Hosting Company Appears To Be Violating the GPL [Resolved]

palegray.net writes "A web hosting provider called Appnor has recently moved the network diagnostics utility WinMTR off of SourceForge, and is now claiming the program to be a closed source, commercial application (it was previously made available under the GPL). I emailed the current maintainer of the original mtr utility about this, and have been informed that this event most likely constitutes an overt GPL violation, as it is presumed that WinMTR contains mtr code. Appnor claims that they have the right to do this, as there have been no external contributions to WinMTR in over ten years. I'm not a lawyer, but I don't think copyright law works that way." Update: 01/10 18:24 GMT by KD : The CEO of Appnor, Dragos Manac, has posted a response, claiming that no GPL violation occurred, and promising to revert the code to GPLv2 by the end of the week.
Update: 01/11 14:01 GMT by KD : That was fast. WinMTR announced that the code is now available under the GPLv2.

Comments

Copyright law doesn't work that way

[Nursie]

It's been extended to the ridiculous, remember?

So even if they've somehow removed all the GPL code contributed by others, then there's the whole 'derivative works' thing.

Re:Copyright law doesn't work that way

[wvmarle]

I agree. My first thought was in the lines of "it would be great if they actually were in the right, because it would mean that the copyright had expired". As it stands, copyright basically never expires. And that's not the idea behind copyright.

Re:Copyright law doesn't work that way

[WPIDalamar]

Please explain "the whole 'derivative works' thing."

If I have a codebase that I'm the only contributor to, because anybody else's code has been removed -- why wouldn't that be entirely my copyright, which I'm allowed to do what I like with?

You can't copyright ideas in the US. Only specific manifestations of those ideas. So even if WinMTR is doing the same sort of thing, copyright doesn't come into play.

I'm not saying that's the case with WinMTR -- my guess is that they have MTR code in there and are not in GPL compliance.

Re:Copyright law doesn't work that way

[Shikaku]

Clean Room Code.

It's how NTFS-3G was made.

http://en.wikipedia.org/wiki/Clean_room_design Google it or see this for a summary.

Re:Copyright law doesn't work that way

[moonbender]

If you add code to a GPL'd project, your code is a derived work and must be GPL-compatible (if you redistribute). I don't think it suddenly ceases to be a derived work if you remove all the other contributor's code. And your replacements for their code is a derived work, too, unless you do the clean-room reimplementation thing.

Re:Copyright law doesn't work that way

[drinkypoo]

Has this actually been tested in court? I don't know how you feel about software patents but to suggest that a program with all the original code is a derivative work is a bit of a stretch. I don't know of any cases where this specific path has been followed, but I'd find them very interesting.

Re:Copyright law doesn't work that way

[0123456]

I don't know how you feel about software patents but to suggest that a program with all the original code is a derivative work is a bit of a stretch.

If I was to take a Harry Potter novel and rewrite each paragraph but keep the same story, I'm guessing I'd be in trouble?

Re:Copyright law doesn't work that way

[Anonymous Coward]

The idea is they licenced it out, so if anyone has a copy sitting on their computer and they add a few lines of code they can then release their modified version as a derivative work, and MTR can do nothing about it. MTR can go ahead and make their own original implementation closed, assuming they rid it of all contributed code, but they can't take back their licence from anyone who has modified it and released it.

Re:Copyright law doesn't work that way

[bondsbw]

Only the copyright holder may bring suit over copyright claims.

IANAL, but I believe that means that if I contributed code to WinMTR, and these guys violated the GPL for all the code except that which I wrote, then I would have no legal claim. And thus, even if "derivative works" that are completely made of original code are violations of the GPL, nobody would have a legal claim against the violators.

Re:Copyright law doesn't work that way

[moonbender]

IANAL, I should have mentioned in my original post. I think whether calling such a program derivative is fair or not depends on the situation.

If you're talking about a very minor amount of code and/or code implementing a well-known or trivial solution (ie. a quicksort implementation), then calling all of the subsequent code derivative -- even if it's another quicksort implementation -- seems excessive. OTOH, if you're talking about domain-specific, non-trivial code which you simply tear out and re-implement (perhaps even function by function with only minor refactoring); or if you're talking about a major part of a project, as in a situation where you fork an existing project, extend it and then re-implement the 50% of the code which remains from the original: in those situation I think calling the subsequent code derivative is fair.

But this is really just my intuitive opinion at this point, I can't even say that I've put too much thought into it, either; and of course it doesn't have any legal merit whatsoever.

Re:Copyright law doesn't work that way

[0123456]

If you were to assume that books and computer software are the same, you might be dumb?

So what's the difference, in legal terms? Why would my Harvey Popper novel be hit with a multi-million dollar law suit but the equivalent action be perfectly OK if it was a piece of software?

Re:Copyright law doesn't work that way

[HungryHobo]

Because plots are copyrightable, the actual functionality of code is not.
Both the text and plot of a book can be copyrighted.
Only the actual text of a program can be copyrighted(along with it's machine code version of course).

Re:Copyright law doesn't work that way

[0123456]

Because plots are copyrightable, the actual functionality of code is not.

Since when can plots be copyrighted? Most of the publishing industry would vanish overnight if that was the case.

Are you claiming that if I was to take the Windows source, rewrite each function myself so it no longer contains Windows code, and then release it, Microsoft wouldn't have a zillion lawyers outside my house the next day?

Re:Copyright law doesn't work that way

[Threni]

> Are you claiming that if I was to take the Windows source, rewrite each function myself so it no longer contains Windows code, and then release it, Microsoft wouldn't
> have a zillion lawyers outside my house the next day?

Isn't this the basic principle behind WINE?

Re:Copyright law doesn't work that way

[Anonymous Coward]

yep. See ReactOS. www.reactos.org

Re:Copyright law doesn't work that way

[Knuckles]

Isn't this the basic principle behind WINE?

No. WINE reimplements the Windows API calls, but its developers don't use the Windows source code.

Re:Copyright law doesn't work that way

[Surt]

I think you'd be in trouble for preparing a derivative work without the original copyright holder's permission, see below.

http://www.copyright.gov/title17/92chap1.html#101

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

  103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

  106. Exclusive rights in copyrighted works38

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(2) to prepare derivative works based upon the copyrighted work;

Re:Copyright law doesn't work that way

[bws111]

No, WINE does not start with the Windows source, it starts with a description of what Windows does. Since the developers of WINE have no access to the source, it would be very difficult for Microsoft to claim they copied it.

Re:Copyright law doesn't work that way

[Rich0]

I think that is actually debatable. It would probably depend on how close it adhered to the original. If you just ran the novel through a thesaurus algorithm that would probably be found to be a derivative work. If you meticulously rewrote EVERYTHING to the point where you had entirely different subplots and themes and only by having reviewed the history of your work be able to tell where it originated you might get by as a new creative work.

It is the creative effort that makes something copyrightable. So, I would think that a court would tend to look at the the work in terms of where the creative work originated. If the creativity came from HP, and you just mangled words, then you'd probably be in violation. If your work were a clever counterpoint to the original like Pullman vs Milton, then it might be found to stand on its own (it may share some themes, but it is an entirely new creative work).

I agree with the other poster that the same logic may not apply well to software. I'd think that if you stripped out the original code you'd have a hard time saying that the original authors had a copyright claim to what remains. That would be like saying that an author held copyright to the introduction to their book written by somebody else, without an explicit assignment.

Re:Copyright law doesn't work that way

[Surt]

Not really. WINE re-implements a lot of the api, to allow you to run windows programs on linux.
They key differentiator from today's story is that they didn't start from windows code.

Re:Copyright law doesn't work that way

[Surt]

Somebody had to be the original author of the work from which it was derived. Someone's estate would have standing to sue.

Re:Copyright law doesn't work that way

[IRWolfie-]

No, Wine is a clean room implementation, they don't have the original source

Re:Copyright law doesn't work that way

[WPIDalamar]

Even reading that, I'm not sure that a work that doesn't contain anything from another could be considered a derivative.

Could we agree, that if WinMTR was written completely from scratch, and happened to do some similar things to MTR, that it would not be a derivative work?

If we can agree upon that, it's a hard argument to make that if WinMTR used to contain MTR work, but it has since been replaced, that it's still a derivative work.

Is copyright based on one snapshot of the work, and not on it's entire history? Could version 1.0.1 of WinMTR be a derivative, but version 1.1 not be?

Re:Copyright law doesn't work that way

[EdIII]

I'm finding it real hard to see this as a derived work. It's a traceroute/ping utility. There are literally thousands of them and PingPlotter Pro is one that I can think of off the top of my head.

*IF* they did in fact write a traceroute/ping utility "from scratch" (which is what they claim) and removed all of the other MTR code from it there is no way I would find that work to be derivative. There is nothing earth shattering, game changing, or original about MTR, or this new closed source utility.

What makes no sense to me, is that if they wrote this new utility from scratch and it contains none of the GPL'd code why the heck are they messing with the open source project? Why the need to even move it off Sourceforge? Did they just want to take over a popular name for a utility, if it was one? That's the part that has me scratching my head.

Re:Copyright law doesn't work that way

[Nursie]

"If I have a codebase that I'm the only contributor to, because anybody else's code has been removed -- why wouldn't that be entirely my copyright, which I'm allowed to do what I like with?"

As the poster of what you were replying to I'll explain what I meant - If you removed everyone else's code but had used it extensively as a template there may be an issue, depending on how closely your code matched previous code etc.

For instance if company A takes a GPL work, reads the source and rewrites it totally to perform the same tasks, they're probably ok. However if they just rename the functions and variables and call it their new work, well there may be an issue with it being derivative of the other work, which they don't have the right to redistribute.

*May* being the important part, it would be something for the lawyers to decide, it's a bit of a grey area IMHO.

Re:Copyright law doesn't work that way

[Surt]

Yes, if WinMTR was written from scratch, they are clearly fine. If it was replaced piece by piece, they are equally clearly in trouble. It's just the way the law is written. Either you built something standing upon the shoulders of someone else, or you didn't.

Re:Copyright law doesn't work that way

[HungryHobo]

"boy discovers he's a wizard, has adventures" is not copyrightable.

but try writing a non-parody book about a boy wizard Larry Cotter who's parents are killed by Lord Woldemort who himself was almost killed in the attempt to kill that boy who now lives with non-magical step parents who hate magic who is then on his xth birthday suddently visited by a large and imposing groundskeeper who delcares that he's a wizard and whisks him off to a magical school where he quickly makes 2 friends and had adventures involving a magical train, a flying car, a tree which hits people, werewolves,giant spiders, dragons, a touranemt with a couple of others schools, some version of rugby/football played on broomsticks etc along with the evil overlord returning every book or so to try to kill him....

then you might be in trouble.

http://www.avvo.com/legal-answers/how-closely-can-my-novel-follow-the-plot-of-a-copy-141663.html

The problem remains where to draw the line. The orphan who discovers that her parents were murdered by a villain and sets out to avenge their death is an unprotectable cliche. But every copyrightable work is a compendium of uncopyrightable components -- namely, words.

So looking at what you've written, those are such broad strokes that I would expect any US court to hold that it does not infringe JK Rowling's copyrights. Then again, if you were to keep to the outlines of what you describe, but were to divide and sequence the chapters precisely as JK Rowling did, I wouldn't be surprised if the court went the other way. Clearly on the other side of the line, if you were to scan and OCR a Harry Potter book and find and replace "wizard" with "solar knight" and "Voldemort" with "Galactina," you'd probably end up paying the fees of Ms. Rowling's lawyers.

there's massive leeway given to things being "inspired by" previous work but if you go too far you end up at the bad end of a copyright suite.

Re:Copyright law doesn't work that way

[Anonymous Coward]

Are you claiming that if I was to take the Windows source, rewrite each function myself so it no longer contains Windows code, and then release it, Microsoft wouldn't have a zillion lawyers outside my house the next day?

Two words: WINE and ReactOS. AFAIK neither of them has had a visit from Redmond.
However, if you've had access to the windows source it wouldn't be a clean room reverse engineering so you'd probably get a visit.

- Peder

Re:Copyright law doesn't work that way

[afabbro]

Because plots are copyrightable, the actual functionality of code is not.

You can't copyright a plot. You could write a story and publish it about an evil empire with a big base that has one vulnerability and a young man who has special mind powers and blows it up.

If you start talking about Darth Vader, Luke Skywalker, and The Force, on the other hand...

Re:Copyright law doesn't work that way

[dwandy]

Since when can plots be copyrighted?

Sadly Copyright and Patent are often confused.
The Plot was patented, not copyrighted.
Didn't see much follow-up, too lazy to dig for it, but IIRC it was approved.... but that may also now be overturned with Bilski, who knows. You pretty much need legal council to cross the street safely these days just in case that is a patented activity.

Re:Copyright law doesn't work that way

[HungryHobo]

"boy discovers he's a wizard, has adventures" is not copyrightable.

but try writing a non-parody book about a boy wizard Larry Cotter who's parents are killed by Lord Woldemort who himself was almost killed in the attempt to kill that boy who now lives with non-magical step parents who hate magic who is then on his xth birthday suddently visited by a large and imposing groundskeeper who delcares that he's a wizard and whisks him off to a magical school where he quickly makes 2 friends and had adventures involving a magical train, a flying car, a tree which hits people, werewolves,giant spiders, dragons, a touranemt with a couple of others schools, some version of rugby/football played on broomsticks etc along with the evil overlord returning every book or so to try to kill him....

then you might be in trouble.

http://www.avvo.com/legal-answers/how-closely-can-my-novel-follow-the-plot-of-a-copy-141663.html

There's massive leeway given to being "inspired by" other work but if you rip someone's story off wholesale then you can end up in trouble.

Re:Copyright law doesn't work that way

[Late Adopter]

Plots aren't copyrightable but a sufficiently close mimicry runs risk of being a derivative work of the original copyrighted text.

Likewise with the Windows code. Interoperability isn't copyrightable, but the source code you're using to construct your work certainly is. You need a clean-room barrier.

Re:Copyright law doesn't work that way

[TheLinuxSRC]

Except that the authors of wine are doing a clean-room implementation -- they do not have the windows source code.

Re:Copyright law doesn't work that way

[bws111]

It is not a new utility, it has been on SourceForge for 10 years. What everyone seems to be missing is this: it is THEIR code. They bought the rights from the original developer 10 years ago. THEY created the SourceForge project and released it under the GPL. It didn't contain ANY GPL code, ever, until they released it as such. In 10 years, no-one outside their company contributed to the project - they still own ALL the code. Now they have decided to no longer offer the code under the GPL, which is entirely within their rights, as they own it.

Re:Copyright law doesn't work that way

[bws111]

The owner of the original work, and all the contributions, is Appnor. Doubtful they are going to sue themselves.

Re:Copyright law doesn't work that way

[Surt]

Well, if the same entity that put all the original code under the gpl wants to relicense it/sell it/etc under a different license, they are obviously free to do so. I assumed that was not the case based on the story headline. I should have known better, though.

Re:Copyright law doesn't work that way

[davester666]

Yes, they have to at least kill all the contributors first, then wait 50 years or so. Or is that just for music?

