Re: IBM's interpretation of the GNU GPL contract

[Alexander Terekhov]

PJ-gloklaw's spin masterpiece:

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The GPL, Stage Front and Center - IBM Answers SCO's Attack 
 
Sunday, November 26 2006 @ 06:34 AM EST  

The intent of the GPL, as expressed in the unambiguous language of that
license, is that fees and restrictions not set out in that license are
barred.

I hope Novell and Microsoft read this quotation from this IBM filing,
its Redacted Memorandum in Opposition to SCO's Motion for Summary
Judgment on IBM's Sixth, Seventh and Eighth Counterclaims [PDF]. Then
just apply it, and we can all be friends. Joke, joke. I know Microsoft
isn't looking for friendship. It's looking to kill the GPL. Why would
anyone help them? 

Believe it or not, SCO is asking the court to kill IBM's copyright
infringement counterclaims, the ones based on the GPL violations, on the
grounds that SCO pretends it never violated the GPL. 

Here is its position, as stated in the Memorandum in Support of its
motion for summary judgment: 

I. SCO DID NOT BREACH THE GPL 

IBM’s Sixth and Seventh Counterclaims fail as a matter of law because
SCO did not breach the GPL. First, where SCO has copied and
re-distributed Linux, it has done so in compliance with the requirements
of the GPL. Second, nothing in the GPL – which by its very terms is
limited to “copying, distribution and modification” of Linux – precludes
SCO from issuing licenses to its UNIX software. 

Breathtaking, is it not? Can't they read? There can't be proprietary
code mixed in with GPL code. Period. Their only remedy was to take it
out pronto, if there ever was any such. They've certainly never
identified any that we've seen. Or let it join the Free World of the
GPL. There was no GPL option to leave proprietary code mixed in with GPL
code and then charge for it. Of course, the option to remove would be
only a courtesy, an optional one. Since SCO continued to distribute
knowingly, as IBM points out, after it became aware of the alleged
"infringement," it lost that argument long ago. 

SCO's fanciful reasoning includes the absurd proposition that the GPL is
a per se antitrust violation. Yes. Again. Well, well, that's very much a
match with the arguments of surrogate pro se litigant Daniel Wallace who
was recently resoundingly defeated in his attempt to prove SCO's theory
-- what a coincidence! -- and who, despite their best efforts, ended up
instead helping IBM, who quotes liberally from the judgments against
Wallace, who was quite literally mocked out of court. That's what you
get for listening to folks who don't understand the GPL and maliciously
wish to sidestep its clear purpose and intent. But of course, SCO must
try again. I've put the text of SCO's filing below IBM's, so you can
read them together. 

Folks, is it not obvious that this is all about trying to undermine or
destroy the GPL? Microsoft hates it. GNU/Linux's corporate friends are a
bit ambivalent, at least about GPLv3. And so GPLv3 will have to try to
deal with all the attempts to water down or destroy the GPL, what I'd
call the FOSS "corporate ethics policy," so to speak. Ethics is the
differentiating factor and the added value of Free and Open Source
software. Corporations have the practice of defining at the most senior
executive level the company's "corporate values". They publish a
document defining their corporate values and ask or require their
employees to read it and comply with it. FOSS has done the same thing
from the very beginning, starting with the GNU Manifesto, then the Open
Source Definition. There is the Debian Social Contract as well. These
well-known texts are published and serve the essential purpose of
defining what the community stands for. 

Unlike corporate value statements, the ethical position of the community
is enforced by a process, the licensing process. Licenses must comply
with their ethical statements. Approved licenses are published to allow
users to know at all time when a particular software complies. 

Corporations have nothing similar to enforce their value statements.
This underlines how important ethics is to FOSS that the community
devised an enforcement process where corporations did not.

Circumventing the spirit of the GPL is circumventing that process. It is
not a matter of being emotional about the license. It is a matter of
being faithful to the very essence of FOSS and the ethics that everyone
that chooses that license accepted as a value statement. And that's why
the Novell-Microsoft patent agreement is getting a much larger and more
intense reaction than the Sun-Microsoft agreement did. The former is
attacking what makes Free Software free software. It's attacking
community ethics. 

