cba-3.14, this is not really a test of the license. GPL itself is a perfectly valid license. It's just that it is based on a development model which has always been at odds with the legal principles of accountability and responsibility. Large open source projects tend to evolve into something like anonymous message boards. Sure, you can "usually" find an IP address from a web server log, find the owner of the subnet from ARIN, and try to find the user of the IP address at the given time, but it's a horribly inexact science which often comes to a dead end at a large corporate proxy server where the logs haven't been retained in enough detail to find the offending hit at the approximate date-time.
Many Internet "standards" established by open source (things like SMTP, NNTP, FTP, basic authentication in HTTP, etc.) all lack true security/traceability. One of the reasons spam is such a problem today is that there is no single, quick, fool-proof way to identify the sender of any given message. In the past few years, things like SSH have helped, and proprietary mods to software allow ISPs to ensure they can enforce TOS and respond to law enforcement when a subpoena shows up, wanting to know who posted the insider trading information or pirated software. But many things touched by open source remain targets for abuse. P2P isn't popular because of technical merits; it's popular only because it tends to conceal identity (and thus remove responsibility and accountability).
I'm surprised not to hear more conspiracy theory suggesting that SCO itself planted the infringing code. In fact, they could have assembled sections of infringing code one line at a time, from different contributor "identities." The really interesting thing is that Linus admitted to reviewing everything that gets accepted into the kernel. Every ISP running a news server knows to deny exercising any editorial review over postings from their systems because it makes you liable, at least in the United States. If there is infringement in the kernel (regardless of who contributed it), Linus and/or a handful of his designated kernel coordinators could be held personally accountable by a U.S. court.
All this talk about removing the offending code is nice, but it doesn't resolve the issue. You can't rob a bank, get caught, give back the money, and simply walk away. It's time for open source to take its place in history alongside Napster.
|