Re:Copyright law doesn't work that way

[next_ghost]

Because plots are copyrightable, the actual functionality of code is not. Both the text and plot of a book can be copyrighted. Only the actual text of a program can be copyrighted(along with it's machine code version of course).

Which is rather curious, given that copyright law treats computer programs as literary works. What's so different between plot and functionality?

Re:Copyright law doesn't work that way

[Tetsujin]

The owner of the original work, and all the contributions, is Appnor. Doubtful they are going to sue themselves.

Well, the claim is that when Appnor wrote WinMTR, they used some code from mtr. But Appnor's counter-claim is that the new version of WinMTR doesn't include any of that original code.

Re:Copyright law doesn't work that way

[Confusador]

Isn't that part of what Oracle is suing Google over? It seems safe to assume MS would sue over significantly less than that. Now, whether they could win in court seems to be an open question.

Re:Copyright law doesn't work that way

[pyrr]

All that, and it doesn't sound like they'd even be taking the open-source code away. It sounds more to me like the company was just planning to abandon the GPL going forward as they revitalize the project internally. Probably so they didn't have to maintain the project and deal with the constant begging for more things from a community which allegedly was giving nothing back.

Re:Copyright law doesn't work that way

[wvmarle]

There is no difference in the kind of work - music, software, books, paintings, whatever: it all falls under the same copyright terms. Otherwise one would get arguments over say whether it's a book or just a print-out of software source code.

Secondly a lot of copyright these days is owned by companies, and companies tend to not die. They may go bankrupt, but otherwise have eternal life. For companies the copyright term starts to count from the moment of creation.

Why copyright has to stay with a person for life, I don't know. Why it has to extend beyond life? Well at least it prevents killings to get a work out of copyright protection.

What I'd like to see is a serious copyright reform, including two main issues: the first is a decrease of copyright terms to something like 20 years (the current patent protection period), not much more, possibly a bit less. The second is that copyright terms start from the moment of creation or publication of a work, also when it's a person creating it, and not a company. Copyrights should remain inheritable like they are now in case the creator dies during his copyright term. But no more "50 years from death" nonsense.

And of course some minor issues like removing those recent restrictions on reverse engineering and breaking of encryption. Also it should be easy for a person to put a work in the public domain (fully copyleft). Though for that I like the BSD-style license, basically saying "do with this work what you like, as long as you don't claim it's your work, and don't use my name to endorse your product".

Software Freedom Law Center

[Sonny Yatsen]

From what I know, the Software Freedom Law Center ( http://www.softwarefreedom.org/ ) provide pro bono legal representation to creators of Free and Open Source projects. Maybe you should contact both the SFLC and the maintainer of the mtr and see if there's any way of getting them together to file a GPL violation case or an injunction.

Re:Software Freedom Law Center

[LordLimecat]

Perhaps before going in with guns ablazing, some tact would be helpful. Their webpage doesnt exactly scream "hostile", as they are still offering the utility free (provided you sign up for a newsletter). They may be violating the GPL, but it may be entirely unintentional or out of ignorance-- could the author of MTR simply email them, informing them of the situation? He will eventually have to contact them anyways, I believe-- wouldnt any eventual lawsuit have to come from an author of MTR anyways?

I mean, its GOOD that someone is updating this utility; going after them with a lawsuit right off the bat doesnt exactly make "lets update abandoned GPL software" look like a good idea.

Re:Software Freedom Law Center

[Anonymous Coward]

OMG, a voice of moderation recommending we look at both sides of the issue before we act?

Someone ban this guy!!!

(Seriously, thanks for the post, no mod points to give)

Re:Software Freedom Law Center

[Rogerborg]

What's a "GPL violation case"? The GPL is a license, not a contract. You'd have to find someone with a copyright interest in the source, and the cause of action would be breach of copyright, not "GPL violation".

Re:Software Freedom Law Center

[nagnamer]

What's a "GPL violation case"? The GPL is a license, not a contract.

IANAL, but GPL is a License Agreement, so isn't it legally binding anyway? For instance, if you start using a GPL software, the distributor of the original software (be it the original author or a 3rd party) is obliged to provide the source code at least 3 years after you've agreed to the terms of GPL at least since GPLv3.

Re:Software Freedom Law Center

[Chris Snook]

If they're just trying to get people to sign up for their newsletter, they can still do that while complying with the GPL. That won't prevent other people from redistributing it, but if they have a trademark, they can still be the only source of "WinMTR", much like Red Hat is the only source of Red Hat Enterprise Linux, even though there are numerous community rebuilds that coexist with RHEL.

Re:Software Freedom Law Center

[Peeteriz]

In addition, GPL doesn't mean that they have to provide the utility free of charge to anyone - they simply must include the source + GPL rights to those people that buy their product.

Re:Software Freedom Law Center

[Rogerborg]

Hmm, you've got a point. GPL3 does now contain some very spurious language that attempts to assert that the recipient has "agreed" to the GPL if they distribute.

That's exceptionally foolish, as it muddies the water between a pure license - with copyright as a remedy - and a contract. Another Eben Moglen classic - why use one word, when seven will say more of less the same thing, in a more ambiguous way.

Re:Software Freedom Law Center

[Knuckles]

Agreed, but the history of the FSF, the SFLC, and the GPL violations they worked on shows that they *always* try to sort things amicably first, and very successfully.

Re:Software Freedom Law Center

[dwandy]

Perhaps before going in with guns ablazing

Sorry; guess I've been following the IP racketeers too long. I thought it was standard to start by going in guns ablazing and then (just in case) have the lawyers come in to shoot any survivors.
My bad.

Re:Software Freedom Law Center

[nagnamer]

That's exceptionally foolish

FTR, I don't think it is. But it has no bearing on the disputes around GPLv3 either. :)

Re:Software Freedom Law Center

[Tetsujin]

However, you do not want to set a legal precedent of "Yeah, I guess the GPL doesn't really matter" - and now that this is being discussed, a lawyer can take this page and say, "see, it was talked about, and they decided to let it slide, so we need to let it slide now that $INSERT_FAVORITE_FLAMEBAIT_HERE is in the cross hairs, since they are really doing the same thing, and our legal system does not play favorites"

I know that, "doesn't play favorites" is arguable, but if it gets called out in court, then I feel that in this case it will not help the case of anyone defending the GPL.

If the author(s) of mtr decided to let this slide, that would not undermine the GPL in general, just with regard to mtr.

As it happens, Appnor has decided to go back to GPL to avoid the whole issue.

Re:Software Freedom Law Center

[Kalriath]

Hmm, you've got a point. GPL3 does now contain some very spurious language that attempts to assert that the recipient has "agreed" to the GPL if they distribute.

That was an attempt to stab at Microsoft - a failed one, obviously, since there's no way under copyright law you can bind a copyright license on an organisation for distributing vouchers to get a piece of software off a third party and any half-baked lawyer should know that.

Re:Software Freedom Law Center

[Confusador]

It's a copyright infringement case that occurs because someone illegally distributed something they would have had a right to if they had complied with the terms of the license the product was offered under. "GPL violation case" seems like a nice shorthand.

Re:Software Freedom Law Center

[dondelelcaro]

That's exceptionally foolish, as it muddies the water between a pure license - with copyright as a remedy - and a contract.

The language used in GPLv3 to describe what type of agreement is being entered into is puprosefully vague, because it must apply in many different jurisdictions while avoiding incuring the liabilities of a particular legal framework in one jurisdiction which may be strengths in another jurisdiction. Furthermore, it isn't like this license was written only by Eben Moglen. Hundreds of people (including myself), many of them lawyers in different legal systems (not including myself), read the license and made suggestions. Most everything which is written in the license is well reasoned and there for a specific purpose; there are almost certainly bugs, but great effort was expended to avoid as many of them as possible.

Re:Software Freedom Law Center

[LordLimecat]

Except that, the only information we have regarding what license applies is from Appnor's CEO (linked in summary), who states that he purchased the rights to WinMTR and that there was a single external contribution which they patched out.

So in reality, unless there is conflicting info, it would seem that there was no violation at all, and contacting SFLC or EFF would have been a gigantic waste of time; simply emailing the man would have sufficed.

Re:Software Freedom Law Center

[Tetsujin]

Except that, the only information we have regarding what license applies is from Appnor's CEO (linked in summary), who states that he purchased the rights to WinMTR and that there was a single external contribution which they patched out.

So in reality, unless there is conflicting info, it would seem that there was no violation at all, and contacting SFLC or EFF would have been a gigantic waste of time; simply emailing the man would have sufficed.

Indeed. And everyone who posts about how common code has been found between WinMTR and the mtr project are looking at older versions of WinMTR, because the current release is (AFAIK) still not out in source form yet.

I guess when the code comes out people will be able to see whether they really did get rid of the mtr code in there... <shrug>

Re:Software Freedom Law Center

[Rogerborg]

I'm not sure Moglen has ever seen the inside of a courtroom in anger. Never mind half baked, I think he's still gooey in the middle.

Re:Software Freedom Law Center

[Rogerborg]

Oh, it's very obvious that GPL3 was written by many, many different people. I single out Moglen for special praise though because he carried it to Stallman, on a hurd of gnus, to be blessed.

So let me get this straight:

[commodore64_love]

Somebody created a program called MTR, and a web company modified it to WinMTR and stole the author's labor without payment. Is that the general gist of it?
Sounds like something RIAA/MPAA, record, and Movie Companies would do.

Re:So let me get this straight:

[homb]

No, they didn't steal the author's labor without payment, at least not originally with WinMTR. They made a derivative work, still using the GPL, so all is acceptable.
It's only when they changed the license to commercial that they broke the contract with the original developer who specifically requires anyone using mtr code to provide their software under GPL (among others).
So unless they can prove that there is no more mtr code in WinMTR, they must absolutely provide WinMTR under the GPL. Otherwise they have no right to use mtr code.

Re:So let me get this straight:

[MysteriousPreacher]

Nah, payment doesn't really come in to this. They legitimately benefited from the labour of the original artist, with certain conditions applied, but much later-on decided that these terms no-longer applied to them. Kind of like being allowed to stay rent-free in a house, on condition that the lawn is kept tidy, but after a few years deciding to screw the lawn and sell the lawnmower in order to buy crack.

Mind you, you're right about it sounding like RIAA/MPAA behaviour.

Re:So let me get this straight:

[pe1rxq]

The post just mentions it is 'presumed' that it was based on mtr...
I find that a bit week. First you have to prove that there ever was mtr code in winMTR, then you accuse them with a GPL violation.... Either the summary is incomplete/incorrect, or the submitter is jumping to the second part without doing enough fact checking.

Re:So let me get this straight:

[jedidiah]

The overly expansive nature of modern copyright meants that the actions of this company would be still considered "piracy" long after the authors are dead and long after we're no longer around to argue the point.

Interestingly enough, 10 years of abandonment is getting close to the limit of the original copyright term.

Thus the concept of "abandonware" for 20 or 30 year old discarded works.

Re:So let me get this straight:

[Zibri]

So unless they can prove that there is no more mtr code in WinMTR, they must absolutely provide WinMTR under the GPL. Otherwise they have no right to use mtr code.

Innocent until proven guilty, no? The burden of proof lies with the accuser.

Re:So let me get this straight:

[LordLimecat]

Guys, on the WinMTR page (linked in summary), it explicitly states that it is an update to a 10 year old abandoned linux/unix utility called MTR.

The summary isnt SUPPOSED to be complete, youre supposed to man up and "read".

Re:So let me get this straight:

[Anonymous Coward]

This is a civil matter, not criminal. "Innocent until proven guilty" is for criminal courts; civil suits need merely to establish a "preponderance of evidence" on one side or the other.

Re:So let me get this straight:

[LordLimecat]

Or someone made a mistake? Geez, I see no indication that anyone actually tried to contact Appnor (despite the summary implying it), and people are labeling them as monsters (MPAA comparisons? Really?)

How about a polite "You guys might be violating the GPL, any chance we can discuss?" email, or something? You dont have to fire off a lawsuit immediately, and generally the places that help with enforcement (ie EFF) tend to NOT want to cram a lawsuit down someones throat until all other avenues have been tried.

Re:So let me get this straight:

[Moryath]

No. I'm not a lawyer but I imagine the argument goes something like this:

"Burden of proof" in a civil (e.g. copyright) case is "preponderance of evidence."

WinMTR previously was GPL'ed and the source was available. Part of its licensing was the licensing of the mtr code. This constitutes prima facie evidence that at some point in time, at least, there was mtr code in WinMTR.

Therefore, the burden is now on WinMTR to prove that all mtr code has been removed from WinMTR. At bare minimum, there is enough evidence to file a GPL claim and request that a judge subpoena the source code of WinMTR for analysis as evidence.

Re:So let me get this straight:

[Stumbles]

Point of clarification... they have to right to distribute. They would be fine if the code was kept in house.

Re:So let me get this straight:

[mysidia]

Guys, on the WinMTR page (linked in summary), it explicitly states that it is an update to a 10 year old abandoned linux/unix utility called MTR.

The trouble with this is that MTR was never "abandoned". If it was, there might be noone to pursue this, and they might have gotten away scott free with this, but there is still a maintainer for MTR and there are even recent releases.

Re:So let me get this straight:

[seeker_1us]

Read the comments in The Fine Article.

Yes. WinMTR does seem to contain mtr sources, or at least older mtr sources from before mtr supported IPV6. You can get the sources for WinMTR from http://winmtr.cvs.sourceforge.net/viewvc/winmtr/.

example code omitted

Definitely looks like there is verbatim copying. If they clear out the CVS, I will mirror the code on my blog

Re:So let me get this straight:

[Red Flayer]

youre supposed to man up and "read".

Sorry to be such a noob, but I did man up, and the man pages for that command are completely useless in the context of this discussion.

I'm running Debian lenny if that helps.

Re:So let me get this straight:

[morgan_greywolf]

Clearly WinMTR 0.8 is based on Matt's Traceroute. See my comment attached to TFA.

Re:So let me get this straight:

[KiloByte]

Uhm, mtr "abandoned"?? Most distributions seem to be removing old staples like traceroute from default installs, having replaced them with mtr, which certainly doesn't seem to be pining for the fjords.

mtr does everything traceroute did, except instead of doing every probe only after the previous one has timed out, it sends them all concurrently, a packet every a fraction of second, providing a nifty real-time display of statistics.

Re:So let me get this straight:

[m.ducharme]

Though the burden is still on the plaintiff, it's just a (much) lower burden.

Re:So let me get this straight:

[FrootLoops]

Actually, the site reads "[WinMTR] was started as a clone for the popular Matt’s Traceroute (hence MTR) Linux/UNIX utility." That doesn't mean source code was necessarily copied, just that they wanted to duplicate MTR's functionality. However, Rob Shinn posted evidence that code has been copied in a comment to the summary's Palegray link. For instance, the lines

sequence[seq].index = index;
sequence[seq].transit = 1;
sequence[seq].saved_seq = ++host[index].xmit;

appear in both sources.

Re:So let me get this straight:

[trapnest]

OS X user here, I don't even have an up command. Perhaps the GP was thinking of another command?

Last login: Sun Jan 9 19:12:18 from m355a36d0.tmodns.net
[seanconnolly@fenrir:~]$ man up
No manual entry for up

Re:So let me get this straight:

[DragonWriter]

WinMTR previously was GPL'ed and the source was available. Part of its licensing was the licensing of the mtr code. This constitutes prima facie evidence that at some point in time, at least, there was mtr code in WinMTR.

