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I doubt that it'll come to that. There are some really nasty consequences of being found to violate the GPL: 4. You may not copy, modify, sublicense, or dis

I doubt that it'll come to that. There are some really nasty consequences of being found to violate the GPL: 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License... From what I understand, there is no obvious way to re-gain a license to GPL'd code once it's been terminated (short of asking every single individual contributor). There is the distinct possibility that VMWare could be enjoined from using Linux in any way if they are ruled against (and it sticks on appeal).

JohnTHaller 12y ago
This is the way I understand the license as well. That's one of the reasons the GPL3 has language to the effect of regaining the license: http://www.gnu.org/copyleft/gpl.html#section8 http://www.gnu.org/copyleft/gpl.html#section8 Even then, a copyright-holder can still permanently terminate your rights if they so choose and notify you of such termination.
tbrownaw 12y ago
Re-do whatever you did to get the license in the first place?
ChuckMcM 12y ago
That would be an interesting result. To my knowledge the GPL (any version) hasn't actually been litigated to the point of a published decision (would love to hear that it had). That said, (and continuing with my possibly incorrect assumption that the GPL hasn't been litigated) if it does get decided that this remedy can be enforced by the license holders through the court, I expect it will create the largest software effort since Y2K to get rid of GPL'd software in any enterprise larger than about 10 people. The business risk would become too great that they might be litigated by a rival into inoperation. (I know the author's aren't out to kill companies, they are out to enforce their rights, but there are lawyers that like nothing more than extorting companies for large sums of money and those lawyers would write "As you know VMWARE was damaged to the tune of several billion dollars because they didn't use the GPL correctly, and we know that you aren't using GPL correctly either, why take the risk and get a writ of compliance for a mere $<large sum>." Or like the guys who are coming out of the wood work to "test your house for formaldahyde" by basically clipping some PH strips to a stick, waiting for them to turn blue, and them selling the poor home owner a multi-thousand dollar "remediation" service. I really respect what the GPL tries to do, but especially early in its life it was way too ambiguous in its interpretation (consider the difference of opinion between FSF and Linus on loadable kernel modules for example)
- hga 12y ago
  "The business risk would become too great that they might be litigated by a rival into inoperation." Only the owners of a copyright have standing to sue, so I think the complete version of your concept fails unless, like in this case, the copyrights are held by many people instead of being assigned to one person or organization. I also can't imagine that a lot of companies haven't considered this risk, it hardly matters to such companies if this hasn't reached the level of a contested (vs. default) decision if they believe it could if pushed. E.g. see this: https://news.ycombinator.com/item?id=9153278 https://news.ycombinator.com/item?id=9153278 EDIT: Maybe not true for copyleft software, reported not to be true in France (see below).
  - ChuckMcM 12y ago
    I don't disagree that only people with an ownership right in the copyright have standing, but I note that this has been worked around by a variety of means. The poster child being people like Prenda Law who used dubious techniques to get just enough copyright ownership on something (in their case porn) to sue. Also, as many have noted and some have experienced, at least in the US it is pretty easy to get sued whether or not the case has merit, and ignoring it results not in it being dismissed because of lack of standing, but a judgement against you by default. This is somewhat moot if the litigation happens in Germany of course. In contrast to camperman's comment, the copyright issue is first determined as a matter of law (its instructive to see the Groklaw archives on this with regards to SCO) and then if the copyright is valid then the question of the license comes up. And party A will say "That wasn't what I meant" and party B will say "But this is what it says" and for each of the clauses and sentences in the GPL a discussion will be had on what it says versus what it means. And finally if what it means is something that can be legally enforced[1]. A good example of that was the AT&T versus UC Regents suit over BSD where the BSD license and the AT&T Unix licenses were extensively examined. [1] You could write a shrink wrap contract that said "By opening this package you agree to give me all your future income." which is clear what it says and what it means, but you would be hard pressed find a court willing to enforce those terms with that contract.
    - 12y ago
belorn 12y ago
One of the major changes to GPLv3 was to fix this problem, so companies that goes back into compliance can automatically get permission again. However, the code in question here is gplv2 so no such luck.
DannyBee 12y ago
"there is no obvious way to re-gain a license to GPL'd code once it's been terminated" This is false for GPLv2, sadly, despite people wanting it to be so. GPLv2 says "6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License." So every time vmware downloads the kernel, they get a license. Even if the prior time, it was terminated. (THis is pretty well accepted, but not happily, by most open source lawyers). GPLv3 is different here.
- hugoroy 12y ago
  Section 6 does not say that at all. "Each time you redistribute the Program" In this sentence "You" would be VMWare, not the authors of Linux. "the recipient automatically receives a license from the original licensor to copy" the Linux license is between Linux authors and recipients of VMWare software. So section 6 does not say Vmware gets a new license each time they get a copy of Linux. Section 6 just makes sure that even if someone along the chain of distribution of the GPL software fails to comply, not all receiving parties down the path are automatically in failure to comply.
  - maxerickson 12y ago
    So what happens if VMWare downloads a new copy of the software from some third party (Redhat or whatever)?
    - bonzini 12y ago
      They do not get a license, so they couldn't even legally download the new copy. It's the same as downloading pirated Windows (except that when downloading pirated Windows the hosting site shares the blame with the downloader, of course).
      - 12y ago

JohnTHaller 12y ago

This is the way I understand the license as well. That's one of the reasons the GPL3 has language to the effect of regaining the license: http://www.gnu.org/copyleft/gpl.html#section8 http://www.gnu.org/copyleft/gpl.html#section8 Even then, a copyright-holder can still permanently terminate your rights if they so choose and notify you of such termination.

tbrownaw 12y ago

Re-do whatever you did to get the license in the first place?

