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.)

Comments

Expenses

[gvc]

However, now that a case has actually gone to court, the SFLC is apparently less forgiving.

I believe that this statement is inaccurate, and that expenses have been demanded and paid.

Re:Expenses

[Anonymous Coward]

So what? I don't see why GPL violations should be punished with a slap on the wrist.

Re:Expenses

[Anonymous Coward]

i think the microsoft advertisement linked to this article is inaccurate as well. CHECK YOUR SOURCES!!!

today is my birthday also.

Re:Expenses

[Whiney Mac Fanboy]

I believe that this statement is inaccurate, and that expenses have been demanded and paid.

Do you want to give us some reasons for your belief, or should we take your word on faith?

Re:Expenses

[larry bagina]

Who was harmed? That's a question a judge/jury would consider. If they were infringing on a patent or commercially licensed software, it would be easier to find a monetary value (and there is plenty of precedent)

While there's a good chance they'd get punitive damages for intentionally disregarding the GPL provisions, there's also a very real chance the court would decide that specific performance (ie, releasing the code) was the only necessary remedy... which would encourage (more) GPL violations.

Re:Expenses

[kennygraham]

Are you posting anonymous because you're the only /. reader who doesn't have adblock?

Re:Expenses

[aichpvee]

Who was hurt? Perhaps the authors because the thieves were making a lot of money with the stolen code? There's got to be a ton of precedent for awarding damages to the owner of a copyright when someone else is illegally profiting from the sale of that copyrighted work.

Re:Expenses

[Planesdragon]

There's got to be a ton of precedent for awarding damages to the owner of a copyright when someone else is illegally profiting from the sale of that copyrighted work. There's zero precedent for awarding profits to an author who made a willing and intentional donation to the public domain, of their own free will, with the express idea that anyone can take their work and do virtually anything they want with it.

The GPL will eventually go before a judge, and one of two things will happen. It will likely be found to be perfectly fine and enforceable. Or, it might be found to be in whole or in part against the law, and hence either invalid or partially voidable. And if that happens, it's likely that the judge would also rule that any program released "under the GPL" is closer to a public domain work than an empty utterance.

Either way, if I take a program that you wrote, and put on the web with a note saying "take this and use it in your computers or in other things you make", and I forth and make a fortune, a judge won't order me to share my profits with you. Maybe I'd be compelled to follow specific parts of your note, and maybe I might have to pay your lawyer as well if I was a real dick about it.

(IANAL, yadda yadda yadda.)

Re:Expenses

[roguetrick]

However your running under the assumption that GPL is very close to Public Domain. It's pretty restrictive.

Re:Expenses

[aichpvee]

Please learn what the GPL is before saying anything else about it, ever. I don't think you got anything right in your entire post except that you are not a lawyer.

Re:Expenses

[mrchaotica]

Who was hurt? Perhaps the authors because the [copyright infringers] were making a lot of money with the [infringed] code? There's got to be a ton of precedent for awarding damages to the owner of a copyright when someone else is illegally profiting from the sale of that copyrighted work.

There, fixed that for you. If you agree that parties like the RIAA and MPAA are wrong, deceitful, and unfair when they mislabel copyright infringement as "theft" or "stealing" -- and you should agree -- then you shouldn't mislabel the offense either. Hypocrisy* is bad, mmkay?

(*Obviously, if you agree with the RIAA's diction then you're not hypocritical, but that's unlikely because you would be in the minority of Slashdot readers. If that's the case, I apologize.)

Re:Expenses

[aichpvee]

No, it isn't the same. When you take GPL code and violate the license you are making the assertion that the code is yours. This is theft. I have yet to hear of someone making a claim of ownership of a work when "pirating" movies or music.

Perhaps I am mistaken and this company admitted that they were using GPL software and not releasing the code. But that is rarely, if ever, the case and it is pretty safe to assume that they were just hoping that no one would notice what they were doing as that is usually (again, if not ALWAYS) the case in these situations.

That comments such as yours, which are all noise and no content, get modded insightful speaks quite poorly for the moderators of this site.

Re:Expenses

[someone1234]

They admitted they are using GPL code (they mentioned the original FOSS code they lifted).
They simply didn't make the modified sources available.

Re:Expenses

[someone1234]

Copyright infringement is theft.
The problem with RIAA is that they try to sue people who didn't infringe their copyright.

Re:Expenses

[EsbenMoseHansen]

Copyright infringement is theft.
The problem with RIAA is that they try to sue people who didn't infringe their copyright.

At least, this usage of the world "steal" is pretty old. Tom Lehrer (if you know who that is) said in the 60s "I thought I'd steal.. I mean adapt... this idea" or something close. It is just a word that has gotten additional meanings. If I "steal your heart" I hardly deny the usage of your heart, either :)

Personally, I don't mind copyright, but the length is suboptimal. (15, 20 years from publishing would be enough, I think). Also, copyright should not be used to force people to watch certain stuff, such as copyright notices or other things.

As long as reasonable care is taken to make sure you got the right person, and as long as the punishment fits the crime, I have no problem going after the file sharers. On the other hand, DRM is one of those things I would forbid. It's counterproductive for innovation in the surrounding fields.

Re:Expenses

[gnasher719]

Who was harmed? That's a question a judge/jury would consider. If they were infringing on a patent or commercially licensed software, it would be easier to find a monetary value (and there is plenty of precedent)
Imagine Microsoft wanted to use some code that is published under the GPL. It doesn't really make a difference, but we can imagine that Microsoft has money in the bank, and wouldn't do something obviously illegal.
Microsoft has two choices: Use the code and follow the rules of the GPL license, or find the copyright holders and offer them money for a proprietary license. If they go the second route, unless the copyright holders for some reason refuse any business with Microsoft, there will be an agreement in the end where Microsoft will pay a certain amount to the copyright holders.

If someone else just copies the code and then doesn't follow the rules of the GPL license, the fair market value determined by our Microsoft thought experiment would be the damages. That would likely be tripled for punitive reasons (otherwise a company could just steal anything, if they didn't get caught they'd be fine and if they got caught, they would only pay what they owed anyway).

And there is real precedence, like Apple first paying for a proprietary license to CUPS and then buying the copyrights to CUPS.

Re:Expenses

[gnasher719]

The GPL will eventually go before a judge, and one of two things will happen. It will likely be found to be perfectly fine and enforceable. Or, it might be found to be in whole or in part against the law, and hence either invalid or partially voidable. And if that happens, it's likely that the judge would also rule that any program released "under the GPL" is closer to a public domain work than an empty utterance. That is similar to the situation when you are caught driving 100mph with your Porsche in a small town on a road passing the local school. The case will eventually go before a judge, and one of two things will happen. The judge will likely kick your arse. Or, it might be found that since you paid so much money for a fast car, it is fine to drive at high speed past a school. And if that happens, it's likely that the judge will also rule that any speed limit doesn't apply to Porsche drivers.

While both are possible, they are equally unlikely.

Re:Expenses

[mrsteveman1]

"There's zero precedent for awarding profits to an author who made a willing and intentional donation to the public domain"

Your post should have stopped there, because this has nothing to do with public domain.

Re:Expenses

[budgenator]

Title 17 Chapter 5
  504. Remedies for infringement: Damages and profits
(a) In General. Except as otherwise provided by this title, an infringer of copyright is liable for either
(1) the copyright owners actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(c) Statutory Damages.
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. ... US code title 17.504 LII / Legal Information Institute

One of those HAVA gizmos are selling for $129.95 and up so with a penalty of $750 to as much as $30,0000.00 the damages could be rather devestating for Monsoon Multimedia, Inc' business plan, each one sold could cost them $621.00; the law is pretty specific about telling the court what the monitary damages are.

Re:Expenses

[aproposofwhat]

Ha!

Nikolai Ivanovich Lobachevsky is his name!

Just the mention of Tom Lehrer put a smile on this otherwise miserable Wednesday - thanks :-)

Re:Expenses

[cheater512]

GPL == Public Domain? ROFL. Get a clue please.

Re:Expenses

[Plutonite]

He has a 3 character nickname and a 6 digit ID. Maybe if he had a 3 digit ID as well we could, like, take it as divine revelation. But today doubt will triumph.

Re:Expenses

[rbanffy]

There's zero precedent for awarding profits to an author who made a willing and intentional donation to the public domain, of their own free will, with the express idea that anyone can take their work and do virtually anything they want with it.

This is Slashdot. You can't expect not to be called stupid when uttering such stupidity. Wish I had modpoints left.

Re:Expenses

[tomhudson]

I don't think you can get statutory damages unless you previously registered the copyright; if you didn't. you can only get proven damages. In this case, $0.00.

And what's so wrong about bringing someone into compliance publicly? It helps deter others.

Re:Expenses

[bberens]

I would say that it's pretty clear that the market value for that code is whatever this company who violated the GPL was able to make off it. Worst case scenario, what would a license for the 'comparable' Windows OS cost? That might also be a reasonable consideration.

Re:Expenses

[TheRaven64]

today is my birthday also. Wildly off-topic, but it's also OpenSSH's birthday. The project is 8 today.

Re:Expenses

[Black Copter Control]

an award of statutory damages for all infringements involved in the action, with respect to any one work, What I read here is that the BusyBox onwers would be entitled to a singular sum of up to $150K

The RIAA comes to their claims of millions of dollars because it's

$30K * 100 song titles == $30M

(each song title is a work, unless you consider all works available on the 'net to be one, big,compilation).

Where some schmuck makes 3 songs available that are downloaded by 1000 people, each and the RIAA claims

3 * 1000 * $30K = $90M

, I'd say that they're just blowing hot air.

Re:Expenses

[budgenator]

IANAL but the law talks about actual and statutory damages being at the copyright owner's choise and statutory damages are 750 - 30,000 and if the infringement is willful the damages go to 200 - 150,000.00, I've heard that registration in regards to willful before, but with a copyright notice in every file of source it would be difficult to say sorry I didn't see it.

Re:Expenses

[budgenator]

I'll tell you what, why wouldn't each box that contains the infringing code be an infringement, to so me it is.

Re:Expenses

[Kalriath]

The GPL software Microsoft releases has its source code happily supplied on ftp.microsoft.com

Re:Expenses

[tomhudson]

I checked, and my memory is correct - there is NO award of statutory damages if copyright isn't registered.

http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000412----000-.html

TITLE 17 > CHAPTER 4 > 412

412. Registration as prerequisite to certain remedies for infringement

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A (a), an action for infringement of the copyright of a work that has been preregistered under section 408 (f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411 (b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for--

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

So, unless it was first published less than 3 months ago and they now go running to the copyright office to register, or they originally registered it within 3 months of publishing, they can forget statutory damages ...

My bet is they never registered the copyright within the deadlines.

Re:Expenses

[shentino]

Not quite.

Each downstream release of a GPL product is itself a derived work.

Even if Microsoft were to get proprietary license for one release, any copies that had already been released by said author to others up to that point are still GPL, because of the "automatic downstream license" clause.

Besides, nothing microsoft does can affect any "upstream" GPL stuff, owing to a lack of privity of contract. For that to work, microsoft would need to get an exclusive license from EVERY author who worked on it upstream, including the original author, who could, quite reasonably, be a thousand steps up.

Not to mention that the "third party licensing" of sources would practically cause a quantum explosion of preexisting licensees each with GPL rights to what they received...who would later be copyright holders themselves if they modified and distributed GPL style.

Damages?

[RockMFR]

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.

Re:Damages?

[tm2b]

From prior discussions on /. I believe that's the case, but I think that registration can happen after the violation. A court will just tell the plaintiff to go register and come back and file again.

Re:Damages?

[Anonymous Coward]

What makes you think it hasn't been registered? It's a high profile project and there is a long list of violators. I would think if this is a requirement they probably had been advised to do this some time ago.

Re:Damages?

[yourexhalekiss]

From prior discussions on /. I believe that's the case I can't wait for the day when I log on and find Slashdot citing legal precedent derived from cases instead of earlier Slashdot posts. /can't wait to finish law school.

Re:Damages?

[tepples]

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? As far as I can tell, it's standard procedure for the owner to register a copyright (about 50 USD) at the same time you send the cease and desist letter, if the owner hasn't already registered it. The owner can still recover statutory damages for those repeated infringements (i.e. more copies sold) that occur after the registration.

Re:Damages?

[QuantumG]

Compensatory damages for open source projects is pretty easy to show. Just look at the prices open source companies charge for "commercial licenses". The claim can be made that by using the work without following the terms of the GPL the infringer is depriving the developers of similar revenues.

Re:Damages?

[hedwards]

It is correct information. As soon as a person in the US creates a copyrightable work, it is immediately copyright to that person. The exception being if it is a work for hire. The issue of who has the copyright is set permanently at that moment.

The registration of a copyright is not required for a work to be copyright, it just has to be registered prior to filing suit. Doing so early on is a good idea as it makes it easier to defend in court, but it is definitely not compulsory to do so.

http://www.copyright.gov/circs/circ1.html#hsc Has plenty of relevant information. As well as:
http://www.copyright.gov/circs/circ1.html#cr

Re:Damages?

[sumdumass]

A problem to this approach might be that not all project offer commercial licenses.

You could place a value on the code coming back out from changes but you might want to be careful there with all the tax the Internet talk we see every so often. It would really suck if multiple countries found that the contributions back were worth billions of dollars and taxed each contributer or copyright holder accordingly. They already do this to some extent with the Amish barter systems in america where they trade a livestock animal for a roof or something and neither party shows the gain as income. And if I remember right, there was a brief stand off over it in the 90's where someone writing a check for a chicken and two pigs in protest of the IRS claiming that bartering was income to some degree. Well, it was something along those lines. And no, it wasn't a bad check to purchase animals, the animals were in the "pay this amount" portion of the check. Of course when someone attempted to cash it, the guy failed to deposit the animals with the bank so they came after him for bounced checks and wire fraud or something like that. I think it was in Idaho sometime after the ruby ridge ordeal.

Re:Damages?

[QuantumG]

And this one time, at band camp, we argued about copyright and taxes and it was so cool.

Re:Damages?

[Anonymous Coward]

A court will just tell the plaintiff to go register and come back and file again.

No they won't. Unless your case is dismissed without prejudice you can't refile. If for example you win and it gets to the awards stage you absolutely cannot refile. And for a judge to tell a plaintiff before the case begins "there are problems X, Y, and Z with your filing" would result in the judge being censured. It's the plaintiff's attorney's job to make sure that all the Is are dotted and Ts crossed.

Re:Damages?

[mrchaotica]

The problem with most projects like this is that 1) they don't register with the copyright office...

How would a software project, which gets modified extremely frequently, accomplish that anyway? Wouldn't you have to continually re-register after every CVS commit, as every new version is a new derivative work of the old?

Re:Damages?

[budgenator]

I think what is confusing everyone is that registration with the copyright office almost automaticaly make infringement willfull and kicks the maximum statutory daamage from $30,000.00 to $150,000.00; however with a GPL'ed software being modified that has a copyright notice in every file of source, it seems pretty hard to say "Sorry we infinged by mistake" to the court; of course IANAL.

Re:Damages?

[budgenator]

There are no punitive damages in copyright, there are actual and statutory whaer statutory may be for increased for willfull infringement. Statutory damages start at $750.00 to $30,000.00, willfull is $200.00 through $150,000.00; the copyright owner has the option of asking for actual or statutory damages.

Re:Damages?

[Tim C]

It would really suck if multiple countries found that the contributions back were worth billions of dollars and taxed each contributer or copyright holder accordingly.

How would they tax the contributor? I don't get taxed because I work, I get taxed on my earnings. I could do exactly the same job for free and not be taxed a penny. Even if the contributions themselves were found to have taxable value, the contributor is not the one gaining that value, they are producing it.

Re:Damages?

[Dachannien]

You would only need to file for the versions that were being infringed.

Re:Damages?

[sumdumass]

Once your a contributer, you end up being a copyright holder or part owner of the code. Your ownership of this code seeing the improvements would mean that you were seeing a gain from someone else's contributions.

That is unless you sign everything over to the project you are contributing to. Don't think of it just as if you are working. But think of it as if you have become part owner of the code/product and people are paying you (in their contributions) for the product (the rights to use the code as expressed in the GPL).

But this all hinge on the idea that You can use X if your give X+Y back as being a barter system and that receiving Y would be payment. So this is all just a "what if" of sorts

Re:Damages?

[DragonWriter]

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 requirement is actually broader than just punitive damages; in general, the only action for violation of copyright that can occur without registration is an action by the original author of a visual work (whether or not the copyright holder) to address false claims or imputations of authorship or distortion of the work that would harm the reputation of the author or destruction of a work of "recognized stature". See 17 U.S.C. Section 411(a), 17 U.S.C. Section 106A(a).

