Posted on 05/03/2005 5:36:11 AM PDT by ShadowAce
The Free Software Foundation (FSF) and the General Public License (GPL), the great enabler of the open source movement, were sued last Thursday for restraint of trade under the Clayton Antitrust Act (15 US Code Section 26) in the US District Court for the Southern District of Indiana.
The pro se suit, filed by physicist, computer programmer and Groklaw gadfly Daniel Wallace, charges that the GPL “contract licensing scheme” artificially fixes software prices.
Wallace is asking the court for an injunction that would outlaw the use of the GPL in the United States.
The four-page suit claims that the “Free Software Foundation has entered into contracts and otherwise conspired and agreed with individual software authors and commercial distributors of commodity software products such as Red Hat Inc. and Novell Inc. to artificially fix the prices charged for computer software programs through the promotion and use of an adhesion contract that was created, used and promoted since at least the year 1991 by the Free Software Foundation Inc. This license is known as the GNU General Public License. The price -fixing scheme implemented with the use of the GNU General Public License substantially lessens the ability of individual software authors to compete in a free market through the creation, sale and distribution of computer software programs.”
Mr. Wallace claims that his “ability to work and create commercial computer programs is dependent upon a market free of restraints on trade through price-fixing schemes” and that the “rapid adoption of the GNU General Public License in schemes to deflate or eliminate the free market valuation of computer programs threatens to diminish or destroy [his] ability to earn future revenues in the career field of computer programming.”
He said in an interview on Sunday that he would probably ask the court for a summary judgment.
Even open source advocates have expressed doubt that the GPL can stand up in court and credit the Free Software Foundation’s skillful avoidance of a legal showdown for preserving the GPL this long.
Larry Rosen, the former general counsel of the Open Source Initiative (OSI), the body that authorizes open source licenses, has called the GPL and LGPL an “impenetrable maze of technological babble” and has raised questions as to the GPL’s legitimacy because of its obtuseness, its idiosyncratic misinterpretation of copyright law, its lumping of collective works in with outlawed derivative works and treating them like they’re the same thing, and its legally untenable position of forbidding anyone from linking unmodified GPL and non-GPL software.
Open source zealots would claim that software doesn’t rest as firmly on copyright law as Rosen suggests and that the copyright claim basic to Rosen’s argument can be shot full of holes.
The only known time the GPL has been hauled into an American court was in 2001-2002 during a contract flap between MySQL AB and its then US distributor, NuSphere, the Progress Software subsidiary. Progress sued for breach of contract and MySQL countersued charging NuSphere with trademark infringement and breaking the GPL in federal court in Massachusetts.
The GPL charge wasn’t central to the case and its validity wasn’t specifically ruled on, but before the case was settled out-of-court in late 2002, the judge hearing it purportedly deemed the GPL “enforceable and binding.”
At least that’s what the Free Software Foundation, which helped MySQL out with the case, said she said after a go at mediation failed and the case bounced back to her court.
According to what was reported at the time, Judge Patti Saris didn’t use the words “enforceable and binding” in open court but the Free Software Foundation, which had filed an affidavit in support of MySQL, insisted that’s what she meant.
Evidently the judge never questioned the GPL license, quoted sections of it at Progress’ chief counsel, asked how exactly NuSphere had complied with this or that GPL term, indicated that Progress needed to comply with the license and told MySQL lawyers that they could come back with a new motion for a preliminary injunction stopping NuSphere from selling the MySQL database if discovery indicated NuSphere hadn’t fully complied with the GPL.
The judge refused to grant an injunction MySQL wanted at that point because she wasn’t convinced MySQL had been irreparably harmed and anyway NuSphere was back in compliance with the GPL by then.
The GPL part of the squabble revolved around the central gotcha in the GPL that scares a lot of people off open source. NuSphere had linked a proprietary storage module called Gemini to MySQL and didn’t immediately provide the Gemini source code although it did a few months later, theoretically bringing it into compliance.
When a GPL product is combined with a non-GPL product, the GPL says the source code for the non-GPL product has to be released. NuSphere claimed its Storage Engine didn’t have to be GPL’d because it wasn’t a MySQL derivative. It was based on technology that Progress had developed years before and used elsewhere.
