Linux Devicemaker Sued In First US Test of GPL

An anonymous reader writes "For the first time in the U.S., a company is being taken to court for a GPL violation. The Software Freedom Law Center has sued Monsoon Multimedia over alleged GPL violations in the Hava, a place- and time-shifting TV recorder similar to the SlingBox. Interestingly, Monsoon Multimedia is run by a highly experienced international lawyer named Graham Radstone. According to his corporate biography, Radstone has an MA in Law from the University of Cambridge, England, and held the top legal spot at an unnamed "$1 billion private multinational company." He also reportedly held top management positions with Philip Morris, Pfizer, and DHL. Sounds like the makings of a good old legal Donnybrook ahead."

Comments

What's the big deal?

[dedazo]

I'm not sure what the big test is here. The GPL isn't some sort of special magical construct that exists on a different plane of reality. It relies on established copyright and contract law to enforce its distribution restrictions. Laws that have a crapload of precedents, usually in favor of the plaintiffs.

A court would be hard pressed not to uphold a copyright claim from the SFLC. That would mean that everyone else's copyright claims on everything else are also null and void. If Viacom and Disney can do it, so can the FSF. That's how it works.

Re:What's the big deal?

[Sparr0]

Some [misguided] courts have held that because the GPL makes some "offers", the author gives up their rights to pursue copyright violations and is restricted to only pursuing the issue as a matter of contract breach. This has at least SOME logical basis, illustrated by this quite-oversimplified semantic example:

I say {you can distribute my code} under the terms of the GPL.
I say you can {distribute my code under the terms of the GPL}.

In the former case, you have permission to distribute my code, but have violated our contract if you do so outside the terms of the GPL. In the latter case, you ONLY have permission to distribute my code if you do so under the terms of the GPL, and have violated my copyright if you do so without that conditional permission. Any sensible judge will understand that the latter is the only viable way to handle the issue, but we have some quite nonsensible judges on benches in various places these days.

Re:What's the big deal?

[angryfirelord]

All true, but the big deal here is that this is the first time someone has stepped forward and said, "Hey, you're not complying with the GPL so we're taking you to court."

It'll be interesting to see where this case goes & if other lawsuits will follow if this one is a success.

Re:What's the big deal?

[ThosLives]

I think this will be an interesting suit. Without knowing all the details, it sounds like the situation may be:

Monsoon built a box, and put the BusyBox software on it, and uses the BusyBox software as a "black box" utility package.

Now, the question is: are the things that use BusyBox derivative of BusyBox or not? It doesn't make sense that Monsoon could be sued because it's not distributing the source code for BusyBox, because the product offered is not "BusyBox" - besides that, BusyBox source can presumably be found wherever it is that Monsoon got it.

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well? This is the sticky point, and my guess is this is what is going to be fought. I think there's a strong case, as well: if I write "Hello, world" that runs on Linux, is that a derivative work? I don't think anyone would consider it to be so. I would bet that if Monsoon can demonstrate that they are just using BusyBox out of convenience and not because it is crucial to their software, the worst that will happen is that they will have to replace the BusyBox with some other code. I don't think they can be forced to release their source code. That said, I don't know that they'd have to stop and wait in the meantime anyway - if they are just using BusyBox "off the shelf", as the hypothetical "hello world" just uses Linux or whatever "off the shelf" then I don't think there would be an issue. I guess the question then is, if I write "hello world" for Linux, and with my hello world distribute Linux as well, does that mean I have to release the source to "hello world"?

That's the question I'm fairly certain people are going to see here.

Re:What's the big deal?

[Anonymous Coward]

Might this be applicable?
http://www.theregister.co.uk/2007/08/24/open_source_railroad/

That fancy Cambridge barrister may have something up his sleeve. Then again, this whole affair may be attributable to laziness and bureaucracy. They may fix the issue quickly now that legal action has been taken.

Re:What's the big deal?

[mark-t]

Actually, it's a little bit simpler than that.

Fair and personal use exemptions notwithstanding, copying copyrighted works without permission from the copyright holder is copyright infringement. Period.

GPL'd code is copyrighted. The GPL merely grants permission to copy to people. Period.

However, the GPL _ONLY_ grants permission to those who agree to the terms of the license. If one doesn't agree, then unless alternative arrangements have been made with the copyright holder, there is nothing granting permission to copy. Without permission, any copying that isn't otherwise exempt from infringement suddenly becomes copyright infringement, just like any other copyrighted work.

The only reason derivative works are allowed to be forced to be subject to the GPL is because copyright naturally extends to derivative works anyways, as long as any copyrighted content from the original exists in the derived work.

Re:What's the big deal?

[NitroWolf]

The big deal is that it will set precedent for future cases. This accomplishes two things. One being it makes it easier for future copyright holders to win a case by citing this case (assuming the SFLC wins) when making theirs. When another judge has already ruled that this sort of case one way, another judge (or the same judge) is more likely to go with that ruling, rather than going the other way. Everything else being equal in a case, if there is precedent set, it will usually tip the judge in favor of ruling with the established precedent.

The second, and perhaps bigger issue here is, as I've already said, set precedent... so if this case is handled poorly by the SFLC, and precedent is set improperly, it's going to make enforcing the GPL that much harder for the next person. While it's unlikely that the SFLC would lose, if their lawyers completely botched it, it would be very bad for the GPL, at least in the short term and would potentially encourage unscrupulous companies to continue or begin to infringe the GPL, since there is case law that shows it's unenforceable.

So yes, it's a big case. Any case that establishes precedent is a big case for the issue involved.

Re:What's the big deal?

[rtb61]

What would the world be with out punctuation. The first case you give cannot work with out a judiciously placed comma. This is of course what the legal battle will be all about, legal obfuscation, delaying tactics and the source and depth of funds for an extended legal tussle. It will hardly be a legal battle because of course all the code can be attributed and the code contributors can join in the case indirectly to support the GPL, a foregone loss by the cancer lawyer.

Then of course there is the negative image being generated for a consumer product, and also the FUD that can result because people will wonder why they don't want to release the code, what is hidden in there ;).

Re:What's the big deal?

[Anonymous Coward]

Name the courts. I know of none. If you are talking about the railroad thing, that was the Artistic License. It has nothing to do with the GPL.

Re:What's the big deal?

[Ajehals]

Using your example of "Monsoon built a box, and put the BusyBox software on it, and uses the BusyBox software as a "black box" utility package."

I think the issues would arise if:

1) They are not telling anyone that they are using GPL software and not passing on the license or an offer for the source,
2) They have not modified BusyBox and are not passing on where they got the sourc0e for it from or passing on an offer for the source,
3) They have modified BusyBox and wont share the changes to their customers.
4) They are making some sort of claim that the GPL means that copyright doesn't apply - I have heard it before but never from a top lawyer.

In all cases the appropriate result would be that Monsoon either release the source, plus and modifications and derivatives, plus the license, to their customers, or they must stop using the software and presumably pay some compensation to both the copyright holder (for copyright violation / contract violation) and preferably also pay compensation to their customers (they are also harmed by this after all). In no case should they be compelled to release code that does not fall under the GPL (as decided by the court - if it gets there.)

Well that's my view anyway, but then I am not a top lawyer and have never worked for a $billion company. - IANAL this is not advice.

Re:What's the big deal?

[belmolis]

Sorry, this is wrong. It is not true that the GPL constrains only the distribution of derived works. According to clause (3) of the GPL, if you distribute unmodified binaries you must make the source available. Here is the relevant portion:

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

Re:What's the big deal?

[Anonymous Coward]

It's really not, unfortunately. Once an offer to contract is extended and accepted, you've essentially given up your right to sue for infringement. You've still got breach of contract remedies, but once you offer a contract to people and they accept, you can't revoke once performance has begun.

You can't make a logical policy argument for licenses only taking effect when they're complied with. It's a nice fiction, but it doesn't work. It's called offer and acceptance for a reason. It's not offer and "compliance".

Re:What's the big deal?

[Mr. Slippery]

It doesn't make sense that Monsoon could be sued because it's not distributing the source code for BusyBox, because the product offered is not "BusyBox"- besides that, BusyBox source can presumably be found wherever it is that Monsoon got it.

If the product includes BusyBox (which it seems that it does), the GPL says they have to provide source for BusyBox. "Get source from the original authors" is not sufficient - what if the authors fold up shop? So the GPLv2 requires that if you distribute GPLd code, you also make available the corresponding source. (That can be as simple as a written offer to send a CD-ROM.)

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well?

If their code is merely aggregated with BusyBox, no.

if I write "hello world" for Linux, and with my hello world distribute Linux as well, does that mean I have to release the source to "hello world"?

No. But you have the make available the source for Linux.

Re:What's the big deal?

[Anonymous Coward]

Please mod the parent "Score -1, does not understand GPL"

Re:What's the big deal?

[Planesdragon]

GPL'd code is copyrighted. The GPL merely grants permission to copy to people. Period. Wrong.

The GPL is legal agreement between two parties -- the copyright holders and anyone who wishes to make a derivative work thereof. Like any other legal agreement, it is subject to the interpretation of the judges of the world, as argued by the lawyers of the world. (even a simple "you may use my work X in your work Y" permission is a legal agreement.)

One of the things that judges can do, if moved by a lawyer's argument or their own sense of public policy, is void part of a contract while still leaving others parts enforceable.

For the most extreme relevant example, imagine if you took a photograph, and I asked for permission to use that photograph. The hypothetical you, being a racist, writes a permission statement that says "may only use in a work that includes a denunciation of all non-blacks." (The hypothetical you is both black, and a racist. Since this is /., I presume the former is only possible and the latter quite unlikely. Anyway.) I take the photo and use it in my happy-bunny cook book, which contains no denunciation of the white man, and you sue me. The judge takes one look at your permission statement, laughs, and voids that "may only" clause, while leaving the permission itself intact.

Let's put it in clear terms: the GPL has not been tested in US courts, which means that there is NO binding precedent for it. Given Congress's and SCOTUS's recent predilection for expansive, pro-business interpretation of copyright law, there is a non-zero chance that the GPL could be rewritten from the bench. (And then appealed, and appealed, until SCOTUS gets a chance to weigh in on the matter).

(And FWIW, you're wrong about derivative works, too. For some works, even if you completely re-create the entire thing, it's still a derivative work. What is and isn't "derivative" is the sort of thing that copyright lawyers get paid millions to figure out.)

((IANAL, RU?))

Re:What's the big deal?

[yankpop]

You're very confused about what the GPL does. If Monsoon is selling a piece of hardware that is running GPL code, that is very clearly distribution. If they haven't modified the code in doing so, they are still required to make the source available to their customers should they request it. And if they have modified the source at all, their modifications must be made available. Whether or not there is other code included in the product that is unrelated to busybox is immaterial. They can put all the proprietary code they like in their product, but anything derived from GPL code must be made available to customers who request it.

Some of your particular points:

Now, the question is: are the things that use BusyBox derivative of BusyBox or not?

They don't even need to be 'derivative'. They just need to use BusyBox, and they are bound to provide the sources on request.

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well?

Absolutely not. The GPL doesn't spread to other code. Programmers spread GPL code to other projects. Any derivative of GPL code has to be released when it's distributed, but other unrelated code in the same product is not effected. See almost any Linux distribution for examples of GPL and proprietary code being distributed side by side.

I would bet that if Monsoon can demonstrate that they are just using BusyBox out of convenience and not because it is crucial to their software, the worst that will happen is that they will have to replace the BusyBox with some other code.

This is just plain ridiculous. Can I distribute photocopies of a Stephen King novel, just because it's more convenient than writing my own book?

I don't think they can be forced to release their source code.

If it is derived from GPL code they most certainly can.

I guess the question then is, if I write "hello world" for Linux, and with my hello world distribute Linux as well, does that mean I have to release the source to "hello world"? That's the question I'm fairly certain people are going to see here.

I'm fairly certain you don't have the foggiest idea how the GPL works. You should take a stroll over to gnu.org before you continue with your uninformed speculation.

Re:What's the big deal?

[Anonymous Coward]

Hopefully it will go down in flames. Then maybe Linus Torvalds will get his shit together and make the Linux license upgradeable. Its present GPL2-only status and abominable mess of code copyright owners is a ticking time bomb.

Re:What's the big deal?

[mark-t]

The GPL is legal agreement between two parties

Even if this were correct, it is superfluous. GPL'd works are copyrighted, and may not be copied without permission from the copyright holder. The GPL says that one must agree to its terms to get permission, so without it there is no permission unless otherwise arranged with the copyright holder. Whether the GPL itself has never been tested in court is also irrelevant because copying any copyrighted work still requires permission from the copyright holder.

Re:What's the big deal?

[RobertM1968]

Actually, I think you are wrong on this one... it doesnt matter whether you agree to the GPL or not, you need permission to use copyrighted works. The GPL offers such permission in agreeing to it - in whole. By ignoring parts of the GPL, you thus are stating you don't agree to that contract and would need other means to obtain permission to use the copyrighted work - or it's copyright infringement.

Now, IANAL, but I would think that "claiming" to agree to the GPL and then violating it would be pursued as two counts... (1) breach of contract, and (2) copyright infringement, leaving a win-win scenario for the copyright owners - as the violator would either have to amend his claim to "I didnt agree" = infringement, or in keeping his claim = contract violation - and still probably infringement.

I doubt even the contract violation aspect would need to be addressed - and there are plenty of precedents set in other areas (software, music, etc - in which case you are not sued for breach of contract for "only making 1 backup copy, blah, blah, blah" but instead for copyright violation. Also the same thing in books. Many books are released with notices allowing certain sized excerpts (or none at all) to be used for certain purposes, or require permission for certain types of use, or allow certain groups (schools) to use them without permission - and if a category of person or entity that doesnt fit within those guidelines uses a (too big) excerpt, they are sued for infringement - not breach of contract.

As with the above examples, the GPL determines what constitutes copyright infringement.

Re:What's the big deal?

[mark-t]

By the same token, if they accept the terms of the contract and then later change their mind, then the originating party has every right to revoke privileges that were offered within the scope of that contract.

Re:What's the big deal?

[arth1]

The GPL is legal agreement between two parties -- the copyright holders and anyone who wishes to make a derivative work thereof. Like any other legal agreement, it is subject to the interpretation of the judges of the world, as argued by the lawyers of the world. (even a simple "you may use my work X in your work Y" permission is a legal agreement.)

An agreement or contract is only valid if both parties accept it. It's not enough that one party does. If you don't accept the contract, but still copy the software, you're not violating the contract, cause you never entered it in the first place, but you are violating copyrights.

Saying "by copying this code you agree to the contract" is not valid, because there's nothing to stop you from disagreeing and yet copy it. It's not enough that the copyright holder says you agree -- you too must agree.

In other words, it's pretty much up to the defendant whether this should be seen as a copyright violation or a breech of contract. It's clearly a violation no matter what, but of two different kinds.

Re:What's the big deal?

[Kalriath]

In the US, that's correct. However, it has been upheld overseas several times (mostly against DSL router manufacturers).

It's actually kind of funny, Slashdot gives nowhere near the coverage to overseas GPL lawsuits.

Re:What's the big deal?

[mr_matticus]

The GPL says that one must agree to its terms to get permission, You keep saying "agree" but neglecting the fact that you actually mean "comply." These two are not the same.

You've got an offer and an acceptance, and thus a contract is formed and a license exists. Breach of contract from one party does not legitimate breach of contract from the other. Performance of the contract is separate from agreement to the contract. If you sue for copyright infringement because a party has not disclosed its source code (and you believe that they are obligated to), you're going to get countersued for breach of contract yourself.

You don't get to revoke your offer after it has been accepted. Specific performance of the terms is a contractual issue, not a copyright issue. You, as the copyright owner, extended an offer for a license (a promise not to sue) and performed by providing the code. The other party has accepted by using said code. The power to revoke is OVER. You, the copyright holder, are now bound not to sue; if you do so, you're breaching your contract. "But he broke the contract first!" is not a defense. This is why Slashdot is a poor source for legal information, because the masses just mod up your comments because they seem to make sense and support a popular viewpoint. It is sadly irrelevant to the community that what you're saying is completely bogus.

Re:What's the big deal?

[Sparr0]

The point that some lawyers have tried to make is that the violator DID agree to the terms, and GOT permission. *THEN* they violated the terms during distribution. There ARE precedents that say that once permission is given, the only further recourse is as a contract violation, not as copyright infringement. And sadly, some judges think that is binding.

Re:What's the big deal?

[revengebomber]

Right. The GPL states, "I grant permission only to distribute this program in a specific way", that way being with source.

Re:What's the big deal?

[needacoolnickname]

How is four paragraphs simpler than four sentences?

Re:What's the big deal?

[mr_matticus]

An agreement or contract is only valid if both parties accept it. Yes. But acceptance is not the same as performance. The GPL is constructed in such a way that downloading the software is acceptance to be bound by its terms. No explicit grant of permission is needed from the copyright holder, since the authorization exists in making the software available in the first place. No specific notification is required by the licensee, as the GPL has neither requested nor required it.

Once a contract is accepted by both parties, a license exists and the power to revoke has left the offeror's hands. Breach of contract is the remedy for non-performance.

Saying "by copying this code you agree to the contract" is not valid, because there's nothing to stop you from disagreeing and yet copy it. Someone's been asleep for the past century. The offeror has the power to invite acceptance by any terms he sees fit. If the offeror determines that assent may be provided by the taking of the software, it is adequate acceptance, that is his right. Thus the GPL certainly MAY say "by using this software you agree to these terms".

In other words, it's pretty much up to the defendant whether this should be seen as a copyright violation or a breech of contract. First, you mean plaintiff; second, it's not true; third, if it were a copyright infringement suit, it wouldn't be a test of the GPL. It would be a test of copyright law.

Re:What's the big deal?

[ThosLives]

Well, it appears I'm uninformed, because I wrote it that way. The article isn't very clear about what the suit is about - and I admit I didn't read the case filing - but if the suit is about "they didn't offer the source code to BusyBox and we couldn't find where they are making that source available, and then we asked them to make it available and they didn't" that's a different suit than "they are using BusyBox but they aren't making all the source to everything on their hardware available". So, I was trying to cover most of the bases.