But note that registration is prerequisite for other legal actions, it does not have to occur before the alleged violation on which those legal actions are based, just before a suit is filed.

Re:Damages?

[TheRaven64]

I think you have it the wrong way around. I write Free Software. Someone else who adds value to it keeps their own copyright; I do not have any capital gains because I just have a non-exclusive right to use their changes under the terms of their license (which is offered for free to everyone, and thus has no capital value), I do not own them.

The situation is somewhat different for something like the GNU project, which requires copyright assignment. Every line of code I write for a GNU project is owned by the FSF (who then give me a non-exclusive license to use it with no conditions, and everyone else a non-exclusive license to use it under a certain set of conditions). The FSF have gained code which has value, and so could (in principle) be required to pay tax on it. However, in exchange for writing an arbitrary amount of code, the FSF pay me a dollar (actually, they haven't, and they made me pay postage on the copyright assignment form. Cheap bastards). They could therefore argue that the value of the code is $1, and pay almost nothing in tax.

Re:Damages?

[sumdumass]

OK for one, at least in America, You don't need to own something to have received a gain from it. The idea of the gain is that you can now do more or act as if you have more which is true in the case of free software and the GPL. There is a part that says the license demands payment by perpetuating the license used in order for you to continue using it. So with or without a copyright on the new parts, you have gained to some degree.

Look at it this way, If I let you drive MY car under the condition that you fix the roof on my house, The use of the car happens to be the payment for fixing the house. If a government was to attempt to record and tax that transaction, the use of the car would likely be income to who fixed your house and getting your house fixed would be payment to me. This is how they look at bartering. In the 90's that claimed it was tax fraud to barter for goods and services in order to avoid taxes.

Now, lets fast forward to GPLed software. In the eyes of the Government, you would have had both a payment and a gain without a transfer of copyright. You have something offered under the condition that a certain license that allows you to use any improvements down the road are usable to you, is used. You have someone who takes that "free" code and follows the terms of the license when they distribute which pays you for th code.

Now again, This is just "what if"s. I don't think anyone is seriously thinking about taxing it. Well, until they assess a high dollar amount to the process in a court hoping for a big judgment and the IRS finds it might be worth something.

Re:Damages?

[tm2b]

It's completely legitimate to say, "we've talked about this here before and this was the upshot."

While you're spending so much time at law school, you might also want to investigate the concept of argumentum ad hominem.

Uh Oh... there in trouble

[renegadesx]

Looks like things are starting to get interesting. There goes my conspirecy theory about it being a publicity stund, then again it still could be and backfired.

Have Monsoon tried saying "pretty please" yet?

This is something to keep an eye on.

Re:Uh Oh... there in trouble

[RightSaidFred99]

I think they should take it to court. There's a good chance the results may not be pleasant to all the obsessive FOSS nutjobs. I _especially_ hope they try to take MS to court over the Novell thing sometime in the near future, that out to be hilariously amusing.

Re:Uh Oh... there in trouble

[HotNeedleOfInquiry]

Just like the battle over 2nd ammendment gun control rights. The debate has gone on for about 40 years with both sides posturing and neither seeing a definitive supreme court decision. I think they both secretly like it that way. Both sides had 40 years of screeming to their constituents for more money to fight the other side.

it's about time

[yourexhalekiss]

I really do think that it's about time for the GPL to be given an actual trial. I realize that it's probably in Monsoon's best interests to settle out of court, but I don't think that the SFLC should do that.

Some things in life are worth more than money: court victories for free software licenses are one of those things, I believe.

Re:it's about time

[teh moges]

I might of slightly missed the tone of your post, but I believe it is always best for both parties to settle out of court, assuming that an agreement can be reached. The SLFC should ask for a damages payout to settle out of court. If they don't agree, then take it to court. Court should be a last option under any circumstance, not a benchmark or requirement.

Forcing a company to settle for damages out of court can be almost as worthy as winning an intense court battle, but happens settlements are a lot quicker.

Oh yeah

[dedazo]

Stick it to 'em. Make them pay for copyright violations and "loss of revenue".

Re:Oh yeah

[renegadesx]

2 Donuts per day should do it. mmmmmm donuts

Re:Oh yeah

[Anonymous Coward]

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.

Re:Oh yeah

[BiggerIsBetter]

Stick it to 'em. Make them pay for copyright violations and "loss of revenue". How about fining them for the costs of developing, testing, and maintaining the software themselves?

Re:Oh yeah

[PCM2]

Stick it to 'em. Make them pay for copyright violations and "loss of revenue".

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.

Re:Oh yeah

[speaker of the truth]

They would have done that even without Monsoon's infringement. So Monsoon hasn't incurred any additional costs for SFLC. The only punishment can be punitive, how much does the law allow for that?

Re:Oh yeah

[sumdumass]

I don't think you have to actually register it, rather it is very much more difficult to win statutory damages without having already registered it.

It may be that it is so difficult to win without registering, it has become a defacto standard. I don't know. But I or anyone for that matter could just claim that the original versions they found on the Net had a BSD license and they were shocked to discover that it was GPLed instead. They could claim their lack of compliance with the terms of the GPL was because they were investigating the licensing issues or that they didn't know what people where talking about because they never agreed to a GPL license in the first place.

They will still lose their defense, Copyright is copyright. But the intent would be completely different in legalese terms and the probability as well as the intensity of damages they have to pay might change too (statutory or not). Ironically, intent has just as much to do with it as the non compliance issues might. It won't erase most of the things you can do wrong, but it can reduce the amount of trouble you could get into.

Re:Oh yeah

[adolf]

IANAL, too, but I was forced spend some quality time with the Ohio statutes governing contracts (alternatively, I did stay at a Holiday Inn Express last night).

If I recall (it's been a couple of years), it was all within the realm of the Uniform Commercial Code, which would mean such statutes exist in most (if not all) states in largely-unmodified form.

In this reading, I learned that all valid contracts have to abide by certain rules (otherwise, they are invalid and null). Chief among these requirements is the concept of reasonable consideration.

A common example of consideration might be residential trash hauling, ie, Waste Management agrees to haul away your detritus on a weekly basis, and in consideration of that act, you agree to pay them when the bill shows up. If you stop paying, the contract ceases to be valid (becomes breached), and soon thereafter they stop hauling your trash.

This would give them the ability to attempt to recover any consideration ("revenue") that you owe, as due for services rendered between the time you received the bill and the time that it became past-due.

It is a very simple, obvious, and boring concept, but it's an important one.

With the GNU GPL, it would seem to apply as such: You give someone software which is licensed under the GPL. The consideration for this generous act is as such: If they'd like to re-distribute the software, they have to do so terms of the GPL. So, they'd required to make the source available, and to include the text of the GPL, and a few other reasonable things that we're all familiar with.

The trouble in this particular case with Monsoon is that there's not any monetary consideration involved in the contract. So what if they decide to close up the GPL'd software and sell it as their own? I mean, sure, the contract is nullified, and they're therefore guilty of copyright violation. But nobody has lost any money, and therefore none can be recovered.

I mean, how would anyone sue for lost revenue/consideration, when the dollar amount lost is zero? Again, IANAL, but it seems to me that the most one might expect a court to do short of issuing statutory damages is to compel the offending party to honor all past and present GPL requests (due consideration). Which they're apparently already doing voluntarily.

So what good is this particular lawsuit but only to set a proper court-tested precedent for the validity of the GNU GPL?

And additionally, if the contract (the GPL license) between the parties becomes null and void due to this admitted lack of consideration, what right does Monsoon Multimedia have to distribute this code ever again? As far as I can tell, in the absence of any subsequent agreement, they've got no right to do so. In fact, they continue to be in violation of copyright law, because the contract with which they are now attempting to comply no longer exists.

(I welcome clarifications, corrections, and arguments to the contrary.)

Re:Oh yeah

[dedazo]

I'm sure the RIAA can use that argument as well. After all, it takes money to produce records.

Re:Oh yeah

[dedazo]

IANAL, but the way I understand it, lost revenue is often difficult to prove.

As I understand it from reading Slashdot, the "loss of revenue" and "copyright infringement" arguments are essentially bullshit when the *AA uses them. So how is the SFLC (nee the FSF) any different?

When this story broke a few days ago I theorized that they were more than entitled to try to get this company to comply with the license. Maybe even make them donate money to Busybox. Heck, even try to get an injunction to make Monsoon stop selling their device until they came into compliance.

But damages? For copyright infringement and loss of revenue? The irony there is just too good to be true.

Re:Oh yeah

[jhoger]

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.

Re:Oh yeah

[talledega500]

GPL has nothing to do with copyright violation.
You either sue for GPL infringment (which no law supports)
or you sue for copyright infringement.

But you have no legal standing to enforce GPL no matter how many lawyers you throw at it.
Because noone gave the right to GPL licensers to restrict the usage of non-copyrighted material.

And copyrighted material is already covered clearly by existing law with no consideration for GPL.

Cant have it both ways Im afraid!

Good luck!

Re:Oh yeah

[Pofy]

>License != Contract.
>I guess you have consideration. What about
>the offer and acceptance? Do you really have
>an exchange of promises?

However, the term license is often used for cases were there IS a contract or is part of a contract or as part of the naming of the contract and so on. Which of course causes confusion.

Re:Oh yeah

[gnasher719]

With the GNU GPL, it would seem to apply as such: You give someone software which is licensed under the GPL. The consideration for this generous act is as such: If they'd like to re-distribute the software, they have to do so terms of the GPL. So, they'd required to make the source available, and to include the text of the GPL, and a few other reasonable things that we're all familiar with.

Even GPL 2 was written by lawyers. And as it so happens, your argument would be valid in the USA if the GPL was a contract according to US law, but it isn't. It is a license. If you don't follow the terms of the GPL license, then the GPL license doesn't apply. There is no contract, nothing, just a pure copyright infringement.

Interestingly, according to German law the GPL is a contract. If you don't follow the terms of the GPL, then you can claim you never agreed to the contract in which case it is a pure copyright infringement. If you claim you agreed, then German law doesn't have the need for any consideration in the contract, so that argument falls flat. And the contract clearly states that by not following the terms you lose the right to copy, so we are straight back to copyright infringement.

It's similar to a contract that says if you don't pay the rent for three months you are out. If you don't pay for three months, paying later won't help you, because that is what the contract says.

Re:Oh yeah

[ZachPruckowski]

No one disputes that downloading a song without the rights to it is copyright infringement. Noncommercial infringement (listening to a pirated song, etc.) is (or should be) different from commercial infringement. One person downloading songs to check them out is one thing, and using code illegally in a product you charge top dollar for is another. Arguing that one song is worth $3000 or so is crazy, but saying that illegitimately using Busybox in their product is worth money is another.

There's also a correlation argument. The correlation between downloaded MP3s and lost sales is likely pretty low. However, their product needs a Linux toolkit, so they would inevitably have used Busybox or the GNU toolchain.

Re:Oh yeah

[asuffield]

But damages? For copyright infringement and loss of revenue? The irony there is just too good to be true.

While I'm not privy to the details of the SFLC's strategy, they don't really need to ask for damages for that. They just need to ask for damages for the cost to them of having to drag this into court, rather than the offending company just releasing the source in the first place when they were told about their obligations.

That includes court costs (which they'll probably get), legal fees (which they probably won't), and the cost to the SFLC of having to do all this work (could go either way).

Re:Oh yeah

[ajs318]

But you have no legal standing to enforce GPL no matter how many lawyers you throw at it.
Because noone gave the right to GPL licensers to restrict the usage of non-copyrighted material.

GPL-licenced material is copyrighted. Have a dekko at the files in /usr/local/src/ sometime.

And copyrighted material is already covered clearly by existing law with no consideration for GPL.

Of course there is consideration for the GPL. The Law of the Land forbids certain acts in the absence of specific written permission from the copyright holder (and also permits certain acts irrespective of what the copyright holder says). The GPL is exactly such permission.

Re:Oh yeah

[msuarezalvarez]

GPL has nothing to do with copyright violation.
You either sue for GPL infringment (which no law supports)
or you sue for copyright infringement.

Please, inform yourself before commenting on matters you clearly have absolutely no grasp on.

Re:Oh yeah

[mattpalmer1086]

Wrong. GPL has nothing whatsoever to do with "non copyrighted material". It applies to copyrighted material - you seem to be confusing GPL works with public domain material, which is already free for everyone, and needs no license in the first place.

Copyright material is covered by copyright law, as you say. You cannot copy copyright material without permission - i.e. a license - from the copyright owner. The GPL is a license to copy, subject to various restrictions. Without it, copyright law says you can not make copies. Only with the license are you allowed to do this.

Copyright Law (can't make copies of copyrighted material without license) + GPL (a license to make copies of copyrighted material). The GPL is a copyright license, built on top of copyright law.

Geddit?

Re:Oh yeah

[swillden]

As I understand it from reading Slashdot, the "loss of revenue" and "copyright infringement" arguments are essentially bullshit when the *AA uses them. So how is the SFLC (nee the FSF) any different?

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.

Re:Oh yeah

[jedidiah]

There is no irony.

You are trying to compare a swapper to a hardened commercial bootlegger. The latter has always been treated more harshly even by the pirates/crackers themselves. The law did the same until relatively recently when it was changed at the behest of the MPAA and RIAA.

This is not granny with a copy of Kazaa. It's the guy down at the local flea market with counterfeit CDs.

Re:Oh yeah

[TheRaven64]

As I understand it from reading Slashdot, the "loss of revenue" and "copyright infringement" arguments are essentially bullshit when the *AA uses them. So how is the SFLC (nee the FSF) any different? If you download a song/video/whatever, then for there to be a real loss of revenue then the owner would have to show that you would have paid for it otherwise. In this case, the company is making money from a product that uses the code. If they did not distribute the code, then their product would not work, and they would make no money. In the first case, if the user were not able to download the song, then there is no evidence that they would do anything other than go without. In the second, the company's product would not exist if they did not distribute the code, so they would have to spend real money developing an alternative, or forgo their own profit.

Re:Oh yeah

[hawk]

>However, their product needs a Linux toolkit, so they would
>inevitably have used Busybox or the GNU toolchain.

Hardly inevitable. If they had thought things out, and were concerned about the GPL, a stripped down BSD would be their answer.

now that I think of it, the aftermath of this is likely to include more emmbedded BSD.

hawk

Re:Oh yeah

[hawk]

I am a lawyer, but this isn't legal advice. If you need legal advice, find a lawyer in your jurisdiction and hire him.

Registration is a pre-condition for litigation. Furthermore, registration prior to violation is a pre-condition for statutory damages.

hawk, esq.

Re:Oh yeah

[hawk]

IAAL, but this is not legal advice.

The UCC (Uniform Commercial Code)applies only to goods, not to contracts in general.

I'm not going to enter the license/contract spat, but I'll point out that copyright law is federal, while license and contract law are state law (but federal copyright law will preempt part of them). Also, contract law principles would still be used to *interpret* a written license that for whatever reason was not a contract.

hawk, esq.

Re:Oh yeah

[Anonymous Coward]

> Even GPL 2 was written by lawyers. And as it so happens, your
> argument would be valid in the USA if the GPL was a contract
> according to US law, but it isn't.

http://www.oreilly.com/openbook/freedom/ch09.html
(The GNU General Public License)

------
Mark Fischer, a Boston attorney specializing in intellectual-property
law, recalls discussing the license with Stallman during this period.
"Richard had very strong views about how it should work," Fischer says,
"He had two principles. The first was to make the software absolutely
as open as possible. The second was to encourage others to adopt the
same licensing practices."

Encouraging others to adopt the same licensing practices meant closing
off the escape hatch that had allowed privately owned versions of
Emacs to emerge. To close that escape hatch, Stallman and his free
software colleagues came up with a solution: users would be free to
modify GNU Emacs just so long as they published their modifications. In
addition, the resulting "derivative" works would also have carry the
same GNU Emacs License.

The revolutionary nature of this final condition would take a while to
sink in. At the time, Fischer says, he simply viewed the GNU Emacs
License as a simple contract. It put a price tag on GNU Emacs' use.
Instead of money, Stallman was charging users access to their own
later modifications. That said, Fischer does remember the contract
terms as unique.
------

But we all know that the GPL is not a contract according to FSF and SFLC. :-)

------
One of biggest myths concerning the GPL was founded by the Free Software
Foundation's insistence that the "GPL is a license not a contract" or
it's a "conditional license". Perhaps they are confused concerning the
difference between a copyright license' "permitted scope of use
restriction" and a contractual covenant but all copyright license are
drafted as contracts.

