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If The SCO Group Inc. has its way, the GNU General Public License is about to fail its first test in court. The GPL, as the GNU General Public License is known, governs the use and modification of “open source” computer software such as Linux (“GNU” is an acronym for “GNU’s not Unix” and refers to operating systems like Linux). SCO, as part of its campaign against Linux, which, it claims, contains purloined SCO code, is also attacking the GPL. SCO says it violates the U.S. Constitution and federal law. Companies that use Linux agree to abide by the GPL. While few lawyers expect the courts to strike down the GPL on the vague constitutionality argument that SCO has raised, they are hoping for some judicial guidance. “One positive that can come out of this litigation is more clarity on the meaning and enforceability of the GPL,” says Eric Reifschneider, a corporate partner in Palo Alto, Calif.’s Cooley Godward who advises high-tech companies on open source software such as the Linux operating system. The GPL is just one of about 40 to 50 pure open source licenses used today. Richard Stallman, a former MIT engineer who’s been crusading against intellectual property rights for decades, wrote the GPL in 1989 and released the current version in 1991. Along with Linux, the GPL is used for tens of thousands of software programs, including everything from esoteric programming tools to word processors. A mere six pages, the GPL begins with a polemic: “The licenses for most software are designed to take away your freedom to share and change it.” It then sets the ground rules for Linux and other GPL-licensed technologies. The basic premise is that anyone can download from the Internet the “kernel,” or the core programming language of the software. Downloaders can use the code, change it, or add to it as they see fit. But if they borrow enough code to create a “derivative” of the original program and then give it to someone else, there are two key conditions: They cannot charge for their work, and they must share their changes with others. Sound simple? It’s not, grouse some lawyers, who say the GPL’s very simplicity raises more questions than it answers. One gray area: How much code can be borrowed before the new program becomes a “derivative” and therefore has to be publicly disclosed? The definition of a derivative has, of course, long befuddled copyright lawyers and the courts. There’s also the question of enforceability. Last summer a prominent German academician declared the GPL unenforceable in the European Union; that notion has yet to be tested. Another sticking point is the GPL’s proselytizing tone, which was regarded as harmless until Linux was embraced by corporate IT departments. “It’s one thing to sound like a communist,” says Larry Rosen, the general counsel of the Open Source Initiative, a nonprofit group that promotes collaborative software development. “Just don’t expect the president of General Motors to accept at face value a license that gives things away for free.” Rosen has written an alternate license, called the Open Source License, that tones down the rhetoric. Linux’s inventor, Linus Torvalds, is using it for other open source work he’s done. Eben Moglen, a Columbia Law School professor who is also general counsel of the Free Software Foundation, which administers the GPL, has heard the complaints before. He’s been working on a new version of the GPL that, he says, will address some of the confusion about derivative works. But when it comes to the polemics, he says, don’t expect a kinder, gentler tone. And there’s no word yet on when the new and improved GPL will be introduced. But this much is clear: Short of a court knockout, the GPL is here to stay. “There’s this self-perpetuating feature [to the GPL],” says Cooley’s Reifschneider, “that says, ‘You have to use me every time you redistribute the code.’” Now that’s immortality.

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