IP-WARS.NET || The "Viral" License Redux

The "Viral" License Redux

By JCausey, Section grok*/OSRM Articles
Posted on Mon Jan 10th, 2005 at 17:03:33 EST

While checking out one of the Groklaw mirrors linked to from ip-wars.net, I noted that there was a GL article from yesterday about IP law issues by "Wolf, Greenfield". The "Wolf, Greenfield" is actually Wolf, Greenfield & Sacks, P.C., (WG) an intellectual law firm located in Boston. When I saw that, I started thinking in my head, "Wolf Greenfield? I know I remember them from somewhere."

So, I was hooked at that point and decided to go check out the article. Not much to find out about WG, except the usual boilerplate provided by the firm. But a quick Google revealed to me that my suspicions were correct - this was not the first time I had Googled for them.

After getting past all the corporate links, you come upon a Businesswire press release put out by WG entitled "`Viral' Open-Source License Can Destroy Software's Value, Wolf Greenfield Lawyers Tell Conference; SCO vs. IBM Further Muddies Picture". The press release indicated

This "time bomb" lurks because a popular license for open source, the GNU General Public License, (GPL) is "viral." The license attaches to any product with GPL-licensed code, including a derivative work, he said. The entire software package becomes open source and the company thus must distribute it freely and let anyone copy it. A widely used open-source utility, for instance, could "infect" hundreds of software products and destroy their commercial value.

Yes, one of many infamous "GPL is viral" stories pushed by various parties. The story was covered by Groklaw in The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling (mirror) where Pamela Jones wrote,

There has been considerable FUD of late asserting that if a company inadvertently incorporates GPL code into its proprietary code, they can be forced to release their proprietary code under the GPL. This isn't new FUD. It's old FUD, but in some new mouths. Even some attorneys have been saying this in the media and at various conferences.

Note the link from "attorneys" points to the same Businesswire article cited earlier.

But, let's search a little further. In May 2004, Linux Electrons had an article about how corporate Linux users could get sued for copyright infringement. This came after the filing of the Autozone suit. Want to guess which law firm the story quotes? It starts out like this

Your company could get sued for copyright infringement simply by using LINUX®. Just ask AutoZone, which was sued by the SCO Group, which claims to own copyrights that are infringed by LINUX, a free "open-source" operating system, Edmund J. Walsh and Steven J. Henry of the law firm Wolf, Greenfield & Sacks, P.C., write in New England In-House magazine, a newspaper for corporate lawyers.

If you read the whole thing, you might notice WG throws in some talk about protecting yourself through the purchase of some indemnity product. I found some of the comments especially interesting in light of all that has happened this past year. As one anonymous poster put it

"Linux can be legally dangerous to you enterprise. By the way, did we mention we're IP lawyers and you can join us at 555-5656 or thelaw@mywallet.com?

nod nod...wink wink...

Anybody recognize that business strategy?

In response to the same story written by WG, Newsforge also picked up coverage a little more extensively. Some choice quotes from the article:

In somewhat of a contradiction from the article for the lawyer publication, Henry went on to say that Linux may actually present more legal risk than other open source projects where the origin of the code is not a matter of contention.
"In terms of legal risk, we know that Linux was not written on a blank page," Henry said. "Thus, there are all the problems SCO has brought to light and maybe a lot more. Some other open source projects have a clearer history and authorship is less uncertain, so the copyright problems may be fewer."

The attorneys echoed previous calls to inaction in their article, advising those contemplating a Linux or open source project or migration to hold off just a few more months.

Again, the comments are interesting as well.

Anyway, you can read WG's predictions for 2005 in their press release. As far as the predictions, I'll be looking into those for future articles.

Thanks for reading!

Jeff Causey

< The Evolution of a FOSS Advocate (33 comments) | Microsoft's memorandum in support of its motion to dismiss Novell's complaint (5 comments) >

The "Viral" License Redux | 27 comments (24 topical, 3 editorial, 5 hidden)

Re: The "Viral" License Redux (4.25 / 8) (#4)
by heimdal31 (heimdal31_ip_warsNO@SPAM.threenorth.com) on Mon Jan 10th, 2005 at 17:26:58 EST
(User Info) http://www.threenorth.com/sco

Interestingly, the GL article starts with "It's usual at this time of year to try to figure out what the future holds. I asked Henry Stimpson if he'd poll the folks at Wolf, Greenfield & Sacks, a Boston IP law firm (with a really lovely website), and give us the firm's assessment of what to keep an eye on for the coming year, as far as IP law is concerned. He graciously agreed," or at least it does right now.

What is odd is the bulk of that Henry Stimpson poll seems to be the same as a Jan 5 press release that lists Henry Stimpson as the press contact.

Just before this article went up, there was an interesting discussion thread at CKX regarding Mr. Stimpson. The link takes you to a listing of other articles Stimpson has been involved with with titles like, "`Viral' Open-Source License Can Destroy Software's Value, Wolf Greenfield Lawyers Tell Conference; SCO vs. IBM Further Muddies Picture" and "Patenting Insurance Policies and Other Financial Vehicles is a Growing Trend." You should look at the entire thread, though for some other interesting material.

