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

What's a mambo? Mambo #5?

[stratjakt]

A little bit of Rosen in my life
A little bit of Moglen by my side
A little bit of Ravicher makes me dance
A little bit of Taco dripping down tims pants

I don't know what mambo is. They probably stole this guy's code, though.

So glad...

[ari_j]

I'm so glad that this critical speculation has made the front page of Slashdot.

The impossible is possible

[Colonel Cholling]

You can do anything with Mambo... anything at all. The only limit is yourself.

Oh wait, no, I'm thinking of this.

Facts?

[toetagger1]

"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."

So where are the facts?

Re:Facts?

[lothar97]

Come on, you don't really want "real facts" to get in the way of "forceful conjecture?" It really is amazing how pretty much everything in the news is based upon what people say or think, and is not reporting facts.

In this case, there could a legal opinion drafted, a ruling from a judge, etc, and not merely "expert opinions." An expert opinion varies from a regular opinion only in the fact that the expert one costs more.

Re:Facts?

[ValourX]

When two opposing sides agree on common, verifiable elements, those common elements are facts. When two experts agree on a standard and accepted policy or interpretation, that policy or interpretation is a fact.

Now quit trolling and RTFA.

-Jem

Re:Facts?

[winwar]

"When two experts agree on a standard and accepted policy or interpretation, that policy or interpretation is a fact."

Hmm, different definition of fact than I have. Policies and interpretations are not facts. They may be derived from them. Or they may have no relation to them (more often the case....)

"When two opposing sides agree on common, verifiable elements, those common elements are facts."

But they may not be facts by my definition-things that are essentially true (in as much as you can prove anything, of course). You can agree on common verifiable elements and still be wrong.... Legal "facts" do not equate to "scientific" facts.

None of this should be taken to mean that the grandparent wasn't trolling and shouldn't RTFA :)

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)

More of the same.

[Jaywalk]

This is just a lame attempt to keep playing the "open source is dangerous" riff that Microsoft loves so well. The main offensive (and I mean that in all senses of the word) is, of course, the SCO case. Fortunately, this course of attack will eventually fall on deaf ears if no valid case is actually put together. Expect more of this kind of thing until the mainstream press realizes there is no story here and decides to move along.

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:More of the same.

[badriram]

But when companies win against MS they can afford the bill, most opensource apps cannot afford such a bill and neither can its developers.

Re:More of the same.

[rewt66]

The problem is, if I'm a developer, and Microsoft lifted my code, and I want to stop them from shipping XP, I'd better have a lot of money and time for lawyers, because they're going to tie me up in court for years. And when I finally get a legal decision, then they will say, "Well, we removed that code years ago, so we can keep shipping XP." And, if the legal decision was that they couldn't ship XP because it contained my code, they would be right - they could keep shipping if they had removed my code in the intervening years of legal battles.

Re:More of the same.

[El]

That exactly what a preliminary injunction is for -- to keep somebody that has harmed you from continuing to benefit from that harm while they tie the case up in court for years. Like most arguments leveled against open source, it falls apart when you realize that closed source is just as vulnerable or even more vulnerable.

Question: What's to keep somebody from inserting malicious code in Linux? Answer: What's to keep a disgruntled Redmond employee from inserting malicious code in Windows? The difference is, Linux code goes through a lot more peer review!

Perhaps he should have just quit..

[gphinch]

..when he contacted SCO and asked them for legal advice.

Connolly replies...

[saddino]

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

Re:Connolly replies...

[cryogenix]

IANAL That said, I'm going to take a stab at rebutting the rebuttal... Just the points that I think actually have any bearing on the case.

2. "Newsforge can definitively say that Connolly's legal claims against the Mambo community are baseless." -- Actually, Newsforge cannot "definitively" say anything legal. Moreover, it is patently illegal for Matzan and Newsforge to provide something that can be construed as legal advice.

Newsforge can definitively say whatever it wants and be correct about it without being a lawyer. It can say that your claim is completely worthless and can be 100% correct. I can say if you jump off a 3 story building you are going to get hurt. I can say it definitively and it's not legal advice.

4. "It would be impossible for anyone to download Connolly's code without root or direct FTP access to the site." -- That's an assumption not based on any firsthand evidence. Hackers hack variously every day. But that aside, Jem then argues that the "competitor" was in the process of "reverse engineering." However, reverse engineering would still require the permission of the copyright holder.

I didn't realize we just extended this charge to hacking, so I guess someone will be arrested soon, but if you hack into a site to download it, you are still probably giving yourself either root or ftp access to download it, therefore that statement is still correct. Reverse engineering to my knowledge is not illegal unless you have a license agreement specifically covering that. I don't have enough information to really go into that.

5. "The code committed to the Mambo OS project was not the same code that Sakic wrote for Furthermore;" and "Emir Sakic developed a way to do the same thing dynamically and committed it to the Mambo core." -- The code committed to Mambo was done under contract and paid for by the Literati Group. The contract stipulates that "Upon finished project all copyright rights to code written by [Sakic] will belong to literatigroup.com."

