Among the allegations raised by The SCO Group in its current spate of lawsuits is that the GPL — the GNU General Public License, which is used for much open-source software, including Linux — is unconstitutional and in violation of federal copyright and patent laws.
SCO bases this claim on the clauses in the U.S. Constitution that establish a principle of copyright protection “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
If that allegation is upheld in the relevant court case — or, indeed, if SCO prevails in any of its lawsuits — what consequences might result for the GPL, or for free or open software licensing in general?
Behind GPL Design
The legal minds behind the design and implementation of the GPL don’t seem especially concerned. Professor Eben Moglen, currently on leave from the Columbia University law faculty, has been — as counsel to the Free Software Foundation (FSF) — the lawyer most involved with the application and testing of the GPL for more than a decade. He says, “I believe the constitutionality attack on the GPL is not a tenable legal argument but is rather a public relations argument.”
In a talk at Harvard in February, he addressed the issue of constitutionality by referring to Congress’ recent extension of copyright term limits. “It turns out that there’s no such thing as an unconstitutional copyright rule,” he said, “if Congress passes it, and if it observes the distinction between expression and idea.”
Referring to the Supreme Court’s decision in Eldred v. Ashcroft, he continued: “The existing copyright law is constitutional and our license, which fully observes all the requirements that the copyright law places upon it, is also presumptively constitutional.”
The upshot, believes Moglen, is that “…the likelihood that there will be changes in the GPL as a consequence of this litigation approaches zero.”
All Things Must Pass
Whether or not he is correct in this interpretation, the GPL, like all contracts in a changing world, will have to adapt to new conditions. After all, Version 2 of the GPL was created and launched by Richard Stallman of the FSF way back in 1991.
“Since that time,” notes Moglen, “the world has changed quite a lot. In the first place, the technical environment of software has changed. Compare the Net of 1991 to the Net of today. And the second thing is that the commercial environment surrounding free software didn’t exist in 1991 and is now an industry worth tens of billions of dollars.
“There will be changes in GPL,” he says. “Mr. Stallman and I have been developing Version 3 of the GPL for some while now, and we will in due course release a discussion draft and begin the public conversation directed at its adoption.”
That public conversation will have many voices. “In 1991,” Moglen recalls, “the people who needed to be convinced that the license was good to use were essentially independent software developers and research computer scientists around the world. In order to change GPL now, you have to consult the needs and attitudes of people in almost every country and legal system on Earth, ranging from independent garage developers to IBM, Hewlett-Packard, Siemens, Nokia, Motorola.
“It’s an unimaginable alteration in which multinational corporations as sophisticated and well-funded as any on Earth need to have their opportunity to speak on relatively equal terms with teenage program developers working in their homes in far-flung corners of the world.”
Asked what changes we might expect to see in Version 3, Moglen cites three areas the new version will address. One is the on-licensing of additions or modifications to the code when used in applications such as Web services. A second concerns patents, which he says are found where they shouldn’t be. The third is the issue of “trusted computing,” in which hardware polices the software it runs — a situation which, if allowed to take hold, he likens to “the military occupation of the Net.”
Building Code Standards
Moglen does believe there will be important results from the SCO suits, only not in the terms of the license itself. “People are now realizing that how you vet the code that you put in the free software project — both how you legally establish the rights in it, and how you factually establish who is giving it to you and where they got it from — are really important,” he says.
“SCO is demonstrating how important it is to do what I call the ‘assembly’ of free software — the putting together of contributions to make a finished work — in a defensible way.”
This means developing a standardized way of “assembling” free or open-source software. “How you do the work of putting stuff together before you license it is at least as important as how you license the software,” according to Moglen.
A further consequence might be the rise of third-party insurers and indemnifiers. “The activity of third-party insurers,” believes Moglen, “will give rise to a desire that code be put together according to standards which are understood in the trade as minimizing risks, and thus making the insurance market work in the most fluid possible way.”
Red Hat isn’t a “third party,” but it is already illustrating this trend. According to spokesperson Leigh Bay, Red Hat offers two kinds of indemnity. “First, we’ve set up a million-dollar fund so that if developers find themselves being sued, or if they come into any legal issues with developing software under the GPL, the fund will be available to pay for their legal fees.”
“The second part, which protects past, present and future Enterprise Linux customers, says that if there is an intellectual-property violation in our code, we promise to fix it and replace it and provide for uninterrupted use of the code.”
Red Hat’s willingness to write such a warranty is, Bay says, based on an ability to “vet” its code accurately.
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