So, while yes, I understand that the GPL is about ensuring that GPL'd source is always available (which is really interesting because it puts archiving responsibility with anyone that distributes the good rather than on the author. Not to say that's bad, just interesting.) I think the more tricky points here are about what it will do to the related works (aggregates, etc.)

(By the way, there's a vast difference between photocopying a Stephen King novel - which is not a utility by the way - and including, say, a PNG decoder module in my graphics program. My graphics program isn't "derivative" of the decoder, it just "uses" it. A "derivative" of a PNG decoder would be a PNG decoder that does other stuff too - like, say, use the PNG code to compress audio instead of video, or an optimized PNG decoder. That's a subtle difference that I think is often lost and why we have the LGPL which is more often confused than the GPL.)

Re:What's the big deal?

[Anonymous Coward]

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well? No, it doesn't. The GPL applies ONLY to code released by its authors under the GPL. In this case, the GPL applies to BusyBox.

If Monsoon haven't changed BusyBox at all, then Monsoon should have no problems releasing the source to their version of BusyBox as it appears in Monsoon's product.

If they have modified the source, then that also shouldn't be such a big deal ... they wouldn't have changed that much.

If they have modified the source considerably and commingled all of Monsoon's precious IP with Busybox code ... then that was a pretty silly thing for Monsoon to do. Even in that case, though, if Monsoon release the source code then they can still happily continue to sell their product.

Re:What's the big deal?

[Brandybuck]

The problem goes much deeper. The GPL claims that it is based only on copyright law, yet parts of it demand that the license be agreed to. Yet contracts are a completely different body of law than copyrights. If the GPL is indeed a EULA, then the conditions hold. But if I do not assent to the GPL contract, do the conditions still apply? If the GPL is not a contract, do I get the permissions without the conditions?

Yes, I know how the average Slashdot poster will answer. But the average Slashdot poster is NOT a lawyer. I would love to hear an answer from a bona fide contract attorney.

Re:What's the big deal?

[m0nkyman]

It's exactly as clear as the second amendment.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

and look at how people disagree about that!

Re:What's the big deal?

[yankpop]

that's a different suit than "they are using BusyBox but they aren't making all the source to everything on their hardware available".

I think the more tricky points here are about what it will do to the related works (aggregates, etc.)

This is very clearly spelled out in the GPL. From version 3:

Inclusion of a covered {i.e., GPL} work in an aggregate does not cause this License to apply to the other parts of the aggregate.

As far as the difference between a png decoder and a Stephen King novel, there is no difference in terms of copyright. Because you consider a novel to be inherently more valuable than an unmodified bit of GPL code is immaterial. What you think about it doesn't matter, both works are covered by copyright, and you are bound by law to respect that copyright. And it doesn't matter if you modify the decoder. The key event is distribution. You can modify it all you like and keep your modifications to yourself, *until you distribute it*. Then you are required to release the source to anyone you give the binary to. And that's the case for unmodified code too - if you distribute it, you have to make the source available.

Re:What's the big deal?

[Anonymous Coward]

No. Power to revoke ends at acceptance. Once formed, the contract is binding on both parties, and violation by either (or both) is breach of contract.

Re:What's the big deal?

[AJWM]

Some [misguided] courts have held

Oh? Which ones? Any of those in the US?

I've heard a few non-lawyers handwaving that sort of speculation, nothing anywhere remotely authoritative.

Re:What's the big deal?

[AJWM]

Nope, it's not a contract. It's a conditional license, the granting and continuation of which is conditional upon complying with its terms. As soon as you break the terms you have revoked the license yourself, and may no longer distribute under it.

This is why Slashdot is a poor source for legal information, because people like you post ridiculous theories on it.

Re:What's the big deal?

[AJWM]

There ARE precedents that say that once permission is given, the only further recourse is as a contract violation, not as copyright infringement. And sadly, some judges think that is binding.

Cites, please. Especially any that refer to open-source type licensing rather than distribution contracts, which are entirely different things.

Re:What's the big deal?

[paraax]

Of course ruling that way would throw the whole concept of shrink wrapped software EULAs into chaos. By agreeing to the liscence then ignoring it. Given what is at stake I don't believe that a judge would want to rule this way. If they do, so be it... but the consequences would reach beyond just the GPL.

Re:What's the big deal?

[AJWM]

The GPL is a conditional license. It is not a contract. It is not a EULA.

It only demands agreement if you are planning on doing something that would otherwise violate copyright law. You can do whatever the hell you want with GPL'd code -- except copy and distribute it -- without accepting it.

If you want to copy (including making derived works) and distribute those, the GPL grants permission conditional upon accepting the terms. Failing to accept the terms (or reneging on an earlier commitment to honor them) is prima facie evidence that you have rejected the license and thus no longer have any permission to copy.

Courts where the GPL has been tested (e.g. in Germany) have upheld this.

Re:What's the big deal?

[AJWM]

The GPL is constructed in such a way that downloading the software is acceptance to be bound by its terms.

Bullshit. It is no such thing.

Read Section 0, second paragraph, and Section 5 (referring to GPL 2, which is the one in question here).

Offering the software for download indicates acceptance of the terms by the offeror of the download (who may be several steps downstream from the copyright holder). The downloader is free to do with it as he or she wishes, totally ignoring the GPL unless he or she wishes to further redistribute the code (modified or unmodified). The license, should they choose to accept it, is granted by the upstream copyright holder, not the offeror of the download.

Re:What's the big deal?

[AJWM]

Monsoon built a box, and put the BusyBox software on it, and uses the BusyBox software as a "black box" utility package.

Yes, and for every instance of that box that Monsoon sells (or gives away), they are distribiting a copy of that BusyBox software.

The GPL doesn't offer the option of distributers in Monsoon's situation just saying "oh, you can get the source from BusyBox's web site". Monsoon has to provide or make available the source themselves. This is especially true if Monsoon has modified BusyBox (or any other included GPL'd software) it distributes.

As far as the copyright owners are concerned, Monsoon is distributing unauthorized copies of BusyBox; they just happen to be distributing it on unusual media (the box).

As for your "hello world" example, you only have to distribute the "hello world" source (assuming you're also distributing Linux) if it forms an integral part (not necessarily linked in, but necessary to get everything working) of the Linux you're distributing. If it's just another program on the same disk ("mere aggregation"), then no.

Re:What's the big deal?

[the_womble]

Some [misguided] courts have held that because the GPL makes some "offers", the author gives up their rights to pursue copyright violations and is restricted to only pursuing the issue as a matter of contract breach

I have heard of a ruling that the Artistic License is a contract. I Are you sure you are not confusing that with the GPL?

Anyway, suppose it is ruled to be a contract. You cannot claim statutory damages. However you might be able to persuade the court to order specific performance (they are usually reluctant to do so, but if its just handing over a document they might), so they are forced to open their source.

Otherwise,the developers are entitled to damages to place them in the position they would be in without the breach. How much is that going to be? Enough to replicate any improvements to the code?

Re:What's the big deal?

[Anonymous Coward]

Er a conditional license IS a contract.

Re:What's the big deal?

[Anonymous Coward]

IANAL, but I do know that there is a doctrine called "Silence as Acceptance", which may take effect when the offeree takes advantage of offered services. Seems like it's a pretty straightforward idea to apply this doctrine to any company using GPL software. Also, the doctrine that rejection of an offer can be construed by the behavior of the offeree is also sound.

So the scenario plays like this:

1. GPL user fails to comply with the terms of the GPL.
2. GPL owner sues GPL user for copyright infringement, arguing that GPL user's behavior constitutes rejection of the GPL contract offer.

At this point, the GPL user has a decision to make:

3a. The GPL user agrees that they rejected the GPL contract offer, and fights the battle as a copyright infringement case.

--or--

3b. The GPL user says that they did in fact agree to the GPL contract offer, and disputes either the fact that they are in breach of contract, or disputes any proposed remedies.

In the second scenario, I suspect the GPL owner would have a tough time saying the GPL user didn't really agree to the GPL contract offer. In any case, the GPL owner is probably better off in a contract violation scenario, than in a copyright violation scenario.

Re:What's the big deal?

[Anonymous Coward]

Agreement and acceptance are irrelevant. Performance is the only thing that the GPL actually predicates the license upon. If you behave in a certain way, you have the license. If you do not, you don't. It's not extension and retraction - the license is just sitting there the entire time, for anyone to distribute code under. There's just only one way to distribute the code. If you don't do it right, you are violating copyright law.

Look at it this way. Many companies allow their trademarks to be used in certain, precise ways. Those ways involve not resizing them or using them in ways construed as endorsements. The license is just sitting out on a webpage somewhere, along with the official trademark images. If you take them and use them incorrectly, I guarantee you won't be sued for breach of contract. You'll be sued for trademark infringement.

Another way to put it is this: contracts can specify what happens in specific breach instances. For example, if I have a contract with you to rent an apartment, it may specify what happens if I fail to pay rent. Aside from housing regulations it could say anything - including that if I were 1 second late with rent you could evict me and burn my possessions. If I breach the contract you don't have to sue me over it - you can evict me and burn my stuff. To the extent that the GPL may be viewed as a contract it has the same kind of clause. It requires specific performance and the license it grants is only in effect when performance is in effect. If the licensee fails to perform, the license lapses instantly. Contract vs. license is an important distinction but the GPL is covered either way.

Also, the notion that a license is a "promise not to sue" is ridiculous. When a license is in effect you can't successfully sue for actions that fall under the license. Not to mention that if you license something from me and then I sue you for distributing it, you cannot sue me for breach of contract. You can use the license to get my case dismissed, but that's it. Unless we had a contract -- in addition to the license -- that said I would refrain from suing you. The court would look at your breach suit and say "what clause of what contract was breached?" And you'd say "I was given a license for this work." And they would say ".... that's nice. What clause of what contract was breached?"

Re:What's the big deal?

[swillden]

You, the copyright holder, are now bound not to sue; if you do so, you're breaching your contract.

The GPL's termination clause specifies that non-compliance with the terms revokes all permissions granted, voiding the copyright holder's obligation not to sue. Sure, the countersuit might come, but it would simply be a matter for the court to first read the contract and determine that it no longer granted any permissions. At that point the copyright infringement claim goes forward.

All of this supposes that the GPL is a contract, rather than a unilateral grant of a limited license. Moglen's position is that it's the latter. If he's correct, then your whole argument is moot.

Re:What's the big deal?

[Sparr0]

I think that most people fail to realize that that sentence structure is a conditional.

if (a well regulated militia being necessary to the security of a free state) {
    the right of the people to keep and bear arms shall not be infringed;
}

Re:What's the big deal?

[mr_matticus]

Agreement and acceptance are irrelevant. No, they aren't. You can't get to performance without passing assent.

You can provide assent by performance, but you can't skip assent.

Re:What's the big deal?

[mr_matticus]

Nope, it's not a contract. It's a conditional license, the granting and continuation of which is conditional upon complying with its terms. And how, pray tell, do you enforce a license under the law? (Hint: a license, i.e. an agreement not to sue, involves a meeting of the minds around specific terms and requirements). That's right, CONTRACTS.

Offer of the license is not conditional. It's right there on the website. Should the offeror wish to exercise some limit on making the offer, they have every right to do that, but that means individually entering into agreements.

As soon as you break the terms you have revoked the license yourself, and may no longer distribute under it. Okay. I'll roll with it. Since you revoked the license, you're responsible for enforcing that revocation...on yourself. Crash and burn!

Somebody needs to get his terminology straight.

Re:What's the big deal?

[Brandybuck]

Courts where the GPL has been tested (e.g. in Germany) have upheld this.

But this isn't Germany. Every nation has slightly different legal systems. I tried looking up your term "conditional license", and the only thing showing up is stuff about drivers licenses. I very strongly suspect you made up this term, and that it doesn't exist in US law.

Re:What's the big deal?

[KDR_11k]

What if the contract states that this specific breach means the contract is cancelled immediately?

Re:What's the big deal?

[mr_matticus]

You make some good points, but not in opposition to my claims. The points you raise about the intent of the GPL are accurate, but not about the reality. This is why you want to avoid litigation wherever possible on your license/contract terms--you're usually confronted with the reality that part of what you wrote is unenforceable.

The GPL's termination clause specifies that non-compliance with the terms revokes all permissions granted, You need to be careful with the word "revoke"--it does no such thing. It terminates the permission. It does not travel back in time and erase the contract from having existed, however (which is what the aim was). To do so would be unconscionable and thus void.

All of this supposes that the GPL is a contract, rather than a unilateral grant of a limited license. Again, you need to be more judicious with your language--a unilateral grant can be terminated, but it can't be reversed. You would first have give notice of termination of the grant, wait for the licensee to violate it, and get an injunction to stop use after substantial noncompliance with the termination of the grant. Then and only then could you pursue copyright infringement. You can't go back to a time before you gave notice of termination and sue as though it were a straight-up infringement, when the grant was still in effect.

This is all part of why the goal has been to keep the GPL out of court. You're operating on the unfounded assumption that a noncompliant action is an automatic termination of a license--something that has no significant precedent in the law. Breaking the terms is grounds for termination, but the licensor must still do the actual termination. It's written with the hope that it will ride on autopilot, but that's not usually how it works.

Re:What's the big deal?

[mr_matticus]

You are well and truly lost. "Offeror of the download" doesn't exist--but nice try at using some legal language. Offeror is a contract term for the entity granting the license (i.e. the copyright owner).

The downloader is free to do with it as he or she wishes, totally ignoring the GPL unless he or she wishes to further redistribute the code This is an amusing fiction that always comes up here on Slashdot. It really makes judges and contract lawyers laugh. You can't release something without a license into the public without surrendering all of your rights to it--if there's no license, there's no transfer of rights. You simply can't do it--either you license your copyright or you don't. There is no third option.

What you mean to say is that the GPL imposes no restrictions on people for personal use. You are in full compliance with the GPL no matter what you do as a personal user. You can't ignore the GPL--it's the only thing that grants you legal access to the copyrighted material. You can ignore the restrictions that don't apply to you, which, as a personal user, is all of them.

You are rather imprecise and confused as to mechanics and theory of the law, but it's amusing to watch you try.

Re:What's the big deal?

[someone1234]

What contract? Shouldn't contracts be signed?
GPL is a license to override basic copyright. This license has conditions, without them the license (not contract) is void.

Re:What's the big deal?

[Ash Vince]

An awful lot of people here would like to believe this is an open and shut case and that the SFLC will win quickly (me included). Unfortunately law is never that simple.

The fact is that this will cost both parties a lot of time and money and at the end Radstone will simply fold the company if he looks like he is going to lose so the SFLC is unlikely to get back the money it invests in winning the case. In the meantime Radstone is free to take money out of the company and make sure he personally doesn't lose even if his company does.

Also note that this case will probably take years to reach any sort of conclusion as any experienced lawyer will be able to come up with more delaying tactics than you can shake a stick at. Looks like the one will probably become the next linux legal soap opera to replace the SCO debacle.

Re:What's the big deal?

[Anonymous Coward]

Sigh. What I'm saying is that if you don't have assent then you certainly have copyright infringement. And if you do have assent then you have an acceptance of all the terms of the contract - including the part that says the license doesn't exist in the absence of performance. No notice of that is required unless by the contract itself, and the GPL doesn't say that notice is required. So what you would have in court is a fight about performance; the consequences of the licensee losing that fight would not be up for grabs. If performance was found to have lapsed, then so did the license. All distribution during that time was infringement. There are no enforcement requirements such as with trademarks, so the copyright holder could sit around for years knowing that infringement was happening, and not saying anything, before doing anything about it. Screwed up, but true. It may impact the ability to collect top damages, but that's all.

Re:What's the big deal?

[mr_matticus]

and if you do have assent then you have an acceptance of all the terms of the contract - including the part that says the license doesn't exist in the absence of performance. Well, no. The license exists. There's no way to go back in time to make it not exist. That cat is already out of the bag.

Until you give notice of termination of the license, it is still in effect and you're still not bound by your legal promise not to sue for infringement. There is no precedent for what you describe. You wouldn't need breach of contract in the law at all if you could say "you didn't comply and therefore there never was a contract." The license doesn't have to say "we will tell you when we feel you are not living up to your end"--it's an implicit requirement in all contracts. Once entered into, they are binding until terminated, and the party doing the terminating can't just up and sue without giving notice that the license has been terminated.

Put another way, if you agree to pick no more than six of my apples a day for a month, and on the third day you pick seven, but no one says anything to you, and you keep picking six for the rest of the month, I can't sue you for 30 days of stolen apples. I can't even sue you for 27 days of stealing apples, even if I write into the contract that I will sue you for conversion, trespass, and larceny if you fail to perform fully. I can sue you for breach of contract, though.

Re:What's the big deal?

[heinousjay]

I think most people fail to realize the only smart course of action is to disarm the populace.

Re:What's the big deal?

[h4rm0ny]

What gets me is that according to TFS this guy is a world renowned super lawyer. Why is he suddenly (the company is three years old) director of a smallish video-software company based around a single (GPL-violating) company. It's almost like a set-up for an assault on the GPL. A sort of legal Kuwait. Or is that too paranoid?

Re:What's the big deal?

[Aim Here]

You're referring to only one court case, Jacobsen vs Katzer, Kamind and Russell

That related to the Artistic License, NOT the GPL. There are a number of relevant differences though, including the fact that the GPL has an explicit termination condition, whereas the Artistic License doesn't. Certainly though, the ruling you refer to is very disconcerting.

Re:What's the big deal?

[sydneyfong]

> If you sue for copyright infringement because a party has not disclosed its source code (and you
> believe that they are obligated to), you're going to get countersued for breach of contract
> yourself.