The Supreme Court in referring to patents, opined in 1927:
"No formal granting of a license is necessary in order to give it
effect. Any language used by the owner of the patent or any conduct on
his part exhibited to another, from which that other may properly infer
that the owner consents to his use of the patent in making or using it,
or selling it, upon which the other acts, constitutes a license, and a
defense to an action for a tort. Whether this constitutes a gratuitous
license, or one for a reasonable compensation, must, of course, depend
upon the circumstances; but the relation between the parties thereafter
in respect of any suit brought must be held to be contractual, and not
an unlawful invasion of the rights of the owner."; DE FOREST RADIO TEL.
& TEL. CO. v. UNITED STATES, 273 U.S. 236 (1927)

This principle was held to apply to a copyright license by the Ninth
Circuit in 1996 (quoting the Second Circuit):
"Generally, a 'copyright owner who grants a nonexclusive license to use
his copyrighted material waives his right to sue the licensee for
copyright infringement' and can sue only for breach of contract." Id. at
1121 (quoting Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998) (citing
Peer Int'l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1338-39 (9th
Cir. 1990))."; Sun Microsystems, Inc. v. Microsoft Corp.,. 188 F.3d 1115
(9th Cir. 1996)

The Eleventh Circuit is in accord with this principle:
"Implicit in that permission was a promise not to sue for copyright
infringement-a promise that at least one court has found to be the
essence of a nonexclusive license. See In re CFLC, Inc., 89 F.3d 673,
677 (9th Cir.1996) ("[A]nonexclusive patent license is, in essence, "a
mere waiver of the right to sue' the licensee for infringement.")
(quoting De Forest Radio Telephone & Telegraph Co. v. United States, 273
U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed.

Re:Oh yeah

[adolf]

Thanks for your reply, Counselor.

A couple of questions for you:

For what reason might software not be considered goods? Again, IANAL, so I probably see things somewhat simply and might be missing your point entirely, but: If I buy software at the store, I'm obviously buying tangible goods. And if I buy downloadable software online, I'm also buying goods. Now... If I pick up a free yard stick from a salesman at the county fair, I'm not buying anything, but I do receive goods. Am I not also in new possession of new-to-me goods when I download GPL-licensed software for free? If I am, then wouldn't this transaction be covered by the UCC?

Do you think that the similar interpretation of licenses and contracts means that Monsoon Multimedia has lost its license to distribute BusyBox code under the terms of the GNU GPL, by previously violating those same terms?

Re:Oh yeah

[hawk]

>For what reason might software not be considered goods? \

Software isn't tangible. Buying it boxed would be governed by the ucc for most (all?) purposes--but I'm not certain that that would cover the software itself; perhaps just the media.

Intellectual property in general isn't a good.

>Do you think that the similar interpretation of licenses and contracts means that
>Monsoon Multimedia has lost its license to distribute BusyBox code under the terms of
>the GNU GPL, by previously violating those same terms?

Whether by breaching it as a contract or exceeding the terms of the license, they would be in breach by continuing to distribute. What the remedy would be I'm not certain--I can see solid reasoning behind the contractual limit of remedies that some courts have taken, eliminating copyright claims, but it would take significant research (hours!) to come to an opinion on that.

hawk, esq.

Long run

[Enderandrew]

On principle I agree we should deter people from violating licenses, but which is more detrimental in the long run?

Will this scare pointy-haired-bosses away from OSS if they think touching the GPL may involve a law-suit? For many people, they don't understand the intricacies of software licenses. If Monsoon showed malice, and very much knowingly were trying to screw people, then yes, punish them. However, many people have been slow to release their changes to source code, and instead of scaring everyone off the GPL, I'm generally content to see people continue to use OSS and comply with the license.

Re:Long run

[kebes]

I don't doubt that you're right: PHBs may indeed get scared by "if you use GPL code you could end up in court" worries (or FUD, as the case may be).

But I find that rather amusing. I mean, it's not like the liability or damages would be less if you somehow ('accidentally' ?) shipped proprietary software (binary or source) with your product. In fact, I imagine a proprietary software vendor would be even less forgiving than the FOSS community. It's not like FOSS is demanding greater vigilance than proprietary equivalents: just read the license before you distribute it!

I guess it's hard for some people to understand the concept of free software licensing. They think that if they can see the code (and download it gratis from a web server), then they can do whatever they want with it. Really, it shows that many people who are in the business of making money off of copyright law (and copyright law applied to software in particular) don't pay much attention to how it works.

Re:Long run

[Svartalf]

In reality, it's due to a disconnect from the business people and the people doing the work.

All it takes is one unscrupulous developer- or a batch of abjectly clueless business people to cause one of these messes.
To them it's all by magic and they "own" everything they do. I see it all the time.

If you want, blame the business schools and all for graduating people that haven't been taught a lot of these things
and are taught silly, useless "business optimization" things like Six Sigma that're only really useful for the
largest companies- and that probably only really work because doing some process is better than none at all and
obtains SOME useful results.

Re:Long run

[mrchaotica]

In reality, it's due to a disconnect from the business people and the people doing the work.

I agree, there's a huge lack of basic legal knowledge among non-lawyer workers. For example, just the other day I had to warn my girlfriend, who is an artist working at a computer game company, that the fonts available at all those "free font" websites might not actually be free to use when embedding the code of the font in the game itself (as opposed to using the vector or raster data output from the font "program").

Of course, fonts are an exceptionally complex and screwed-up case -- even more so than "normal" software -- but it's not hard to imagine that most developers and artists would be just as clueless about that kind of thing as she was.

Re:Long run

[Anonymous Coward]

The parent post is quite naive. Do you think if they violate some proprietary license they don't get sued? Do you think if they steal some Microsoft code, they'll do just fine? You don't watch too much news do you?

Sheesh!

Re:Long run

[gnasher719]

I agree, there's a huge lack of basic legal knowledge among non-lawyer workers. For example, just the other day I had to warn my girlfriend, who is an artist working at a computer game company, that the fonts available at all those "free font" websites might not actually be free to use when embedding the code of the font in the game itself (as opposed to using the vector or raster data output from the font "program").

It should be common sense that if you take anything that you haven't created yourself, and add it to a commercial product, you ask a lawyer. Or you ask your manager, who will take responsibility (and ask a lawyer).

It is not only various problems specifically with fonts, it is just the problem that you don't know where these "free" fonts come from. If you don't have a piece of paper from the author that declares the font is in the public domain or gives you a license, you can't use them. If some kiddie has a collection of stolen commercial fonts and puts them on his "free fonts" webpage, you are fully responsible if you use them.

Kind of a stupid strategy...

[tjstork]

You really -don't- want to take a case to court, becuase, once in court, anything can happen. A judge can do whatever he or she wants, and those who want judges to really decide issues like this, would do well to imagine the consequences.

Let's assume that the GPL people win an initial round and the defendants takes it all the way up to the US Supreme Court on various appeals, countersuits, etc.

The question has to be asked : Does an admittedly left leaning GPL really want to ultimately be decided by the likes of Clarence Thomas? It seems to me that the GPL runs the risk of being arbitrarily declared so much commie crap by the SCOTUS, undermining the entire movement. A judge could make up anything, a Supreme Court, even more so, and they could declare the GPL to be in violation of anti-trust, unconstitutional because it is non-commercial, and any number of things. Once the Supreme Court rules, only Congress can effect the law at that point, by instructing the court, and the odds of anybody in the OSS movement having the clout to lobby congress, regardless of political party, seem to be about zero.

Re:Kind of a stupid strategy...

[skeeto]

unconstitutional because it is non-commercial

In what way could the GPL possibly be considered non-commercial?

Re:Kind of a stupid strategy...

[Svartalf]

It isn't that- people keep coming up with that because you don't precisely have to pay anything for it.

What they don't further understand is that it's not covered BY the UCC at all, even if it was for pay.
It's covered under Copyright law- it's a reproduction and derivative works license grant, which confuses
the HELL out of anyone unfamiliar with producing Protected Work(s) or protecting them. They're used to
EULAs and the lot. They're not used to the types of license grants that authors give publishers, etc.
because they're not normally exposed to anything of the sort unless they're in that space, either as
an artist, OSS developer, inventor, or a Copyright/Patent/Trademark attorney.

Being that it's solidly established as part of Copyright (even GPL v. 3) Law, there's NOTHING unconstitutional
about it- and if there is, all the RIAA and MPAA people, as well as all the magazine and book publishers
have got a LOT more problems on their horizon beyond "pirates" >;-)

Re:Kind of a stupid strategy...

[Anonymous Coward]

If the court system is as heavily politicized as you speculate, then having a software license thrown out would seem to be the least of our worries.

Re:Kind of a stupid strategy...

[JoelKatz]

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."

Re:Kind of a stupid strategy...

[Svartalf]

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

How could one read that one?

You don't waive the right to sue for Copyright infringement with the acceptance of the terms.

You get the right to distribute the Protected Work(s) and make Derivative Protected Work(s) (Also covered by the same license)
as long as you abide by the terms- which is you give access to the source code to the original and any derivative work to any
recipient of the code in source or binary form that you give it to. The bulk of the GPL license is the boilerplate for establishing
the aforementioned grant of rights and establishing what is considered to be a breach of the agreement and what happens if that
breach occurs. Given that there is no waiving of ANYTHING stated or implied in the verbiage, there is none. Just because
there is no remuneration present in the form of monetary exchange does NOT make it a waiving of rights or anything else.

Re:Kind of a stupid strategy...

[greenguy]

I'm calling you out.

You say "Does an admittedly left leaning GPL..." I want to know who "admit[ted]" that the GPL is "left leaning," and when. Don't cite me RMS's opinions on other matters, or the lifestyle of FLOSS users, or any other ad hominem red herrings. Tell me, specifically, whose admission you are referring to.

Otherwise, I will file you (and any further arguments you may wish to make) next to people who misuse the word "literally," cannot distinguish between "to" and "too," and believe that quotation marks are used to add emphasis.

The rest of you: forgive my grammar Nazi-esque rant, but I'm doing my best to forestall the day on which, as Hobbes the tiger said, language becomes a complete impediment to understanding.

Re:Kind of a stupid strategy...

[tjstork]

In what way could the GPL possibly be considered non-commercial?

The point is, a Supreme Court Judge can make up whatever law they want to, if they want to.

Re:Kind of a stupid strategy...

[JoelKatz]

It is a general principle of law that if one offers a license, one waives the right to sue for copyright infringement in exchange for the right to sue for breach of contract. See, for example, Sun v. Microsoft, Jacobsen v. Katzer, and Tansini v. New York Times.

"Generally, a 'copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract. If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement."

The scope of the license is a matter of copyright law and is only informed by the terms of the license, not determined by them.

"You get the right to distribute the Protected Work(s) and make Derivative Protected Work(s) (Also covered by the same license) as long as you abide by the terms- which is you give access to the source code to the original and any derivative work to any recipient of the code in source or binary form that you give it to. The bulk of the GPL license is the boilerplate for establishing the forementioned grant of rights and establishing what is considered to be a breach of the agreement and what happens if that breach occurs. Given that there is no waiving of ANYTHING stated or implied in the verbiage, there is none. Just because there is no remuneration present in the form of monetary exchange does NOT make it a waiving of rights or anything else."

This may seem right, but from a legal standpoint, it makes no sense. If there's no waiver of the right to sue for copyright infringement there is no license. Ask yourself this, "if the GPL is not a promise not to sue someone who complies with the license for copyright infringement, what is it?"

If I say "you may make and distribute copies of my book so long as you pay me $10 each", I definitely cannot sue you for copyright infringement if you don't pay me. The right to a $10 payment does not appear in copyright law. The distribution is authorized by the license, only the license is breached, not copyright.

On the other hand, if you make a movie out of my book, I can sue you for copyright infringement. Creation of derivative works is outside the scope of the license, not just a breach of it.

I know, it's complicated and it should be simple. But that's just the way the law is.

Re:Kind of a stupid strategy...

[Anonymous Coward]

But, but... that admittedly Nazi-esque rant was literally to "harsh" too read aloud.

Re:Kind of a stupid strategy...

[Anonymous Coward]

The GPL is basically the Golden Rule. That's pretty simple, isn't it?

Re:Kind of a stupid strategy...

[tjstork]

You say "Does an admittedly left leaning GPL..." I want to know who "admit[ted]" that the GPL is "left leaning," and when. Don't cite me RMS's opinions on other matters, or the lifestyle of FLOSS users, or any other ad hominem red herrings. Tell me, specifically, whose admission you are referring to.

You know, that is some heap of non-logic you are throwing out there buddy. You would seriously believe that a person's body of thought is somehow isolated from a major portion of his work. That's absurd.

RMS's political philosophy is socialist, in that, he argues that the needs of the consumers so completely outweigh the rights of the producers that the producers of goods have no rights at all. The central thrust of his philosophy is that ownership is bad. That's socialism, and that, by definition, is leftist.

Being a software man, and, by all accounts, a rather intelligent and well thought one, he seeks to stamp his political philosophy into the technology world, before it is too late. To that end, RMS invents the GPL. The GPL is a license based on copyright. But note that he does not believe, per se, in copyright law. He argues, ultimtely, that http://www.gnu.org/philosophy/, that, software should not be "owned" at all, but recognizes that under most western law, that copyright is the means with which to best achieve his end, effectively.

Stallman notes the stock socialist criticism of the soviet union - the communists were bad, and they just wanted it all for themselves. The thing is, a more detailed look at the history of soviet communism would show that many of the communist leaders were really actually rather smart, and genuinely tried to do the right thing, but power corrupts, over time. To some degree, stalin's paranoid period aside, many of the communist constraints on freedom were really, like the GPL gone mad - to protect the workers, we have to have rule, after rule, after rule, to keep it just so. It just doesn't work, and a worse tyranny results. The downfall of any socialist system is that to get the social arrangement you want in even one aspect of it, sooner or later, you have to try to control all of it. It's just the nature of things.

Otherwise, I will file you (and any further arguments you may wish to make) next to people who misuse the word "literally," cannot distinguish between "to" and "too," and believe that quotation marks are used to add emphasis.

Your threat is silly. It's silly that you are offended that I've called the GPL for what it is, an attempt to put a socialist system into software. Note that, I didn't make any moral judgements about it. In all other fields, the "real fields", I think socialism is evil, not because the idea is bad, because, on paper, if it could work, it would have been alright. It's just, its failed everywhere it has been applied. But in software, who knows, maybe it might work. That software can be copied without cost changes things, and its worth it to let things play out, as the experiment of GPL, and following its consequences with non-free software, is really the social experiment of our time, and it should be viewed as a non-catastrophic and above all, peaceful way to study the interactions of radically different ideologies as they compete and coexist. Who knows, maybe from all of this, some new thoughts about a radically new economic system might arise from this interaction, that gives us the benefits of capitalism but that addresses the social concerns that socialism wants to, but can't.

If you claim to have an open mind, the first thing to do is call things what they are, not call them what you want people to believe them to be.

Re:Kind of a stupid strategy...

[tjstork]

It isn't that- people keep coming up with that because you don't precisely have to pay anything for it

No, my argument was more rhetorical. In America, the Supreme Court can do whatever it wants. Scalia rails on about Roe V Wade not being "constitutional" and then goes and does legal somersaults when it suits him. Justices don't have to make anything "logical". All they have to do is invent a set of tests for which their ruling applies, and then, say, in that case, here is the law. It can be as schizophrenic as they want.

So, if you put the GPL in front of the SCOTUS, you could get some arse of a Judge looking at it, decide that it wasn't inline with their philosophy, and then just invent some sort of ruling just to scupper the whole thing. The interesting thing is that RMS has actually thought of the ultimate experiment in the GPL: If one is against socialism, one is in favor of private ownership, but does a private owner have the right to compel his users to share to grant a license? Either way, RMS wins, as, some limit is placed on private ownership. I'm suprised more people on slashdot, so obsessed with the "cause", haven't really gleaned yet just how big this really is.

The GPL is THE socialogical question of our time. Even if I disagree with a lot of his ideas, the importance of what he has done cannot be underestimated. He's up there with Adam Smith, Karl Marx, Jefferson, etc, in terms of doing something new.

Re:Kind of a stupid strategy...

[greenguy]

You know, that is some heap of non-logic you are throwing out there buddy. You would seriously believe that a person's body of thought is somehow isolated from a major portion of his work. That's absurd.

I asked for a specific admission. You have not cited one. If you want to say there are overtones, leanings, implications, that's fine. "Admitedly," as used, is a pejorative, and as such, is open to challenge.

But note that he does not believe, per se, in copyright law.

On the contrary, the GPL is specifically and explicitly couched in the contemporary understanding of copyright. It expressly allows for a carefully-defined set of exemptions thereto. Or have you not noticed that Slashdotters are salivating for someone to challenge the GPL in court?

