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

Cue Amelia from slayers

[Spy der Mann]

Victory!!! ^_^

Aha!

[Anonymous Coward]

1. Violate GPL
2. Get sued and get massive publicity for your little device that's actually kinda cool, then settle
3. Profit!

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

[snowgirl]

The interesting thing is that once they start talking to lawyers, I think they are informed of just how screwed they are.

I mean, if they defeat the GPL, then they couldn't use the software in the first place, if they defend the GPL, then they need to conform to it.

Either way, the whole GPL suits are so full of pitfalls and dangers to those abusing the code that they really don't have a chance, and any good lawyer should be telling them that.

There was another suit awhile ago with CherryOS vs PearPC, that looked to be pretty hefty, but before anything could be done, they dumped the product entirely. Sometimes, if something isn't worth that much... it's just not worth keeping around.

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

[QuantumG]

I mean, if they defeat the GPL, then they couldn't use the software in the first place, if they defend the GPL, then they need to conform to it. That's a false dichotomy. There's a remote possibility that a judge could rule that the use of GPL on BusyBox is "copyright abuse" and the developers could lose their copyright. Or the judge might rule that certain actions that were thought to be insufficient to be in compliance with the GPL are actually sufficient. For example, the judge could rule that "the source code being available" is sufficient and it doesn't matter where the source code is available. Or that only a "majority" of the source code need to be available, etc.

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

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

[JimDaGeek]

Do you work for this company?

If you read TFA, Monsoon didn't do Sh!t until lawyers got involved. The developers of BusyBox tried to settle things "under the radar". If Monsoon was a company with any morals, they would have corrected their mistake(s) then. However, they did not. It wasn't until a lawsuit came and bad press came that they did what they should have done from the get-go.

So no, it is not "nice to see that Monsoon is able to admit" anything. They basically said F-U until legal measures were taken. If BusyBox didn't have the ability to get support in fighting this, Monsoon would still be violating the GPL and saying F-U to the developers.

There is nothing "insightful" about the GP (I don't mean that to offend you GP). This sounds like typical corporate crap. Monsoon continued in their infringement after being notified. Monsoon did nothing until legal matters were taken. Now Monsoon is all like "we 'intended' to comply and we will comply". BS.

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.

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

[Artifakt]

(I won't be a Spelling Nazi)
(I won't be a Spelling Nazi)
(I won't be a Spelling Nazi)...

I'm not a lawyer - this is a layman's comment, reflecting only a layman's understanding, so of course utterly worthless. Still, I had fun writing it.

No, it won't stand up (much).
A precedent isn't an automatic win for subsequent cases. If a precedent appears to have technical flaws, people opposed to it will normally ask a higher court to overturn it. In some cases, all this takes is legal status as affected party, which means that if, for example, you represented a company and they were willing to make a claim that an old precedent hurt their bottom line, you would have standing to file an appellate brief. (If someone is willing to contend they are losing serious money because of the existing precedent, in some venues they don't have to actually have lost any case themselves to appeal). Then all you would need is a line of argument you thought had a chance of winning to actually prepare one. The way a precedent helps your side is all this filing can cost money, so the other side might decide its cheaper not to fight you. But if they hire a good lawyer to evaluate what their chances are, he or she is likely to see how weak your win was.
Alternately, one side could already be involved in an actual case and the other side (your side in your example) bring up the precedent in their motions. This doesn't automatically hurt their case, let alone mean your side automatically wins. They can make motions to the effect that the precedent doesn't really apply to your case, cite other conflicting precedents, or do many other things that could still mean you don't win. Cases have been put on hold while a higher court considers whether a precedent is valid or applicable, then the lower court case finished after that court rules. Some precedents are broader than others, and judges will frequently compare such factors as whether one was originally a mixed decision or a unanimous one, too, in deciding among conflicting precedents.
Precedents become stronger if they are set at a court of appeals level, and in the U.S. are very strong if the Supreme court has heard them and agreed, but even there, a new appeal on different grounds can overturn one. Often the Supreme court refuses to even hear an appeal. When they do, they will generally give reasons, and just what those reasons are may affect whether anyone might resubmit an appeal with other grounds or accept the intermediate court's verdict as effectively final. There are even cases where the Supreme court has refused to consider an appeal, but spelled out just how to restructure one so they would consider it (and in some of these, the court has then rejected the new appeal - go figure). There are some lower court precedents the Supreme court has consistently refused to hear, that are considered very strong for that reason, perhaps as strong as if they had heard and affirmed them.
How does this apply to your scheme? First, (in most venues) if a judge thinks one side isn't presenting its case very well, he can suggest they raise points of law, or question litigants as to points of fact directly. He or she can write the decision to reflect his or her own opinion that one side is doing a poor job, and this means the decision won't necessarily give the sort of protection you want. Legal decisions are often many pages long, not some simple "Side A wins, Side B loses" document.
Second, you can't automatically get a superior court to hear an appeal, and it may be very hard to get one all the way to the Supreme court. Remember, the side that wins can't appeal a point where they got a victory, rather the side that loses on a given point has to appeal their defeat, or someone else has to become involved. If fact, most appeals happen where a complex decision gives some points to both sides. It's rare to see one side lose badly on all points and appeal, because in mo

