.comment: Judgment Day for the GPL?

By: Dennis E. Powell
Monday, June 26, 2000 12:25:22 AM EST
URL: http://www.linuxplanet.com/linuxplanet/reports/2000/1/

Determining the Legality of the GPL

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 an 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.)

A copyright, meanwhile, is not a contract. Instead, it avails the creator of intellectual property of the protection of copyright law, which is limited to the life of the author plus 70 years, by which time the author is likely to be concerned with other things. One need do nothing under current law to establish copyright--it's no longer necessary, even, to post a copyright notice. All one needs to do is to create the work in a recognized medium, though being able to prove that one created it and when it was created is not a bad idea. Under copyright, no one may, really, do anything with your work without your permission.

Contracts are customarily the means whereby that permission is granted. As is the case with other "property rights"--which is what copyright stakes its claim upon-- contracts are means whereby parties may sign away all or part of their rights to a particular property, upon an offer having been made by one side and agreed to by the other. Though third parties may receive benefits of a contract, they cannot become obligated by one. And here is where the chafing begins.

Professor Robert P. Merges of the Berkeley Law School noted some of the problems in his "The End of Friction? Property Rights and Contract in the 'Newtonian' World of On-Line Commerce" (12 Berkeley Tech. L.J. 115), in which he describes the GPL as "informal (i.e., not legally enforceable) restrictions on digital content."

Not legally enforceable?

"By its own terms, the copyleft agreement is an unusual license; at the most basic level consider the problem of determining damages when the licensee frustrates the licensor's expectation of zero profits under the contract," writes Merges. "But what is most significant about the agreement is that it purports to restrict subsequent transferees who receive software from a licensee, presumably even if the licensee fails to attach a copy of the agreement. As this new transferee is not in privity with the original copyleft licensor, the stipulation seems unenforceable."

This isn't as complicated as it sounds. "Privity" simply means party to the contract, and it works both ways: I can sign a contract with you whereby you give me some money and I send flowers to your mother. If I fail to send the flowers, you can sue me, but your mother can't, because she's not a party to the contract. Likewise, I might sign an agreement with you whereby I give you some money and in return you agree that your mother will come to my house and, I don't know, bake a pie some Sunday afternoon. Your mother is not obligated to live up to the terms of the agreement, because she's not party to it. If she doesn't bake the pie, I can't sue her but I can sue you.) Merges's point is that the GPL isn't an enforceable contract because it obligates parties who did not agree to it.

Nor is this an inconsiderable point. Big hunks of code, often with hacks in place, are sent back and forth and all around, all the time, without the GPL being attached. No doubt the parentage of this code is sometimes in doubt. It would not be at all surprising to learn that some of it had found its way into commercial software, distributed without source code, in violation of the GPL. Writers of free software who also write commercial code during their day jobs might well entirely unknowingly have occur to them some elegant way of handling a problem, not realizing that it occurred to them because they had seen it someplace else. Or--here's a neat one--the author of a piece of code, perhaps a whole source file, who adds it to a project under the GPL and then, a week later, at work, decides to include it in a closed-source, commercial project there. Can code be un-GPLed? Under current law, apparently it can, unless you've specifically assigned your rights to someone else. The FSF encourages software authors to assign their rights to the FSF.

It will not surprise you to learn that Moglen disagrees with Merges:

"There's no absence of privity [which isn't required anyway]. If you sell someone a book she has a right to give it to whomever she pleases. That's the first-sale rule. But the donee of the book may not copy it and give away copies. You can enforce your copyright against that donee, even though you are not in any contractual privity. In the case of the GPL, no one is bound to anything in particular unless she redistributes the software, modified or unmodified. Because copying and redistribution, or the making of derivatives, are never authorized in the absence of a license, undertaking to redistribute is clear acceptance of our terms for redistribution. There's nothing unorthodox about that, and no barrier to enforcement."

Which brings up, then, the issue of copyright. The GPL is unusual in that rather than seeking to prohibit the making of copies it instead seeks under some circumstances to force the making of them. It does not place code in the public domain but instead attempts to create a domain that is guaranteed public, which is quite a different thing. And it is unusual in that, as Moglen points out, it doesn't especially restrict the end user but instead the distributor and the developer of derivative works.