Stallman notes the stock socialist criticism of the soviet union

See aforementioned mention of red herrings. This one goes by the name of "guilt by association." Perhaps there are others who would be interested in pursuing you down this rabbit hole.

I've called the GPL for what it is, an attempt to put a socialist system into software.

If by "socialist," you mean prioritizing consumer needs over provider needs, you could make a case for this, but you haven't convinced me of this. Given your follow-up, I perceive that you have neglected to reflect on the way market forces have responded positively to GPL'd software. You do allow that software could be an isolated exception, but this contradicts your citing the Soviet Union, etc. In other words, you're muddling state socialism with RMS's philosophy, which I would describe as libertarian socialism, or market socialism. In still other words, the standard vision of socialism as a governmental project should not, and cannot, be conflated free software, which has made inroads into the market without, or even in spite of, the government.

Re:Kind of a stupid strategy...

[ealar dlanvuli]

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.

The film is also a breach of my copyright, as a film is a derivative work.

Sean

Re:Kind of a stupid strategy...

[JoelKatz]

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.

The film is also a breach of my copyright, as a film is a derivative work.

No, it's not. The contract granted the right to make the movie. Copyright law does not include any right to $1 million, that's coming from contract law.

If the gist of your copyright claim is that the person violated the terms of the license, rather than that he did something reserved under copyright law, then you cannot sue for copyright infringement but you must sue for breach of the license.

From Jacobsen v. Katzer:

Plaintiff's copyrighted decoder definition files are subject to an open source software license that permits potential licensees, members of the public who have access to the files on the internet, to make copies, distribute and create derivative works from the software[.] ... The nonexclusive license is subject to various conditions, including the licensee's proper attribution of the source of the subject files. However, implicit in a nonexclusive license is the promise not to sue for copyright infringement. ... Defendants' alleged violation of the conditions of the license may have
constituted a breach of the nonexclusive license, but does not create liability for copyright infringement where it would not otherwise exist.

In other words, failure to comply with the terms of a license cannot turn something that would not otherwise by a copyright violation (due to the grant of a license) into a copyright violation. Only if there was no license grant at all for the rights involved.

Re:Kind of a stupid strategy...

[ealar dlanvuli]

Lame, and a good reason to include an invalidation clause in future contracts I sign :(.

Sean

Re:Kind of a stupid strategy...

[pipatron]

Yes.

Scary, isn't it?

Re:Kind of a stupid strategy...

[trifish]

"if the GPL is not a promise not to sue someone who complies with the license for copyright infringement, what is it?"

Yes, it is an implied promise not sue for copyright infringement but only under certain conditions (set forth in the license). If the conditions are not met, the promise does not exist and you have no rights under the license (yes, the GPL states that your rights under the license are terminated if you use the work outside the scope of the license). As you have no rights under the license, you can infringe copyright in the covered work.

If I say "you may make and distribute copies of my book so long as you pay me $10 each", I definitely cannot sue you for copyright infringement if you don't pay me. The right to a $10 payment does not appear in copyright law. The distribution is authorized by the license, only the license is breached, not copyright.

That's true, but isn't there a difference between an agreement (contract) and a license? The license is invalid if its conditions are not met. Hence, without a license it is copyright infringement.

PS - By the way, your posts are close to legal advice. You should disclose whether you are a lawyer. (I am not one.)

Re:Kind of a stupid strategy...

[trifish]

From Jacobsen v. Katzer:

You're using that as a precedent, but that does not come from an appelate court. The district judge can be wrong.

Anyhow, unlike the GPL, the license in question did not include a provision stating that your rights are terminated if you use the covered work in any way not expressly provided in the license. So, it should not apply to the GPL even if an appelate court confirms the conclusions of the district court.

Re:Kind of a stupid strategy...

[budgenator]

On /. I fall politically on the "right-wing nutjob" side of the isle, but the only problem I have with the "pinko commie" stuff is that it is usually forced on you. The GPL is voluntary, I know when it kicks in, I know what it's costs are and I can easily figure out what it's expenses are, there are no surprises. What the people here are usually confusd about, is thinking the "Corporate Fuedalists" (yeah I made that up pretty cool term) are capitalists or conservative.

Re:Kind of a stupid strategy...

[dondelelcaro]

he argues that the needs of the consumers so completely outweigh the rights of the producers that the producers of goods have no rights at all. The central thrust of his philosophy is that ownership is bad.

The central thrust of the Free Software philosophy in general is that the inability to modify and share software and hardware is bad. To avoid this, instead of exchanging money for software, we exchange the promise of continued ability to modify for software. While it may seem like socialism to someone not familiar to zero-cost goods because of the lack of money exchanged per-copy, the renumeration that classical capitalists would recognize is still there, though in a different form.

Furthermore, there appears to be a misconception that producers somehow lose their rights when they license their works under FOSS terms. The rights of producers and their maintenance is the very thing that enables FOSS to work, and the very thing that the GNU GPL and the SFLC seeks to protect. Without those rights the GNU GPL would be little more than the MIT license, and copyleft would not exist.

Re:Kind of a stupid strategy...

[El Tonerino]

Remind me what the G in GPL stands for, please?

Re:Kind of a stupid strategy...

[tjstork]

On /. I fall politically on the "right-wing nutjob" side of the isle,

That's where I'm at, and I feel the same way about the GPL as you do. I like GPL stuff, and, heck, I like open software and the open software culture. Saying that the GPL has some pinko commie aspect of it isn't condemning it, its just calling it what it is, and, the thing is, and, unlike pinko commmie stuff in the real world, it actually does seem to work on a real level.

One wonders though, if the GPL Sputnik will ultimately be answered by some closed source Apollo, somewhere down the road, but, that they got X-Windows working with 3d graphics card and pretty well seems to say, hmmm, maybe not.

Re:Kind of a stupid strategy...

[Anonymous Coward]

"If I say "you may make and distribute copies of my book so long as you pay me $10 each", I definitely cannot sue you for copyright infringement if you don't pay me. The right to a $10 payment does not appear in copyright law. The distribution is authorized by the license, only the license is breached, not copyright."

    So if I take your book, add a chapter and sell it for $50, you can't sue me for copyright infringement because all I have to do is pay you the $10 for your book?

Re:Kind of a stupid strategy...

[JoelKatz]

"So if I take your book, add a chapter and sell it for $50, you can't sue me for copyright infringement because all I have to do is pay you the $10 for your book?"

No. In that case, I could sue you for copyright infringement. The right to create a derivative work is a right recognized under copyright law and one not licensed. So your use would exceed the scope of the license under copyright law.

The license doesn't have to say you can't add a chapter because the right to create derivative works is already reserved to me under copyright law. But it does have to say that you must pay me, because there is no right to get paid under copyright law. So adding a chapter is a breach of copyright, not paying me is a breach of contract.

It may, however, be possible to write the contract such that payment is a condition precedent to a grant of license. If that is possible, that would make your distribution with failure to pay a breach of copyright. There are a few cases that say you can't do this, but none of them were well argued or taken to the Federal Appellate level.

The cases I cite, however, stand for the position that you simply cannot create a new right under copyright by adding conditions to a license grant. You cannot 'manufacture' a right to attribution such that distribution with failure to attribute is a breach of copyright simply because these are not rights that exist under copyright law. Breach of the conditions of a license cannot turn something into a breach of copyright law.

Re:Kind of a stupid strategy...

[tjstork]

I asked for a specific admission. You have not cited one. If you want to say there are overtones, leanings, implications, that's fine. "Admitedly," as used, is a pejorative, and as such, is open to challenge.

I gave you a specific admission. It's all there when you read RMS's writings. You choose to ignore. In any case, your entire argument is a red herring anyway. You are likely a GPL zealot trying to avoid it being called socialist, because, you are afraid that this will somehow hurt the GPL.

In other words, the central thrust of my arguments are correct, Stallman is a leftist, and frankly, so are many supporters of Linux. What's the big crime in coming out? Why do you have to be so afraid of your ideas that you want to lie about them by throwing up insignificant details designed to distort reality?

See aforementioned mention of red herrings. This one goes by the name of "guilt by association." Perhaps there are others who would be interested in pursuing you down this rabbit hole.

Nope. This would be more called proof of motive. You know, OJ didn't like Nicole's new boyfriend, so it is reasonable to think that he stabbed him and her to death.

Given your follow-up, I perceive that you have neglected to reflect on the way market forces have responded positively to GPL'd software. You do allow that software could be an isolated exception, but this contradicts your citing the Soviet Union, etc. In other words, you're muddling state socialism with RMS's philosophy, which I would describe as libertarian socialism, or market socialism. In still other words, the standard vision of socialism as a governmental project should not, and cannot, be conflated free software, which has made inroads into the market without, or even in spite of, the government

Well now, that's just filled with factual distortions. The government is very responsible for free software, in case you haven't noticed. You couldn't have the GPL without copyright law, clearly, otherwise, everything would just be public domain. But more directly, have you noticed just how much the German government supports KDE, and, all of those students that work on Linux in some way, jeez, do you think they get their tuition by baking cookies? In one way or another, they are getting either student loans or scholarships or some form of state subsidy. Indeed, Stallman's MIT gets a giant amount of its money as basically the -uber- think tank for the Department of Defense.

Re:Kind of a stupid strategy...

[mysticgoat]

I guess it's time to feed the troll.

While I really do not want to reply to author of parent post, there is a misconception in that post that needs to be corrected for the benefit of 3rd party readers.

So, Troll, please don't bother to read any further: you have staked out a position that I respect as historically sound. I'm not going to attack it, and so long as you stay in that place where reality maybe used to be, we can go our separate ways.

For everyone else, reality has shifted in the last decade or two...

...I've called the GPL for what it is, an attempt to put a socialist system into software.

Actually, no, that isn't even close. The GPL in particular, and the FOSS movement in general, are ways to frame a gift economy in terms of current law. A gift economy is no more socialist than it is capitalist: it is a distinct method building and distributing wealth that is unlike either of those European Age of Industry conceptualizations.

Capitalism and socialism both focus on dividing up the pie of existing wealth. A gift economy focuses on making the pie bigger. It is "I freely give my labor to dig this much more of the village's irrigation ditch", "we recognize and celebrate your contribution", and everyone benefits from the new wealth of corn, beans, and squash that the fields then produce.

Except that with software, the incremental increases in wealth of a traditional gift economy takes a strange turning and becomes a geometric or exponential function. There is no marginal cost associated with duplicating software. It is as if I could dig ten feet of new irrigation ditch to better my own garden plot, and I could then magically duplicate that new ditch for all my other villagers, just by uttering the right magic words. If those magic words were like the GPL, so long as they agreed to work the same magic if and when they added a bit more ditching for their gardens, any of them could take advantage of my work, and my magic. When they, too, do a little digging, it directly benefits me through the same magic-- and I don't have to lift a finger to get that bonus. We all eat better, and have more celebrational feasts.

Software is direct wealth, independent of money. The success of FOSS demonstrates that. It demonstrates that in the current post industrial age, lots of people who may not have a great deal of money are now able to live a life that is wealthier than that of the rich men and women of their grandparents' age.

Capitalism and socialism are both relics of the industrial age that are being outmoded by societies that are increasingly relying on information for their wealth. A gift economy is a natural way of maximizing the benefits when there is no cost associated with giving away copies of something that you were going to make anyway.

The pie gets bigger. That is neither capitalist nor socialist: it is something else again. A gift economy can handle it. The concepts of a gift economy are not something we needed to study since we started to use printing presses to make textbooks, but those concepts are things our ancestors were quite familiar with. The gift economy is not a new idea. It is a recycling of a very old way of making life better.

Is this really different from the RIAA or MPAA?

[Anonymous Coward]

Frankly, I'm rather disgusted by this whole ordeal. It strikes me as much akin to the RIAA and MPAA shenanigans.

This really makes using GPL'ed software a liability for any business. It just becomes too risky.

Now, maybe this isn't a bad thing. If GPL'ed softwrae becomes to dangerous to use, there's always an ample supply of BSD- and MIT-licensed software. FreeBSD, for instance, might start getting more of the commercial backing that Linux has gotten.

Re:Is this really different from the RIAA or MPAA?

[AusIV]

This really makes using GPL'ed software a liability for any business. It just becomes too risky.

Using GPL software without complying with the GPL is a liability for any business. As is using any proprietary software without complying with the license that comes with the software.

Now, maybe this isn't a bad thing. If GPL'ed softwrae becomes to dangerous to use, there's always an ample supply of BSD- and MIT-licensed software. FreeBSD, for instance, might start getting more of the commercial backing that Linux has gotten.

But what would compel a company to support FreeBSD when they could just take the code, use it for their own needs, and never make upstream contributions?

Re:Is this really different from the RIAA or MPAA?

[Jeffrey Baker]

If you think distributing GPL software is bad for your business, try distributing pirate copies of Microsoft Windows with your product. You'll get to see just how "dangerous" a license can be.

The fact is that infringing other people's copyrights is a bad business move. It does not matter at all what mechanism the rightsholders are using to protect their copyrights.

Re:Is this really different from the RIAA or MPAA?

[njchick]

But what would compel a company to support FreeBSD when they could just take the code, use it for their own needs, and never make upstream contributions?

Also: But what would compel a company to support FreeBSD when their competitors could just take the code, use it for their own needs, and never make upstream contributions?

Re:Is this really different from the RIAA or MPAA?

[Anonymous Coward]

But what would compel a company to support FreeBSD when they could just take the code, use it for their own needs, and never make upstream contributions?

Duplication of effort. Incompatibilities resulting from said duplication, compounded by legacy.

Re:Is this really different from the RIAA or MPAA?

[McDutchie]

Using GPL software without complying with the GPL is a liability for any business.

More correctly, distributing GPL software without complying with the GPL is a liability for any business. The GPL only covers distribution, not use. Everyone is perfectly free to use GPL'ed software without any restrictions whatsoever.

Re:Is this really different from the RIAA or MPAA?

[Frosty Piss]

Using GPL software without complying with the GPL is a liability for any business. As is using any proprietary software without complying with the license that comes with the software.

Using any licensed intellectual property without complying with the appropriate license is a liability for any business, and they know it. The difference here is that there is a perception in business that Open Source projects are operated by dirty hippies that don't have it "together" enough to do anything about it (nor the money, even if they did have it "together").

This is why it's important for this suit to move forward with an objective of some type of damages and at least attorney fees. This will send the message to business that there are repercussions to ignoring or trying to circumvent Open Source licenses like the GPL.

The only businesses that will be scared off from using Open Source because of this are dishonest businesses that shouldn't be allowed to use Open Source anyway

Re:Is this really different from the RIAA or MPAA?

[Anonymous Coward]

[quote] But what would compel a company to support FreeBSD when they could just take the code, use it for their own needs, and never make upstream contributions? [/quote]

Nothing. IANAL, but I can take any gpl'd program, modify it, and use it for my own needs. Only when I re-distribute the software, do I need to release the code.

Go ahead. Flame me if I'm wrong. I'm a CP/M uzer.

Re:Is this really different from the RIAA or MPAA?

[aliquis]

Less work and a better product if nothing else.

(Easier to sync with the open version and get new features and if you can just use the open one and support it yourself and others use and develop for it aswell it will become better.)

But if they don't like it they are free to not submit any changes back aswell of course, and there are no troubles with that either.

Re:Is this really different from the RIAA or MPAA?

[Anonymous Coward]

Has a Microsoft EULA ever been "proven" in court?

Re:Is this really different from the RIAA or MPAA?

[Eivind Eklund]

Maybe what makes companies that make proprietary derivates today contribute back? Like, for instance, the SCSI subsystem of FreeBSD, or netgraph, or a bunch of other changes.

Penalty for your distribution of misinformation about this on Slashdot: To compensate, you have to post the correct information - BSDs get contributions back from their derivates - at least 10 times. This will, hopefully, dispel the damage you ahve done by publicly supporting the incorrect meme.

Eivind.

Re:Is this really different from the RIAA or MPAA?

[budgenator]

Distributing any copyrighted software without complying with the license is a liability for anyone.

Re:Is this really different from the RIAA or MPAA?

[cheater512]

Its not a liability if you play by the rules.

If you want to violate someone's copyright, you've got to deal with the consequences.

Re:Is this really different from the RIAA or MPAA?

[pimpimpim]

But what would compel a company to support FreeBSD when they could just take the code, use it for their own needs, and never make upstream contributions?

Like Apple, for example?

Re:Is this really different from the RIAA or MPAA?

[Tim C]

The difference here is that there is a perception in business that Open Source projects are operated by dirty hippies that don't have it "together" enough to do anything about it (nor the money, even if they did have it "together").

I definitely think that's part of it. It's the old school playground taunt of "Oh yeah? You and who's army?"

If it's MS, IBM, Apple, Oracle, etc, then it's obviously their army of highly-paid lawyers.

