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First of all, it has been litigated several times, at least in Germany. I'm on my phone, so here is only one example I quickly found by Googling:

http://www.timelex.eu/en/blog/detail/gpl-license-reaffirmed-...

Second, most businesses already avoid the GPL, but among those that can't, such as Android device makers - well, some of them seem to be fine with avoiding the edge cases by just publishing the source to their kernel modules. Considering this, I suspect that for the other half, it would not be the end of the world to have to reveal some minor secrets about the hardware or whatever; they just neglect to publish source because they are unlikely to be penalized any significant amount for doing so.

Of course, there is the risk of GPL making it into codebases by accident, but really only if you spend zero effort keeping track of it. There are companies like Black Duck that provide tools to scan a codebase for known open source code, and honestly a quick grep should often be sufficient as well. In VMware's case, I'm not sure about the executable loading or kernel module issues, but if "vmkernel" itself has code copied and pasted from Linux, as is alleged - well, they should have known better! No need for the largest software effort since Y2K when you could just ensure someone in the company understands the GPL and how it relates to the company's code, before said code is highly developed.

Taking games as an example, in todays AAA games most have a long list of licensed work, with everything from personal permission slips to standard licenses like proprietary licensed third-party, lgpl, apache, bsd, mit and project specific ones. If they mess up on any single of those license requirement, they risk inoperation for the whole product.

If a company want to remove this risk, they can't license someone else work. That mean no third-party engine, no font types, no xml parsing library. The cost vs risk is so insanely on the cost side that it would be fools and fools only who rather make everything inhouse in fear of follow simple industry practices that has existed for 20 years or more.

If you link together GPL'ed work with something you distribute, release the source code for that work. That is not a more risky proposition that say, giving 5% for using unreal engine.

> Taking games as an example, in todays AAA games most have a long list of licensed work, with everything from personal permission slips to standard licenses like proprietary licensed third-party, lgpl, apache, bsd, mit and project specific ones. If they mess up on any single of those license requirement, they risk inoperation for the whole product.

Commercial engines generally have a clause in there that you are not allowed to bring any GPL code in contact with the engine, no exceptions.

Commercial engines generally are not compatible with license requirement from other licenses. That is however outside the point since the argument parent post made is that the threat of enforcing third-party licenses will make every company switch to self-production only.

> [...] the argument parent post made is that the threat of enforcing third-party licenses will make every company switch to self-production only.

Note this problem only applies (in practice) to GPL licenses which are explicitly disallowed in all gaming environments I have encountered. As such the problem is moot. There are lots of Open Source code in computer games, just not GPL. It's a non issue.

How would this problem only apply to GPL? If you do not give the 5% revenue to unreal when using their engine, I am sure they will sue. A company can not pick and choose which license agreement to follow and which to ignore, or they risk inoperation from lawsuits.

In practice, license conditions are balanced to the interest of the company. Some might be perfectly fine with 5% revenue losses in order to pay for a engine, where others would strongly disallow it. If this lawsuit succeed, my guess is that any damages will be far less than 5% total revenue from the years of Linux usage.

> How would this problem only apply to GPL?

Because not many other licenses like GPL "spread" to the entirety of the project. Sure, you can draft another license like this, but out of the popular ones there really is only the (A)GPL which does that.

The worst cases are better with most other licenses though:

* Most of the time commercial libraries like unreal make a distinction between interface and implementation. In the worst case you could swap out their implementation and reimplement the methods you use, which will be expensive but at least at the end of it you'll have a clean codebase that you own. With GPLed code even that might not be enough - you could replace the GPLed implementation and your codebase might still be a derivative work of the GPLed library. * Epic is a profit-making business with obligations to their shareholders; ultimately resolving any issue with them is going to be "only" a matter of money, it's not in their interests for your company to go out of business. An individual GPL copyrightholder is more likely to be idealistic/spiteful about it. And GPLed libraries often have several copyrightholders, multiplying the risk.

>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..."

If the GPL is litigated to the point of a published decision, doesn't that give the legal team of the targeted company the ability to say "actually, we know we ARE using it correctly, so buzz off"?

