It would be useful to have a court case be litigated all the way to the Supreme Court to establish the enforceability of the GPL whereby the defendant is forced to share code against their will.
> whereby the defendant is forced to share code against their will.
This remedy of compelling a party to do something they agreed to do is called 'specific performance', and US courts only even consider doing this when real property (land) is involved.
For copyright infringement, generally what's available is injunctive relief preventing further infringement, disgorgement of profits, and statutory damages and attorneys fees as permitted by title 17. The injunction and disgorgement are the killers here that actually scare would-be infringers, and they mean that in most cases what you actually end up with is a settlement.
Which is why it would be nice for the Supreme Court to confirm GPL's enforceability. It hasn't been tested in courts, but it would be insanely powerful for the open source community to begin enforcing it.
It would extend the right to repair to the software that we write.
For what it's worth, the Federal Circuit, the Eleventh Circuit, and the Seventh Circuit have heard cases dealing with the GPL or some other open source license, and they all understood the big picture and were fine with it. (the cases are Planetary Motion v. Techsplosion, Wallace v. IBM, and Jacobsen v. Katzer).
> only even consider doing this when real property (land) is involved.
Courts force the sale of companies (etc) that don't involve real property. I think maybe they're reluctant and prefer monetary remedies but if what you say is correct that would neuter contracts pretty severely.
Specific performance is most common in real property disputes because land is inherently non-fungible. But in most US states a court can order it wherever it finds that monetary damages are inadequate to remedy a breach.
Exactly. This fantasy of forcing companies to release source code because of past use is just that: a fantasy.
Imagine if you pirated photoshop and the courts retroactively forced you to install Adobe spyware to comply with the license. Obviously the most the court could do is fine you or prevent further infringement.
It's no more fanciful than assessing exorbitant damages for distributing each copy made via BitTorrent. The courts were fine with letting that happen.
Just because the plaintiffs aren't operating billion dollar businesses doesn't make their infringement claims less valid. The terms of the GPL explicitly spell out Deere's obligations. If they ignore them it converts to plain old copyright infringement with damages due for every illegal copy made.
It's not as simple as that. What if it infeasible to remove the GPL code from your product and are unwilling to withdraw your product. It could be argued that compensation would be unacceptable, inadequate and impractical given hundreds of anonymous contributors writing software on an ideological, rather than financial basis. Why would being forced to share your code be taken off the table in that case? I could see the court finding that it would be the only equitable remedy.
Sure, but infeasible is decided by the business. Their choice is either to not distribute anymore (and potentially pay damages for past infringement) or distribute in line with the license.
You settle the individual lawsuit with the party that started it. For a work with multiple authors, that wouldn't prevent the other copyright holders from suing you. This is one of the reasons GPL projects make lawyers risk-averse...
Generally the way GPL has been in the courts, the suing party won't just take some money and walk away happy, they'll ask for the infringement to end (one way or the other). That would make other copyright holders happy too.
Whoever/whatever owns the copyright to the underlying work(s) would need to sue to get the ball rolling. Current statutory law doesn't directly address copyright ownership with respect to the kinds of collaboration we see in open source, but if there's a "main author" for the code base you would just need them in most cases.
I wonder if the fact that lost of companies would like to stick lots of weird rules in their licenses could help here. Where’s John Deere in the pantheon of companies? They can’t be more powerful than the Googles and Faces Book of the world, right?
I think they have confuse pro-government with pro-business.
The Supreme court since FDR has been very resistant to role back the role of federal government, they have no problems smacking down state laws, but when it comes to rolling back federal laws or regulations well....
So here it would be determinative on which "side" the federal government chooses, or if the federal government stays silent which silence IMO is probably the most likely outcome for the federal government.
If they stay out of the fight, I think Deere Loses. If the federal government defends Deere then I think it is more 50/50
And of course, depending on chipsets used, that could be an expensive retrofit for existing tractors if BSD/etc doesn't support what is currently in use, or the providers or JD have to write their own drivers to support a BSD usage.
Even then, there's still the likelihood they are using GPL code/libraries above and beyond Linux itself.
