German Court Finds Fantec Responsible For GPL Violation On Third-Party Code

ectoman writes "Are firms responsible for GPL violations on code they receive from third parties? A German court thinks so. The Regional Court of Hamburg recently ruled that Fantec, a European media player maker, failed to distribute 'complete corresponding source code' for firmware found in some of its products. Fantec claims its third-party firmware supplier provided the company with appropriate source code, which Fantext made available online. But a hackathon organized by the Free Software Foundation Europe discovered that this source code was incomplete, and programmer Harald Welte filed suit. He won. Mark Radcliffe, an IP expert and senior partner at DLA Piper who specializes in open source licensing issues, has analyzed the case—and argued that it underscores the need for companies to implement internal GPL compliance processes. 'Fantec is a reminder that companies should adopt a formal FOSS use policy which should be integrated into the software development process,' he writes. 'These standards should include an understanding of the FOSS management processes of such third-party suppliers. The development of a network of trusted third-party suppliers is critical part of any FOSS compliance strategy.'"

Comments

Premptive STFU to GPL haters

[Anonymous Coward]

So they got caught violating an oss license? (TBH they were just being lazy by relying on their supplier's word. You've got to know and own the product you sell.)

Imagine how much shit they'd be in if they'd been caught violating copyright on a piece of closed source software. Ask anyone who's dealt with the BSA to comment on how friendly and fair they are.

Re:Premptive STFU to GPL haters

[Anonymous Coward]

Actually at the core of the issue here is not really the GPL. At the core is that they got the code from another company and relied on that company adhering to the license.

Basically the ruling says that when you got the code from a third party, you cannot rely on the third party acting correctly when determining whether your use of the code complies with the license. If the third party violated the license (in this case, by not providing the complete source code), it doesn't protect you from the responsibility of checking the correct licensing yourself when redistributing the code.

That it was about GPL code is only tangential to the issue (although it's almost certainly the reason why it ended up on Slashdot).

Basically the scheme is the following: A gives code to B under a given license. B then gives the code to C in a way that violates A's license. C relies on B having followed A's license and figures out that redistribution in a certain way would not violate A's license. However since B's analysis rests on the false assumption that B complied, it turns out that C's redistribution of the code also violates A's license. But with a closer inspection, C could have found out that B didn't comply. The court ruling now says that C is responsible for violating the license.

Here A is whoever owns the copyright for the code in question, B is Fantec's firmware supplier, C is Fantec, the license is the GPL, and the violation is not distributing the complete corresponding source code.

Re:Premptive STFU to GPL haters

[Anonymous Coward]

While I agree with what you're saying and I think the decision is correct, the problem is that when companies read articles such as this, all they see is, "If we use open source, we could get sued and screwed for something a third party did."

It makes the use of GPL licensed software appear unpredictably dangerous. And there's no getting around that.

Err - what?

[queazocotal]

'A german court thinks so'?
Under very few legal codes is it OK to distribute something that you do not have the appropriate copyright/licence.
Even if you don't investigate properly to find out if you do or don't, that doesn't get you off the hook.
It may alter the penalties, but the fundamental legality isn't really in question, pretty much anywhere.

Raising 'GPL' is a red-herring here - 'Oh - I diddn't realise that machine had an unlicenced copy of windows on it' - is exactly the same case.

FOSS license compliance is difficult for many

[drdread66]

A previous employer of mine really really really wanted to offer FOSS support & products as part of their lineup. In the end, the lawyers won, as they couldn't craft a policy that would allow anyone other than a lawyer to make the decisions. This was mostly for GPLv2 and v3, but they got the dev managers completely wound up about all the license types. Mostly this resulted in the company punting on the FOSS idea.

It's not terribly surprising that some small outfit decided to outsource the responsibility, assuming they were in a similar "analysis paralysis" situation. Too bad they did not understand the intent of the licenses and just "do the right thing."

Re:FOSS license compliance is difficult for many

[HornWumpus]

Compliance is easy. Never even look at GPL code. If it's not under BSD, don't touch it.

Re:FOSS license compliance is difficult for many

[qbast]

But they magically understand proprietary licenses? And somehow fact that every proprietary license is different and may contain different pitfalls is not a problem?

This is why they hate us

[Anonymous Coward]

Shit like this. No wonder everything's going BSD.

Did anyone try to work things out with the company?

All stuff like this does is make people afraid of open source.

And why does it seem that all these troublemakers are from Germany?

Re:This is why they hate us

[jedidiah]

> Shit like this. No wonder everything's going BSD.

You wish.

While it sound like a silly juvenile retort, it really is the case.

Why would anyone with a pathological need to "win in the market" or "be associated with the cool brand" bother with BSD to begin with?

> Did anyone try to work things out with the company?

No. People just like to litigate for fun. They like to waste the money.

Don't be such an idiot. If anything gets in front of a judge it's because one or both sides refused to compromise. The FSF has a long history of quickly dispensing these things by allowing the offending party to come into compliance.