According to the lwn link 'JoshTriplett provided upthread, corporate general counsels often contact the Conservancy to request GPL enforcement: "Their interest, instead, is in a demonstration that the GPL has teeth so that they can be taken seriously when they tell management that the company must comply with the license terms of the code it ships. "

"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

EDIT: Maybe not true for copyleft software, reported not to be true in France (see below).

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.

Except, of course, Prenda Law didn't get around copyright law, but their case is exceptional and I don't think it, or what you've correctly pointed out about how in the US it is easy to get sued, demonstrates much beyond the advantages of loser pays law systems (as I understand it, all of the world but the US).

A better one, that I'm a lot more familiar with, is Stephens Media, their property the Las Vegas Review-Journal, and https://en.wikipedia.org/wiki/Righthaven which produced a Federal District Court decision that in order to sue, one must actually own the copyright.

But if you're just worried about the prospect of being sued, none of this matters as you point out. New SCO dragged our corner of the world through a huge, long and expensive drama about code that they never had the copyright to, and knew in advance they didn't. Which means that risk exists for any code you don't write yourself....

I'm not sure the SCO case shows the progression you cite. As far as I can remember, everyone assumed SCO had the copyright, there was lots of litigation based on that, and it took years for the case(s) to wander around until in rather a big surprise we learned they didn't. Of course, to continue the theme of "(too) easy to get sued", there should have been severe sanctions levied on the parties responsible for that fraud, which somehow never seems to happen in the US.

Who kept propping up SCO to draw out that legal battle for so long?

Microsoft, as far as we could tell during the saga.

Only the owners of a copyright have standing to sue

What about people who receive the compiled software (customers) and would like the source code as well? Don't they have standing?

In the case of copyleft software, I would think so, and onestone tells us this has been established in France. So I've amended my posting (minimally, near the end of the edit window).

> What about people who receive the compiled software (customers) and would like the source code as well? Don't they have standing?

In the US, IIRC (and IANAL and this is not legal advice) license are analyzed under contract principles to the extent applicable, which might extend to standing, and, under contract principles, you could argue that those receiving the software are intended third-party beneficiaries with standing to sue.

So, its possible.

> Only the owners of a copyright have standing to sue

That's not true, at least in some countries. For example, see this case in France from 2009:

http://arstechnica.com/information-technology/2009/09/big-gp...

> "We've long said the GNU GPL is enforceable, and of course we're pleased to see another court reaffirm that fact," said FSF France president Loic Dachary in a statement. "It's a commonly held belief that only the copyright holder of a work can enforce the license's terms—but that's not true in France. People who received software under the GNU GPL can also request compliance, since the license grants them rights from the authors."

This interpretation of the decision is wrong, and I think this is also not a right interpretation of copyright and of the GPL.

However, I do think that parties receiving GPL software also have standing to sue, not just authors.

And this may also be true in the US: see for instance one of the decisions in Versata v. Ameriprise where the court considered GPL to create contractual obligations towards third party beneficiaries -- i.e. towards people receiving the code. That whole case has been settled out of courts but that's still an interesting decision (and to my knowledge, this decision had not been further contradicted by upper courts so it is still interesting).

You forget something: most enterprise SW is for internal use only, so they don't and won't care one bit about GPL's related ligations.

Using GPL SW in a product sold to clients is a different issue but in my (big) enterprise the GPL is a well-known topic: there are internal guidelines about what you can do and what you can't do with GPL SW and who you have to contact when you want to use GPL SW for clients products so that he can check that you're doing the right thing.

Meh. Enterprise is already terrified of GPL -- but they have to use it because there's simply too much good software written under the license. There's lots of emphasis these days to "pretty please avoid using GPL" but they simply put up with it in the end because it's counter-productive not to.

Also, most super-big cos are not in the business of selling software but using it, despite what they may think. VMWare on the other hand should know better.

Saying that they'll Y2K away from it cuz of this lawsuit sounds a little like FUD to me.

If they lose the lawsuit and their license is terminated, they will have no choice but to remove the software in question.

> Enterprise is already terrified of GPL

Maybe I worked only in surprisingly enlightened enterprises, but the worst fear I was informed about regarded lack of support by a "real" company.

Yeah, which company on Earth large enough to have an IT department doesn't use Linux somewhere, for example? I know I would be hard pressed to find one.