Here's the post lunch slump, but to keep us awake we have Douglas E. Phillips on the GPL and enforcement. Interestingly, there's been a recent filing challenging the GPL on anti-trust grounds in Indiana - so there should be a lot to talk about here. Douglas says he's going to focus specifically on the "viral" aspects of the license.

Eben Moglen of the FSF calls any questioning of the GPL's enforceability as FUD, and blames Microsoft. [ed] - given the "easy target" nature of MS in the OSS space, that seems mighty convenient. Moglen claims that it's enforceable because he's been enforcing it in private settlements (which says nothing about how it would be taken in court). Asking in a public forum tends to attract immediate attacks on a personal level (seen in various USENET forums).

In 2003, the FSF has pursued 20-30 enforcement actions in private (as reported in Forbes). The FSF has been engaged by companies wanting enforcement (MySQL) to help. There haven't been many decisions yet - and Douglas says that this is a lot like the way the BSA has taken to challenging alleged violations.

A year ago, there was a CA vs. Quest Software suit that seemed to assume the GPL was enforceable. in July 2004, there was a decision in Munich Germany, which enjoined distribution w/o conformance with the license. That's still not a US based decision though, so it's not resolved in the US.

In the US, there's the infamous SCO case, and more recently - 2005 - there's a suit alleging that the GPL is a price fixing scheme hurting programmers. So what grounds are there to challenge?

• Constitutional violation
• Pre-empted by copyright law
• Violates export control laws
• Never been tested in court
• Fails under the UCC
• Fails under common law
• Violates anti-trust law
• Selectively enforced by FSF
• Fails as a copyright license
• Too vague
• Not effective as shrink/click wrap

License vs. Contracts: Moglen states that a license is permission to use property, while a contract is an exchange of obligations. Moglen states that the licensor has no obligations, so it's a pure copyright license (i.e., no contract necessary). Thus, shrinkwrap license enforcement are avoided. [ed] This seems shaky to me...

What about the courts? We can reach back to General talking Pictures Corp. vs. Western Electric Co. (1938), which allows the patentee to grant a license. There's a 1995 case (McCoy vs. Mitsubishi Cutlery, Inc) stating that a license is in fact a contract. Muddies the waters, that's for sure.

What about revocation? Copyright law states that non-exclusive licenses are revocable. The FSF argues with that in its FAQs: "The public already has the right to use the program under the GPL, and this right cannot be withdrawn". Seems to be a conflict there.

Is it enforceable as a contract? Need assent from both parties first. The GPL itself does not purport to be a contract, and the FSF states that it's not. So - how can a contract be formed? The question is, does copyright pre-empt this? In 1996, the court rejected preemption in ProCD vs. Zeidenberg, stating that "rights created by contract are not equivalent to any exclusive rights within the general scope of copyright". Also - "Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts to do not create exclusive rights".

Then there's Alcatel USA vs. DGI Technologies (1999), where we learned that copyright law cannot be used to indirectly gain commercial control over products it does not have copyrighted. Hmm - what does that say about the derivative/viral part of the GPL? The way the GPL is worded, a one line inclusion triggers derivation, and that goes well beyond current jurisprudence on copyrights.