First US GPL Lawsuit Heads For Quick Settlement

DeviceGuru writes to tell us that the first lawsuit centered around the GPL seems to have been quickly resolved outside of the courtroom. Monsoon Multimedia was quick to admit that they had violated the GPLv2 in their modified BusyBox code and will soon be releasing the source to come into full compliance with the license.

Comments

Nice to see a company admit it's mistake

[he1icine]

While it would have been better had they not violated the GPL in the first place, but it is nice to see that Monsoon is able to admit their mistake and release the code according to the license. Too bad most companies are happy to fight it out in the courtrooms forever, or pay people off, than to stand up and admit when they were wrong.

Re:Nice to see a company admit it's mistake

[nomadic]

IANAL, but wouldn't it have been better if a judge actually ruled against them (Monsoon), setting a precedent to be used in future GPL violation cases?

Better for whom? The attorneys in the case represent their respective clients, not the public interest at large. If they see a way to get a good result for their clients, they are ethically obligated to pursue it, even if in the long run someone else down the road has a harder time of it.

Re:Nice to see a company admit it's mistake

[Myopic]

This was billed as the "first American GPL lawsuit". So... what companies are you referring to?

Re:Nice to see a company admit it's mistake

[nomadic]

My hat goes off to you, sir, for Getting It (tm). Are you a lawyer/law student? I'm tired of people who rattle on and on about the law and deliberately spread misinformation (and moderate down correct information). Thank you for pointing out the ethical obligations of the legal profession.

Thanks, I'm a lawyer. I think what a lot of people here also might miss is that even if they pursued it to a victory in court, that might not really create anything of real precedential value. If the case is routine enough the court might issue an order without a written opinion. Alternately, the court could simply state there is no precedential value, or issue a written opinion that doesn't even address the issue of the validity of the GPL.

On the other hand, I think that it would be in the client's best interest - if that client is responsible for a lot of GPL software - to set a precedent. It takes a larger up-front effort, but further actions that dispositively rely on the GPL being unenforceable are a 12(b)(6) away from disappearing. Also, it's dangerous to suggest (even remotely) that the client shouldn't want to go to trial; even though it's always better for people to settle, it could be construed as using a lawsuit to extort payment, which of course would be sanctionable.

I mean, if the client orders you to follow a certain litigation strategy, you have to either do it or withdraw, ultimately you're their agent. I've had clients tell me to do something that I thought was a terrible idea, and I told them I thought it might be a mistake, but some of them just think they know best.

So it's entirely possible that at some point a GPL licensor will want to pursue it until they get a binding opinion, but honestly for the majority of individuals it's just not really worth it, unless you get the FSF to carry the whole cost of the action (which could very well happen).

Re:Nice to see a company admit it's mistake

[Stephen Ma]

The idea that we know what would happen in a US court should the GPL ever be tested is wishful thinking.

OK, let Microsoft challenge the GPL in court then. They haven't dared to try it, even though all indications are that they really, really hate it. They have a history of going for what they want, dishonestly or honestly, if they think they can get away with it. But they have left the GPL strictly unmolested, and that is pretty strong evidence that even Microsoft feel intimidated by the strength of the license.

Re:Nice to see a company admit it's mistake

[yuna49]

OK, let Microsoft challenge the GPL in court then. They haven't dared to try it, even though all indications are that they really, really hate it.

I'm not convinced that Microsoft "hates" the GPL. It would certainly hate for the GPL to be applied to some component of a Microsoft product, but overall continued uncertainty about the legal status of the GPL benefits Microsoft.

Most of Microsoft's anti-GPL rhetoric is really aimed at enterprise customers considering migrating servers from Windows to Linux. The whole campaign is much more of a "FUD" operation than real opposition to the GPL or the principles it embodies. Microsoft benefits when corporate decision-makers choose not to implement GPL-licensed solutions for fear that somewhere down the road a program like the Linux kernel will be adjudged to infringe somneone's patent or copyright. Then, suddenly, all those supposedly "free" servers are subject to royalty payments of some form or another or, worse, have to be entirely rebuilt with compliant software. The uncertainty engendered by SCO's rather ridiculous claims of infringement against IBM and Linux is a good example of this process at work.

