would put an end to claims that the GPL has never been tested in court. That would, needless to say, be an interesting day. (Log in to post comments)
IBM brings the GPL to court Posted Aug 26, 2004 1:55 UTC (Thu) by bronson (subscriber, #4806) [Link] ...Linux development started with Linus; this, of course, is very much a disputed fact in many circles.No it's not. This case is not about sort/gcc/automake, etc. It's about the Linux kernel, which was most certainly started by Linus.
Linus authorship of Linux is not in dispute Posted Aug 26, 2004 2:26 UTC (Thu) by bignose (subscriber, #40) [Link] > Linux development started with Linus; this, of course, is very much a> disputed fact in many circles.
Which circles? This could potentially mean Andrew Tannenbaum, but he has explicitly said recently that Linus *did* author Linux from scratch.
> The SCO Group, however, is unlikely to have a great interest in ensuring
Giving GNU proper credit has nothing to do with authorship of Linux. The program named Linux was written initially by Linus Torvalds; the GNU project makes no claim to the contrary. You seem to be, once again, confusing the operating system (called "GNU") with the kernel (called "Linux").
Linus authorship of Linux is not in dispute Posted Aug 26, 2004 8:59 UTC (Thu) by hppnq (guest, #14462) [Link] Giving GNU proper credit has nothing to do with authorship of Linux. The program named Linux was written initially by Linus Torvalds; the GNU project makes no claim to the contrary. You seem to be, once again, confusing the operating system (called "GNU") with the kernel (called "Linux").It depends on how you read this. Apparently, you are wearing your GNU glasses. To me, it seems undisputed that the development of the Linux kernel and the GNU project are intimately related through the GPL. Which is what this whole article is about. Having said that, I am not sure what Jon is trying to say here. ;-) We could always ask him, right? And much more importantly, I missed the fourth argument SCO could and probably will bring forth: the dog ate their GPL.
No dispute, because IBM defines "Linux" as "Linux kernel". Posted Aug 26, 2004 14:23 UTC (Thu) by dwheeler (guest, #1216) [Link] There's no dispute. In this document, IBM defines "Linux" as "Linux kernel". To my knowledge, the GNU folks are happy with that definition. And although SCO may claim that something it owns has been inserted into the Linux kernel, nobody has presented any evidence that the Torvalds didn't start development of the Linux kernel.ADTI may rant that that Linux was "stolen" from Minux, but the only actual examination to check that (the one they commissioned) disproved that assertion quite convincingly, and all the actual principles agree that Linux was developmed independently; case closed. And that would be irrelevant to the SCO case anyway; only copyright holders can bring suit, so even if Linux was stolen from Minux (a claim convicingly disproven), SCO doesn't own Minux, so it's moot.
No dispute, because IBM defines "Linux" as "Linux kernel". Posted Aug 27, 2004 7:26 UTC (Fri) by hppnq (guest, #14462) [Link] That's Freud for you. ;-)
IBM brings the GPL to court Posted Aug 26, 2004 6:44 UTC (Thu) by hamjudo (subscriber, #363) [Link] The first argument is interesting. IBM has no trouble citing statements from SCO challenging the validity of the GPL; some of them appear in SCO's own filings in the same case. But the argument that, by publicly trashing the GPL, SCO has forfeited its right to distribute GPL-licensed code does not convince everybody. The case law on the subject appears to be inconclusive; there is no real way to know how the court will treat this argument until the time comes.I am looking forward to SCO's response to paragraph 62. This is the fun part of the first argument where IBM lists bunches of SCO quotes. If SCO doesn't respond to that paragraph, then they just lose by default. So they're trapped. They must respond, in writing for the court, and for the rest of the world to see, that the GPL is constitutional, is enforceable and does apply to everyone who distributes software under the GPL, even SCO. SCO will have to admit that they stuff that they said earlier to the contrary, was bogus. The response to the second argument will not be nearly as entertaining. I'm not a lawyer, but it doesn't look to me like they've got a chance using normal logic. I don't know what they might do, but there's a good chance it will take an oversize memo that doesn't make sense. Their only hope is that the judge will make a mistake that they can appeal.
