Guest post by The GNU General Public License (version 2) is one of the most widely used open source licenses in the world. The GNU GPLv2 is commonly used in Linux distributions and open source applications. Yet, despite being widely used for decades, the GPLv2 has not been tested much in the legal system. Most GPL violations do not result in a trial and so the power of the license has remained largely untested. That is about to change. As OpenSource.com posted,
This lack of court decisions is about to change due to the five interrelated cases arising from a dispute between Versata Software, Inc. (“Versata”) (its parent company, Trilogy Development Corporation, is also involved, but Versata is taking the lead) and Ameriprise Financial, Inc. (“Ameriprise”)
It is expected the court cases will help define what qualifies as a derivative work and how the GPL affects software patents along with other details of how the license is interpreted.
Wallace vs FSF scratch the surface in 2006. This will be interesting.
The judge hearing that case gave Wallace 4 tries to state a case/cause of action. He ultimately failed.
As a result he had to pay the FSF’s costs.
So, no, not even a scratch.
The GNU GPL has been in court in the USA (Nusphere 2002, Wallace 2005, BusyBox 2007, Cisco 2008), France (Free 2011), Germany (netfilter 2004, D-Link 2006), South Korea (trade secrets 2005), and probably others.
It’s actually the only free software licence which has had substantial testing in courts.
Spoiler alert: its clauses were found valid each time.
It has also been examined by the European Commission during Oracle’s acquisition of MySQL.
I’m not sure I’d agree that “the GPLv2 has not been tested much in the legal system”.
(And if we expand “the legal system” to include doctrine, then there are a dozen books by lawyers examining it, there are law firms specialising in it, and there are multiple legal conferences per year which discuss it…)
It hasn’t been tested in the US, though. The cases you mentioned were all settled out of court:
Nusphere 2002:
Nusphere and Uppsala reached an out-of-court settlement. No ruling was issued regarding the validity of the GPL
Wallace 2005:
Alleged the GPL constituted price fixing, not if it was valid or not. Court dismissed it on the grounds that Wallace had not been injured by, nor was able to show the market had been injured. No ruling was issued on tha validity of the GPL
Busybox 2007:
SFLC (on behalf of two Busybox contributers) dismissed the case against Monsoon Multimedia on the condition that they would comply with the GPL. No ruling was issued regarding the validity of the GPL.
I found one that came close to being tested, but it wasn’t the GPL:
Katzer 2006:
The defendant argued that violating an open source license was a matter of contract law, and didn’t constitute a copyright violation. District Court agreed, but the ruling was overturned by the Circuit Court of Appeals. After this ruling, the case was settled out-of-court. The only ruling made regarding the validity of an OSS license (In this case, Artistic License 1.0), was that the matter could be tried as a copyright claim. The claim itself wasn’t actualy tested.
I agree with those facts, but AFAICT, those US court cases still suggest that it’s valid. Each case was an opportunity for the defendant to claim the GPL didn’t apply, or that its requirements weren’t binding, and each case gave the judge the chance to look at the licence and throw it out of court if it was nonsense.
Taking a court case to the end is expensive (and rare, IIUC), so the defendants agreeing to settle each time and pay up suggests that they knew they didn’t have a case. They listened to their lawyers and the judge (what s/he said and didn’t say) and decided to pay up and comply instead of challenging the GPL.
A case hasn’t been taken all the way, but this case hasn’t gone all the way either. The article says it’s “in the pleading stage”. Do you know if that’s further than the previous cases have gotten?
Unfortunately, the courts cannot look at the facts of out of court settlements as a source of precedence, so as far as legal matters are concerned, that’s the equivalent of not being tested.
You can argue that there is a historical precedent in out of court settlements to predict how the parties in this case are likely to act, but it’s not a legal precedent that can predict how the court is likely to rule.
> that’s the equivalent of not being tested
No. That just means there’s no “case law”.
The GPL has been brought to court, it’s been handed to judges, it’s been dissected by two teams of lawyers each time, and each time the party that started off claiming to have no GPL obligations has agreed to settle and hand over some money.
That test has been passed by the GPL multiple times in the US.
Having been intimately involved in US tech settlements, I can tell you that by no means does a track record of settlements constitute a “test.” The judge’s involvement in those cases was probably limited to oversight and the real work was probably done by mediators.
On the other hand, boutique firm/niche-focused lawyers can and do keep close track of settlement histories. Plaintiff’s and defendant’s counsel therefore could informally cite those track records during their negotiations. This is much more effective, of course, if one of those parties has done a lot of similar settlements. E.g., “You know when we settled XXX v. YYY for $Z million, the facts of the case were exactly the same. You should fall in line,” or something more diplomatic.
