August 20, 2004
The GPL's Day In Court

In the ongoing SCO v. IBM legal battle, IBM recently filed a motion for partial summary judgment (pdf) as to one of their many counter-claims against SCO.

The claim in question asserts that SCO has violated the terms of the GNU General Public License (GPL) which covers GNU/Linux distributions by implementing its SCOsource Licensing program that attempts to extract licensing fees from GNU/Linux users. This is a violation of the GPL because its terms insist that one may only charge for the physical cost of transferring a copy of the code, not the $699 SCO asks for a single CPU running GNU/Linux and certainly not the $4,999 they want for an 8-CPU machine. IBM also argues that SCO is distributing sixteen of IBM's own contributions to the kernel, while simultaneously rejecting the GPL license that covers them. IBM effectively asks, "What's up with that? You want to distribute our code, you have to accept our license."

First of all, the IBM brief linked above is remarkably well-argued. I would hardly change a word of this thorough brief, except perhaps to emphasize more the SCOsource program and the high licensing fees SCO is charging for GPL-covered code. Perhaps that is what the brief does in the redacted portions. (But as I'll mention later, this may be a smart strategic move by IBM, because the licensing fees are actually irrelevant.)

Second and more importantly, if IBM were to lose this motion it would not mean that the GPL is not enforceable. This message should be spread far and wide in the coming days so that people who are not attorneys do not over-react if this decision goes SCO's way. While I think it could, I also think it shouldn't. Here's why:

SCO has not yet replied to IBM's motion, but if they are smarter than they have been in the past, they could claim that they never charged licensing fees for GPL-covered code, as IBM alleges. Rather, they could claim that they charged licensing fees for their code that they allege was subversively inserted into GNU/Linux systems by IBM. That is, when you get a GNU/Linux distribution, you get millions and millions of lines of code. Lots of that code is covered by the GPL, and SCO will say, we aren't charging you a dime for that. But there is some disputed code in there that SCO claims as its own. And this code, they assert, is not covered by the GPL, but rather the SCOsource licenses are intended to cover that code, for which SCO, were their hypothesis of code-theft proven, would be entitled to charge whatever fee they please. Clever, huh?

Similarly, SCO has said that SCOsource was implemented to license SCO’s UNIX shared libraries for use with Linux. But if that is so, one might ask why SCO asks for $699 per GNU/Linux-running CPU. Why not offer the alternative of removing these UNIX shared libraries and using the rest under the terms of the GPL? (Essential libraries could be re-written from scratch by the kernel team.) SCO's Letter to Linux Users comes close to that sort of offer. There they identify with specificity the files for which they claim copyright and which they claim are not subject to the GPL. This is the "ABI Code." It took SCO months before they would publicly identify code that they claimed as their own, but this was a public claim that the kernel-team could have acted on. More on that momentarily.

The first problem with SCO's letter, however, is that SCO (and its predecessors) have themselves distributed this ABI code under the GPL. SCO's predecessor, Caldera, had distributions that included these files. Given that, this letter sounds like a, "Whoops! How did that get in there?" admission from SCO. But this is not a mistake, where one might allow the copyright holder to revoke the inadvertently-granted license. Caldera was a Linux company! They knew precisely what they were doing when they distributed that code. It's just that SCO's corporate history has so many character changes in it that the most recent group of executives seems to have no recollection of what the earlier group of executives did and didn't do.

Another problem with SCO's letter is that this code they claim as their own may not be theirs to claim. Novell asserts they still own UNIX. (See, in particular, the letters Novell wrote to SCO of June 9 and 12, 2003. August 4, 2003, December 23, 2003, and February 11, 2004.)

Additionally, as regards some of this ABI Code, even if Novell owns UNIX, even they may not own this ABI Code, as Linus Torvalds has stated that he checked several of these files and remembers personally writing them himself. This is one reason why the kernel team has not raced to rewrite this code from scratch. They wrote it the first time!

Finally, much of the ABI code could fail to even be copyrightable, because in some instances the code apparently just implements POSIX standards for which there are no alternative means of implementation. Copyright still requires originality (knock on wood), and while computer code generally contains the requisite originality, some code that exhibits only basic functionality and standards-compliance, like that in some of the ABI code, could fail this test.

Let's return now though to a SCO response that claimed to be only charging for their own code, not the GPL'd code. This interesting tactic would face additional problems. It might be "too cute" and a judge could rule that if you go around saying you're charging $699 for "Linux" then we're not going to later let you claim that really you're just charging for some tiny portion of it that you claim is your own. It looks like a flat fee for an entire Operating System, so a court could easily hold that this is what it is. (For comparison, Red Hat's Enterprise Linux ES, which includes a year of support, costs half ($349) of what SCO is charging. You better be getting more than a few standard libraries at that rate!) So if a judge doesn't buy this reply, SCO could lose this motion and would face a choice between scrapping the SCOsource program or no longer distributing the GPL-covered code in GNU/Linux. I downloaded SCO's GNU/Linux distro after this case began just to see if they would distribute it to me. If SCO rejects the GPL license, which they have, then distributing that code to me (and thousands of others) could be held to be a distribution in violation of the kernel authors' exclusive right to such distribution, with each such violation amounting to up to $150,000 of statutory damages. Ouch.

