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Larry Rosen: A Case Study In Understanding (and Enforcing) the GPL
lrosen (attorney Lawrence Rosen) writes with a response to an article that appeared on Opensource.com late last month, detailing a court case that arose between Versata Software and Ameriprise Financial Services; part of the resulting dispute hinges on Versata's use of GPL'd software (parsing utility VTD-X, from Ximpleware), though without acknowledging the license. According to the article's author, attorney Aaron Williamson (former staff attorney for the Software Freedom Law Center), "Lawyers for commercial software vendors have feared a claim like this for essentially the entire 20-odd-year lifetime of the GPL: a vendor incorporates some GPL-licensed code into a product—maybe naively, maybe willfully—and could be compelled to freely license the entire product as a result. The documents filed by Amerprise in the case reflect this fearful atmosphere, adopting the classically fear-mongering characterization of the GPL as a 'viral' license that 'infects' its host and 'requires it to become open source, too.'" Rosen writes: I want to acknowledge Aaron's main points: This lawsuit challenges certain assumptions about GPLv2 licensing, and it also emphasizes the effects of patents on the FOSS (and commercial) software ecosystem. I also want to acknowledge that I have been consulted as an expert by the plaintiff in this litigation (Ximpleware vs. Versata, et al.) and so some of what I say below they may also say in court.
Read on for the rest (and Williamson's article, too, for a better understanding of this reaction to it). An important take-away: it's not just the license that matters.
Let's be open about the facts here. Ximpleware worked diligently over many years to create certain valuable software. The author posted his source code on SourceForge. He offered the software under GPLv2. He also offered that software under commercial licenses. And he sought and received and provided notice of United States patent claims related to that software.
Unbeknownst to Ximpleware, Versata took that GPLv2 software and incorporated it into Versata products – without disclosing that GPLv2 software or in any other way honoring the terms of the GPLv2 license. The reason Ximpleware became aware of that GPLv2 breach is because some months ago Versata and one of its customers, Ameriprise, became embroiled in their own litigation. The breach of GPLv2 came out during discovery.
Ximpleware has terminated that license as to Versata. This is exactly what the Software Freedom Conservancy and others do when confronted by GPL breaches.
That earlier litigation is between two (or more) commercial companies; it is not a FOSS problem. These are mature, sophisticated, profitable companies that have the wherewithal to protect themselves. I know in my own law practice, whether I represent software vendors or their commercial customers, we typically provide for some level of indemnification. Perhaps Ameriprise and the other customer-defendants can count on Versata defending them against Ximpleware. Such a commercial dispute between big companies – even if it involves the GPLv2 software of a small company and separate indemnification for copyright or patent infringement – is between them alone.
But as to Ximpleware and its GPLv2 copyrighted and patented software, there are a few misunderstandings reflected in Aaron Williamson's article:
1. The notion of "implied patent licensing" has no clear legal precedent in any software licensing. While it is true that goods one purchases include a patent license under what is known as the "exhaustion doctrine," there is no exhaustion of patented software when copies are made (even though copying of the software itself is authorized by GPLv2). For example, a typical commercial patent license nowadays might include a royalty for each Android phone manufactured and sold. Companies that distribute Android phones and its FOSS software acquire patent licenses so recipients of their phones are indeed free to use those phones. But that isn't because of some implied patent licenses that come with Android software, but because commercial companies who distribute phones pay for those patent rights, directly or indirectly. I think it is entirely reasonable to require commercial companies to get their patent licenses in writing.
2. Versata's customers who received the (in breach!) GPLv2 software all moved to dismiss Ximpleware's infringement claims against them, pointing to Section 0 of GPLv2, which says, "[t]he act of running the Program is not restricted." What that sentence actually means is just what it says: The GPLv2 copyright grant itself (which is all there is in GPLv2) does not restrict the act of running the program. Nor could it; that is a true statement because running a program is not one of the enumerated copyright rights subject to a copyright license (17 USC 106). The authors of the GPL licenses have themselves made that argument repeatedly: The use of software is simply not a copyright issue.
3. Because there are U.S. patent claims on this Ximpleware software, Section 7 of GPLv2 prohibits its distribution under that license in the United States (or any jurisdictions where patent claims restrict its use). If Ameriprise and the other defendants were outside the U.S. where the Ximpleware patents don't apply, then GPLv2 would indeed be sufficient for that use. But inside the U.S. those customers are not authorized and they cannot rely on an assumed patent grant in GPLv2. Otherwise GPLv2 Section 7 would be an irrelevant provision. Reread it carefully if you doubt this.