Getting back to this particular defense of the GPL, IBM correctly points
out that as a Linux company for some years, SCO can be presumed to
understand how the license it itself used for years works. SCO actually
claims that it had no notice that it was infringing IBM's copyrighted
works, despite the clear notice in the GPL itself, until IBM filed its
counterclaim. Even if that were true, how does it explain its continued
distribution after IBM filed its counterclaim? We're talking years, not
weeks or months. IBM tells the court that SCO continued to distribute at
least until August of 2006. 

SCO admits to the violation, without seeming to realize it, by saying it
was obligated by certain UnitedLinux contractual terms to make the code
available for a time. Okie dokie. In short, you did continue to
distribute despite having no license and hence you infringed IBM's
copyrighted works. IBM says they also continued to sell Linux after they
claimed to have stopped.

What is it about the GPL that folks find it so hard to comprehend? Or is
it just that they can't bear to comply? It can't just be that they don't
want it to be the way it is, although you can see that very clearly I
think in SCO's conduct and its explanations. But it seems deeper -- like
the Bible story about the enemy armies blinded by God when they were
viciously looking to arrest a prophet. He was standing right in front of
them, but they couldn't discern it. Here it strikes me the same way. The
terms of the GPL aren't that hard, and yet SCO presents arguments that
reveal them to be either incredibly blind to what they are admitting to
or ... or what? I confess, I'm stumped. But then, we now have the Novell
blindness too, so what in the world is the explanation? 

I know. Money blinds people sometimes. But as you read this filing, I
hope you will be noticing how similar the Novell-Microsoft deal is in
effect to the SCOsource arrangement. Both SCO and Microsoft want the
same thing -- to be paid for some unidentified "intellectual property"
inside Linux that each claims is in there and that they'll sue end users
over if they don't pay up.

Do you see any difference, just because SCO tried to use copyrights and
Microsoft patents? (If it is patents -- "intellectual property" doesn't
actually mean anything in the law. There are no laws about "intellectual
property", the laws are specifit to copyrights, patents and trademarks,
etc. But there is no law about "intellectual property", so when someone
tells you to pay up for "IP", tell them to be specific. Microsoft:
please be specific.) 

I hope you will also notice as you read this all the reasons why many
are disturbed about Tivo and view its conduct as contrary to the clear
intent and purpose of the GPL. But you say, they are keeping to the
literal, technical GPL requirements. Is that enough? And if you say yes,
what do you think will happen next to the GPL, with entities like SCO
and Microsoft in the game? 

And finally, ask yourself: if GPLv2 is so "perfect", how come folks do
to it what SCO here tries to do and Microsoft and Novell are now trying
to do too in yet another permutation of getting around the clear intent
of the license? It's important not to be blind ourselves to what is
going on -- and the bottom line with the GPL, as IBM so perfectly
expresses it is simply this: 

The intent of those who offer or accept licenses to software under the
GPL is clearly stated in its Preamble.... At its simplest level, the GPL
provides that anyone may copy, modify or distribute the work on a
royalty-free basis, provided they agree to distribute that work -- and
to license any derivative works -- only under the terms of the GPL....
As the Preamble to the GPL states, in part:

[T]he 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. Our General Public Licenses are designed to make sure
that you have the freedom to distribute copies of free software (and
charge for this service if you wish), that you receive source code or
can get it if you want it, that you can change the software or use
pieces of it in new free programs; and that you know you can do these
things. To protect your rights, we need to make restrictions that forbid
anyone to deny you these rights.... These restrictions translate to
certain responsibilities for you if you distribute copies of the
software, or if you modify it. For example, if you distribute copies of
[a program licensed under the GPL] ... you must give the recipients all
the rights that you have.

You must give the recipients ALL the rights you have. Is that not
English? Is it not clear? There is no use telling me that you've decided
it doesn't matter. Or you don't care. The license cares. That is a
fundamental purpose of the GPL. And folks need to respect other people's
"intellectual property", not just their own. Whatever the license says,
that's what it means. SCO, IBM points out, would like to be a "super
Linux licensee" -- able to enjoy the free code with all the rights that
the GPL provides, while restricting and charging everyone else. That
yearning is one that Microsoft appears to share. 

If you wondered what it would look like to bring arguments to a court
regarding the GPL, you can pretty much use this as a template. Although
this document is in response to SCO's motion for summary judgment, the
arguments IBM raises are pretty much what you'd use anyhow if you wanted
to sue someone for violating the GPL.
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regards,
alexander.