 

"At some point in time" isn't enough. In order for Appnor to have any burden to meet, anyone accusing them of violating copyright based on not following the GPL with WinMTR would need to provide prima facie evidence that WinMTR -- now, not in the past, if it is based on the behavior with regard to the version they are now distributing -- either uses GPL code or is a derivative work of GPL code.

Absent that, Appnor wouldn't have to prove anything.

Re:So let me get this straight:

[Frosty Piss]

For instance, the lines

sequence[seq].index = index; sequence[seq].transit = 1; sequence[seq].saved_seq = ++host[index].xmit;

appear in both sources.

Sounds a little like SCO's argument...

Re:So let me get this straight:

[Danathar]

They don't have to prove a negative (that there is no code). The plaintiffs would have to prove there IS code (and they could by subpoena of the code in question.

Re:So let me get this straight:

[pclminion]

So, you're making the same type of argument that SCO made when they claimed they actually owned Linux. "See, look at this scrap of code, it looks a lot like this other scrap of code." Of course, we all know how well that worked out for SCO.

Re:So let me get this straight:

[FrootLoops]

I'm claiming my quote is evidence that WinMTR is a derivative work of MTR, so that the GPL applies to force WinMTR to be open source. It doesn't just "look like"; those lines are verbatim in both sources, and it's clear that one was derived from the other from the rest of the source quoted in my citation.

If you don't accept that as evidence, what would you accept?

Re:So let me get this straight:

[pclminion]

I'm claiming my quote is evidence that WinMTR is a derivative work of MTR, so that the GPL applies to force WinMTR to be open source. It doesn't just "look like"; those lines are verbatim in both sources, and it's clear that one was derived from the other from the rest of the source quoted in my citation. If you don't accept that as evidence, what would you accept?

I do not think it is clear at all. If the codebase was heavily copied from MTR then there will be mounds and mounds of examples beyond that one. Where are they?

What would I accept as evidence? Clear statements from developers saying that they were copying the code. Comments that indicate the pedigree of the code. LARGE blocks of IDENTICAL code.

Re:So let me get this straight:

[Tetsujin]

So, you're making the same type of argument that SCO made when they claimed they actually owned Linux. "See, look at this scrap of code, it looks a lot like this other scrap of code." Of course, we all know how well that worked out for SCO.

Well, yes. It is possible for someone to make a legitimate claim, and someone else to make an invalid claim, and for the two claims to take the same form.

Really, that's how any "derived code" issue is bound to play out, unless the "derived code" is so trivially different from the original that huge, critically-important sections are character-for-character identical. The group making the claim will try to establish an argument that some other project constitutes a "derived work" and therefore should fall under their copyright claim... But since anybody who maintains a project (derived or not) is bound to change things over time, the code most likely won't be identical.

Re:So let me get this straight:

[Kalriath]

I'd say "anything more significant than a 3 line scrap of code that can't really be implemented any other way".

Re:So let me get this straight:

[alexo]

I'm claiming my quote is evidence that WinMTR is a derivative work of MTR, so that the GPL applies to force WinMTR to be open source. It doesn't just "look like"; those lines are verbatim in both sources, and it's clear that one was derived from the other from the rest of the source quoted in my citation.

The only thing that is clear is that this particular code sequence appears in both projects. What is still unclear is whether:
- WinMTR copied the code from MTR, or
- MTR copied the code from WinMTR, or
- WinMTR licensed the code from MTR under a non-GPL license (GPL tolerates dual licensing), or
- the code was taken from a third project with a more permissive license (say, BSD or public domain).

While I agree that the most probable scenario is the one you allege, it is by no means the only one possible.

Re:So let me get this straight:

[FrootLoops]

Yes, but the variable and field names are entirely identical, down to the underscore and capitalization. The non-identical WinMTR code tends to prefer CamelCase: "WinMTRNet::GetNewSequence" and "SaveXmit(index);".

Moreover, the order of declaration of "next_sequence" and "seq" are identical in each version (as are their precise names) and the order of the three lines I quoted is identical. Either of these two groups could be permuted without changing the resulting code--there are 2*6 = 12 possibilities in those lines alone, considering only line ordering, and they happen to match. So, I'd say it really can be implemented many other ways and this is probabilistically very strong evidence.

There are numerous other suggestive details I could point out. True, it's not utterly conclusive, but neither is DNA testing (which has a small but non-zero error rate).

Re:So let me get this straight:

[FrootLoops]

I didn't meant to imply it was conclusive evidence that WinMTR is a derivative work, just that it was evidence. I do believe it's conclusive evidence that one routine was derived from the other, though as you say that could mean MTR copied the code from WinMTR instead of the other way around, or that it was copied with permission (though this is quite unlikely since the maintainer for over the last decade is quoted in TFA and says nothing of the kind).

Re:So let me get this straight:

[LordLimecat]

The fact that Appnor's page explicitly mentions that it was an update to the original MTR?

People are wildly speculating on something that is explicitly stated in both summary AND links? Really?

Re:So let me get this straight:

[FrootLoops]

Alright. The source files for the code in my citation are WinMTRNet.cpp (see also WinMTRNet.h) and net.c in the mtr-0.80.tar.gz. Both include the ICMPHeader struct with identical field names (not very strong evidence), the struct sequence with identical field names, and the structs nethost and s_nethost which share half a dozen field names precisely--when they do they are in the same order. These three structs are in the same order in each file.

The functions after new_sequence in the MTR source are, in order, net_send_query, net_process_ping, and net_process_return; the functions after GetNewSequence are SendQuery, ProcessPing, and ProcessReturn.

These are things I noticed looking at those two source files briefly; I didn't have to hunt around at all. It's reasonable to expect a fair amount of difference since WinMTR was started ~8 years ago and both sources have diverged somewhat since then. Expecting large blocks of identical code seems unreasonable because of the time frame, though I wouldn't be at all surprised to find numerous snippets like the above in a detailed analysis.

There appear to be large blocks of very suggestively similar code. Ordering and name conventions alone are enough for me that I would swear in court that the two are derivatives.

Re:So let me get this straight:

[smellotron]

Both include the ICMPHeader struct with identical field names (not very strong evidence), the struct sequence with identical field names, and the structs nethost and s_nethost which share half a dozen field names precisely--when they do they are in the same order. These three structs are in the same order in each file.

The functions after new_sequence in the MTR source are, in order, net_send_query, net_process_ping, and net_process_return; the functions after GetNewSequence are SendQuery, ProcessPing, and ProcessReturn.

Surely there is some tool in academia that looks for isomorphism across two pieces of source code? I mean, the most obvious thing to do when copying someone's code is to rename all of the variables and functions, and maybe trivially futz with the control flow. But if the end result can be shown to have the same "shape" of decision trees, it's either cheating or convergent evolution. Seems you could apply this sort of a tool to source files across WinMTR and MTR.

Re:So let me get this straight:

[FrootLoops]

Hmm, interesting. I think the devil would be in the details. Over time if's (and the like) and functions are removed or added. Matching functions up would be difficult without a human to guide the process. A simpler problem to automate would probably be to compare structs (or the language-specific equivalent). You could compare names and data types with order considerations. After fields are typed, they usually don't switch orders or data types (perhaps excepting signed/unsigned), so it'd be decently robust. You could automatically compare two routine's local variables and perhaps arguments/return values similarly. Comparing two routine's decision trees would be difficult and probably uninformative if the routines were short.

A lot of code similarity is from things that the compiler "doesn't notice", like where whitespace is used, naming conventions, (partial) abbreviations, code (including function argument) ordering, and file divisions. In this case each of these provides evidence that the code was derived.

Re:Abandonware?

[Anonymous Coward]

I don't know, it probably wouldn't be because there's no such thing as an Abandonware "classification". It's just a feel-good term made up by people so they feel less bad about blatantly distributing games with still-active copyrights.

If it is only their code...

[pe1rxq]

They might actually have that right IF:

- It contains only code they have copyright over
- They have permission from (if any) all other copyright holders.

However they can't revoke the license they gave everyone who downloaded their gpl versions, these old versions and their license is still valid.

However if the code indeed contains mtr code and they have no permission from the copyright holders to distribute is under something else than the GPL.... Then they have a problem
But you have to prove that first.

Re:If it is only their code...

[Andy Dodd]

Yeah, it IS possible to relicense GPL code, but you need to be able to prove in a court of law that you attempted to contact EVERY single contributor and give them plenty of time to reply.

(As I understand it, there were some Mesa GPL contributors that could not be contacted, but the Mesa developers went through a lot of trouble to try and contact everyone and gave them many months to object.)

In this case, it sounds like there were "no external contributions for 10 years", but even ONE contribution still present in the code from 10 years ago is enough. Based on the description (I can't access TFA from my current location), it sounds like they made no attempt to contact the original mtr authors.

Re:If it is only their code...

[kirthn]

and if they didn't use gcc ;) or libs...

Re:If it is only their code...

[fishbowl]

You are saying a US court deprived someone of a copyright because he didn't respond to an infringer?

Re:If it is only their code...

[Dr_Barnowl]

Erm, no.

I hope you're gently trolling for "Funny" points. I'm willing to give you the benefit of the doubt, with that wink.

But for those who'll take it seriously ; using gcc does not in any way impose any license on the output. And GPL specifically excludes components that are ordinarily installed with your target platform from consideration when determining what constitutes a derivative work.

Re:If it is only their code...

[Rich0]

Any of the original MTR authors then of course have standing to sue over GPL violations. I'm sure that if one of them contacted the company they would take appropriate action.

This of course assumes that they didn't strip the copyrighted code they don't own the rights to out of the product. If they did then they wouldn't have standing most likely.

Re:If it is only their code...

[Pharmboy]

Yeah, it IS possible to relicense GPL code, but you need to be able to prove in a court of law that you attempted to contact EVERY single contributor and give them plenty of time to reply.

Wrong. If you own the copyright to a piece of code, no matter how many times they try to contact you, they are still infringing on copyright if they use the code. Copyright doesn't go into the public domain just because the owner doesn't enforce it. You don't lose your rights as copyright holder if you don't enforce the copyright. (Trademarks, yes. Patents and copyright, no.) If you can't contact the copyright owner, then it is impossible to legally use GPL code in a non-free project until the copyright expires.

Under all circumstances, you can NOT relicense ANY copyrighted software that you do not yourself own. Ever. You can relicense Public Domain software if you so choose. IANAL, but I get to deal with these finer points of law regularly, and pretty confident on my conclusions, for what that is worth.

Re:If it is only their code...

[sydneyfong]

Yeah, it IS possible to relicense GPL code, but you need to be able to prove in a court of law that you attempted to contact EVERY single contributor and give them plenty of time to reply.

In common law jurisdictions, I think the licensor also needs to overcome any estoppel issues that arises. It would probably be a tough fight.

Re:If it is only their code...

[sabt-pestnu]

> Under all circumstances, you can NOT relicense ANY copyrighted software that you do not yourself own. Ever.

Wrong. You can do so IFF the holder(s) of the copyright gives you explicit permission to do so. Such permission is assumed if you are the holder of the copyright, but not otherwise. Even so, this does not change the *copyright* status. Licenses are not copyrights.

"Implicit permission" to do so is, as you point out, copyright violation enforceable at the copyright holder's whim.

Re:If it is only their code...

[blincoln]

Copyright doesn't go into the public domain just because the owner doesn't enforce it.

In the past I would have agreed with you, and I still do in principle, but I think you're forgetting the "Google exemption" (as used for their slurping up of thousands of old books). That is, if you are an enormous corporation with plenty of money to throw around, you can effectively treat copyrighted works as public domain in this manner.

Re:Abandonware?

[Wrexs0ul]

Doesn't make it legal. There's still copyright on Abandonware, the idea though is that the original authors will make no/cannot make an attempt to litigate, hence it being "abandoned". The classification doesn't usually come from the author, but people who find great software that's (typically) no longer available, then make an effort to keep distribution of that software alive.

Don't just take my word for it: Wikipedia on Abandonware.

-Matt

You're quite correct

[laughingcoyote]

Unless everyone who originally submitted code to the GPL project has explicitly agreed to the relicensing, they're breaking the law. You don't "implicitly" agree to relicensing of code you've submitted just by not contributing any more for a while. The only time that a time frame comes into it is when the copyright actually expires and the project falls into the public domain, which in our era of life-plus and Mickey Mouse Copyright Perpetuation Acts, is basically never. This is the exact type of scenario the GPL was designed to prevent.

Re:You're quite correct

[MysteriousPreacher]

I believe as well that a project can be relicensed by the copyright holder if part of the submission process involves contributors assigning copyrights over to the person or project who run the show.

Yup, they're playing fast and free with the GPL. Based on their excuse I'm assuming that their legal team sees Yahoo Questions as an authoritative source of legal advice, or they're just dicks.

Re:You're quite correct

[jedidiah]

What ever else happens, the last release to make it into wild as GPL is still Free Software.

Re:You're quite correct

[MMC Monster]

Except that they've already released the code under the GPL. Someone can legally fork the GPL version. This seems to be something they want to prevent.

I am not a lawyer, BTW.

Re:You're quite correct

[j-beda]

There is nothing requiring them to continue to make available any of their own code that they had previously released GPLed. Thus while there is nothing preventing someone to fork the old GPL version, if nobody has a copy of the source, there is no way practically to do so.

Re:You're quite correct

[LordLimecat]

Im not sure it works like that; it might even then be derivative software.

Re:You're quite correct

[mysidia]

There is nothing requiring them to continue to make available any of their own code that they had previously released GPLed.

However, they hosted the code on SourceForge. And SourceForge has a right to continue to make available the archives and version control history of their software from before it was GPL.

Part of the sourceforge terms of service is all products have to be GPL, and you can't destroy/remove your code, except under certain extenuating circumstances such as a court order requiring them to take down the archives

Re:You're quite correct

[hedwards]

Sure there is, you can't just plunk down new code into older GPL code and remove the licensing on it. I think you can do that if you own the original code and provided all of it originally, but I don't think you can do that once you're dealing with other people's GPL code. You only get to change the license on code that you own the rights to, not other people's patches.

Re:You're quite correct

[mysidia]

Part of the sourceforge terms of service is all products have to be GPL

OOPS: all products have to be redistributable open source per the OSI definition

Re:You're quite correct

[MysteriousPreacher]

The GPL (at least version 2) requires them to make the source available. Distributing anything under GPL obliges the distributor to make the source available for at least three years. That contract though is between their customers and themselves, so I think it'd have to be someone who previously a version of WinMTR contained GPLed code who'd have to make the request.

Re:You're quite correct

[laughingcoyote]

There would be that, but there's also the question whether anyone else's code is in there. If anyone else has code in the project, they'd be violating that person's copyright by distributing that code under terms that person did not agree to, and that person could subsequently go after them for copyright infringement. Following the GPL is the only way they have license to distribute any code but their own at all.

Re:You're quite correct

[j-beda]

Distributing anything under GPL obliges the distributor to make the source available for at least three years.