The Versata customers certainly cannot depend on an implied patent license received indirectly through a vendor who was in breach of GPLv2 since the beginning – and still is! Versata ignored and failed to disclose to its own customers Ximpleware's patent notices concerning that GPLv2 software, but those patents are nevertheless infringed.
Should we forgive commercial companies who fail to undertake honest compliance with the GPL? Should we forgive their customers who aren't diligent in acquiring their software from diligent vendors?
As Aaron Williamson suggests, we shouldn't ignore the implications of this case. After all, the creator of Ximpleware software made his source code freely available under GPLv2 and posted clear notices to potential commercial customers of his U.S. patents and of his commercial licensing options. Lots of small (and large!) open source commercial companies do that. Although it is ultimately up to the courts to decide this case, from a FOSS point of view Ximpleware is the good guy here!
There is rich detail about this matter that will come out during litigation. Please don't criticize until you understand all the facts.
------------------------------------------
Lawrence Rosen
Rosenlaw & Einschlag (lrosen@rosenlaw.com)"
Let's be open about the facts here. Ximpleware worked diligently over many years to create certain valuable software. The author posted his source code on SourceForge. He offered the software under GPLv2. He also offered that software under commercial licenses. And he sought and received and provided notice of United States patent claims related to that software.
Unbeknownst to Ximpleware, Versata took that GPLv2 software and incorporated it into Versata products – without disclosing that GPLv2 software or in any other way honoring the terms of the GPLv2 license. The reason Ximpleware became aware of that GPLv2 breach is because some months ago Versata and one of its customers, Ameriprise, became embroiled in their own litigation. The breach of GPLv2 came out during discovery.
Ximpleware has terminated that license as to Versata. This is exactly what the Software Freedom Conservancy and others do when confronted by GPL breaches.
That earlier litigation is between two (or more) commercial companies; it is not a FOSS problem. These are mature, sophisticated, profitable companies that have the wherewithal to protect themselves. I know in my own law practice, whether I represent software vendors or their commercial customers, we typically provide for some level of indemnification. Perhaps Ameriprise and the other customer-defendants can count on Versata defending them against Ximpleware. Such a commercial dispute between big companies – even if it involves the GPLv2 software of a small company and separate indemnification for copyright or patent infringement – is between them alone.
But as to Ximpleware and its GPLv2 copyrighted and patented software, there are a few misunderstandings reflected in Aaron Williamson's article:
1. The notion of "implied patent licensing" has no clear legal precedent in any software licensing. While it is true that goods one purchases include a patent license under what is known as the "exhaustion doctrine," there is no exhaustion of patented software when copies are made (even though copying of the software itself is authorized by GPLv2). For example, a typical commercial patent license nowadays might include a royalty for each Android phone manufactured and sold. Companies that distribute Android phones and its FOSS software acquire patent licenses so recipients of their phones are indeed free to use those phones. But that isn't because of some implied patent licenses that come with Android software, but because commercial companies who distribute phones pay for those patent rights, directly or indirectly. I think it is entirely reasonable to require commercial companies to get their patent licenses in writing.
2. Versata's customers who received the (in breach!) GPLv2 software all moved to dismiss Ximpleware's infringement claims against them, pointing to Section 0 of GPLv2, which says, "[t]he act of running the Program is not restricted." What that sentence actually means is just what it says: The GPLv2 copyright grant itself (which is all there is in GPLv2) does not restrict the act of running the program. Nor could it; that is a true statement because running a program is not one of the enumerated copyright rights subject to a copyright license (17 USC 106). The authors of the GPL licenses have themselves made that argument repeatedly: The use of software is simply not a copyright issue.
3. Because there are U.S. patent claims on this Ximpleware software, Section 7 of GPLv2 prohibits its distribution under that license in the United States (or any jurisdictions where patent claims restrict its use). If Ameriprise and the other defendants were outside the U.S. where the Ximpleware patents don't apply, then GPLv2 would indeed be sufficient for that use. But inside the U.S. those customers are not authorized and they cannot rely on an assumed patent grant in GPLv2. Otherwise GPLv2 Section 7 would be an irrelevant provision. Reread it carefully if you doubt this.
