Is the GNU GPL unconstitutional?
In my last commentary on Darl McBride's musings about constitutional law, I did not address one issue that continues to echo in SCO's FUD. I didn't address it before because it is so absolutely absurd. But because it continues to bounce about in the nevernever land of SCO world, here's a couple paragraphs to make it absolutely plain just why the claim is crazy.
As the December 4th letter asserts (but does not defend), "SCO assets that the GPL ... violates the United States Constitution." McBride makes the same claim less directly in his January 8th letter to Congress ("the GPL ... is in direct contradiction to .. the recent Supreme Court decision in Eldred.") And thus, it follows, that the US Congress, and US government, should do what they can to assure that the GPL "not be allowed to continue to undermine" US copyright industries.
But this argument makes a category mistake. The US Constitution is a restriction on governments, not individuals (except perhaps the 13th Amendment which seems to apply directly to individuals.) If McBride, for example, were to lock RMS up and forbid him from talking, he wouldn't be violating RMS's "free speech" rights. Only a government (or someone acting under government authority) can violate "free speech" rights. Likewise, if McBride were to take RMS's computer, that wouldn't be a "taking" in violation of the 5th Amendment. It would be theft, but every theft is not a constitutional violation.
Likewise with the GNU GPL. The GNU GPL is a copyright license. It is the creation not of a government, but an individual. There is no way that an individual can violate the constitution merely by writing a contract. And the argument that he can reveals that the author has no understanding of the way constitutional law functions.
It might be that McBride is saying that it would be unconstitutional to enforce the GNU GPL, because any copyright law that would "free" content would be inconsistent with the Copyright Clause. That, unlike the former claim, would at least be a coherent constitutional claim. Coherent, but false. It would constitute a radical departure from the historical interpretation of copyright law, for the Copyright Clause has always been understood to give Congress the right define the property right that copyright is however it wants. If Congress allows people to waive copyrights, that's fine under the Constitution. SCO's claim against this tradition would be that Congress acted unconstitutionally in when it wrote a Copyright Act that allows copyright owners to waive some of their rights.
This is, again, a silly interpretation of constitutional law. And more importantly, it is a totally baseless interpretation of the Supreme Court's decision in Eldred. If Eldred means anything, it means that Congress has a broad discretion to balance the rights of copyright as it deems best -- within the express limits of the clause. There is no express limit in the copyright clause that mandates proprietary production.
SCO is flailing, and failing. If this is all it has, then it will soon be forgotten.
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Comments (14)
Just out of intellectual curiosity from a complete layman, if constituional law functions such that the constitution restricts governments and not individuals, why do we hear about people performing hate crimes being prosecuted for violating the civil rights of others? My understanding is that all civil rights flow from the constitution.
Are people being loose with language -- or is it possible for people to violate the constitution (outside the 13th ammendment) sometimes?
Congress has the power to pass laws that protect civil rights. (You'd think under the 14th Amendment, but it was justified under the Commerce Clause). When people are prosecuted, they are prosecuted under those statutes.
I'm rather enjoying the paper published by Neil Weinstock Netanel. In that paper, Neil takes to task both the people he terms "neoclassicists" (i.e. copyright maximalists) as well as those he terms copyright minimalists and seeks to strike a balance between the two.
I can't weigh in on his conclusions yet because I've not finished reading, re-reading, and analyzing his paper but on my first pass I think his arguments and criticisms are logically sound.
Regarding SCO...while I find their ethics despicable, somewhere in the deepest, darkest depths of my brain, I have to admire the cleverness of their business acumen. They have to know by now that their case to the judiciary is moot so they are now seeking to appeal to the legislative branch of our government. Brilliant move on their part in that it might increase their stock price. Once this appeal to legislative action is thoroughly debunked, I'm sure they'll find a way to appeal to the executive branch. I wonder what the headline of their press release will be. My favorite guess: "Only Terrorists Use Linux".
It's an unfortunate side-effect of capitalism that obsolete companies tend to have too much money to die a silent death.
--Jason
Maybe what he meant was, it would be unconstitutional for the government to enforce the GPL. That seems a natural reading of his claim.
Is there any hope of passing a bill specifically endorsing the GPL (or a similarly open licence)?
Cranky
I don't see how it would be necessary to specifically endorse the open-source licensing method. It's based on one of the most basic pillars of the legal system: contracts.
Copyrights are assignable. That means that you can give them away. Not only can you give them away, but you can give them away with conditions imposed on the transaction.
Typically, the condition is money. I, the author, agree to give you, the publisher, the right to copy and distribute my book in exchange for a chunk of cash.
It can also be other things. I, the employee, agree to give you, my employer, the right to copy, distribute, and make derivative works of any copyrighted works that I create on the job. In exchange, you, the employer, agree to hire me, give me benefits, pay my salary, and so on.
An open-source software agreement is simply a contract that has a non-traditional consideration (a legal term for the money or the job in my previous examples). I, the author of Program X, give you, the person who is buying or otherwise acquiring Program X, the right to copy and distribute Program X. In exchange, you promise to allow other people to do the same thing.
I don't see how Eldred v Ashcroft is even relevant to the discussion. If I remember right, the gist of Eldred is that Congress did not violate the Copyright Clause of the Constitution, which allows Congress to grant copyright protection to works for limited times, when it extended the duration of copyright protection by another 20 years in order to prevent certain valuable properties, like Mickey Mouse, from passing into the public domain.
How this says "you can't give away software that you create" is beyond me.