This reply means absolutely nothing. It's not even on topic of what it's rebutting. The contract quoted is irrelevant because he is not contributing the copyrighted code. He is contributing different code. The fact that the person bringing these charges never even looked at the other code is unbelievable. From the Newsforge article "Connolly admits that he has not compared the code for himself, or even looked at the Mambo code to verify that it contains code developed specifically for Furthermore." Ok he's saying you stole my stuff, but I haven't looked at my stuff or your stuff, I just believe you did and therefore it's true. Go work for CBS. Regarding the rest of it, it seems that he is confusing copyright with patents. You can copyright specific code, but not the function of that code. There may be 10 ways to draw a circle on a screen. You copyright your code to do that. Maybe you use arc functions. Someone else does the same thing pixel by pixel. Someone else calls a draw line function with a length of 1 pixel. All of them may produce identical results however the copyright holder can not sue the second two parties and claim infringement because the resulting output is the same. This is where software patents come into play, and he does not to my knowledge have a patent on the format. It would be shot down by prior art if he did. So what he is almost admitting to is sure, the code is different, but the result is the same, and therefore it's infringement. Not under copyright law it's not.

11. "Mambo users are safe. [BUT] Nothing can stop Connolly from making good on his public threats to sue innocent end-users -- anyone can file a lawsuit for any reason -- but the legal basis for such action is nonexistent." -- Incorrect. Mambo users are not safe, per se. And that's not a consequence of the wildly erroneous "anyone can file a lawsuit for any reason" assertion. On filing a claim, an attorney certifi

Re:Connolly replies...

[zurab]

From that response:

Jem then argues that the "competitor" was in the process of "reverse engineering." However, reverse engineering would still require the permission of the copyright holder.

No, it wouldn't (IANAL).

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.)

Re:Connolly replies...

[sparkz]

I've not heard of Mambo until now, but I do understand the GPL...
Newsforge say:

The red herring
When Connolly first put up his Furthermore demo site, he noticed that his server logs showed that a perceived competitor had downloaded about 20MB worth of data from his site. Connolly immediately interpreted this as wholesale code theft when, in fact, he had no reason to believe that any theft had taken place. The competitor was in the process of designing a site around Mambo OS and, like Furthermore, also employed the lead story block.

No mention of what was shown in these logs - if these logs were calling pure-library (non-HTML) PHP code from his site, I'd call that direct use of his code.

However, LiberatiGroup says:

The code committed to Mambo was done under contract and paid for by the Literati Group. The contract stipulates that "Upon finished project all copyright rights to code written by [Sakic] will belong to literatigroup.com."

If Sakic was contracted to modify GPL'd code under these conditions, that term of the contract must be void, as LiteratiGroup do not have the rights to enforce that term.

How does the GPL's use of "linking" relate here? That is, of course, for lawyers and (good) expert witnesses. But it's pretty clear that if I put a "virtual(http://yoursite.example.com/yourlibrary.p hp) line into "my" code, that I'm linking to your library. In C terms, it a static or dynamic link?

LiteratiGroup dismiss a Newsforge explanation of GPL with:

-- This confuses copyright and GPL. GPL does not automatically rob one of their copyrights.

The GPL relies upon copyright; without (c), the GPL would be meaningless. Adding (c) code to GPL'd (c) code is only possible by accepting the terms of the GPL.

LiteratiGroup replies:

BOTTOM LINE: THERE IS NO DUTY TO REDISTRIBUTE MODIFIED GPL CODE.

This is true.

I asked RMS about this quite directly back in 2001, as a hypothetical question about webhosted software: http://steve-parker.org/articles/lego/rms1.shtml

Re:Connolly replies...

[Arker]

Also keep in mind that we're apparently talking about less than a half dozen lines of code, doing something rather obvious that can't really be done too many different ways. It's my understanding that this is probably not copyrightable to begin with.

Re:Connolly replies...

[X]

If Sakic was contracted to modify GPL'd code under these conditions, that term of the contract must be void, as LiteratiGroup do not have the rights to enforce that term.

Not at all. The GPL doesn't in any way effect who has copyright to the code.

The GPL relies upon copyright; without (c), the GPL would be meaningless. Adding (c) code to GPL'd (c) code is only possible by accepting the terms of the GPL.

True. True. False. Accepting the source or the binary if you are NOT the copyright holder requires accepting the terms of the GPL (unless the code is available under another license from the copyright holder). However, the copyright holder is not bound to accept the GPL unless they distribute their copyrighted work as a derivative work of other code that the copyright holder was licensed under the terms of the GPL.

Missing link to MamboServer.com?

[mitchy]

Good thing they didn't provide a link to www.mamboserver.com, as that would certainly get the server slashdotted.

They provided links all over the place, and many of them to boot, but I find it strange that they link to everyone involved in the story but Mambo. Sure am glad they didn't link to www.mamboserver.com, which just happens to be the official site of Mambo.

innocent smile.

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.

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.

SCO are the big guys?