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

[smittyoneeach]

I suspect Samba to be hit or at least a target. It is a key part of replacing a lot of windows servers.

You touch the money nerve here.
When you touch that nerve, an awful lot of people become highly interested.
MS would have to tread very, very carefully to make an attack on GPLv3 and not face ridiculous blowback in the form of anti-trust proceedings.
The outcome would be far from certain, and I don't think big money moves in uncertain waters.

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

[Aim Here]

I know about the copyright misuse doctrine. I know about the theories regarding copyright misuse and GPLed software.

You're very wrong here though, as regards Lexmark. SCC and the EFF did argue a copyright misuse theory, but that theory related to antitrust issues (the theory that the GPL violated antitrust laws has already been soundly clobbered by the sixth circuit in Wallace vs IBM et al) and it wasn't addressed by the appellate court. Lexmark didn't 'permanently lose their copyright for copyright abuse', either - it's just that copyright protection isn't given to devices in software that need to be mimicked for interoperability purposes, much the same as in the Lotus/Borland case. The effect is superficially similar, but there are differences. With copyright misuse, the misuser doesn't 'permanently lose their copyright', they just temporarily lose the right to enforce it, until the misuse is rectified.

In any case, it doesn't get anywhere near the busybox/Monsoon case.How in the name of Great Emacs Almighty can busybox be 'misusing' copyright by asking someone else to stop distributing their copyrighted code, only their code, and only the code that the two busybox developers own? That's a monopoly explicitly granted by the copyright laws, and there's no way that copyright misuse can possibly apply there...

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

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...

Re:Precedence

[Chris Burke]

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.

I guess. Is a precedent really necessary? I mean the "GPL hasn't been tested in court -- it might be an invalid license!" makes for great anti-GPL FUD, but when you get down to it there is no reason to believe the GPL would be invalid. There are thousands of licenses out there that have never been tried in court, and with most of them there would be no point.

This may be the first GPL lawsuit, but it is hardly the first GPL-related incident with lawyers involved. The fact is that most companies cave immediately when faced with the facts of their GPL violations. Before now nobody has even wanted it to get to the point of a lawsuit being filed, much less letting the facts be tried by a jury. I think it's safe to say that most of these companies' legal departments regard the GPL as a sound license, and getting it ruled invalid as unlikely (and detrimental, since without the GPL they would have no license to use the code at all).

The closest we've come to a company actually fighting the GPL in a court of law was SCO who claimed it was unconstitutional of all things. Nobody else seems to be crazy enough to want to fight the GPL at all.

So a precedent would be nice simply for being able to say "the GPL has been tested in court and was ruled to be a valid license" to silence the FUDmeisters, but practically speaking it's not necessary to protect GPLed code.

Bargaining chip

[LiquidCoooled]

They did not win on technical grounds, and any sane (or insane) lawyer would have done the same.
They backed down once they found out RMS might be called to testify.

In reality, this means that there is still no precedent for the GPL in court which is a shame.

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.

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.

Re:Precedent

[maxume]

Only the sandman can loose sleep. Other creatures occasionally lose it though.

Call the Grammar Nazi

[heff66]

You can't center "around" something. You can revolve around something or you can center ON something. But you can't center around. Doesn't even make sense and it's on two front-page Slashdot articles.

Re:Call the Grammar Nazi

[KermodeBear]

Does definition determine usage or does usage determine definition?

Re:Call the Grammar Nazi

[complete loony]

I'm sure the center is around here somewhere.

