Some legal scholars (and open source critics) have questioned the enforceability of open source licenses, including the widely used GPL license. The Free Software Foundation dismisses concerns about enforceability by saying that the GPL is a license, not a contract. They add that without the license, a user who modifies or distributes the software has no right to do so based on copyright law. A recent Federal Court decision should help further minimize concerns about the enforceability of the GPL license.
On March 20, 2006 a Federal Court ruled that the GPL license was not illegal and that open source licenses are valid approaches to software licensing. The significance of this decision is that it demonstrates that the GPL license (and open source licenses in general) can and will be recognized by the Courts as valid licensing arrangements. While specific provisions may later be challenged, the general open source license approach survived this scrutiny.
The case in which this decision was rendered is Wallace v. FSF (So. Dis. Indiana 2006). On April 28, 2005, Wallace (a computer programmer) filed a complaint against the Free Software Foundation (FSF) seeking "injunctive relief, pursuant to 15 U.S.C. sec. 26, for restraint of trade by way of a contract licensing scheme to artificially fix prices of computer software products". In his complaint Wallace alleged, in pertinent part, as follows:
The Defendant FREE SOFTWARE FOUNDATION INC. has entered into contracts and otherwise conspired and agreed with individual software authors and commercial distributors of commodity software products such as Red Hat Inc. and Novell Inc. to artificially fix the prices charged for computer software programs through the promotion and use of an adhesion contract that was created, used and promoted since at least the year 1991 by the FREE SOFTWARE FOUNDATION INC. This license is known as the GNU GENERAL PUBLIC LICENSE. The price fixing scheme implemented with the use of the GNU GENERAL PUBLIC LICENSE substantially lessens the ability of individual software authors to compete in a free market through the creation, sale and distribution of computer software programs.
Based on various procedural challenges, Wallace was forced to amend the complaint (several times) in an attempt to more clearly articulate a cognizable legal claim. Wallace filed his Fourth Amended Complaint on November 30, 2005. In it, Wallace sought to enjoin the FSF and others from allegedly conspiring to "pool and cross license their copyrighted intellectual property in a predatory price fixing scheme". On December 29, 2005, the FSF moved to dismiss the Fourth Amended Complaint for failure to state a claim upon which relief can be granted under F.R.Civ.Pro. 12(b)(6).
On March 20, 2006, the Court granted the FSF’s motion to dismiss the complaint and denied further leave to amend the complaint. In so deciding, the Court held that Wallace did not allege a legitimate antitrust injury. Of interest to the enforceability of the GPL (and open source licenses in general), the Court noted:
The court’s understanding from the GPL itself is that it is a software licensing agreement through which the GNU/Linux operating system may be licensed and distributed to individual users so long as those users "cause any work that [they] distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License." (GPL3.) The GPL purportedly functions to guarantee [users’] freedom to share and change free software." (GPL Preamble.) As alleged, the GPL in no way forecloses other operating systems from entering the market. Instead, it merely acts as a means by which certain software may be copied, modified and redistributed without violating the software’s copyright protection. As such, the GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.
The successful defense against this legal challenge to the GPL is but one more in a small, but growing, number of cases where the GPL has been upheld in court.
The FSF trumpeted this decision as a huge victory. In response to this decision, Peter Brown, Executive Director of the FSF, said:
As the author of the GPL and copyright holder on the largest body of GPL's covered free software, the FSF hears many theories of potential legal claims and challenges to the GPL. We hear the fear, uncertainty and doubt (FUD) expressed, that the GPL has never been tested in court, and that somehow that is a sign of its weakness. Nothing could be further from the truth of course. Put quite simply, if you don't accept the terms of the GPL, then you have no rights to the copyrighted works it covers. What is there left to test? The GPL is a software license, it is not a contract. It gives permissions from the copyright holder. You don't want to accept those permissions? End of discussion.
It is entirely possible (and likely) that others will challenge the GPL (or portions of it) for other reasons. But with the growing history of successful court results and the strong and growing impact of the open source community, the likelihood of a successful legal challenge to the general concept of open source licenses seems to be waning.
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