---Tim Rushing

More on Stimpson by heimdal31, 01/10/2005 17:34:08 EST (4.00 / 6)

Stimpson Communications by mrbuttle, 01/10/2005 22:48:01 EST (4.00 / 9)

WG And SCO (4.00 / 5) (#14)
by daveventura on Wed Jan 12th, 2005 at 10:07:13 EST
(User Info)

Let's not forget that when PJ did the article critical of them the first time about their GPL is viral, this is what PJ said they told her:
"I wrote to the firm, by the way, to let them know that isn't how the GPL works. They said they only said what a client told them."
www.groklaw.net/article.php?story=20031126002320920&query=wolf+greenfield
So this law firm by PJ's own admission also functions as a marketing arm for ciients.

Also what's very interesting was that one of WG's top lawyers was at a conference with Sontag:
www.groklaw.net/quotes/trscr/?date=2003-11-18C
"Host: And so what should I do to protect myself?
Henry: You have a basic problem here, and the question a couple moments ago highlights it. And it underlays everything that Darl said, and that is, and I'll spare you the Latin, but the basic premise of the law is, you can't give what you don't own. I mean, the license isn't worth the paper it's written on, if the licensor doesn't have the right to give you. It's just like going out and buying a house. You better check the title. And the problem in the open source world is that developers have been extremely lax in worrying about title. They don't, in the simplest case, if you have a small company and it's got some stringers that do a little bit of code here and there. I mean, they don't even have written agreements to assign the rights into the company, so they give an open source license GPL or otherwise to what? To what they have, but that consultant or stringer can come along at any time, and say, 'What a second, you, Mister Licensee, are now an infringer.'"

So why is this company that PJ attacked suddenly doing free favors for PJ or did they do this for PJ because a client of their told them to, like last time?

Re: WG And SCO by br3n, 01/12/2005 11:09:51 EST (3.33 / 3)

Re: The "Viral" License Redux (3.83 / 6) (#11)
by JCausey (jcausey@ip-wars.net) on Tue Jan 11th, 2005 at 14:19:06 EST
(User Info) http://www.ip-wars.net

For those following this or the discussion at CKX, I found this quote from Steven Henry (the main WG attorney on these issues I believe) from a hearing before the USPTO back in 1994:

To back into my remarks, I am a strong advocate of the patent system and I have seen it work time and again in the software industry as well as other industries.

Henry went on to help argue for the defendant, Signature, in the State Street case that appears to be considered the case that opened the door to software and business method patents.

Jeff

Re: The "Viral" License Redux by JCausey, 01/11/2005 14:32:35 EST (3.80 / 5)

Re: The "Viral" License Redux (3.66 / 6) (#6)
by br3n on Mon Jan 10th, 2005 at 18:22:45 EST
(User Info)

wonder if there is any connection from osrm to WG?
br3n

Anyone Familar With Maclay Murray & Spens? (2.66 / 3) (#16)
by daveventura on Tue Mar 8th, 2005 at 10:00:22 EST
(User Info)

This article came out today. I could understand it coming out months ago, it's like timewarp FUD of something that would have been written like a year ago:

A win for SCO would have dramatic consequences for the open source movement, as the company would be entitled to go after the licence fees it could otherwise have received from IBM. This may result in many Linux users potentially facing claims from SCO - a threat which has prompted some users to already seek an indemnity from their supplier.

http://www.computerweekly.com/Article137180.htm?src=rssTech

Like SCO has a snowball's chance.

Re: Anyone Familar With Maclay Murray by br3n, 03/08/2005 10:10:18 EST (none / 2)
Re: Anyone Familar With Maclay Murray by br3n, 03/08/2005 10:16:00 EST (none / 2)

Amazing (1.54 / 11) (#8)
by Potential Recruit on Tue Jan 11th, 2005 at 08:21:30 EST

I return after a few months to see if this site's picked up a bit, and I discover this little "revelation" that a law firm practices the law as it stands today.

Amazing.

Astounding.

And utterly irrelevant.

You really should get someone with a legal background to help you with these articles, because this one is pretty laughable.

IP law firms not being permitted to comment on IP issues because they make money from fighting IP-related cases indeed...

Yes, indeed, all commentary on IP issues should be made by those unqualified to do so. But then that's what you practice here anyway.

Re: Amazing by pgk, 01/11/2005 08:51:21 EST (4.27 / 11)
Re: Amazing by rex007can, 01/11/2005 09:02:47 EST (4.00 / 11)
Re: Amazing unless you look by total insanity, 01/12/2005 03:49:19 EST (3.85 / 7)

Bye bye spambot (none / 1) (#22)
by Potential Recruit on Mon Nov 27th, 2006 at 11:14:52 EST

This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Bye bye spambot (none / 1) (#23)
by Potential Recruit on Mon Nov 27th, 2006 at 11:16:03 EST

This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Bye bye spambot (none / 1) (#25)
by Potential Recruit on Mon Nov 27th, 2006 at 13:53:35 EST

This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Bye bye spambot (none / 0) (#27)
by Potential Recruit on Tue Nov 28th, 2006 at 12:22:27 EST

This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

The "Viral" License Redux | 27 comments (24 topical, 3 editorial, 5 hidden)

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