In response to John Mark Ockerbloom's comment:
GPL as well as other licenses is definitely a
contract that comes in different faces. One key
is that it is enforceable only between parties
that agrees to terms and conditions. It virtually
has no power against anyone who has not seen or
agreed to the terms and conditions. This is unlike
the copyright law that is enforceable to all people
in the U.S.
The problem with GPL is that it is not compatible
with the copyright law. GPL not only concerns
with the exclusive rights as granted by the
copyright law but also use the power of contract
law to force people to make their patents available
to other people if they want to distribute program
(paragraph #7). The copyright law does not have
that kind of condition.
There are two other parts in GPL that are not
compatible with the copyright law.
One is the definition of derivative work. GPL's
definition is definitely different from the
copyright law's definition. That is why GPL
is considered as viral by some people.
Second is the very board word "program". GPL
just says any program. It does not tell us
whether it limits itself to programs or portions
of programs that still has valid copyright.
In other word, GPL could cover the public
domain portions. Compare GPL's word "work"
with the definition of "work" in
http://creativecommons.org/licenses/by-nc-sa/1.0/legalcode.
When compared with other open licenses, GPL
is not well written and needs to be updated with
the new legal developments and to eliminate
the ambiguity. It has not been updated since
1991.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
In response to Joseph Pietro Riolo:
"The problem with GPL is that it is not compatible
with the copyright law. "
Actually, the GPL relies upon copyright law. The fact that the GPL turns copyright law upside-down does not invalidate it.
I consider the GPL to be the most clever hack implemented by Mr. Stallman: he hacked the legal code. And via the legal/diplomatic genius of Mr. Moglen, the legal viability of the GPL has not recieved judicial scrutiny. Perhaps it's time that the GPL recieves that scrutiny. If that happens, it will be very interesting to see which Circuit winds up with the case.
--Jason
In response to Jason's comment:
Your statement saying that GPL relies on
the copyright law is half-correct. It
relies on both copyright and contract
laws, with the former as the springboard
for the latter. Without contract law, GPL
is totally meaningless.
GPL is not a clever device. It is an
example of the misuse of the contract law
to go beyond the boundaries of the copyright
law such as the definition of derivative
work and the lack of recognition for the
public domain works.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
No, let's not tamper with the GPL. It works just the way it should, and fits very neatly within copyright law. There is nothing in the GPL that forces you to give up anything -- as long as you don't take other people's works. If you do, then you have to go along with the copyright license they chose for that work, the GPL, but ONLY if you wish to distribute the resulting combined work. If you want to just use it in-house, go right ahead, and you need not release anything.
But if you want to take someone else's work, combine it with your own, and then release it to the world, you must do so under the terms of the GPL in order to comply with the original copyright holder's request of the work you took. That's only fair. If those terms are not acceptable, don't take their stuff. You have the choice at all times.
I think the fact that the copyright cartel keeps calling for changes in the GPL is precisely why it should not change. If the GPL bothers them that much, it's working. It means they can't just take other people's stuff as they might want to do.
I believe that McBride is concerned not with the GPL in general but with its applicability to one a particular aspect of SCO's case, to wit:
At some point, SCO came to believe that UNIX-derived code had been placed into Linux without SCO's knowledge or permission. At some later point, SCO stopped distributing their own version of Linux. It has been argued on slashdot and elsewhere that in that window of time between discovery and cessation, by distributing Linux under the GPL with the alleged offending intellectual property intact, they accepted the terms of the GPL and thereby gave away their right to restrict access to the infringing code.
I do not believe this is a reasonable reading of the GPL, I don't think a court would uphold it, and in fact I think I agree with McBride that if the government did uphold it, it would be acting unconstitutionally.
Everything else he says is marketing, but I believe that is the genuine legal issue that McBride has with, to coin a phrase, GPL absolutists.
Regarding SCO… They have to know by now that their case to the judiciary is moot...
jason this seems to be a premature conclusion. there are simply not enough facts out in the open to tie this up so neatly. courts also sometimes make incorrect decisions. you may want to wait and see. as yogi berra observed, it ain’t over till it’s over.
p.s. (thank you for the link to the netanel paper. another good post by you.)
When compared with other open licenses, GPL is not well written and needs to be updated with the new legal developments and to eliminate the ambiguity.
good observation joseph pietro riolo. very good. bulletproof only exists until new bullets are invented.
At some point, SCO came to believe that UNIX-derived code had been placed into Linux without SCO’s knowledge or permission. At some later point, SCO stopped distributing their own version of Linux. It has been argued on slashdot and elsewhere that in that window of time between discovery and cessation, by distributing Linux under the GPL with the alleged offending intellectual property intact, they accepted the terms of the GPL and thereby gave away their right to restrict access to the infringing code.
/sound of the hammer hitting the nail on the head.
well done hmm. excellent observation. this sums it up nicely.
it should also be noted that there is not now, and never has been, just one version of “linux.” (or should we say GNU-linux?) it is an operating system which is an evolving, changing body of software – which is sort of the whole idea behind it and all open source programs. what SCO distributed and what IBM is accused of distributing are in all likelihood different animals.
it is interesting and fun to speculate, but we would like to caution everyone to keep an open mind about where this case is going and what impact it may have, if any, on the future of linux and the GPL.
it is also a pity that this debate is constrained by the straightjacket which is the american constitution. this is an international issue where, as with many other international issues, american leadership is likely to do the world more harm than good.
"At some later point, SCO stopped distributing their own version of Linux."
Actually, I believe they haven't stopped yet!!!
SCO's claims have been ranging from the ludicrous to the libellous. I hope a proper decision in the IBM and Red Hat trade libel counterclaims comes soon, but the courts in this country are nothing if not slow.