In its lawsuit against IBM, the SCO Group has begun a direct challenge to the General Public License–the legal foundation for Linux, numerous other open-source programming projects and software SCO still ships today.
SCO Attacks Open-Source Foundation
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Eugenia Loli
Ex-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker.
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“…if you do not abide by the terms of the GPL (or LGPL), you may not use the software or link to LGPL in the first place – just like you can’t use a proprietary software if you don’t agree to the EULA. ”
But that is a circular argument because it only holds if the GPL is enforcable in its entirity. If it isn’t, then it doesn’t matter if one agrees to the terms or not. They can still use the toolkit because the clause in the GPL that says they can’t is illegal.
I stress it again. Not everything is legal just because it is written into a contract. A clause in a contract that requires you to give up legally guranteed rights is often unenforcable because your guranteed rights trump what is written in the contract.
That’s where the controversy is. The controversy is whether the GPL can legally enforce the clause that basically tells someone else what license they have to license their own code under. A strong argument can be made that it cannot because such a clause steps on the rights of the next person.
No commercial EULA contains any such clause that attempts to control what the next guy can do with code he wrote himself in the way that the GPL does.
For what it’s worth, SCO has no problem with Linux Kernel 2.2 or Berkeley.
Apparently their Intellectual Property (IP, the subject of the dispute) shows up in Kernel 2.4. and that’s the basis of the dispute and licensing issue.
In any case, this is what was presented at their Road Show on 10-22-2003 in Irvine, CA.
But that is a circular argument because it only holds if the GPL is enforcable in its entirity. If it isn’t, then it doesn’t matter if one agrees to the terms or not. They can still use the toolkit because the clause in the GPL that says they can’t is illegal.
Uh, no. If the GPL is invalid, then normal copyright law applies. Copyright law is much more restrictive than the GPL.
I stress it again. Not everything is legal just because it is written into a contract.
This is true.
A clause in a contract that requires you to give up legally guranteed rights is often unenforcable because your guranteed rights trump what is written in the contract.</i
Except that in this case, the GPL doesn’t require you to give up any legally guaranteed rights. On the contrary, it grants you [i]additional rights. You don’t have less freedom when you use a GPL program, you have more than you normally would.
The controversy is whether the GPL can legally enforce the clause that basically tells someone else what license they have to license their own code under.
You’re looking at this the wrong way. If you remove the GPL, then that someone else won’t be able to release their code at all, because it will be based on copyrighted work. So if the GPL is invalidated, the coder in your example wouldn’t see his rights expanded, but diminished.
The exception is fair use. But fair use is not guaranteed – suffice it to say that any substantial reuse of code will not be considered fair use.
A strong argument can be made that it cannot because such a clause steps on the rights of the next person.
Again, you’re wrong in the sense that it does not limit the next person’s rights in any way, but rather enhances them.
Copyright software wihtout GPL –> No redistribution of modified (or non-modified, for that matter) program possible.
GPLed software –> Redistribution allowed (under the GPL).
Your argument is based on the idea that the GPL restricts rights – but in fact it is less restrictive than “vanilla” copyright. In other words, your entire argument is based on a faulty premise.
The linking argument follows the same argument. When I link a program to a library, the program isn’t complete without it – it must become a “part” of the program in memory if the application is to work. The program is thus combined with the library. You can’t do that with a proprietary library without getting a license for that library (if you intend on releasing the program, that is).
The GPL here is similar to other licenses, except that, instead of money, this license requires that you license your program under the GPL. You don’t have to – you can use a proprietary library and pay for it, or develop the library yourself. There is no coercion, only a set of conditions (a license) through which the library can be used. Again, the GPL grants rights that you would not normally have (link your program with a copyrighted library) on the condition that you abide by the terms of the GPL. No judge will rule that such conditions are abusive, since there are alternatives, and the conditions are themselves within the rights of the copyright holder.
No commercial EULA contains any such clause that attempts to control what the next guy can do with code he wrote himself in the way that the GPL does.
No, but they do ask for money in exchange for the right to use their software, which you’ll only be able to in very specific ways. The library doesn’t suddenly belong to you – there are restrictions on redistribution, for example.
But all of this does not matter, since the coder is never coerced into using GPLed libraries. There are alternatives.
Seriously, I’m quite confident that if the GPL gets tested in court, it will come out stronger than before. But I can see I won’t be able to change your mind, so I suggest we agree to disagree and leave it at that.
Bad italics closing tag…sorry about that.
“Uh, no. If the GPL is invalid, then normal copyright law applies. Copyright law is much more restrictive than the GPL.”
There is no copyrighted code in the source file for the application. Only a pre-processor directive for an include file. Hence, no copyright violation has taken place.
