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GPL Lawsuit May Not Settle
A number of readers wrote in to inform us that contrary to earlier indications, it's no sure thing that the lawsuit alleging GPL violation by Monsoon Multimedia will get settled out of court. Linux.com now reports that the SFLC's legal director Daniel Ravicher has stressed that no agreement has been reached: "Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance." (Linux.com and Slashdot are both part of Sourceforge, Inc.)
i think the microsoft advertisement linked to this article is inaccurate as well. CHECK YOUR SOURCES!!!
today is my birthday also.
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
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.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
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.
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.
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?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?
There are shills on slashdot. Apparently, I'm one of them.
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."
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.
Forget thrust, drag, lift and weight. Airplanes fly because of money.
IANAL, but the way I understand it, lost revenue is often difficult to prove. In cases where it can be established that the offending party knew that it was violating copyright and willfully did so anyway, however, the court can require payment of statutory damages (which can be much higher than any revenue the plaintiff might have actually lost). The only glitch here is that I was under the impression that you needed to have registered your work with the Copyright Office in advance in order to claim statutory damages.
Breakfast served all day!
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.
How we know is more important than what we know.
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
Maybe this is what Eben Moglen meant when he said: Now, as usual, when you win a small tactical engagement that turns out to be a large strategic victory, you have to consolidate the gains, or the other side will take them back. So we are now moving into a period in which what we have to do is to consolidate the gains. We have to strengthen our own understanding about what our community can do.
How we know is more important than what we know.
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.
-- Alastair
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.
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
If you want news from today, you have to come back tomorrow.
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 you mod me down, I will become more powerful than you can imagine....
Are you posting anonymous because you're the only /. reader who doesn't have adblock?
you get the horns.
Nice non sequitur. Creative Commons licenses are not software licenses at all .
The United States of America: We do what we must because we can.
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.
The Farewell Tour II
And this one time, at band camp, we argued about copyright and taxes and it was so cool.
How we know is more important than what we know.
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.
Web2.0: I love when people Flickr my cuil and digg my boingboing until my google is reddit and I start to yahoo
However your running under the assumption that GPL is very close to Public Domain. It's pretty restrictive.
-The world would be a better place if everyone had a hoverboard
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.
Good Legal Advice?
/. !!!!
THIS IS
There are two kinds of fool One says 'This is old therefore good' Another says 'This is new therefore better'- Dean Ing
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.
Breakfast served all day!
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.)
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
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.
> 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.
Interesting tacit assumption that following the GPL is punishment. :-)
- Injunction to stop infringing copyright
- actual damages
- profits from the infringement
- attorney fees
- anything else the court might want to do
As soon as the defendant complies with GPL, they aren't infringing, so #1 isn't a big deal.Actual damages? That's a big fat zero.
Profits? At this stage in the product's life-cycle, defendant probably isn't profitable yet, so that's likely to be another big fat zero.
Attorney fees. Finally something that might actually be non-zero!
I don't see much punishment happening here. They'll settle for attorney fees and some nice (to the developers) but insignificant (to the company) payment.
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.
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.
Apocalypse Cancelled, Sorry, No Ticket Refunds
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.
Apocalypse Cancelled, Sorry, No Ticket Refunds
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.
http://www.donarmstrong.com
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.
Je fume. Tu fumes. Nous fûmes!
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.
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?
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.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
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.
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)
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
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.