But for the copyright holder, there is nobody else with standing to enforce that obligation. When the copyright holder distributes something under the GPL, the GPL only applies to FURTHER distributors. The GPL is a license for the downstream, and if the copyright holder stops distributing things, nobody downstream has any ability to compel the copyright holder to any further action. The GPL gives you the recipient of GPL code rights to use and distribute that code, but it does not oblige the author of that code to do anything.

Of course as has been stated, if any GPL code from some other author is being used, then they are not the copyright holder for the complete work, and the GPL does apply to them and can be enforced by the author of the original code.

Re:You're quite correct

[icebraining]

Yes, but wouldn't Sourceforge (where the code was hosted) be a third-party subject to the GPL in this case? Since the GPL is irrevocable, can the author force SF to remove the sources?

Re:You're quite correct

[j-beda]

You are correct, SF cannot be forced via the GPL to remove the sources if they have them and want to post them (absent any other arrangement between the parties).

Re:You're quite correct

[Tetsujin]

There is nothing requiring them to continue to make available any of their own code that they had previously released GPLed.

However, they hosted the code on SourceForge. And SourceForge has a right to continue to make available the archives and version control history of their software from before it was GPL.

Part of the sourceforge terms of service is all products have to be GPL, and you can't destroy/remove your code, except under certain extenuating circumstances such as a court order requiring them to take down the archives

Right, just like there's a version of MAME that's still available under the GPL, while the mainline development has moved to a more restrictive license, and added support for a lot of new games since making the change...

Re:Abandonware?

[commodore64_love]

There's no such thing as "abandonware".
You've invented a term that is popular but doesn't actually exist in legal parlance. There's copyrighted work like 1928's Steamboat Willie, and then there's uncopyrighted work like 1946's It's A Wonderful Life (the license was not renewed) AKA public domain. Since this MTR program is only 10 years, the copyright has Not run out yet.

Re:Abandonware?

[jgtg32a]

Abandonware is just a justification for piracy, it just means that the (c) owner doesn't care enough to enforce their (c). IIRC X-Com was considered abandonware for a while, but with the rise of nostalgic video games it has been rereleased on just about every digital dist service.

Interesting

[Wrexs0ul]

Does this depend on the version of the GPL? I thought you were allowed to hold-on to your source code except in cases where you provide a product with GPL'ed code in it (and in later versions a service with GPL'ed code), only then are you required to provide source access to those people on request. What the buyer does with it is after that doesn't apply.

Am I right in thinking there's no problem removing the source code and charging for a sale, but the authors would then (and only then) be required to provide the buyer with source?

-Matt

Re:Interesting

[91degrees]

Yes. That's pretty accurate. It does appears that this company isn't providing source to the purchasers.

It may be that they in fact are. Or they may hold the copyright to all the code within the product. It just doesn't look like it.

Re:Interesting

[MysteriousPreacher]

I think that's been pretty consistent in all versions. If you distribute a GPLed product (excluding internal use within organisations) then you must make the source available to anyone receiving your product, and there are a number of ways suggested for this distribution. Technically they're not required to make the source available to the general public, but these days it tends to be the easiest option. I suppose limiting it to distribution of source based on distribution of the actual product made sense in the days when distributing source could have mean physical media. Since the GPL limits charges to pretty much covering the cost, it's understandable that Debian shouldn't be required to ship floppies to someone who picked up their copy of Vim from Canonical.

Re:Interesting

[91degrees]

I suppose limiting it to distribution of source based on distribution of the actual product made sense in the days when distributing source could have mean physical media.

I've always assumed it was more analagous to buying a physical device. So if you buy a device you have acces to the components (you need to take it apart but typically it's as easy to understand the operation of a sewing machine as a piece of source code). If you don't buy (or otherwise legally acquire) a sewing machine then you don't have any right to see how it works.

Re:Interesting

[blueg3]

Correct. You can take a derivative work that's under the GPL and previously publicly-accessible and stop distributing it publicly. You can even sell it and not include the source code. However, you must provide the source code upon a buyer's request (and cannot place further redistribution restrictions on the buyer). You also must include the GPL license, which informs the buyer of this right.

Re:Interesting

[Kalriath]

That's not true. If you develop or use GPL code within your organisation and never distribute it outside, the FSF holds that distribution has not occurred as the entire organisation is a single entity, therefore the requirement to distribute source never triggers. Our government relies on this very premise in their own use of GPL code (despite the fact that as a government, their interpretation of law is law).

Re:Who cares

[log0n]

Big picture much?

10 years and almost no development

[Novus]

While Appnor could get away with this if they had, for example, rewritten all external contributions, the fact that the recent v0.9 was released after "only 8 years 11 months and 5 days of inactivity" (according to their own website!) makes it hard to believe they've actually done much in the way of rewriting during those 10 years mentioned in the summary.

While I'm not familiar with Romanian copyright law, the country has ratified the Berne convention, which I don't think allows as short a period of 10 years before copyright expires.

Since they've removed all downloads from SourceForge, it's a bit tricky to check the original copyright.

Re:10 years and almost no development

[Novus]

I finally managed to pull a copy of the v0.8 source from archive.org, and it seems that you can still access the CVS repository even though it seems to be missing from the SourceForge page. I can find references to contributions by Vasile Laurentiu Stanimir (the main developer) and Silviu Simen in the source code and Teodorescu Cristian in the commit logs. The latter is interesting as he seems to have started work on WinMTR 0.9 in 2004, contradicting Appnor's statement of inactivity.

Re:10 years and almost no development

[standbypowerguy]

Since they've removed all downloads from SourceForge, it's a bit tricky to check the original copyright.

There's always the Wayback Machine....

(Google it, I hate typing HTML into Slashdot)

Cmdr Taco, why can't we just have a "link" button like most other forum sites?

Re:10 years and almost no development

[Anonymous Coward]

WinMTR mtr

if $author of winmtr works for appnor, then it is entirely possible and legal for appnor to purchase the rights to winmtr, and have winmtr have nothing to do with mtr (it's possible without $author working for appnor, but easier if they do).

On the other hand, GPL'd versions of WinMTR cannot be forcibly removed from existence, so hey, knock yourself out.

Re:10 years and almost no development

[palegray.net]

Worse, there actually appears to be code directly copied from mtr in the WinMTR codebase, which contradicts Appnor's current claim that it was independently developed.

Re:10 years and almost no development

[TheoMurpse]

In that case, you need to download the code off the CVS repo and hold onto it. Keep your eyes open if there are any rumblings about a lawyer or someone with a legal knowledge helping out contributors. That CVS code would be very, very strong evidence of a violation of the GPL. Nigh incontrovertible, even.

Re:10 years and almost no development

[mikechant]

While Appnor could get away with this if they had, for example, rewritten all external contributions,...

Only if they re-wrote them 'clean room' fashion.
If you sit there with the original code in front of you and re-write it like that, it's still a derivative work for copyright purposes. A good example is that if you (say) rewrite a Fortran program in C pretty much line-for-line, the original copyrights still apply; if you only copy the functionality and and public interfaces black-box fashion, it's OK (ignoring patents!).

It's quite probable Appnor's developers *did* see and refer to the original code if/when they rewrote parts of it. Although this isn't specifically enough to make it a derivative work, I believe it would be considered pretty damning evidence combined with some specific examples of code structure similarity.

Re:10 years and almost no development

[Josh Coalson]

better yet, grab a copy of the whole cvs repository from which you can check out any version:

rsync -av rsync://winmtr.cvs.sourceforge.net/cvsroot/winmtr/* .

Re:10 years and almost no development

[Tetsujin]

Worse, there actually appears to be code directly copied from mtr in the WinMTR codebase, which contradicts Appnor's current claim that it was independently developed.

Their claim is that 0.9, the current version, does not include code from mtr. They are going back to using the GPL for WinMTR and will be releasing the source - so that's the version to check if you want to find out if they were telling the truth.

Re:10 years and almost no development

[dfghjk]

No, not "only if they re-wrote then 'clean room' fashion". There's a whole world of ways to write code between a "clean room" and a mechanical derivative. No one came claim ownership of the knowledge in your head.

Question...

[zarthrag]

Why does sourceforge allow the removal of GPL'd projects in the first place? You'd think that would be something you can't take back...

Re:Question...

[jarkus4]

And why not? Even with GPL I can decide I don't want to distribute my program anymore and stop doing this. I just can't stop other people that already got it from distributing it on their own.

Re:Question...

[Andy Dodd]

Good question. I know a Sourceforge database glitch or other outage caused the disappearance of files from a (long-defunct) project I briefly contributed to.

Five years later, I was trying to find that code (mainly curiosity) and found a bunch of rants from a guy claiming GPL violations because the project no longer existed.

Note that in this case:
1) The binaries disappeared in addition to the source. This guy was complaining that not being able to find ANY component of the project was a GPL violation.
2) Very early in the project, there WAS a fork of commercial code - the commercial branch forked even before the GPL release. The guy was under the false assumption that the project had been "taken closed" when in reality, the GPL fork just got abandoned. (There was a LOT of duplication of effort on the commercial side to reimplement the few things that had been added to the GPL branch since release.)

Re:Question...

[Dachannien]

In the case of derivative works under the GPL: That's assuming you've already given them the source code. If you distribute the executable with a link for downloading the source, but you don't package the source with it, you could end up in a situation where strict compliance requires you to host something you otherwise wanted to stop hosting - at the very least, a link to some other repository, or a means of contact for yourself or your company.

If you're not talking about derivative works under the GPL, though, but you're talking about purely original works licensed under the GPL instead, you're not even under an obligation to provide the source.

Re:Question...

[e70838]

If, by accident, I have published copyrighted material on sourceforge in a gpl project, I need to be able to rectify my mistake and remove it.

I think, it is a mandatory use case.

Re:Question...

[icebraining]

Even with GPL I can decide I don't want to distribute my program anymore

But you're not distributing, Sourceforge is. And they have an irrevocable license to do so.

Re:Question...

[LocalH]

Nothing can EVER compel someone to keep a GPL'd work available if they are found to be in violation. There are always two options - make source available, or stop making the binaries available.

Re:Question...

[Tetsujin]

Why does sourceforge allow the removal of GPL'd projects in the first place? You'd think that would be something you can't take back...

Here's a pretty good reason, IMO:

Ten years ago, I was really interested in writing programs for PalmOS. I spent some time working on some programs of dubious utility, plus a game that never quite got to the point of 100% working properly. Then, at some point, I just stopped. I moved on to other things. But still those projects were on Sourceforge.

Now, PalmOS is basically dead. You have to jump through some arcane hoops just to get an SDK. PalmOS is just about ready to drop off the map entirely.

I could leave my old junk sitting around on Sourceforge, cluttering up their namespace, or I could face facts: the chances that any of my old code would actually be useful to someone is so remote at this point, that it's not worth keeping it there. Certainly I haven't done anything in the way of keeping those pages updated... In that case, I think it's better to remove the projects.

Re:Question...

[zarthrag]

I have plenty of old code that falls under the same category. Maybe it would be better if they had some kind of "archive" function for long-dead/inactive projects.

Re:Abandonware?

[Barefoot Monkey]

If the program hasn't been maintained or updated in 10 years, wouldn't it be classified as Abandonware (much as old PC games get classified by those who want to share them?)

Not exactly. The term "abandonware" refers to software for which there is no legal means of obtaining (other than by resale through the first sale doctrine). Some people are under the impression that abandonware is not subject to copyright, but that's not true at all.

It might be a fork

[mrnick]

If it didn't start off as a version of MTR, as discussed, then it's possible that this is a fork of a previous version. This is a pretty common practice.

Re:It might be a fork

[palegray.net]

There's code from mtr in WinMTR.

Re:It might be a fork

[Tetsujin]

There's code from mtr in WinMTR.

The real issue is whether that code is still in the current version of WinMTR. The source code for the new version hasn't yet been released, so it remains to be seen.

All it does is Traceroute and Ping?

[Blakey Rat]

It may be a GPL violation, but who cares? Those tools already ship free in every OS on the planet. Nobody's going to make any money off this. And the fact that nobody from the community contributed code in 10 years kind of tells us what level of interest there is.

Re:All it does is Traceroute and Ping?

[wvmarle]

The only person(s) who counts, is the copyright holder in that matter (there may be more than one, each having copyright on different parts of the software). If the copyright holder cares, s/he may do something about it. If the copyright holder doesn't care, there is no case. And indeed in this case there is a good chance the copyright holder doesn't care, or at least doesn't care enough to do something about it.

Re:All it does is Traceroute and Ping?

[electrosoccertux]

It would be a valuable lawsuit if nothing more than setting precedent regarding the legal enforceability of the GPL.

Re:All it does is Traceroute and Ping?

[KiloByte]

"Nobody contributed code in 10 years"? No, mtr is alive and well (and shipped in default install of all distros), they're either lying or mean that they took a 10 years old release.

Re:All it does is Traceroute and Ping?

[FrootLoops]

No. The current maintainer of MTR, Roger Wolff, does care. He's quite explicit in his email, reproduced in TFA. He's been maintaining the software since before WinMTR existed as well according to the MTR page.

Re:All it does is Traceroute and Ping?

[MikeBabcock]

mtr is a much better tool than what ships with whatever OS you're thinking of, unless its an OS that mtr itself ships on.

The output is superior and continual unlike standard traceroute programs with options for ascii graphing to see trend data easier.

As a quick example for the uninitiated, this is what mtr 0.75 looks like, doing a trace to slashdot.org.

Re:All it does is Traceroute and Ping?

[jadm]

Even Windows has included pathping.exe in every version since Windows NT (yes, probably excluding 9x and ME, pedants).

Re:Who cares

[otis wildflower]

And a frickin windows utility at that.

I'm thinking nothing of value was lost.

Still, prosecute, because if you don't exercise your rights you lose them.

It was already free

[digitaldc]

So it still is free, is it not?

Re:It was already free

[standbypowerguy]

So it still is free, is it not?

As in beer, perhaps. But there's no freedom in beer. The GPL provides the freedom.

Re:It was already free

[FrootLoops]

From the WinMTR site, "Your Cost: FREE! Provided you subscribe to our newsletter. You can opt out immediately if you don’t like it." More relevant quotes: "License: Commercial. We changed it from GPL since in the last 10 years there was no external development. Still, we plan to offer it for free", and the title of every last page, "WinMTR – Appnor's Free Network Diagnostic Tool" (emphasis mine).

Re:It was already free

[Plekto]

The beer may be free, but the paternity test nine months later isn't.

Re:Abandonware?

[wisty]

If the program hasn't been maintained or updated in 10 years, wouldn't it be classified as Abandonware (much as old PC games get classified by those who want to share them?)

Like Windows 95, which has had no support since December, 2001, and no updates for 13 years?

Can I fork that?

Re:I'm not a lawyer, bu

[MysteriousPreacher]

They could just assume that any reply not prefixed with "IANAL" is advice from a suitable qualified legal profession. Blimey I'd like to see someone go to court with nothing but Slashdot comments as their case.

Yup, barring any contradictory facts emerging, this appears a pretty clear-cut GPL violation, meaning that they're now guilty of copyright violation of they continue to distribute WinMTR. FSF would probably sort this out pretty sharpish.

Re:Abandonware?

