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[FYI] Judgment Day for the GPL?
- To: debate@fitug.de
- Subject: [FYI] Judgment Day for the GPL?
- From: "Axel H Horns" <horns@ipjur.com>
- Date: Mon, 26 Jun 2000 20:19:38 +0200
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http://www.linuxplanet.com/linuxplanet/reports/2000/1/
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.comment: Judgment Day for the GPL? Determining the Legality of the
GPL
Dennis E. Powell
This summer could be a lot hotter than usual--not because of global
warming, which may or may not be taking place, but because of a
lawsuit which may or may not be taking place.
Before summer's end, a long-awaited court test of the GNU General
Public License may be filed, says Eben Moglen, professor at the
Columbia University Law School and general counsel to the Free
Software Foundation.
"If you wait another couple of months I wouldn't be surprised if you
see either a lawsuit or a voluntary agreement to comply entered into
by a major international software house that has done exactly what
you postulate, less in the 'embrace and extend' model than in the
'security through obscurity' model, which is another reason why those
who build works on top of free software sometimes try not to disclose
source," Moglen told me in en e-mail exchange dealing with the basic
nature of the GPL, the licensing instrument of much if not most Linux-
related software. (I had asked him whether it would be possible for a
commercial software firm to envelop GPLed code, alter it, and sell
it, sans source code, and whether it would be possible to obtain
judicial relief under such circumstances.)
Moglen would not reveal the details of the potential lawsuit, nor
would he name the company involved, noting that if he did he would
reduce the likelihood that court could be avoided.
"The process that leads up to litigation is always a tricky
negotiation," he said. "We always prefer nonjudicial enforcement if
we can get it, which is why the GPL is not the subject of court
cases: I have not failed in the past to gain voluntary cooperation.
But gaining that cooperation includes freedom to assure those who
come into compliance that there will be no public statements about
their past noncompliance."
The lawsuit, if it takes place, will be the first court test of the
GPL. The outcome is not assured. Lawyers experienced in intellectual
property law, though, say that it's unlikely the Free Software
Foundation would launch an action without a case likely to produce an
outcome favorable to the GPL. And the case, if one is filed, might
bring a degree of stability to a document about which legal opinions
vary widely.
Part of the uncertainty is caused by unresolved ambiguity as to just
what the GPL is.
A Contract? A Copyright? Both? Software licenses are generally
considered to be contracts. When a user clicks the "Agree" box on the
license page during software installation, that constitutes agreement
to a contract. (Some claim that it is an invalid contract--though
I've found few lawyers who do--but that will have to wait for another
writer on another day. This is already going to be too complicated.)
[...]
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