> >>> I'm sure the Free Software Foundation will see to it that the GPL
> >>> is actually heeded.
> >>Hmmm, I'm starting to worry about MS being able to STOP GPL.
> >>I wonder if MS took the concept to court if they could stop the whole
> >>process? They sure do have a boat load of money.
> >Nobody gains from challenging the GPL in court, so it will never happen.
> >Suppose MS took some GPL'd software and wrapped in up into Windows. Let's
> >pluck an example out of the air and say it was a TCP/IP stack. The FSF says
> >"Whoa! you can't do that, that's a violation of the GPL!". Microsoft flips
> >them the finger and says "See you in court". Microsoft wins and the GPL is
> >exposed as rubbish. What happpens then? The copyright is still held by the
> >author (or perhaps the FSF). Microsoft now has no license to distribute the
> >code *at all*. The GPL is no more. RIP.
> >Net result for everyone is a lose, so nobody will allow it to go that far.
> Actually, the judge could declare the GPL only partially void, or
> partially unenforcable. The judge could, for example, declare
> that none of the "you must give away the code" stuff is
> valid, and turn it into something like the BSDL.
But the judge would have to have an extremely strong position to stand on to do
something like that. The fact is, the terminology of the GPL was very purposely
picked to hold its own on legal merit. Furthermore, it's pretty obvious what the
intent was when someone used the GPL. If someone comes in after the fact and
violates the GPL, intent is very clear. As such, it's VERY hard to imagine that
someone could get away with something like this with both intent of the violator
clearly illustrated and the spirit of the GPL pretty well understood at this
point in time. You need to remember that there are two important aspects in
contract law. First and foremost is the terminology describing the contract/
license, the second is the "spirit of the law." What was the intent of the
contract, regardless of the terminology (and was it understood by both parties).
In this case, the intent of the GPL is very well understood and can be easily
supported by numerous interviews and articles. In short, it would be extremely
difficult for someone to strike down or walk over the GPL. Having said that,
a better question would be what would happen to the violator? Be forced to
immediately strip the code from the product and issue a recall? Be fined? Open
Source the product because it was known up front this would be the obligation
of the adopter? Or acknowledge that the GPL was violated and ignore the violation
giving 120-days to fix?
As you can see, the risk of the GPL being struck down, IMOHO, is not all that great,
on the other hand, the risk comes from any punishment and/or rectifying actions
the court could or would not impose on the violator. In other words, if a violator
is given a slap on the hand, it pretty much means the GPL stands, but the penalty
simply is not a motivator to prevent it. That alone would crush the GPL. That,
I think, is the FSF's fear.
Greg Copeland, Principal Consultant
Copeland Computer Consulting
PGP/GPG Key at http://www.keyserver.net
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