[Jabrwock]

If there's no expiry date in the contract you agree to, then as long as you continue to use the service (the gpl'd code), then you are continuously agreeing to abide by the terms of the contract. There's no abandonment clause.

Re:Abandonware?

[Stumbles]

No. There is no expiration date on GPLed software.

Appnor

[6031769]

Are you sure Appnor is a hosting company? If so, it's not exactly a great advert that their site is slashdotted already.

Re:Appnor

[anna_m]

It seems to be working for me :)

Re:Who cares

[overlordofmu]

I know. Networking. No one networks computers anymore. Shit, this is a pointless as Australia. Who fucking care about some backward shit like networking or a continent? If I bet that it took you longer to write it than to think of what to write, I would be winning some cash, now wouldn't I? Yes, I know you are Australian.

Way too early

[MonsterTrimble]

It's 8:30 Monday morning after a night of insomnia. DO we REALLY need to deal with GPL this early? Can't we do something simple like create world peace?

Re:Way too early

[msauve]

# This program is free software: you can redistribute it and/or modify
# it under the terms of the GNU General Public License as published by
# the Free Software Foundation, either version 3 of the License, or
# (at your option) any later version.
#
# This program is distributed in the hope that it will be useful,
# but WITHOUT ANY WARRANTY; without even the implied warranty of
# MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the
# GNU General Public License for more details.

# You should have received a copy of the GNU General Public License
# along with this program. If not, see <http://www.gnu.org/licenses/>.
#
#include <stdio.h>
main()
{
    for(;;)
            {
                    printf ("World peace!\n");
            }
}

Re:Way too early

[Anonymous Coward]

Comments in C do not begin with '#'. They look /* like this */. If you are doing a programming language joke, at least get the syntax right!

Re:Way too early

[morgan_greywolf]

The part that says #include <stdio.h>

Re:Way too early

[Pharmboy]

perl -e 'print "World Peace\n";'

Some people just make shit too hard.

Re:Way too early

[Travelsonic]

/* */, or just // for single line comments. /technical

Re:Way too early

[msauve]

Sorry to have screwed up the joke for you. I don't program in C, just used the first "hello world" I found, copied the GPL header, and used bash style comments.
 
Other than you, I think most people understood it.

Re:Way too early

[antdude]

If world peace was simple, then how come we still haven't had a world peace yet? :P

Re:Way too early

[vgerclover]

perl -e 'print "World Peace\n";'

$ echo World Peace

Some people just make shit too hard.

Indeed.

Re:Way too early

[Pharmboy]

Yea, but I wanted to do it in a real programming language ;)

Re:Way too early

[Just Brew It!]

You've all got it wrong. The author of the (almost) C version clearly intended it to loop; none of the allegedly simplified versions correctly emulate that functionality. What you need is:

$ while true; do echo World peace; done

or the shorter (but less obvious):

$ yes World peace

which is actually one character shorter than the last broken version above.

Re:Way too early

[j00r0m4nc3r]

echo "World Peace"

You were saying?

Re:Way too early

[sabt-pestnu]

Ah, but YOUR version of world peace is not freely distributable!

Re:Way too early

[Jaxoreth]

If world peace was simple, then how come we still haven't had a world peace yet? :P

Because collectively, there's insufficient interest. World peace means you can't go around beating up people you don't like, and for some that's a deal-breaker.

Re:Way too early

[shutdown -p now]

"Sorry" doesn't cut it when it comes to world peace, mate - and now we all know why it ain't coming, and who is to blame! ~

Re:Way too early

[smellotron]

echo 'void puts(const char*);int main(){while(1)puts("World peace");return 0;}' | gcc -x c - && ./a.out ?

Re:Abandonware?

[Stumbles]

Except there is a major flaw in your logic. There is no expiration date on the license. See its the General Public License and you will not find a time restriction. A license by any other name is still a license... at least when your talking about GPL.

Somone who holds the copyright can sue them.

[nedlohs]

Everyone else can do exactly nothing (well not use it and rant on the interwebs about it I guess).

Re:Somone who holds the copyright can sue them.

[FrootLoops]

If I downloaded WinMTR and asked them for source code pursuant to the GPL (supposing Appnor did wrongfully change the license), would I have any legal recourse if they refuse, as someone who has never contributed to MTR? If the software were more important this would actually be an important situation to deal with, so I'm curious.

Re:Somone who holds the copyright can sue them.

[nedlohs]

IANAL, and taking anything related to the legal system without huge amounts of salt on slashdot would be silly (heck technical computery stuff is often wrong).

But assuming they used that variant and didn't just include the source...

I would think not. They've made an agreement (made a contract/whatever you want to call it) with the copyright holders of any GPL code they used to do so. You've made an agreement with them to do so for anyone you redistribute to. But I don't think there's actually an agreement between you and them for that direction of transfer.

Not doing so would break their agreement with the original copyright holders, but you aren't party to that.

Re:Somone who holds the copyright can sue them.

[Rich0]

First - you would need to download it from them - not from somebody else. Otherwise it is the somebody else who is potentially violating the GPL.

Second - I suspect that only a copyright holder would have standing to sue. When they give you the software with a copy of the GPL, the GPL is defining YOUR rights to redistribute it. They're giving you permission to give it to somebody else if you provide a copy of the source.

When somebody else gave them the copy of the source with the GPL, it was then that the terms of their redistribution of the software were set forth. That is, their right to redistribute the software has nothing to do with their agreement with you, but rather their agreement with whoever gave them the software. Ultimately, this traces back to the copyright holders, who originated the software and set for the license.

So, you might be a witness for one of the author's lawsuits, but I'm not sure that you would have standing to sue.

Disclaimer: IANAL.

Re:Somone who holds the copyright can sue them.

[FrootLoops]

Mostly I was hoping to either get a lawyer's opinion (there are a few on /.) or hear from someone who's dealt with a similar situation personally.

I can understand your reasoning. Indirectly, though, *my* rights would be violated as a consequence of the copyright holder's being violated. That he doesn't care and I do doesn't seem like it matters. But IANAL.

Re:Abandonware?

[mysidia]

If the program hasn't been maintained or updated in 10 years, wouldn't it be classified as Abandonware (much as old PC games get classified by those who want to share them?)

MTR is not abandonware; it is still actively maintained. As for WinMTR however.... who knows.

Re:Who cares

[nedlohs]

No it's akin to someone taking a flower from your garden and your neighbor getting pissed and protesting.

Re:Abandonware?

[Red Flayer]

There is no expiration date on the license.

But there is an expiration date on the copyright that makes the use of the license compulsory.

Once the copyright expires, no license is required to use the code.

I mean, sure, you *could* opt to use the code under the GPL after the copyright has expired; but why would you when you can use the code completely unrestricted?

Re:Abandonware?

[Anonymous Coward]

Or I can just go on wikipedia and get the same info without having to navigate 100 other sites. And if I wanna check the sources, I can just scroll down. Fuck you.

Re:Abandonware?

[Anonymous Coward]

Looks like anyone can add their own opinions to stackoverflow.com pages. What was the point of ignoring a Wikipedia article with several legal references again?

Re:Does the GPL prevent you from dual licensing?

[0123456]

Assuming company A is the copyright holder to a particular piece of software. Couldn't they license it out commercially and under the GPL.

Yes. But they have to actually hold the copyright... if others contributed and didn't assign copyright to them then they can't really claim to own it.

Re:Abandonware?

[realityimpaired]

Assuming that they're telling the truth about there not being any external contributions in the last 10 years, how do you know there's still GPL code in the codebase?

I'm not saying that there is, or that there isn't. Just trying to play devil's advocate here... Windows has changed a lot in the last 10 years, and it's entirely possible that in maintaining the code to keep up with those changes they have phased out all of the GPL code in the interim. Of course, until they open themselves up for an audit to prove that there isn't any copyrighted code in their codebase, there's not really any way to tell.

Some Clarifications

[dmanac]

I think there is a need for some clarifications:

1) The company has rights over the entire source code, bought from the original maintainer. There is NO other code from contributors.

2) The whole thing is written from scratch for Windows. No MTR code is used.

3) The binary is available for free. We just thought nobody cared too much having it Open, since there were no contributions in almost 10 years.

Again, we are not trying to violate GPL and we will make sure there are no licensing issues. We are checking this with our lawyers.

Dragos MANAC
CEO Appnor MSP S.A.

Re:Some Clarifications

[Ecuador]

No, we'll take an AC comment over it, or a /. summary that "presumes"...
What happened to innocent until proven otherwise?

Re:Some Clarifications

[morgan_greywolf]

1) The company has rights over the entire source code, bought from the original maintainer. There is NO other code from contributors.

2) The whole thing is written from scratch for Windows. No MTR code is used.

If the code for v0.9 looks anything like this, no it doesn't. There are direct copies from Matt's Traceroute (mtr), so I've forked your previous Sourceforge project, as is my right under the GNU General Public License.

Re:Some Clarifications

[palegray.net]

As others have noted, several people have apparently found mtr sources in WinMTR. This means either (1) you've been misinformed, (2) you're deliberately lying, or (3) they're lying. Given that people have posted actual code excerpts to back up their claims, I strongly suspect you're lying.

Re:Some Clarifications

[BLKMGK]

Ah beat me to it - with the added clarification of purchased rights! Interesting, although others have seemed to indicate that there was some original MTR code in it. I can't say not having checked but it ought to be easy enough to do by someone who won't be fooled by silly things like the SCO folks apparently were ;-)

Someone mod this guy's post up so everyone can try and calm down with the pitchforks and torches (lol).

Re:Some Clarifications

[Doctor_Jest]

1. I find that hard to believe considering the list of contributors on the sourceforge site.

2. I doubt that seriously based on the CVS tree. Why remove 0.8 if you "forked" a 0.9? Why call it WinMTR in the first place if you wrote it "from scratch"?

If you removed the source from sourceforge because it was "abandonware", put it back up, since your "WinMTR" contains none of the original's code. You can't co-opt a GPL project, remove all other versions and pretend that you're doing it with "new" code.

3. You still have to provide the source to those who want it. Read the GPL. Check with your lawyers all you want. You are in direct violation of the GPL. So peddle your excuses somewhere else.

Re:Some Clarifications

[Pharmboy]

,I.And we're just supposed to take your word for this?

Unless you are claiming to own mtr, then yes. You can always contact the original owner of mtr and ask. Assuming that the parent is being truthful (and again, you are free to verify yourself) then is sounds like they didn't infringe on anything, and this might just be another "shoot yourself in the foot" article on Slashdot, which is starting to become more and more common.

You basically have palegray.net on their blog with ONE comment following, and they are the only party that is claiming that they have infringed on someone's copyright, and kdawson accepting the article for the front page. No actual media outlet is claiming this, nor is the original maintainer of mtr. At this point, this is really less than "not a story", and just diving into wild speculation in order to work up the /bots.

Re:Some Clarifications

[ByteSlicer]

3. You still have to provide the source to those who want it.

But only to those who received a binary (from them directly or via third parties).
And only within the first 3 years of (each individual) distribution.

Re:Some Clarifications

[sydneyfong]

In case your lawyer gives bad advice, I'd suggest you double check with the "original maintainer" whether he had copied (or "adopted") code from elsewhere, and do a diff or something against the mtr sources.

If the original maintainer misrepresented his ownership of the winmtr code, you probably have a claim against him.

I am not a lawyer. Good luck.

Re:Some Clarifications

[palegray.net]

Did you bother to read the code in that comment on the forum post? It's evidence of verbatim code from mtr sources found in WinMTR sources. Why don't you try comparing the sources yourself, instead of idly claiming that there's no proof? You obviously couldn't be bothered with facts, right?

Re:Some Clarifications

[palegray.net]

Unfortunately, Appnor's claim appears to be a lie, as WinMTR contains code from mtr.

Re:Some Clarifications

[mikechant]

2) The whole thing is written from scratch for Windows. No MTR code is used.

If this is true, it must have been done in 'clean room' fashion without reference to the original code (apart from external interfaces) otherwise it could still be a derivative work. But your lawyers should know this.

Re:Some Clarifications

[Pharmboy]

Yes, I saw the snippet of code that had several lines that matched. I also saw the current project owners declaration that "The company has rights over the entire source code, bought from the original maintainer. There is NO other code from contributors." That would make any copied code perfectly legal.

If they did buy the code from the original maintainer, then obviously every copy before then will always be covered under the GPL, but they would have the right to release future copies under any license they want: they own the code. If they *have* legally purchased the entire code base, and have never distributed it under the GPL, then they have no obligation under the GPL, since it only covers distribution. This doesn't affect any copies that were distributed by the previous owner under the GPL, which is not their responsibility.

It might be interesting and worth calling the original owner, but it is a bit early to grab the pitchforks and torches. Now if they are LYING, and didn't purchase the code base, then you have a story, but I don't see anyone, including you, claiming that in the article.

Re:Some Clarifications

[Pharmboy]

But if they bought the code, it doesn't matter. They can legally copy their own code all they want. You can legally fork any GPL'ed version all you want. You showing a half dozen lines that match, in a complete program, isn't earth shaking, and I just wish kdawson would have vetted this better.

As long as they did purchase all the code they are using, they are perfectly legal in this, whether you like it or not. Whether or not they reused code would be irrelevant, no matter how much you keep harping on the issue.

Re:Some Clarifications

[palegray.net]

They did not buy the code from the original mtr maintainer. I've been in contact with the current maintainer, as is clearly referenced in the original article, and he has clearly stated that if (as has been demonstrated) WinMTR uses mtr sources, it's a clear GPL violation. Appnor is claiming that they purchased the rights to the code from the WinMTR maintainer. How did you manage to miss that?

Now, it's possible that the WinMTR maintainer simply lied to Appnor, and claimed that there was no mtr code in the project. That's a pretty bold assertion, given the history of both projects, and it's been proven to be false. Failure on Appnor's part to perform even a cursory diff of the WinMTR and mtr sources is, at best, gross negligence. Basically, what it comes down to is this: Appnor doesn't own the code at all, and they're either lying or negligent.

Re:Some Clarifications

[palegray.net]

Read my other reply to you on this. To summarize: Appnor claims they bought the code from the WinMTR maintainer, not the original mtr author, and they're either lying or negligent in their assumption that WinMTR didn't contain any mtr sources.

Re:Some Clarifications

[mysidia]

That is some serious egg on Slashdot's face. "Hosting Company Appears To Be Violating the GPL"; it is presumed that WinMTR contains mtr code.

No fact checking? Seriously? Seems awfully negligent...

When can we have our old Slashdot back? I am tired of Rumors for Nerds, stuff that would matter if had a grain of truth

Re:Some Clarifications

[Confusador]

Um, even if the code wasn't the same, you still would have had that right based on the fact that you received it under the GPL. (Assuming here that you're working here off the last available source, and haven't decompiled the closed version.)

Re:Some Clarifications

[alexo]

However, it is obvious that there is code in WinMTR taken directly or derived from MTR proper.

Since both projects were GPL at some time, it is possible that cross-pollination has occurred. However, to substantiate your claim, it should be demonstrated that:
(a) the code snippet from MTR predates the one in WinMTR, and
(b) the code snippet was not available at the time in another, more permissive, project (think BSD, etc.)

Re:Some Clarifications

[morgan_greywolf]

Oh, no doubt. I didn't mean to imply that this wasn't the case.

