GPL Awaits Test in SCO Group/IBM Dispute

By Sean Michael Kerner

Is the world’s pre-eminent open source license, the GNU General
Public License (GPL) unconstitutional? That is one of the many questions that could be addressed as a part of the SCO Group’s $3 billion lawsuit against IBM that challenges intellectual property in parts of Linux.

SCO claims that the Linux program contains material over which SCO holds copyright and has brought trade secret claims against IBM alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel.

Darl McBride, President and CEO of The SCO Group, asserts in an
open letter and other public forums that “the GPL, under which Linux is distributed, violates the United States Constitution and U.S. copyright and patent law.”

McBride claims that the Free Software Foundation (originators of the GNU GPL license) and others in the open source community “have set out to actively and intentionally undermine the U.S and European system of copyrights and patents.”

IBM has counter sued SCO Group in response to the $3 billion claim. Red Hat filed a formal complaint last August against SCO Group in a bid to show that it did not infringe any intellectual property of SCO.

The case does have the potential to put the GPL to the test against existing copyright law, intellectual property experts said. However, “the IBM/SCO dispute will not alter copyright law — if anything
copyright law will affect the outcome of that dispute,” said IP attorney Philip Albert.

The GPL is a product of the Free Software Foundation and originally dates
back to 1985 when version 1.0 was released. That version was replaced
in June 1991 by version 2, which is the
which is the license that is currently in use.

It is, like the organization that created it, a statement of
freedom. The preamble of the license states that “licenses for most software are designed
to take away your freedom to share and change it. By contrast, the GNU
General Public License is intended to guarantee your freedom to share
and change free software–to make sure the software is free for all its users.”

Essentially the GPL allows “licensees” to use, copy, modify and
re-distribute GPL licensed software for free, so long as the program
remains GPL licensed.

Among the versions of GPL licensed software are
such notables as Linux, MySQL, Samba, and the Oracle Cluster File System
(OCFS). But the GPL is not the only open source license. Like Linux, it
just one flavor. The open source initiative, for example, lists over 50 different OSI approved licenses on its site. Two of the most popular are the BSD and the Apache Software licenses. In contrast to the GPL, however,
both allow for the future redistribution of programs under a proprietary or commercial license

“With GPL, you can be sure of the terms permanently,” said Eben
Moglen, general counsel of the Free Software Foundation, and a professor of law at Columbia University.

“It’s not just that today’s code base will
always be free,” he said of the GPL’s intentions. “It’s that what was born free is going to stay free in all the versions it’s going to have.”

Stacey Quandt, principal analyst with open source advocacy group Open Source Development Labs (OSDL), said the GPL is actually considered to be one of the most restrictive licenses because it demands that all derivative works be licensed under the GPL upon their release.

“This means that if even a small piece of GPL software is
combined with non-GPL software the program becomes ‘infected’ under the GPL’s redistribution terms,” Quandt told

Use of Open Source and the GPL are now considered to be a competitive advantage by most leading software vendors, Quandt added, but with one notable exception, Microsoft. “Specifically, Microsoft targeted Samba which is licensed under
the GPL, and which uses Microsoft’s Common Internet File System
protocol (CIFS),” she said.

Microsoft attempted to use patent and license rights to stop the use of CIFS with GPL licensed software. The claim failed in the end, as the patents
claimed by Microsoft were not in use by Samba at the time.

But Moglen asserts that the SCO dispute isn’t really about copyrights anyway. “This is not a copyright lawsuit yet. Copyright claim, number one, has yet to be filed by SCO against anybody,” he said. “The only copyright claim made so far is IBM’s counter claim against SCO.”

SCO Group began a round of legal maneuvers in November, including sending letters to Fortune 1,000 and the Global 500 companies in the form of an open-letter that said legal action could be possible if they don’t pay a licensing fee on parts of the Linux operating system that SCO is asserting copyright. The company said action could come within 90 days, and case-watchers have early February marked on their calendars for any possible developments.

In his defense of the GPL and open source, Moglen asserts that it is SCO (which distributes its own brand of Linux under the GPL) that has actually violated the GPL. Section 6 of the GPL license states that users cannot add terms to the license, Moglen explained. He asserts that “SCO was trying to add terms.” Section 4 of the GPL denies the right to redistribute if the terms are violated.

“They can say the GPL is invalid, but it’s not legally relevant,”
Moglen told “In order for them not to lose the lawsuit they have to have a license and the license they claim to have is GPL.”

Moglen said he is confident that the GPL version 2 is actually performing as
the Free Software Foundation originally intended it. “The GPL is doing the job it’s supposed to do by defending freedom by creating legal difficulties for people who attack freedom,” he said.

“So, no it’s not actually testing the GPL, though everyone is behaving as though it is. Though, if this is a test of the GPL it is a test that the GPL will pass.”

On the question of whether “share and share alike” nature of the GPL could be unconstitutional, Bruce Perens, executive director of the Desktop Linux Consortium, argued that the constitution also provides for other forms of compensation on intellectual property.

For example, Perens said, he is a GPL copyright holder on an embedded Linux toolkit that is used in many networking hubs and access points that other companies are selling. “My compensation was to have the other people who worked on that software contribute their improvements to the public as I did. That is what the GPL enforces. We call it share and share alike.” Others, such as Microsoft, he asserted, might call it a form of Communism.

However, he added, “I think that eventually we’ll see some of the open source licenses tested in court. Some of them are very close to straight copyright permissions. If
you overturn a term of your license you do not gain rights, you lose them, because the terms of the licenses are what protect you from all rights reserved, which is a default in copyright law.”

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