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GPL Lawsuit May Not Settle
A number of readers wrote in to inform us that contrary to earlier indications, it's no sure thing that the lawsuit alleging GPL violation by Monsoon Multimedia will get settled out of court. Linux.com now reports that the SFLC's legal director Daniel Ravicher has stressed that no agreement has been reached: "Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance." (Linux.com and Slashdot are both part of Sourceforge, Inc.)
My knowledge of copyright judgments in the US is lacking, but doesn't the plaintiff usually need to register the work with the copyright office in order to get punitive damages? The problem with most projects like this is that 1) they don't register with the copyright office and 2) they have no case for ''compensatory'' damages.
As an contributor to OSS and about to release a project, the GPL is there to be used how it states - any OSS license states what can and can't be done.
All profits from this product could be re-invested to projects or project maintainers to create better OSS products and services in a closely related area.
They pay a penalty now, but can redeem themselves by building a partner network.
Someone needs to write up a website with what you can and can't do (in plain english - with case studies) with various free software:
Mozilla Public License - commercial open source
Common Public License - commercial open source
FreeBSD - academic roots
Apache License - academic roots
(L)GPL - freedom roots
(1)From what I understand, GPLv3 is compatible with Apache for the first time. Does this mean if you license your project v3, you can use apache code within your license and relicense it?
(2)If you contribute to mozilla licensed code or freebsd licensed code, do you understand that your code can be used in a proprietary commercial product?
(3)Can you distribute a proprietary java app with mysql connector jar (open source) connecting to mysql, and charge money for the java app and maintenance on the jar and mysql as a service?
These are all gray-ish areas that I think I know the answer to, but IANAL.
I would answer
(1) - Yes
(2) - Yes
(3) - Yes
Regards
Bingo. As they grow up, a lot of the privileged, wealthy types learn two things: 1) Daddy's and Mommy's money can get you out of trouble, and 2) nothing is more important than your money, because that's the source of your power and privilege.
So, when it's time to punish the arrogant wealthy (and I'm including here intangible entities like corporations), you give them massive fines, to take from them that which they value above all else, and some non-trivial jail time, to show them that their money cannot protect them.
Of course these days much of the extant jurisprudence says nothing must get in the way of businesses making money, but that will change. And it ain't gonna be pretty.
No fees are required for any of the rights it grants, yet it puts restrictions on the exercise of those rights (or, if you prefer, the grants are not unlimited). This makes issues that are normally simple to figure out much more difficult.
For example, if two people negotiate a license agreement that says A can distribute B's book so long as B pays A 15% of the gross receipts, it's clear that the license makes the grant and that the payment is a secondary obligation. If there was non-payment, B would sue A for breach of contract but would have waived the right to sue for copyright infringement.
The GPL is much more complex because it is non-commercial. The "payment" in the form of reciprocation, yet it's written such that the "payment" is a condition precedent to the grant of rights rather than a secondary obligation. Also, there is no agreement between the two particular parties to the GPL.
There haven't been enough cases close to the GPL to figure out exactly what the rule is. The general rule is that things outside of copyright (such as payments) are secondary obligations, not conditions precedent but things inside of copyright (such as selling just film rights) are conditions precedent.
So if I license you to make a movie out my book and you have to pay me $1 million, if you don't pay me, that's a breach of contract. If you sell copies of my book, that's copyright infringement.
If the GPL is read as a license that waives the right to sue for copyright infringement, that would leave only the ability to sue for breach of contract. If the only penalty the contract allows is loss of license, it's not clear what happens. Do you get back the right you waived? The whole GPL then becomes self-referential. "I waive the right to sue you for copyright infringement so long as you give me the right to sue you for copyright infringement."
IANAL, but the way I understand it, lost revenue is often difficult to prove. In cases where it can be established that the offending party knew that it was violating copyright and willfully did so anyway, however, the court can require payment of statutory damages (which can be much higher than any revenue the plaintiff might have actually lost). The only glitch here is that I was under the impression that you needed to have registered your work with the Copyright Office in advance in order to claim statutory damages.
Breakfast served all day!
one man
one vote
one time
There's a reason why gpl stuff is like 100 times as popular, it is precisely because of the give back provisions carved in stone. BSD license says, "you are free to be a completely selfish jerkoff with this stuff, and we just don't care".