Re:Some Clarifications

[Doctor_Jest]

Yep. And if they're on the mailing list, they know who wants it. I doubt anyone has asked, but if we were to ask after supplying an email address (which seems to be the current method).... I suspect we wouldn't get the source.

Re:Some Clarifications

[dfghjk]

"If this is true, it must have been done in 'clean room' fashion without reference to the original code (apart from external interfaces) otherwise it could still be a derivative work."

This is wrong. A "clean room" is not required to write code "from scratch". Otherwise we wouldn't have any unburdened code.

Re:Some Clarifications

[mikechant]

This is wrong. A "clean room" is not required to write code "from scratch". Otherwise we wouldn't have any unburdened code.

In the general case of a random person or company writing a 'functional clone' of another person or company's product there is no issue, because there is no evidence the 'cloner' saw or referred to the original code.
In this case it is known that the company and its developers have viewed the original source and are by default 'tainted', in the same way that a Wine programmer could be 'tainted' if they had seen relevant windows source through one of MS's source viewing facilities.
Here's Wine's comments on this matter:
See http://wiki.winehq.org/DeveloperFaq#head-fed5011434f62ae1a88baebfb8193a37ea795101

Being tainted does not *automatically* make 'functional clone' code you produce a derivative work, but it goes half way - combine taintedness with sufficient similarity in enough code points in the clone code and you've pretty much made your case. Without the taint (i.e. with no evidence that the developer ever saw the relevant original code), it's much easier to defend against a derivative work accusation on grounds such as that you just coded in the obvious way, and you are much less likely to accidentally include some telling code similarities.

Re:Abandonware?

[jedidiah]

If copyright weren't so unbalanced by corporate lobbying, this work would eventually become public domain.

At that point, you can just ignore the GPL or any other license because it isn't required anymore.

The GPL only has any force because the default state of everything is "all rights reserved" and copyrights are effectively perpetual at this point.

Presumed?

[davev2.0]

presumed that WinMTR contains mtr code

Presumption does not matter. What matters is whether or not any GPL code REMAINS in WinMTR after 10 years of non-external changes.

Re:Presumed?

[davev2.0]

Actually, I need to clarify my previous statement. :

What matters is whether any code copyrighted (GPL or not) and submitted by the copyright holder remains in the code after 10 years of non-external changes.

Re:Abandonware?

[mweather]

And what you don't see in shittypedia is what any ass-hat with admin powers, an axe to grind, and no common sense decided to "blacklist" off of the page. Wikipedia is basically worthless.

If they reverted YOUR edits, it can 't be all that bad.

Re:Who cares

[MysteriousPreacher]

No, it's like Hitler adopting GPLed code and then arbitrarily deciding 10 years later to relicence it.

Re:Abandonware?

[drinkypoo]

What most people don't understand (and what you left out, arguably) is that the GPL only grants specific rights otherwise denied by copyright law. That's why the remedy for distribution of GPL-licensed code without permission is to cease distribution.

Re:Abandonware?

[Dishevel]

You actually can see what stuff has been blacklisted. I regularly check the discussion tab on any topic that may have dissenting opinions. Wikipedia used by intelligent people is a good jumping off point. Used by fucking idiots you get fucking idiot results.

Ahh. Now I see why you can not use it.

Re:Abandonware?

[multisync]

And what you don't see in shittypedia is what any ass-hat with admin powers, an axe to grind, and no common sense decided to "blacklist" off of the page.

Oh really?

Re:Abandonware?

[Anonymous Coward]

But someone with sufficiently high reputation can edit other's answers on SO as well.

Has *anyone* else contributed code?

[Just Brew It!]

If not, then they can make future versions proprietary if they wish, since they presumably hold all of the copyrights. OTOH if there have been outside (community) contributions, then they can only take it proprietary if everyone who has touched the code consents. So we still don't know enough to say whether this is a violation or not.

Note that the above has absolutely no bearing on past versions; you can't "take back" existing code after it has been distributed under the GPL. If they are trying to go after people for distributing old versions (or derivatives thereof), then this is indeed a blatant GPL violation.

Re:Has *anyone* else contributed code?

[Rich0]

They clearly can't go after people redistributing GPL versions, and they need to make the source available to anybody who THEY distributed a GPL version to upon request.

However, they don't need to:
1. Continue distributing GPL versions. Publishing a GPL program doesn't obligate one to keep it online forever.
2. Distribute source to somebody they never gave the program to in the first place. If I give Fred a GPL binary, Fred can ask me for the source. If Fred gives Sally a GPL binary, Sally can ask Fred for the source. If Fred can't provide the source, then Fred is violating the GPL, not me. Now, of course if Fred asks me for the source and I refuse then I'm violating it too.

So, you can walk away from GPL software, and in general that means your obligations will tend to dwindle over time. Now, you can't keep other people from keeping the project alive. You also can't leverage the GPL software in proprietary projects, unless you own all the copyrights or otherwise relicense the bits you are reusing.

Re:Has *anyone* else contributed code?

[Kalriath]

Actually, I don't know if the GPL actually applies to the original author - the thought occurs to me that the GPL exists so that the author can pass along the rights that they themselves already had - if they choose to no longer provide under the GPL, that's that. In theory, the GPL provisions don't bind the actual copyright holder as they never needed a license in the first place. Which would tend to mean they had no obligations to start with, therefore they aren't violating if they refuse to distribute source to binary holders.

I'd still check with someone at the SFLC or somewhere (don't know if I'd take advice from FSF, they are biased after all) - but don't think it's as cut and dry as you all claim.

Re:Has *anyone* else contributed code?

[Rich0]

I agree - if they are the sole authors. If they adopted any code from anybody else, then they relied on the GPL to redistribute it, and thus they must comply.

Re:Abandonware?

[Grapplebeam]

Yeah I was just thinking, isn't their view on this the exact OPPOSITE of how it works?

Re:Abandonware?

[m.ducharme]

Actually, it means that the copyright holder is not selling the copyrighted product. They may still be enforcing their copyright aggressively.

Re:Who cares

[fishbowl]

I love analogies ;-) In the hammer example, the hammer is property, which isn't the same thing as rights. (Copyrights are rights).
In the flower example there is an element of trespassing as well as property, again not comparable.

Analogies for copyright should always be framed in terms of civil rights being abridged, not in terms of property crimes.

Re:Who cares

[nighty5]

couldn't agree more with your analogy...

Cooks Source?

[Isarian]

But honestly, Monica...

maybe not 10 years, but maybe 200

[davidwr]

Appnor claims that they have the right to do this, as there have been no external contributions to WinMTR in over ten years. I'm not a lawyer, but I don't think copyright law works that way.

It does if "over ten years" means "since long enough ago that the copyrights have expired."

Scenario: I develop a product today and it is community-maintained until 2020 then maintained by a private company until 95 years after the last non-corporate copyright owner dies, and there are no changes to existing copyright law.

Sometime in the 22nd century that company can claim "have been no external contributions to [product] in over [95+] years" and fork off a version and make all future changes closed-source.

Now if they tried to close-source their contributions for the 95+ years that they were using GPL code copyrighted by others, they might have a fight on their hands. I didn't RTFA so I don't know if that's what Appnor is trying to do.

if I were Appnor I'd backpedal quickly, fork off the "existing" version as open-source that they are no longer contributing to, create a new version that is either excised of all GPL code or which has all GPL-code re-licensed with the copyright owners under a closed-source-compatible license. Anything less is asking for a legal and public relations nightmare.

One of the links in the summary goes to response

[paiute]

http://winmtr.net/slashdot.html

Dear visitor,

You have reached us trough a Slashdot story that is a bit malvolent.

The story goes like this:

"A web hosting provider called Appnor has recently moved the network diagnostics utility WinMTR off of SourceForge, and is now claiming the program to be a closed source, commercial application (it was previously made available under the GPL). I emailed the current maintainer of the original mtr utility about this, and have been informed that this event most likely constitutes an overt GPL violation, as it is presumed that WinMTR contains mtr code. Appnor claims that they have the right to do this, as there have been no external contributions to WinMTR in over ten years. I'm not a lawyer, but I don't think copyright law works that way"

Our response:

      1. Our company has rights over the entire source code, bought from the original maintainer. We are the current maintainers. There is NO other code from contributors.
      2. The whole thing is written from scratch for Windows. No MTR code is used.
      3. The binary is available for free. We just thought nobody cared too much having it Open, since there were no contributions in almost 10 years.

Again, we are not trying to violate GPL and we will make sure there are no licensing issues. In the unlikely situation in which there are some licensing issues, we will make all the required changes/updates to the product, in good faith.

We think the license change is within the boundaries of GPL. We are double checking this with our lawyers.

Thank you for reading the full story.

Dragos MANAC
CEO Appnor MSP S.A.

Re:Abandonware?

[MikeBabcock]

Considering we all /can/ see what was changed, through the history option, its not so bad really. Get over yourself.

Re:Abandonware?

[Fezzick]

Except the GPL is not a contract... its a license. There's a difference.

But yeah, your point still holds though. The work is still under copyright (though appearing to be "abandoned" - whatever that means), and the GPL is the only means for which it is legallay able to be used.

I think folks may have misunderstood...

[BLKMGK]

They aren't saying that MTR hasn't been updated. They have sometime in the past created WinMTR, hosted it on SourceForge as GPL and OpenSource, but in the past ten years never had anyone but themselves making changes. So... they decided to convert to a commercial license! Now I'm not arguing that this is right since original MTR source likely still exists within it but the ideas that they are denying MTR as having been updated is incorrect.. This is sort of like how other products have gone from OpenSource to closed in the past when no one was helping out except the original developers... except that in this case they aren't the very original developers having converted someone else's code some ten years in the past. It's not clear if they have continued to use updates to the original MTR code or not.

Here's the post from their page in case it's still Slashdotted...
========
Present (2010-2011)

WinMTR is managed and developed by Appnor MSP.

The current version is 0.9. We plan to roll out a new version each quarter. More in the Development section.

License: Commercial. We changed it from GPL since in the last 10 years there was no external development. Still, we plan to offer it for free.

WinMTR has got a new home, moved out of Sourceforge on to WinMTR.net!
Past (2000-2010)

The WinMTR project was started in 2000 by our good friend Vasile Laurentiu Stanimir.

Timeline:

        * 20.01.2002 – Last entered hosts an options are now hold in the registries. Home page and development moved to Sourceforge.
        * 05.09.2001 – Replace edit box with combo box which hold last entered hostnames. Fixed a memory leak which caused program to crash after a long time running. (v0.7)
        * 11.27.2000 – Added resizing support and flat buttons. (v0.6)
        * 11.26.2000 – Added copy data to clipboard and possibility to save data to file as text or HTML. (v0.5)
        * 08.03.2000 – Added double-click on host name in list for detailed information. (v0.4)
        * 08.02.2000 – fix ICMP error codes handling. Print an error message corresponding to ICP_HOST_UNREACHABLE error code instead of a empty line. (v0.3)
        * 08.01.2000 – support for full command-line operations (v0.2)
        * 07.28.2000 – first release (v0.1)

Future (2011-2038)

We plan to further develop WinMTR, keep it running on newer platforms and add the requested functionality. Find out how you can help by reading the Development page.

Re:Abandonware?

[MikeBabcock]

Most of us won't live to see the Copyright on any GPL project expire.

Welcome to modern Copyright law.

Re:Abandonware?

[KDR_11k]

And as long as nothing has been derived from that GPLed code, of course...

Re:Abandonware?

[Travelsonic]

So people are lazy, whats your fucking point?

Re:Who cares

[Rysc]

No, it's like someone breaking in to your house to use the toilet in your basement, using it, then telling you that you can't ever use it again without their permission because you've been using the one upstairs for the last six months. Violation of rights followed by ridiculous statements.

Re:Who cares

[nedlohs]

Analogies aren't supposed to be exactly the same.

They are supposed to share some aspect, in my flower example that aspect is that the guy getting pissed has no standing at all. For all he knows the guy had permissions to pick the flower/use the code. For all he knows the owner/copyright holder doesn't care at all. The "crime" is irrelevant.

Re:Abandonware?

[nharmon]

The concept of Abandonware does seem to be in-line with the original purpose of copyright; to grant creators the ability to make money from their creations. If creators are no longer interested in making money from a specific creation, then there is no need for the copyright. All this talk about piracy and copyright infringement is really a red herring from people who want to turn copyright into perpetual property rights rather than time-limited monopolies.

Re:Abandonware?

[Gerzel]

No. There really is no legal classification for Abandonware. It is something people use to describe software that probably won't get them in trouble if they infringe on its copyright.

Re:Abandonware?

[natet]

The article doesn't say that there had been no updates for 10 years. It says that there were no contributions to the code from outside of the company for 10 years.

Re:Abandonware?

[cbiltcliffe]

The problem with wikipedia is that fucking idiots with admin hats go around making the place worse every day.

So basically, what you're saying is, wikipedia is a subset of earth.

Re:One of the links in the summary goes to respons

[palegray.net]

For the sake of clarity, I'll reproduce my earlier reply to that statement here:

"As others have noted, several people have apparently found mtr sources in WinMTR. This means either (1) you've been misinformed, (2) you're deliberately lying, or (3) they're lying. Given that people have posted actual code excerpts to back up their claims, I strongly suspect you're lying."

The irony of his statement

[suso]

"We just thought nobody cared too much having it Open, since there were no contributions in almost 10 years." --Dragos MANAC

This is exactly one thing that open source licensing is supposed to help the user with. Old programs that have been abandoned by the company or developer are not a closed vault. It is still possible to go back and for instance see how a file format was laid out or fix a long standing bug.

Another Example

[exabrial]

http://www.fadingred.com/senuti/

This used to be open source on Google Code, but now the company 'changed the license' of the source code.

Re:Abandonware?

[peragrin]

Sure if you can compile from source code.

As byte code doesn't have copyrights, only the source does.

I am confused

[Shompol]

What if I am a user of some GPL'd piece of software, and the GPL license was the reason for adoption. Let's say switching to an alternative is costly. Can it really be yanked from public domain at any time if say, contributors got paid off to give up their rights?
What about rights of users who adopted it counting on it being open-sourced and around in the future?

Re:I am confused

[laughingcoyote]

Not at all. If you got your code legally under the GPL, there's no way someone can revoke that for existing code. The moment you download GPL code, you have a perpetual license to use and distribute that code.

If every contributor agrees to relicensing, they could put future code under a different license, but they couldn't revoke the license you already have to the code already under the GPL. From section 2 of GPL v3.0:

All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met.

Re:Abandonware?

[stinerman]

That's interesting. As long as it's a binary there is no copyright protection on it? That's pretty cool.

Excuse my while I make copies of my Windows 7 discs and sell them. After all, there is no copyright protection so I'm free to make copies and sell them at will.

Wait.... so SF was the *only* copy of the repo?

[dbc]

Doesn't seem to me that simply taking a project off of SourceForge could ever be a very effective way of making something that is GPL'd proprietary. Nobody had a backup? I understand that some clueless person may *think* this would work, but really, how can it be effective?

The Other Shoe Drops

[Plekto]

I was wondering when some company was going to do this.

