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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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]

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?

[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?

[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?

[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?

[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?

[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?

[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?

[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.

No Stallman!

[QuesarVII]

I just hope they don't put Stallman on the 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.

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.

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: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.

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

[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.

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.

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.

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!

Yay!

[frup]

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

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?

[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?

[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?

[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.

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.

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

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.

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.

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!

~~~~

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: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

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.