Perhaps you are trying to play with words, but the copyright owner CAN sue the other party. I'm not very familiar with contractual licenses, but even under simple contract law, the copyright owner can sue for breach of contract, and perhaps even obtain an injunction to compel the other party to carry out its contractual duties. I don't agree that GPL when construed as a contract carries an implied term that the copyright owner does not sue even in case of breach, but even so I doubt courts would be that inflexible that a counterclaim of "you promised us not to sue for copyright infringement even if we are liable for breach of contract!" would succeed.

> "But he broke the contract first!" is not a defense.

Uh... where'd you get that? It can be a defense, depending on the subject and extent of breach of contract by the other party. In fact, in some situations the contract would become null and void, and in that case there'd be no contract to talk about to begin with.

> This is why Slashdot is a poor source for legal information, because the masses just mod up your
> comments because they seem to make sense and support a popular viewpoint.

Well said.

Re:What's the big deal?

[init100]

Yeah, I know. My guess at the outcome of this suit, since the US is a very corporation-friendly country, is this:

Corporations can steal from free software all they want, but individuals that steal (read: pirate) from corporations shall burn in hell.

Re:What's the big deal?

[nickco3]

Eben Moglen, "Licenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits."

[http://www.gnu.org/philosophy/enforcing-gpl.html]

Re:What's the big deal?

[ultranova]

Corporations can steal from free software all they want, but individuals that steal (read: pirate) from corporations shall burn in hell.

The solution, of course, is to find a shell company, employ yourself, and perform all your actions as a CEO of this corporation. If you get in debt, or get caught doing something illegal, blame it on Joe Average, Inc, fire yourself, and find a new corporation to begin the cycle anew.

Alternatively, you could incorporate everyone in the US into Real Living And Not Merely Legal Fiction Citizens Of The United States, Inc and use it to arrange medical care, legal presentation, etc. to everyone.

Re:What's the big deal?

[Anonymous Coward]

You've got an offer and an acceptance, and thus a contract is formed and a license exists.>

So how is this different from buying a DVD, then being told in 10 languages, that I may use it only for personal use and not distribute it or show it publically. That's "offer" to me, what I may and may not do with it. So I agree to it, watch it and then don't comply and distribute it.
Breach of contract, no copyright involved.

I doubt that it works this way...

Re:What's the big deal?

[Tyrannosaurs]

i believe that in this instance "silence" is slightly misleading.

what it means is silence or inaction. you can't be bound by "if i don't hear from you in two day's i'll assume your acceptance", however you can accept terms implicitely, that is by acting as if you had accepted them.

this means that if you know about the existance of a licence or copyright, you can not choose to ignore it other than by not using the software. if you use/adapt/distribute the software your actions in doing so are sufficient to indicate legal acceptance and bind you to the licence terms (assuming that they're legal and reasonable).

Re:What's the big deal?

[psmears]

Well, no. The license exists. There's no way to go back in time to make it not exist. That cat is already out of the bag.

Until you give notice of termination of the license, it is still in effect and you're still not bound by your legal promise not to sue for infringement.

[I assume you mean "you're still bound" :-) ].

Perhaps that's why the GPL has the following section?

8. Termination.

You may not propagate or modify a covered work except as expressly
provided under this License. Any attempt otherwise to propagate or
modify it is void, and will automatically terminate your rights under
this License (including any patent licenses granted under the third
paragraph of section 11).

...that is, giving notice in advance that performing certain actions will terminate the licence.

Re:What's the big deal?

[fuliginous]

Copyright (and licenses) are creations of the state under statute and have their power under law from that. A thing under the law does not need to be a contract to be enforceable.

A contract in some countries is still not a matter of statute it is a matter of common law based on what is equitable and just. Some countries do indeed have specific statute on contracts and even the UK has contract law heavily impacted thus these days (particularly with EU legislation).

So simply contract is different from a license and is formed between parties. Licenses are a matter of the licensor stating the terms of the license and you using the work under those licensed terms. Hence when E Moglen says your rights to use it persist only whilst you are in adherence with the terms of the license.

That does not preclude a person (legal including companies) from also entering a contractual arrangement relating to the granting of the license as one of its terms or conditions.

Re:What's the big deal?

[Anonymous Coward]

Eben Moglen, "Licenses are not contracts He doesn't cite a legal basis for that, though. That may only be his opinion, without legal precedent, and could well be overridden by a judge in a case like this.

Re:What's the big deal?

[Tyrannosaurs]

that's not the offer. that's informing you of what you've signed up to so you can't deny knowledge.

the offer in the purchase of a dvd is when you go up and offer them the money. the acceptance is when they take the money and pass you the DVD. (note that YOU make the offer not them - what they do when they advertise it at price x is called an invitation to treat but is not an offer)

you might be able to request a refund (effectively voiding the contract) if you can show that you wouldn't have made the offer had you been aware of the terms but i'm not 100% sure how that would work in theory (though in practice most good retailers would just roll their eyes and give your money back in exchange for the DVD in resalable condition).

think of the parallels with a CD. if being made aware of the terms were part of the offer then there would be no contract involved in purchasing a CD as there is no explicit offer and acceptance of the license.

Re:What's the big deal?

[budgenator]

That would be a "Personal Holding Corporation" and they tend to get raped at tax time, 70% tax rate comes to mind for some reason. Additional just because a corporation wishes to conduct business, it doesn't mean that an other corporations can be compelled to reciprocate. It's typical for a dentist to form a professional corporation to work for, which in turn is contracted to work for a second PC which may even be conducting business under an assumed name. We tend to want a fleshy to cosign with the corporation, corps get dissolved to easily, so everybody is wise to that trick.

Re:What's the big deal?

[nosferatu1001]

And you are rather pompous and sound like an ass, and could probably do with a few points knocked off your ego. I'm not proposing to do that, just making an observation.

THe GPL is a licence, just not an end user one - it only comes into play with distribution, as stated in the text. If you download material covered under the GPL then you can entirely ignore the GPL - again, as stated in the licence - unless you want to then distribute the works further.

At that point you must comply, or you have no right to distribute the works under copyright, and any distribution would be a breach of copyright not of contract.

All from Eben, a well known subject matter expert, compared to someone on Slashdot. I guess I know who i trust more....

Re:What's the big deal?

[Dog-Cow]

How is shorter automatically equivalent to simpler?

Re:What's the big deal?

[reebmmm]

Let's be clear. You're talking about persuasive authority, not precedent. It will only be precedent if it gets to a conclusion of law at trial and then gets appealed (both are very small minority of cases). If there's no trial, there's no authority (persuasive or otherwise). If there's no appeal, at best the case becomes persuasive authority, but no other court will be bound by the conclusion.

If the case is appealed and the legal issues on appeal are GPL issues, then, yes, there could be precedent.

Re:What's the big deal?

[mdwh2]

True, but in that case, major companies would still be affected. If a company has software for free download, does that make it effectively public domain? If a few samples of a band's latest album are on their website, does that mean any restrictions they place on distribution are void, and it's okay for me to release a remix of the album?

Such an interpretation would set a precedent that would annoy software companies and the record industry far more than open source developers.

Re:What's the big deal?

[Ash Vince]

It's almost like a set-up for an assault on the GPL. A sort of legal Kuwait. Or is that too paranoid? Nope, thats exactly what I thought as well. The problem in my mind is that if some uber lawyer decided to do this he must think he stands a damn good chance of destroying the GPL in court or he would not be risking the damage losing could do to his legal reputation.

Re:What's the big deal?

[Anonymous Coward]

No, it's not too paranoid. Someone should put a bullet through his brain to be on the safe side.

Re:What's the big deal?

[mdwh2]

It's fairly common for companies to give permission to distribute only under some conditions. For example, someone may allow a company to use their music in an advert, or a software company may allow their engine to be used by a game developer for one particular game.

Are you seriously suggesting that a court may arbitrarily decide that such terms are invalid, and also that people may then distribute outside of such terms? Has there ever been a court case where this happened?

There is nothing special about the GPL. I don't understand why people assume that the GPL might be found invalid, when obviously no one worries this might happen with any other work.

Re:What's the big deal?

[ShinmaWa]

Nope, it's not a contract. It's a conditional license Nope, a conditional license is a type of contract: "a legally binding exchange of promises or agreement between parties that the law will enforce".

Re:What's the big deal?

[Anonymous Coward]

Mod up.

Re:What's the big deal?

[QMO]

You've got an offer and an acceptance, and thus a contract is formed... Breach of contract from one party does not legitimate breach of contract from the other.

Are you a lawyer? Is this legal advice? When I sign a mortgage contract "accepting" the "offer" of the lender, and then break the contract by non-payment, THEY CAN'T DO ANYTHING ABOUT IT????

This is GREAT!!! I'm going to have the BIGGEST house, and the FASTEST car, and the LOUDEST home stereo system, and the MOST POWERFUL gaming rig that breach of contract can get me!

And when they come for me, I'll just explain that they can go soak their heads because mr matticus (928346) told me, "The power to revoke is OVER." once the contract has been accepted.

Whoopeee!

Re:What's the big deal?

[mark-t]

Power to revoke a contract normally ends at acceptance, but a copyright license isn't really a contract anyways. Permission to copy a copyrighted work is _ALWAYS_ required at the time the copy is made. It isn't good enough to have received permission before and then go ahead and still copy once the terms of the permitted period have ended. If permission to copy a copyrighted work are conditional on one's actions, then that permission changes as soon as one's actions change in a way that the terms address.

Re:What's the big deal?

[autophile]

if I write "Hello, world" that runs on Linux, is that a derivative work?

Well, no, but if you were selling your "Hello, world" program WITH a copy of Linux, then yes, I would assume you'd be required to offer the source to Linux. So I doubt the "Hello, world" analogy holds.

--Rob

Re:What's the big deal?

[greginnj]

What you mean to say is that the GPL imposes no restrictions on people for personal use. You are in full compliance with the GPL no matter what you do as a personal user. You can't ignore the GPL--it's the only thing that grants you legal access to the copyrighted material.

Ok, not trolling, I'm really trying to understand this. In the GPL Terms and Conditions, I read:

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. So my question is, what part of the GPL is the one that "grants [me] legal access to the copyrighted material"? I see that the next sentence says "The act of running the Program is not restricted", but that doesn't say anything about granting me access; it only suggests (to me at least) that once I do have legal access, I don't need anything else in order to also run it.

Re:What's the big deal?

[AJWM]

Where the hell do you get the ridiculous idea that a license is an agreement not to sue? Is my driver's license an agreement between me and the state for the state not to sue me for driving?

A license is a permission, not a contract.

You're either a moron or a troll, or both. Good day, sir.

Re:What's the big deal?

[AJWM]

Troll or moron, I was right.

It's the only thing that grants you legal access to the copyrighted material.

There is no such restriction in law. Where's the license that grants you legal access to read this copyrighted material? Every work is copyrighted from the moment of its creation. What grants you legal access to download this website? Or read the newspaper? Or a billboard? Or listen to the radio? Copyright law places restrictions on copying (duh!) not reading/receiving. (Don't bother mentioning satellite broadcasts, they're covered by FCC regulations, not copyright law.)

You certainly have a bizarro-world concept of copyright law. Do you work for SCO?

Re:What's the big deal?

[swillden]

You need to be careful with the word "revoke"--it does no such thing. It terminates the permission. It does not travel back in time and erase the contract from having existed, however (which is what the aim was). To do so would be unconscionable and thus void.

Agreed, but I don't think that matters if the distributor is continuing to distribute, now clearly without permission. And if the distributor stops, then the problem is solved.

Breaking the terms is grounds for termination, but the licensor must still do the actual termination. It's written with the hope that it will ride on autopilot, but that's not usually how it works.

So what would be the process of actually performing the termination? Notification of the copyright holder's objection to the non-compliant distribution and a statement that per the terms of the license the distributor no longer had permission to distribute would seem to constitute termination.

You would first have give notice of termination of the grant, wait for the licensee to violate it, and get an injunction to stop use after substantial noncompliance with the termination of the grant. Then and only then could you pursue copyright infringement.

After you get the injunction, you've achieved your goal and there's no need to even continue with a copyright infringement case, unless the injunction is just temporary pending the outcome of the case.

The difference between the GPL and existing case law is that in most cases the copyright holder actually wants some compensation for what has happened in the past, which makes the difference between termination and revocation crucial. In the case of a suit for infringement of GPL'd code, all the copyright holder wants is for the law to be enforced -- for the infringing distributor to stop. There's no need to find a way to retroactively remove permission for previously-distributed copies, just to force the distributor to stop distributing copyrighted materials without permission.

Re:What's the big deal?

[Anonymous Coward]

Businesses can obtain a liquor license from the state. The license is granted on the condition that the business follows the rules of the license: no selling alcohol to any under 21, etc. Should the business fail to meet these requirements, their license could be revoked. This is enforced under the law.

Now, to roll with your statement, if their liquor license is revoked, that business does not have to stop selling alcohol. They are expected to comply, but no police officer is posted inside that business to watch every transaction. They could keep selling alcohol and hope for the best, if they so choose. But basically, they are expected to enforce that revocation themself. Why would they do this? Because their are consequences if they don't and are caught.

Your concept of a license is flawed. Someone definitely needs to get their terminology straight, though I don't think you meant that rhetorically.

Re:What's the big deal?

[mabhatter654]

a license is by definition one sided. There is no negotiation. The person receiving code is not given a choice to follow the license or not. That's why after sports games on TV they put the tag about the game footage being LICENSED for you to watch and not contracted. You already watched it, you can't not refuse the rest of the license terms later, they are just reminding you of the terms of their performance, which you didn't compensate them for, so there is no contract. There are two licenses in GPL. The first for USE of the code for free, the second for distribution of the code. By merely having the code you don't trigger the distribution requirement. That is only triggered when you distribute... and you don't compensate them in any way for this distribution so it's a LICENSE, not a contract.

Re:What's the big deal?

[mabhatter654]

Consider the LICENSE you get when you listen to the radio or watch broadcast TV. That is how the GPL would work. In short, the author holds all the cards. Lawyers keep trying to trip over the "free" part of GPL that it somehow makes a contract like other software EULAs which are really contracts exchanging use for money. GPL is like a radio performance or public show. You don't loose exclusive copyrights just because you perform your copyrighted song in a park for free? That would be silly. But that's what the lawyers in that one case tried to say about GPL. Or how about Adobe making PDF reader for free or Microsoft making Internet Explorer for free... they didn't receive any money so I can break the "contract" not to distribute the software and it's not copyright infringement? That wouldn't work.

Re:What's the big deal?

[Anonymous Coward]

you can't not refuse the rest of the license terms later

I can't not, so I can not not, therefore I can? Or not...

Re:What's the big deal?

[Thomas Charron]

But it's stickier then that. You have a license to distribute the source for your applications. The end result of the source, after being compiled, is no longer the source. So you have used to source, in conjunction with a compiler, to produce a binary, which is specifically an implementation of the logic presented in the source.

If it is not a contract, or an EULA, then you could not dictate the USE, MERELY your distribution.

Personally, and IANAL, but it smells of BOTH a license AND a contract, but accepting the license infers you enter into a contract on how you may use the licensed work.

Re:What's the big deal?

[ragefan]

I think most people fail to realize the only smart course of action is to disarm the populace. Smart to whom? The government?

Re:What's the big deal?

[Thomas Charron]

Umm, USING and observing are two totally different things. One could argue that fair use allows us to quote your copyrighted matrials, as well as the ability to download it for our own personal reading onto our computers, as your have provided it without stipulating restrictions.

Now, I can do whatever I like in terms of myself with your work. I can draw a little stick figure of you flipping the original poster off, no problem. The MINUTE I show someone else what I have done with your work, if I didn't HAVE a license to do that, and it doesn't specifically fall under fair use, you could sue me for copyright.

Now, let me ask you this. Unless you can actually physically see the electron charge on the bits that where transmitted when he posted it, how did you GET it without copying it? :-)

If it where a book, you would be correct, but..

I know, it's a reach, but I suspect that's what his original meaning was.

Re:What's the big deal?

[Thomas Charron]

A contract is an acceptance of both parties of an agreement.

A license agreement is technically a contract.

A written contract for services is a different KIND of contract. But technically, they are both contracts.

Contracts should be signed, as they provides 'proof' that the acceptance was there. But a contract does not specifically require positive notification on the acceptance of a contract.

Re:What's the big deal?

[ragefan]

I think that most people fail to realize that that sentence structure is a conditional.

if (a well regulated militia being necessary to the security of a free state) {

    the right of the people to keep and bear arms shall not be infringed;
} In your conditional, you are asking if a well-regulated militia is necessary to have the security of a free state, instead of whether the security of a free state is necessary which is how I parse that section.

Actually, I think that its more like this:

P: the security of the free state is necessary
Q: a well regulated militia.
R: the right of people to keep and bear arms shall not be infringed.

Then it could be rewritten as: (using modus ponens)

If P, then Q.
If Q, then R.
P.
Therefore R.

Re:What's the big deal?

[DragonWriter]

He doesn't cite a legal basis for that, though. That may only be his opinion, without legal precedent, and could well be overridden by a judge in a case like this.

There is plenty of legal basis for gratuitous licenses in US law. Of course, they are also (whatever the terms on their face) revocable at will by the copyright holder because they aren't, as Moglen notes, contracts, and therefore no one is actually bound by them, they are just a permission that, so long as not revoked, provides a shield against suit for copyright infringement.

So, if a court finds Moglen is right that the GPL is not a contract (and that seems likely), the FSF's ability to paint the GPL as being a safe license to rely on will be compromised.

Re:What's the big deal?

[Sparr0]

A plausible interpretation. I consider P to be a given. And I take the second amendment to mean Q->R, so barring a constitutional amendment that is true. The crux of the matter is P->Q, which I believe is no longer true, thus P->R is not true.

Re:What's the big deal?

[ragefan]

In regards to whether P -> Q, remember that the framers, were considering the security of the free state from internal forces, in addition to external ones. In order to be able to overthrow a tyrannical government, the citizens would have to be armed to do so. The militia was not intended to protect the country from foreign invaders as much as protecting the freedoms of the citizens from the government. In that regard I believe that P -> Q should be true more now than ever before.

Re:What's the big deal?

