Telstra Violating the GPL?

daria42 writes "It looks like Australia's largest telco, Telstra, hasn't exactly been paying attention to its responsibilities under the GNU GPL. Australian coder Angus Gratton has been investigating the company's branded T-Hub, T-Box and T-Touch products — all based on Linux, and all without any source code or GPL license attached. Naughty. However, it's not as though Telstra is the only one to blame — the goods are manufactured by Sagem, Netgem and Huawei respectively." Telstra responded quickly to Gratton's claims, saying they would work with the vendors to straighten out the licensing situation and fix any compliance issues.

Comments

I dislike Telstra as much as anyone

[Anonymous Coward]

In Australia Telstra is the villain that everyone loves to hate. But in this case, it is not really their problem. They paid some OEM for a branded product that I very much doubt they had that much invested in. This is really a minor oversight that has been turned into a story.

Re:I dislike Telstra as much as anyone

[Charliemopps]

ignorance is no excuse. I've been told this by a judge while in court. Time for a Judge to tell Telstra.

Re:I dislike Telstra as much as anyone

[DrgnDancer]

Ignorance of the law is indeed no excuse (though it is often a mitigating factor), but in this case I'm not sure Telstra has broken a law. They sold and/or rented these devices to their customers as a reseller. Are they responsible for GPL compliance or is the original manufacturer? They slapped their brand on the things, but had nothing to do with design or manufacture. I honestly have no idea what their legal responsibility is, and I doubt anyone but an Austrailian IP attorney could offer a valid opinion. To my mind this is the OEM's problem not the reseller. After all we don't go after Best Buy if some product on their shelves is violating the GPL.

Re:I dislike Telstra as much as anyone

[DrgnDancer]

I'd accept that now that they've been made aware of the infringement they have a responsibility to make the information available. I don't know that there's any case for any sort of retroactive damages or anything like that. There's a legal difference between ignorance of the law (no excuse), and ignorance of what you're doing (typically considered excusable). If I'm selling stolen goods in my shop, but can make a reasonable case that I didn't know they were stolen, I'm typically not held responsible. I can't keep selling the items in question of course, but I'm not going to be fined or sent to jail. In this case, if Telstra makes a good faith effort to correct the problem (which it seems like they are doing), I don't think they did anything "wrong" per se.

Just because they have branded it

[DarkOx]

Just because they have branded it does not mean they have changed any source. I have never seen one of these things so I don't know anything about them; but they may not be obligated to distribute any source. Also you don't have to provide the source with your binaries to satisfy the gpl. You just have to make the source available in a useful format if someone wants it. Has anyone asked Telstra or any of the manufacturers for the code?

Re:Just because they have branded it

[WarJolt]

You must tell your customers that you are using GPLed code.

Re:Just because they have branded it

[jgreco]

If Toyota were to slyly use GPL'd code in some part of one of their vehicles, it probably would be ridiculous to try to make the case that the local privately-owned Toyota dealership had failed to live up to its responsibilities under the GNU GPL, even though they were the one that sold you the car. In all likelihood, the dealership has no clue about where the code in the car's processors ultimately comes from, because only Toyota would have source code for the stuff.

It would be helpful to remember that Telstra might similarly have contracted out to have some Internet appliances made; if the manufacturers didn't tell Telstra that the code was legally encumbered, then you wind up in this sort of situation, with no intentional malfeasance on the part of Telstra, and lots of confusion when you start making accusations.

The idea of holding the seller responsible for a manufacturer's use of GPL code is interesting. I'm pretty sure our local retail stores sell things like generic DSL modems and wireless access points without providing access to the source code. I'm positive that the local T-Mobile reseller who rents a kiosk at the mall had no idea he was required to provide access to source code for the T-Mobile WRT54G-TM's that were being sold a year or two ago. He was selling products in a box, there are no markings on the box that would indicate encumbered GPL code was in use, etc. It would be interesting to see if a case had ever been brought against such a retailer.

