That Notorious Suit (Slightly OT)

[Nathan Kelley]

To Daniel Carrera <dcarrera at math.umd.edu>,

>>> From: Daniel Carrera <dcarrera at math.umd.edu>,
>> From: Nathan Kelley <digitaleon at runbox.com>,
> From: Daniel Carrera <dcarrera at math.umd.edu>,

>>> 1) Within your scenario, you should also consider the *probability* 
>>> of the GPL being found wanting.  This is an important point.  For 
>>> example, I don't have a contingency plan in the event of meteor 
>>> collisions.  But the probability of one happening is low enough that 
>>> I'm not worried.
>>
>> That is a debatable point. For every claim that the GnU General 
>> Public License is bulletproof, I can probably find a counter-claim 
>> that, in one user's words, "the GPL has holes you could drive a truck 
>> through". Who's to say which is correct with genuine authority and 
>> independence?
>
> Well, my point of view (that the GPL is safe) has over 20 years' worth 
> of testing in the form of the fact that not a single GPL violator (and 
> there have been several) has felt that the could win against the GPL 
> in court, and so each one has preferred to settle the issues out of 
> court. If the GPL were weak, it seems likely that people would have 
> taken advantage of that by now.

In the past 5 years, products released under the GPL - specifically 
Linux-distributions and products designed to run on them - have had an 
increasing amount of enterprise exposure, backing and support. I can 
attest to a number of enterprises I know of promoting 
Linux-distributions as a stable and mature platform for business 
delivery to the corporate executive. Where the money goes, the suits 
follow. This current suit definitely won't be the last.

As worded, the GPL is hardly weak. But, it doesn't have to be to fail 
in court, since there are many different angles from which it can be 
challenged. A plaintiff going to court simply to challenge the validity 
of the GPL isn't likely to happen; after all, what would be the point? 
Rather, as with the current suit, the GPL comes up incidentally during 
proceedings.

I have no doubt of the FSF's and open-source community's ability to 
adapt to piecemeal rulings on the GPL, but that does depend on _what_ 
the rulings are. Which brings me back to my original question.

> Now, I wasn't really comparint the probability of the GPL failing with 
> that of a  meteor impact.  That was just an example.  I'm just saying 
> that probabilities should be considered.  The point is that not all 
> posibilities are created equal.  This is a point that many people seem 
> to miss (I'm not saying you did).
>
> But yes, it's also wise to look at as many options as is feasible.

Exactly! That's why click-wrap and friends have been such a huge deal 
on this list and on other forums; "what if someone wanted to sue for 
damages?". The likelihood of a volunteer developer or small development 
business actually being sued into the ground by an enterprise is slim, 
but no chances are taken.

>> I agree on that point. Those licenses are very unlike the GPL. But 
>> there are many licenses out there, some of them close to the GPL in 
>> fashion. Those could also be in the same boat as the LGPL, and 
>> claiming that they have nothing to do with the Free Software 
>> Foundation might not help down the track; if it walks like a duck and 
>> it talks like a duck, after all...
>
> In an ideal world, association with the FSF shouldn't matter.  A 
> license is
> (should be) valid if it's language is clear and legal.  So if the GPL 
> is
> valid/invalid, I would expect that similar licenses would be likely to 
> be
> valid/invalid respectively.

I would hope so too. It's really easy to avoid the whole question of 
which licenses are valid and enforceable and which licenses are not 
through tarnishing by association. Unfortunately, that's exactly what 
some will do.

>> And of course, should the decision go the _other_ way, that being the 
>> GPL has not been found wanting, a long-time claimed stumbling block 
>> to adoption of GPL'd products would be diminished, or removed 
>> entirely. The GPL's near relations would again also benefit.
>
> I had never heard of this stumbling block (not to say that it wasn't 
> there). But I've never heard of someone not wanting to use a GPL 
> product because they weren't sure if the license would stand in court.

It's a point commonly brought up by analysts when handing out advice 
through c|net, BusinessWeek, InfoWorld, and friends. They don't put 
stock into the GPL apparently because a high-priced team of lawyers 
didn't create it. That is, of course, a silly point to make, but they 
make it anyway. And people listen, including The People Who Matter™ at 
any given workplace.

>> I agree on this point, too. Which raises the point that perhaps, were 
>> the BSD license used for most open-source projects and were _that_ 
>> license the one that IBM was backing, would this whole situation of 
>> grander and grander claims by SCO each month or so not have come to 
>> pass? For that matter, could the proceedings have moved quicker?
>
> Ah... now I can't help but bring up a conspiracy theory...
>
> Why is SCO doing this anyways?  Ultimately it's because either they, 
> or their
> masters (if any) cannot grab GPL'd Linux, steal the great stuff, and 
> break
> compatibility.  You know, embrace, steal, extend and lock-in.

That's a theory I've heard advanced more than a few times. Proving 
SCO's motives in this area looks like a tooth-'n-nail fight.

> The GPL is precisely what makes Linux such a strong competitor.  If 
> Linux were BSD then everyone could just grab whatever improvements 
> Linux made and extend them.  Linux would be perpetually behind while 
> certain companies get a free ride on the effort of thousands of 
> volunteers.
>
> If Linux were BSD there would be no suit, simply because there would 
> be no
> competition.

I agree wholeheartedly with this point. And there wouldn't be thousands 
of volunteers if they thought they were providing free labor for 
others, particularly development houses that then released products 
only for the Windows platform. Fortunately, we're not in that 
dimension.

Cheers, Nathan.
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