Why the GPL Doesn't Need a Test Case

There was an amusing story in Groklaw yesterday, detailing the sorry end of utterly pointless legal action taken against the Free Software Foundation (FSF) on the grounds that

FSF has conspired with International Business Machines Corporation, Red Hat Inc., Novell Inc. and other individuals to “pool and cross license their copyrighted intellectual property in a predatory price fixing scheme.”

It sounded serious, didn't it? Maybe a real threat to free software and hence Civilisation As We Know It? Luckily, as the Groklaw story explains, the judge threw it out in just about every way possible.

However, welcome as this news is, it is important to note that the decision does not provide the long-awaited legal test of the GPL in the US (a court has already ruled favourably on one in Germany). Some people seem to feel that such a test case is needed to establish the legal foundation of the GPL - and with it, most of the free software world. But one person who disagrees, is Eben Moglen, General Counsel for the FSF, and somebody who should know.

As he explained to me a few weeks ago:

The stuff that people do with GPL code – like they modify it, they copy it, they give it to other people – is stuff that under the copyright law you can't do unless you have permission. So if they've got permission, or think they have permission, then the permission they have is the GPL. If they don't have that permission, they have no permission.

So the defendant in a GPL violation situation has always been in an awkward place. I go to him and I say basically, Mr So and So, you're using my client's copyrighted works, without permission, in ways that the copyright law says that you can't do. And if you don't stop, I'm going to go to a judge, and I'm going to say, judge, my copyrighted works, their infringing activity, give me an injunction, give me damages.

At this point, there are two things the defendant can do. He can stand up and say, your honour, he's right, I have no permission at all. But that's not going to lead to a good outcome. Or he can stand up and say, but your honour, I do have permission. My permission is the GPL. At which point, I'm going to say back, well, your honour, that's a nice story, but he's not following the instructions of the GPL, so he doesn't really have the shelter he claims to have.

But note that either way, the one thing he can't say is, your honour, I have this wonderful permission and it's worthless. I have this wonderful permission, and it's invalid, I have this wonderful permission and it's broken.

In other words, there is no situation in which the brokenness or otherwise of the GPL is ever an issue: whichever is true, violators are well and truly stuffed.

(If you're interested in how, against this background, the GPL is enforced in practice, Moglen has written his own lucid explanations.)