[Darinbob]

The only reason derivative works are allowed to be forced to be subject to the GPL is because copyright naturally extends to derivative works anyways, as long as any copyrighted content from the original exists in the derived work.

My biggest gripe of the GPL has always been the FSF's expansive definition of what a derivative work is.

Re:What's the big deal?

[Anonymous Coward]

It's actually kind of funny, Slashdot gives nowhere near the coverage to overseas GPL lawsuits. That's just a matter of perspective. For me, for example, Slashdot covers mostly overseas stuff.

Re:What's the big deal?

[mr_matticus]

Where's the license that grants you legal access to read this copyrighted material? You don't need a license to read. You need a license to use, prepare derivative works, and modify.

You certainly have a bizarro-world concept of copyright law. Only when viewed through your twisted lenses arguing against points that no one makes. But that basically describes the whole of Slashdot and the "anti-IP" movement, such as it is. Fortunately for the rest of us, the sound policy and interpretation is left to those qualified.

Re:What's the big deal?

[mr_matticus]

Where the hell do you get the ridiculous idea that a license is an agreement not to sue? Law school. If you'd like to confirm for yourself without coughing up $150k, you could just take your misguided ramblings to Wikipedia: http://en.wikipedia.org/wiki/License.

Given your lack of authorities, it's just particularly sad that a community will grant you credibility just for saying what people want to hear. Thank goodness we don't live in a democracy.

Where do you get any of your cracked-out interpretations? Certainly nowhere that qualifies you to give them.

Re:What's the big deal?

[mr_matticus]

...that is, giving notice in advance that performing certain actions will terminate the licence. Absolutely. But you must still sue for breach of contract. The terms for termination are within the contract. There is no legal support for pretending the contract never existed, which is what your peers are arguing. No matter how many concerned Slashdot moderators can be rallied up to mod me down, it doesn't change the fact that it's true.

This is why the GPL going to court is so truly terrifying--just look at how one-sided the moderation in this thread is. Moderation is not supposed to be about promoting things that agree with you. It's supposed to be about raising points in the discussion, particularly when it introduces a flaw in something.

If the GPL is to be improved, it must be considered in the context of an actual legal system and a standard of transactions that truly exists in the law. It cannot rely on what is intended to occur, or that Slashdotters want it interpreted in a certain way, despite any legal or logical support for it.

Re:What's the big deal?

[mr_matticus]

Absolutely. But you can't get in the way of a Slashdot fantasy-fest.

There's absolutely no one with any experience in the legal system that would agree to the parent comment modded to +5. A license is not a contract? Hello! Just looking it up in a legal dictionary would stop that show of asshattery. Nevermind that the crowd in this thread won't recognize that simple fact, doesn't understand the mechanics of contract execution, and has not a single legal leg to stand on--they're going to promote the viewpoint they really really wish made any kind of objective sense or had even a single authority to support it.

Re:What's the big deal?

[Anonymous Coward]

LOL. If you went to law school, you should ask for your money back.

Re:What's the big deal?

[mr_matticus]

When I sign a mortgage contract "accepting" the "offer" of the lender, and then break the contract by non-payment, THEY CAN'T DO ANYTHING ABOUT IT???? No, they can do lots of things about it. They can't accuse you of stealing the house, though, because they GAVE it to you with certain terms. You broke those terms, and they're entitled to have the house back, but they can't pretend that you never had any right to be in possession of the house in the first place.

Re:What's the big deal?

[mr_matticus]

a license is by definition one sided. There is no negotiation. There is no requirement for negotiation. There is no requirement for two "sides" (whatever it is you mean by that.

There is a requirement that two or more parties agree to be bound by the same terms. That's it. There is such a thing as unilateral offer and unilateral contract. A bilateral contract is but one possible kind of contract, and certainly not the only one.

Re:What's the big deal?

[psmears]

Absolutely. But you must still sue for breach of contract. The terms for termination are within the contract.

Are you sure about all this? And are you a lawyer? I only ask because people who are lawyers (albeit ones who couldn't be said to be unbiased) would say that the GPL is a licence, not a contract. If you are a lawyer I would be genuinely fascinated in a detailed rebuttal of that article :-)

Re:What's the big deal?

[mr_matticus]

people who are lawyers [...] would say that the GPL is a licence, not a contract The problem with this is that there is no such thing as "license law." All licenses are governed by contract law. What a license is not is a bilateral contract. However, all software licenses are contracts--you can review any case in the field and find reference to contracts, be it Netscape, ProCD, Mortenson, Gateway, or any of the other seminal cases in software licensing/EULAs.

A license is a grant of rights, and while that seems to be a fair case here, the trick is to remember that there exists a distinction between a license and a license agreement, the latter of which clearly being a contract. To wit, the most common criticism in courts of certain kinds of unenforceable provisions in EULAs is called raising a contract of adhesion defense. It is eminently clear that this defense could not work without establishing the EULA as a contract.

It is true that the GPL lacks consideration nearly universally required of contracts, but only to the extent that you're looking at the grant of rights to a personal user. This is not the instant case--we're clearly talking about a commercial use. Restrictions on the actions of licensees required in order to comply with the license do constitute consideration.

Groklaw isn't wrong, they're just misapplying the facts and being somewhat disingenuous in their approach. Their view is correct given a narrow set of circumstances, but those circumstances are exceeded in every legal challenge contemplated against the GPL.

You can easily tell that this is the case in the statement, "So when you hear that the GPL is viral and can force proprietary code to become GPL, which a couple of lawyers have been saying, you'll know that isn't true." Obviously, this is not accurate. If the GPL never forced proprietary code, it would not need to require providing code at all. They are constructing the meaning that code derived from GPL code isn't proprietary to begin with, but this is in direct contradiction with all theories of invention and intellectual labor--your original idea, no matter what its inspiration, is OF COURSE proprietary until you share it. The theory posited here tries to get around that.

Re:What's the big deal?

[NitroWolf]

I wasn't aware precedent was predicated on an appeal. I'm not a lawyer, so I'll take your word for it that that's the case. Good to know for future reference.

Re:What's the big deal?

[huckamania]

The average slashdotter will tell you that it should be the opposite, which is just as contradictory.

Re:What's the big deal?

[JoelKatz]

"" So my question is, what part of the GPL is the one that "grants [me] legal access to the copyrighted material"? ""

Your question is based upon a legal error. What makes you think such a thing is needed? When you buy a book at a bookstore, what is that grants you legal access to the copyrighted material?

There are two legal principles you are missing:

1) First sale. This means that every lawful copy of a protected work includes the right to its normal use.

2) Use. If you read copyright law, you will see a list of rights that are reserved to the author. Ordinary *use* is not on the list.

If you think about it, it must be this way. Otherwise, I could write a poem, drop a million copies of it from an airplane, and sue everyone who read it.

The GPL simply offers you *additional* rights that otherwise would be reserved to the authors. You need not accept it if you don't wish to, but then you don't get those additional rights.

Re:What's the big deal?

[sumdumass]

In the not so distant past, the one case about the train controlling software was ruled on in this way. I forget the specifics but slashdot did a story on it (well many stories actually). The latest was exactly that where the judge said that no copyright violation occurred because permission was granted but the copyright holder had a strong case in contract law.

Re:What's the big deal?

[sumdumass]

There was some ramblings a while back on groklaw where Eben molgen or whatever his name is, was comparing the idea of a license to a contract not to sue. God I hope I got the right author on this.

Anyways, his point was that a fishing license or a drivers license isn't a contract not to be sued by the state. What he didn't consider was that doing either action without the license opened you up to legal trouble. Now this legal trouble could be prosecution or a suit depending on who is tasking you with the violation and what remedies the law allows. The license in fact did stop the state or anyone else from suing or prosecuting on those grounds that you weren't licensed to do something.

I think the proper term would be that a license stops certain legal actions from happening that would normaly be present absent the license. In the case of copyright, it is a lawsuit. In the case of driving, it is prosecution. But in the end, they are all the same to the extent that merely having the license stops that particular part of the law from being exorcised against you.

There has been a considerable effort at developing the way people think about the GPL as a license. Some are entrapped by the mystique of the FSF and are following more along blind faith then objective observation. Indeed this case will be interesting to see.

Something I am looking at is where the GPL says you have to agree to the terms or you don't have a license. So once you stop following the terms, the license stops, or so they want you to think. But if you were to acquire another copy, agree to the GPL again and not follow it again, would you still have violated copyright or are you continually violated the contract therefore possibly copyright? To simplify this thought, do you agree to the terms once when distributing the software many times or do you renew your agreement each and every time you distribute. If the later, then a copyright violation could never occur because your license had been revoked and you didn't violate the GPL any more. If the former, I can see where the copyright violation would occur. So seriously, when do you agree to the license and how many times would you have to agree with it in order to distribute 1000 copies of something covered by the GPL? Permission is given each time you agree to it.

Re:What's the big deal?

[mr_matticus]

his point was that a fishing license or a drivers license isn't a contract not to be sued by the state. Sure it is. By law, the state has passed good law saying that it's illegal to fish. By getting a license which they make available, they waive their right to prosecute you for that illegal behavior, because the entity with the right to prosecute has specifically given you permission to do that thing.

The thing that's most disingenuous about the license-contract discussion put forth by Molgen and others is that a license is grounded in statutory law--you buy certain rights. Once you require some particular action from the licensee and you require them to agree to terms not codified in the law, you've formed a contract.

The GPL is a license for personal users. It is, however, a license agreement for redistributors. It requires that they surrender rights they would otherwise have under copyright law, given that the person exercising the GPL gave the licensee the right to prepare derivative works. In that case, the licensee would hold the copyright to that derivative work and enjoy all the benefits and privileges therein under the law. The GPL modifies the law such that you have to agree to surrender your future statutory rights.

Something I am looking at is where the GPL says you have to agree to the terms or you don't have a license. So once you stop following the terms, the license stops, or so they want you to think. It does terminate (stop). Just like elsewhere though, someone has to enforce the termination. Because the GPL contains conditional terms, there is room for substantial disagreement between parties about whether a condition is invoked or not, and so the GPL, language not withstanding, cannot run on autopilot--the FSF wants the flexibility of this nebulous interpretation, but it is inconsistent with law.

do you agree to the terms once when distributing the software many times or do you renew your agreement each and every time you distribute. That depends on whether the the GPL is determined to be an option contract or not. It could go either way, but the "the GPL doesn't apply until you distribute" argument around here (while technically inaccurate--the GPL's restrictions don't apply until distribution) clearly supports the option contract stance. This is directly contradictory with the same group's claim for copyright infringement, however, since the licensor can't sue while the option contract is open.

Put in a simpler way, if you file suit before filing notice of termination (or too quickly afterward to comply with DP), you're suing for copyright infringement while the GPL is still legally in effect, thus jumping the gun and breaching your agreement. You have to establish that the GPL was terminated, that licensee did not immediately relicense the work upon termination (the GPL doesn't say that violators are permanently debarred from using that code again, so they could argue re-licensure), and that the licensee KNEW of its violation and did not reasonably believe they were in compliance. Reasonable belief, of course, being an objective term determined by the trier of fact.

Re:What's the big deal?

[sumdumass]

It is more likely that his uber mental strength and cunning lawyer-fu us more of a result in a campaign to make it look or appear as if he knew it was a violation and that there could be no confusion to what he was doing so the payout would/could be greater.

Think if it like a car accident. It is one thing to have an accident and hurt someone. It is another to know about a law, violate it with clear and conscious thought, and as a result have an accident that hurts someone else. Penalties, liability and everything looks different when the person knew better about what they were doing.

Re:What's the big deal?

[sumdumass]

After you get the injunction, you've achieved your goal and there's no need to even continue with a copyright infringement case, unless the injunction is just temporary pending the outcome of the case.

The difference between the GPL and existing case law is that in most cases the copyright holder actually wants some compensation for what has happened in the past, which makes the difference between termination and revocation crucial. In the case of a suit for infringement of GPL'd code, all the copyright holder wants is for the law to be enforced -- for the infringing distributor to stop. There's no need to find a way to retroactively remove permission for previously-distributed copies, just to force the distributor to stop distributing copyrighted materials without permission.

This isn't necessarily true. If the distributer who had his GPL granted permission revoked had changed the material and so on, you would want the source associated with what he was distributing. So even with an injunction to stop him from proceeding further, you still have the options to enforce the contract to get the source to changes or improvements and whatever from the activity he participated in that was contrary to the GPL.

I mean the GPL put the language in there for a reason. so one would assume that if they used it to their benefit, enforcing compliance with the contract for the time they held a valid license would seem to be an option on the table too.

Re:What's the big deal?

[swillden]

you still have the options to enforce the contract to get the source to changes or improvements and whatever from the activity he participated in that was contrary to the GPL

I don't think you do, actually. I suppose you could try it, but I'm skeptical that you would succeed.

The GPL doesn't automatically cover any code that is distributed with it. It covers only code that the copyright owner chooses to license as GPL. Presumably, a violator would not choose to place his code under the terms of the GPL, and I don't think you can necessarily force him to. Any distribution of such a combined work is infringement, of course, and if you could prove that the infringer was knowingly distributing without a license then the court might be convinced to order some sort of reparations, but I'd be surprised if the court would consider GPL'ing the infringer's code as a reasonable reparation.

As I understand when trying to repair damage, civil courts look at everything in primarily financial terms which creates a problem for GPL'd code which is distributed for free and therefore arguably has no financial value. Against that, the infringer would tot up their development costs and various other estimates to fix a high value for the code that they added, and odds are that, on paper at least, the proprietary code would have more value making it an unjust remedy to force it to be disclosed. More likely, I think the judge would order the infringer to retrieve the infringing copies or, failing that, to pay some sort of fee to the GPL owners to make them whole. Most likely, I expect the judge would consider the problem solved once infringing distribution ceased.

Re:What's the big deal?

[QuantumG]

By the way, the whole "instant termination" thing has been laughed out of US court once already. It's simply not legal in the US. You can "cure" a license compliance issue and the copyright holder can't terminate your license because of it.

Here's the affidavit of Eben Moglen. The judge's response was basically "we'll deal with this at trial, but as Progress Software is now *currently* in compliance with the license, they have a license." Which is exactly the opposite of what Moglen was trying to achieve. He was trying to get the license dispute case thrown out and "pure" copyright violation case at trial. For this particular judge, it didn't work.. and it gives anyone who is considering bringing a pure copyright violation case a go some pause I would think.

Re:What's the big deal?

[sumdumass]

While you would be right in that it covers code the copyright oner choses to license under the GPL, It also specifies that your must license derived works as well as improvements and alterations to the covered works.

This is what I was talking about. Lets say I made program foo that wasn't really good. You picked it up, changed a few things and now it was awesome. But you wanted to sell it and not give the source to your changes out because you knew it would screw your business plan. There would be a violation (not giving the source) and you could likely use the license to get the source to the changes.

I don't disagree with most of what your saying. I just think that forcing someone to honor a contract would be just as much of an option as to stopping them from using the copyright covered works. A problem with this for whoever takes the code and turns it proprietary might be that for every dollar they spent on development, shows the value of the transaction involved with letting them use the GPLed code in the first place. If I am supposed to get the source code under the same license for anything you changed or derived from my product, the more valuable you make your changed, the more valuable my product becomes.

Maybe I'm missing something there. It seems that if a thief robs a bank to bet on a horse race and wins, there is a good chance they would take the money from the race along with the money from the bank. I sort of see it the same way. Not that two wrongs make a right but without one the other couldn't have happened. But unlike a lucky thief, there was a contract spelling out X, Y, and Z with the GPL that connects the two.

Re:What's the big deal?

[swillden]

It also specifies that your must license derived works as well as improvements and alterations to the covered works.

More precisely, it says that if you don't license derived works, then you have no permission to create or distribute the derived works. If you do, and if you don't have some other license, then you're infringing the original code's copyright. There are various ways to "cure" the infringement, and licensing the contributed code under the GPL to bring the derived work into compliance and make the GPL efficacious is only one of the ways.

I just think that forcing someone to honor a contract would be just as much of an option as to stopping them from using the copyright covered works.

But they don't have to honor the contract, because they never agreed to it. Forcing them to abide by the terms of a contract they never agreed to isn't something a judge is likely to do.

Re:What's the big deal?

[swillden]

By the way, the whole "instant termination" thing has been laughed out of US court once already.

"Laughed out of court" is a gross mis-characterization of the judge's ruling.

You can "cure" a license compliance issue and the copyright holder can't terminate your license because of it.

That's not at all what the court ruled.

In the case in question, NuSphere began distributing the source of Gemini in compliance with the terms of the GPL. The judge said that in light of the current compliance, no irreparable harm was being done to the GPL copyright holder and therefore she could not grant an injunction. She said that she felt MySQL had the stronger argument, meaning she thought that they might well prevail in trial, but that in the absence of irreparable harm an injunction against NuSphere was not appropriate. Of course, NuSphere settled with MySQL AB so no definitive ruling was ever issued.

That's a *FAR* cry from "laughed out of court". It may be that if/when this issue is ruled on by a court that the decision will be that the copyright holder must take some action to notify the infringer of the termination of the GPL rights before termination is effectual. Or maybe they'll rule that even after such notification the infringer can still "cure" the infringement by simply coming into compliance. Or maybe they'll rule that the automatic termination clause does work as intended. We don't know because it hasn't happened yet. Based on the text of the MySQL AB vs NuSphere ruling, though, it looks to me like the judge was leaning toward agreement with the FSF but the lack of irreparable harm precluded an injunction and made a real ruling on the termination issue unnecessary at that point.

Re:What's the big deal?

[greginnj]

Thanks for your response, which makes sense. My question was for mr. matticus, who posted upthread, saying:

You can't ignore the GPL--it's the only thing that grants you legal access to the copyrighted material.

Given the nature of GPL software, it seems to me that there are many ways in which I could 'come upon' a copy of the software without a sale being involved (thus first sale doesn't apply), and as I noted, the GPL does include a provision which allows me to use the software. (There's also the longstanding debate about whether 'first sale' applies to software that is 'not sold, but licensed'.)

