WACHA_ME 12.18.04 12/22/2004 1:56 PM 451 TAKING THE CASE: IS THE GPL ENFORCEABLE? Jason B. Wacha† Would the GNU General Public License be enforceable in a U.S. court? With the meteoric rise of the Linux operating system, the license that governs the Linux kernel and thousands of additional open source software programs has come under increased scrutiny. As a part of that scrutiny, some people have questioned whether the license is legally enforceable. This article seeks to answer that question. I. INTRODUCTION “Ianal” is web-speak for the disclaimer “I am not a lawyer.” So begins many a discussion on the enforceability of the GNU General Public License (“GPL”). This disclaimer, however, is often followed by analysis of a legal nature. The conclusions drawn run the gamut from completely off the mark to well-informed, solid arguments regarding the legal aspects of a fairly simple but misunderstood document. In my position as the General Counsel of MontaVista Software, Inc., I have heard most of the arguments as to why the GPL is or is not a valid legal document. I address below each of the major concerns that I have heard expressed, and respond to each from the perspective of both a lawyer and a businessman who uses the GPL daily. While I have an admitted bias toward wanting the GPL to be enforceable, I have based my analysis—and the order of the † Vice President of Corporate Affairs and General Counsel, MontaVista Software, Inc. Copyright © 2004 Jason B. Wacha. Thank you to Esther Ko for her dedicated research assistance on this article. Thank you also to valuable contributions from outside counsel to MontaVista Software: portions of Part II.C of this article are based on e-mail exchanges with Josephine Aiello LeBeau, Counsel, Miller & Chevalier, Washington, D.C.; portions of Part II.G of this article are based on telephone conversations and e-mail exchanges with David Killam, Partner, Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, CA; portions of Part II.H of this article are based on e-mail exchanges with Dr. Till Jaeger, Jaschinski Biere Brexl, Munich, Germany and with Heather Meeker, Partner, Greenberg Traurig, Palo Alto, CA. The views expressed in this Article are strictly those of the author and do not necessarily represent the views of any parties to the cases discussed or to any other litigation.WACHA_ME 12.18.04 12/22/2004 1:56 PM 452 SANTA CLARA COMPUTER & HIGH TECH. L.J. [Vol. 21 rankings—on the law. My legal analysis is based solely on U.S. law, and does not take into account non-U.S. peculiarities such as the German legal prohibition on disclaiming certain warranties and liabilities. A. Why Should You Care? 1. A Quick Background on Linux and Open Source Linux is the fastest growing computer operating system in the world.1 It powers everything from consumer electronics (such as mobile phones, PDAs and TV set-top boxes) to medical equipment to communications routers. It is being utilized worldwide by companies such as IBM,2 Oracle,3 Motorola,4 Sony5 and hundreds of others. Linux is one of the best known open source technologies, but other open source technology powers the web, sends your e-mail, and performs myriad other tasks on both the desktop and in embedded 1. See Trish Williams, The Whole World in Linux Hands, Washington Technology, at http://www.washingtontechnology.com/news/15_3/tech_features/1285-1.html (May 1, 2000) (citing an IDC study projecting that “Linux will grow faster than all other operating systems combined through 2003” and that Linux server shipments in the fourth quarter of 1999 from the same period a year earlier, “represent[] the fastest-growing operating environment in the server market”); SDE, GenaWare Supports Plans to Support New Linux Ready eServer Systems, LinuxLinks.com, at http://www.linuxlinks.com/portal/news/article.php?story=20030218130834567 (Feb. 18, 2003) (citing Linux as “the world’s fastest growing operating system”); Jay Lyman, Linux Systems Now Comprise More Than Half of World’s Fastest 500 Computers, News Forge, at http://trends.newsforge.com/trends/04/06/21/2312237.shtml?tid=2&tid=82&tid=94 (June 21, 2004) (stating “Linux systems now comprise more than half of world’s fastest 500 computers” and quoting a source predicting that “[e]ventually, I think you’ll find Linux is going to replace everything on the Top 500 list”). 2. Letter from Samuel J. Palmisano, IBM Chairman, to IBM Investors, in 2003 IBM Annual Report at 8 (2003) (“We have, since 1997 . . . incubated successful new high-growth businesses such as . . . Linux and pervasive computing—each of which has already become a $1 billion-plus revenue stream.”). For more information about IBM’s use of Linux, see IBM’s Linux Portal at http://www-1.ibm.com/linux/ (last visited Nov. 26, 2004). 3. Oracle #1 on Linux, Grows 360% to 69% Market Share—Gartner, Oracle, at http://www.oracle.com/database/feature_db_dbleadership.html (last visited Oct. 14, 2004) (“According to the annual database market report from Gartner, Oracle has the largest Linux market share and the highest annual growth rate on Linux. . . .”). 4. Special Report: Motorola Adopts Linux for Future Mobile Phones, LinuxDevices.com, at http://www.linuxdevices.com/news/NS4504156025.html (Feb. 14, 2003). For more information detailing Motorola’s Linux-based products Motorola press releases, see http://www.motorola.com/seamless_mobility/ (last visited Oct. 15, 2004). 5. Sony Uunveils New Linux-Based PVR, LinuxDevices.com, at http://www.linuxdevices.com/news/NS5368420260.html (Sept. 4, 2002) (reporting Sony’s release of a Linux-based television set-top box).WACHA_ME 12.18.04 12/22/2004 1:56 PM 2005] IS THE GPL ENFORCEABLE? 453 applications.6 Under a typical open source software license, computer source code is provided to the licensee, and the licensee is free to copy, modify and redistribute that source code along with the resulting binary files. Open source software is created and modified through the collaborative efforts of a large community of developers, including multiple commercial enterprises and individuals, rather than any single organization. Unlike traditional proprietary software, open source software is available under licenses that permit developers to write new code, alter existing code, receive feedback on the code and share improvements with others, with minimal restrictions. 2. A
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