The problem with copyright violations is that unless you have the money to sue the thief, you effectively cannot enforce it. As far as I know, this is and has always been the critical problem with GPL and similar licenses. It looks good on paper, but there is no unified group or organization with deep enough pockets to do anything about it. And who exactly would the plaintiff be?

Ownership has its privileges. Anti-ownership has virtually none in a legal sense.

Re:Abandonware?

[multisync]

And you had to go hunting in the history for that.

And it was there for me to find, along with citations for all of the claims in the article.

Where is the revision history and list of citations for the articles you linked to?

Wrong.

[Anonymous Coward]

Not even the original author and single owner of a work that was released under GPL has to power to reverse the licensing of what was released. The GPL license is perpetual and non-revocable by anyone, and only ends (on a per-recipient basis) when a recipient fails to comply with the terms of the license, and such an occurrence would not terminate the license possessed by anyone else for that released work.

The original author and single owner of such a work can at most relicense FUTURE VERSIONS of that released code. The specific program version that was previously released under GPL remains under GPL, and its sources must always remain available on demand by recipients past or future.

Re:Abandonware?

[Anonymous Coward]

s/Most of us won't/None of us will/

Welcome to the modern era of perpetual copyright extensions.

Re:Abandonware?

[DragonWriter]

No. It's a concept borrowed from real property. You know, that thing that idiots like you continue to try to conflate software with.

I've never seen anyone conflate software with real property. The accusations that other people are trying to do so usually require either falsely conflating real property with all legal property or conflating "treating something as an entirely different class of thing with some similar features" with "conflating".

Re:Abandonware?

[bhcompy]

Or you could grow a brain and check the sources yourself and determine if the facts are valid. You know, like humans should do for everything they read for factual information. Anyone posting on Slashdot should already be intelligent enough to already be doing this by default.

Re:Abandonware?

[Frank T. Lofaro Jr.]

Things can be censored out of the history.

Re:Abandonware?

[Cylix]

Actually based on their reply at http://winmtr.net/slashdot.html it makes more sense....

Quoted directly from the link,

"Dear visitor,

You have reached us through a Slashdot story that is a bit malvolent.

The story goes like this:

"A web hosting provider called Appnor has recently moved the network diagnostics utility WinMTR off of SourceForge, and is now claiming the program to be a closed source, commercial application (it was previously made available under the GPL). I emailed the current maintainer of the original mtr utility about this, and have been informed that this event most likely constitutes an overt GPL violation, as it is presumed that WinMTR contains mtr code. Appnor claims that they have the right to do this, as there have been no external contributions to WinMTR in over ten years. I'm not a lawyer, but I don't think copyright law works that way"

Our response:

      1. Our company has rights over the entire source code, bought from the original maintainer. We are the current maintainers. There is NO other code from contributors.
      2. The whole thing is written from scratch for Windows. No MTR code is used.
      3. The binary is available for free. We just thought nobody cared too much having it Open, since there were no contributions in almost 10 years. The license changes we made are justified by the fact that we own the copyright for the code.

Again, we are not trying to violate GPL and we will make sure there are no licensing issues. In the unlikely situation in which there are some licensing issues, we will make all the required changes/updates to the product, in good faith.

The license changes we made are justified by the fact that we own the copyright for the code, nothing else. A good reason was the lack of interest for the project in the OSS community.

We think the license change is within the boundaries of GPL. We are double checking this with our lawyers.

Thank you for reading the full story.

Dragos MANAC
CEO Appnor MSP S.A."

With this information it is quite well within their rights assuming they are the owners the source code and have no outside contributions.

Thus you could still obtain a copy of the code which was released under the GPL and fork it. However, since no one touched it in a while I really doubt there is much interest.

Another windows version exists....

[ClarionCall]

While WinMTR was one version, and some people were able to make it disappear from SourceForge, there is another version for Windows call dotMTR (http://sourceforge.net/p/dotmtr/home/), that seems to be worth looking at.

Re:Abandonware?

[afabbro]

I don't know, it probably wouldn't be because there's no such thing as an Abandonware "classification". It's just a feel-good term made up by people so they feel less bad about blatantly distributing games with still-active copyrights.

BLATANT, I tell you. These people are distributing DOS games whose publisher is out of business and no longer selling them. It's so BLATANT. BTW, the word BLATANT was on my Power Words of the Day Calendar for today.

all software....

[leuk_he]

The copyright on binary code is not different from source code. Not in US law anyway...

http://www.copyright.gov/help/faq/faq-general.html#what

"What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected.""

Interestly computer software is NOT specifically named in the berne convention For that the berne convention is extended witht the wipo theaty of 1996">

"Such protection applies to computer programs, whatever may be the mode or form of their expression.4"

(I read this a source and binary are both covered in the mode or form)

Re:Abandonware?

[Myopic]

If it is available on Sourceforge, then it is easily found for distribution, and thus isn't abandonware. The whole point of abandonware is that the authors have made it difficult to obtain. But this software is right there, ready to be had. It's pretty much the exact opposite of abandonware.

Re:Abandonware?

[Myopic]

A license isn't a kind of contract? I'm not a lawyer; my layperson's use of those words would have licenses as a subset of contracts; but perhaps that's all wrong.

Re:Abandonware?

[icebraining]

Of course there is. The GPL is a copyright license, hence it expires when the copyright of the work expires.

CEO Proimises to Revert Back to GPL

[ryanisflyboy]

The CEO has promised to revert the product back to GPLv2:

http://winmtr.net/slashdot.html

"Instead of dealing with this, I decided to take the blame and do the mature thing: revert to GPL v2. By the end of the week (January 16 2011) the updated sources (stating the new license) will be on Sourceforge for all to download and further enhance."

Please update the story. It seems like Dragos is at least trying to operate with good faith and fix a potential mistake.

Re:CEO Proimises to Revert Back to GPL

[palegray.net]

Thank you very much for noting the update. I've updated the story on my end to reference it as well.

Re:Abandonware?

[oliverthered]

A license grants you something
a Contract is an agreement between two minds.

If an EULA takes something away from you, then it's not a license as you already own a copy. Nor is it a contract as that requires an exchange of something of value (tit for tat) between two minds (people)

The GPL grants you additional rights (too make and distribute copies of the work or derived works) that you would not get under copyright law without it. it takes nothing away.

Re:can i do that too?

[anna_m]

As I understood, Appnor does not sell anything - winmtr was offered for free, so please let's not digress and/or troll.

Thank Disney and Sonny Bono

[kimvette]

They can thank Disney and Sonny Bono for the situation; they will not be able to offer it as closed source until 75 years after the last GPL contributor has died, unless they work out a separate distribution license with each and every contributor. However, even if they work out that license, the GPL version must still remain GPL, but what they can release at that point is a closed source/proprietary fork/derivative of the project.

Hey, that's pretty much how StarOffice/OpenOffice and MySQL worked!

However, after reading the "fine" article rather than just the summary, I learned that the maintainer insists there was one checkin from another contributor, and that the code has been removed. So, if the offending code has been removed, I fail to see the problem. However, since it was GPL and distributed recently, the source must remain available to any who request it for three years following the latest distribution (download, sale, CD sent via carrier pigeon, whatever) of the binaries. So, if they are refusing to provide the source upon request, they are still in violation of the GPL even if the "offending code" has been removed.

Re:Thank Disney and Sonny Bono

[mysidia]

Since there's not a shred of GPL'd code in WinMTR, and there are no copyright owners other than the maintainer, they have the right to release new versions under a proprietary license at any time they choose to.

Re:Abandonware?

[LocalH]

You're wrong, at least in the US. The original purpose of copyright was to promote the progress of science and useful arts. The copyright clause in the US Constitution says nothing about money.

Re:Abandonware?

[Myopic]

Ha, ha, ha, ha. No you silly duck, that's not true at all.

Appnor MSP, a hosting & cloud provider

[doperative]

"Say hello to the Bad Guy! That's me, Dragos MANAC .. I decided to take the blame and do the mature thing: revert to GPL v2 " ...

Well at least your company Appnor, got some publicity out of the issue ..

Re:Abandonware?

[Belial6]

Your response is just as typical. Ignoring the fact that it is really common for people to differentiate between 'abandonware' and other forms of copyright infringement. 'abandonware' specifically refers to software that cannot be obtained new at any price. There simply is no way to pay for it. Thus, while 'abandonware' is certainly a euphemism for a particular class of copyright violation, claiming that it has anything to do with "everything-should-be-FREEEEEE" is a gross mischaracterization of what is being discussed. By the way, your first sentence was also an ad-hominem attack, so you are guilty of exactly what you accuse the parent poster of.

Re:Abandonware?

[Stumbles]

No. You STILL have to abide by the LICENSE.

Re:Abandonware?

[commodore64_love]

After the original programmer/author loses his copyright (28 years?), the GPL code falls into public domain. At that point you no longer need to abide by the license.

Re:Abandonware?

[commodore64_love]

Wonderful Life was considered a flop by the studios.
They left it fall into public domain in the 1970s to 80s, and that's why TV stations kept playing it over-and-over (it was free). You could also buy it cheap on VHS from random companies..... then it became popular with americans, so the Megacorps hired a bunch of lawyers to RE-copyright it. Probably included some judge bribery as well.

Re:Abandonware?

[sumdumass]

Well, no. The GPL is a contract for a license.

I hate it when people attempt to miss the obvious here and apply some inane ideology.

Copyright law states you need a license to use the code. The gpl states you need to agree to these terms and follow these procedures if applicable to "your use as copyright law is concerned" and in exchange, you will have a license for as long as you are in compliance.

the entire ideology line is right in that copyright is the key to enforcement of the contract, but the GPL is an exchange of something of value defined by law for behavior. It's a contract for a license.

Re:Abandonware?

[sumdumass]

His concept is interesting though. It's not really promoting the progress of anything if it's been pulled out of public view and kept hidden away in some box as some sort of asset or something.

Perhaps there should be a time limit or a test to which something can be shown where the goal of to promote the progress of science and useful arts is being achieve else a copyright limits fall short or something.

Re:Abandonware?

[sumdumass]

Well, that makes a lot more sense.

The owners of the code in question can really do whatever they want with it. They will not be able to retroactively remove the GPL from previous versions but they can change future versions.

I guess some people get so wrapped up in the ideology, they can't see the forest for the trees.

Re:Abandonware?

[Tetsujin]

And as long as nothing has been derived from that GPLed code, of course...

That also means defining "derived from" in such a way that it's aggressive enough to hold that code under the original license terms, and yet still reasonable enough to be legal...

I mean, there has to be some point at which it's OK to learn from GPL software and apply that knowledge to non-GPL software, right? Generally I think it's agreed that if you gain some knowledge from reading a piece of GPL source code and use that knowledge to write a new program, that does not constitute a "derived work". And then on the other end of the spectrum, if the new code contains substantial portions that are clearly taken straight from the GPL original, that does constitute a "derived work". Where's the line that separates the two cases? If the original "Starship Enterprise" were GPL, would the "Refit" be bound by the GPL, too? How about the "Sovereign Class"? There must be some point at which it's fair to say "we've done enough work on this thing ourselves that it no longer constitutes a derived work" - but where is that point?

If they have been maintaining this code for ten years with no external contributions, and if they have done enough development on the project that little or no important code not written by their group exists, then I think this could be quite reasonable. Claim that the code, in its current state, was written entirely by themselves and not offer any new copies under the GPL. They aren't able to revoke the licenses they already offered via GPL, of course, but if they can make a reasonable claim of copyright ownership over the current form of the project,

I don't know if that was the case, though. Their CEO claims that the new version doesn't contain any code from the "mtr" project, but... I don't know. At any rate, they decided to go back to GPL because of the Slashdot fury.

Re:Abandonware?

[palegray.net]

Copyright lasts a lot longer than you think.

Re:Abandonware?

[Kalriath]

I don't know if you noticed, but not all of the products being distributed as "abandonware" come from publishers that are out of business. I've seen groups distributing Commander Keen, and that you can even today pick up off Steam for a few dollars.

That's actually why I like Home of the Underdogs (that still around?) - they take down the things for which a publisher exists that says "hey, don't do that". And they link you to where you can buy $obscure-game if it's possible.

Re:Abandonware?

[Kalriath]

Sadly, it's 28 years after his death. That's kind of the issue in point here.

Re:Abandonware?

[Kalriath]

He said purpose, not marketing slogan.

Re:Abandonware?

[HiThere]

You're clearly not a lawyer. I'm not one either, but I do know that copyright doesn't regulate use. It regulates copying, and, I think, to some extent distribution. It doesn't regulate possession or use.

The GPL also doesn't regulate use. It depends strictly on the copyright law. It grants you rights additional to those that you would have in it's absence, but only if you agree to it's terms.

P.S.: Quite possibly there *should* be a legal concept of abandonware. I personally feel that if something is out of publication for over two years that it should be deemed free of copyright until a new printing is made and being sold. (And that copies made during the period before it was being sold be allowed to continue to be sold.) But that's a "should be" rather than an "is". And there may well be good reasons why the approach I've outlined isn't practical. (E.g., an author may be trying to sell a work to a publisher, and all the publishers are refusing to buy. But that could be handled by self-publication. I'm sure, e.g., Lulu would help.)

Re:Abandonware?

[HiThere]

Sorry, but that's clearly wrong. If there was no copyright on binary code, then it would be perfectly legal to copy most proprietary software. And it isn't.

And it doesn't even apply to patents. Intel got the concept of patents extended to software by arguing that a ROM was a machine, and the software a configuration of switches. (Be an interesting argument to claim that patents didn't apply to source code, as the justification for extending patents to software didn't cover source code. Don't know if anybody's tried it.)

Re:Abandonware?

[HiThere]

Actually no, but effectively true.

The thing is, although the GPL doesn't expire, the requirement to use it does. So there's not much difference.

Re:Abandonware?

[meerling]

Besides the copyright stuff, If it ain't broke, don't fix it.
If your program doesn't have issues, even if it's scope of functionality is limited, you don't have any pressing reasons to alter it.
Not touched in a decade is a moot point with a program that just works, especially if it's something behind the scenes that users don't notice.
(I know that doesn't describe WinMTR, but the principle is still valid. Some people don't like old style simple interfaces.)

Re:Appropriate Licensing Logic

[Kalriath]

Your assertion is wrong. If they purchased the code off the original author, GPL or no, then they can relicense it however they wish, as is the right of the current author. Even the FSF does not try to say otherwise.

Right to fork != GPL violation

[roguegramma]

Your uncontested right to fork is irrelevant to the question of whether they have commited a GPL violation.

I have written code to which no one else contributed yet and released it under the GPL and I would be really pissed if people told me that I was commiting a GPL violation when I released again under any license that I pleased to.

Of course, things would be different if I had followed the FSFs suggestion to assign rights to my software to the FSF, but that doesn't seem to be the case here.

Re:Abandonware?

[Red Flayer]

No, you DON'T.

When the copyright expires and the work falls into the public domain, you can use it as you see fit without being beholden to any license or terms from the copyright holder -- since there is no copyright. That is what public domain IS.

Re:Appropriate Licensing Logic

[cmholm]

Ah, good point. Then what we're left with is the right of others to fork the last GPL-ed version of WinMTR.

Re:Abandonware?

