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Linux May Be Running on Some Spindly Legal Legs Its innovative "copyleft" license has been effective in promoting the open-source code's growth. But it now faces threats on several fronts A new computing paradigm. A threat to Microsoft. And a helluva good tale of pluck and programming smarts. Linux is many things to many people, but it is also a legal phenomenon, drawing much of its strength from the innovative -- and coyly coined -- "copyleft" license that requires programmers who alter the operating system to keep their source code "open" -- not proprietary. Whether they like it or not, the original band of idealistic Linux programmers is now doing the waltz with that most pragmatic of bullies, Corporate America. And the arrival of Big Business on the scene raises a vital coming-of-age question for the free-software movement: With the smell of money in the air, can lawyers' meddling be far behind? In what ways, for instance, might the undergirding copyleft be challenged? Can it survive? And what would happen to Linux if this license were modified or somehow invalidated? BASIC INFLUENCE. To discuss these issues is to get into a level of detail that can be painfully technical. But the answers to the questions legal issues raise could influence the future of Linux and its volunteer army, which has thrived so far with few rules and even fewer lawyers. "As this phenomenon grows, you start to leave a world in which everyone is doing this for free and in their spare time," says Mark Lemley, a computer law expert at the University of Texas-Austin Law School. "The incentives start to change." To understand how, you need to know geek history. What is popularly called Linux is really just the small operating "kernel," or guts, for a free system meant to duplicate Unix, the computer operating system still favored in many corporate tech departments and universities. To create a fully free Unix-like system, Linux was essentially merged with a set of programs called GNU, which handle much of the other heavy-lifting that instructs computers just what to do (see "Linux Takes Off -- But Where Is It Really Going?).
The document that provides for this is called the GNU General Public License (GPL), originally authored in 1989 and revised in 1991 by the FSF. Linus Torvalds, along with dozens of other free-software devotees, adopted the GPL verbatim for the Linux kernel he created. As the legal linchpin behind open-sourcing, it allows GNU/Linux copyright holders (including Torvalds, Stallman, and many more) to sue those who modify any version of Linux without making the change public. NECESSARY EVIL. Over the years, the FSF has sent a handful of warning letters to GPL scofflaws, but so far it hasn't pressed any suits. "We've been able to work it out with persistent reminders," says Jerry Cohen, the Boston intellectual property lawyer who helped draft the GPL. Stallman concedes, though, that the day will soon come when the GPL is put under a microscope. "Some lawyers have looked at it and said it's valid and enforceable," he adds. "Until courts look at it, that's just an opinion." Linux programmers, meanwhile, take a blasé view of prospective legal nitpicking. They see the GPL as a necessary evil, an insurance policy against egregious violators. They have confidence in their ability to self-police the agreement by publicly embarrassing violators who go against the spirt of the free-software movement. "The [GPL's] legal content is not that important. It's used as a cultural marker showing you have a real commitment to free software," contends Raph Levien, a Berkeley computer-science PhD student who develops GIMP, a Linux-based graphics program. "Occasionally, some smaller companies are sort of shady," adds Stallman. "But in general, larger companies don't want to risk breaking the rules." While Linux may seem a well-intentioned programming paradise now, don't expect it to last forever, warns Gary Glisson, intellectual property attorney at Portland (Ore.) firm Stoel Rives. "I've never seen a self-policing [entity] with significant economic consequences that did not end up in court."
Still, the strength of the GPL will hinge on whether its broad-brush concepts have been translated precisely enough into the license's language, say intellectual property attorneys. If companies can find loopholes, they may begin misappropriating, or sealing access to, the Linux code. If done by enough programmers, that could sap Linux' strength over time. WHAT'S A "PORTION"? The agreement does have some potential weak spots: Take, for instance, the demand that any program "containing the program or a portion of it [GNU/Linux]" falls under the GPL. A company selling proprietary software using a sliver of Linux code could challenge the exact definition of "portion." It could also contest rules that declare Linux code -- however modified -- must remain open. What happens when the code is altered so much that it essentially is Linux no more? Traditional copyright laws also make room for "fair use" of a copyrighted work. Fair use permits writers, for instance, to quote copyrighted paragraphs. It also applies in software, according to Boyle, allowing programmers to manipulate some code without having to respect the copyright. If very much of that happened, the GPL could lose its authority. What would the courts make of that?
That interpretation is disputed by David Post, a Temple University law professor. He argues that Linux programmers know exactly what they're getting into. "There's nothing wrong with someone saying 'here are the terms of access to my information, you are free to ignore it and go somewhere else.' Consent is a powerful principle, and it should be applied vigorously." "INTENTIONALLY AMBIGUOUS"? Some attorneys say such questions will likely force the courts -- or the FSF itself -- to tighten up parts of the breezily written GPL. "It's not a piece of junk," says Glisson. "My question is whether it's intentionally ambiguous to leave...some argument room." Stallman is in fact planning to revise the GPL sometime this year, according to his assistant, Paul Wendt. Though he won't reveal details, Wendt says the new document will be "more attractive to people like IBM, EMC, Intel, and AOL." Of course, the Linux legions argue that any changes in the GPL -- or even a dramatic legal defeat -- won't derail their movement. The free-software doctrine will adapt to whatever rules are thrown at it, they say, noting that it is already changing in response to an increasingly commercial environment. Netscape, for instance, has drafted its own flavor of the public license. Commercial Linux provider Caldera Systems ships products that carry three different licensing schemes, two of which grant some extra rights to software authors. Some members of the Linux community, including Stallman, say licenses such as Netscape's won't keep code truly open-sourced, or free. Others say the changes are semantic: "Our focus is on the principles behind the licensing agreement," declares Caldera CEO Ransom Love. Such hints of friction cut to what may be the final test of Linux's legal longevity. That test won't come from the courts, after all, but from independent hackers, universities, and corporate boardrooms. As Linux evolves, representatives of all these groups will have to agree on the definition of "free software." And should the Linux crowd's programming Utopia start to disintegrate? Don't be surprised if it calls in the lawyers to put the pieces back together. By Dennis Berman in New York
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