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?

[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?

[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?

[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?

[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?

[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?

[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.

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.

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

[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: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?

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.