NuSphere maintained that it hadn’t violated the GPL at all. It said the idea that it violated the license by statically linking proprietary software to MySQL is an extreme interpretation of the GPL.
It also claimed that MySQL had broken the GPL by adding conditions, something GPL disallows, demanding that a commercial license be used for code distributed over a network because of linking.
NuSphere had a problem with the Free Software Foundation’s view that even a trivial violation of the GPL puts the licensee at the mercy of the licensor, who may legally refuse to re-authorize the licensee to distribute the licensor’s GPL software even if the licensee fully rectifies his earlier violation.
Ironically, NuSphere underwrote MySQL’s shift to the GPL and reimbursed the company, then known as TCX Datakonsult, for losses it might suffer from going GPL. MySQL previously used a semi-open license of its own called the Free Public License as well as a traditional commercial license.
For those who are looking for it, Mr. Wallace’s suit against the Free Software Foundation is Civil Complaint No. :05-cv-0618-JDT-TAB.
Here's Larry's comment on her latest piece of work:
Oy vey!Maureen O'Gara continues to misquote my comments about the GPL in order to fuel her personal vendetta about that license. I have never disputed the GPL's legitimacy or its enforceability as a copyright license.
Many individuals and companies have proposed other licenses they prefer to the GPL for a variety of reasons that I summarize in my book. But to suggest that this means the GPL is invalid, or to propose, as "Groklaw gadfly" Daniel Wallace now apparently does, that the license creates "a restraint of trade," is to misrepresent the legal and business situations that drive license diversity. The GPL is chosen, not forced.
As to Wallace's lawsuit, it's bunk. The conscious effort of the free software community to deliver "free" software shouldn't in any way impede Mr. Wallace's efforts to sell his at a higher price, assuming his software is better. What he really wants, it appears, is the opportunity to sell derivative works of *my* software without paying *my* price--a deal the law doesn't require me to give him.
Bump.
Now we know who we can kick around when we don't have Darl McBride to kick around anymore.
Just one problem: the GPL doesn't set or restrain prices.
Well, both Maureen O'Gara and Linux Business Week are anti-linux, pretending to be covering Linux news for the Linux community. Both of them are good sources for "news" that generally shows Linux in a bad light.
That's because people usually settle, because they are clear-cut cases of copyright infringement. Don't like the GPL? Then don't accept it. You're still free to use the software.
Whenever someone plays the Linux keeps me from making software I point at Oracle, and BEA who make closed source commercial software (that runs on Linux) I would buy in a second. Then I point at RaidZone, and Linksys (hardware vendors) who might not exist without the GPL..
Exactly. Talk about false advertising.
That being said, if I write a program and you want to use it, we can negotiate the terms of the licensing. I can charge you money up front. I can charge you per copy you distribute. I can make you stand on your head and sing the Argentine national anthem to use my program. You have the option of saying "That's just silly. I'll write something myself instead." I can also make you publish any changes to the program and prevent you from saying that a one line change makes the whole thing yours, along with making you pass those licensing terms to anyone else who you allow to use the program. If you don't like those terms, just don't use my program. Don't agree to my terms and then later cry that you don't think that my terms were fair.
Are you saying that if you create your own software with your own code, that the GPL allows buyers to give it away for free? That's going to be news to a whole lot of software companies in this country.
The only "seller" the GPL hurts is someone who wishes to take someone else's source code, compile it, and sell the result as proprietary.
And, like most pro se complaints, it's 1/3 fact, 1/3 law, and 1/3 amateur goofiness.
Maybe you should read my post and the one I was responding to before getting sarcastic on me..
I am not saying thats not true what I am saying is we should avoid half truths that make us as bad as the shill that wrote this 'article' of trash...
That's only partially correct as well. Red Hat charges for support as well as software. Also, CentOS does not include some proprietary code and utilities that RHEL comes with.
You can turn around and give away the GPL'ed porttion of RHEL--but not the proprietary part of it.
I don't understand your complaint that when you use someone else's software, they get to dictate how you use it. Or is it a complaint?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.