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Time for a Court Ruling on the GPL?

By Phil Albert
Aug 31, 2004 6:00 AM PT

Michael Newdow may not be a household name to the open-source community. The California atheist sued a Sacramento school district to prevent his third-grade daughter from having to recite or listen to the Pledge of Allegiance because it includes the words "under God."

Time for a Court Ruling on the GPL?

But Newdow's case has some interesting parallels to the dispute between Computer Associates (CA) and Quest Software, which may result in a court taking a stand on the General Public License (GPL).

Computer Associates v. Quest Software is generating a lot of discussion in open-source circles because it might become one of the few court cases to rule on aspects of the GPL. Unfortunately, anyone expecting an interpretation that finally provides a legal vindication or invalidation of the GPL is likely to be disappointed.

One reason is that, despite reports to the contrary, the facts of this case do not turn on the GPL. Another reason, of more interest to constitutional law scholars, is the lack of standing.

Atheist vs. School District

In the case of Elk Grove Unified School District v. Newdow, the trial court dismissed the case, ruling that including the words "under God" in the pledge did not rise to an establishment of religion. Newdow appealed to the Ninth Circuit Court of Appeals, which ruled that the school district's policy requiring recitation or participation in the pledge violated the First Amendment's ban on government establishment of religion. After the Ninth Circuit's ruling, the school district and interested parties sought to have the case heard by the United States Supreme Court.

At this point, many constitutional scholars and interested citizens really started following the case, expecting the Supreme Court to rule once and for all on whether the use of the phrase "under God" was an unconstitutional establishment of religion. Much to the chagrin of constitutional scholars, that is not what happened.

Newdow, the Supreme Court ruled, did not have a leg to stand on. Newdow did not have custody of his daughter and was not married to Sandra Banning, the girl's mother. As a result, he did not have legal standing to bring the case on behalf of his daughter.

The Court noted that the girl's mother did not oppose her daughter being subjected to the Pledge. The Court dismissed the case without ruling one way or another on the merits.

In legal terms, "standing" is required to be a party to a lawsuit. According to Article 3 of the U.S. Constitution, federal courts are prohibited from hearing cases unless there is a case or controversy between the parties. Thus, once the Supreme Court ruled that Newdow lacked standing, it could not rule on the question everyone was waiting for the justices to decide.

Computer Associates v. Quest

In 1999 Computer Associates purchased Platinum International, maker of Enterprise Database Administrator (EDBA). Quest Software then hired away a group of Platinum employees who had played important roles in the development of EDBA.

In 2002 CA filed suit against Quest, asserting theft of trade secrets and copyright infringement. Apparently, those former Platinum employees included portions of the EDBA code in Quest's competing product. Recently, CA won a preliminary injunction preventing Quest from selling, distributing, using or marketing its Quest Central product or any future product derived from CA's source code.

CA admitted that it used pre-existing GPL code. It has been widely reported that the court broadly interpreted the GPL and held that CA's use of GPL software did not cause CA's software to be subject to the GPL. As a result, CA did not have to publicly distribute the source code to its programs.

Those reports, however, are not consistent with the actual opinion and order issued by the court, which did not interpret the GPL at all. Further, in the positioning of this case, Quest lacks standing to bring any counterclaims or defenses that would require the court to interpret the GPL.

Bison's Code

The GPL code at issue, according to the court, was Bison. Bison is a parser generator that reads in a grammar description and generates a C program to parse that grammar. Bison's copyright holder is the Free Software Foundation (FSF). In the license terms specific to Bison, the FSF grants an unrestricted license to the C programs generated from Bison. Thus, CA's use of Bison to generate EDBA code does not require CA to license that EDBA code under the GPL. Therefore, Quest is a copyright infringer.

This may all sound complicated, but suppose the facts were neater. For example, suppose that, instead of Bison, CA started with a GPL parser program and modified it for its specific needs to create EDBA. Then suppose that after Quest took CA's source code for EDBA, CA sued it for trade secret misappropriation and copyright infringement. Then we'd really have a case that depended on an interpretation of the GPL, right? Wrong.

No Leg to Stand On

In this hypothetical case, Quest might assert a defense that the GPL gives it a license to the EDBA source code because CA used GPL code in EDBA. A court's proper response, however, would be that Quest lacks standing. CA might have incorporated GPL code into its product, requiring it to license that product under the GPL. But if CA did not in fact license the product under the GPL to Quest, and Quest had no other license, Quest would be a copyright infringer with no defenses.

Why? Because Quest would not have standing. Without standing, it could not object to even a clear violation under the terms of CA's license with the provider of the GPL code. It would be incumbent on the provider to sue CA for copyright infringement.

We all need to take a stand now and then, but as with the Supreme Court in the Newdow case, a lack of standing in the case of CA v. Quest may allow the courts to postpone indefinitely a decision on the GPL.

Ultimately, whether the court rules that the GPL is the greatest thing since sliced bread or has more holes than Swiss cheese, some people are going to end up trying to digest a disappointment sandwich.

Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.

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