The Versata customers certainly cannot depend on an implied patent license received indirectly through a vendor who was in breach of GPLv2 since the beginning – and still is! Versata ignored and failed to disclose to its own customers Ximpleware's patent notices concerning that GPLv2 software, but those patents are nevertheless infringed.
Should we forgive commercial companies who fail to undertake honest compliance with the GPL? Should we forgive their customers who aren't diligent in acquiring their software from diligent vendors?
As Aaron Williamson suggests, we shouldn't ignore the implications of this case. After all, the creator of Ximpleware software made his source code freely available under GPLv2 and posted clear notices to potential commercial customers of his U.S. patents and of his commercial licensing options. Lots of small (and large!) open source commercial companies do that. Although it is ultimately up to the courts to decide this case, from a FOSS point of view Ximpleware is the good guy here!
There is rich detail about this matter that will come out during litigation. Please don't criticize until you understand all the facts.
------------------------------------------
Lawrence Rosen
Rosenlaw & Einschlag (lrosen@rosenlaw.com)"
Thank you for being a friend
Traveled down the road and back again
Your heart is true, you're a pal and a cosmonaut.
And if you threw a party
Invited everyone you knew
You would see the biggest gift would be from me
And the card attached would say, thank you for being a friend.
If they had a Microsoft library not authorized for free distribution in their program, Microsoft would be demanding substantial damages.
You'd need to get rid of copyright too, which the GPL uses to enforce its provisions.
Should we forgive commercial companies who fail to undertake honest compliance with the GPL? Should we forgive their customers who aren't diligent in acquiring their software from diligent vendors?
No.
That unfortunate statement betrays a serious misunderstanding of copyright, patents, and the nature of software.
... and could be compelled to freely license the entire product as a result.
No. Violating the GPL is violating copyright law. Copyright law spells out specific remedies for violations, and being "compelled to freely license" a product is NOT one of those remedies.
Indeed. And, in truth, I wouldn't blame them. It's absolutely NO different with GPL/LGPLed stuff and should have similar consequences (which, wow...they DO...)
Yes it would. RMS invented the GPL because of copyright issues, and before software patents became a problem.
If I read correctly:
1. Versata produced software 'DCM' incorporating Ximpleware's GPLv2 licensed code.
2. Versata licensed DCM to Ameriprise, who then distributed copies to it's independent contractors.
3. Ximpleware's code is subject to patent claims in the USA, making distribution under GPLv2 impermissible, and Versata did not have a commercial license, making Versata's distribution of Ximpleware's code unlicensed (in the USA).
4. Ameriprise was not aware of (1) or (2) until discovery related to a lawsuit between Versata and Ameriprise.
If this is correct, I can see where Ximpleware has a copyright claim against Versata, but I don't see where Ximpleware has a copyright claim against Ameriprise for any distribution of DCM to it's contractors. Strictly speaking, I suppose Ameriprise did distribute copies of Ximpleware's code, but if they did so under good-faith belief that they had appropriately licensed DCM from Versata, I can not see it being reasonable to hold Ameriprise liable.
At the risk of a possible bad analogy, if Google included undocumented unlicensed code in Android, I would not consider it reasonable to hold each phone vendor liable for infringement, either.
You distribute compiled code with GPL integrated, without complying with the GPL.
If this is discovered, then your customer has no right at all under the GPL to your whole code, and the GPL can never give them any rights.
The only way you can come into compliance with the GPL is to distribute sources for the whole blob - but in practice what has to happen to compel you to do this is for you to either decide that it is easier doing this than going to court - or for an author of the GPL code (or for the FSF where authorship has been assigned) to take court action for violating the licence - and then for the court to as the penalty require the release of source code.
The court is much more likely to go for financial damages - as that's what they know.
"Good Faith" helps reduce your damages in a patent claim, but mere use of patented software (much less distribution) leaves you open to patent claims, independent of copyright claims.
And yes, this is a problem with software patents. Both the distributor and end users are vulnerable to claims.
Android is indeed tied up in all sorts of patents, and every phone vendor has to pay up licensing fees, including to Microsoft. (As of a couple years ago, MS made about 10x their Windows Phone revenue just from Android lic fees.)
Odds are high that the remedy will simply be to cease distribution and fix the problem. Perhaps some court costs and settlement money.
The odds the court would require them to release the source for everything under the GPL is almost laughably absurd.