[sumdumass]

You're clearly not a lawyer. I'm not one either, but I do know that copyright doesn't regulate use. It regulates copying, and, I think, to some extent distribution. It doesn't regulate possession or use.

The GPL also doesn't regulate use. It depends strictly on the copyright law. It grants you rights additional to those that you would have in it's absence, but only if you agree to it's terms.

If you know this, then why is it you can't figure out that by USE, I mean copying, altering, and distribution? I mean I did try to limit the term use to "your use as copyright law is concerned" Use as a defined term can mean any number of things including legal possession and benefit from something.

Also, you don't need to be a lawyer to understand the law. It's not like there is some cryptic tome that only lawyers can understand. There is however a bunch of information that required people to pay attention to it. If you had done that, we wouldn't be discussing this right now.

P.S.: Quite possibly there *should* be a legal concept of abandonware. I personally feel that if something is out of publication for over two years that it should be deemed free of copyright until a new printing is made and being sold. (And that copies made during the period before it was being sold be allowed to continue to be sold.) But that's a "should be" rather than an "is". And there may well be good reasons why the approach I've outlined isn't practical. (E.g., an author may be trying to sell a work to a publisher, and all the publishers are refusing to buy. But that could be handled by self-publication. I'm sure, e.g., Lulu would help.)
--

What we feel is often not what the law says. I personally think copyright should only be extended for 50 years or so and 10-15 for computer software programs. But as we know, the law simply doesn't account for that.

The abandon-ware argument rests severely on the abandoned real property law. The key differences is that in real property, in order to be considered abandoned, you either need to neglect the use of a right for a period of time, or fail to keep the property maintained from being declared in dereliction. A lot of times, simply paying property taxes is enough for this to be safeguarded from. When real property become abandoned, it doesn't automatically become someone else'. You need to file a claim of legal right to it. Most of the time, back taxes will take precedence over any claim. You can't just walk down the street, see a piece of property, and say that's mine now either. Your claim has to have some sort of legal backing behind it like the former owner owed you money, your a rightful and legal heir, or you have possession of the property for a length of time in which adverse possession rules can take effect. Most of the time, state eschew laws will simply take it.

But all that is somewhat meaningless when dealing with copyright. Why, because property rights in the US is largely a state issue. Copyright is a federal issue with the full backing and support of the US constitution. Federal laws, when constitutionally backed, trump state laws. Federal laws give the owner/holder or author of a copyrighted work specific rights for a specific length of time. State law can't take that away.

In copyright law, there is no provision for this and property in copyright law can only be abandoned voluntarily. That is to say, property cannot be assumed abandoned in copyright law, some entity has to surrender the rights to it, and make it known to anyone. This is why when someone wants to abandon a copyrighted work, they typically give it a copyright license that essentially put's it into the public domain. It doesn't actually place it there, it just gives the same effect of it being in the public domain.

So while it's a good idea, it's not quite the reality. However, that shouldn't stop anyone from planting the seed of this thought in their legal representative's head. Go ahead a lobby for some changes. perhpas there can be some sanity put back into copyright law.

Re:Abandonware?

[vux984]

The owners of the code in question can really do whatever they want with it. They will not be able to retroactively remove the GPL from previous versions but they can change future versions.

Right. The question is "who is the owner of the code". With GPL code, unless the rights are explicitly handed over to another organization the submitter of the patch retains ownership of that patch. IIRC the linux kernel is copyright the contributors (making changing the license near impossible), while I think the FSF requires you to delegate them copyright... enabling them to change from GPLv2 to GPLv3...again iirc.

So if I create and run GPL project XYZ, and you submit a patch that's accepted without delegating your copyright to me, then I cannot change the license and include that patch unless I get your permission first. And it certainly doesn't matter if the project has been dormant for a 'mere' 10 years.

Now in the case of WinMTR I have no idea if anyone else contributed any code, and whether they delegated the copyright or not. It sounds like, from the CEOs explanation that only one contribution was made, and that the one item that was contributed was backed out... and if that's that's the complete story, then yeah they would be within their rights to change the license. (Albeit at the expense of some goodwill.)

Re:Abandonware?

[Stumbles]

No, your are wrong to assume the License has expired. It has not. As such you are STILL BOUND by the terms of the GPLicense. The ONLY time copyright comes into play is when you violate the license. When you do that, you get a hit with a double whammy; license violation AND copyright violation. So even, and I doubt this is the case, the copyright has or had expired; you are still at the minimum violating the licensing terms.

Re:Abandonware?

[LocalH]

So a direct quote from the Constitution is a "marketing slogan"?

Re:Abandonware?

[Red Flayer]

You don't understand what public domain is, do you?

No one can compel you to be bound to a license for use once copyright has expired.

Once the copyright expires, you are under *no obligation* to agree to a license in order to use the code. You can use it completely unfettered.

Seriously, what makes you think something in the public domain is still subject to licensing for use?

You can use a non-GPL'ed version of the code as soon as copyright expires. There is no reason to burden yourself with any license at that point.

Re:Abandonware?

[palegray.net]

The problem is that there is code from mtr in WinMTR, an example of which can easily be seen in the original story. Appnor never purchased (nor could they, unless they contacted every contributor and came to a bunch of agreements) the rights to the mtr codebase. I suspect what actually occurred is that Appnor was misled to believe that WinMTR didn't contain any mtr code, and subsequently believed they were purchasing the rights to WinMTR. Again, it does contain mtr code, so they don't own it to begin with.

Re:Does the GPL prevent you from dual licensing?

[palegray.net]

WinMTR contains code from mtr (contrary to their claims, see the original story for matching code excerpts), which they have no rights to. Therefore, they do not own the WinMTR codebase, and are still bound by the GPL.

Re:Abandonware?

[pyrr]

I was thinking about the same, and I guess I wouldn't even feel that them backing-out should be at the expense of "goodwill". The GPL should be a two-way street, where someone who initiates and maintains a project should ideally receive something back in the form of meaningful contributions; collaboration is not one-sided. How I feel a GPL project should work is that someone is going to accept most of the burden of making the project what it is, but others chip-in with their contributions to make a better product, responding to bug reports and requests, and make it much more-- that way, the project creators get something back in the form of a better product that they didn't have to do ALL of the work for.

If the CEO is right, and there haven't been any meaningful contributions in years, there's no reason to continue putting their hard work under the GPL, period. It was still going to be copyrighted freeware, just not GPL FREEDOMware. I struggle to think of a compelling reason to continue a Sourceforge GPL project if nobody else is helping bear the burdens, yet the owner is being constantly deluged with feature requests. Beg, beg, beg, take, take, take, but no giving back? It's a bit sad that the only energy put into that project in the past 10 years seems to have been more people asking for the developer to put more work into the product, and then a large amount of outrage when they seem to have gotten sick of being pestered and mooched off of and took ownership of their future efforts back. Really, really sad if that was the case.

Re:Abandonware?

[vux984]

There's no such thing as "abandonware". You've invented a term that is popular but doesn't actually exist in legal parlance.

Right. In legal paralance, Abandonware is convenient informal shorthand for "software under copyright where the software is no longer readily available for purchase and the copyright holder is not interested in its rights to the software and/or it may not even be known who has the rights to the software."

Consider "Echelon" by Access Software in 1988. Access Software was founded in the 80's by Bruce Carver (who passed away a few years ago now). His company was bought out by Microsoft in 1999; Microsoft was really just interested in the "Links" golf software franchise, and the rest of the company was pretty much ignored. The acquired company was re-branded as "Indie Built" for a while, and then sold to TakeTwo, who ultimately dissolved them.

I'm not even sure who owns the rights to the software. And its entirely likely that none of the companies named above know either. Hell, by the time Microsoft bought them out in 1999 the original title was likely already lost and all but forgotten, and today even the people who might know are long gone from the companies, or even deceased.

Re:Abandonware?

[sumdumass]

Well, that might not be a problem still.

Just because code from one is in the other, it doesn't mean the direction or flow of the code is obvious. It could be that the code came from WinMTR (I'm guessing so don't take it as I'm saying it did) and went into mtr. Or, the code that they share could have been developed by the same Vasile Stanimir who put it in mtr first then int WinMTR. However, in that case, Vasile Stanimir still owns the code in question and the sale of rights would be just as valid.

Perhaps it's different and it's just not right. Perhaps it's this way and all is fine while some don't agree with it. I think maybe someone should audit the code and check to see what exactly is going on before we get too much further into this. For all we know at this point, it might be something like the BSD/GPL stole it arguments where the shared code was originally BSD and the GPL was thrown on it somewhere down the line.

Re:Abandonware?

[mjwx]

To me, Abandonware is a game I cannot legally source. Ergo, cannot possibly be a source of revenue for the license holders.

I suppose a more legal definition is a license who's holders no longer exist or have no interest in enforcing.

The Email....

[rew]

I sent Appnor the following Email:

> Dear Appnor MSP,
>
> It has come to my attention that you have taken the modified mtr
> sources called winmtr and made a closed source applicaiton out of
> that.
>
> You have always had access to those sources because they were
> distrubuted under the GPL. This allows you to modify and extend the
> program, provided that you distribute the your modifications with
> source code. (section 2b of GPL V2 states that your derived work
> still must be licenced under GPL.
>
> I have downloaded winmtr-0.9, which entitles me to ask you for the
> source code. Once you give it to me I will enforce my right to publish
> the source on the internet by doing so.
>
> If you chose not to honor my request for the source code, clause
> 4 of the GPL comes into action:
>
> 4. You may not copy, modify, sublicense, or distribute the Program
> except as expressly provided under this License. Any attempt
> otherwise to copy, modify, sublicense or distribute the Program is
> void, and will automatically terminate your rights under this
> License. However, parties who have received copies, or rights,
> from you under this License will not have their licenses
> terminated so long as such parties remain in full compliance.
>
> This means that you may no longer distribute copies of the program. You
> are violating copyright law.
>
> Roger Wolff.
>

And I quote from his reply:

> I will have our IP lawyer draft a response and clarification to your claim.

after which he explains no harm was intended (yeah right!) and that it will
take until next monday for a reply to surface.....

(I can't go quoting a full Email sent to me as that is copyrighted by the author,
when I'm claiming copyright violation on that person.... I think I can quote
1 sentence of a 5 sentence Email as Fair use.)

Re:The Email....

[rew]

Rereading appnor's response: revert to GPLV2.. eh? I think thats' because I never trusted the EFF to handle the license on my code in a way that I'd approve. So the licence clause says: GPL V2, and not "or higher". When GPL V3 came out I decided that this decision was sound: I don't want my code under GPL V3 sorry.

Already out! A new WinMTR, v0.91, under GPL.

[dmanac]

As promised, a new version of WinMTR has been published, under GPL v2, along with the code for the version that presumably infringed GPL.

You can download all source code and binaries from Sourceforge https://sourceforge.net/projects/winmtr/files/

Hopefully everyone is happier now.

Dragos

Re:Abandonware?

[commodore64_love]

Bullshit Your ignorance of the GPL and licensing terms in general is astounding.

Shove your rudeness up your pussy!!! Goddamn ignorant fool. If the copyright has expired, then the code is PUBLIC DOMAIN you stupid brainless father-fucking smeghead. You don't need to license public domain art or programs you ignorant father-fuckig bitch. That's WHY it is called public domain.
Example: You don't need to license Tom Sawyer to use it.
Or the "Hello world" program.

Re:Abandonware?

[Fezzick]

Well, no. The GPL is a contract for a license.

I hate it when people attempt to miss the obvious here and apply some inane ideology.

Well no... that simply is not the case - and this isn't inane ideology either. It's just how the law works.

A license is unilateral permission to use someone's property. A contract is an exchange of obligations. Groklaw gives a very good explanation of the difference and describes why the distinction is important: http://www.groklaw.net/article.php?story=20031214210634851

Re:Abandonware?

[sumdumass]

And unless the definitions of words in your mind mean something completely different then to the rest of the world, your explanation more then what I said, shows that it's a contract for a license.

Let's explore this a little. "A license is unilateral permission to use someone's property." Well, a copyrighted work is definitely property under the law. There is a license associated with it. But wait, the GPL presses obligations in which if you don't follow, you don't get the license.

Now, lets look further into what you said. "A contract is an exchange of obligations". Hmm.. So copyright grants the copyright owner exclusive rights in copying and distribution of the original as well as derivatives of the original. That's fine, so what is it I need to do to get a license. Oh yea, that's it, I need to agree to be obligated to certain things in order to have the license.

and yes, it is inane because you tripped over the logic in order to spout the ideological line. Even the definitions at the groklaw site holds this to be the same- although it forgets logic and moves to ideological lines too.

So ask yourself this question. Can I take any GPLed work and do whatever the copyright law reserves as an exclusive right to the copyright holder without agree to, and fulfilling a set of obligations? Of course not, because you can't get the copyright license under the GPL without honoring the contract and if you stop honoring the contract to make the source and changes available, your license rights disappear too.

Now ask yourself, given the definitions you provides literally, as well as the definitions provided at groklaw in the article you linked to, how is this obligation not a contract setting obligations in exchange for a copyright license?

Not a red herring

[RichiH]

As of today, copyright is, in effect, a perpetual property right. We can debate that this is wrong (and it is), but that does not change the facts.

Re:Abandonware?

[Jabrwock]

The company bought the rights to the code, and has been making internal contributions to it for years. They (claim to have) pruned out any external contributions, so they become 100% the "original author". Copyright is not perpetual. Disney may keep getting it extended, but it does expire eventually. 10 years is barely what even the original copyright was good for.

Re:Abandonware?

[Rakishi]

God damn, you're an ignorant rude cunt.

A license is not a contract, it has no power or authority on it's own. It derives all it's power from copyright law by granting exceptions under certain circumstances. Without it you're bound by the usual copyright laws and those generally frown on copying.

In other words, copyright law gives you certain rights when it comes to copying things. Licenses give you additional rights as long as you abide by their terms. Licenses cannot remove existing right, such as fair use, that are granted by copyright law. You are also not in any way forced to follow the license but then you're stuck with the rights given by copyright law which are generally very limited.

Point being, once a work goes into public domain there are no restrictions on it under copyright law. You can simply ignore any licenses and you've got perfect freedom to do whatever you want. You don't need them to grant you any additional rights since you already have all of them. Since you're not breaking copyright laws, the license which derives it's power from copyright laws is useless.

Re:Abandonware?

[Kalriath]

Whoosh.

Re:Abandonware?

[Scarletdown]

In the eighties there were many small British companies producing games for domestic computers such as the BBC Micro and Spectrum.

Almost all of these businesses have gone bust or otherwise been wound up. In many cases the company's assets (e.g. a few not terribly successful Spectrum games) would not have been purchased by anyone.

If not abandonware, what is the correct legal term for copyright material owned by a legal person that no longer exists?

I know I'm late to this discussion, but would corpseware be a suitable designation for this?

Re:Abandonware?

[Jonner]

I think there's a difference between sharing binary copies of an old proprietary game that nobody's making money from just to be able to play it and infringing on the copyrights of someone who released copyleft Free Software to make money selling copies of a current proprietary program. In the first case, the source is not publicly available and not of potential benefit to anyone. In the second, any enhancements made to the copyleft code could be of benefit to lots of people, but are kept private.