31 May 2004

V-Days for the GPL

You wouldn’t have known it from reading the mainstream press coverage, but the last month has marked an epoch in the legal history of free software. The GPL has been the object of Microsoft-inspired attacks of every kind since Mr Gates and his colleagues woke up to its transformative power to remake the global software industry in a permanently unmonopolized image. Last month dissipated all the FUD that has been thrown at the GPL.

First off, we entered the era of global GPL enforcement. Harald Welte and his counsel Till Jaeger secured German judicial enforcement of the GPL covering netfilter/iptables, in a dispute involving embedded use of free software in networking appliances. Thanks to Harald and Till, the myth that “the GPL has never been enforced in court and so we don’t know whether it’s valid” is exploded. Their victory also debunks recent speculation (fueled by a Microsoft-sponsored research report) that the GPL faced serious legal hurdles in the German courts.

Meanwhile, in the US courts, the most vociferous antagonist the GPL has ever attracted is beginning to abandon the fight. Almost a year ago SCO responded to IBM’s GPL counterclaim in their ongoing litigation by pleading that the GPL violated, among other things, the United States Constitution and the Copyright Act. I repeatedly pointed out, in this space and elsewhere, that SCO’s legal positions concerning the GPL were absurd; I confidently predicted that they would never be the basis of any court’s conclusions of law. But SCO’s publicists routinely provided quotes from Darl McBride asserting that the GPL violated the American Way of Life. I debated Kevin McBride, Darl’s brother and at that time SCO’s legal philosopher in residence, before an audience of intellectual property lawyers in Los Angeles, and answered a speech of Darl’s in an appearance at Harvard Law School. Criss-crossing the continent stamping out nonsense was growing tedious. And then—just as some independent academic lawyers, such as Professor David McGowan of the University of Minnesota Law School, were beginning to publish pieces declaring ex cathedra that I was right—SCO folded its tents and stole away. Filing a new pleading with the District Court, SCO abandoned its outlandish claims.

SCO will not give up entirely on its anti-GPL litigation position. It must continue to assert that the GPL is not violated by SCO’s demand for license fees for use of the Linux kernel, which SCO itself has distributed under GPL. Otherwise SCO would be conceding, as IBM asserts, that it is intentionally infringing the copyrights of every contributor to the kernel. But SCO is no longer able to articulate even a plausible theory under which it can escape; its broad general claims against the GPL have been universally recognized, even by SCO, as untenable.

Thus in two of the world’s most important legal systems, the GPL has simultaneously and significantly triumphed. It might seem ironic at first sight that the formal legal victory occurred not in the litigious US but in Germany. The negotiation-focused strategy of the Free Software Foundation, however—which has largely determined the course of GPL-compliance activity in the US—is in fact complementary to the litigation-focused strategy adopted by the netfilter/iptables project, and by other development projects providing critical software components for appliance uses.

The real significance of this pair of developments lies not in the details of SCO’s climbdown or netfilter’s success. The big news is that general recognition of the GPL’s solidity, both in and out of court, is reducing uncertainty about the costs and benefits of adopting free software for enterprise use. Microsoft has labored expensively to create that uncertainty, hoping that any delay in the corporate adoption of free software would buy it time. But, as the new developments show, the strategy of attacking the GPL has failed.

I can’t very well say that I’m surprised. These results validate the basic legal engineering of the free software movement. One of the Free Software Foundation’s most important commitments to the movement has been to provide a license that would protect software born free. We have delivered on our commitment, and the GPL is proving its worth. The opponents of freedom will not give up, but our first and greatest bulwark of defense stands strong. Attacks against the license will continue, but with diminishing energy; the tide has turned. Other legal attacks on freedom are inevitable, and we will be ready for them. Like the software itself, the legal system with which we surround free software matters.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2004.05.31-00:00.00

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