Mambo Users Are Free And Clear

ValourX writes "By now most of you have heard of the copyright infringement and code theft claims involving the Mambo content management system and businessman Brian Connolly. Legal questions have been raised, guesses have been made, commentary has flowed forth, and everyone involved in the dispute has had their fifteen minutes to relay their sad tale of injustice. Now it is time for the facts, and NewsForge can definitively say, based on material and quotes from Larry Rosen, Dan Ravicher, and Eben Moglen, that Connolly's legal threats against innocent Mambo users are baseless. Part of the new information in this article reveals that the SCO Group helped Brian Connolly by giving him some media contacts. NewsForge is part of OSTG, like Slashdot."

Comments

Connolly replies...

[saddino]

FYI, he's issued his rebuttal here: Point-by-Point Response to Matzan's Op-Ed

Re:Connolly replies...

[Anonymous Coward]

and a reader replies
http://www.newsforge.com/comments.pl?sid=41095&op= &threshold=0&commentsort=0&mode=thread&tid=147&tid =29&pid=99698#99718/

Re:Connolly replies...

[rewt66]

I read his reply. He does all right until his fourth point, where he says, "However, reverse engineering would still require the permission of the copyright holder."

This is total baloney. You only need permission of the copyright holder if you are copying, or if you are creating a derivative work within the meaning of the copyright law. It's not enough to say, "It does the same thing, it's by the same guy, so it must be a derivative." Reverse engineering is almost certainly not going to create a derivative work in copyright terms.

Now, reverse engineering could get you in trouble with patents. And if the same person did the work, there could be trade secret issues. But Connolly didn't argue those points; he yelled about copyrights. Sorry, it doesn't work that way. Copyright only applies if someone copies something. If I understand correctly, Salik says he didn't copy anything; he re-wrote it.

In point 5, Connolly claims, "The code committed to Mambo was done under contract and paid for by the Literati Group." If this is true, that's a big no-no. But if the code committed to Mambo does the same thing as the code written for Literati, but is in fact different code, re-written from scratch (it's only a few lines), then Connolly has nothing contractually to lean on.

Moving on to point 9: Connolly claims that the GPL doesn't require you to redistribute. This is true. What the GPL requires is that, if you distribute the program in any form, you must also distribute the source under the GPL. If you leave the program in-house running your web site, you don't have to distribute the code at all, ever, to anyone, under the GPL or under any other terms.

The questions are: First, did Salik contribute original code to Mambo, or did he contribute the code he wrote under contract for Literati or a derivative thereof? (Note well: "He wrote the one, and then he wrote the other, and they do the same things, so the second must be a derivative" is a fallacious argument.) And second, did Literati distribute the program under any terms to anybody, and does the program contain GPL'd code that is not owned by Literati? (Note that Literati can GPL a version of their code, and ship a version that contains the same code plus other code, without having to GPL all the code in the second version, as long as all the GPL'd code in the second version is owned by themselves.)

Article is mostly crap

[jhoger]

The author doesn't seem to understand how the GPL works.

If I make changes to a GPL'ed work, they are my changes. I own the copyright. I don't own the copyright to the entire work, but I own my changes. Imagine my changes as a diff file with a copyright on it.

If I distribute it, the GPL requires that I license my copyrighted code under the GPL.

The author completely misses this point, and in fact makes the assertion that if you derive a work from GPLed code that your work is automatically GPLed. This is a common fallacy. I can't believe it made Newsforge as such.

The only issue here is whether a) the code was copied such that it is close enough to be considered infringement and b) whether Connelly distributed the code outside of his organization.

If either are untrue, Connelly has no case.

Re:Article is mostly crap

[jhoger]

>RTFA.
I did, I even read the whole thing :-) That's how I know you're wrong. Grow up a little and admit your mistakes.

> The code between the two derivative works that create lead story blocks is not the same code.

I'm not arguing this point at all. My issue is with your interpretation of the GPL.

You may be wrong there too... you don't have to make a verbatim copy to be infringing. It's actually fairly complex in that regard.

>RTFA.
I did, stop saying that!

> Owning the copyright to GPL code means little other than the fact that you get credit for it.

Sweet Jesus! It means a heckuvalot more than that. Let me count the ways:

It means you own the work, which in turn means that you can license it under any and as many licenses as you like. It means you can sue someone for infringment if they make a copy without a license that allows it (and if they violate the GPL and you license under the GPL, that person may not have any license to distribute). It means you can sell your work, make copies without worrying about licensing etc.

No, owning copyright on a GPLed work is *very* important.

Now in this case, owning copyright on a small patch to a GPLed work is certainly of less value than if you had written the whole thing from scratch since other parties have ownership claims on parts of the collective work which you have to respect.

> RTFA.
Come on, I did read it, quit it already!

> The code was not copied. The code in Mambo does not belong to Connolly in any way shape or form.

I didn't say the code was copied, I made no assertion as to that in any way. Please reread my comment.

Re:Article is mostly crap

[Anonymous Coward]

No, you're just automatically committing copyright infringement if you distribute the derived work under something other than the GPL (given certain assumptions).

Re:Article is mostly crap

[Anonymous Coward]

Not to be an ass, but that is wrong. The code is only GPL'd if it is redistributed. The relevant quote from the GPL license.
"
You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

* a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.