People don't advance to positions of power in corporate establishments by being risk-acceptant. So long as a GPL sword hangs over the heads of CIOs, they often going to choose the reliable, commercial solution (read "Windows") rather than worry about who owns the rights to every little piece of GPL-licensed software. (Yes, of course, Windows itself probably infringes some patents somewhere, but that's a much smaller risk than Linux presents. Even if Microsoft is found to be an infringer, as in the Eolas case, it has the resources to protect its end-users from any potential risks or losses.)

Re:Nice to see a company admit it's mistake

[Stephen Ma]

People don't advance to positions of power in corporate establishments by being risk-acceptant. So long as a GPL sword hangs over the heads of CIOs, they often going to choose the reliable, commercial solution

However, corporate executives are always interested in saving money, and they will stretch pretty far in order to do it. Linux and the GPL have the reassuring presence of IBM and HP behind them, and that is usually good enough for even the most timid exec. This is why Linux has been growing by leaps and bounds the last few years.

all's fair in law and war

[User 956]

Monsoon Multimedia was quick to admit that they had violated the GPLv2 in their modified BusyBox code and will soon be releasing the source to come into full compliance with the license.

I hate to sound like a pessimist, but this sounds like nothing but a win for Monsoon. Number one, there's no mention of any cash payout, and number two, they get a shit-ton of free advertising for doing the "right thing".

Re:all's fair in law and war

[Daimanta]

Number one, there's no mention of any cash payout Why do there always have to be (punitive) damages paid? They lost and they will now comply. FOSS has won. No revenge. Case closed.

Re:all's fair in law and war

[kebes]

Number one, there's no mention of any cash payout

In various talks I've heard, Eben Moglen (legal counsel for the FSF) repeatedly states that it should be the policy of the free software community to give ample opportunities for infringers to "do the right thing."

He emphasizes that the objective is for the software to end up free, not to extract revenge, or get extra money. As such, the message we must send is "do the right thing," and not "pay for your crime." He says that this strategy has worked remarkably well: most GPL infringements never make it anywhere near a courtroom: a couple of friendly phone calls and the situation is resolved.

Frankly I think this "don't be a jerk" tactic is something we should encourage everywhere, not just in the FOSS community. In any case, the somewhat more even-handed approach to infringements helps to not scare away potential users of GPL software and code (e.g. corporations). The message they get is: "play by the rules... but if you make a mistake, don't worry: we'll send you a friendly reminder before taking any harsh action."

Re:all's fair in law and war

[Lord Kano]

Why do there always have to be (punitive) damages paid? They lost and they will now comply. FOSS has won. No revenge. Case closed.

Because it provides people with a reason to do the right thing.

It's like this, if you break the rules either you get away with it or you get caught and have to comply with no additional penalty.

If you know that getting caught doing the wrong thing will cost you more than just doing the right thing in the first place, you have an incentive to stay above board.

LK

Re:all's fair in law and war

[Anonymous Coward]

Also, the "be a jerk" tactic would send a very bad signal to the corporate world.

The boss is not interested in your story about "free as in speech". He is not even very interested in your story about "free as in beer", unless the commercial alternative is very expensive.

He is interested in checking off things on the list as being "solved". I personally introduced Linux for a product we're making, and the boss is certainly having second thoughts because close to the release date, I had to stir up discussion about the manual (printing the required "this software is based in part on the work of such-and-such" paragraphs) where our software contractors legal department assured that is not necessary to be "holier than thou" and nobody else was doing it; I had to point them to the recent Skype phone case in Germany, getting them to find out whether we need to put a CD-ROM with the sources in the box with our machine or the text "sources are available from ftp.mycompany.com" is enough (I still don't know the answer as different legal depts are contradicting each other), etc. etc.

In my boss' opinion, it is far easier to use commercial, closed software. You send a note to the buying department saying you need product X, sign an expense form, and that's that. The commercial vendor isn't going to come back to you half a year later saying you should have only used 20 dollar bills in the payment, and you should have put them in a manilla envelope because using a white one is not allowed per the license.

There should be a nice "HOWTO use GPL software in your commercial product", without any ramblings on how anyone considering doing so is evil in the first place.

Precedence

[ricebowl]

While it's good that Monsoon's finally agreed to uphold the GPL agreement I was rather hoping that they'd hold out, if only to establish precedent for future actions.

Still, there's a chance that other companies approached by the SFLC will look to this act before deciding to refuse to comply with the GPL they're trading under.

Hopefully...

