While Red Hat's complaint and IBM's countersuit provided fan-pleasing left and right hooks to SCO on the first morning of the most recent LinuxWorld Expo, the most important story of the show lay underneath the flurry of press releases, swagger, and bluster: for the first time ever, the vaunted GNU Public License (GPL), the constitution of much of the free software world may be put to a legal test.
While Red Hat’s complaint and IBM’s countersuit provided fan-pleasing left and right hooks to SCO on the first morning of the most recent LinuxWorld Expo, the most important story of the show lay underneath the flurry of press releases, swagger, and bluster: for the first time ever, the vaunted GNU Public License (GPL), the constitution of much of the free software world may be put to a legal test.
If the GPL withstands scrutiny, it could undermine SCO’s infringement claims, but more importantly, a court’s stamp of approval on the GPL would establish its enforceability. Up to now, plaintiffs’ lawyers finesse defendants that appear to be in violation of the GPL, because at the moment, plaintiffs’ attorneys have no precedent to back up their client’s claims. In other words, the GPL is all bark, and no bite. A finding in favor of the GPL, would give the “viral” license teeth.
But if the GPL is instead deemed unenforceable, the legions of open source developers that rely on the GPL to propagate and protect the openness of their work will be forced to retreat, albeit to an improved free software license that addresses any shortcomings that a court may identify. However, the turmoil and resulting fear, uncertainty, and doubt (FUD), would surely have implications, affecting far more than how much money SCO can extract from a jury.
The test of the GPL is being prompted by IBM’s counterclaim against SCO. IBM’s argument goes something like this: For many years, SCO distributed Linux per the terms of the GPL, which, as this audience is well aware of, mandates that original works and all derivative works remain freely available — free as in speech — and can be duplicated and distributed without limitation. Given that history, IBM says, SCO cannot reverse course and now ask for a fee for code that it previously licensed to end-users under the GPL.
In rebuttal, SCO and über-attorney David Boies say that the GPL itself is invalid because it’s easily trumped by the tried-and-true entitlement called copyright. Copyright, they say, ultimately limits how software can be copied, and provides for damages for violations.
At first, I cringe about the GPL being invalidated. But then, I really can’t imagine a court overturning a license that is so pervasive and influential. Moreover, I cannot imagine a court releasing a defendant from its obligations under the GPL after that engineer or company voluntarily agreed to its terms and conditions. As William Bulkeley said in the Wall Street Journal on August 14, “It’s somewhat like Coca-Cola selling their secret formula on the Internet, and then suing people who brewed their own cola based on it.” I find it difficult to believe that a pervasive, widely-used contract, honored by many will be found invalid. SCO may now regret its little foray into open source, but that doesn’t mean we have to pay the price.
If you’re working with Linux, I encourage you to continue on undaunted. Legal thrusts and ripostes make for great headlines and speculation — but in the meantime, there are bits to twiddle, machines to boot, and code to be written. And in the big picture, more and more of those bits, machines, and code are running on Linux, much to the dismay of SCO, Sun, and Microsoft. Sure, it ain’t over til the fat lady sings, but right now, she’s singing the praises of our little penguin.
Martin Streicher, Editor