* b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
"

There, a priori, is no required licensing for derived works - those are yours. The "automatically GPL'd" part is when you redistribute the code. So, if you are giving your work to others, you must use the GPL license.

Furthermore says: It's not over yet

[Anonymous Coward]

Connolly isn't done yet. See http://www.literatigroup.com/versusmambo/content/v iew/60/46/ for details.

Re:More of the same.

[El]

But, how many times has Microsoft been sued for infringement of intellectual property? More times than Open Source has, by my count. If I were Microsoft, I'd avoid drawing attention to the issue! "People that live in glass houses shouldn't throw stones!" and all that...

Let's see... Apple, Stac, Eolas, Priceline, InterTrust, AT&T, Burst.com, and GoldTouch[?] have all sued Microsoft for infringement. M$ has been sued at least 42 times for patent infringement! All in all, I'd say the Open Source movement has a much better track record than Microsoft does in respecting intellectual property rights!

Re:What's a mambo? Mambo #5?

[Best ID Ever!]

If only there was some sort of article you could read that would explain it.

And if that goes over your head, here is a snip of reply from the code's author:

To summarize it:
1) The code delivered to Brian Connolly is not the same as the code implemented in Mambo.
2) The code delivered to Brian Connolly was derived from GPL, Copyright Miro International Pty.
3) Brian Connolly distributed copies of Mambo that had the so-called 'infringing' functionality under the GPL.
4) There are no copyright assignments with my signature on.
5) Brian Connolly has no trademarks or patents on anything resembling the disputed functionality.

Re:GPL and Redistribution

[radish]

It's not a loophole at all.

If I take a GPL program and modify it I own the modifications. There is never any doubt in that, the fact that it is GPL'd is not important - I always own the code I write (notwithstanding employment contracts etc).

All the GPL says is that if I take a GPL program and modify it, I must license the new version under the GPL also. That's it. So I still own the modifications, I just have to license them under the GPL. Fine. (I can even license them under some other license as well if I want, but the GPL has to be in there somewhere).

Does that mean I have to distribute it? Of course not. The GPL doesn't say that. The GPL simply says that _if_ I distribute binaries I also have to distribute source, to the same people who got the binaries. If I _don't_ distribute binaries (as in your example) then I don't have to distribute source, so in essence the GPL is redundant in this case.

Remember - the GPL is moot until I distribute something.

Good point and

[einhverfr]

IANAL, but....

I think that Sony v. Connectix sets a pretty strong precident for allowing reverse engineering provided that it is strictly a copyright case.

Re:Facts?

[Progman3K]

"Webster's Revised Unabridged Dictionary (1913)"
Fact Fact, n. L. factum, fr. facere to make or do. Cf.
Feat, Affair, Benefit, Defect, Fashion, and -fy.
1. A doing, making, or preparing. Obs.

A project for the fact and vending Of a new kind of
fucus, paint for ladies. --B. Jonson.

2. An effect produced or achieved; anything done or that
comes to pass; an act; an event; a circumstance.

What might instigate him to this devilish fact, I am
not able to conjecture. --Evelyn.

He who most excels in fact of arms. --Milton.

3. Reality; actuality; truth; as, he, in fact, excelled all
the rest; the fact is, he was beaten.

4. The assertion or statement of a thing done or existing;
sometimes, even when false, improperly put, by a transfer
of meaning, for the thing done, or supposed to be done; a
thing supposed or asserted to be done; as, history abounds
with false facts.

I do not grant the fact. --De Foe.

This reasoning is founded upon a fact which is not
true. --Roger Long.

Note: TheTerm fact has in jurisprudence peculiar uses in
contrast with low; as, attorney at low, and attorney in
fact; issue in low, and issue in fact. There is also a
grand distinction between low and fact with reference
to the province of the judge and that of the jury, the
latter generally determining the fact, the former the
low. --Burrill Bouvier.

Accessary before, or after, the fact. See under
Accessary.

Matter of fact, an actual occurrence; a verity; used
adjectively: of or pertaining to facts; prosaic;
unimaginative; as, a matter-of-fact narration.

Syn: Act; deed; performance; event; incident; occurrence;
circumstance.

"WordNet (r) 2.0"
fact
n 1: a piece of information about circumstances that exist or
events that have occurred; "first you must collect all
the facts of the case"
2: a statement or assertion of verified information about
something that is the case or has happened; "he supported
his argument with an impressive array of facts"
3: an event known to have happened or something known to have
existed; "your fears have no basis in fact"; "how much of
the story is fact and how much fiction is hard to tell"
4: a concept whose truth can be proved; "scientific hypotheses
are not facts"

"The Free On-line Dictionary of Computing (27 SEP 03)"
FACT

Fully Automated Compiling Technique

"The Free On-line Dictionary of Computing (27 SEP 03)"
fact

<artificial intelligence, programming> The kind of clause
used in logic programming which has no subgoals and so is
always true (always succeeds). E.g.

wet(water).
male(denis).

This is in contrast to a rule which only succeeds if all its
subgoals do. Rules usually contain logic variables, facts
rarely do, except for oddities like "equal(X,X).".

(1996-10-20)

Re:What's a mambo? Mambo #5?

[Shambhu]

The grandparent isn't summarizing on its own, it's quoting the creator of the code in question as quoted in the first of the two Newsforge stories. At the end of that article is a rebuttal by Emir Sakic (the coder) to the allegations made by Brian Connolly. The rebuttal contains the above five points.