IBM/SCO/GPL (Was: Re: (L)GPL remarks and FreeGIS licensing)

edA-qa mort-ora-y eda-qa at
Tue Aug 26 18:24:20 UTC 2003

Alex Hudson wrote:
> That's not the standard description, and I don't think it's a point of
> view the FSF would subscribe to. The GNU GPL is a license, not a
> The GPL isn't a covenant between two individuals, therefore isn't a
> contract. I'm fairly sure that's the standard/intended thinking.

This is where, as I mentioned, contract law starts to become fuzzy from 
country to country.  From the viewpoint in Canadian law, it is a 
contract, plain and simple -- otherwise it is nothing, and has no merit 
beyond a work of fiction.

I always saw the GPL as an agreement between two parties: 1) the 
distributor; 2) the recipient.  The distributor is allowing you to 
further distribute the code, and derivaties, on the premise that you 
distribute under the same terms.

I am talking strictly about distribution, the "right to use" the 
software is very unclear, stands in the same ground as EULA's do.

> They distributed it, but did not release it. They did not licence it

I see a judge with many headaches...  In any case, if this makes it to 
trial, the judgement will be required reading for contract and IP 
lawyers. ;)

> under the GPL, and the people who released it didn't have rights to
> licence it under the GPL (iff SCO are correct ;). It's a copyright
> license violation, I'm not sure that automatically means the GPL would

Yes, and no.  Two options:
a) SCO willingly entered the contract but made a mistake.  The 
assessment of damages and reasonable actions is thus open for debate, 
but it is unlikely for a judge/arbitrator to open up the code -- they 
tend to only think in dollar values.
b) SCO maintains, and succeeds in showing, they never entered the 
contract.  In this case it is pretty much up to SCO to decide what to 
do, within the realm of reasonable action.  Charging a license fee for 
linux is well within reason, as you stated before, it is really not 
their problem that it removes the ability to further distribute Linux. 
But as I said after, they then participated in unfair trade practices 
and open themselves up to lawsuits of those that bought their Linux.

> For example, if a company released a proprietary version of a piece of
> GPL'd software, I'm not sure you could force them to GPL that software:
> the law would allow you to stop them selling the product, and allow you
> to claim damages, but I don't think you can automatically gain access to
> the code.

I'm not sure that you couldn't force them to GPL that software.  If I am 
a copyright holder in the code, and they sell it, they have agreed then 
to the GPL I had on my original code (as they have no other right to 
distribute).  If their code is not GPL, then they have failed to meet 
their obligation in the agreement.

 From my viewpoint, I don't find it hard to believe that a Judge would 
accept that the company needs to uphold its obligation.  I could simply 
refuse a monetary compensation, or I could agree to them ceasing to 
distribute the code.

What is clear is that the company has to offer *something* of value in 
exchange for distributing the code.  And if I disagree with that offer, 
it will end up in the court system and a judge or arbitrator will have 
to decide what I get in return.

edA-qa mort-ora-y
Idea Architect

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