If it's some hobbiest open source project, then what army indeed?

The only businesses that will be scared off from using Open Source because of this are dishonest businesses that shouldn't be allowed to use Open Source anyway

I'm not entirely sure that I agree there, to be honest. Some businesses may be scared away simply because they don't feel that they understand the legal ramifications fully enough to trust that they will even know what their obligations are. Not every firm has access to a legal department (mine, for instance).

Re:Is this really different from the RIAA or MPAA?

[fatphil]

"Using GPL software without complying with the GPL is a liability for any business. "

It's not even that - the Gnu GPL doesn't cover usage, only copying/distribution.
Your PP was of course just an inane fudster, probably a troll.

Re:Is this really different from the RIAA or MPAA?

[swillden]

Has a Microsoft EULA ever been "proven" in court?

Doesn't matter for the discussion at hand. Commercial EULAs attempt to add restrictions above and beyond what copyright law provides. If the EULA is found unenforceable, then you're still left with the restrictions defined by copyright law, and distributing copies without permission is exactly what copyright law says you can't do.

Re:Is this really different from the RIAA or MPAA?

[AusIV]

I chose my words poorly. Using GPL software internally is not covered by the GPL, so is in my mind "compliant" with the GPL. Using GPL software in a way that is non-compliant with the GPL implies distribution (at least in my mind).

Re:Is this really different from the RIAA or MPAA?

[swillden]

The differences between this and what the RIAA does are:

• The FSF actually has evidence that infringement occurred and who infringed.
• The FSF is suing a company that has money, lawyers and can defend itself, rather than college students, elderly women and little kids.

It's the lack of evidence that really makes the RIAA suits slimy. The RIAA and its attorneys know perfectly well that they have little chance of succeeding on the merits, and that all they're really doing is using threats to extract settlement money (aka extortion).

Re:Is this really different from the RIAA or MPAA?

[AusIV]

BSD may get some contributions back, but I can't believe they get nearly as much back as the GPL. You state that there are examples, but you don't answer my question, which is "Why? What compels them to contribute back?"

If I were developing a product (with the intent of profit), I would certainly jump at the chance to have pre-developed software I could incorporate into my product. Now, presumably I would need to make some changes and improvements to make this software fit my needs. Under BSD style licenses, if I release my code back to the community, a competitor could scoop it up, spend a little bit more money improving from my code base, and never contribute anything back - leaving me at a competitive disadvantage.

Under the GPL, when I release my code back to the community, a competitor could still scoop it up, spend some money improving my code base, but any changes they made would also have to come back to me (among others), so they're not at any significant advantage.

Re:Is this really different from the RIAA or MPAA?

[petermgreen]

well there is the fact that the cost of maintining a large custom patchset against an ever changing codebase developed by people with no consideration of your code can be quite high.

and the fact that favor with the devs is valuable, they can provide you with far better support than those who are just support drones and favor with them can also give you influence over the general direction of the project.

I am sure that the GPL gets some people to contribute that wouldn't otherwise but I am also sure it stops some people using the code completely (whether due to fear of the GPL, unwillingness to release other source that will be used in the same app or license compatibility issues). Which is more significant is pretty much impossible to determine.

Re:Is this really different from the RIAA or MPAA?

[TheRaven64]

Most businesses can divide software into parts that are, and aren't connected to their core competency. If you are making a system for a specific purpose, then you might start using FreeBSD as a base. Any code you write that is directly connected to this specific purpose gives you a competitive advantage. Any other code you write (including modifications to FreeBSD) does not. The more your code diverges from the main FreeBSD tree, the more expensive it is to maintain. If the divergence is connected to your core competency, then this cost allows greater profits, and so is worth maintaining. If it isn't, then sending the changes back reduces your overheads.

With a GPL'd project, it's an all-or-nothing question. You either pass on all of your code to your customers, or you pass on none of it. If giving away the code would cost you a competitive advantage, then it might be in your best interests to license a proprietary base like QNX and use this to build your product than go with a GPL'd base; the cost of the proprietary license would be less than the cost of losing your differentiator. In these cases, a BSDL base gives the best of both worlds; you benefit from keeping your own code closed, and the community benefits from you releasing improvements that do not cost you a competitive lead. A few companies build BSD-based systems and release their code upstream a few months or years after it was written. They keep their commercial advantage because their customers get the code first. They keep their costs low, because their code donations stop their tree diverging too much from the upstream tree. The community wins, because there is commercially funded development.

Re:Is this really different from the RIAA or MPAA?

[Anonymous Coward]

But what would compel a company to support FreeBSD when they could just take the code, use it for their own needs, and never make upstream contributions?

Two problems for your logic here:

One, a company can take any GPL code, use it for their own needs, and never make upstream contributions. The GPL only applies to distribution; it's based on copyright, you know...

Two, a lot of companies use FreeBSD and nothing compels them to support it back -- but surprise, a lot of them do. Because they see benefits in doing that. BDSL work better in practice than on paper, it's funny that way :-) [But a big factor here is that FreeBSD developers are very good at asking politely. Companies are run by people, and these often listen and react to reason -- until we are talking mindless megacorps.]

Re:Is this really different from the RIAA or MPAA?

[Eivind Eklund]

You're assuming that ALL changes would be contributed back under the BSD license. Tactical changes get contributed back; strategic changes get kept. Now, with the GPL you cannot have strategic changes. This means that companies that are interested in having strategic changes choose BSD licensed software, or choose to purchase a commercial codebase.

Fortunately, most development that is of interest to the free operating systems is tactical; the value for the company is primarily in having the functionality available, not in getting strategic advantage from having the functionality and denying it to competitors. The net result, as far as I have been able to observe (though I've been on the BSD side of the fence with only interested-bystander observation of Linux) is that we get more contributions back from the commercial side - and WAY more contributions back compared to developer mind/market share.

Eivind.

Gotta cost something

[zIRtrON]

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

Re:Gotta cost something

[Anonymous Coward]

The *GPL* does not matter regarding "relicensing" Apache licensed code. Only the terms of the Apache license (or the will of the copyright holder who can choose to make their work available under a different license).

I believe the Apache license, much like BSD license, requires attribution and not altering the license statement, which would not allow you to replace it with some different license. It does allow you, like the BSD license, to redistribute in source or binary form, bundle with other stuff, etc, etc, provided you comply with those terms.

Re:Gotta cost something

[ComputerSlicer23]

I believe your answer to number 3 is wrong according to MySQL AB (the corporation that owns the copyright of MySQL). They changed from the LGPL in version 2.x to GPL in version 3.x. See http://mmmysql.sourceforge.net/. I can't find the page right now, but at the time all this changed it was fairly clear that MySQL was tired of losing the licensing fees. Because the Connector was LGPL, you could embed MySQL in virtually any application and never need to purchase a license. The LGPL had little burden on a commercial use (essentially, ship the source, or offer a copy of the source to any one you shipped the connector to). The change to using the GPL should mean that your application should be bound by the GPL'ed. While your interpretation might be correct, the copyright holder disagrees with you. Even if your right, that could be very expensive.

As for 1, I'm not sure you can relicense it, I'd have to read the licenses closely, but you could release your stuff under GPLv3 and include any requirements the Apache license has (including the notice files, not removing the copyright notice, or the waivers of any warrantee). Effectively you can do what you want.

Kirby

Re:Gotta cost something

[jrumney]

MySQL has a rather extreme view on the distribution of their software, so I wouldn't consider distributing it with a commercial product myself unless my company was willing to pay for commercial licenses. But under the GPL (but not MySQL's interpretation of it according to their licensing FAQ), it should be possible to distribute MySQL server aggregated on the same media as a commercial application that uses the JDBC/ODBC or other standard APIs. To play it safe, you could have the end user perform the final linking step of copying the JDBC/ODBC/etc library into the appropriate directory, or modifying a config file to specify the MySQL driver.

Excuse me, but this is bunk...

[Svartalf]

It is NO damned different if you use a Proprietary Licensed product within your embedded device-
if you fail to abide by the terms of the license grant for the protected Work(s) you are using, you
can expect to get your ass sued at some point if it is found out that you're doing it.

It doesn't matter if it's GPLed.
It doesn't matter if it's MIT/X11 licensed.
It doesn't matter if from Microsoft under an EULA or one of the Shared Source licenses.

If you breach the terms of the licensing, you're guilty of breaking at least a civil contract if not
outright Patent or Copyright infringement- PERIOD.

There's no 'intricacies' involved with OSS in the first place- they're simpler licenses to follow.

I'd be leery of dealing with anyone selling proprietary anything these days because of those 'intricacies'
that are ALWAYS present with most proprietary products.

Name of the game: Don't Cheat. Don't Get Greedy. Abide by the license terms, whatever they might be.

Re:Excuse me, but this is bunk...

[Fruit]

There's no 'intricacies' involved with OSS in the first place- they're simpler licenses to follow.

Really? Please take the GPL Quiz and tell us what score you got. Hint: it's surprisingly tricky!

Re:Excuse me, but this is bunk...

[jewelie]

I got six out of eight, does that mean I get to be the legal advisor to slashdotters, or am I over qualified? Given that I don't work, haven't programmed for years, and the number of lines of code I've contributed to GPLd code can be counted on a single average human's available digits, I'm a bit upset that I'm sad enough to know the GPL that well. Anyone got a life going spare, real cheap?

Re:Excuse me, but this is bunk...

[fritsd]

Woohoo! 8 out of 9! you made my day ;-)

Re:Excuse me, but this is bunk...

[Anonymous Coward]

OK, now I want to take the MS EULA quiz. I'm sure that's a lot easier. Where can I find that one?

Re:Excuse me, but this is bunk...

[sjames]

Yes, there are a number of subtlties to it, but fewer than most proprietary licenses. If you're licensing ANY code from anyone to distribute, you'll do well to run it past a lawyer.

Nevertheless, should you goof with GPL code, the odds are good that you'll recieve a polite notification and a reasonable chance to make it right without writing a fat check well before you end up in court and discussing damages.

Re:Excuse me, but this is bunk...

[Svartalf]

Heh... Letsee.. 9 out of 9. (Honest...I've been doing this stuff, writing software and licensing
it appropriately, for the last TWO decades...) Stallman and Moglen would be proud of me... >:-)

If you think the GPL and LGPL has intricacies, one would best stay clear and wide of pretty much
most of the stuff out there that's proprietary as they've got much more restrictive and complicated
licensing than the GPL requires. It's honestly not THAT difficult to follow the licensing on GPLed
software- it's that companies tend to be filled with greedy people that think that anything's cool
as long as they get rich quickly and just don't get caught cheating while doing it.

It really isn't that hard to comply with one of the actual FOSS licenses, no matter which one you choose
as they're ALL done to be easy to follow what your requirements are and you can't be in question as
to what you're liabilities are with regards to the license grant.

Re:Excuse me, but this is bunk...

[Fruit]

9 out of 9? Well, I stand corrected then :)

those who think the GPL is bad news

[Anonymous Coward]

...aren't going to find anything here to change their minds.

When you hear people like Linus talk about the license (the good ol' GPL v2, that is), it sounds very reasonable - I gave you code, so you have to give back what you went on to accomplish with it. Except that it's not enough to post Linus (or whoever the original programmer was) a CD with your latest and greatest; you have to provide convenient source code access to anyone who ever received your software, for every version that you ever distributed, for years. If you have a serious customer base, even if those "customers" are getting your stuff for free, this requirement is neither easy nor cheap. Better take it seriously though, because the FSF has shown it intends to come down hard on those who fall short.

And we're not even talking about GPL v3 here.

Re:those who think the GPL is bad news

[j-pimp]

...aren't going to find anything here to change their minds.

When you hear people like Linus talk about the license (the good ol' GPL v2, that is), it sounds very reasonable - I gave you code, so you have to give back what you went on to accomplish with it. Except that it's not enough to post Linus (or whoever the original programmer was) a CD with your latest and greatest; you have to provide convenient source code access to anyone who ever received your software, for every version that you ever distributed, for years. If you have a serious customer base, even if those "customers" are getting your stuff for free, this requirement is neither easy nor cheap. Better take it seriously though, because the FSF has shown it intends to come down hard on those who fall short.

And we're not even talking about GPL v3 here.

If you read the gpl (v2) you would realize its not that hard:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

Also, just make the source available via a html page with google ads. If enough people download it, you'll make money.

Re:those who think the GPL is bad news

[Albanach]

this requirement is neither easy nor cheap.

I've heard a lot of arguments against the GPL, but come on, it's not easy or cheap to make your GPL'd source available? That takes the biscuit. All it needs is a tiny bit of paper in the box with your product, or a single file on the disk that says we make our source available at this URL...

Even a shared server would be fine forserving single files - a $20/month hosting agreement could serve the tarballs for all but the biggest files. There are other options for GPL projects like sourceforge

Maybe you mean it's not cheap or easy to keep track of the licence that covers individual parts of your program. In that case you had better make sure your staff are coding every single line of code your app uses, because if yo ucan't keep track of the licenses covering your files, you are just asking to be sued. The GPL offers software that if Free as in Freedom, not Free as in beer. One of the very small costs the GPL imposes on anyone that uses software licensed under it is to contribute back to the community. Don;t like it, then don't use it - write your own code instead.

Re:those who think the GPL is bad news

[mattpalmer1086]

No, the GPL places no restrictions on using GPLd code. Anyone can do that. If you modify GPL code and use it, but don't distribute the software, you can also do that with no restrictions at all.

It just says that if you modify GPL code and distribute (i.e. copy) the resulting software, you have to make the source code available.

Re:those who think the GPL is bad news

[Hatta]

you have to provide convenient source code access to anyone who ever received your software

Nope. You only have to provide source to those to whom you have distributed software. If someone else gets your software, the distributor they got it from is responsible for providing source. If you only give binaries to one person, and they distribute them to the world, you are only required to give source to that one person.

You don't have to make it particularly easy either. You can always provide source through the mail, and charge a reasonable handling charge.

Re:those who think the GPL is bad news

[Kilroy]

I've heard a lot of arguments against the GPL, but come on, it's not easy or cheap to make your GPL'd source available? That takes the biscuit. All it needs is a tiny bit of paper in the box with your product, or a single file on the disk that says we make our source available at this URL...

Welcome to /., where someone can, in the same paragraph, talk about how easy it is to follow the GPL and get the GPL wrong.

http://www.gnu.org/licenses/gpl-faq.html#DistributeWithSourceOnInternet

I say: scar'em

[m2943]

Will this scare pointy-haired-bosses away from OSS if they think touching the GPL may involve a law-suit?

That's exactly what they should be thinking: "I will get sued if I violate the GPL. So, I better dot my i's and cross my t's."

They should be as scared of that as getting sued about violating any commercial license.

Re:I say: scar'em

[davester666]

That's exactly what they should be thinking: "I will get sued if I violate the GPL. So, I better dot my i's and cross my t's."

They should be as scared of that as getting sued about violating any commercial license.

Um, most companies are not afraid of being sued [assuming they can afford an attorney for a while]. It only becomes a concern if:

a) It's likely that the lawsuit will burn through all available money [ie, SCO]

b) They may lose AND have to pay a significant penalty to someone [generally in the form of money].

Re:I say: scar'em

[Anonymous Coward]

Um, most companies are not afraid of being sued [assuming they can afford an attorney for a while]. It only becomes a concern if:

Bullshit. A lawsuit can tie up companies in knots, in particular smaller ones. Even if a company wins, it loses.

Kind of a stupid Post....

[Whiney Mac Fanboy]

Does an admittedly left leaning GPL

Jeepers! I feel much stupider having read that. The GPL is a software license. It can't hold an opinion on the old order following the French Revolution.

and they could declare the GPL to be in violation of anti-trust, unconstitutional because it is non-commercial

Anti-trust? WTF? Non commercial? You can use the GPL license to cover commercial software all you like. Do you have any understanding of the issues here?

Re:Kind of a stupid Post....

[Anonymous Coward]

Kind of a really stupid post really.

A judge could make up anything, a Supreme Court, even more so
This is exactly why you should hope that a "conservative" judge, like Justice Thomas, hears your case. Conservative judges, in principle anyway, can not just make something up, and must rely on the Constitution, current law, etc. Your liberal judges, like Justice Ginsberg, are much more likely to make something up, as they hold more to the "living constitution" train of thought. The latter thinks that the judicial branch can create law; the former thinks (correctly, I might add) that the judiciary is there to interpret law.

If anything, the Thomas's on the court are much more likely to uphold the GPL. Part of the US Constitution says that States may not pass any law "Law impairing the Obligation of Contracts." This should logically apply to the federal government as well. Your "right" judges are more likely to uphold the contract argument of the GPL based on this. Your "left" judges may very well ignore this portion of the Constitution.