“Except that in this case, the GPL doesn’t require you to give up any legally guaranteed rights. On the contrary, it grants you additional rights. You don’t have less freedom when you use a GPL program, you have more than you normally would.”
No. It doesn’t I tells me that I have to license my code using their license, which means I have to distribute it freely, I have to allow others to modify it, and I have to let others redistribute. The GPL is one of the most restrictive licenses I have ever seen when it comes to libraries.
“You’re looking at this the wrong way. If you remove the GPL, then that someone else won’t be able to release their code at all, because it will be based on copyrighted work.”
“Based on a copyrighted work” does not a copyright violation make. Anytime you use someone elses writing to write a report yourself, you are basing your work on someone else’s copyrighted work. That’s not copyright violation.
“Again, you’re wrong in the sense that it does not limit the next person’s rights in any way, but rather enhances them.”
No. It severely limits the rights of the developer of the third party application. For use on a library, the GPL is the most restrictive license I have ever seen, all the way down to specifiying how you must license your own source code. That’s very restrictive. It severely limits rights. It doesn’t enhance them.
“No, but they do ask for money in exchange for the right to use their software, which you’ll only be able to in very specific ways.”
Not all of them do. Guess what? I can develop applications with GTK. I don’t have to open source those applications, and I can license those applications however I want.
This is exactly why GNOME beat out KDE in the standard UNIX desktop race. It’s because KDE uses the GPL’ed QT toolkit, where as GNOME uses the LGPL’ed GTK toolkit. Commercial vendors didn’t want to be locked into the viral nature of the GPL, so they avoided KDE and it’s QT widgets like a plague, and when with GNOME and the much more liberal GTK
toolkit instead.
“The library doesn’t suddenly belong to you – there are restrictions on redistribution, for example.”
As a software developer, I don’t care about redistribution of the library. I didn’t buy the library so I could in turn give it away to everyone. I bought the library to make my own programming jobs either. And I CAN distribute binary applications that are linked against that library. I just can’t distribute the library itself, which is not something I would be interested in doing anyway.
“But all of this does not matter, since the coder is never coerced into using GPLed libraries. There are alternatives.”
Yes. There are alternatives. And the alternatives are the ones that get chosen for development in commercial environments. Like I said, this is why GTK beat out QT, even though I would argue that QT is a better toolkit that provides better cross-platform compatibility, native look and feel, and is easier to program with. GTK is a strange beast (it’s not even object oriented, and is designed for C programming. Who actually does GUI programming in a non-object oriented environment anymore? Sure you can wrap it with GTK+, but still…). But despite that oddities of GTK, it still wins out because developers are far more comfortable with libraries that are licensed under the LGPL than the GPL.
“But I can see I won’t be able to change your mind, so I suggest we agree to disagree and leave it at that.”
You are right. It seems we have very different ideas on what constitutes “enhanced rights”. Personally, I don’t see how the GPL when applied to libraries, enhances the rights of the programmer by telling them “You have to license your code under this license, you have to provide the source code, and you have to allow anyone and everyone the freedom to modify your source code and redistribute it.”
Note that I am specifically refering to libraries that use the GPL. Not GPL software in general. Most libraries use the LGPL, which does not have the same restrictions. But QT and a few others use the GPL. (And then sell insanely overpriced commercial licenses if you don’t want the GPL. Sorry, but I’m not willing to pay TrollTech’s insane prices for the toolkit. So like most developers, I use GTK instead, even though GTK is a pain in the ass to work with and doesn’t provide the same level of cross-platform capability.)
…I doubt the GPL will be declared invalid based on this. I agree that the GPL may not be ideal for libraries (which is why the LGPL was introduced), but I don’t think that’s the angle that SCO will be taking. Even if they did, since there are alternatives (some of which you’ve detailed) I very much doubt it could be declared invalid on those grounds.
If you don’t want to license under the GPL, do not use GPL code or link to GPL libraries (since linking to a
There is no copyrighted code in the source file for the application. Only a pre-processor directive for an include file.
An include file which, unless I’m mistaken is copyrighted…I understand your point, and again I do think that the LGPL is more appropriate for libraries, but ultimately the coder has a choice: to link to GPL libraries or not. Linking to a GPL binary is a choice that carries a cost. As such, there is no coercion and there are alternatives. In that way it is a voluntary restriction of rights, I’ll grant you that (a restriction for the developer, not the end user). Not enough to make the GPL void and unconstitutional, though. 😉
Anyway, it was nice discussing opposing viewpoints without degenerating into a flamewar – that’s a nice change of pace for OSNews…
Have a nice day.