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[FYI] Judgment Day for the GPL?


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.comment: Judgment Day for the GPL? Determining the Legality of the 

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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