The danger with the "left" judges is that, if you adhere to the "living constitution" thought, there is really no reason to continue to have a legislature, as even if a law is constitutional, the "left" judges can invalidate it (or vice versa, uphold a clearly unconstitutional law; witness the recent "campaign finance reform" law).

-john

Re:Kind of a stupid Post....

[sumdumass]

This reminds me of an interview with some congress woman at a time of one of the Bush supreme court nominations going through congress. I don't remember who she was or what party she held associations with. I though it was California which means it should be a democrat But I have attempted to verify who and where with no luck.

Anyways, Her comment was on how important the nominations process was and what it meant to Americans. She said that they can't just have any judge on the supreme court ruling things unconstitutional because congress passes laws for a reason. They can't work for the people and have to constantly worry about their laws being overturned or rules unconstitutional all the time.

Obviously, she was of the living constitution thought where they could pick and chose what they thought was relevant and change anything else without going through the amendment processes. The thing is, if it was constitutional in the first place, it should always be unless an amendment changes it. And if it was unconstitutional, then it should be the same too. Not allowed because we think things are a little different 200 years later. I don't think you could be closer to the truth about who is more likely to rule in accordance with their feelings of the day instead the letter of the laws. The GP was making a point about what could happen which is valid to some extent outside the improbability as you pointed out.

Re:Kind of a stupid Post....

[PietjeJantje]

If the GPL would be about knowledge or education, we would have a setup where people can learn things, but with that knowledge they can't just go and add their own experience and knowledge, without giving back (capitalism), what they added must be given back to the big collective (communism) or otherwise they will be punished. They've been trying this in North-Korea. This is the world view RMS has on software, and he made a license to propagate that license and world view.

Re:Kind of a stupid Post....

[Whiney Mac Fanboy]

If the GPL would be about knowledge or education,

But the GPL is not about knowledge or education - is it? Its a software license - so the rest of your rather stupid analogy (with North Korea references and all) breaks down.

Re:Kind of a stupid Post....

[PietjeJantje]

So an analogy breaks down because..it's an analogy. Right. Thank you for your contribution.

Re:Kind of a stupid Post....

[david_thornley]

Except that the GPL is a software license, and you're talking about a general economic system.

Software has the very odd property that it is expensive to develop, and trivial to manufacture. Most of the goods in an economy are expensive to manufacture, and therefore in limited supply. For goods that are in limited supply, it is necessary for an economic system to both provide incentives to produce more, and come up with a way of distributing them. The most effective way to do this, as far as we know, is some sort of market economy with some sort of medium of exchange.

To put this another way, GM can't just give away vehicles to anybody who asks, but Red Hat does give away software to anybody who asks, and makes a profit besides. This is why GM has to be paid to produce cars, and why we have to have rules on who can get one (in the US economy, anybody who has enough money and wants to spend it on a car).

Software is more like science. It's expensive to come up with a program or a discovery, but once a scientific discovery has been made it is normally disseminated freely to anybody who wants it. This is one reason for the rapid development of Western economies: we know more, because we share scientific knowledge, and build on it, and do things with it. If science were developed according to your capitalistic model, rather than being put into the big collective, we'd be living much like North Koreans: starving and badly misinformed.

The computer you wrote your flamebait on exists because people have been sharing their science for quite a few centuries, to make it possible to build economically, and because a market economy exists to reward people who find ways to sell computers for less money. Both models are necessary.

Re:Kind of a stupid Post....

[Whiney Mac Fanboy]

No, your analogy broke down because its stupid. You're trying to compare something as limited in scope as a license to something as broad & touching upon every aspect of society as education & knowledge (at the same time).

I'm not going to thank you for your contribution - it was useless & added nothing to the discussion.

Re:Kind of a stupid Post....

[PietjeJantje]

Silly boy, you add nothing to the discussion, make a false claim, and got a big mouth. Next time use your brain, and ADD something to the discussion. Your noise is helping no one in particular. And still you haven't managed to point out where the analogy broke down. If you'd like to play, at least get some game. Tsssk.

it's about time-"Sex wants to be free."

[Anonymous Coward]

"Some things in life are worth more than money: court victories for free software licenses are one of those things, I believe."

I don't think a hooker would agree with you.

the sooner the better

[m2943]

The sooner we find out the better, and I don't see any serious consequences.

I mean, what can happen?

SCOTUS can invalidate the GPL. So, nobody has a license, and the authors will just release a new license.

Or SCOTUS can declare that all GPL'ed code is public domain now. So, the BSD guys are really happy, and the GPL projects will simply put all new code under a new license.

What's the big deal?

OTOH, the sooner we know, we can act.

ROFLMAO...

[Svartalf]

This is /.

If you want people citing legal precedent plus discussions of interesting, possibly viable legal theories- interspersed with at
at least a little of the same poo flinging you find around here on /., go over to Groklaw.

Re:ROFLMAO...

[Anonymous Coward]

> This is /.

I think you meant, "This is /..".

Re:ROFLMAO...

[Jarjarthejedi]

Good Legal Advice?

THIS IS /. !!!!

Re:ROFLMAO...

[mrchaotica]

You forgot to kick CowboyNeal into a hole.

Copyright notice and Creative Commons licenses?

[tepples]

There's no 'intricacies' involved with OSS in the first place- they're simpler licenses to follow. What's so simple about the Creative Commons licenses, which allow an author to forbid, after the fact, downstream distributors from including a proper copyright notice on a work? See section 4(a) of the Creative Commons Attribution License about removal of credit. Such a requirement appears impractical and makes the Creative Commons licenses incompatible with a lot of other licenses.

Re:Copyright notice and Creative Commons licenses?

[75th Trombone]

Nice non sequitur. Creative Commons licenses are not software licenses at all .

Re:Copyright notice and Creative Commons licenses?

[tepples]

Nice non sequitur. Creative Commons licenses are not software licenses at all. I knew that. My point is that a piece of "software" encompasses more than a computer program. Does this mean that I can't use a work under a Creative Commons license as part of a Free video game? Does this mean that I cannot use the Tango icons as part of a computer program?

Re:Copyright notice and Creative Commons licenses?

[Svartalf]

Ahem... They weren't placed under an OSS license...

They're under a Creative Commons License, which covers artistic works not software.

You have to simply abide by the license grants for all of the Copyrighted and Patented works you're using,
no matter what their licenses are. It's just that the OSS licenses are easy to follow- I did not imply
that anything else is, and trying to muddy the issue by dragging in free usage allowed literary and artistic
licensing doesn't prove your argument you're trying to reach as the licenses aren't analogous. Just because
your icons can be used with software doesn't MAKE them that.

Re:Copyright notice and Creative Commons licenses?

[tepples]

They're under a Creative Commons License, which covers artistic works not software. But the icons are advertised for use with software, which means that the icons appear to be licensed uselessly. What license is designed to cover artistic works intended to be used in a software package?

You have to simply abide by the license grants for all of the Copyrighted and Patented works you're using So how do I find works with an acceptable license grant?

It's just that the OSS licenses are easy to follow True, but the licenses for the parts other than computer programs that make up a software package are not.

Etymological fallacy?

[tepples]

The GPL is a software license. It can't hold an opinion on the old order following the French Revolution. The opinion of a document is the opinion of its author, in this case the Free Software Foundation. Some critics have characterized the FSF's position that led to the drafting of the GPL as socialist, and socialism is a left ideology. Besides, "left" and "right" can refer to things other than French politics; claiming that they cannot because they first did not is the etymological fallacy.

Re:Etymological fallacy?

[tjstork]

Some critics have characterized the FSF's position that led to the drafting of the GPL as socialist, and socialism is a left ideology

The real question is thus. Is the world wide left wing, seemingly so resurgent, that casting something as socialism is considered a criticism?

Interesting.

Re:Etymological fallacy?

[Whiney Mac Fanboy]

Please define 'left' for me & then tell me how that relates to the GPL.

Extra points if you don't come away looking like a complete idiot.

Re:Etymological fallacy?

[Anonymous Coward]

"left-wing" means against the monarchy and aristocracy. So King George Bush 2nd and William Gates 3rd come to mind. Unfortunately as the comments to the recent tasering incident show, USians are "right-wing" in the sense of always bowing to perceived authority and heriditary rulers.

WTF?

[Anonymous Coward]

You DO realize that the Supreme Court doesn't bother to hear most cases, right? And those judges below? Well, they have to justify whatever they do in terms of current precedent.

So tell me, what precedent is there to find the GPL invalid? Hmm? Anti-trust won't work: that nutjob who tried that claim got shot down in flames. You might try to finagle it as saying that it's really a contract, not a license, so you can only sue for breach instead of copyright infringement, but that only worked in one lower court and that was against the Artistic License. The GPL's nice long manifesto works against it ever having been intended as a contract, and I've yet to see any lawyer actually get concerned over that precedent applying to the GPL.

So what do we have to worry about? Judges do NOT just get to do whatever the hell they feel like. They get removed from that. Yes, they might decide close cases according to their biases, but it has to be CLOSE first, and they have to have *something* to justify their decision with. If they decided something purely on the basis of prejudice, they'd get bitchslapped by the appeals court.

IANAL, but I did take a college-level class on court procedures.

Damages?

[Anonymous Coward]

Okay, I didn't RTFA. So what are the damages on free software? I'm not being facetious. Are they suing only for punitive damages? If so what are they asking?

The Meaning Of Compliance

[martin-boundary]

"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."

I must be living on a different planet from the lawyers. Here I was thinking that compliance means publishing the source code together with all the proprietary modifications, in a form that anybody can recreate the exact same software by recompiling it. In the warped mindset of a PHB, that means giving away the crown jewels for free. How is this not a deterrent for such deadbeat companies?

Re:The Meaning Of Compliance

[QuantumG]

Another way to come into compliance, if you were mixing proprietary code with GPL code, which isn't the case here, would be to remove the GPL code from your product and replace it with something else which you have a right to distribute.

Re:The Meaning Of Compliance

[Anonymous Coward]

I think he's just saying that if there's no punative result other than late compliance, then there's no downside in a game theoretic sense to noncompliance. Companies would not be penalized for taking a strategy in which they would simply not comply until they are caught and sued.

Re:The Meaning Of Compliance

[Anonymous Coward]

Here I was thinking that compliance means publishing the source code together with all the proprietary modifications, in a form that anybody can recreate the exact same software by recompiling it.

Too bad red hat doesn't think that. :( If you're wondering what I mean, go out there and without changing the sources they distribute, build a kernel module from the kernel proper, for example bt848, and try to load that module into a kernel binary they have provided. You'll note that it's impossible without having to make some changes to the source.

Re:The Meaning Of Compliance

[mrchaotica]

No, that wouldn't bring you into compliance. After all, what about the GPL code you already distributed? You still have to give the source code for that!

Re:The Meaning Of Compliance

[QuantumG]

No, you wouldn't.

Re:The Meaning Of Compliance

[mrchaotica]

Care to provide any reasoning to back up that unsupported assertion?

Re:The Meaning Of Compliance

[QuantumG]

What reasoning do I need to provide exactly? Can you show a single case, ever, where a court, anywhere, has forced a defendant to reveal their source code for failure to comply with a software license? No, didn't think so. So you're suggesting that something that is unprecedented in the entire history of copyright law is going to happen.

Just so we're on the same page here, are you saying that for distributing a derivative work without a license that the court is going to demand that you comply with a license, which you don't have? How's that work exactly? Maybe my suggestion that this would "bring you into compliance" was wrongly worded, and this confused you. This would not bring you into compliance, it would take your work out of the scope of the complaint. You may still be liable to the complainant for damages, and these may well include punitive damages, but it would simply be unlawful for the court to order you to comply with the license, as you are no longer are bound by it.

Re:The Meaning Of Compliance

[Anonymous Coward]

If I sell computers with pirated copies of windows on them, then MS sues me, can I be compliant and escape litigation by no longer using pirated copies of windows on computers I sell from that time forward?

Re:The Meaning Of Compliance

[fatphil]

They don't _have to_, but if they didn't, they'd be liable for at least compensatory or perhaps punitive damages on a copyright infringement case.

Re:The Meaning Of Compliance

[squiggleslash]

No, you couldn't. But that's not relevant.

The court has only certain remedies available; unless the defendant consents then the remedies are pretty much limited to fines and restraints preventing them from violating copyrights in the future. The court cannot order the source code opened.

Re:The Meaning Of Compliance

[Anonymous Coward]

That's what you are supposed to do before you break it's terms. Once you break it's terms, you no longer have any right to redistribute the software. From the text of the GPL v2:

Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

So, even if they come into compliance with the original terms, their redistribution rights are void until they can get the copyright holders to agree otherwise.

Re:The Meaning Of Compliance

[spitzak]

You seem to be seriously confused.

You are correct that you cannot be forced to reveal your source code. However you will then not be in compliance with the GPL and remain able to be sued for copyright violations.

If copyright violations vanished after they happened, which seems to be your assumption, then copyright would be unenforcable.

In reality, even releasing the source code would be meaningless. They still violated the copyright and are liable. It is true that it is likely that releasing the source code would stop the copyright holder from suing, but legally it means nothing.

Obeying the GPL when you redistribute source code does require you to reveal your modifications to that code. However it is a logical fallacy to say that "the GPL forces you to reveal your modifications". That is because you are making the false assumption that "the GPL forces you to comply with the GPL". The true statement is that "copyright law forces you to either comply with the GPL or be liable for copyright infringement".

Re:The Meaning Of Compliance

[Alsee]

How is this not a deterrent for such deadbeat companies?

It's not a deterrent at all.

-----

Heay boss, we're supposed to publish the source code with this.

Boss: Fuck GPL compliance. There is NO REASON we should release any source now. *IF* we get caught, we'll do all we can to stall and blow them off. *IF* they actually hire a lawyer, we'll do all we can to stall and blow them off. *IF* they threaten to sue us in court, we'll do all we can to stall and blow them off. *IF* they actually file a suit in court, we'll do all we can to stall and blow them off.
    Odds are we won't get caught, and odds are that the violated party isn't going to have the drive, persistence, and financial/legal resources to persue this. Odds are we can violate the GPL and get away with it. And if we do get caught and all efforts to stall and blow them off fail and we are faced with an imminent court date, then ok, we'll release the source like we were supposed to do in the first place. There is absolute no deterrent to non-compliance in the first place, other than some chance that maybe we'll comply later.

It's like making the punishment for shoplifting be that you have to go back and get on line and pay for the purchase price for the stuff you tried to steal. No reason ever to go to the register and pay for stuff... you might as well *always default* to trying to walk out of any and every store without paying.

Violating copyright has extremely serious penalties in the law. First you get an injunction shutting them down - prohibiting them from shipping any product with offending code. Then you get a verdict for massive $$$ damages for copyright infringement paid to the person who got violated.

That is the sort of case we need. We need companies to know that they should comply with the GPL in the first place, that they should release the source along with the original product sales. We want them to know that they face very real and very serious penalties if they attempt to get away with a deliberate GPL violation.

If some company were to use (for example) Microsoft code, they would face extremely harsh penalties even for an inadvertent violation. It's great that the GPL community is so extremely generous with inadvertent violations, but we have been insanely generous with deliberate violators. Too generous with deliberate violators. We've been letting them get away scott-free with nothing more than belated compliance when they get caught in their violation.

-

Re:The Meaning Of Compliance

[mrchaotica]

Can you show a single case, ever, where a court, anywhere, has forced a defendant to reveal their source code for failure to comply with a software license?

No, but that's because no license which specified that source code had to be revealed has ever been tested! And anyway, I'm not a lawyer. Instead, I'm trying to argue this from the perspective of simple common sense, which seems to be woefully lacking in the legal world!

Here's a simple question: when the company does stop distributing, how do the copies already distributed suddenly become non-infringing? By magic?

Re:The Meaning Of Compliance

[SpaceLifeForm]

Spot on. And your example boss speaking is exactly the type
of thinking that goes on at Microsoft. They think that because
they have so much money, they can game the system.

Re:The Meaning Of Compliance

[QuantumG]

Yeah, exactly. If you were distributing software with unlicensed copies of Windows and MS sued you, the court couldn't order you to release the source code to your software. Or, at least, if they did then it would extremely strange and easy to overturn on appeal.

bsd license like voting in africa

[Anonymous Coward]

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?

SFLC wants GPL tested in court...

[jkrise]

and case law to be made, as well. Settling this out of court will imply that such violations of the spirit of the GPL are not 'costly' - the FSF would like to create the exact opposite impression, with respect to the unholy MS-Novell agreement.

Re:SFLC wants GPL tested in court...

[QuantumG]

Well, settling it out of court for some large some of money would do that too, and is a lot more likely.

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.

Re:SFLC wants GPL tested in court...