But still unanswered in the minds of many in the legal community is whether or not the GPL is in fact a contract, and if so, to whom it applies. This adds a new level of complexity, because in the United States copyright is a federal law (and the U.S. has agreed to international copyright conventions), while contract law is a state matter. Also unanswered is whether the owner of a copyright--the person who wrote the thing--published under the GPL can later withdraw from the GPL. One cannot remove his work, once there, from the public domain, but the FSF makes a point of stating that the GPL is not public domain.

"A licensing lawyer looking at the GPL would say, 'What's this thing?'" a lawyer with a leading California intellectual property firm told me. "It's not written like a standard license."

Nor can the patent issue be overlooked. Nowadays, everything in sight is patented, and a patent can easily be violated accidentally. What happens when a free software developer unintentionally violates someone's patent and releases the code under the GPL? One can easily suppose that the privity issue will become much more attractive at that point. When code has been deemed illegal and has been distributed all over the place under a license that encourages further distribution, you can imagine that reeling it all back in would be pretty tough. And you can imagine that a lot of people distributing the code would offer the privity defense in claiming blamelessness.

These kinds of disputes, the taking of GPLed code by closed-source developers, and other issues are things that are likely, sooner or later, to come before a judge. At least one GPL issue may achieve that status as early as this summer.

The Court Isn't Everything

What no one is saying is that the GPL is valueless, and anyone making that claim would have a mountain of evidence to the contrary to overcome. In fact, the GPL is a strong statement of both philosophy and the behavior derived from that philosophy, and it sets a standard for the most vigorously growing area of software development. Merges wrote as much:

"Even so, copyleft no doubt carries some moral force in the on-line community. It therefore serves as an example of a non-binding, informal norm in cyberspace. The copyleft license in this community is the equivalent of a statement of good practices. Surely some programmers dutifully pass along the license and police cases where subsequent transferees receive code without such a license. In short, the notice is aimed at the perpetuation and enforcement of a norm that holds some force in this community, and it is therefore worth mentioning in a catalogue of rights in digital content."

Moglen has used the GPL to great effect in successful negotiations with software publishers. Perhaps it is, as he says, due to the legal validity of the GPL, but the element of moral suasion probably shouldn't be ignored either. While there are scores of unbeloved software billionaires in the world, nobody likes to be hated, and flagrant violation of the GPL would certainly spark that in much of the community. (Just look at the flames that erupt over what to anyone not involved seem like extremely minor points of the GPL; raging disputes over purity that surely match in passion similar discussions at 1930s Community Party cell meetings.)

Companies tend to honor the GPL. One lawyer specializing in high-tech intellectual property issues told me that as part of "due diligence" research her firm investigates whether companies use any GPL software, and if so, under what circumstances. She is asked sometimes whether a company that has altered GPL code for internal use must make it public. Part of this is in the spirit of cooperation; part is because companies don't like to go to court, even if they believe they will win. It costs time and money and there's always the chance that even the best case will come up a loser. When it's discovered that GPLed code is being used in a way the FSF finds improper, the allegedly offending company hears from its legal representative.

"I have secured nonjudicial enforcement of the GPL numerous times in situations like that, never failing of cooperation even from reluctant entities once the legal situation had been explored by them," explains Moglen.

Surely, for whatever reason, the GPL has done a great deal of good; whether it has done or can do any harm is for the future to reveal.

But its appearance in court--and if it does not come this summer, it will come later, and probably more than once--will likely end some confusion, revealing not to just the rest of us but to its shepherds themselves the extent of its power and its actual meaning.

This won't necessarily happen in the first case, right out of the box. This has to do with the nature of the case itself--again, the FSF is smart enough to choose a test case that it is likely to win--and other factors that cannot be predicted at all. Because it will probably result in new law, random factors such as the judge assigned to the case, his or her mood and opinion of the lawyers involved, and competence of his or her law clerk are huge and unpredictable variables.

"It's going to be interesting" one lawyer told me. "It's just a different paradigm entirely."

(Moglen's manifesto, "Anarchism Triumphant: Free Software and the Death of the Copyright," can be found at http://emoglen.law.columbia.edu/my_pubs/anarchism.html. In it, he argues for the elimination of intellectual property rights. It is a very interesting read, just as it is useful for the reader to contemplate whether the elimination of intellectual property rights is necessarily a good thing.)