Re:Is this what they really want?

[queazocotal]

This isn't a GPL thing.
This is a general IP thing.

If you are not - as a buisness selling software (even if in embedded hardware) requiring your suppliers to state that all software used is compliant with relevant licences, with appropriate penalty clauses or indemnification if they are not - then your lawyers don't deserve to be employed.

Exactly the same happens if you ship unlicenced windows on your systems.

Re:Bigger Issue

[fuzzyfuzzyfungus]

This isn't going to make it easier to convince companies to adopt the GPL. It's not necessarily accurate, since Fantec clearly didn't exercise due diligence with their third-party software, but that's what a lot of upper management is going to hear.

I don't doubt the theoretical potential for this to be FUDed; but it isn't as though Fantec would have been any better off if their shoddy firmware contractor had been out of compliance with code under any other licence... Somehow, the fact that you can get your ass handed to you for violating software licenses seems to be Super Scary when it's OSS; but just part of doing business when it's proprietary; but it's the same principle at work either way.

Re:Premptive STFU to GPL white knighters

[mwvdlee]

They published code, it got used, they're dealing with it.
What's the problem (apart from them not dealing with it in the way you'd prefer)?

Re:Premptive STFU to GPL white knighters

[AlecC]

So you would make speculative IP creation impossible. Before you created any IP, you would have to establish contact with all possible customers and agree, and contract, a price for the IP you would create. This was the way the system used to work in the 18th century: Dr Johnson had to line up a number of sponsors before he produced his dictionary. The same applied for music: Bach needed a sponsor for his cantatas etc. The invention of copyright then produced an explosion of publishing: because people could retain the IP of their putative great works, they could publish speculatively (possibly with funding from a publisher), and if indeed it turned out they were great works, they would be repaid for their efforts,

Your proposal would, I think, destroy the literature and magazine industries. Yes, magazines have subscribers. But why should I subscribe if I can get a copy as soon as the magazine is published? How can the editor of a magazine get enough readers to contract for something that they will receive free once the first user has received it? How can the writer who /thinks/ he has a great book make a profit from it when the first review copy can be Torrented for free? Why create any new work of literature? Music is slightly different: a live performance is different from a recording, and some groups distribute recordings for free in order to get fans at their concerts. But, in the days of the Kindle etc., an e-copy of a book is approximately as good as a hard copy.

Literature and music are not the same things as burgers and car repairs. The invention of copyright had a massive positive effect on human culture. Very little of the music you listen to and the books and magazines you read would exist without it. Of course, I am not saying that the existing system is perfect - very far from it. Its application to programs and code is very defective. But in throwing the whole thing out, you are losing the good as well as the bad.

Re:Premptive STFU to GPL white knighters

[ae1294]

I agree that the idea of copyright is a good one. I hope most here understand that people who create something like music or software deserve a chance to make a profit before everyone can just download it for free and give nothing back in return. Open source works because there are enough people willing to give back something whether it's a bug report or a few lines of code. Everyone is better off if the software isn't really the thing that is being sold. Now sometimes the software is the thing that is being sold and those who create it 'closed source' deserve to make some money IF people want to use it. In my opinion the problem with copyright isn't the idea, it's a solid and workable method to encourage people and business to create new things. The problem like most problems is that the populace wasn't paying attention and what was a good idea was twisted into a terrible monster just as patents have been. I'm not saying its our fucking fault but I am saying we collectively need to fucking put in some effort to fix it. I have no idea if that's really possible anymore since government has become just as much a monster as copyright and patents, more so even.

Anyway copyright should be limited, No more than 10 years I'd say. If you can't make your money back in that time frame than you fucked up. Patents I think should be something like 5 years or maybe 7. I don't know but I think a sold per-reviewed study could look at all the various industries and pick apart their profit reports and find the sweet spot for both copyright and patents. We have to wash away the greed and absurdness of both these good idea's gone bad. I can't image anyone who really thinks logically that someone should be able to live the rest of their life because they wrote one song 20 years ago. It just doesn't make any fucking sense. There is nothing magic about making music, movies or software. The only difference is once you have made them you have an unlimited supply of them which some people think means it should be worthless and free but if that was the case than no one would bother putting in the time. Sure you'd have some people doing it as a hobby but that isn't the same as doing it as a business and polishing whatever it might be over and over again because you don't have a day job taken up all your time.

I think the US got copyright right way back when but we all closed our eyes for a moment and greed twisted it into something we all hate and despise. The only other thing I have to add is those caught using something that is copyrighted for personal use shouldn't be bankrupted for it. They should have to pay for the product plus a fine of a grand or three. Now people making bootleg copies should face much hasher penalties and corporations that knowingly screw over others should get their asses handed to them since it's going to be rare to catch them in the act.

I'd like to see these problems fixed because I think it would lead to a new renaissance of creativity. Which was the whole point of these laws to begin with.