The other party may then choose to accede to their opponent’s will, but only because it would be cheaper vs. a drawn out court battle–they settle based on the strength of their opponent’s reputation. Settlement histories do not have the force of law.
But that’s what I said!
Your second paragraph (the only important one) just repeats the point I’ve twice already.
No, he isn’t repeating what you’ve already said. You said, “those US court cases still suggest that it’s valid” and that’s not what he is saying at all.
As another user pointed out, out-of-court settlements are not the product of a judge, the facts of the case, and interpretation of law. They’re the result of mediated negotiations. More times than not settlements are met because it’s simply less expensive than the alternative — proceeding in court. It makes sense that people would want to settle in cases like these because there isn’t any solid precedence set…meaning you could be tied up in court for a long time and it could wind up costing you a ton of money.
Settlements say NOTHING about the validity of claims, much less their legal standing. Those cases don’t `suggest` anything what-so-ever legally.
> Settlements say NOTHING about the validity of claims
That’s not really true.
As I keep saying, a judge has not written a ruling on the GPL *but* it has been brought to court and the people who claimed it was invalid were asked to back up their claim in front of a judge. They went to court, evaluated their chances, and decided to come into compliance and hand over some money.
Each time, their legal counsel (not judges, but teams of experts) told them to give up. That suggests that even experts who are unfavourable to the GPL consider that it is solid.
Your did raise one good new argument: you say maybe they all settled because they wanted to avoid being tied up in litigation for years.
That’s worth considering, but I think it’s unlikely that megacorps like Cisco have each time been afraid of the legal procedures brought by two lawyers and a programmer. If they thought it was clear that they had no GPL obligations, they could have asked for a preliminary judgement allowing them to continue to distribute their product during the legal procedure.
You’re making some terrible (and illogical) assumptions here. First, that the defendants settled out of fear of losing in court. Second, that the plaintiffs accepted a settlement, especially having a “solid” case, for seemingly no reason at all. Third, that these settlements weren’t based on anything outside of a lawyers advice. Without having been involved in those cases, there’s no way to know the facts and conditions of the settlement. If a complete legal mess is looming, a judge can order mediation and essentially force a settlement whether the parties want one or not.
The fact that nobody wants to actually let the law decide suggests the opposite of what you’re saying. If you’re a plaintiff with a solid case, why would you settle? If you’re a defendant with a solid case, why would you settle? You only choose to settle when the risk or the cost or both is too high. Remember, both parties have to agreement to the settlement, and then a judge still has to sign off on it. To have a solid case there first has to be legal president, and you only get that when you have court rulings, not settlements.
Considering all the possible scenarios, I can’t make any assumptions and run with it. Settlements simply don’t prove anything legally.
> assumptions … that the defendants settled out of fear of losing in
> court
Why else would they settle? You made one suggestion but I said why it doesn’t make sense for megacorporations.
> Without having been involved in those cases, there’s no way to know
> the facts
Agreed. We don’t know what happened in the black box, but we saw the inputs and the outputs and five times out of five they fit the model of: someone says they have no GPL obligations, they go into the black box, and they walk out saying they have GPL obligations and paying some money.
I can’t know what happened in the black box but I’m really reassured by what I can see.
> If you’re a defendant with a solid case, why would you settle?
FSF and SFLC have always said their goal is compliance. When two competing companies go to court, their goal is to dammage their opponent and get as much money as possible but FSF and SFLC instead want to be friends with those companies after the case. They want them to become contributing members of the free software project in question.
Plus, since both organisations combined have less then 20 staff, fewer than 10 of whom are lawyers, they can’t afford to have staff members tied up in litigation. Megacorps have the staff and resources to drag things on for as long as necessary, but non-profit orgs don’t.
.. I guess we’ll know in about 20 years, probably take that long to be solved
Versata makes proprietary software licenses it to Ameriprise, which both distributes it to other third parties and has different third parties make modifications.
Versata doesn’t like what one of those third parties is doing, claims it violates its license with Ameriprise, sues.
Ameriprise, discovers that the software contains GPL V2 licensed software, says Versata has to license their software under GPL V2, which means that they can’t be sued for modifing it.
Author of the GPL software hears about this, sues everyone involved for GPL violations.
Edited 2014-12-17 14:32 UTC
Why it needs to be tested at all ? Either take the code and use it according to license or don’t take the code and don’t use at all. If license mandates that the CEO of company that use the code must suck the original developer’s dick, then they should be required to do so.