Comment by smitherfield | Hacker News Reader

Comment by smitherfield | Hacker News Reader

One thing that wasn't brought up (edit: ok, quickly glossed over) in the article — if you go to court, you can lose!

There are various legal arguments I can think of, that would essentially trash the GPL, and a company with 8 figures to spend on lawyers could make very convincing (I don't agree with these, but a judge and jury could easily):

1. It's unclear whom the actual copyright holder or holders of Linux are, and who has standing to sue on their behalf.

2. Since Linux is open-source, free-as-in-beer, etc, it's public-domain.

3. Linux is a derivative work not entitled to copyright protection.

And so on. Again, when one side might have orders of magnitude more budget for lawyers, this kind of stuff will be very convincing. (Many corps will pony up money to protect Linux, but they'll generally be on the opposite side when it comes to the GPL).

1. Enforcement would not be on "Linux" but would be about a specific section of the code, under which the copyright holder (the dev) is suing.

2. Has no legal basis, something being "Free as in beer" does not make is public domain, that would be easily countered

3. That would probably be more dangerous to the company arguing that then it would be to Linux, since most of the companies that would be targeted by GPL enforcement likely have alot of IP that could also be considered "derivative"

Going to court and losing, while not fun, should be instructive to the GPL community. A loss will either point out areas that need to be changed in the next GPL license version, or that a GPL-style license is not viable.

Or that lawyers in that country are terrible?

Yes, it could prove helpful to the GPL community, but it might prove harmful to the kernel community. For all intents and purposes, the Linux kernel is permanently stuck in GPLv2. If a disastrous court case somehow weakens GPLv2 and a new and improved GPLv4 which fixes that weakness comes out, the kernel will be stuck with the now weakened GPLv2.

That was one of the first points addressed in the article: the OP referenced the recent outcome in the VMWare case as an example of an undesirable outcome.

Fair enough; it was one fairly ambiguous sentence and easy to miss.

Not meaning to criticize the article - which I found very interesting - just felt it could be a good conversation thread to discuss an aspect the article didn't really cover.

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