Lawsuit Tests The Legal Status Of The GPL

from the license-or-contract dept

Fri, Sep 21st 2007 3:00pm — Timothy Lee

On Wednesday, the Software Freedom Law Center filed a lawsuit to enforce the GPL against a company that has been distributing GPL-derived software without disclosing the source code, as the GPL requires. The SFLC says this is the first US copyright infringement lawsuit it has ever filed for infringement of the GPL. Traditionally, SFLC head Eben Moglen has worked to settle disputes with companies without going to court. But in this case the lawsuit was filed less than a month after SFLC first contacted the defendant, Monsoon Multimedia, about its violation of the license. Luis Villa suggests a couple of possible reasons they moved so quickly. One is that Monsoon failed to respond to the SFLC's letters, leaving them little choice but to go to court. Another factor is the recent Jacobsen decision, which called into question the enforceability of open source software licenses. The SFLC may have felt its chances of winning on appeal were not as good with the Jacobsen case, which is more complicated and involves a less popular license. And so instead of appealing Jacobsen, they may have fast-tracked a case they believe will make it more likely they'll win on appeal.

This will be an important case because it will help clarify the legal status of the GPL and other copyleft licenses. The Free Software Foundation argues that the GPL is a license, and that any violation of the GPL results in copyright infringement. That would entitle the authors of GPLed software not only to monetary damages but also to prohibit further use of the software by the infringing party. But other legal scholars think the GPL may be interpreted as a contract, in which case only monetary damages would be available. And because GPLed software is given away for free, it's an open question how those damages would be calculated. It's conceivable that a judge could hold that the proper amount of monetary damages is zero since the software is being given away for free. The SFLC is clearly trying to avoid that outcome by emphasizing that the software in question is sold by "more than 100 manufacturers all over the world, including IBM, Nokia, Hewlett-Packard, and Siemens."

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Filed Under: gpl
Companies: sflc

10 Comments

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Joshua, 21 Sep 2007 @ 4:28pm

Whaa?
How in the hell could it not be copyright infringement?

You get a license that says you may make copies and distribute them if and only if you do certain things and because of that you are no longer required to respect copyright for that work? If you do not do the required things to be granted the ability to copy and distribute, how is then copying and distributing NOT copyright infringement?

How is it different from claiming that since MicroSoft gives you the right to make a copy of their software by installing it, that you can then make all the copies you want and sell them to people and never be sued by them for copyright infringement?
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zcat, 21 Sep 2007 @ 4:58pm

There are three possible outcomes;

The GPL is found to be valid, and Monsoon is complying with it. Monsoon wins.

The GPL is found to be valid, but Monsoon are not complying with it. Monsoon loses.

The GPL is found invalid, therefore Monsoon have no license. Monsoon still lose.

This case isn't really about the validity of the GPL. It's about Monsoon's compliance with the GPL.

The GPL might as well be assumed valid because vast armies or lawyers at companies like IBM, Novell and Redhat have looked at it. Nobody has ever managed to prove it invalid, very few even get so far as getting it into court. Besides, if they prove it invalid they still lose!
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- Anonymous Coward, 21 Sep 2007 @ 6:55pm
  
  Re: The GPL is found invalid, therefore Monsoon ha
  The GPL is found invalid, therefore Monsoon have no license. Monsoon still lose.
  
  The idea that alot of people seem to be putting forth is that somehow if the GPL is considered a contract, that even if you don't adhere to it, whoever put it out there now can no longer claim copyright damages over it. Which would be a huge loss for the GPL and a win for Monsoon.
  
  it seems silly to me but for some reason this interpretation is popular.
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Anonymous Coward, 21 Sep 2007 @ 5:22pm

Seems to me that if it is invalid, Monsoon can do anything they want to - a win for them, not a loss.

But zcat is correct about the scrutiny that IBM, and the others gave it. Monsoon loses on that basis.
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- Chris Maresca, 21 Sep 2007 @ 8:15pm
  
  Re:
  Actually, if it's invalid, then the code is subject to traditional copyright law. Unless Monsoon has a license from the authors, they would be liable for copyright infringement.
  
  Chris.
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Eric the Grey, 21 Sep 2007 @ 5:50pm

Agreed.
This can only be a good thing for the GPL unless it is determined to be invalid. As long as it is valid, then Monsoon looses (they are not distributing source code, which is a violation of the GPL).

On the plus side, unless Monsoon backs down and settles, then there will finally be a legal precedent, and companies will think twice about using GPL'ed code, and not making the source available.

EtG
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Jeff, 21 Sep 2007 @ 8:19pm

This was predicted 2 years ago
A few years back I was on the Software Technology Committee at the ABA and wrote a proposed ABA position paper that set forth exactly the reasoning followed by the court in this case. I also remember that, at the time, this paper was roundly criticized, notably by Mr. Moglen himself who deigned to call me personally to complain about the relatively private circulation of this paper (it was circulated amongst the 90 members of the section for vote on whether to accept). Sorry it's only available in PDF, but it's good starting place for the legal concepts involved.

http://meetings.abanet.org/webupload/commupload/PT070100/otherlinks_files/701.pdf
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Neal, 22 Sep 2007 @ 5:56am

Charity
I give a lot of time and money to charitable organizations. If one of those organizations and it's officers were to take my money and direct that into their personal accounts for their personal benefit then it would be fraud and/or theft and/or embezzlement. If they were to take my time, say by directing my labor into building and repairing their personal properties rather than the properties of low income individuals, it would be the same.

How would this differ because it is given away free? It's free subject to a set of rules and preconditions on its use. If those rules and preconditions aren't met then it's theft, fraud, embezzlement...
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Anonymous Coward, 24 Sep 2007 @ 7:37am

GPL Code
I use GPL code all the time in my applications, yet all of my apps are closed source. The way I get around the GPL is that I publish the GPL source that I used and modified, and not the private code. It is perfectly acceptable to use mixed code. As long as I annotate in my source what is GPL, and include the proper credits. All of my private code is still covered by copyright law, and I don't have do disclose or publish it.

The problem is when companies refuse to make even the GPL source available.
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JW, 24 Sep 2007 @ 8:15pm

Interesting
This is a fascinating issue. I have worked on several projects with friends that have utilized open source code under the GPL license and the topic of GPL enforceability has come up on more than one occasion. The issues we’ve discussed have led us to speculate that if the GPL were to be put to the test, it will ultimately be unenforceable. Let me preface this by saying that I am not a legal expert; the issues and conclusions that we’ve made are hardly worthy of consideration to any person with legal training. They are, however, rooted in logic.

The “open source” nature of GPL licensed software/code is very well suited to the morally depraved coder who sees fit to make it their own without following the license agreement. One can easily modify the supplied source code to the point where he/she can argue that it was they who coded it from scratch; after all, how many different ways are there to skin a cat? It is inevitable that coincidental similarities in two completely separate pieces of code will surface somewhere, at some point in time.

There is also the issue of monetary damages and to whom they are due. Since the open source community is so large and all of its members contribute their time and efforts to the project freely, there is virtually no way for a judge to decide who should be awarded the damages. Secondly, the fact that the code is distributed free of charge would also make it very difficult to determine how much, if any, money is due to the defendants for the infringement of the GPL.
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