GPL: Enforceability and Constitutionality

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Before we get started, I have one question.

Is it required for any non-lawyer to be in the midst of a temper tantrum in order to write about the SCO case? Can they not control themselves?

It seems that way. Let me just observe that it says little for one’s emotional stability or intellectual ability to be incapable of discussing the issue without jamming every imaginable insult into every nook and cranny of an argument. Sticks and stones may break their bones, but names will never hurt anybody.

I looked through the last barrage of tirades stemming from some comments attributed (or ghost-written, as if that mattered) to the head of SCO about the constitutionality of the GPL.

I must admit that “babble” would be a reasonable description of the comments made by the head of SCO. It was filled with tangents and irrelevancies and incoherencies with a few at least silly contentions.

However, none of the responses I’ve seen are terribly better in addressing the core issue raised (though badly) in the piece. I looked at them and said, “Where’s the beef?”

Then I started digging a bit, and found out why just about everything on the subject, even from thosw who are lawyers, on both sides, is essentially hot air.

That core issue is: Are any and all of the provisions of the GPL legally binding/constitutional?

The GPL is a fairly unique phenomena. It basically says, “We’ll let you do what you want, provided that you have to let (i.e. provide the source code) anybody else do what they want with anything you create using or is in any way dependent on our code.” There’s no contract, it’s a one-way deal.

This means the user has to give up many of the rights he would have otherwise had under normal copyright law.

Another factor one must keep in mind is where the new code is. One can rewrite or add some lines of code to an established GPL program (let’s say Linux). That’s one situation.

One could write a separate program that simply uses some features of Linux. According to the owners of the GPL, they’re treated the same way, both have to go under the GPL.

In short, the GPL tells you not only what you can do with their property, but also what you can do with the property that you create based on their property, even if your creation is as independent of other open source software as the typical Windows program. This is what open source people mean when they say the GPL “infects” proprietary software. It is there that the GPL is most likely to prove shaky legally.

Before you say, “the GPL can make any demands it likes,” think about it. What if Microsoft said you had to reveal your source code to everyone, including them, as a condition of using Windows APIs? Does this still seem so unobjectionable or unreasonable?

There are some rights you simply cannot give up, even if you want to. To cite an extreme example, you cannot sign yourself into slavery, even if you really, truly wanted to. Do copyright rights fall into that category?

There are many rights people have that they can give away, via contract. However, there’s no contract with the GPL. Can the terms of the GPL be legally enforced unilaterally?

In short, is the GPL, in whole or in part, legally enforcemable? Is the GPL, in whole or in part, constitutional?

These are real questions that cannot be insulted away.

Virgin Territory…

Virgin Territory

Do you know what the answer is? The answer is there is no firm legal answer because these issues about the GPL haven’t been decided in court.

In all the rhetoric on this issue, you will not find a single court case citation from anybody, including the lawyers, for whom court citations are like vitamins. There’s a very simple reason for that, there aren’t any.

In fact, there’s only one pending case in which the issue comes up at all. You can read about it here.

There’s still no final decision on that one.

So if you run across someone figuratively foaming at the mouth on this issue saying that “of course” the GPL is perfectly fine and dandy legally, just ask them for some court decisions to back them up. Ask them for one, and, no, Lawrence Lessig is not a court. Nor is Linus Torvalds. 🙂

What This Does And Doesn’t Mean

This doesn’t mean SCO is right. This doesn’t mean the GPL people are wrong. It does mean that this is virgin territory judicially, and there seems to be some arguable points about the validity of the GPL, or at least parts of it.

That doesn’t mean SCO is in any position to apply the arguments they’ve made to their particular situation, either. The best anyone can figure out at this points, SCO is suing over a relatively modest number of lines and modules of code they had the rights to.

Factually, that seems to be a rather different (and weaker) case than say a Linux program which merely used some Linux libraries to perform certain functions.

Understand that if you see some legal person say that SCO’s constitutional argument is “weird,” that doesn’t necessarily mean any constitutional argument is weird. It could mean that it’s a weird argument given SCO’s specific situation. For instance, if SCO says there’s copyright infringement of five hundred lines of code in say, Linux, other Linux people can turn right around and say, “Well, if that’s true and the GPL is bad, what about the tens of thousands of lines of code from others that you took in your versions of some of your software?”

It’s one thing to write a little code, then essentially lay claim to all of it. It would well be another to write a program which makes relatively minor use of others, then have the all the open sourcers essentially laying claim to all of it.

A court might reasonably rule that there’s no problem with the provisions of the GPL in the first instance, but not the second. Not at all saying they would, but it at least seems possible.

Even if a court did that, the matter might be resolved in favor of the GPL by making use of the GPL a contract rather than a license and/or restricting the terms of that license.

Why The Anger, Why The Rage?

One can certainly have grave doubts that SCO has much of a legal case without imitating a dog with rabies. So why do people do that?

I think this is yet another form of that geek disease I’ve commented about on much in the past, on so many other issues. To paraphrase a currently popular political phrase, I’ll call it “geek exceptionalism.”

That’s a fancy term for saying many geeks fervently believe the doctrine that the real world can’t apply its rules or laws to them in their little cyber Magic Kingdom. This is especially so when the real world threatens to shut down the Magic Kingdom or part thereof.

Part of the foam could well be caused by a sense of betrayal, that one of the member of the “club” decided to break the rules and bring in outsiders (i.e. the real world) to get what they wanted.

It may well turn out (and I’m inclined to believe based on their actions up to now) that SCO may in the end be exposed as being the biggest bunch of [fill in the obscentities of your choice] we’ve ever seen.

Nonetheless, the legal foundation upon which open source relies upon is at least legally untested, and at least parts of it may well prove to be shaky, if not by SCO, then by someone else.

It Wouldn’t Be The End Of The World

What if someday, some place, some court said to someone with some program, “The GPL is unenforceable here.”

Would that be the end of the world or open source (I know, for some, I’m repeating myself :))?

Not at all. Indeed, it might be the best thing that ever happened to Linux.

You don’t need a GPL to voluntarily release your source code. Everyone who wants to share and give away what they do will be just as free to do that then as they do now. Understand that the GPL doesn’t allow you to release what you’ve made; it forces you to.

There’s no technical reason why open source can’t have a few shutters, or that the GPL could be restricted to certain commonalities among programs so they can work with each other. One could establish “free zones” in which contributions to existing programs would continue to be free, for instance, the OS itself.

Indeed, if this were to occur, and people were no longer compelled to give away their best work, there probably would be an explosion in Linux programming from people and companies that don’t want to touch it with a ten-foot pole today, and it might have a real chance of competing or even beating MS on the desktop.

Of course, the ideologues will fight this. You see, this gives them power (or, in most instances, at least makes some feel powerful) over others, and lots of people like power a lot.

The outside world will probably have to step in and force these folks to stop forcing others to play by their tune. Then what do these people do?

Most will adopt. A relative few of the more rabid won’t, and they’ll go criminal to “free” the programs of those who dare to cross them.

But so what?

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