For starters that would almost invariably trigger a bunch of OTHER license violations for other libraries and packages they used. No court is going to enforce the GPL by demanding the company violate all its other suppliers licenses. Its just ridiculous on its face.
Its just FUD and full on stupidity.
in this suit.... the software's copyright holder is not a party to the case.
It can, however, make you guilty of copyright infringement if you don't comply (since permission to copy the work does not exist if you don't agree to the terms of the GPL), and this can result in a legally sustainable C&D against the distribution of any and all products by the company which utilize the GPL code in a noncompliant fashion until either all of the GPL code is removed, the code is released, or else alternative licensing arrangements can be made. Exact damages awarded to the copyright holder, if any, would probably be at the discretion of the court, but even if there were none, the company that infringed on the copyright would still have a fine for violating copyright law, payable to the state, and the amount applicable would escalate quickly if or when any willful infringement can be shown. so it's really not in anyone's best interests to go around ignoring it.
File under 'M' for 'Manic ranting'
BSD license removes most of these legal acrobatics.
The GPL has behind it an altruistic notion. That is, that your code can be extended and improved and will still remain free. I've always been of the view that it is even more altruistic to let people do what they wish with my code, even if that means closing it off in proprietary products, not acknowledging my efforts, and making money off of it while not giving any back to me.
If a company does make money of of my code, then great, I hope they create lots of jobs and provide benefits, and generally improve whatever economy the reside in.
3. Because there are U.S. patent claims on this Ximpleware software, Section 7 of GPLv2 prohibits its distribution under that license in the United States
Not entirely true. That section says that you cannot further distribute any GPL software that also has patent encumbrances (or other encumbrance enacted by court order or similar judgement). It's not clear what original copyright and patent holder's options are. They could license the software under the GPL with a patent license attached that prevents further distribution (arguably perverting the point of the GPL). The question before the court is whether distribution of the software under the GPL by the original patent holder without an explicit patent agreement automatically grants a right to the patent as the license as the intent of the GPL is to enable further distribution.
(For the sake of disclosure, IAAL, I am a software developer, I have written GPLv2 code, and I have litigated GPLv2 cases, but I have absolutely zero involvement in this matter)
The question here is really just the classic question of the morality and mentality of the free/opensource (I'll just say opensource from this point) movement vs. the harsh realities of patent and copyright law. The author above, and the author of the mentioned article, pitch this as some triumphant fight for the glory of something-or-other, but the truth is that it's: 1) a money grab, 2) a principled fight to teach violators a lesson, or 3) a some combination of both. Having reviewed the litigation tactics here; I have to lean towards money grab.
That said, having intimate knowledge of both sides of the equation here (opensource development ideas and IP attorney mentalities), I can attest that the ideals employed by both sides are, generally, diametrically opposed. Is Ximpleware is right, legally, in the fact that it can release a GPLv2'd software, file patents on the ideas, and then sue the living pants off everyone for patent violations? Frankly, yes because IP laws are harsh and designed to be massive swords. Still, the defendants have decent equitable arguments for estoppel under their implied license/baiting arguments which have precedent in the realm of copyrights. Outside the legalities, is it morally right as an opensource developer? No, probably not.
Suing the hell out of a violator? Go for it. Suing the hell out of a customer with knowledge of the infringement: Sure, why the hell not. But sending off lawsuits to unwitting customers who simply purchased a product they didn't know was infringing? Now you're pushing the line. Such actions have real world consequences. The litigation of these cases is extremely expensive, extremely time consuming, and a corporation must hire representation in U.S. courts (they cannot appear pro se). Most attorneys ignore those realities because, frankly, the suffering of a defendant is of no concern. The only thing that matters is whether the case is meritorious; if so, I'm suing the living pants off you because the law says I can. The motto is typically summarized as: legal, not ethical. But is that what the opensource world wants to present?
Mr. Rosen throws around "indemnification" and "diligent" arguments to justify the lampooning of what most people would consider "innocent" parties, but they're shill arguments at best. The simple truth, is that you're not furthering the opensource movement in any way. As for indemnification, it is a farce. First, it's speculative that any such agreement exists. Second, the indemnitor needs to: 1) agree to honor it's obligation; 2) have the resources to honor it's obligation; and 3) actually honor the obligations. The reality is that a request for indemnification is just as likely to result in more lawsuits, as it is to result in a resolution for the downstream users. Beyond that, if original defendant files for bankruptcy, indemnification is worth absolutely squat. As for "due diligence," any software engineer will readily admit, it is nearly impossible (especially for small to mid-sized firms that are letting non-technical staff handle acquisitions). It's not impossible, just cost prohibitive. Ask yourself, What purpose does destroying a company serve to the greater cause of opensource? Is it legally viable, sure, but is it worth it, morally?