The Telstra case may well lie somewhere in the middle; their engineering department was probably aware of the design of the devices at some level.

I'm sure this will be read as an anti-GPL message by some zealot with an angry mod finger, but come on people, let's at least try to be fair and openminded. Telstra can be damned if and when the facts are established that they willfully and knowingly violated the GPL.

Re:Just because they have branded it

[dattaway]

In your analogy of Toyota distributing cars without following terms of the license, the dealer is NOT authorized to distribute under terms of the license. It becomes a copyright violation. The GPL is very clear about this.

Re:Just because they have branded it

[abhi_beckert]

That is simply not true. If you commercially distribute a GPL or GPL-derived product, you must inform all users that it is GPL, and inform them how to get the source code, and all tools needed to work with/build said code.

Re:Just because they have branded it

[MichaelSmith]

My LG Android phone has a long file of OSS licenses which detail which binaries the licenses apply to. At the bottom of the list there is a statement from LG that they will provide the source code to me on CDROM. It gives an email address I have to contact with my request. For me they are fulfilling with the requirements of the GPL by doing that. Now I wonder if the Telstra products have the same license window and if the ultimate supplier has filled in the statement at the end with the offer of the source.

My guess is that Google actually take care of some of this and provide a procedure to follow and boilerplate documents with some CM work thrown in. They don't want Android to get a bad name, I am sure.

Re:Just because they have branded it

[mikael_j]

I know I'm replying to a troll here but what the hell...

Theft and violating a software license are not the same thing.

A more apt (although still flawed) analogy would be if Toyota started manufacturing cars containing stolen components (although they had not done so previously) and these were then sold on to retailers. The retailers would have no reason to suspect that the cars contained components that had been stolen and in most jurisdictions they would at worst be forced to give up the cars or at least the stolen components and be reimbursed by Toyota for their costs. Of course, as I already stated this analogy is also flawed.

Re:Just because they have branded it

[contra_mundi]

There isn't much cognitive dissonance. GPL just uses the strong copyright to keep itself and derivatives one sort of free.
A much stranger position to me is hating copyright and GPL, because you at the same time hate the former which takes away freedom (to use and copy) and the latter which gives freedom (to use and copy).

Re:Just because they have branded it

[Stray7Xi]

In your analogy of Toyota distributing cars without following terms of the license, the dealer is NOT authorized to distribute under terms of the license. It becomes a copyright violation. The GPL is very clear about this.

The point is they don't need to agree to the license, the GPL never forces anyone into it (section 9). By not agreeing to the license, all normal copyright law restrictions apply to them. However in this case they aren't infringing copyright, they're merely abiding by first sale rule.

In fact a case can be made that apps that include a click-through EULA of the GPL violate the GPL. Since clicking I disagree will refuse to install the app which is an additional restriction (section 10). You can't force someone into the GPL, only pursue them for copyright infringement if they disagree.

Pursuing Telstra is stupid, they should be attacking the OEM manufacturers.

9. You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

10. ...
You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License. For example, you may not impose a license fee, royalty, or other charge for exercise of rights granted under this License, and you may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it.

Re:Just because they have branded it

[Ginger Unicorn]

The GPL is designed to short-circuit copyright and subvert it against itself, so there really is no hypocrisy. In both cases, the "slashdotter" you're complaining about is railing against copyright.

Re:Just because they have branded it

[shentino]

Unfortunately, the economics of pre-trial negotiations often boil down to who can survive the gravy drain the longest.

Until you get to court, it's survival of the fittest, where backstabbing cheating, financial muscles, and outright bribery rule.

Faceless companies can outspend individuals any day, which is why they often win before the game even starts.

Re:Just because they have branded it

[DrgnDancer]

Actually to keep things even moderately on topic it should be Australia. Just sayin'.