ChuckMcM 12y ago

That would be an interesting result. To my knowledge the GPL (any version) hasn't actually been litigated to the point of a published decision (would love to hear that it had). That said, (and continuing with my possibly incorrect assumption that the GPL hasn't been litigated) if it does get decided that this remedy can be enforced by the license holders through the court, I expect it will create the largest software effort since Y2K to get rid of GPL'd software in any enterprise larger than about 10 people. The business risk would become too great that they might be litigated by a rival into inoperation. (I know the author's aren't out to kill companies, they are out to enforce their rights, but there are lawyers that like nothing more than extorting companies for large sums of money and those lawyers would write "As you know VMWARE was damaged to the tune of several billion dollars because they didn't use the GPL correctly, and we know that you aren't using GPL correctly either, why take the risk and get a writ of compliance for a mere $<large sum>." Or like the guys who are coming out of the wood work to "test your house for formaldahyde" by basically clipping some PH strips to a stick, waiting for them to turn blue, and them selling the poor home owner a multi-thousand dollar "remediation" service. I really respect what the GPL tries to do, but especially early in its life it was way too ambiguous in its interpretation (consider the difference of opinion between FSF and Linus on loadable kernel modules for example)

hga 12y ago
"The business risk would become too great that they might be litigated by a rival into inoperation." Only the owners of a copyright have standing to sue, so I think the complete version of your concept fails unless, like in this case, the copyrights are held by many people instead of being assigned to one person or organization. I also can't imagine that a lot of companies haven't considered this risk, it hardly matters to such companies if this hasn't reached the level of a contested (vs. default) decision if they believe it could if pushed. E.g. see this: https://news.ycombinator.com/item?id=9153278 https://news.ycombinator.com/item?id=9153278 EDIT: Maybe not true for copyleft software, reported not to be true in France (see below).
- ChuckMcM 12y ago
  I don't disagree that only people with an ownership right in the copyright have standing, but I note that this has been worked around by a variety of means. The poster child being people like Prenda Law who used dubious techniques to get just enough copyright ownership on something (in their case porn) to sue. Also, as many have noted and some have experienced, at least in the US it is pretty easy to get sued whether or not the case has merit, and ignoring it results not in it being dismissed because of lack of standing, but a judgement against you by default. This is somewhat moot if the litigation happens in Germany of course. In contrast to camperman's comment, the copyright issue is first determined as a matter of law (its instructive to see the Groklaw archives on this with regards to SCO) and then if the copyright is valid then the question of the license comes up. And party A will say "That wasn't what I meant" and party B will say "But this is what it says" and for each of the clauses and sentences in the GPL a discussion will be had on what it says versus what it means. And finally if what it means is something that can be legally enforced[1]. A good example of that was the AT&T versus UC Regents suit over BSD where the BSD license and the AT&T Unix licenses were extensively examined. [1] You could write a shrink wrap contract that said "By opening this package you agree to give me all your future income." which is clear what it says and what it means, but you would be hard pressed find a court willing to enforce those terms with that contract.
  - 12y ago

belorn 12y ago

One of the major changes to GPLv3 was to fix this problem, so companies that goes back into compliance can automatically get permission again. However, the code in question here is gplv2 so no such luck.

DannyBee 12y ago

"there is no obvious way to re-gain a license to GPL'd code once it's been terminated" This is false for GPLv2, sadly, despite people wanting it to be so. GPLv2 says "6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License." So every time vmware downloads the kernel, they get a license. Even if the prior time, it was terminated. (THis is pretty well accepted, but not happily, by most open source lawyers). GPLv3 is different here.

hugoroy 12y ago
Section 6 does not say that at all. "Each time you redistribute the Program" In this sentence "You" would be VMWare, not the authors of Linux. "the recipient automatically receives a license from the original licensor to copy" the Linux license is between Linux authors and recipients of VMWare software. So section 6 does not say Vmware gets a new license each time they get a copy of Linux. Section 6 just makes sure that even if someone along the chain of distribution of the GPL software fails to comply, not all receiving parties down the path are automatically in failure to comply.
- maxerickson 12y ago
  So what happens if VMWare downloads a new copy of the software from some third party (Redhat or whatever)?
  - bonzini 12y ago
    They do not get a license, so they couldn't even legally download the new copy. It's the same as downloading pirated Windows (except that when downloading pirated Windows the hosting site shares the blame with the downloader, of course).
    - 12y ago