Overall, if SCO could keep the focus on the code it claims to own, the issue of the code's ownership could be a material fact in dispute. IBM can only win a summary judgment motion, like this one, if there are no material facts in dispute. If SCO simply points to its fight with Novell and says, "Your honor, the code we're licensing is of questionable ownership and this constitutes a material fact in dispute which makes IBM's request for summary judgment premature..." then IBM could lose this motion and it would have nothing to do with the GPL's enforceability. (Ignore for a moment that SCO's best chance of winning this motion requires their admitting the dubitable nature of the claims they make elsewhere!) But, IBM should win this motion if the judge keeps at least one eye on the ball.

The reason I think IBM should prevail on this motion, is that the license fees that SCO is charging are actually irrelevant, and so my imagined cute response above won't help SCO. The real heart of the matter is that IBM has contributed a lot of code to the Linux kernel and licensed it under the GPL. Sixteen such contributions are specified in IBM's motion. SCO rejects the GPL license, and even claims it is unconstitutional despite the fact that they continue to distribute code licensed under the GPL. But as Eben Moglen has explained if SCO is not distributing GNU/Linux under the GPL, (in particular those sixteen contributions by IBM) then by what authority are they doing this distributing? Having rejected the only license offered, SCO has no permission from IBM, the rightful copyright holder of those sixteen files, to distribute those sixteen files. But, SCO has distributed those files, as recently as this month (see IBM's motion). That's what we call copyright infringement and in a worst-case scenario for SCO, IBM could be awarded 16 x $150,000 = $2.4 million in damages plus attorneys' fees. Additionally, the judge could issue an injunction barring SCO from continuing to distribute any code licensed under the GPL, unless and until they accept the terms of that license. And that is exactly the opinion I would write. It's important to teach copyright infringers a lesson.

Posted by Brian W. Carver at August 20, 2004 01:30 AM | TrackBack
Comments

Hey Brian, you should consider going to the FSF's GPL seminar next week at Stanford Law... Joe Gratz (google him, he blogs) will be there too.

Posted by: joe on August 20, 2004 02:01 PM

Hey Joe,

Yes, I attended this seminar at Stanford last year about this time. I highly recommend it. Bradley Kuhn and Dan Ravicher know more about the GPL than just about anyone.

This year it might be even more interesting as the speakers might say more about SCO developments. Then again, in a room full of lawyers you probably won't get anyone to say anything that they haven't already said publicly.

But, so far as learning about the GPL goes, there is probably no better way to do it than to attend this seminar.

Brian

Posted by: Brian W. Carver on August 20, 2004 02:20 PM

yup... and Eben Moglen is giving to talks... one on patents and the GPL and the other on the GPL v3.0 (I'll have to blog it).

One inaccuracy in the text you've posted above... the GPL does not prohibit anyone for charging for software (it does explicitly permit charging for physical transportation costs, but it doesn't explicitly disallow charging for software).

The position of the FSF (I believe, as a licensing volunteer there) is that you're welcome to charge a licensing fee for GPL'd software, but that's not going to be that effective because you can't force someone done the road to charge for it (and presumably give you the cash). So, you're welcome to charge for GPL'd software, but it would be silly to do so because only one person would have to pay for it before he or she could distribute it under the terms of the GPL.

This is a common GPL myth... check out this GPL FAQ entry and the two that follow it:
http://www.gnu.org/licenses/gpl-faq.html#DoesTheGPLAllowDownloadFee

Posted by: joe on August 21, 2004 12:07 PM

Joe,

Yes. What you say is true, and I could have phrased things better, but I would still argue that the SCOsource program, if it purports to require licensing fees for already-distributed GPL-covered code is, a violation of the GPL (or fraud or both).

That is to say, SCO doesn't want to just charge for the first licensing fee and then let others distribute as they wish. They are actively hunting down users of GPL-covered code and sending them threatening letters telling them that they have to pay up. (This may also be extortion.) And they're not just targeting those who got GPL-covered code from SCO itself, but those who got it from third parties, such as Red Hat or SuSE.

It would be sort of like me sending letters to users of Microsoft Office demanding that they pay me $700 of licensing fees or face litigation. I have no authority to require that of them, and SCO has no authority to charge Linux users licensing fees for already-distributed GPL code received from third parties. It's fraudulent to attempt to do so.

The GPL always speaks of fees as being related to distribution or warranty coverage. It talks of when you "distribute copies of such a program, whether gratis or for a fee" and says "You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee."

SCO is not seeking to charge fees for distribution, but is instead seeking to charge fees even to end-users to whom they never distributed. This imposes a further restriction on those end-users' exercise of the rights that were granted to them when they received the GPL-covered code.

That is specifically prohibited by the GPL, because those end users received "a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions." And so SCO, "may not impose any further restrictions on the recipients' exercise of the rights granted herein."

So, yes, SCO could have charged a fee when it distributed the first copy of its version of Linux (and could have futilely asked for such fees for subsequent acts of distribution), but the SCOsource program goes well beyond this.

(I'm trying to simultaneously make some Macaroni and Cheese, so forgive any errors in the above.)

Posted by: Brian W. Carver on August 21, 2004 01:34 PM

You can still charge if you are a third-party distributor... although, I totally agree that tracking people down and making a proprietary claim against code they've already received (and licensed normally under the GPL) is a complete and total violation of the terms of the license.

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