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.

Conspiracy theory in favor of Monsoon

[tygt]

Ok I really don't know anything about this, but... what if Monsoon is actually on the tux side and wanted to provide an opportunity for a court case which they were already planning on caving on, just so that others would think "well you *can* get sued and those guys caved".

I know, far fetched. But still, I love a good conspiracy theory.

NO IT DOESNT

[Anonymous Coward]

THE FIRST US GPL CASE TOOK TWO YEARS TO SETTLE

http://www.groklaw.net/articlebasic.php?story=20050225223848129

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.

More interesting case happening in Israel

[QuantumG]

Here's the situation. A startup company took a GPL licensed program, made modifications to it and dynamically linked to a proprietary third party VOIP library. Initially they weren't going to release any of their modifications, but after being contacted by the developer they tried to come into compliance. However, the use of the proprietary VOIP library is not compatible with the GPL as they are unable to provide source code for it.

The startup company was the first to sick the lawyers on, but the developer has fought back better. For a while it looked like there was going to be a default judgment in the developer's favor but now it looks like it is going to court.

See http://www.jinchess.com/ichessu/ for more details.

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:Read some more

[phorm]

Indeed. This company was also informed months ago by a user that had requested the code, unfortunately with no result. After discussing the GPL issues, Monsoon's rep basically started accusing the users' of illegally decompiling their source (in order to find the violation) and EULA violation etc etc. When told that there was no EULA if you download the source, he basically said "OK, well then we'll stick one in the download, or embed it in the binary so that you can't get around it." This shows that they had very little interest in showing the code, as their attitude towards their GPL obligations at the time was basically "we'll get to it, sometime, and we're not telling you when." Here's a bit of Monsoon's commentary in the forums pre-lawsuit:

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?
I had posted the an article up on slashdot at around the time the forum debates were taking place, but unfortunately it never made it past the firehose (and I assume that is has now disappeared since it was rejected). However, the same rep was involved in a debate with me, and was spouting the same BS. His question was "well, what is the opinion of slashdot on breaking the EULA and reverse-engineering our code." I answer that it would really depend on the context, particularly whether the code should have been visible in the first place, and that the use of strings does not qualify as reverse-engineering. He continued to insist that "having reverse-engineered stuff in the past, I know what I'm talking about, so it's just your opinion that strings doesn't count." etc etc

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.

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.

A clearer explanation...

[JetScootr]

I used this to explain GPL vs proprietary to a non-techy friend: Suppose I owned a good fishing spot coupla acres big. Friend Joe asks if he can fish from there, I say "sure, but share". He's ok with that. He comes back, says it's great, but his wife doesn't like to get her feet wet...would I build a dock? No, but he can, with this provision: He must allow anyone to use the dock, if I let them use the land. I promise that no one will get exclusive use of the land. Joe's ok with that.
Fred loves it too, but is tired of dragging his BBQ equip out there twice a year, and asks to build a brick grill. Same rules: All who share the land share the dock and the grill.
Time goes on, and we all get the use of each other's efforts in making a good fishing spot into a great getaway.
Each thing added to the land belongs to the person who added it. If anyone doesn't like the rules I run my land by, they are free to go somewhere else. They just can't use my fishing spot if they won't share.
The diff with software under the GPL: Everyone can simultaneously use a virtual BBQ. Physical laws mean the BBQ at the fishing hole has be shared by timeslice, and that I can't share with EVERYONE, only a few dozen or so buddies.

You couldn't be more wrong

[jgoemat]

It does NOT forbid dynamic linking at all, because the .so or DLL loader combines the two works at the same time that it loads them into memory, and copying into memory is not regarded as an act of copying that invokes copyright.
[...]
This General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Lesser General Public License instead of this License.

First of all, loading into memory IS an act of copying that invokes copyright in the United States. Look up U.S. Code Title 17, Section 117. The courts have held that in several cases. The reason that we can use them is because congress specifically carved out exceptions so that a person who rightfully posesses software can load it into memory to use it and also to make an archival backup copy. Second, the FSF's position is that dynamic linking creates a derivative work that must be distributed under the GPL. I'm not sure whether that would legally constitute copyright infringement on its own, but by using teh library at all you are agreeing to the GPL, so contract law might be used to force compliance.

I am not a lawyer, seek a lawyer out if you want legal advice.