[dbIII]

"SCO and IBM are the big guys", Connelly was quoted as saying in the article. I find this funny, even before SCO went down its path to self destruction in the last year it employed less people and probably had less turnover than the average suburban shopping mall. IBM is a few orders of magnitude beyond that.

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

[Anonymous Coward]

You might notice that there are colored, underlined words in the submission. These are called "links" and lead to other websites if you click your left mouse button on them.

One of these "links" leads to something called "TFA", or, The Fucking Article for short. Reading TFA is optional before posting comments and opinions on it, but you're always encouraged to actually read TFA to help reduce the possibility of stupid questionitis.

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.

Connolly may be right

[gr8_phk]

"This means that even if it could be definitively said that Sakic created a derivative work of the code that he'd written for Furthermore, Connolly has no legal recourse for preventing its distribution or use."

This statement is not entirely correct. If I create a derivative work based on GPLed code and don't redistribute it, no one has the right to steal it from me and put my changes back into the original open source version. This guy who did the contract work (assuming there was a typical contract) signed over his ownership to the derivative work to Connelly. By keeping a local copy (which he should not have) and putting derivatives of that back into the main project, he may have effectively stole the code from his employer and put it under GPL.

IANAL, but people need to follow owership and distribution very closely. If there was no contract my limited understanding of these issues breaks down in a hurry - I would assume without proper assignment he can do whatever because it's actually his code but again IANAL.

It bothers me to see GPL proponents getting too carried away and assuming that the public has a right to use anything that came from GPLed work. I doubt the guy is right, but it would NOT be because of the GPL. It looks to me like it comes down to pure ownership in this case because Connelly never distributed any code.

IANAL, so please correct me if I'm wrong here.

A couple of interesting points

[wrook]

As a few people have pointed out, the author of the article seems to have overstepped his bounds a bit. He's not really qualified to render a legal opinion. To state that Mr. Connelly is definitely in the wrong is a potentially dangerous thing. Especially given that he seems to be lawsuit happy.

That aside, I find this disagreement somewhat interesting for a few points.

First, I wonder what is copyrightable when it comes to code. For instance, if I wrote a sentence in an article of a magazine and then rewrote the sentence verbatim in another magazine, I don't think anyone would ever be able to sue you for copyright infringement. It's just a sentence. In this case, the code in question is only 9 lines (the equivelent of a sentence in a large book). At what point does this become protectable?

Second, if I hire someone to modify a GPL piece of code, I don't have to redistribute it. However, is it possible to stop the original author from distributing it? I have often wondered this. I mean, I can't stop him from having a copy and seemingly I can't bar him from his rights to do what he wants with that copy. In a sense, I have already distributed it. I can see that if I write the code myself it's a much more straightforward question.

In any case, I don't think I'll get any definitive answers to these questions this time around. Without pretending to know all the legal ins and outs here, I suspect that the code was never copied in the first place. The fact that Mr. Connelly has never even looked makes it fairly unlikely that it will ever get to trial.

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.

Well, this should be easy

[lottameez]

There is one big fat glaring disagreement between Sakic and Connelly that should make most of this pretty plain.

Sakic claims there was no contract. Connelly says there was.

My one semester of business law clearly makes me an expert, so here goes:

I suspect there was a contract. I suspect it said what Connelly said it does. My understanding is that in these kind of legal proceedings there has to be some "consideration", i.e, money or value changing hands. Sakic was paid to do a job. Then he gave away the results of that job, effectively removing any competitive value the task brought to connelly.

And let's face it, anybody who has ever written code (and then accidently deleted it) knows that it's real easy to write the same code the second time around.

Connelly, in my view, has a valid claim against Sakic since Connelly paid for the time Sakic took to complete the task and got very little value in return.

I don't see Connelly getting a lot of mileage (other than press) by threatening other mambo users. If the function is that simple, somebody other than Sakic should rewrite it (if someone hasn't already).

The code that shagged me

[Anonymous Coward]

Dr. Connolly: Gentlemen, welcome to my underground lair. Here is the plan. Back in the 80s I developed a sophisticated HTML attribute that we called "colspan." Using this "colspan" we were able to format a table so that one cell would span two columns in a given row, thus creating what we referred to as a "lead story block." We'll allow this "lead story block" to find its way into the Mambo open source project and then hold the community ransom for... [quick zoom in] PROPRIETARY CODE RIGHTS! [pinky in mouth]

#2: [clears throat] Dr. Connolly. Don't you think maybe we should ask for more than proprietary code rights? Microsoft alone makes over 30 billion dollars per year in revenue.

Dr. Connolly: Riiight. Then we will hold the Mambo community ransom for... [quick zoom in] UNENDING CIVIL LAWSUITS. [pinky in mouth]

NewsForge Powers: Not s'fast, Dr. Connolly! Colspan is a common table attribute used by many groovy CMS-based websites. You've got no case, man!

Dr. Connolly: Shit. Oh hell, let's just do what we always do, FUD the hell out of eWeek and CNet and threaten the reputation of free software

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.