I was just wondering if there was a legal hair to be split about how I might come in possession of a copy. Since you refer to 'lawful copy', that implies the existence of an 'unlawful copy'.... I'm curious as to what mechanisms distinguish between lawful and unlawful copies, and whether the GPL is involved in those mechanisms. Is it the case that even if someone distributes in violation of the GPL, the copy I receive from them is a lawful copy? (on your second example, I understand 'use' to mean that the fault lies with the distributor/airdropper; as long as you're legally able to distribute your poem, you can't sue the readers).

Re:What's the big deal?

[JoelKatz]

"Given the nature of GPL software, it seems to me that there are many ways in which I could 'come upon' a copy of the software without a sale being involved (thus first sale doesn't apply),"

First sale rights are not dependent upon how you acquired a work. First sale simply means that every lawfully-made and acquired copy of a work comes with the right to its ordinary use and the sale of that copy. You cannot violate copyright by using or selling a legal copy of a work.

"and as I noted, the GPL does include a provision which allows me to use the software. (There's also the longstanding debate about whether 'first sale' applies to software that is 'not sold, but licensed'.)"

The GPL includes that provision because it has no choice. The United States does not restrict use to the copyright holder because that would result in absurdities. For example, I could drop a million copies of my poem from an airplane and then sue everyone who read it.

Read United States copyright law. You will find nothing that permits a copyright holder to control how his work is used in the ordinary and expected way. If you buy, find, or otherwise lawfully acquire a book, you need to license to read it.

As for whether first sale applies to software that is licensed, it absolutely and unequivocally does. You misunderstand the debate. The debate is over whether (and to what extent) it can be restricted by different types of EULAs (shrink wrap agreements, click-throughs, and so on), not whether it applies. Note that the GPL and BSD licenses are nothing like these kinds of licenses at all. The GPL and BSD are just offers.

I don't think anybody seriously argues that first sale doesn't apply to any case where a person lawfully acquires a copyrighted work.

"I was just wondering if there was a legal hair to be split about how I might come in possession of a copy. Since you refer to 'lawful copy', that implies the existence of an 'unlawful copy'.... I'm curious as to what mechanisms distinguish between lawful and unlawful copies, and whether the GPL is involved in those mechanisms."

If a GPL-violator were to distribute a copy of a GPL'd work to you, that might technically not be a lawful copy. In practice, with the GPL, all copies are lawful.

The law just makes the distinction because otherwise the guy on the street corner selling movies for $2 can say "I'm not copying anything so I'm not violating copyright. I have first sale rights to these."

"Is it the case that even if someone distributes in violation of the GPL, the copy I receive from them is a lawful copy? (on your second example, I understand 'use' to mean that the fault lies with the distributor/airdropper; as long as you're legally able to distribute your poem, you can't sue the readers)."

I believe in that case it would not be a lawful copy. First sale wouldn't apply to you. It would be just as unlawful to sell or transfer that copy as it would to sell or transfer a pirated DVD you bought on the street for $2.

Though GPL section 4 might change this, as it seems to imply that one party's violation does not affect another party's rights. It's vague on this point though, so it's hard to say. It's not clear that it controls the case where technically you never got any rights in the first place because the duplication/distribution to you was unlawful.

Fortunately, in practice, this never comes up in GPL cases.

Re:What's the big deal?

[fourchannel]

Law school. If you'd like to confirm for yourself without coughing up $150k, you could just take your misguided ramblings to Wikipedia: License. From Wikipedia:

To license or grant license is to give permission. A license (also spelled licence) is the document demonstrating that permission. License may be granted by a party ("licensor") to another party ("licensee") as an element of an agreement between those parties. A shorthand definition of a license is "a promise (by the licensor) not to sue (the licensee)."

I think for the matter at hand, the shorthand definition is shorthand because it does not fully describe what a license is. For definitive purposes, the first 2 sentences are quite explicit.

As for the $150 K that you spent on law school, that is irrelevent. The law exists outside of the lawyers and legal battles. They are the end result of society's formation of that law. Nowhere have we established (in America, if you're looking for clarity) that you have to be a lawyer to inform someone of the law. We don't even state that you have to have a lawyer to defend yourself in court. Lawyers are just people who study the intricacies of the law, and (idealy) aide those who have to resolve a legal issue. To become a lawyer we have the bar association. To inform people of the law, you only have to have something to say.

Where do you get any of your cracked-out interpretations? Certainly nowhere that qualifies you to give them. Let me explain something to you, because your ego appears to be getting in the way: Only judges are given the power to interperet the law. Not even lawyers. Unless you are a judge, you have no more authority than the next person when it comes to your interpretation of the law.

Re:What's the big deal?

[mabhatter654]

copyright is a legal monopoly. The author of a GPL program is bound by no contratual terms to the user or re-user of the code, but they are always 100% protected. That's what I meet about not being able to refuse the terms. A copyright license can't be refused by the user or re-user... it's terms are already set as one-sided by the goverment. The author may grant you some extra things but it's exactly that Extra, they didn't have to let you do ANYTHING with the copy. If you don't agree with the license your only course is not to reproduce the copyrighted material. That's the only recourse in copyright law.
Else where I pointed out this is about trying to make GPL a "contract" ... the other shoe to the story is that once the courts treat it as contract it removes the wammy card of stopping distribution. Then they argue in the contract suit that the work was not distributed for money so no harm was done... It's a separate suit, so the original case doesn't apply to the new one for "fairness". That would effectively gut Open Source to being pseudo-public-domain.

First Post

[Anonymous Coward]

First knee-jerk reaction comment - they'll win.

No Stallman!

[QuesarVII]

I just hope they don't put Stallman on the stand!

Re:No Stallman!

[everphilski]

RMS: I will only testify if you call it GNU/linux and state that I am testifying from the RMS/stand.

Doesn't really matter

[TheRealMindChild]

It doesn't even really matter if this guy even believes that the GPL is sound. The years long court battle to emerge from it, regardless, will keep him busily employed.

Re:Doesn't really matter

[AJWM]

The years long court battle to emerge from it,

I sincerely doubt it will come to this. Once Monsoon's lawyers read over the complaint and the GPL, they'll advise Monsoon to settle. The SFLC will advise Anderson on what's reasonable to settle for.

The lawsuit is just away of getting Monsoon's attention, since they seemed inclined to try to blow the whole thing off. Some people/companies are like that.

Re:Doesn't really matter

[AVee]

"The lawsuit is just away of getting Monsoon's attention, since they seemed inclined to try to blow the whole thing off. Some people/companies are like that."

Can anyone point me to some evidence Moonson was actually going to blow the whole thing off? I'm not claiming there weren't, they surely didn't give it top priority, but I'd like to see something more then just alligations.

Available or Supply?

[gbr]

Okay. Do they have to actually supply the source code, or can they just say "Hey, BusyBox sourcecode is available everywhere on the Internet. We run an unmodified version x.xx of BusyBox, and we will tell end users where to get a copy.

Re:Available or Supply?

[maz2331]

GPL is pretty clear that whoever is distributing the binaries must also distribute the source themselves. It's not acceptable to rely on the "upstream" to do so.

Re:Available or Supply?

[SpaceLifeForm]

Nor would you as a user want to reply upon an upstream source
as the 'product' may contain binaries with back doors that
you can not see.

I want the source that goes into the 'product', I'm not
going to trust someone to say that the 'product' was built
using version x.y.z of some code.

Re:Available or Supply?

[Mr. Slippery]

Do they have to actually supply the source code

Yes. "Get it from the original authors" isn't sufficient - what if the original authors fold up shop? Or what if you give me FooMatic 1.4, but the FooMatic authors are on 2.1 and no longer have 1.4 source available?

Re:Available or Supply?

[Anonymous Coward]

sorry, but you are stupid.

how will you *know* that the source they claim went into the product is unmodified?

sure you can recompile the source they tell you went into it until the cows come home, but that proves nothing.

maybe the compiler has a backdoor which inserts backdoors into compiled code (it's happened before).

at some point you have to trust an upstream source unless you dissect every line of source code from microcode up.

time to don the tinfoil hat ...

Re:Available or Supply?

[ricegf]

how will you *know* that the source they claim went into the product is unmodified?

The idea is that I can examine the product's source code, recompile it using my own tools, and then use my own recompiled version. Yes, it's possible that the compiler I choose may be specifically designed to recognize that source code, and then inject a trojan into the binary that wasn't in the source - but of course, I've examined the source code of my compiler and built that from source, too!

Now the compiler that I've used to compile my compiler could be designed to recognize its source, and inject the code into the binary that will recognize the product's source code, and inject a trojan into the product's binary. It's been done before (http://www.clueless.com/jargon3.0.0/back_door.html).

But if the compiler and product come from independent entities, the odds are much greater that I'm using what I think I'm using than if I just blindly trust the product's manufacturer to provide an unmodified binary.

Clear?

Re:Will this slow adoption?

[kevmatic]

What if it requires looking the other way at companies like this? Curse me happy fingers...

There is a big deal

[EmbeddedJanitor]

Sure, the GPL uses copyright as an instrument and copyright law is pretty well tested, but that is not all there is to GPL. If it was then there would be no GPL.

What remains untested is the interpretation of the GPL and there are large parts of the GPL which are open to different interpretation.

For instance, the definition of "derived work" is pretty key to understanding the the GPL and the definition of that phrase is from being a done deal. The FSF has an faq that give Stallman's definitions and interpretations but these are not binding on the GPL.

Re:There is a big deal

[Dunbal]

and there are large parts of the GPL which are open to different interpretation.

For instance, the definition of "derived work"

      I thought that copyright law was pretty clear on what a "derived work" is. The GPL does not modify copyright law.

Re:There is a big deal

[QuantumG]

I thought that copyright law was pretty clear on what a "derived work" is. You're kidding right?

Copyright law is not clear on anything.

That's why you need lawyers.

Re:There is a big deal

[m2943]

The GPL doesn't just impose conditions on derived works, it also imposes conditions on other kinds of works that are related to the GPL'ed work in some other way.

Re:There is a big deal

[Anonymous Coward]

I thought that copyright law was pretty clear on what a "derived work" is.

You thought wrong, dude. BLAM! </Buford "Mad Dog" Tannen>

Re:There is a big deal

[Anonymous Coward]

I thought the basic premise of the GPL is that it relieves some restrictions on copyright law if you agree to open up your source code? I don't think I've seen any conditions on using works that are "related" to the GPL'ed work but not a derived work...

Re:There is a big deal

[m2943]

I don't think I've seen any conditions on using works that are "related" to the GPL'ed work but not a derived work...

The GPL effectively defines what it considers a "derived work", which is different from what copyright law defines it to be.

It can do that because getting a license for something can impose those kinds of restrictions on things other than derived works in the copyright sense. For example, your wallet is not a derived work of Microsoft Windows, yet obtaining a copy to Microsoft Windows forces you to remove money from your wallet.

Re:There is a big deal

[DragonWriter]

I thought that copyright law was pretty clear on what a "derived work" is. The GPL does not modify copyright law.

The GPL expressly asserts that particular things constitute parts of the same "work" without the copyright law being clear that that is the case; this is particularly true of the GPL's linking provisions. I don't think that's an issue in this case, but its one of the interesting areas of legal uncertainty in the GPL.

Over under

[Supergood-ape]

On the number of amateur law experts (with absolutely no fucking idea what they're talking about) that turn out for this one?

250?

Re:Over under

[NetNed]

All I know is never bet on the.......oh never mind!

Maybe they're just clumsy

[Anonymous Coward]

DaveJakeman over on Groklaw said:

I'd say insufficient attempts to notify and communicate with the offender have been made. The smart way to litigate is to avoid it if at all possible:

        15. Upon information and belief, on August 28, 2007, Defendants were notified by third parties of Plaintiffs' copyright in BusyBox and of Defendant's infringement thereof. This notification was provided via a public forum on Defendant's website. Upon information and belief, on September 5, 2007, via the same forum, Defendant's employee or agent, identified as "Gary-MM" of "MyHAVA Support", confirmed that Defendant was redistributing BusyBox, but not providing source code as per the requirements of the License.

        16. On September 11, 2007, through their counsel, Plaintiffs notified Defendant of its unlawful conduct based upon its failure to comply with the License. Defendant has not responded to Plaintiffs' notice and continues to distribute the Infringing Products and Firmware in violation of Plaintiffs' exclusive rights under the Copyright Act.

So, plaintiffs posted an entry in the defendant's web forum, acknowledged by a support droid on 5th September and here we are on the 19th, with a lawsuit filed. Have these guys got money to burn? Has the "notification" even got past the support droids to the parts of the company that matter? Whatever happened to communication?

I have to say that I agree. In all such things I ask myself: "What would Eban Moglen do?" Until recently he was the legal genius behind the GPL. (maybe he still is, I'm a bit confused) His approach was always to resolve the problem without needing to sue. It really does seem to me that these guys went off half cocked. If you want to see what happens when you do that, check out SCO.

The reason we should care about this is that it could produce a precedent that we don't like.

Re:Maybe they're just clumsy

[redneckHippe]

Actually, we know what Eben Moglen would do. from TFA:
'In a statement, Eben Moglen, Founding Director of the SFLC, said, "Free software licenses such as the GPL exist to protect the freedom of computer users. If we don't ensure that these licenses are respected, then they will not be able to achieve their goal. Our goal is simply to ensure that Monsoon Multimedia complies with the terms of the GPL." '

Re:Maybe they're just clumsy

[dslauson]

You know, I tend to agree with you. As a general rule, it's good practice to try to resolve these things without a lawsuit. However, wouldn't it be nice to have a legal precedent to point to? Whether it makes sense or not (hint: it doesn't), just thumbing through the comments here, there are a lot of people who see the GPL as being untested, and therefore potentially legally unsound. Having one easy win in a U.S. court could bring more respect to the license, and maybe help deter those who would violate it.

Re:Maybe they're just clumsy

[Anonymous Coward]

"I have to say that I agree. In all such things I ask myself: "What would Eban Moglen do?" Until recently he was the legal genius behind the GPL. (maybe he still is, I'm a bit confused) His approach was always to resolve the problem without needing to sue. It really does seem to me that these guys went off half cocked. If you want to see what happens when you do that, check out SCO."

You do realise that the chairman and Director-Counsel of the SFLC is Eben Moglen right?

http://www.softwarefreedom.org/about/team/

Re:Maybe they're just clumsy

[AJWM]

DaveJakeman over on Groklaw is a twit.

Plaintiff's counsel (ie, the lawyers) notified Monsoon on September 11, and you can bet it wasn't by posting on their web site. Monsoon has so far ignored them. Having legal papers served (eg notice of a lawsuit) will be more effective at getting their attention.

This has been pointed out over there, too.

It's also been pointed out that Monsoon has been informally advised (ie, not by the copyright holder per se) of their GPL violations for months.

Re:Maybe they're just clumsy

[ZachPruckowski]

There is no obligation at all to inform the company that they're violating. The second someone downloads a copy of the binary or buys a piece of the hardware without the GPL included (and the source available), the company broke the law. The record labels and other groups who sue for copyright infringement generally provide no warnings whatsoever. It's definitely polite to give the company several weeks and several chances to respond, but it's not necessary.

The company made a conscious choice to bundle Linux and Busybox with their product. This was a choice made even before the product was on the market. They demoed the product 4 months ago, and have been selling it commercially for 2 months. There's no way that the company wasn't aware of the fact that they were distributing Linux. And if the company (which presumably includes programmers and engineers) honestly want to claim that they had no idea what the GPL was, they're nuts.

When they were confronted about the fact that they were in violation of the law (about 3 weeks ago), they brushed it off, "jokingly" accusing the guy who discovered it of reverse-engineering and violating the EULA, then saying that the forums were for paying customers only. They also ignored phone calls. When they admitted to it (2 weeks ago), they said they'd put it on a timetable, and not make legal compliance a top priority. When someone says "you're doing something illegal and could get sued for it", the right answer isn't "I'll have to contact the engineering team and see what the expected scope (level of effort) is and then balance it against our other development tasks". You don't balance legal compliance against "other development tasks". Especially since the relevant modules are in their SVN or whatever. IMHO, they've sort of brought it upon themselves.

(IANAL)

Re:Maybe they're just clumsy

[EzInKy]

I have to say that I agree. In all such things I ask myself: "What would Eban Moglen do?" Until recently he was the legal genius behind the GPL. (maybe he still is, I'm a bit confused) His approach was always to resolve the problem without needing to sue. It really does seem to me that these guys went off half cocked. If you want to see what happens when you do that, check out SCO.


Well at first I thought as you did, at least until I went to Hava's forums to see what got everybody up in arms. The support drones first response was to accuse the users of violating Hava's EULA:

Greetings all.

I have a little secret to let you in on - HAVA runs Linux! Yes, much of the source is GPL and we should publish those sections which we have modified per the terms of GPL. A project is underway to pull this together.

A couple of observations - some of you appear to be violating the terms of the End User License Agreement, specifically:

Quote:
2. Restrictions

You recognize and agree that the HAVA Software including its structure, source code and the design and structure of modules or programs, constitute valuable trade secrets owned by Snappymultimedia or its licensors. You will not copy or use the HAVA Software except as expressly permitted by this EULA and, specifically, you will not

[...]

(b) yourself or through any third party modify, reverse engineer, disassemble or decompile the HAVA Software in whole or part, except to the extent expressly permitted by applicable law, and then only after you have notified Snappymultimedia in writing of your intended activities;

Seems to me that some of you have just come out blatantly admitting you are reverse engineering the firmware - or trying to. How should we handle this?

Also, please realize that NOT ALL of HAVA's important functionality is covered by GPL, so you won't actually have everything you need to get HAVA working.
_________________
Best regards,

MyHAVA Support

Re:Maybe they're just clumsy

[zebslash]

To be fair to the man, one has to read the rest of the thread:

Honestly I was just pokin' a bit of fun at you. There was no threat.