[jkrise]

Well, settling it out of court for some large some of money would do that too, and is a lot more likely.

I think this is unlikely, and a cash settlement would be a step backwards for the FSF. Let me use a portion of your own quote:

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. Let's look at some recent strategic victories for the FSF:

1. Microsoft have publicly dissociated themselves from the GPL3, and reworded their prior contract with Novell.
2. Even under the GPL2, a company that knowingly disrtibutes code in violation of the GPL is liable for penal action.

In the case of Monsoon Multimedia, they initially refused to comply or settle AFTER THE FSF POINTED OUT THE INFRACTION.

So, allowing them to settle NOW, after a case has been filed, would be a retrograde step. Offenders would continue to ignore the GPL and violate with impunity... thinking, they'd later on settle if and when a suit is filed.

In short, if the FSF wants to consolidate their gains and wins; it would be in their interest for this case to proceed in court, the infringer found guilty, and the GPL upheld in a court of law. THEN, AND ONLY THEN, will the FSF / SFLC combine consider taking DIRECT LEGAL action against the BIG FISH, as opposed to the current sabre-rattling in the media.

My 2 cents, and IANAL.

freedom, protection of yOUR rights are both....

[Anonymous Coward]

a part of stallman gnu.., without which, there'd be no linux/sourceforgerIE, etc....

engineering/development operations based in India

[Anonymous Coward]

Hrmmm ... why does it not surprise me to see "GPL violation" and "main engineering and development operations are based in New Delhi, India" in the same story.

From the company website ...

"Monsoon Multimedia's marketing and sales operations are headquartered in the Silicon Valley in the US, while its main engineering and development operations are based in New Delhi, India."

Creative Commons isn't an OSS license.

[AJWM]

None of the various Creative Commons licenses are listed on OpenSource Initiative's (OSI's) approved license page, so raising it in the context of OSS licenses is a bit of a stretch.

The very points you raise may be why it has not met with OSI approval, but there I'm speculating.

KJKJKJ

[Anonymous Coward]

_O_
\''\
'=O='
.|!|
.| |

Re:KJKJKJ

[Anonymous Coward]

Outstanding! Kind sir, I salute you!

Captcha: murderer. WTF?

While they're at it...

[mark-t]

Why don't they try to test the phrase "No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without written permission from the publisher"?

Wrong on two counts...

[Actually, I do RTFA]

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.

You're right about the main thrust, however two details. First, there are statutory damages for both knowing and unknowing infringment. However the knowing infringment damages are much (3x?) higher. These high statutory damages are the reason that the RIAA lawsuits have such teeth. Second, the requirement to register your work was removed almost thirty years ago. Registering is an easy way to have the governemnt verify when you claimed ownership however, and thus can be worth it.

Oh, and IANAL either.

Re:Wrong on two counts...

[QuantumG]

However the knowing infringment damages are much (3x?) higher. Dude, you're thinking patent infringement.. completely different set of laws.

Re:Wrong on two counts...

[Actually, I do RTFA]

Dude, you're thinking patent infringement.. completely different set of laws.

Patent infringment also has two different levels of infringment. But so do copyrights. Copyright and patent laws tend to have quite a few similiarities. The (3x?) may have been based on patent and not copyright law.

Re:Wrong on two counts...

[QuantumG]

Meh, in copyright cases they just decide on the day. That goes for the legalities as much as the damages. Try to get a straight answer out of a lawyer on a copyright issue. "It depends" is the only advice they'll give you, other than "comply".

Re:Wrong on two counts...

[PCM2]

Second, the requirement to register your work was removed almost thirty years ago.

I'm not sure about that. If you mean that the Copyright Act of 1976 (which was 30 years ago) removed some old requirements for copyright (like putting the circle-C on the work) then you're right ... but my understanding was that there were still additional benefits to actual registration where it came to the damages you could claim in court. That is, you can certainly still WIN a copyright case without registering, but my understanding (and again I could be wrong) was that, even though you've won, you are limited in terms of what compensation you can claim if you have not registered.

hypocrite much?

[timmarhy]

"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."

how the fuck can they make this claim, yet when SCO filed it's complaint, the open source community's response was "all we have to do is fix the infringment" - the very same claim now being denied.

you can't have it all your own way.

Re:hypocrite much?

[bug_hunter]

Because these guys were warned first that they were violating the GPL and did nothing until legal action was mentioned.
SCO was more of the opinion "We'll tell you what you're violating in court" without giving Linux a chance pre-lawyers.

Re:hypocrite much?

[Anonymous Coward]

As usual Timmy cuts right to the heart of the matter...and ends up somewhere near the spleen.

Lookie here, Tim. In this case the defendant was notified (with specifics) of its infringement and chose to do nothing. It was again notified and again it ignored it. Finally it was sued, and then tried to say "oh well, I guess you guys really mean it. OK, we'll stop."

Do you see how that is entirely different from the SCO case?

Re:hypocrite much?

[Anonymous Coward]

how the fuck can they make this claim, yet when SCO filed it's complaint, the open source community's response was "all we have to do is fix the infringment" - the very same claim now being denied.

1. Company X copies proprietary code from company A into GPL project G.
2. Company A sues company X.
3. Company X goes bankrupt in paying company A fees.
4. Source to G is modified by others than company A or X to remove X's influence and G goes along, merrily.

1. Company X copies GPL code from company A into a proprietary project P.
2. Company A sues company X.
3. Company X becomes compliant.
4. Company X goes bankrupt, anyways, as company A is out for blood.

In short, companies can go bankrupt, but open software (ie, outside a single company's control) can be fixed eventually. This might mean fixing existing code or reverting to the pre-corruption. The only thing that really steps in the way of all this is patents.

Re:hypocrite much?

[Animaether]

Although I certainly agree that the SCO case (and everything around it) was quite the circus, I fail to see its relevancy to the matter at hand.

Assume the offending portions of code in 'Linux' are explicitly pointed out - i.e. 'Linux' is given a chance - the 'Linux developers' work around that code with new code, and call it a day. Then they were still in violation in the past.

Isn't that the same as what's being said here? They informed a developer that they were violating the GPL, silly potential legal action followed, the developer comes into compliance with the GPL and call it a day. But they were still violating in the past, which is what is being said now as needing to be resolved somehow; short of timetravelling into the past and coming into compliance from the get-go, I can only imagine that means compensation of some sort.

I understand the SCO scenario isn't the finest of parallels to draw, but I hardly think GP should be modded -2 Troll.

Re:hypocrite much?

[PietjeJantje]

It wasn't a troll, but rather modpoints were abused by people who simply did not like what you said. GPL fanboys are like Apple fanboys who troll down everyone in sight saying something vaguely critical about their beloved company. You can't just criticize these perfect people with truth, you troll! ;) They are not interested in a fair discussion, they want your opinion to disappear in oblivion. It happens all the time, and it is hurting the GPL as more and more people avoid the license of zealots.

Re:hypocrite much?

[gnasher719]

how the fuck can they make this claim, yet when SCO filed it's complaint, the open source community's response was "all we have to do is fix the infringment" - the very same claim now being denied.

You are missing the context. If you make a claim that I used your code with permission, and it is proven to be true, I would have to pay for damages. On the other hand, it is _your_ duty to keep the damages as small as possible. The Linux community wanted to know exactly _which_ code was infringing, so that it could be removed to minimise the damages. A consequence of that public offer and the refusal of SCO to show any such code is that any damages from that point on don't count, because these damages only happened because of SCO's refusal to tell which code was infringing.

You are also missing the fact that SCO was full of shit and didn't actually own any copyrights to any Unix code they claimed was copied into Linux. So the Linux community was calling their bluff. If SCO had said which code was copied, a community with a huge knowledge base (plus the IBM lawyers and there experts) would have a look at the code, determine within an hour where it came from and prove that it wasn't owned by SCO - as happened in the single case where SCO actually _did_ publish some allegedly copied source code.

Re:hypocrite much?

[gnasher719]

Assume the offending portions of code in 'Linux' are explicitly pointed out - i.e. 'Linux' is given a chance - the 'Linux developers' work around that code with new code, and call it a day. Then they were still in violation in the past.

Absolutely true.

I understand the SCO scenario isn't the finest of parallels to draw, but I hardly think GP should be modded -2 Troll.

The difference is that SCO were lying through their teeth; they never had any copyrights and they knew it and the Linux community knew it. And so did everyone else.

Re:hypocrite much?

[PietjeJantje]

You couldn't have pleased me more, thank you for proving my point and advertising GPL people are zealots.

Re:hypocrite much?

[mattpalmer1086]

Frankly, your comments were fine, right up to the point you said "the license of zealots" - which is instant trolling, IMHO.

Yes, there are some people like that in the GPL camp, just like there are some pretty zealous people right across the board when it comes to discussing copyright. Oftentimes, the loudest voices come from those camps. Personally, I like the GPL, and think it makes an important contribution to our software ecosystem, although it's not right for everyone or all projects.

I don't normally feed the trolls, but in this case, I don't think you intended to troll - you just ironically ended up behaving just like one.

Re:hypocrite much?

[swillden]

Assume the offending portions of code in 'Linux' are explicitly pointed out - i.e. 'Linux' is given a chance - the 'Linux developers' work around that code with new code, and call it a day. Then they were still in violation in the past.

True, but courts grant a little leniency when it's clear that the offender was acting in good faith. Let's assume for the moment that there really was infringing code in Linux, and that the Linux developers immediately removed it as soon as they were notified. If Linus were called into court, he would argue that he was acting in good faith, that although he was distributing copyrighted code, it had been given to him under the implied or explicit claim that the giver had the permission of the copyright owner to license it under the GPL. It would be unjust to penalize Linus, or Red Hat, or anyone else involved who was acting in good faith. Instead, any penalties would be applied to the company or individual who improperly gave the code to Linus.

Actually, there was a little infringing code discovered after SCO started spouting off. If you remember, SCO's bluster triggered SGI to make a thorough review of their contributions to the kernel, and they found and removed several pieces of code that they had improperly added. Assuming SCO actually owned any copyrights on Unix, they could probably have sued SGI. The fact that SGI took prompt, unforced action to identify and resolve the issue would probably mean the court would go easy on them, unless SCO could prove that SGI's management had known for a long time that there was a problem and had chosen to ignore it until SCO started spewing threats.

In this case, Monsoon was notified of the issue and yet refused to do anything to come into compliance until a lawsuit was filed. Failing to correct a clear wrong until you're dragged into court over it is bad faith, and judges will act accordingly. Had Monsoon immediately said "Oh, we're sorry, we'll fix that", and proceeded to do so as soon as they were notified of their non-compliance, the FSF would happily have accepted their compliance. In fact, if the FSF had tried to push a lawsuit in that situation, the judge would mostly likely have thrown the case out.

Re:hypocrite much?

[PietjeJantje]

Funny, you say there are zealots, they acted like zealots, this caused my reply, but since I identified them and said they are zealots, it's a troll? Personally I think if people behave a certain way which defines them, I'm gonna call them according to the definition them set themselves. If you don't like that, call me a troll every time. It's ironic you defend it by pointing to others who are guilty of the same offense, and that's it. Car analogy: I called a speeding driver a speeding driver. Your reply: he's guilty of speeding, but there are many persons speeding, personally I don't like speeding, don't call speeding drivers speeding drivers because that's trolling. Ok then.

Re:hypocrite much?

[tushar]

"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." how the fuck can they make this claim, yet when SCO filed it's complaint, the open source community's response was "all we have to do is fix the infringment" - the very same claim now being denied. you can't have it all your own way.

IF there was an infringement, then the Linux devs would have rewritten the code to avoid that. But folks who are using or had used the version with SCO's code would still be legally liable.

Re:hypocrite much?

[mattpalmer1086]

Calm down! I specifically said most of your comments were fine, and that you weren't really trolling. But I did feel that, right at the end of your post, you descended to calling the GPL "the license of zealots", and that this was a trollish comment, only designed to provoke.

To take another car analogy, let's say you saw a speeding driver, and called him a speeding driver, but he couldn't hear you, so you sped up a bit to call him names to his face. Making you a speeding driver too ;)

Re:hypocrite much?

[Anonymous Coward]

There is no unified "open source community." When different people have incompatible views, there's no hypocrisy.

Re:hypocrite much?

[Paradise Pete]

It wasn't a troll, but rather modpoints were abused by people who simply did not like what you said

Considering that what he said completely misses the point, but in a sly way, it absolutely is a troll, even if the author was oblivious to it.

This is the way normal copyright claims are handled:
- Company A appears to be infringing on B's copyright.
- B sends A a letter explaining in detail how they're infringing, and asks them to stop. - If A refuses, B may take further steps, such as a lawsuit.

Here's what SCO did:

- Declared infringement, refused to explain why, demanded money, and filed a lawsuit. It is worth pointing out that to this day, years later, SCO has never justified their claim.

Re:hypocrite much?

[sjames]

how the fuck can they make this claim, yet when SCO filed it's complaint, the open source community's response was "all we have to do is fix the infringment"

Because the people who said we could just replace any infringing code were not the ones who allegedly stuck it in there in the first place. They also didn't say IBM wouldn't or shouldn't have to pay damages for what they did if they had actually done what SCO alleged.

So, by fixing the infringement, the product can continue to be distributed (like Linux in the SCO case) but the actual infringer will have to pay for their infringement.

I am tagging this...

[r_jensen11]

Slashdot Soap Opera.

If you mess with the gnu...

[hedgefighter]

you get the horns.

Translation: SFLC lawyers want legal fees

[Anonymous Coward]

Just because the SFLC lawyers are on our side in this matter, doesn't stop them being rapatious lawyers.

All this talk about "loss of revenue" and "compensatory damages" (which we all know is bollocks in the case of Busybox) is simply to allow them to charge litigation fees, nothing else. If they accepted the defendent's acquiescence to the license and dropped the suit, there would be no fees coming.

If that quote is correct

[dbIII]

If that quote is correct then I suggest Daniel Ravicher is better off acting like a responsable adult instead of giving way to the childish urge of having a head on a stake to scare his enemies. The people he wants to scare with the precident of punishment are unlikely to notice that it has happened.

Re:If that quote is correct

[petrus4]

You make it sound as though anyone from the SFLC is capable of acting like an adult.

I vote for letting Ravicher go on as much frenzied witch hunting as he wants; with a bit of luck he'll scare anyone watching away from even the thought of using the GPL in any way whatsoever.

For icing on the cake, we could conduct a public interview concerning the case with Eben Moglen; let it be again exposed for all to see just what a cultic fruitloop he really is, as he demonstrated in front of O'Reilly.

The FSF/SFLC have more than enough rope; we need to give them as much mainstream public exposure as possible in order for them to hang themselves.

Re:If that quote is correct

[mattpalmer1086]

I don't get it. You think suing a company over copyright infringement, when they were politely asked to come into compliance and refused, is childish?

Great - I have this fantastic product "MattoSoft Winders" - guaranteed to behave just like Microsoft Windows, and always 50% cheaper. Let's just hope Microsoft don't get all childish on me ;) That would really start scaring the punters away from these difficult "proprietary" licenses.

It's exactly the same, Mr. Double Standards!

http://gpl-violations.org settlements

[tangent3]

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.

Maybe...

[deftcoder]

they're having the same thought that I had yesterday? http://slashdot.org/comments.pl?sid=307011&cid=20735703

Case is: No loss of $ - case is a non-case - MOOT

[Anonymous Coward]

Case is: No loss of $ - case is a non-case - MOOT

There is no value $ of this theft so there is no case. If you give something away a cry in court later, that's your problem, not the laaawh's.

The stupidity tax vs. Helping the competition

[Per Abrahamsen]

> But what would compel a company to support FreeBSD when they could just take the code, use
> it for their own needs, and never make upstream contributions?

When the Netscape codes was released (as Mozilla), they claimed that "the stupidity tax" would prevent this. The stupidity tax is the extra effort you have to take to re-port your proprietary additions to each new release of the base code.

Isolated, I believe the stupidity tax is enough to make it worthwhile to contribute your additions back, at least if the base project has a strong following.

However, the reason a copyleft license like nonetheless GPL is generally preferred by businesses is friendly than a "almost-pd" license like BSDL, is concern about what the competitors do. Will they take your additions in their product, but never release their own additions?

With BSDL (or similar) companies will pay the stupidity tax in fear of giving the competition an unfair advantage. Which will hurt all the users of the base code. With the GPL, that unfair advantage is not an option, so business will be far more willing to share their improvements for the benefit of both themselves and other users.

This is why BSD is dying.

Following GPL is punishment?

[harlows_monkeys]

Interesting tacit assumption that following the GPL is punishment. :-)

So what do they expect to actually get?

