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.comment: Judgment Day for the GPL? - page 2

Determining the Legality of the GPL

  • June 26, 2000
  • By Dennis E. Powell

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.)

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