Precedent

[cromar]

It is too bad, in some ways, that it didn't go to court. Personally, I will sleep much more soundly when there is a precedent set which upholds the GPL as legally valid.

Re:Precedent

[codepunk]

I would not loose a whole lot of sleep over it, the GPL may never be tested in court. When faced with
a violation the offending party is not going to be stupid enough to go to court over it. If you loose the case you get smoked for copyright infingement, if you win you still cannot distribute the compiled code since the GPL is the only thing allowing distribution.

Only a fool would take his chances with such odds.

Re:Precedent

[vondo]

As the other commenters have alluded to, businesses go to court with other businesses all the time over these types of issues. The fact that no company, to date, has been willing to take on a bunch of long haired hippies with scant resources over their commie license would suggest that either the terms of the license are benign to them or they know they don't have a leg to stand on. Also, there have been a few companies that have gotten to the stage Monsoon has and they've folded their hand when lawyers get involved. That says something.

Win for Free Software.

[Erris]

this sounds like nothing but a win for Monsoon. ... there's no mention of any cash payout, and number two, they get a shit-ton of free advertising

It's another win for software freedom. We get their changes or they get hammered. The thing being advertised is that free software can be and is used for business. No one had to waste money on lawyers and everyone is happy.

For their reputation, it's a wash. Monsoon's reputation has been damaged by their original behavior but the settlement goes a long way to repairing that. The reputation enhancement they get from using free software is well deserved because free software has a well earned reputation for quality.

Re:Win for Free Software.

[kripkenstein]

>>this sounds like nothing but a win for Monsoon

It's another win for software freedom.

Both, I think. When FOSS software is used according to the licenses, it is a win for all parties involved.

The only possible losers are those with competing proprietary software.

Re:Bargaining chip

[kebes]

On the other hand, the fact that no GPL dispute has ever gone to court says something very powerful: It says that no company who has ever been discovered to be violating the GPL honestly thought that they could win in court.

So, the (unofficial) conclusion from a wide variety of lawyers working for different, unrelated, companies is: "Don't go to court against the GPL." It's not a legally-binding test, but it sends a clear message to other would-be infringers.

Hrm... What is cheaper?

[vertinox]

A.) Hire a lawyer and fight a court case you may or may not loose.

or

B.) Just release the source which costs you nothing

GPL Settlements Nicer

[Anonymous Coward]

It has an extreme likelihood of being legally sound and valid, and companies (and everyone else, really) know that - that's why they settle so fast in the first place.

Let's not forget that GPL settlements are usually much nicer than 'normal' copyright settlements.

Example: Violate Microsoft's copyright on some code, bundle it up in an executable, and start distributing it (heaven help you if you actually sell it). Think the settlement that Microsoft will offer you will be anywhere near as amicable as "Share your changes back to the rest of us." ?? Not on your life.

The fact that the GPL hasn't needed a legal confirmation gives testament to its simplicity and strength. These waters are filled with some *very* dangerous sharks that have had plenty of time to attack. It seems our shark cage is made of some pretty stern stuff.

GPL Will Never Be Chalenged

[EEPROMS]

The reason why no sane company will challenge the GPL is very simple, even if you win you lose. As soon as you have removed the GPL hurdle you then have the nightmare of copyright law to face. The GPL does not remove copyright its a usage agreement, so if the "agreement " is annulled in court then the code falls under well tested copyright law and thats even worse to deal with.

Re:Call the Grammar Nazi

[complete loony]

I'm sure the center is around here somewhere.

Re:Read some more

[keeboo]

All in all, their attitude - or at least of this rep - has been an offensive defensiveness (aka justify their actions by attacking those of others). I'm hoping that along with having the issues settled he now has an understanding of how the GPL works, but I'm sure he'll probably continue along with the mistaken assumption that his company was never in the wrong, and that this whole thing is the fault of those darn free-software people.

I don't believe so.. That kind of stuff is just theatrical, what they really think is another matter.
They probably thought that it would be possible to keep their way just ignoring/scaring the eventual complainer. But after a while it looked like they could have some real trouble, so releasing the code (or just announcing that) seemed the more convenient solution.

I don't think this company believed for a moment they were right or wrong in the moral sense... Looks more like an amoral behavior: You do whatever is needed for profits as long as you don't have too much trouble with the law.

Re:There's still one really bad option

[Verte]

If you violate the contract, you don't have the right to distribute, and therefore, any distribution is copyright infringement.