Hugh, You da man. Thanks for taking the time to write all that. I admit it. The guys on phone support started harassing me over and over about GPL and I got a bit tweaked. My initial reaction was out of line. Now that I'm laying on the carpet begging not to be kicked again, I can inform you that the following modules' source code will be released. - madwifi driver - wpa_supplicant - busybox - Z-com driver (for wi-fi card) Will follow up with the "when" "when" I found out. Actually - now that you mention it - I would like to see this thing compatible with MythTV too. Let me see if I can sneak it into the plan. Thank you and have a lovely day.

Re:Maybe they're just clumsy

[AVee]

"The second someone downloads a copy of the binary or buys a piece of the hardware without the GPL included (and the source available), the company broke the law."

No change to correct it, shoot 'm at sight. And by the way, the moment some posts a wireless driver to a mailinglinst and messes the licenses, sue them. Mail to a public mailinglist is a publication, and is archived all over the place. No "we will correct it" or "it wan't in the main tree" excuses.

Are you really sure that's how you want the game to be played? I'm a bit afraid parts of the GPL community are becoming a very trigger happy angry mob. It's not going to do anyone any good.

Re:Maybe they're just clumsy

[ZachPruckowski]

I'm not saying that that's how I want the game to be played, I'm saying that that's how the game can be played. And when a company threatens someone who mentions their violations by accusing them of violating an EULA, and then says that compliance is a secondary priority, they've blown their chance to make excuses and fix it themselves.

No

[maz2331]

It will not scare away anyone who is willing to follow the license terms, but will make those who believe that GPL'ed code is a sort of "freeware" change their attitude fast.

If they are unwilling to distribute source, they shouldn't use GPL covered code, period. Use BSD or license proprietary code instead.

Re:No

[jellomizer]

It will scare away people who want or need to stretch the GPL to its limits. Many times you may want to use the GPL but there are cases where it is unclear or fuzzy say making a program that run and communicates with a non GPL Program. There are cases where you work in a gray area pushing the limit of the GPL. Second most people don't want to be License Expert so if you don't know then you better of not trying because it is better safe then sorry.

Re:No

[ThrobbingGristle]

You say: "where it is unclear or fuzzy say making a program that run and communicates with a non GPL Program"

Are you saying you think communicating with GPL programs might be a violation?

Either you are a troll or clueless.

Re:No

[jellomizer]

What is considered communication.

If you take some GPL Code and compile it straight into you code. You code is communicating with the GPL Code... But if you don't GPL your code (either because you don't want too or Cant) you are in violation
Now here are the fuzzy areas of communicating fuzziness is determine on how detailed they know the GPL and how good of a lawyer they have.
Linking in a GPL Library.
Reading common memory of a GPL program
Using an intermediary program to run GPL Libraries. Where one Section is closed source and the other is GNU and communicate over say networking or piping.
Piping information to and from a GPL Program
Compiling closed source with a GPL Program
If you have some GPL Code and you communicate with it over the network communication you are good.

This is not a troll or me being clueless. I want to explain to people that there are problem in the GPL, Linux and other things, but you go LA LA LA YOUR ARE A TROLL I AM NOT LISTENING. Besides addressing the issue. I am on the side that the GPL should be more moderate and business friendly because that way the most good will spread faster. But with people afraid of being sued for trying to make GPL work for them then it will hurt the GPL and less good will accomplish for the GPL. 100% compliance is not an option it will never happen. 100% will not happen either. But the more strict you make a law or a contract the less people will use it. I like the GPL in principal but I feel it has gotten to strict for its own good. If it gets to strict a lot of open source advocates will say it is not worth it because I can get the more bang for the buck with non-GPL products.

MALDA IS QUEER

[Anonymous Coward]

I'm not sure what the big test is here. The GPL isn't some sort of special magical construct that exists on a different plane of reality. It relies on established copyright and contract law to enforce its distribution restrictions. Laws that have a crapload of precedents, usually in favor of the plaintiffs.

A court would be hard pressed not to uphold a copyright claim from the SFLC. That would mean that everyone else's copyright claims on everything else are also null and void. If Viacom and Disney can do it, so can the FSF. That's how it works.

May be a mere aggregation

[rg3]

I've read the article at Linux Watch but I haven't read the PDF copy of the complaint, so I may be completely wrong. That said, BusyBox is a program that, as far as I know, is standalone. For example, Slackware uses BusyBox in the initrd you create with mkinitrd. The end result is a static binary called /bin/busybox that has links made to it, like /bin/ls -> busybox. BusyBox implements a lot of commands (they call them applets), and you can either call it as "busybox ls -l" or, if ls is a link to busybox, you can call it as "ls -l" directly and it will run the ls applet. So I am not sure how you can infringe the GPL with that. If they distribute something that contains BusyBox it could be considered a mere aggregation (as in "we need to run a bourne shell script so we distribute the script we wrote together with busybox and busybox runs the script"). But maybe they distribute a modified BusyBox.

Anyone willing to give more details about where the legal problem is? Thanks in advance.

Re:May be a mere aggregation

[QuantumG]

They're distributing GPL licensed software in binary form without the source code and without an offer to supply the source code on request.

These are requirements of the license.

It's really that simple.

Re:May be a mere aggregation

[rg3]

Doh. So it's just a matter of putting a copy of the BusyBox source tarball they're using on their servers and providing a link?

Re:May be a mere aggregation

[GryMor]

Modification is irrelevant. Distribution, outside the terms of the GPL, is copyright infringement. They have declined to provide source, one of the requirements of the GPL, and so they can burn (or not, if they actually talk to the Busybox developers and make things right).

Re:May be a mere aggregation

[QuantumG]

Something like that.

If they put the source on a cd and distribute it with the device, or even, put the source ON the device, they'll be in compliance with the license.

Otherwise, they have to supply to anyone they sell the device to a written offer, valid for 3 years, to provide the source code to any third party.. and yeah, putting the source on their server would be a way to do that, but they don't have to.

It's all spelled out here.

Re:May be a mere aggregation

[belmolis]

So long as they aren't linking with the BusyBox code, yes, that's all they have to do to comply. That's what makes it so odd that they haven't complied. All it will cost them is five minutes to set up and a little bandwidth.

Re:May be a mere aggregation

[GPL Apostate]

They can also offer to provide a copy of the source on (machine readable) punched tape, or 80 column punched cards. Or on 6250bpi 9 track tape (with an allowable media charge for the reel(s) of tape, of course)

Re:May be a mere aggregation

[CastrTroy]

The whole distribution thing kind of confuses me in one way. If I have a friend on dial-up, and I download Linux for them, and install it to their computer, does that count as distributing it to them? Would I be in violation of the GPL if I didn't make the source available to them? What if I did this on 2 computers? What about 10? What about 1 Million? What seems weird to me is that the Linux community encourages people installing Linux on everyone's computers that they can, but at what level of installation does it suddenly become your responsibility to provide the code to them? If the code is unmodified, couldn't you just point them to the original place you got it from?

Re:May be a mere aggregation

[dufus4]

Yes and no. For noncommercial distribution of binaries, all you have to do is provide them "with the information you received as to the offer to distribute corresponding source code". You can also either a) provide them with the source code, ending your obligation, or b) provide a written offer, valid for at least three years, to provide the code at no more than cost. If you distributed it by "offering access to copy from a designated place" (e.g., a local network server), then all you have to do is put the code beside it. For the actual case of downloading it for a friend, you don't really need to do anything, since nobody's going to do anything about it. If you're doing it commercially, you do need to provide that written offer or the source itself.

Re:May be a mere aggregation

[Anonymous Coward]

Taking your line of thought a little bit further ...

I wonder if someone will one day try to release their modified GPL source code in an archive that requires a proprietary and highly obfuscated unpacker to unpack.

As long as the source code is not actually encrypted (ie. no secret key is required), then strictly speaking this unfriendly tactic would probably still be in compliance with the terms of the GPL.

Re:May be a mere aggregation

[Brandybuck]

You have distributed to your friend. If you asks for sources, you MUST give it to him. If you accidently threw away the CD that it was on, you'll be in deep legal doodoo. It won't be your friend suing it, it will be the original developer. Hopefully your friend won't rat you out...

Re:May be a mere aggregation

[BronsCon]

Yes, that works.

Alternatively, they could have said source etched onto the surface of some silicon and embed it in the device, sitting there, encased in epoxy; an unidentified chip, making people wonder what, exactly, it does.

They would answer "It keeps the deivce in compliance with the GPL."

People would get confused, the FSF would sue, they'd bring very-much-enlarged photos of the silicone to court with them.

Hell, they wouldn't really even need to put silicon in that epoxy case. Just the epoxy case and some leads soldered to the board would do just fine; until someone tries to dissect the chip to test their legal defense, that is.

Re:May be a mere aggregation

[ZachPruckowski]

There's a line in the GPLv2 that says "The source code for a work means the preferred form of the work for making modifications to it", and that it should be distributed ona medium customarily used for software interchange

IANAL, but it doesn't sound like a proprietary unpacker would meet those requirements.

Re:May be a mere aggregation

[AJWM]

They can also offer to provide a copy of the source on (machine readable) punched tape, or 80 column punched cards. Or on 6250bpi 9 track tape (with an allowable media charge for the reel(s) of tape, of course)

No, they can't. The GPL says "on a medium customarily used for software interchange" [emphasis added}, not "on a medium historically used for software interchange".

I haven't seen paper tape used in over 25 years, nor punch cards in nearly as long. The last 9-track tape reel I saw being used (not counting ones lying around my office being used as paperweights) was about 15 years ago, although I'll allow as how some data centers might have a few still lying around. But they aren't any more being customarily used for software interchange, that's nearly always on CD or DVD these days (I haven't seen anything else used - even for mainframe software - in years).

Re:May be a mere aggregation

[QuantumG]

Or you could read the GPL. That would not suffice as it is neither machine readable or a medium commonly used for software interchange.

If you were trying to be funny, you failed.

Re:May be a mere aggregation

[BronsCon]

Printed text is commonly used.

Re:May be a mere aggregation

[GPL Apostate]

My copy of the GNU Emacs Manual, published by the FSF themselves, offers the GNU source archives on magnetic tape. Granted, it's a few years old, but it's not 25 years old yet.

It's pretty weird that the GNU organization now is in the business of specifying 'approved' exchange media.

Place- and Time-shifting TV Recorder ...?

[Anonymous Coward]

Why limit yourself to a Place and Time-shifting TV Recording when you can call it...

A SPACIAL-TEMPORAL DISPLACEMENT AUDITORY VISUAL TRANSLATIONAL DEVICE!

Re:Place- and Time-shifting TV Recorder ...?

[Dunbal]

Why limit yourself to a Place and Time-shifting TV Recording when you can call it...

A SPACIAL-TEMPORAL DISPLACEMENT AUDITORY VISUAL TRANSLATIONAL DEVICE!

      Wow, that sound so good I think we should scrap the copyright idea and go straight for a patent!

Re:Place- and Time-shifting TV Recorder ...?

[Lissajous]

Steve - is that you?

Re:Place- and Time-shifting TV Recorder ...?

[Orethrius]

Why limit yourself to a Place and Time-shifting TV Recording when you can call it... A SPACIAL-TEMPORAL DISPLACEMENT AUDITORY VISUAL TRANSLATIONAL DEVICE! Simply because "TiVo" and "Slingbox" are less of a mouthful.

gpl-violations.org

[pilsner.urquell]

gpl-violations.org Has been inactive for almost a year.

Please note that this homepage is not maintained very well. We're so busy in both technically and legally resolving GPL violations that there's hardly any time left to keep this page up-to-date.

Still some good information is contained herein.

If only....

[Rick Zeman]

...he thought this about the BSD license, too:

In a statement, Eben Moglen, Founding Director of the SFLC, said, "Free software licenses such as the GPL exist to protect the freedom of computer users. If we don't ensure that these licenses are respected, then they will not be able to achieve their goal."

Re:If only....

[mmcuh]

What do you mean?

Re:If only....

[Anonymous Coward]

The GP is a BSD user who believes, like a few of OpenBSD's more batshit crazy followers that Eben Moglen's stated aim is to help GPL-using programmers steal from BSD developers?

Re:If only....

[Anonymous Coward]

Why would Moglen think that the BSD license exists to protect the freedom of computer users? That's not the reason the BSD license exists, and so it would be a mistake for Moglen to think that. Being the smart guy that he is, and being particularly knowledgeable about software licenses, he isn't likely to make such a mistake.

Why do you wish him to have a false belief about this? Seems like an odd thing to have a preference for.

Yay!

[frup]

Grocklaw has something else to jabber about! :P The GPL better hold tight, it would be seriously worrying what would happen otherwise.

Re:Yay!

[Flimzy]

If the GPL is found to be lacking in a court of law, GPLv4 (or whatever) will be released to plug the hole, and all subsequent version of GPL software will be released under a "good" license... and then we'll get to wait to see the GPLv4 taken to court, to see if the judge thinks it's more ironclad that time.

Why not use a BSD?

[noldrin]

If you want an OS for a box and to keep the source to yourself, then why wouldn't you use a BSD? What advantage do you get for using Linux and other code released under the GPL? Is it just corporate types who are looking to cheap out on development and know the Linux buzzword?

Re:Why not use a BSD?

[ScrewMaster]

Is it just corporate types who are looking to cheap out on development and know the Linux buzzword?

Possibly. Corporate types usually have no clue what's happening with in-house software development. I'd say it's likely to be developers who used GPLed code just to get the job done in a hurry. If so, that's a problem because the corporation needs to be aware of its legal responsibilities. It may turn out no-one outside the software team was even aware of the GPL violations. Wouldn't be the first time.

Re:Why not use a BSD?

[QuantumG]

More importantly, why would you want unix utilities like ls and cd and rm on a set top box?

What's the point?

Re:Why not use a BSD?

[Anonymous Coward]

Shitty hardware support and it's dead? How's that for why?

Re:Why not use a BSD?

[Flimzy]

If that were the case this time, you'd think the "corporate types" involved would be eager to settle out of court (probably including removing the GPL code from their product, or making the source available, or possibly a combination of the two, and other remedies as well) the instant they discovered their "developer types" were doing something that was legally questionable. The fact that it's going to court at all suggests that the "corporate types" know exactly what they're doing. (Or they turn just as much of a blind eye to their "attorney types" as they do to their "development types", and don't actually care about making any money.)

Re:Why not use a BSD?

[Flimzy]

I'd like to see you boot a working Unix system without those tools. I'm not talking about running a shell. I'm talking about simply booting the system. Mounting the root filesystem, starting init, starting whatever daemons are necessary... The Linux boot scripts depend *very* heavily on these tools. (That's not to say it's theoretically impossible to boot without using 'ls', 'cd', 'rm', etc... But you would need *something* that accomplishes the same functions.)

Re:Why not use a BSD?

[QuantumG]

to continue the questioning, why would you want a unix system on a set top box?

btw, at the boot prompt type: linux root=/dev/hda init=/foo.bin

the root filesystem is mounted by the kernel.. init is started by the kernel, and in this case is my custom image foo.bin. As for daemons etc, wtf, it's a set top box.

Re:Why not use a BSD?

[ZachPruckowski]

They've got some sort of proprietary application running on the set-top box. The box needs an OS, and for a start-up company (they demoed the product in May and it went on sale in July), it must be cheaper to use Linux than to license or write an embedded OS. There are patch-sets for Linux and ways to set up module loading to make it pretty lightweight and (real-time) low-latency. Since all they need from the OS is basic hardware management and then running whatever proprietary program they use, Linux fits their need. As to why they need the Busybox daemons, who knows.

Re:Why not use a BSD?

[QuantumG]

Ya know, if you keep using "OS" and "Linux" synonymously I'm going to have a hard time understanding what you are talking about.

Linux is a kernel, not an operating system. It appears they are using the Linux kernel and BusyBox (for something).

Filmzy said:

I'd like to see you boot a working Unix system without those tools. I'm not talking about running a shell. I'm talking about simply booting the system. Mounting the root filesystem, starting init, starting whatever daemons are necessary... The Linux boot scripts depend *very* heavily on these tools. (That's not to say it's theoretically impossible to boot without using 'ls', 'cd', 'rm', etc... But you would need *something* that accomplishes the same functions.) He seems to think they are running a stripped down Linux distro on this box. You seem to think the same.

Why do you think this?

Re:Why not use a BSD?

[ZachPruckowski]

He seems to think they are running a stripped down Linux distro on this box. You seem to think the same. Why do you think this?

Well, they've said that they're running Linux on the box (gary-MM, halfway down the page). People also found evidence of Linux on the Hava using nmap and strings(1). I'm assuming it's with a patch-set, but you're right in that it could probably just be compiled with only certain modules. As far as the "for something", given the list of Busybox tools, the idea that they're using at least a handful of them does not surprise me. Maybe there are ways around using them, but that's not the point.

I'm fully aware that Linux is a kernel, not an OS. However, between Linux and Busybox, you've got most of the necessary platform to run their proprietary program on, which was what I meant originally. From Hava's perspective, the goal is to have a platform to run their media-streaming and GUI software on for the box.

Ya know, if you keep using "OS" and "Linux" synonymously I'm going to have a hard time understanding what you are talking about.

I didn't use OS and Linux interchangeably. Everywhere where I said OS I either meant it generically or used it in a context ("write or license") that disqualified Linux.

Fair Use IS the question...

[tjstork]

As, we really don't have, to my knowledge, a clear idea of what fair use of software is. Software's not like a book. You can't even use the word "copy" in the traditional sense. When it comes down to brass tacks, you -must- copy software to even inspect it, let alone use it, - across multiple machines, from disk, to RAM and then inside the CPU, through varying layers of cache.

Re:Fair Use IS the question...

[AJWM]

The Copyright Code explicitly allows for the necessary copying of programs into RAM in order to be run.

There is in fact a fair body of case law covering software copyrights, including the abstraction-filtration-comparison test from the Second and Tenth Circuits that look at filtering out the things necessary to make the software work in its given environment (eg externally defined constants, protocols, etc) as not proof of infringement.

Where is the copyright registration

[karl.auerbach]

Has the copyright been registered with the US copyright office?

