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Re: LGPL module linked with a GPL lib

On 7/28/05, Raul Miller <moth.debian@gmail.com> wrote:
> I don't think that the point is that people would be going to jail for
> violating the GPL.

"Violating the GPL" doesn't mean anything.  The GPL is not a statute. 
It's just an offer of contract.  The only way to "enforce" it is for a
party with standing for a copyright infringement action (i. e., an
_author_ -- not just any old contributor of some fragment) to bring
suit for copyright infringement with additional claims of breach of
contract, to be pressed if the alleged infringer claims license under
the GPL for his conduct.  The penalties for copyright infringement are
laid out in 17 USC Chapter 5; the penalties for breach of contract may
include some sort of equitable relief and/or permission to abrogate
the contract and proceed to claims of copyright infringement.

> GPL violators appear to face several potential penalties:
> (*) Works they hold copyright on might be released under the terms of the GPL
> when they thought they could get away with not doing that.

This is extraordinarily unlikely except as part of a consent decree,
agreed on by the parties and ratified by the court as an alternative
to proceeding to judgment.  The only cases I have seen (but IANAL and
this is not an area I have researched closely) that came anywhere near
such an order of specific performance prescribed such performance as
an alternative to withdrawing a work from circulation altogether.  See
Sun v. Microsoft, on remand from the Ninth Circuit decision.

> (*) They might be forced to pay someone else to release their work under GPL
> terms.

This is even more unlikely; the court has no power to compel that
"someone else" to make such an offer.  Of course, if the accused
thinks that the simplest way to end the dispute is to negotiate such a
deal with the third party and offer it as part of a consent decree,
that's another story.

> (*) They might be forced to stop distribution of some work where they don't
> have the proper rights available to them.

In other words, injunctive relief -- often granted temporarily pending
trial at the preliminary hearing stage, and if granted often followed
by out-of-court settlement.  As I have explained ad nauseam, I think
it very improbable (IANAL, TINLA) that preliminary injunctive relief
could be obtained in a linking scenario involving the GPL even under
the most egregious of fact patterns; compare Progress Software v.

> Obviously there would be cases where one or more of these would not apply,
> but if none of these apply that's probably because they're not violating the
> terms of the GPL.

AIUI most copyright infringement suits end with monetary damages,
sometimes with attorneys' fees and costs attached, sometimes with
impoundment and an added injunction against continued infringement
(which makes it quite easy to come back for more penalties if the
infringer doesn't cease).  But IMHO a competently defended "GPL
violation" suit, if its facts reflect reasonable disagreement about
the interpretation of a contract of adhesion, is unlikely to result in
any penalty other than the stipulation of future conduct consistent
with the contract terms as construed by the court.

- Michael

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