All that to say, I wish people would stop trying to co-opt grand ideals and sugar coating these types of cases. The plaintiff has sued the living hell out of everyone because, legally, they can. In turn, those actions makes settlement more likely, since the upstream infringer is now getting complaints from his clients and costs are rapidly mounting up. Was it legal? Sure. Was it moral and in-line with the opensource movement's ideals? Well, that really depends on what side of the line you fall on. But regardless of where you are on that line, is possibly destroying the lives (yes, personal live
From the parent post:
There is rich detail about this matter that will come out during litigation. Please don't criticize until you understand all the facts.
When has knowing the facts ever stopped Slashdotters from criticizing? Sounds like somebody doesn't understand how things work around here.
Comments by attorney's in support their client are essentially meaningless. Even in criminal trials lawyers' remarks are not under oath and are better ignored. Similarly those who claim a deep understanding of both the facts and the law are naive. The only opinion that matters is the final disposition of the courts.
RMS invented the GPL because of copyright issues, and before software patents became a problem.
As I understand it: It was a (brilliant) workaround for two problems with putting software in the public domain, which releases ALL rights:
- Derived works: Somebody makes a modified version and copyrights that. They do a bugfix or enhancement and even the original author is locked out of his own software's future. He can't do the same bugfix or a similar enhancement without violating the new copyright. Similarly with other users of the software.
- Compilation copyrights: If somebody combines several public domain works into a combined work, they can copyright THAT, claiming violation if somebody uses excerpts from it - such as some of the original public-domain components or excerpts from them. In book publishing this covers publishers of collections and anthologies. In software, including a public-domained module in a library or distribution would let the distributors of that lock up the rights to the components. Again the original author and other users can get locked out of the author's own work. (For instance, nobody else could include it in a similar library or distribution.)
Stallman's trick solution was to keep the original work under copyright, but license it under terms that require derived works to also be licensed under the same terms and source to be included with obect. Expiration of the copyright might cause a problem - but with companies like Disney on the job lobbying congress, that's probably not going to happen in the US as long as there IS a US. Alternatively, eliminating copyrightability of software would also eliminate the need for the GPL.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Public domain gives you Freedom 0 (the right to run the software), and Freedom 2 (the right to copy and distribute it), but not Freedom 1 (the right to study how the software works) or Freedom 3 (the right to modify it).
"GPL: a vendor incorporates some GPL-licensed code into a product—maybe naively, maybe willfully—and could be compelled to freely license the entire product as a result."
Except this is just nonsense and this method which is "child like" should not be protected under the law. The non-gpl code is not an extension or modification of the GPL source code no matter what the illogical gpl license states. Only a self important, child like, sociopath(richard stallman) would come up with a moronic method. The company should just release the GPL open source code portion and not the whole thing. The non-gpl becomes part of gpl because both touched, oooooooo? what is this shit kindergarten.
Even MS does not do stupid shit like this, you can static or dynamic link to their libraries and they don't give a fuck since it will benefit their freaking windows platform anyway.
Copyright law spells out specific remedies for violations, and being "compelled to freely license" a product is NOT one of those remedies.
True, but a lot of authors who use the GPL have accepted retrospective compliance as an out-of-court settlement.
It is unlikely that many business owners know or could know without great effort and expense whether any defects in license or ownership exist when they purchase software. I think that before any punishments or fines can take place there must be some evidence that a person is doing wrong knowingly. The intellectual property mess with all its complexity and legal issues should not be put upon the end user of the product who in many cases has no way to know or even find out if he is doing wrong. Keep in mind that many businesses are quite small and even a ten dollar expense can be a harsh issue for them therefore lawyers and expert opinions may not be available to them.
I've noticed that many installers for GPL software on Windows require me to accept the GPL license before I'm able to install the software on my computer. Given the quote above, I shouldn't have to accept the license to install and run it. I'm only subject to the license when I redistribute the software.
How does Public Domain software prevent freedoms 1 and 3? It doesn't enforce a right to be given the source, but if you have that, you can do both 1 and 3.