IBM brings the GPL to court Posted Aug 26, 2004 11:21 UTC (Thu) by danw6144 (guest, #14336) [Link] "Summary judgment motions depend on the lack of a dispute over the relevant facts, so IBM leads off with its list of the facts which, it says, are undisputed"
The whole article is based upon this premise but it's not the whole story.
56 (c) Motion and Proceedings Thereon.
See the "and that the moving party is entitled to a judgment as a matter of law" part?
You can correctly argue no genuine issue of facts all day long but if you
Surely readers have noticed that the motions filed in SCO v. IBM all vigorously and copiously cite to decisions of the Federal Courts for "legal authority" to support the facts of the case.
The "TABLE OF AUTHORITIES" in the single IBM rule 56 motion above cites eighteen cases.
In the history of the GPL since RMS envisioned it, how many citations to Federal case authority have been promulgated by the Free Software Foundation's legal representives to support its validity? Where has the Free Software Foundation's Eben Moglen cited to Federal case authority
The GPL has been vigorously contested in the media for years yet nary a citation to Federal case authority has ever been offered by FSF counsel.
Here's a challenge for GPL supporters: Find and cite to one (1) Federal case law decision that provides authority that the GPL is a "license and not a contract" and therefore needs no enforcement under contract law.
Daniel Wallace
IBM brings the GPL to court Posted Aug 26, 2004 11:34 UTC (Thu) by hppnq (guest, #14462) [Link] What the hell are you ranting about? *sigh* If only I had a "delete" button next to my troll switch.
Delete button for LWN Troll postings ... Posted Aug 26, 2004 12:01 UTC (Thu) by kay (subscriber, #1362) [Link] NO problem, get Nuke Anything for your Mozilla/Firefox,right klick on the troll posting and select "remove this object" :-) Kay
Yaa -hoo! Posted Aug 26, 2004 15:32 UTC (Thu) by jre (guest, #2807) [Link] Great tip!It took ten seconds to install, and works like a charm. The only trick is positioning the mouse correctly at the left of the troll post. With practice, it's a snap. Thanks a ton!
IBM brings the GPL to court Posted Aug 28, 2004 19:29 UTC (Sat) by rickmoen (subscriber, #6943) [Link] hppnq wrote:What the hell are you ranting about? Wallace posts exactly that sort of long, bizarre, legalistic "GPL is invalid because it's a defective contract, not a copyright grant" screed to the OSI license-discuss list on average every few weeks. Everyone's gotten weary of dissecting his arguments after multiple rounds -- mostly because he ignores you and resumes the same act a while later without change -- so he typically gets no reply any more. He appears to be a law buff with a fixation on attempting to apply the law of contracts anywhere and everywhere. Rick Moen
IBM brings the GPL to court Posted Aug 30, 2004 15:50 UTC (Mon) by jre (guest, #2807) [Link] ...he ignores you and resumes the same act a while later without change ...But he can get downright huffy when this is pointed out.
IBM brings the GPL to court Posted Aug 26, 2004 16:34 UTC (Thu) by vmole (guest, #111) [Link] Here's a challenge for GPL supporters: Find and cite to one (1) Federal case law decision that provides authority that the GPL is a "license and not a contract" and therefore needs no enforcement under contract law. Just one (1). Is this too much to ask for support of a specious claim? Sigh. Moglen has repeatedly said that the reason there is no US case law on the GPL is that none of the GPL violators has been willing to take the case to court. Not one. Every single one of them has agreed to either follow the requirements of the GPL or stop distributing GPL'd code. All of them. The FSF can't bring a case to court unless someone is willing to oppose them, and attempt to break the GPL. This, to me, sounds like fairly good evidence that most competent lawyers think the GPL is valid. As a more general level, there is a lot of license and contract case law. Just because a particular license has not been through a court case does not mean it's invalid. Is it too much to ask that trolls be able to read and comprehend basic English? Is it too much to ask that trolls be able to follow basic logic? Apparently so...
IBM brings the GPL to court Posted Aug 27, 2004 12:25 UTC (Fri) by The_Flatlander (guest, #19245) [Link] Sorry, in advance I just can't resist.
Can anyone, anywhere cite one single instance of a Federal Court upholding the "law" of Gravity? Then why do you persist in your ridiculous claim that it is a law? At best Gravity is a "suggestion", and it is far from proved. Where is the Graviton? Where are Einstien's "Gravity waves"?
