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?

[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?

[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.

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)

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.