The GPL guarantees that you have those freedoms, public domain does not.
You don't have to have the source to modify it, it just makes it dramatically easier. So you can still have 1 and 3 without the source.
People who pirate software or crack drm don't ever have the source. They rely on debugging and binary patching.
I think it's the nightmare scenario.
True but this is not specific to GPL at all. What has happened is company A bought code from company B and company B did not have all the correct permissions and licenses under both copyright and patent law to sell that code to them. It's true that company A is now stuck because they cannot sell any product which includes that code but this would be true regardless of whether company B violated the GPL or other license.
If anything company A has more options with the GPL that they would with a proprietary license: if they lack the money to pay for a commercial license for the code for all the copies they have sold then they can choose to release their source code under the GPL as well. Note that it is an option only and not required. The code is infringing and there are two ways to fix this: pay damages and ongoing license fees or release the source code. With a commercial license you would only have the first of these options.
The Public Domain doesn't prevent you doing any of those things, and if it is truly in the Public Domain, no-one can stop you. You just don't have the right to force someone to help you if you want the source handed over when you can't find it. You can also slap any restrictions you please on your result, but you can't whine of someone else publishes the PD material.
All GPL does is _add restrictions_ to what you can do. Public domain mean _no restrictions_. None. Zero. As a developer public domain is much safer since it doesn't contaminate you. If you have ever written, worked with or even looked at GPL'd code then you can never from that point in your life write any similar code for commercial use because there is a risk that you might accidentally copy something.
If that was the case, then nobody would ever be able to write any software because everyone at some point has looked at GPL'd code. I don't think there has ever been a case where someone was accused of GPL infringement because they might've looked at some GPL source code at some point in their life.
When people think of free software, they are thinking of the word "free" as in gratis. Free beer! If it is actually free, then you could get a binary copy of RedHat for free (You can't).
Free software is lberated, as in freedom. It does not free you or me from obligations. It literally means that the software itself is free from our restrictions and impositions. That is why the source code of RedHat is available for CentOS, Unbreakable, Fedora, and others to make their own distributions.
So why do people pay for RedHat? To get support and access from the developers. If something ever happens to RedHat, then another company with the right talent can just as easily step in and offer support. Try that with Solaris!
The two meanings of "free" are an anomoly of the English language. It is time to start referring to "Free Software" as "Liberated Software".
Versata chose to steal the code instead of licensing it under the commercial license or the GPL. Just because the GPL allowed the thieves to legally look at the code or use it unmodified does not magically transform this into a nightmare scenario. They are not being forced to either abandon their project or release their own code. They could just buy the commercial license like any responsible grownup would do.
The claim that this is a GPL nightmare scenario is just a stupid lawyer trick to try to fool people into blaming the victim instead of the unscrupulous bastards who stole the code and who still refuse to pay for it even after they were caught red-handed.
Think for a moment what would happen if the unscrupulous bastards prevail. The implications go far beyond the GPL. Imagine you let me see your commercial code without authorizing me to use it or copy it, perhaps through an NDA. Then I steal your code and put it in my products which I sell to a bunch of people. I get caught red handed and I still refuse to pay. Instead I hire a sleaze-ball lawyer who claims this is a nightmare scenario for commercial software licenses and NDAs. If the UBs win here, my lawyer's job becomes much easier because she can use this case as precedent. ISTM a win by the UBs would create a world where simply letting someone see your code dissolves any rights you have to that code.
We don't see the world as it is, we see it as we are.
-- Anais Nin
1. Implied - Not directly expressed.
Patent - A patent is an exclusive right to a particular invention.
License - permission to do what what otherwise be illegal.
IF a company gives you permission to do something that would otherwise violate patent law, you have a patent license for that task even if not patent was specifically mentioned. If Microsoft entered into a contract with me to manufacture android devices for their employees, that can't turn around a sue me for patent infringement of those specific enumerated devices on the purchase order. In the purchase contract it is implied Microsoft gives me permission to do those things reasonably required to fulfill the contract.
The is precedent I assume of using the principle of estoppel as a defense against patent claims. And estoppel may be implied. Ergo implications of representations made by a person may estopped patent claims against other persons.
2. The contract must be judged by it's actual language rather than ex-post-facto assertions of it's authors. It is the interpretation they would like to see in the courts, though not indicative of current law.