I think it quite likely that at any moment all you foolish trolls will simply fly off the face of the Earth since the "rule" that holds you to it is entirely hypothetical.
The Flatlander
Again, I apologize. I just can't resist an argument that *looks* like an argument, but is instead, a simple red-herring. (Penguins *like* herring.)
IBM brings the GPL to court Posted Aug 26, 2004 14:44 UTC (Thu) by Alan-Marshall (subscriber, #4572) [Link] "The development of Linux began when an undergraduate student at the University of Helsinki, Linus Torvalds, set out to create a new, free operating system. (Ex. 1 (SCO Linux Introduction Version 1.2) at 1-5.) "
Here is my understanding:
IBM brings the GPL to court Posted Aug 27, 2004 17:25 UTC (Fri) by ekj (guest, #1524) [Link] Good point.I think any judge will agree that something which one plaintiff states in writing, and the other plaintiff agrees with in writing is an undisputed fact. Atleast, if having both parties agree to something does not make it undisputed, then I'd like to see what the definition of "dispute" is. IBM seems to do this a lot in this motion; use SCO statements as facts supporting their side. It is (should be atleast) hard for SCO to argue that they dispute something which is a direct quote from their own written statements.
IBM brings the GPL to court Posted Aug 27, 2004 23:15 UTC (Fri) by giraffedata (subscriber, #1954) [Link] I think any judge will agree that something which one [party] states in writing, and the other [party] agrees with in writing is an undisputed fact. Nope. That's not what the rules of evidence in US courts say. It would have to be not only in writing, but in a court filing that specifically stipulates it. Unless I'm mistaken, the document in question isn't that. I don't think it's even evidence in the case (sounds like hearsay to me). A party is allowed to change his mind, to discover his mistakes, and to use words differently in different contexts. In fact, a party is allowed to lie outright and, once in court, switch to the truth. What will make the fact undisputed is when SCO answers the motion and says, "Yep, we all agree on that." If SCO instead says it doesn't agree (and the judge thinks it's a material fact), the case has to go to trial. And then SCO's belief about who started Linux won't be relevant -- all that will be relevant is who really did start Linux.
IBM brings the GPL to court Posted Aug 26, 2004 19:09 UTC (Thu) by iabervon (subscriber, #722) [Link] I suspect that SCO will try the second defense. As far as I can tell, they've never specifically stated what their license is supposed to be good for, and they can always say that it is not actually necessary for either IBM's copyrighted copy or any of SCO's works derived from it. Sure, it's a complete divergence from their press releases, but their court appearences have generally been that way.
IBM brings the GPL to court Posted Aug 28, 2004 0:31 UTC (Sat) by giraffedata (subscriber, #1954) [Link] Argue that SCO has adhered to the terms of the GPL. The facts say otherwise in the strongest of terms, however; every time SCO states that Linux cannot be used without an additional license - while still distributing the code in question - is a clear breach of the license.Actually, I don't follow that one. First of all, did SCO demand payment from anyone to whom SCO distributed Linux? Or who got it from someone to whom SCO distributed Linux? If not, SCO has met the conditions of GPL and has a continuing right to distribute the copy of Linux that SCO took under GPL. Demanding royalties for software that someone else distributed, even though it may be identical to what SCO is distributing, doesn't affect SCO's distribution rights. Second, let's look at code that SCO really did distribute, presumably under the permission of GPL. GPL doesn't say you can't sell the software. It doesn't say you can't demand payment in cash, indemnity, forbearance, or anything else. The only thing it says is that when you do hand over the code, you must hand over a GPL (the right to redistribute, get source code, etc.) with it. Finally, does the GPL say anything about making public statements or sending bills? I thought it just talked about real behavior, such as giving someone a copy of the code without source or without a GPL. Any user who has the source and GPL can simply ignore the bills and scary statements.
IBM brings the GPL to court Posted Aug 30, 2004 7:12 UTC (Mon) by hppnq (guest, #14462) [Link] It's about licenses, not money. The argument is, that SCO can hardly claim that they have adhered to the GPL, because they have claimed rather noisily that you need a SCO license if you want to use Linux, thereby invalidating the GPL.
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