Mail Box: SCO Wins Convert to its GPL-is-Invalid Argument

Linux Business Week ^ | January 30, 2004 | Maureen O'Gara

[rit]

Why is the Free Software Foundation given a pass on the issue of contract enforcement under state law on binding legal agreements like the GPL? The consequences are dramatic indeed for the commercial enterprise environment.

When the Free Software Foundation speaks of unilateral permissions or bare license law enforcing the GPL, they are referring to a long line of case law concerning patents that was summarized by the Supreme Court in General Talking Pictures Corp v Western Electric Co, Inc., 305 US 124,125.

[rit]

We have all heard there is a question on the validity of the GPL. I never understood the detail of the arguement, only that it existed. Mr. Wallace's letter to the editor is a comprehendable interpretation of that legal argument. A question for fellow freepers that are lawyers: Will Mr. Wallace's conclusion withstand?

[rit]

tech ping

[rit]

For clarity, the article appeared as a letter to the Editor in Ogara's linuxgram newletter, which is also online at the source URL given in the post.

[TheErnFormerlyKnownAsBig]

I disagree wholeheartedly.

[rit]

disagree wholeheartedly.
What portion of Mr. Wallace's arguement is factually (as in, "in law") incorrect?

[donh]

SCO is indeed correct that the GPL is invalid.

Linux's copyleft is a contract, and does not need to appeal to copyright law for validity. This is more threadbare, irrelevant smoke and mirrors from the preposterous would-be pouchers at SCO, who want to charge you for public domain software.

[lelio]

It's left to contract law to control the distribution of derivative works.

Well then's its a contract you enter when you agree to use, and then redistribute, the software.

[rit]

Well then's its a contract you enter when you agree to use, and then redistribute, the software.

Understood. His interpretation of the law supporting this, however, indicates that there is a significant problem here. Again, from a factual (as in law, not free beer :), where is his conclusion wrong?

[B Knotts]

The GPL is not a "binding legal form."

As it states rather clearly:

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. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

[B Knotts]

I should clarify; it is not imposing some kind of "binding" legal agreement on unwilling participants.

[rit]

From Eric Raymond's The Cathedral & the Bazaar

Perhaps more importantly in present time, the software licenses that express these community norms in a binding legal form actively forbid Red Hat from monopolizing the sources of the code on which their product is based.

[antiRepublicrat]

He forgets an extremely important point. If you do not agree to the terms of the license, then you have no right to modify and redistribute code. Thus generally only people who consider the GPL valid would do this, agreeing to the license.

Those such as SCO who later change their minds and decide the GPL is invalid are in a lot of trouble. If the GPL is declared invalid, then there was no valid license agreement and SCO had no right to modify and redistribute Linux. They have taken the copyrighted work of persons and redistributed it, or derivatives of it, without any permission or license. They are now fair game for literally hundreds of copyright violation lawsuits.

As usual, Groklaw has an excellent article on this, and what constitutes a license or contract. It's far better than this guy's FUD. Pam Jones is an excellent paralegal, so much that IIRC IBM has actually used her research in their briefs.

[sam_paine]

Pre-existing work: "A"
I'm adding driver code: "B"
Making derivative code release "C"

---

The copyleft agrrement says that I can use, modify, and redistribute "A" with modifications "B" iff I agree to grant the restrictions of the copyleft ot my work "B" as well.

Therefore, I COULD, as this Insight argument goes, create a noncopyleft derivative version, but I would not then incur the right to distribute the pre-existing "A" part, making my derivative code a dead ender.

The question is, whether of not the current "C" derivations relied on a tree of development that was pure copylefted code, right?

Which is the heart of SCO's claim, that Linux is tainted with non copyleft code.

This Insight argument tries to refute the entire possibility of copylefting, which is silly. The argument, is, always has been, and I HOPE remains whether or not the copyleft has been violated, not whether or not it can be valid.

If anti-FSF folks succeed in invalidating the GPL concept, then we've really lost a wad.

[antiRepublicrat]

What portion of Mr. Wallace's arguement is factually (as in, "in law") incorrect?

Read the Groklaw take on this. It's an excellent rebuttal, written even before this letter.

[B Knotts]

Yes, it is binding, but only on those who actively accept it by choosing to redistribute it. The vast majority of users of GPL'd software do not ever need to accept the license.

[antiRepublicrat]

Linux's copyleft is a contract, and does not need to appeal to copyright law for validity. This is more threadbare, irrelevant smoke and mirrors from the preposterous would-be pouchers at SCO, who want to charge you for public domain software.

First, it is a license and not a contract. Second, the software is not public domain, but remains the copyright of the contributors for their respective contributions. SCO wants to be able to use the software without honoring the license, making them no better than any other software pirate out there.

[B Knotts]

I worded that badly. Clearly, the GPL is a "binding legal form." What I was attempting to point out is that it is not lurking somewhere in the background, waiting to pounce on unsuspecting users like some kind of super-EULA.

The people who are bound by the GPL are those who have voluntarily accepted it.

[ikka]

If this is the case, then no EULA (end user license agreement), from Microsoft, IBM, or anyone, is valid. The GPL is a EULA.

[TheErnFormerlyKnownAsBig]

I don't know. I don't understand a word of it. LOL

[lelio]

Thanks for the informative link. One of the highlights from the article:

What happens if you violate the terms of a fishing license? For example, the license may restrict how much fish you can catch on a particular day or what kinds of fish you can keep, what sizes, etc. Suppose you violate the terms of the license. What happens? You lose your license to fish. There may be a fine to pay, right? That's essentially the same thing that happens under the GPL, except it's nicer, because the company gets to choose what it wishes to do under the terms of the GPL. If it still isn't resolved, and it goes to a judge, however, it's enforced as a violation of copyright law, not contract law.