If not, the question arises about the legal requirements about having a registration *before* going to court.

If so, it raises the questions of statutory damages, but also raises the question whether the registration(s) were made by the actual authors of each separate snippet of code in the composite work, each having its own author and date of authorship.

Re:Where is the copyright registration

[Anonymous Coward]

There is no need to register copyright since March 1, 1989..

I see you have been under a rock. You might want to catch up on some other events such as: the fall of the Berlin Wall, the end of the cold war, and the Iraqi invasion of Kuwait.

Re:Where is the copyright registration

[karl.auerbach]

The obligation to register is found in 17 USC 411:

  (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

The complaint does not claim that the work is registered by the author, or because it is may be a work from many hands, by the authors (plural).

Re:Where is the copyright registration

[Anonymous Coward]

You still need to register to claim statutory damages. Pay more attention to the parent.

Re:Where is the copyright registration

[karl.auerbach]

You are confusing the now obsolete need to register to obtain a copyright with the still present obligation to register in order to bring an action complaining that the copyright has been infringed.

In other words, even if you have a copyright you can't sue anybody until you register the copyright.

And as far as I can see from the complaint busybox isn't registered. And there is a question whether the plaintiffs can do anything more than file a copyright registration on any but pieces of busybox, particularly since it includes a rather large number of chunks of code from others, many of which are not under the GPL and rather more liberal licenses - e.g. the e2fsprogs.

By-the-way, your perjoratives are rather misdirected; You seem to misread the wikipedia entry, which is at best ill written, and you might want to check out the actual law, which I quoted in a follow-up to my initial comment.

Re:Where is the copyright registration

[Anonymous Coward]

Ok so maybe you need to have at least one person register the copyright of the part he has written the day before going to court. Big deal.

There are much bigger open source projects, such as the linux kernel. Obviously they looked at the law and they would have panicked a long time ago if there were a serious loophole to the way they're doing things.

By the way, if in a sentence you remove the expression "any but" and the meaning of the sentence is correct instead of reversed, then keeping the "any but" makes it reversed. Example of correct usage.

Hard target

[Damian Hole]

Suing a lawyer? Has the SFLC learned nothing?

Everybody knows it's in their best interest to sue a school kid or Internet-less grandmother first!

too conservative

[dreddnott]

250? No way, this article will get /way/ more comments posted than that!

They're seeking damages

[QuantumG]

From the complaint:

WHEREFORE, Plaintiffs respectfully request judgment against the Defendant as follows:
(1) That the Court issue injunctive relief against Defendant, and that Defendant, its directors,
principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns,
and all others in active concert or participation with Defendant, be enjoined and restrained from
copying, modifying, distributing or making any other infringing use of Plaintiffs' software.
(2) That the Court order Defendant to pay Plaintiffs' actual and consequential damages incurred,
in an amount to be determined at trial;
(3) That the Court order Defendant to account for and disgorge to Plaintiffs all profits derived
by Defendant from its unlawful acts;
(4) That the Court order Defendant to pay Plaintiffs' litigation expenses, including reasonable
attorney's fees and costs of this action; and
(5) That the Court grant Plaintiffs any such further relief as the Court may deem just and
proper.

That's never been done before.. and it could spell a new era of Free Software development.

Re:They're seeking damages

[Kalriath]

Yes, we can look forward to new "GPL Troll" companies. Like Patent Trolls, but all they do is GPL obvious code and sue anyone that uses it. Scary.

Item 3 on the list is a crock of shit, to make the device they would have had to do something themselves, and the SFLC is apparently saying "give us all the money you made, even though we didn't make most of the device". Fine them, yes. Damages, fine. But demanding they hand over all the profit? Fuck off. Seriously.

Re:They're seeking damages

[QuantumG]

Actually, that's about the only one they have a chance of winning.

It's almost the default settlement in copyright infringement cases.

It's *trivial* to comply with the GPL, I don't know why anyone would risk their profits by not.

Re:They're seeking damages

[dedazo]

Thanks, I didn't know that.

I have to say that the irony of the FSF seeking monetary damages for the unauthorized use of software and/or alleged copyright violation just kills me.

Re:They're seeking damages

[QuantumG]

Sigh. It's the SFLC not the FSF and that's what the SFLC does, they make money from "helping" corporations deal with compliance of GPL software.

Re:They're seeking damages

[dedazo]

Please, the SFLC is just another FSF project, subsidiary, branch, etc. Whatever you want to call them, it's the same group of people.

Re:They're seeking damages

[QuantumG]

Stallman isn't involved in the SFLC. Eben Moglen has a much wider agenda than Richard Stallman.

Re:They're seeking damages

[Daengbo]

Tell that to George Harrison. Most people don't even believe that he knew he was infringing on the song. Most people believe that the impetus for the song becoming famous was Harrison and not the similar opening riff. The plaintiff still got 70% of the single proceeds and 50% of the entire album's proceeds. Wow.

Fuck off? Maybe not.

Re:They're seeking damages

[ricegf]

Like Patent Trolls, but all they do is GPL obvious code...

You don't "GPL" code, you "copyright" code. If a person wanted to copyright "obvious code" - and I don't pretend to have any earthly idea what that means - so that they can sue for damages later, then the GPL would hurt their cause. After all, nobody can use your copyrighted code without a license, and the GPL licenses your copyrighted code for free.

Re:They're seeking damages

[nosferatu1001]

Standard negotiating tactics - ask for everything and work down, as it's much harder to ask for nothing and then work upwards.

The suggestion is, without the key internal software, there IS no product and as such a % of profits should go, maybe not 100% but as I said, standard bargaining...

Re:They're seeking damages

[Anonymous Coward]

-----------------
That the Court issue injunctive relief against Defendant, and that Defendant, its directors,
principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns,
and all others in active concert or participation with Defendant, be enjoined and restrained from
copying, modifying, distributing or making any other infringing use of Plaintiffs' software.
-----------------

Can't be done
      Come find me, I moved, and I'm an all other...

Re:Cambridge, offtopic

[TheRealMindChild]

So as not to be confused with Cambridge University of Idaho! Are you suprised that there is a California University... of PENNSYLVANIA!? Or even an Indiana University... of Pennsylvania

Re:Cambridge, offtopic

[Anonymous Coward]

Confusingly, MIT is in Cambridge, Mass. Now, obviously (to a non-american), Cambridge, England has, oh, about a millenium of seniority on the name, but hey - americans.

Not the only thing they stole

[moosesocks]

Scroll down on the LinuxDevices article on the Hava to the screenshot that shows the "remote control".

Look familiar?

Re:Will this slow adoption?

[Verte]

Do you think that companies are now going to avoid abusing Linux to avoid GPL litigation? There, fixed that for you. Hopefully, it will make them think twice!

The GPL isn't a contract

[Anonymous Coward]

so the rest of your post is meaningless.

The GPL is a distribution license (as stated by Eben Moglen), which you are free to accept or reject. And the instant that you redistribute the work that it covers (and hence copy that work), then you are subject to copyright law, whether or not you agreed to the license.

And that's where agreeing or rejecting the GPL becomes relevant, because if you didn't agree to the GPL then you are guilty of copyright infringement, since nothing else gives you the right to copy. Simple.

Contracts require bilateral agreement. A distribution license doesn't require your agreement at all --- nobody forces you to agree to it, but it's on offer if you want it. However, if you don't accept it then nothing else will protect you from copyright infringement if you redistribute the work.

Re:The GPL isn't a contract

[SashaMan]

Why is this modded down? It is legally correct. For a fairly good description of why the GPL is NOT a contract (but is still enforceable) see http://weblog.infoworld.com/openresource/archives/2007/06/enforcing_the_g.html

Re:The GPL isn't a contract

[Anonymous Coward]

Looks like that argument hinges on that idea that there is no consideration. But one can argue that there is consideration. In exchange for GPL'ed code, you agree to provide/release your code under the same terms. Basically a trade of intellectual property.

Now who the beneficiary would be is an interesting question in that the beneficiary is the "community". The community as a third party is kind of vague. But no more vague than terms like "public" or "public domain" or "public trust". The specific community for a GPL'ed work is probably less vague than those since there are identifiable leaders, members and places where they convene.

Finally, here is the obligatory link. This one provides a reason why someone could make a case for the GPL as a contract: http://hietanen.typepad.com/copyfraud/2005/06/creative_common.html

See the first response.

Re:The GPL isn't a contract

[Raenex]

Why is this modded down? It wasn't modded down, as far as I can tell. Anonymous Cowards start at 0 points. Your user id is much lower than mine -- that is, you should know better.

Re:The GPL isn't a contract

[reebmmm]

IAAL. The GPL is a contract. Anyone saying otherwise doesn't know what a contract from a promise. Indeed, I've read this claim so many times on slashdot. And, frankly, I think it's a reaction to the hatred towards EULAs. However, it is a total fiction. The GPL is a contract. I wager that most lawyers (if not every lawyer) would see the GPL as a contract.

Typically, a contract has three parts: offer, acceptance and consideration.

The offer is easy: "would you like this code that you can distribute subject to these conditions?" The consideration is easy: you get code and I will get any source code if you decide to distribute.

Acceptance is a bit harder. There isn't an obvious exchange of money or other pecuniary interest. There's not even a signature. Instead what you probably have is performance. This happens all of the time in the real world. Performance can be acceptance. There's plenty of cases on this point.

[As an aside, note that a signature is a requirement for a contract. It is neither necessary or sufficient (in most cases). You can sign a piece of paper, but unless there's consideration (and offer and acceptance) you don't have a contract. This is another legal fiction that I see all of the time on Slashdot.]

In the instant case, the real question in this case is whether the cause of action sounds in contract or in copyright. I would be mildly surprised if a court found a copyright infringement claim. Courts have attempted to answer this question by asking whether the party exceeded the scope of the license or whether they merely breached a condition of the license. For example, distributing a copyrighted work without the right to distribute. Under the GPL, there is a BROAD grant.

In cases that are said to sound in contract, courts ask whether there is a breach merely of a condition. For example, one court found that distribution without the requirement of attribution was a breach of contract; not copyright infringement.

For this reason, this case might be important.

Re:The GPL isn't a contract

[You're All Wrong]

"IAAL [...]
conditions?" The consideration is easy: you get code and I will get
any source code if you decide to distribute."

Does "IAAL" mean "I am utterly ignorant of what the Gnu GPL is and wish to
display my gross ignorance publicly"? Because that's what you're doing.

This'll be a laugh - show me the line(s) in the Gnu GPL which you
think support your absurdly incorrect claim. Pay close attention in
particular to whom the source code is to be (offered or) distributed. /YAW

Re:The GPL isn't a contract

[Thomas Charron]

A license with conditions IS a contract. You ARE granted the license automagically, simply by downloading it. There is no, 'I don't accept that license'. You simply can abide by the terms OF the license. In my opinion, the act of distributing the given work is an act of accepting the conditions of the contractual limitations presented within the license agreement.

There are *2* legal definitions of a contract. The most people don't seem to remember is a contract is "v. to enter into an agreement.".

Look it up in any first year legal dictionary.

Re:The GPL isn't a contract

[DragonWriter]

Contracts require bilateral agreement. A distribution license doesn't require your agreement at all --- nobody forces you to agree to it, but it's on offer if you want it. However, if you don't accept it then nothing else will protect you from copyright infringement if you redistribute the work.

Of course, if its a gratuitous license (as the FSF contends, probably correctly) and not a contract, its also revocable at will by the copyright holder, since no one is bound to anything by it, just the copyright holder has no bases to sue for infringement as long as you comply with it. This conflicts, of course, with the FSF's other PR effort with the GPL, trying to convince people, especially businesses, that it's not a risky license compared to traditional contract-based licenses.

Re:The GPL isn't a contract

[mr_matticus]

Yeah, don't bother. Slashdot doesn't build its legal theories on reality, law, or reason. It certainly doesn't reward the truth in a rational discussion with a fair chance to be heard.

This entire post is one-sided and a perfect example of why I try to limit my posting here. People don't want to hear the truth or find out that their assumptions are bad law; they certainly don't want to hear from actual lawyers and legal professionals, because whenever we contribute, we're shouted down below the groupthink and subjected to bad lawyer jokes and broken English mockeries and the worst analogies ever written.

If he takes a shower...

[Anonymous Coward]

..he might do alright. That smarmy, nutbag aura might be hard to scrub off though.

false and true

[Trepidity]

Copyright law is notoriously unclear on what a "derived work" is. But yes, this is a general copyright-law issue, not a GPL-specific issue.

Stop spreading Bullshit!

[Zero__Kelvin]

"GPL is pretty clear that whoever is distributing the binaries must also distribute the source themselves. It's not acceptable to rely on the "upstream" to do so."

The GPL quite explicitly states the opposite , to wit:

"To "convey" a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying."

If I link to an active server that serves up the same source code I used to build the binaries I have used some (any) kind of propagation that enables them to make or receive copies. To hear you tell it, I have to host the server myself, and at any moment in time when my server is down I have violated the GPL. To take it further, I may require the recipient of the binary to send me a formal request in writing and send them a hard copy of the source. I will be relying on the mail system as a transport, and perhaps Kinkos as a server. There is no need for me to start my own print shop and mail delivery system to conform to the GPL, any more than I need to own every intermediate node in the path from whatever server serves up the code to the clients computer.

Please stop propagating such ridiculous misconceptions. Also, please don't quote RMS, since his statement of how he wished the GPL said does not constitute a legal interpretation of what is very clearly written.

Re:Stop spreading Bullshit!

[Jussi K. Kojootti]

If I link to an active server that serves up the same source code I used to build the binaries I have used some (any) kind of propagation that enables them to make or receive copies.

Read the GPL FAQs if the license text is not clear enough for you. You _do_ have an obligation to supply the source code. How you decide to do that is up to you, "hosting a server" is not required... But it's clear that relying on upstream is not enough.

Re:Stop spreading Bullshit!

[Zero__Kelvin]

"Read the GPL FAQs if the license text is not clear enough for you. You _do_ have an obligation to supply the source code. How you decide to do that is up to you, "hosting a server" is not required... But it's clear that relying on upstream is not enough."

The GPL FAQ is not the license. Is the GPL FAQ included in the source code that was originally downloaded? Of course not. Am I bound by RMS' interpretation of the GPL? Of course not. If you had been paying any attention to what I wrote, you would have seen the very clear statement: "Also, please don't quote RMS, since his statement of how he wished the GPL said does not constitute a legal interpretation of what is very clearly written." Since you cannot even read a two paragraph post without missing key information, you should definately not be trying to understand a complex issue such as this.

Re:Stop spreading Bullshit!

[AVee]

"But it's clear that relying on upstream is not enough."

But relying on $ISP is good enough?
Here's a nice one, say I redistribute a GPL'd product, just the original thing compiled to a binary. Say the original project (and its sourcecode) is host on SourceForge. And you're saying I can create my own SF project and have SF host it for me, but I can't link to the original project on the same server? That's just briliant.

not necessarily

[Trepidity]

That's one interpretation, the most sensible one and the one the FSF advances.

However, another interpretation, which also has some precedent, is that the GPL creates a contract, under which the distributor has the right to distribute in return for following its terms. In this case, if the distributor fails to comply with the GPL, it's not a copyright violation, because they did have a copyright license (the GPL), but it's a contract violation, because they breached the GPL's agreed licensing terms. Still illegal, but litigated differently.

I don't think it's a slam-dunk which approach a particular court would take.

Re:not necessarily

[Thomas Charron]

I'd imagine a courts decision would be based on knowledge of the offending party. But actually awarding damages due to copyright violation would be tricky, because generally the damages are what are the calculated value. What damages have been incurred financially if you've given the software away, and if the party HAD conformed, you STILL would have allowed it to be given away?

Perhaps if company A had paid software engineers to add functionality that B had already added, but redistributed without the GPL there would be a financial measure.

But you're right, it'd be two steps. First, proving breach of contract. THEN copyright violation.

Looks like Dave is an idiot.

[schon]

DaveJakeman over on Groklaw said I'd have to say that Mr. Jakeman has serious reading comprehension issues.

The relevant part is

16. On September 11, 2007, through their counsel, Plaintiffs notified Defendant of its unlawful conduct based upon its failure to comply with the License. (emphasis mine.)

So they didn't just notify a "support droid", they notified Monsoon's lawyers.

And the lawyers never responded. Not even a "we'll look into your claims" or anything like that.

Re:Looks like Dave is an idiot.

[Vlad_the_Inhaler]

Actually, that could be understood either way.
- the Plaintiffs' counsel notified Defendant
- the Plaintiffs notified Defendant's counsel

Maybe that is not ambiguous to someone who speaks legalese but that ain't me.

They're seeking damages

[QuantumG]

From the complaint:

WHEREFORE, Plaintiffs respectfully request judgment against the Defendant as follows:
(1) That the Court issue injunctive relief against Defendant, and that Defendant, its directors,
principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns,
and all others in active concert or participation with Defendant, be enjoined and restrained from
copying, modifying, distributing or making any other infringing use of Plaintiffs' software.
(2) That the Court order Defendant to pay Plaintiffs' actual and consequential damages incurred,
in an amount to be determined at trial;
(3) That the Court order Defendant to account for and disgorge to Plaintiffs all profits derived
by Defendant from its unlawful acts;
(4) That the Court order Defendant to pay Plaintiffs' litigation expenses, including reasonable
attorney's fees and costs of this action; and
(5) That the Court grant Plaintiffs any such further relief as the Court may deem just and
proper. That's never been done before..

I remember ranting about this a while ago, could it be that someone actually read my journal? Nah.. that's just crazy talk.

check out the firmware for yourself

[Sirius25]

Even though they said something about requiring an EULA to download the firmware over two weeks ago, it's still freely available from their site.

myhava.com/support_downloads_hava.html

For the, "Firmware - 32 bit version" (4.4 MB), just strip the first 96 bytes & mount it as a cramfs image.