[harlows_monkeys]

The complaint asks for 5 things:

1. Injunction to stop infringing copyright
2. actual damages
3. profits from the infringement
4. attorney fees
5. 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.

Re:So what do they expect to actually get?

[Anonymous Coward]

So everybody wins? And this is a Bad Thing TM?

Re:So what do they expect to actually get?

[mmcuh]

Actual damages? That's a big fat zero.

Why? The defendant used the software without complying with the GPL. The only way they could have done that legally would have been to buy a non-GPL licence from the copyright owners. But they didn't, so the copyright owners didn't get any money. Wouldn't that consitute "damages"?

If the copyright owners are unwilling to sell non-GPL licences that would just drive the price (and the damages) higher.

Re:So what do they expect to actually get?

[Anonymous Coward]

As soon as the defendant complies with GPL, they aren't infringing, so #1 isn't a big deal.

They can't comply with the GPL any more. The license is terminated by it's breach. This means that there is nothing they can do except stop distribution to comply with the license. This is something that is already seen as a problem by the FSF and is one of the important changes in GPLv3. With the GPLv2, you make one mistake once, ever and you can never again distribute the software except with a new license directly from the author.

Actual damages? That's a big fat zero.

There is a way to get GPL software without following the GPL. That is to contact the author(s) and ask for a separate differnt license. This is very common (e.g. see Qt). In this case, normally the person getting the different license has to pay for it. The actual damages are the amount of money which the authors would have accepted in order to release under a non-GPL license. Depending on the author's level of free software fanaticism this price may be higher or lower. Some people might need millions to be persuaded.

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.

I rather think they aren't talking about the profit for the whole company, but rather the profit per device (== sales price - marginal cost). Possibly they wouldn't get their way, but at least there's a clear demand.

Attorney fees. Finally something that might actually be non-zero!

my emphasis. Attourneys are well known for working for free.

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.

that seems to be the author's choice.

Re:So what do they expect to actually get?

[harlows_monkeys]

Why? The defendant used the software without complying with the GPL. The only way they could have done that legally would have been to buy a non-GPL licence from the copyright owners. But they didn't, so the copyright owners didn't get any money. Wouldn't that consitute "damages"?

Generally, actual damages are your lost sales due to competition from the infringing copies. A typical example would be if you made bootleg "Harry Potter" books and sold them through bookstores. Customers who buy yours would probably not by from the authorized publisher, and the amount of sales they lose are their actual damages. Note that this is related to profits--your profits are going to be about the same as their actual damages.

With free software, the copyright holder doesn't have sales that are harmed by the competition from the infringing copies.

Your notion that the cost the infringer would have to pay to get permission to do what they were doing should count as actual damages is novel. But I don't think it would get far in court, because it is too remote. The plaintiffs had no expectation that they would be selling a special license to Monsoon, so Monsoon's failure to buy one does not represent damages to the plaintiffs. The plaintiff expected zero dollars and GPL compliance. They got zero dollars and non-compliance. The dollar difference between what they expected and what they got is zero.

some more quotes ..

[rs232]

"If that quote is correct then I suggest Daniel Ravicher is better off acting like a responsable adult"

I see, acting to assure compliance with the GPL is acting 'childish'. As to your erroneous claim that no-one would notice - I don't think so.

' 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 '

--

morning shift .. :)

was: Re:If that quote is correct

Re:some more quotes ..

[dbIII]

No - demanding blood after compliance is the childish bit. It's better to win graciously than to be vengeful after you win.

Re:some more quotes ..

[rs232]

No - demanding blood after compliance is the childish bit. It's better to win graciously than to be vengeful after you win

In what jurisdiction does that kind of Legal Argument hold sway? Monsoon Multimedia were repeatedly asked to comply, it was only after such willful non-compliance did the SFLC move on it.

Re:some more quotes ..

[dbIII]

It's over. They complied. This is about pushing furthur. It's not about legality, it's about the ethics of kicking somebody while they are down with the excuse that it may deter others that are never going to notice this anyway. It's better to come off as being a reasonable person that wants people to comply with the licence instead of a fanatic that must be fought to the end becuase they are after your blood.

Re:Case is: No loss of $ - case is a non-case - MO

[Anonymous Coward]

So you are of the opinion that code is worth nothing? Free Software isn't gratis for developers of derived works; it's just that they don't pay in money, but in code. Only usage of the products is free of charge.

please dont settle

[talledega500]

So that we can see the GPL and all open source licenses proven unenforceable in one fell swoop!

Re:Case is: No loss of $ - case is a non-case - MO

[ajs318]

Except they weren't "giving it away". They were making it available subject to conditions, and Monsoon Multimedia defaulted on those conditions. Therefore, permission to copy the code was not granted and Monsoon Multimedia infringed copyright.

Just because you pay the bill for your land line in arrears, doesn't mean the telephone company can't take action if you go ringing people in India, Botswana and Malaysia and then decide not to pay for the calls! And taking a paper from the railway station newsagents and not using the honesty box is still shoplifting. The fact of the goods being offered before any obligation is fulfilled, in no way diminishes the obligation.

no relincense

[leuk_he]

(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?


That is 2 questions. (counting is hard?)
1. If it is compatible (Source please), You can use apache code,
2 But you cannot re licence it.

You might have to add some lines in your license/readme that the code contains parts that are under a apache license, and who is the original creator of that work. (attribution).

Re:Case is: No loss of $ - case is a non-case - MO

[AvitarX]

What if the authors say they are willing to sell allow it to be non-GPL licensed for a million dollars each.

Wouldn't that give the code value then?

What if they said a million a copy?

By your logic I can just use QT without releasing code or paying Trolltech because the code is GPL.

Perhaps if any of the authors says that no amount of money would lead them to allow non-GPL release it would have no value, but I don't think that has been stated.

Simply not enough?

[gentlemen_loser]

The Free Software Foundation considers a GPL violation cured when the offending entity comes into compliance. Given that the software was free to begin with, I am not sure that its a good idea to pursue additional penalties (especially monetarily). Use of GPLed projects (like Linux) is popular in many corporations and is frequently allowed to fly below the radar by most management and legal departments. If the penalty for a violations stops being compliance and starts being gold digging, management, legal departments, and people in general will shy away from the GPL like a plague.

Re:Simply not enough?

[T.E.D.]

Given that the software was free to begin with, I am not sure that its a good idea to pursue additional penalties (especially monetarily)

This is a wholly untrue statement. The "free" in Free Software has nothing to do with money. It is quite common (perhaps even more common) for the development of free software to be underwritten by a company who simply needs that software (or a feature in that software) for their own business needs. Pretty much the entirity of Apache has always been and continues to be built that way. A better example is ACT, a company whose entire business revolves around supporting the GNU Ada compiler, which they have spent more than a decade developing and improving. More commonly known are Red Hat (nee Cygnus), which have the same relationship with Cygwin, the Win32 Unix compatability layer.

If someone were to take that work, tack on a few improvements, and then start selling it to the developer's customers without even giving those improvements back so that developer can still compete with their own work, would that not cause financial harm? Even for a user, if there's an improvement that I should have had, but didn't because of the license violation, how much productivity has that lost me? How much did that cost me or my employer? How many other users besides me have been similarly put out? I could see damages getting quite high this way.

Re:Simply not enough?

[sjames]

On the other hand, without some recognition of monetary value assigned, management types may assume it's "worthless".

Legal departments don't stay away from MS like the plague and the penelty for violating IT'S license is pretty steep. For that matter the cost of COMPLYING with it's license is pretty steep.

Besides, simply USING Linux carries no danger of infringement at all. Incorperating it into your product carries a few requirements with it, but those are quite clear and are not subject to a sudden price increase later on nor does it require compliance documentation beyond just sticking the source on a website or on a CD with the product.

The SFLC *must* settle

[gumout]

The original licensors of GPL'd BusyBox software have no standing to sue for material breach of the GPL license.

The SFLC complaint drafted against Monsoon Media claims in part:

"8. Under the License, Plaintiffs grant certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each licensee, states:

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

A careful review of the GPL license reveals that the intended beneficiaries are "all third parties" [sec. 2(b)] - not the original licensor(s). The complaint asks rescission of the license based on copies of the source code not being made available to potential recipients ("all third parties").

In the Monsoon case, in order to claim rescission of the GPL the original licensors are basing their standing to do so on the basis an injury to "all third parties" such that they do not receive source code. The licensors in their own persons have suffered no "injury in fact" in order to confer standing to sue for breach of contract and rescission. Only the (unidentified) injured third party beneficiaries may sue for the failure to make source code available.

"Standing" means that a plaintiff has a personal stake in the outcome of a dispute sufficient to obtain judicial resolution of that controversy. The concept focuses on whether the litigant is the proper party to fight the lawsuit, and requires the plaintiff to be injured or have been threatened with injury. In other words, no party is entitled to argue an action unless he himself is adversely affected by it. BLACK'S LAW DICTIONARY, 1413 (7th ed. 1999).

Re:engineering/development operations based in Ind

[zippthorne]

So.. they have a full set of redundant bosses in a rather expensive part of the world to live. As well as a full set of bosses where they actually make their product?

That's gonna last...

Re:Case is: No loss of $ - case is a non-case - MO

[petermgreen]

How do you work out how much a violation of something like the GPL is worth? For something like QT it is easy trolltech will just quote thier normal sale price for propietry licenses and they will have evidence that they really have customers who think it is worth that. On the other hand if the author has never sold a propietry license before it is going to be much harder for them to show that the damages figure they give is reasonable.

Re:Case is: No loss of $ - case is a non-case - MO

[AvitarX]

So if I offer a book for sale, and no one ever buys it, but you start start selling bootlegs does that mean there is no damages?

Of course the court may determine it as such, but I doubt it.

I would calculate the damages for illegal use of my code in a commercial product as being a percentage of the retail dollars brought in. I would hire an expert to say (independently decide) that 20% (or whatever) of the value of the product comes from the code, and it is reasonable to assume that 50% of retail price is the cost. So damages would be 10% of the total money spent on the product by consumers (since it would be reasonable to expect that's what would be spent on buying the software).

Another solution would be to say we are 20% responsiblke for the product, and therefore want 20% of the profit, but that sounds like a bad idea for some company that is probably losing money.

But there are ways to assess damages that could probably hold up, even if something has never been sold (see patent trolls)

Not worth it

[Anonymous Coward]

Those guys have now complied with the GPL, see:
http://myhava.com/forum/viewtopic.php?t=874

Now, one should question wether pursuing that case is useful. This company's behavior is nnot so great (they didn't answer request and complied only after they were sued), but they're not complete jerks either, as they have admitted wrong doing and have now fullfilled the GPL.

Do we need to go to court for such a petty offense as not making source code available for a few weeks? I'd say we better go out of court and prepare the community when there is a real, more powerful, offender who really doesn't recognize the validity of the GPL.

Re:Case is: No loss of $ - case is a non-case - MO

[someone1234]

The price Monsoon asked for their version of the software is a good base for the damages estimation.
It needs to be determined, how much percentage they lifted from the GPL code and how much is their genuine code.

Frankly..

[msimm]

Recovering the cost of attorneys fees alone would be no small thing. And technically damages can be considered any revenue made, had the copyright holder(s) chose to, say, dual license the product and legally bring it to market. Should people be allowed to keep profits made by stealing your intellectual property?

Re:While they're at it... TROLL ALERT!

[Anonymous Coward]

crawl back under your home bridge you fool!

Wrong injury

[The Monster]

In the Monsoon case, in order to claim rescission of the GPL the original licensors are basing their standing to do so on the basis an injury to "all third parties" such that they do not receive source code.

Nope.

The basis of the legal action is not an 'injury' to these third parties, but to the copyright holders. If I write software, a song, or play, I can license it under the provision that everyone who wants to copy the software, sing the song, or perform the play, must send a postcard to KUON-TV (PBS affiliate in Lincoln, NE, an example pulled straight out of my ass.) A person who fails to comply has not "injured" the station. They've violated my copyright.

Agree: Then why do we punish attempted murder?

[KWTm]

"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."

I must be living on a different planet from the lawyers. Here I was thinking that compliance means publishing the source code together with all the proprietary modifications, in a form that anybody can recreate the exact same software by recompiling it. In the warped mindset of a PHB, that means giving away the crown jewels for free. How is this not a deterrent for such deadbeat companies?

If you try to assassinate the president of the US or some such person, the authorities will put you in prison, even if you fail to kill! They say, "We can't let the would-be assassin walk free just because the president is still alive."

The authorities must be living on a different planet from me. Here I was thinking that "alive" meant that the president was healthy and able to continue setting his policies as usual. In the warped mindset of an assassin, that means suffering through the continued political maneuvering of someone he had wanted dead. (In the case of assassins for hire, the assassin would have to live without his assassin's fee.) How is this not a deterrent for assassins?

Parasites, not theives

[Black Copter Control]

They had an EULA which claimed that the code was theirs, and prohibited users from decompiling, etc. the code in the box.

Claiming the code is theirs is technically slander of title, but it's getting a lot closer to theft (appropriation) than people who make a Genesis song available on the net but make no bones about where it came from. (( the original point about theft vs infringment is still arguable, but I'd say that it's not the slam-dunk that was originally implied))

Once people brought up the point about the code being GPL, the support geek fell back to the EULA and claimed out that the people who found BusyBox had violated the EULA to determine that.
This is entirely repugnant to the letter, the spirit and even the raison d'etre of the GPL. It's not just a case of forgetting to put the source code up.

If these guys were to write busybox (and the rest of the Linux core, which was also appropriated) themselves, it would cost them somewhere between hundreds of thousands of dollars and millions of dollars. If they were to use Windows, they'd be paying through the nose to Microsoft and limited rights to customize it.

The value of the derivative code that comes from being required to make changes available is priceless. Linux is, at this time, probably 99% derivative code, and 1% original Linus code THAT is the kind synergistic value that the GPL can generate. These guys were freeloading off of the synergistic work of thousands of GPL/Linux programmers (not just busybox), while refusing to pay back the community who gave them this incredibely powerfull tool.

Probably 95%-99% of the code in that box was purloined GPL code. Between the SFLC, FSF and the Linux foundation (whatever name it now has), I think that these guys could legitimately be dinged for 90% of the price of what they were selling -- and that's before you take into account punitive damages.

The Copyright act explicitly allows for the making available of your works in return for access to mine. The fact that this doesn't entail any direct money exchange is probably part of the reason why statutory damages were included in the copyright act -- specifically to preclude this kind of logical flag-waving.

Um, no.

[ClickWir]

"Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught"

Um, no. This is what I dislike about how current law works. They just assume that since something was settled one way that it'll always be that way from then on.

That's like going to a party and saying no to a dance from someone, it doesn't mean the same decision would be reached if each person asked.

Teh FOSSie Justice!!!

[Anonymous Coward]

"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."

And, on the other side of the coin, it shows how admitting to being wrong and coming into compliance has no incentive. If you are going to end up in court, why bother discussing the matter? Just let the jury decide. If you stretch the trial out long enough, perhaps teh Lunix will not have enough money to continue the legal process... or perhaps you will have made enough money to make it worthwhile.

Either way, it's just another case of "GPL as a protection racket". This is different from a monopoly's goals how, exactly?

That's what I thought

[msebast]

http://slashdot.org/comments.pl?sid=307011&cid=20745097

Re:Expenses -- Pulling an SCO?

[Black Copter Control]

You can't only pay attention to those parts of a contract (or, in this case, a license) that you like, and expect a judge to side with you.

It's like if I said "If you pay me $1200/month, I'll let you live in my house". Then, once you move in you claim "I have possession of the house. Possession is 9/10ths of the law, piss off and go away" -- Besides, you gave me permission.

Although you may have possession, the underlying title still lies with me and, unless you abide by the rules that I set out as a prerequisite of allowing you access (or, in the case of GPL, use), you will ultimately get your head handed to me on a platter (as long my resources don't run out before the court case does). You can, like SCO, delay the final result, but you can't stop it unless, like SCO, you just die first.

GPL is a license, not a contract.

[Black Copter Control]

I would read the GPL as a promise not to sue for Copyright violation as long as you (agree to and really do) follow certain rules (make the source available) (this is the essence of a license). If you don't follow those rules, then you're limited to what copyright allows you (I.e. very little). If, in the absence of you following GPL rules, you do stuff that violates copyright (I.E. distribute my code), then I get to come down on you like a tun of bricks, and charge you with copyright violation.

You learn something new every day

[codingmasters]

I never knew Sourceforge owned websites like this one.

Re:engineering/development operations based in Ind

[Anonymous Coward]

Yeah, we all know how that ends up. I hope the employees in the US have their resumes up to date.

Hope the US enjoyed being the technology leader while it lasted. Smart move letting corporate America give away the future of the country just to save a few dollars.