Fair enough, no problems! It is remarkably clear and to the point.
OK, swell, people can choose to work and contribute towards that, but I think the proof is in the pudding, just a ton more work gets contributed back under the gpl. The gpl takes into consideration "humanity" and as such is closer to the real world of humans in the "good" sense. BSD supports "inhumanity" and the closed source me-me-me of dog eat dog corporate culture, the artificial golem that stalks our societies now, it panders to the more negative side of human-ness, you are always just one single step away from ultimate avarice and greed. that's close enough for cooties to catch.
Understand I am not putting it down per se, I really am not, there's some fine work going on over that side of the code fence, but it is minscule compared to the gpl side, for the obvious reasons. I am just noting the real world results we can all see, and then projecting into the future which license or mindset as it is will result in more code to more people all over the planet. Both licenses have been around a long time now, so there's your proof. It can change, but I don't think it is going to change a whole lot, not anytime soon, and not because of what is in essence a single simple copyright abuse case. If you want to be completely commercial crass about it, to make your corporations happy, either license it is perfectly acceptable to charge money, for both the binaries and the source code. So there's really not much difference there at all, not really. GPL just acts as a code force multiplier better. That's the only real difference.
and talk about risky, how about totally closed source? suppose your company invests heavy in software prodict A, only to find out later on they "infringed patents" from software company B and "stole code" and so on? You could be ordered to cease and desist using that software with not much notice, then what ya gonna do? It got *this II close* with them stupid crack berries, dint it? And lookee down the page, look at vonage, more than one company out there went heavy with them.
So what is "risky" again? All of it is risky, but it is the shit you can't see that is riskier, bar none. Stick to pure open source and gpl and you can use it forever and ever, not much worries at all compared to the other stuff, and a hella lot more folks will be working on improving the code and looking for bad news stuff all the time that you are then free to use again and again.
You either get it, or ya don't, it really is that easy.
one man, one vote, one time, or one man, one vote, every time, which is better?
Maybe this is what Eben Moglen meant when he said: Now, as usual, when you win a small tactical engagement that turns out to be a large strategic victory, you have to consolidate the gains, or the other side will take them back. So we are now moving into a period in which what we have to do is to consolidate the gains. We have to strengthen our own understanding about what our community can do.
How we know is more important than what we know.
I like the idea of some of the settlements by http://gpl-violations.org/ where the offending party makes a donation to the Open Source cause, e.g. the project violated, the FSF or EFF.
License != Contract.
I guess you have consideration. What about the offer and acceptance? Do you really have an exchange of promises?
A license is not a contract. It is more a one-sided offer of permission to do something that would, without the license grant, be illegal. A license can have restrictions.
The idea with the GPL is it has restrictions. The logic is that if you don't comply with these restrictions then you never had the right to distribute. And in the case of a copyrighted work, if you redistribute without ownership or a license, and you do it willfully, then you are liable for 3x the statutory damages.
http://www.informit.com/articles/article.aspx?p=212176&seqNum=3&rl=1
That's the theory anyway. I guess we'll see.
-- John.
Really? Please take the GPL Quiz and tell us what score you got. Hint: it's surprisingly tricky!
- Injunction to stop infringing copyright
- actual damages
- profits from the infringement
- attorney fees
- anything else the court might want to do
As soon as the defendant complies with GPL, they aren't infringing, so #1 isn't a big deal.Actual damages? That's a big fat zero.
Profits? At this stage in the product's life-cycle, defendant probably isn't profitable yet, so that's likely to be another big fat zero.
Attorney fees. Finally something that might actually be non-zero!
I don't see much punishment happening here. They'll settle for attorney fees and some nice (to the developers) but insignificant (to the company) payment.
They aren't inherently bullshit arguments. The problem is with the *way* the RIAA uses them, not with the concepts themselves.
But damages? For copyright infringement and loss of revenue?Compensatory damages would make no sense, obviously. But there are statutory damages and perhaps even punitive damages that the court could toss in there.
More likely, though, the FSF will simply want the court to enforce the termination language in the GPL, and bar Monsoon from distributing Busybox at all. Then, if Monsoon wants their permission to distribute Busybox to be reinstated, they'll have to come to some agreement with the copyright owners, which I expect would involve some money.
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