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Denying SCO's right to redistribute GPL'ed code opens questions of Open Source compliance
In a posting to BUGTRAQ, Fyodor wrote: "SCO Corporation of Lindon, Utah (formerly Caldera) has lately taken to an extortion campaign of demanding license fees from Linux users for code that they themselves knowingly distributed under the terms of the GNU GPL. They have also refused to accept the GPL, claiming that some preposterous theory of theirs makes it invalid (and even unconstitutional)! Meanwhile they have distributed GPL-licensed Nmap in (at least) their "Supplemental Open Source CD". In response to these blatant violations, and in accordance with section 4 of the GPL, we terminated SCO's rights to redistribute any versions of Nmap in any of their products, including (without limitation) OpenLinux, Skunkware, OpenServer, and UNIXWare. We have also stopped supporting the OpenServer and UNIXWare platforms." While this decision will certainly ignite a standing ovation from Linux users everywhere, it raises the question: What is the position of the Open Source(tm) Initiative? The Open Source Definition clearly prohibits discriminating against groups of persons, and SCO is most certainly a "group of persons". So, can Fyodor continue to claim that his Nmap software is "open source(tm)"? Fyodor (what is his last name, anyway?) seems to explain this away in his paragraph by claiming that SCO's violations against the GPL automatically revoke their rights under the license, but there are two problems with this: 1. Although SCO has admitted that it does not consider the GPL valid, it has not yet been proven in a court of law that SCO violated the GPL. 2. Paragraph 5 of the Open Source Definition does not provide any definition on the limitation of discrimination against groups - it simply says that you cannot do it. As a result of the plain language of these licenses, it appears that Nmap is now in violation of the Open Source Definition and can no longer claim to be "Open Source(tm) Software". I asked Eric Raymond, President of the Open Source Initiative, for clarification on this issue, but he has not yet responded (c'mon Eric - I gave you an hour!) Either Nmap must discontinue calling itself "Open Source", or the OSI needs to refine the Open Source Definition to include additional language to allow this sort of discrimination. A statement of OSI's position would seem to be in order. Update 2004-04-27 15:44:08 CST: Eric Raymond wrote to me with the following information: "The answer is no. OSD Clause 5 is intended to prevent discriminatory clauses from being written into licenses, not to prevent the enforcement of non-discriminatory licenses. Fyodor is a member of our community in good standing who is responding proportionately (and appropriately under governing law) to a direct violation of his rights by SCO. I think he deserves the full and unreserved support of OSI and our entire community. " |
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Comments (8)
The terms of the GPL.
1. Simply notifying an offender that they are violating your copyrights might not get you much, which would compel you to seek enforcement through the courts.
2. I believe there is a statutory framework governing recoverable damages, which can be cumbersome to follow through on for smaller open source firms.
Legal fights are about as much fun as having athletes foot and it takes not inconsiderable resources to get through them. In my opinion the liability issues presented by nmap are already present in the ongoing SCO litigation v. IBM, RedHat and Novell. However, nmap could be in a position to recover for damages caused by SCO's inappropriate use of Nmap's copyrighted material.
Bad Analysis?
1. Actually, legally SCO would probably be found to be a "person" as opposed to a group of persons. That's normally the way business entities are categorized.
2. Is Dave arguing that enforcing your rights under a license that provides the enforcement mechanism chosen by Nmap constitutes "discrimination" pursuant to the Open Source definition? If so, wouldn't it stand to reason then that the GPL cannot be used as a license for Open Source software?
3. In law, language is seldom "plain" as Dave claims. A more reasoned approach would be to first ascertain whether or not the GPL allows Nmap to withdraw permission for use of their software under the facts of the SCO "situation." If the answer to that question was positive for Nmap, this would be followed by an _analysis_ of whether or not this would be considered "discrimination" under the Open Source Definition. For example, under US civil rights laws a business cannot discriminate against persons based upon their race. But, if a person of color enters a business and begins damaging the property, would ejecting that person of color be considered discrimination?
Nmap is certainly able to discriminate against any person (or group) on whatever basis they choose. I think to infringe on that right would be a terrible mistake and I hope it never comes down to that. We should be free to say that "so-and-so can't use my software".
But, Eric Raymond's group OWNS "Open Source" and if you want to call yourself "Open Source(tm)" then you need to comply with Eric's rules. If you don't comply, then you can't use the term.
So, if software developers start following Nmap's lead (which, by the way, I like) then they will either need to stop using the term Open Source, or Eric needs to clarify the position of OSI.
Dave
If you search for it on the USPTO, it's listed as "DEAD":
http://tinyurl.com/ywu2y
You can see it there twice, on the details, it's listed as "abandoned" in both cases.
I really wish ESR would bother announcing this, to avoid this common mistake. Anyone can call anything Open Source, no trademark to protect the term.
Well, I'm going to have to think on this for a while. Very interesting, indeed. Thanks, ralsina.
dave
Perhaps the question you are putting forth, in the Nmap case, is whether or not SCO has violated the GPL by their actions. I.e., if I publish a work under the terms of the GPL and you inform me that you do not believe the GPL is enforceable, but don't otherwise violate its terms, can I still treat you as though you have infringed? My opinion in this case is that one cannot say that Nmap has acted in a discriminatory manner until and unless it is first decided that SCO has not violated the terms of the GPL. I base this opinion on the fact that the GPL and copyright law provide for the actions taken by Nmap.
What if Eric Raymond's group declares, at this point, that Nmap can no longer be identified as Open Source software, but Nmap's claims that SCO's actions have violated the GPL are later upheld in court?
Absent a re-write of the Open Source Definition, I would have to argue that the standard under which one would decide whether or not an action was discriminatory would be whether that action is reasonable. Is Nmap's interpretation of the GPL reasonable? Furthermore, there is a huge body of legal precedent on just what "reasonable" means, which, at least, provides an analytical starting point.
If The SCO Group continues to publicly state that it believes the GPL is an invalid unconstitutional license, then copyright holders of works licensed under the GPL, and distributed by The SCO Group, do have the right to demand that The SCO Group stop re-distributing their works.
Section 5 of the GPL says: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."
To Get The SCO Group to stop distributing his copyrighted work Fyodor will have to threaten them with copyright infringement charges. I believe that under copyright law Fyodor and The SCO Group must act to mitigate the damage, but IANAL.
He should really have his lawyer send a letter asking the SCO group to clarify their position on the GPL. Their distribution of his copyrighted works signifies a complete acceptance of the GPL as valid, but their statement in public and in court contradict this. He could say that a clear and unambiguous statement accepting the validity of the GPL would work.
The only alternative would be for The SCO Group to stop its infringement of his copyrighted works immediately and make a sizeable donation to the FSS to compensate for any monetary damages caused.
Personally I don't believe The SCO Group is capable of making a clear unambiguous statement. But it would be nice to see some copyright holders hauling The SCO Group into court on charges of copyright infringement.
-Sean _____________________________________________________________
Oh, Fyodor is just his online handle: http://www.insecure.org/myworld.html
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Of course I guess SCO's position is if the GPL is invalid then GPLed software is in the public domain and they can do whatever the heck they want to with it...
-John