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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." But Newdows case has some interesting parallels to the dispute between Computer Associates and Quest Software, which may result in a court taking a stand on the General Public License.
So which EULAs have stood up to the challenge? Does the court provide an opinion on everyone's license? I've not seen a seal of approval from XXX Bar Association on any of the software that I've purchased recently.
In your contrived situation, I would agree that Quest came into possession through an illicit means. What if Quest paid one of CA's customer hundreds of thousands of dollars to request the appropriate source code that CA would be legally required to provide. What would CA do? As I see it, they would either have to
a) remove the offending GPL code from the product and provide a non-infringing product.
b) provide all of the source code required to be within compliance
c) recall the products and provide appropriate compensation to the customer.
In situation b, what would occur when Quest shows up with a copy of the source that CA's customer gave to them. The GPL does require that there should not be any additional restrictions on derived works. Nothing would prevent the customer from providing the code to someone else.
Why is the GPL any weaker than any of the other licenses that software companies require before their programs can be used? I believe that there have been a few instances the click does constitute an agreement. It's basically a contract, right?
I would think that the GPL should be even stronger since someone is actually going through the files making modifications and incorporating the code into their own. Most GPL programs include a GPL statement at the top of each source file. The license/copyright statement is staring the developer in the face until he/she deletes it.
If the GPL is invalidated, doesn't that mean that everyone who is developing software based on GPL code will be required to negotiate a license with each of the developers who contributed the code? I certainly don't want others using code, that I've placed under the GPL, in a manner not consistent with the GPL. I may have sweated many long hours on that code. I gave it away to be used under specific circumstances. If it is not going to be used within those circumstances, I expect payment.
I believe that the GPL has already received partial validation in Germany. Check out the nefilter press release.