On Sat, 23 Sep 2006 09:57:48 +0100, Roy Schestowitz wrote:
> Yes, the GPL has won in court for (at least) the third time in just a couple
> of week. There's more on this in Groklaw.
>
> http://www.groklaw.net/article.php?story=20060922134536257
As I suspected, this does not appear to be a case of testing the GPL in
court, as is bandied about so often every time some case happens.
The opinion of the court is that they didn't even consider the validity of
the GPL because it was a catch-22 position. If the GPL were valid, then
D-Link would be guilty of violating the license. If the GPL were invalid,
then they would be guilty of copyright infringement. As such, D-Lind was
going to lose either way and the question of the validity of the GPL was
moot.
The same is true of the 2004 Munich decision, AFAICT. The courts have
concluded only that the GPL did not, in any way, forfeit the rights of the
copyright holder to enforce their copyrights. The ruling does not rule on
the validity of the GPL.
This presents an interesting situation. If you could get a court to rule
the GPL invalid, that would mean all GPL'd software that's currently out
there would suddenly make millions of copyright infringers, and effectively
halt the progress of GPL'd software while licensing issues were
straightened out, and authors were contacted to get them to issue new
licenses. It could restrict the distribution of software like the Linux
kernel for years.
The question is, what sort of situation would have to occur that would
allow a judgement upon the validity of the GPL? In most cases, a company
would not want to challenge the validity of the GPL, even during a lawsuit,
because they would otherwise be guilty of copyright infringement. It would
have to be someone that didn't care if they were found to be guilty of
copyright infringement, or someone that would be sueing to get an
interpretation of the GPL to verify it's validity.
What this boils down to is that it doesn't matter if the GPL is valid or
not, it's impractical to get it challenged, since you lose either way in
most cases. In effect, it's the worlds most obfuscated covenant not to
sue. It says "I won't sue you, if you follow the terms of the GPL, whether
it's legally binding or not"
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