Monsoon must be suicidal

[petrus4]

The court case itself is trivial, regardless of the outcome. The point is what is going to happen to Monsoon outside the courtroom. A court case like this is the equivalent of Stallman standing up and yelling, "Attack, my children! Destroy them!" The legion of cultists are going to swarm, regardless of what the lawyers do.

The owner of Monsoon might want to start thinking about what he wants written on his headstone right about now. If it were me, I'd be checking land prices in Siberia or the Antarctic. ;-)

Oy vi

[Ilan Volow]

Once GNU will comes out with a free software Hava clone called "gnagila" we can do circle dances.

donnybrook?

[Anonymous Coward]

Donnybrook?
That's some kind of maple hockey language....
Who's the fish in the peg now eh?

Who needs encryption when you can write cdn in leet?

Re:donnybrook?

[ZzzzSleep]

From http://dictionary.reference.com/wordoftheday/archive/2001/05/29.html
donnybrook \DON-ee-brook\, noun:
1. A brawl; a free-for-all.
2. A heated quarrel or dispute.

Bad idea

[Titoxd]

The owner of Monsoon might want to start thinking about what he wants written on his headstone right about now. If it were me, I'd be checking land prices in Siberia or the Antarctic. ;-) Why would you want land in the Antarctic? There's PENGUINS there!

~~~~

Sue, see if I care.

[Anonymous Coward]

Neither Slingbox nor this one can be used with Linux computers, so it's no money out of my pocket. Sue away and set some precedent.

Sure it's mere aggregation

[swillden]

But that just means they don't have to distribute their code (which is aggregated with BusyBox) under the GPL. It in no way releases them from the obligation to provide the source for BusyBox.

Why no claim based on contract?

[noahclem]

Looking at the complaint it immediately struck me that there was no claim for breach of contract, only one for copyright infringement. That doesn't seem to make sense - SFLC can get an injunction under a contract theory (if they prove the elements, etc) - why would they neglect a valid argument, even if it is not their preferred argument?

I know that the FSF and the SFLC say that GPL is only license, not contract, but are they really willing to live or die on this issue? The GPL has value even if it is "only a contract". But this complaint risks dismissal for failure to state a claim if they are wrong. On the other hand, what the SFLC wants most is an opinion saying that the GPL terms are conditions to the license. If they are wrong, I suppose they will just amend the complaint to add the contract claim.

Another issue is that the Hava support person said that they would comply with the terms of the GPL, namely make source code available, but couldn't commit to a date. This is still probably a breach - since the written offer on a forum thread probably doesn't meet the written offer requirement in GPL section 3 (mostly because it did not accompany the product), but it's not that far off, since section 3 doesn't specify that the written offer commit to a date by which the source would be available.

I would think there were better targets on the busybox list of shame.

IANAN - I am not a Nimmer

Re:Why no claim based on contract?

[amber_of_luxor]

>I know that the FSF and the SFLC say that GPL is only license, not contract, but are they really willing to live or die on this issue?

Under Anglo-American Law, a contract requires consideration. With the GPL there is no consideration,and hence no contract.

Under Roman Dutch Law, a contract does not require consideration. Hence,in jurisdictions that are based upon Roman-Dutch law, the GPL can be construed to be a contract.

For the US, the only legal theory they can use, is that the GPL is a license. If they are not willing to bet the farm that it is a license, then they need to be in another line of work.

Note: I am not a lawyer, this is not legal advice.

Amber

Re:Why no claim based on contract?

[BootNinja]

not having studied in the field of law, my best guess would be that two conflicting arguments might hurt their case. Either the GPL is a contract, or it isn't a contract. You can't have your cake and eat it too. However, assuming that the copywrite infringement claim fails, then they could probably refile at a later date on the basis of breach of contract.

Re:Why no claim based on contract?

[DragonWriter]

However, assuming that the copywrite infringement claim fails, then they could probably refile at a later date on the basis of breach of contract.

Usually, filing one lawsuit will forfeit your ability to file a later lawsuit against the same defendant stemming out of the same transaction; you can often pursue claims based on alternative theories in the same case, though there are tactical reasons why you might not want to if one is much stronger legally, such as avoiding confusing the trier of fact.

Re:Why no claim based on contract?

[JoelKatz]

"Under Anglo-American Law, a contract requires consideration. With the GPL there is no consideration,and hence no contract."

Huh? There is definitely consideration on both sides in the case of the GPL. In exchange for agreeing to offer source code to any derivative works you distribute, you gain the right to create derivative works and distribute the original work (in original or modified form).

Re:Cambridge, offtopic

[quag7]

When you say Cambridge and don't put anything after it, such as, "I went to Cambridge," Americans know goddam well where you mean.

I'd wager that there are less Americans who know that MIT is in Cambridge, Massachusetts, than have heard of / know that "Cambridge" is one of the most highly regarded world institutions of higher learning, and is in England.

Why in the world not?

[jonasj]

Why in the world not? Seriously, enough with the rms-bashing. A *judge* of all people should be expected to judge the arguments, not the appearance of the person stating them.

Re:Why in the world not?

[CarpetShark]

Seriously, enough with the rms-bashing.

Agreed. However, I don't think the GP was bashing, just calling it like it is.

A *judge* of all people should be expected to judge the arguments, not the appearance of the person stating them.

You would *want* that, yes. However, the reality is probably a lot different. Very few people --- judges included --- are able to set aside their own biases. Especially the ones they don't know they have, and the ones they believe are based on experience rather than bad luck or stereotypes.

Re:Why in the world not?

[Anonymous Coward]

should be expected to judge the arguments, not the appearance of the person stating them. His appearance doesn't have anything to do with it. Have you ever listened to the guy speak? He's an evangelist. If you already believe what he's saying 100%, he sounds like a visionary. If you dont already agree with him (or are just neutral) then he sounds like a pompous condescending ass.

legislative fix

[Anonymous Coward]

One way to fix this is to just have the legislature amend copyright
law, and remove the right to sue over copyright violations for stuff
that is primarily given away under the guise of copyleft. If
you want sue over GPL violations, you'll then have to primarily
charge for its use, similar to RIAA/MPAA.

MA in law

[Celandine]

Confusingly, this means he has an undergraduate law degree: this wouldn't on its own be a qualification to practise law. See http://en.wikipedia.org/wiki/Master_of_Arts_(Oxbridge_and_Dublin)

Re:MA in law

[DragonWriter]

Confusingly, this means he has an undergraduate law degree: this wouldn't on its own be a qualification to practise law. See http://en.wikipedia.org/wiki/Master_of_Arts_(Oxbridge_and_Dublin)

In the UK, the bachelor's degree in law (either B.A. in Law or LL.B., per the first Wikipedia link), the degree you have to get at Cambridge before a Cambridge M.A. in Law, per your own link, is the degree that qualifies you to practice law.

The GPL License is NOT a Contract

[Anonymous Coward]

"The GPL is legal agreement between two parties"

No, a copyright license isn't a contract:

"Licenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits."

Eben Moglen. Enforcing the GNU GPL. 2001.
http://www.gnu.org/philosophy/enforcing-gpl.html

Particularly Interesting....

[XScB]

"According to his corporate biography, Radstone has an MA in Law from the University of Cambridge, England"

Particularly interesting as Cambridge University don't award MA's in Law. As I was told, Cambridge generally don't give out Masters considering their graduate degree's being already equivalent, although they do seem to award out some Masters.

Re:Particularly Interesting....

[hattig]

It means he has a BA, and is old enough to have gained the free upgrade to MA that Cambridge gives out - the link in the post above yours on Wikipedia is most informative. I write MA (Cantab) after my name because of this. Considering that Oxbridge does generally have an intake of excellent people, that the courses are frequently the best in the country and don't have to start out with absolute basics, and that you have to get 3 years of real life experience after that, the MA is probably deserved (considering discrete MA, MPhil or MSc courses are only a year long, if that).

However he surely must have some additional qualifications to practice law in the US in addition to the [under]graduate law degree he has from Cambridge?

Re:Particularly Interesting....

[Tyrannosaurs]

if memory serves you have to avoid bankrupcy, imprisonment and a few similar things for the three years to qualify, but yes, ultimately it is possible to get an MA from cambridge in law (and indeed in almost any other subjects - even sciences award BAs and MAs).

and he's need more qualifications than that to practice law here in the UK, let alone in the US.

Re:Particularly Interesting....

[aug24]

Afaik you take a BA or BSc (actually, Oxbridge call them something else iirc) and then a year later you turn up for a dinner and get a free MA.

It's like a loyalty card scheme for education.

Justin.

Re:Particularly Interesting....

[pjt33]

Being reduced in rank in the Army, named as third party in a divorce, or caught climbing King's College Chapel are the other ways I recall hearing of losing your eligibility for the MA.

On a technical point, the MA isn't an "MA in law" or in any other subject. But neither is the BA, and that hasn't stopped it becoming customary to talk of a "BA in x" where x is the tripos of which one studied Part II.

Danger of GPL, FreeBSD Foundation Newsletter

[Anonymous Coward]

This danger was already highlighted by Vice President, FreeBSD Foundation.

Read the "Letter From the Vice President" of FreeBSD Foundation Newsletter, August 29, 2007: http://www.freebsdfoundation.org/press/2007Aug-newsletter.shtml

Some call Open system, etc. while it is actually closed. Some call Freedom, actually it is restrictions. Read this for more info: http://kerneltrap.org/mailarchive/linux-kernel/2007/9/15/260554

Theory vs. Pratice

[Genda]

I think it's lovely that we have these discussions. I am however deeply concerned about the theory of law vs. it's practice.

When individuals, or even reasonably large groups of individuals go up against monolithic corporate entities, they tend to get their asses and their hats handed to them. These are organizations who in many cases have experience buying the laws they want (as in, if the right laws don't exist, they'll find law-makers who will for a reasonable price create the laws they ask for) combined with cherry picking court venues where the frequent outcome of trials is most commonly decided by the party with the deepest pocket or the best political connections.

It is sad that we have been reduced to society who has the best law money can buy, but it makes the question of the operational validity of things like copy-left and GPL a serious one, and this is by no means a slam dunk. Until we as a society decide that we are more interested in our own personal integrity, than getting want we want when we want it by any and all means necessary, I have fear for the future of laws and human rights.

Re:Theory vs. Pratice

[ErikZ]

I think it's the nature of the adversarial court system.

clueless /. amateur law expert

[N3wsByt3]

Well, I just joined the thread, so that'll be 251! ;-)

So what are you saying....

[remmelt]

> The GPL does not modify copyright law.

You mean it derives from copyright law?

Is there a University of Cambridge, England?

[Anonymous Coward]

If so, where is it?

I thought Cambridge was in Mass. Have the Brits started copying us? Don't we have a copyright on our top Colleges?

how is this a GPL violation?

[hopeless case]

I assume the company includes busybox on the root filesystem of the device they are selling, and that they wrote some custom programs that they also put on the root filesystem.

As long as they haven't modified the source of busybox, and merely included it in the same filesystem as their closed source pieces, what's the problem?

I think it is much more likely that they are violating the GPL by not releasing modifications to the linux kernel than that they are not releasing changes to busybox.

Re:how is this a GPL violation?

[Hatta]

Read the GPL.

Re:how is this a GPL violation?

[hopeless case]

I thought the concensus was that in order to create a derived work of program X, you had to either modify some of X's source files, or write some code that linked against a some piece of X.

I am assuming that the company did not link against any busybox code, or modify it. They simply included it together with other programs that they wrote. In other words, mere aggregation as in:

"In addition, mere aggregation of another work not based on the Program
with the Program (or with a work based on the Program) on a volume of
a storage or distribution medium does not bring the other work under
the scope of this License."

Re:how is this a GPL violation?

[One Louder]

In the GPL2, read section 3, particularly Section 3(c). In the case of commercial use, it's not sufficient to pass on the "written offer" to obtain the unmodified source code - you must also supply it, modified or not.

Re:how is this a GPL violation?

[hopeless case]

I assumed this was about their not offering the source to some component they wrote, not failure to make the source code to busybox available, which I don't think they have modified.

I realize they have to make the source to busybox available under the GPL it they use it in their firmware.

It's not like the source to busybox is hard to come by. Only they can release the source to their custom components, however.

Re:how is this a GPL violation?

[JoelKatz]

"I realize they have to make the source to busybox available under the GPL it they use it in their firmware."

Precisely, and if they realized that, there'd be no problem.

If your implicit question is "why is this a big deal", the answer is that the GPL has never been tested in a United States court, and this case has (apparently) smart lawyers on both sides. So if there are any interesting arguments for or against the legal effectiveness of the GPL, we will likely hear them.

If, as rational people expect, this lawsuit establishes the validity of the GPL, a lot of nervous people will rest a little bit more easily.

Not the first time

[Anonymous Coward]

There was a case about four years ago involving code in an automobile computer and GM.

You can read about the earlier case, Drew Technologies, Inc. v. Society of Automotive Engineers, Inc., et al., Civil Action No. 03-CV-74535-NGE-PJK (E.D. Mi. filed Oct. 10, 2003), at Groklaw.

This is a rather poorly-researched submission. Stop spewing nonsense. You are ruining Slashdot.

At last

[Anonymous Coward]

I am so glad that this is happening. Frankly, even though I hate lawsuits, I hate even more the fact that some companies are raking in millions by selling products that contain modified GPL code that they will not release. There is a certain class of (usually small) company that simply doesn't care about violating the GPL (not that it doesn't happen with big companies too; but there I am more willing to believe that it's more a case of mid-level managers simply not understanding the requirements of the GPL; there is so often a tendency to assume that code freely available for download is public domain). I am under NDA so I can't ethically report one such company I know, but the owner continues to take about $2m a year out of the company even though I informed him that because his product uses a modified Linux kernel that code needs to be released. He just laughed and quite clearly thought I was incredibly naive.

Welcome

[Anonymous Coward]

I for one welcome our doobie smoking overlords.

You're doing it wrong...

[hardgeus]

You establish precedent by suing some no-name company with no resources or lawyers. That's how the big boys do it. You don't sue someone who has a lawyer *at the helm*.

Re:You're doing it wrong...

[Anonymous Coward]

A lawyer at the helm, defending his own company, has a fool for a client.

DHL & Phillip Morris

[nategoose]

A drug company, a cancer stick company, and the delivery company that claims no one was here to get a package when I was sitting right here and they never showed up... he must be evil.

question

[pak9rabid]

I have a question. Does it constitute as a GPL violation if they're simply just using the BusyBox software? I always thought it was only a violation if a.) they were using the actual source code of a GPL'd work, or if b.) they were linking to compiled GPL'd libraries.

Experience breeds caution

[^_^x]

...and this is why MS didn't want to get into using GPL'ed code - apart from having to open their own up for scrutiny.
They don't like to legally prostrate themselves, so they decided to stay the hell away. (Unless they've gone back to it now or something? They're also fickle, haha...)

Looks like schon shouldn't call Dave an idiot.

[DragonWriter]

I'd have to say that Mr. Jakeman has serious reading comprehension issues.

I'd say that Mr. Jakeman isn't the one with the problem.

So they didn't just notify a "support droid", they notified Monsoon's lawyers.

Er, no. "On September 11, 2007, through their counsel, Plaintiffs notified Defendant [...]" means that the Plaintiffs' lawyers notifed the Defendant, not that the Plaintiffs notified the Defendant's lawyers.

Re:Cambridge, offtopic

[Anonymous Coward]

"Less" Americans (a statement of quality) or "fewer" (a statement of numbers)?

I suspect that fewer graduates of Cambridge makes this mistake than graduates of institutions in Cambridge, MA.

don't see the violation

[chrwei]

one does not have to modify, reverse engineer, disassemble or decompile the firmware image to see that it's linux and busybox based. one merely needs to download the image off the device and look at the strings in it. I haven't read the whole eula so I don't know if there is a clause that covers this, but the quoted clause certainly doesn't cover it.

Re:don't see the violation

[runderwo]

one does not have to modify, reverse engineer, disassemble or decompile the firmware image to see that it's linux and busybox based. one merely needs to download the image off the device and look at the strings in it.

According to the current state of the laws, that simple act qualifies as reverse engineering -- just lamely as XOR "encryption" qualifies as a "copyright protection mechanism" under the DMCA.

Re:don't see the violation

[Anonymous Coward]

Finally, SOMEONE got the point!

Monsoon Support Droid (boy, I've been called a lot of things, but THAT is low)

wink wink wink wink

Leaving the rest of it up to the lawyers.

Oy vim

[Anonymous Coward]

Once GNU will comes out with a free software Hava clone called "gnagila" we can do circle dances. You mean like "have a tequila?"

Have a tequila,
have two tequilas,
have three tequilas,
they're very very small!

Ah, gotta love that Mexican culture...

Re:Cambridge, offtopic

[quag7]

Perhaps, in compensation, more graduates of institutions in Cambridge, MA have courage enough to post non-anonymously.

WRONG.

[mr_matticus]

Tell me, if a software license is not a contract, does that mean you agree that EULAs cannot possibly be contracts of adhesion, and therefore surrender your primary legal defense against unfair EULA terms?

This is why Slashdot is a poor source for legal information, because people like you post ridiculous theories on it. On the contrary, look in the mirror. "My" theories (actually the Court's--pick your poison: SCOTUS, F., Cal.) only look ridiculous when standing on your wobbly island of misdirection and misgivings.

I see no mention of blackbox

[Anonymous Coward]

hmm so did they buy this device to see if it has blackbox on it, or just the firmware I m going to mount the firmware in a sec to look at it

Moglen v Federal Judge White

[Anonymous Coward]

Moglen and various other commentators have argued that open-source licenses are not contracts, but a Federal Judge disagreed earlier this year. Perhaps the Judge's opinion has more weight?

In the model railroad case, when they tried to get an injunction based on _admitted_ misuse of open-source files, the Judge said that it could contract law, not copyright law, was relevant.

The decision is here: http://jmri.sourceforge.net/k/docket/158.pdf (See particularly page 9)

Some news article said they were appealing, so the next thing to happen is an appeals court decision. That might be an important precedent, and I hope the open-source community helps these guys win it.