Legal Issues

by Timothy Lee

Filed Under:


Lawsuit Tests The Legal Status Of The GPL

from the license-or-contract dept

On Wednesday, the Software Freedom Law Center filed a lawsuit to enforce the GPL against a company that has been distributing GPL-derived software without disclosing the source code, as the GPL requires. The SFLC says this is the first US copyright infringement lawsuit it has ever filed for infringement of the GPL. Traditionally, SFLC head Eben Moglen has worked to settle disputes with companies without going to court. But in this case the lawsuit was filed less than a month after SFLC first contacted the defendant, Monsoon Multimedia, about its violation of the license. Luis Villa suggests a couple of possible reasons they moved so quickly. One is that Monsoon failed to respond to the SFLC's letters, leaving them little choice but to go to court. Another factor is the recent Jacobsen decision, which called into question the enforceability of open source software licenses. The SFLC may have felt its chances of winning on appeal were not as good with the Jacobsen case, which is more complicated and involves a less popular license. And so instead of appealing Jacobsen, they may have fast-tracked a case they believe will make it more likely they'll win on appeal.

This will be an important case because it will help clarify the legal status of the GPL and other copyleft licenses. The Free Software Foundation argues that the GPL is a license, and that any violation of the GPL results in copyright infringement. That would entitle the authors of GPLed software not only to monetary damages but also to prohibit further use of the software by the infringing party. But other legal scholars think the GPL may be interpreted as a contract, in which case only monetary damages would be available. And because GPLed software is given away for free, it's an open question how those damages would be calculated. It's conceivable that a judge could hold that the proper amount of monetary damages is zero since the software is being given away for free. The SFLC is clearly trying to avoid that outcome by emphasizing that the software in question is sold by "more than 100 manufacturers all over the world, including IBM, Nokia, Hewlett-Packard, and Siemens."

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  1. identicon
    JW, 24 Sep 2007 @ 8:15pm


    This is a fascinating issue. I have worked on several projects with friends that have utilized open source code under the GPL license and the topic of GPL enforceability has come up on more than one occasion. The issues we’ve discussed have led us to speculate that if the GPL were to be put to the test, it will ultimately be unenforceable. Let me preface this by saying that I am not a legal expert; the issues and conclusions that we’ve made are hardly worthy of consideration to any person with legal training. They are, however, rooted in logic.

    The “open source” nature of GPL licensed software/code is very well suited to the morally depraved coder who sees fit to make it their own without following the license agreement. One can easily modify the supplied source code to the point where he/she can argue that it was they who coded it from scratch; after all, how many different ways are there to skin a cat? It is inevitable that coincidental similarities in two completely separate pieces of code will surface somewhere, at some point in time.

    There is also the issue of monetary damages and to whom they are due. Since the open source community is so large and all of its members contribute their time and efforts to the project freely, there is virtually no way for a judge to decide who should be awarded the damages. Secondly, the fact that the code is distributed free of charge would also make it very difficult to determine how much, if any, money is due to the defendants for the infringement of the GPL.

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