I hope it goes to court

[abhi_beckert]

Telstra should get a serious ass kicking over this. The amount of money they've spent on advertising alone for this product line wipes out any possible "we didn't know" excuse.

They had to have been told, by multiple lawyers, that this is happening.

If an ordinary person can get fined millions of dollars for minor IP violations, then a corporation the size of Telstra should be fined tens of billions for knowingly violating the GPL in a flagship product. But of course, the law is never fair.

Re:Not sure that is fair.

[abhi_beckert]

How could they not have known? You don't spend a hundred million dollars promoting a product without hiring competent lawyers to cross your t's and dot your i's.

Any IP laywer would check the origin and license of the software.

Re:Hanlons Razor

[Cytotoxic]

They have a special bundle that includes the T-Hub, T-Box and T-Touch all in a velveteen container. They call it the T-Bag.

Stories like this don't help

[kevingolding2001]

Until my contract ended, I was recently working for a large IT company (50K people worldwide).

The company did a sales demo recently, and one of the main concerns of the client was that 'we don't use open source in any way'. The client was shit scared of anything to do with 'open source' because they believed that if any were used for anything, suddenly they had to give away all their proprietary secrets to the world.

I tried to explain the differences between the licenses to my boss (BSD vs. GPL vs. Apache etc) and what the GPL really meant (If you don't distribute you have no problem) but since it was my leaving do and people just wanted to drink beer, I don't think anyone was listening.

Stories like this about Telstra just pander to the FUDists.

Re:Stories like this don't help

[Registered Coward v2]

I wonder how many lawyers get paranoid about open source licensing and yet don't bat an eyelid when presented with a business software license that gives the vendor the right to audit the client at any time at any business location to check for license violations, or other such wackiness that you can find on the contracts for super-expensive business software.

Probably because they are dealing with one specific vendor whom they can reach an agreement with, or go to court against, if they have a contractual dispute; unlike GPL code where many different people who are involved. The first gives them certantity and a familiar set of circumstances while the second looks like anarchy and confusion. Not hard to see which they'd prefer.

Re:Stories like this don't help

[AmElder]

My first thought was, like yours, that it might be better to give Telstra a chance to bring itself into compliance before hitting it with the bad publicity stick. However, after reading TFAs, I think Angus Gratton (the one who noticed the violations) did this right. He tried to contact the company first and got no response, so he's leveraging the power of the community and Telstra is responding. The blog post linked to in the summary explains how he went about it all.

Emphasizing compliance over prosecution should make Free Software less threatening to companies (says a guy who's never worked for a big organization). It's the right way to go about things.

If you read Gratton's post, he doesn't write with any rancour. He's sketches the simple steps Telstra can take to become compliant. By they way, he anticipates most of what people are saying in this thread and gives his own pre-emptive responses.

Re:Telstra are the distributers

[jc42]

It is not sufficient to merely provide links. Telstra must provide the source code.

Huh? If this were literally true, then an N-level distribution chain would require separate copies of the source on machines owned by every part of the distribution chain, including the delivery companies that merely transport the physical packages, or the customer's ISP if the product is downloaded. It's fairly common for GPL-compliant suppliers to merely link to the source on a web site owned by one company in the chain. As far as I know, this has generally been held acceptable.

If every company involved in the distribution has to have a separate source repository, it would seriously interfere with the distribution of GPL'd software. It would be quite reasonable for a distribution company to refuse to deliver GPL'd products if they were required to supply the source to software inside packages that they were delivering. Here in the US, I'd expect that USP and FedEx would be very unhappy about being required to run source repositories, as would every ISP (though the ISPs would at least have employees who know what software source code is ;-).

I hope this isn't an actual requirement of any version of the GPL. Has anyone collected a list of the wording of various versions, with explanations of their legal implications? If some version does actually have such a stringent requirement, it would be useful to know about it, so we can avoid using that version with software that needs to be "delivered" in physical or electronic form.