Removing Proprietary Bits from Illegally Closed Open Source?

hahnfeld asks: "I maintain an Open Source (GPL) project which is fairly popular among commercial companies who produce proprietary add-ons for the software. Recently I found that someone was selling code derived from my product under a proprietary license. As a settlement, we finally agreed that his software (which had come a long way from the original Open Source base) will be released under the GPL. Obviously, I have plans to distribute the newly GPL'ed code from my project's site. Now that I've made the announcement, many commercial add-on authors are saying that they believe their code may be contained in the software and it is MY responsibility to remove it or they will come after ME. I've received everything from threats to insults from the commercial add-on authors, who believe the newly GPL'ed product will cut into their business. I've already notified everyone who has a proprietary add-on that I know about, and I'm planning on cleaning out anything I find. But short of not distributing the newly GPL'ed software, is there any way for me to protect myself in the event some proprietary code gets left in the GPL code?" As open source gains popularity, this issue is bound to strike another developer. In addition to seeking legal advice, what suggestions would you give to someone unfortunate enough to be in this position?

Comments

How to tell?

[breon.halling]

I'm not a professional programmer or anything, but I am in the process of learning, and I'm just wondering how one would go about actually identifying the proprietary bits of code.

Short of searching for "Proprietary code: Go!" comments, does anyone have any insight into this?

Re:How to tell?

[doofusclam]

Funnily enough you're so correct. I used to work for a major european bank in Cheltenham UK and was subcontracted to IBM UK.

We had to build a system that replaced the paper in the process of a salesman going to your house, signing a deal for life assurance or whatever and that going onto the banks internal systems. This involved a web UI at the salesman end, another UI at the bank end (for validating date and manual approval) and a transport. The transport was the usual IBM MQ, bits of xml validation, PDF generation and database shenanigans. I wrote that bit. The simplest bit was the UI - a simple VB program that showed important bits from the xml for the operator to check (that had to do this due to UK law). One of IBMs programmers, fresh out of college with a certificate for everything, used no parameters in the VB code at all - he put parameters in XML throughout the code, with all the sloowwww parsing involved. To view a new policy took *45 seconds* on a decent pc rather than the sub-second response for a properly written app.

He had done the usual dumb schmuck consultant error - he assumed because something was on his CV HE HAD TO USE IT. XML is a hot skill. So rather than pass an integer to a subroutine, he create a new xmldocument, added the integer to it (under numerous levels of XML), passed this, decoded the xml and retrieved the integer.

Big consultancies like IBM are full of n00b graduates who know everything but only superficially. The world would be better without them.

seany

Just because they say it's your responsiblity...

[HotNeedleOfInquiry]

Doesn't mean it is. You really need a good IP lawyer for this. If that's out of the question, I'd send each of the plugin companies a copy of the source, along with a letter stating that to the best of your knowledge, the code is yours and that you intend to GPL it. Give them 30 days to identify any code that they believe is theirs, with the option of declaring none. Tell them that if they do not respond in 30 days, their license to use your code will be terminated and they must cease marketing and supporting the product. Disclaimer - I am not a lawyer and this is not legal advice.

Um...

[ichimunki]

If the application was GPL in the first place, please explain how anyone can write a proprietary extension for it and then prevent you, the original author of the software or assignee of copyright for the code (?) from distributing those extensions. Either you're leaving something out or these people are off their rockers-- or maybe they think there will be a high rate of return on their investment in copyright lawyers.

BTW, would future authors of these sorts of "Ask Slashdot" questions, please do a little self-promotion and include the name of the software in question? These discussions are nearly worthless when I can't do some Googling for background info.

Either/or

[TheSHAD0W]

Let me get this straight: You have the software company who was distributing the product containing your GPL'd code, and you have other coders who have contributed to the project, and who do not want their proprietary code made public. Now, either the other coders knew they were working with your code and may have been aware of the GPL licensing, or they didn't.

If they were aware of the licensing restrictions on the code they were working with, then they are morally in the wrong and a court will probably rule against them.

If they were not so aware, as in if the software company concealed the knowledge of GPL restrictions from them, or had them working on a separate segment of the code which was included in the project but not directly involved with the GPL, then it's the software company's fault in scheduling conflicting licenses. It is not YOUR responsibility to PUBLISH the source code, it is that company's; you might only be distributing that source, and perhaps not even that. The software company would have the options of:

(1) Withdrawing the program from the market completely;
(2) Replacing your GPL'd code with equivalent proprietary code, and keeping the codebase secret;
(3) Replacing the other coders' proprietary code with open-sourceable code (or licensing their code for open-source use) and publishing the codebase;
(4) Publishing the codebase as-is, and risk being sued by the other coders;
(5) Keeping the codebase secret, and risk being sued by you.

I do not see any way a court would hold you liable for making the software company publish the code; it was not your decision to tie their code up with yours. If it does head to court, though... Get a good lawyer.

Re:GPL - What's the use?

[yeti (dn)]

The purpose of GPL is really to draw a clear line between proprietary and free software. I.e. to assure code won't migrate from one world to the other in no direction.

By the nature of proprietary software, you can't make it free. By being able to take free code and incorporate it in propriatary app (probably with some added value), code would continually move from the free world into the proprietary. In other words, the proprietary codebase would be all code (proprietary + free), while the free codebase will contain the free code only. This would doom free code to become and/or remain marginal.

With a clear separation you now have two basic possibilities: use free code creating more free code and use proprietary creating more proprietary.

If you want to sell your code you can. But you can't sell other's code, and I don't see anything wrong in it.

Re:Their in fault, not you

[ivan256]

No, in order to distribute their code (which they've already done), they already released their code under GPL and he's licensed to use it under GPL.

Again, there's outside circumstances here. Because there was a deceptive third party involved that was distributing this software under another (non-GPL) license, these add-on vendors may not have known they were contributing to GPL software, and would likely not be bound by the terms it it went to court. Most judges won't hold a participent to contract terms they were unaware of due to the deception of another party. An arrangement will have to be made, wether it's forced by a court or mutually agreed upon by both authors, but there's a very good chance that the outcome will not involve the code in question becoming available.

Mod Parent Up

[hughk]

I'm not sure if the AC is genuine, but he has a valid point. If the AC developed some code which was combined by a third party with the GPLed code and the third-party released the merged software as propriatary.

Its an interesting point because the AC acted in good faith and it is that third-party who did the dirty. However if the code isn't attributed during the merge, it becomes very difficult to say which bit came from where.

My view is that the merger was the same as the third-party inadvertantly disclosing AC's proprietary software. The third-party becomes responsible for any tidying up.

Re:one

[Anonymous Coward]

The problem is not removing the proprietary code. That is being done from what I read on the Everysoft forums. The problem is that there are certain people that don't want to see this become GPL. Matt Hahnfeld over there at Everysoft is being threatened with lawsuits, but the people are anonymously threatening him. They won't even hint at what code "might" be theirs. Every person that has come forward has been treated with respect and has had there proprietary code removed when asked. It's just these select few who don't want to see ANY part of Ultimate Auction be GPL'd. These are mainly UA users that paid for the software. Here's one example, some anonymous guy says "I have found my code used in UA and I do not plan on spending my time submitting anything to you". This guy goes on to say he will spend no time looking for his code without being paid to do so and will sue if his code is used. So is Matt H. supposed to guess what code this guy is referring to, or can he just say, "you have been warned about the future GPL'ing of your code" and move on?