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Linux Devicemaker Sued In First US Test of GPL

Posted by CowboyNeal on from the running-it-up-the-flagpole dept.

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."

27 of 315 comments (clear)

  1. What's the big deal? by dedazo · · Score: 5, Insightful
    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.

    --
    Web2.0: I love when people Flickr my cuil and digg my boingboing until my google is reddit and I start to yahoo
    1. Re:What's the big deal? by Sparr0 · · Score: 4, Interesting

      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.

    2. Re:What's the big deal? by mark-t · · Score: 5, Informative

      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.

      --
      File under 'M' for 'Manic ranting'
    3. Re:What's the big deal? by NitroWolf · · Score: 3, Informative

      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.

    4. Re:What's the big deal? by Ajehals · · Score: 4, Informative

      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.

    5. Re:What's the big deal? by mark-t · · Score: 4, Interesting

      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.
      --
      File under 'M' for 'Manic ranting'
    6. Re:What's the big deal? by arth1 · · Score: 4, Insightful

      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.
    7. Re:What's the big deal? by AJWM · · Score: 5, Informative

      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.

      --
      -- Alastair
    8. Re:What's the big deal? by AJWM · · Score: 3, Informative

      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.

      --
      -- Alastair
    9. Re:What's the big deal? by swillden · · Score: 3, Insightful

      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.

      --
      Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
    10. Re:What's the big deal? by nickco3 · · Score: 4, Informative

      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]

      --
      -- Nick "Hallo this is Beel Gates, und I pronounce weendows as ... WEENdows"
    11. Re:What's the big deal? by psmears · · Score: 3, Informative

      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.

      --
      Need to type accents and special characters in Windows? Use FrKeys
  2. No Stallman! by QuesarVII · · Score: 3, Funny

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

  3. There is a big deal by EmbeddedJanitor · · Score: 3, Informative
    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.

    --
    Engineering is the art of compromise.
    1. Re:There is a big deal by Dunbal · · Score: 4, Informative

      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.

      --
      Seven puppies were harmed during the making of this post.
  4. Over under by Supergood-ape · · Score: 4, Funny

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

    250?

  5. Maybe they're just clumsy by Anonymous Coward · · Score: 5, Insightful
    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.
    1. Re:Maybe they're just clumsy by ZachPruckowski · · Score: 5, Insightful

      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)

    2. Re:Maybe they're just clumsy by EzInKy · · Score: 4, Informative


      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

      --
      Time is what keeps everything from happening all at once.
  6. Re:May be a mere aggregation by QuantumG · · Score: 3, Informative

    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.

    --
    How we know is more important than what we know.
  7. The GPL isn't a contract by Anonymous Coward · · Score: 5, Informative

    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.

    1. Re:The GPL isn't a contract by SashaMan · · Score: 3, Informative

      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

  8. false and true by Trepidity · · Score: 3, Informative

    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.

    --
    10 PRINT CHR$(205.5+RND(1)); : GOTO 10
  9. Re:Why not use a BSD? by Flimzy · · Score: 3, Informative

    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.)

  10. check out the firmware for yourself by Sirius25 · · Score: 3, Informative

    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.

  11. Monsoon must be suicidal by petrus4 · · Score: 3, Funny

    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. ;-)

  12. Particularly Interesting.... by XScB · · Score: 3, Insightful

    "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.