Taking the Case: Is the GPL Enforceable?
2005; Routledge; Volume: 21; Issue: 2 Linguagem: Inglês
ISSN
0882-3383
Autores Tópico(s)Copyright and Intellectual Property
ResumoWould the GNU General Public License be enforceable in a U.S. court? With the meteoric rise of the Linux operating system, the license that governs the Linux kernel and thousands of additional open source software programs has come under increased scrutiny. As a part of that scrutiny, some people have questioned whether the license is legally enforceable. This article seeks to answer that question. I. INTRODUCTION Ianal is web-speak for the disclaimer am not a lawyer. So begins many a discussion on the enforceability of the GNU General Public License (GPL). This disclaimer, however, is often followed by analysis of a legal nature. The conclusions drawn run the gamut from completely off the mark to well-informed, solid arguments regarding the legal aspects of a fairly simple but misunderstood document. In my position as the General Counsel of MontaVista Software, Inc., I have heard most of the arguments as to why the GPL is or is not a valid legal document. I address below each of the major concerns that I have heard expressed, and respond to each from the perspective of both a lawyer and a businessman who uses the GPL daily. While I have an admitted bias toward wanting the GPL to be enforceable, I have based my analysis--and the order of the rankings--on the law. My legal analysis is based solely on U.S. law, and does not take into account non-U.S. peculiarities such as the German legal prohibition on disclaiming certain warranties and liabilities. A. Why Should You Care? 1. A Quick Background on Linux and Open Source Linux is the fastest growing computer operating system in the world. (1) It powers everything from consumer electronics (such as mobile phones, PDAs and TV set-top boxes) to medical equipment to communications routers. It is being utilized worldwide by companies such as IBM, (2) Oracle, (3) Motorola, (4) Sony (5) and hundreds of others. Linux is one of the best known open source technologies, but other open source technology powers the web, sends your e-mail, and performs myriad other tasks on both the desktop and in embedded applications. (6) Under a typical open source software license, computer source code is provided to the licensee, and the licensee is free to copy, modify and redistribute that source code along with the resulting binary files. Open source software is created and modified through the collaborative efforts of a large community of developers, including multiple commercial enterprises and individuals, rather than any single organization. Unlike traditional proprietary software, open source software is available under licenses that permit developers to write new code, alter existing code, receive feedback on the code and share improvements with others, with minimal restrictions. 2. A Background on the Challenges and Open Source Litigation As part of the rapid growth of Linux--and in some cases directly in response to this growth--a number of lawsuits have been filed which include issues related to the GPL or GPL-licensed code. It is widely rumored, for example, that The SCO Group's (SCO) lawsuit against IBM was filed, in part, as an effort by SCO--and indirectly by Microsoft--to slow the rapid growth of Linux, which presents a significant challenge to the business models of both SCO and Microsoft. (7) Ever since SCO filed a $1 billion lawsuit against IBM for allegedly misappropriating Unix technology that wound up in the Linux operating system, rumors have been rife about Microsoft secretly bankrolling the litigation. (8) The prevailing theory is that, [i]f SCO is successful, the lawsuit could undercut the gathering momentum behind Linux. . . . At the very least, the litigation creates a cloud of uncertainty in the minds of information technology managers who are considering using open-source software. (9) After all, [t]he last thing that a chief information officer wants right now is to have to explain to the chief executive why the company's cool new computer system could result in a huge legal tab. …
Referência(s)