It may be true the FSF believes running a program is not a copyright issue, however there are precedents that claim loading a program into RAM constitutes a copying under the meaning or 106, especially if done by a licensee of a copy rather than an owner. A licensee being differentiated by having significant restrictions places on their ability to redistribute to transfer the copy of the work. The GPL does put significant limitations on this act, Section 4 specifically forbids you to "copy, modify, sublicense, or distribute the Program except as expressly provided under this License"
But this point is irrelevant. The GPL is not a copyright grant it is a license contract giving permission under certain conditions to do certain things that would otherwise be illegal. The GPL could have said that use of the program is not restricted by this license, but is simply says not restricted.
3. Section 8. allows the Original Copyright holder to expressly exclude distribution on such jurisdictional basis, why was this not done?
Anyways that's not quite what I think section 7 implies. If you agree not to distribute or use the program outside a license agreement, you may not longer distribute under the GPL unless royalty-free licenses are granted downstream. If there is a judicial ruling that the software infringes then you may not distribute it (under this license at least).
So with section 8 available (but not taken), then it must be presumed Ximpleware's distribution really did give a full GPL license to those receivers in the U.S., without additional restrictions. Now if the programs was distributed in violation of the GPL then it could be considered and inducement to infringe.
Having transmitted the program under a license in which no restrictions are placed on use of the program, Ximpleware is estopped from asking for judicial relief that would be a restriction on the use of the program.
Even in the case of the accusation patent infringement the GPL the GPL makes no termination of right.. The GPL just clarifies that distribution under the GPL may only only happen when in full compliance with the GPL; if for some reason you are legally unable to fully comply then you must forgo distribution.
If a third party had written the parser, then Ximpleware could claim any distribution in the U.S was illegal. However Ximpleware as the patent holder needs no patent license to distribute it's parser and may give licence to whomever it wishes. And section 6 of the GPL makes it clear upon distribution the person receiving the program also receives the license under the GPL from the original licencor. Upon the third party receiving the license from Ximpleware, they to have the implied patent license from the no restrictions on use clause. To distribute under the the GPL is to represent that you are imposing no restrictions on the use of the program.
Even if that were true, it wouldn't be a GPL-only issue. Nobody who had ever written code for commercial use could ever change jobs again because they might accidentally copy something and their new employer would be in trouble.
Copyright law most probably isn't quite that insane... yet.
The only thing I don't quite understand is the possible motivation for XimpleWare to only sue for patent infringement, but not for copyright infringement. It's not like you have to choose between the two (you can have both), and anyway it seems that a copyright claim would be quite strong.
Maybe it's just to keep the lawsuit more contained and therefore save in attorney's fees and costs? On the other hand it seems to me that only claiming patent infringement encourages the defendants to challenge the validity of the patents (which are anyway questionable after Bilski and Alice Corp), while they would have much more incentive to settle if there also was a copyright claim that they had little hope of winning.
"We're not stopping blacks from voting! They just have to fight their way past the KKK barricade around the polling station."
The GPL guarantees that you have those freedoms, public domain does not.
Nowhere in GPL does it say that you have to distribute the code to everyone. It only forces you do distribute the source to those you send the binary to. Freedom 0 is disputable and Freedom 2 and Freedom 3 are heavily conditioned.
As for public domain in doesn't enforce Freedom 1 if you only release the binary. If you on the other hand release the source code under public domain Freedom 0 - 3 are all enforced. Someone can create a derivate and distribute but they can't prevent you from using the original source.
With GPL anyone can still make a derivate and refuse to release the source code since that only is necessary if you intend to distribute the binary. I can even take any GPL code, make modifications and charge money for the binary and only distribute the source to those who purchase the binary.
Essentially the GPL advocated claims a lot about its freedom that isn't true or requires you do redefine the meaning of freedom more than NSA already has done.
The AC couldn't be more wrong.
First of all, source copyrights only cover the literal, copyrighted source itself (as well as comments and documentation). They do not cover functionality, API, ABI or any but the most literal and direct of language ports.
Second, as a developer, the GPL protects my rights in ways that public domain cannot. If I release a piece of code under the GPL, I remain free to grant or sell other licenses to my software as I please. At the same time, if users wish to release modifications of my software without acquiring another license, then they must also release the source for those modifications. I am then able to learn from their development efforts, and if I choose, integrate those changes into my source tree. Similarly, if users want to link my software as a library, then they must release the code for their software, too.
If I do want to allow users to be able to link my code without having to release theirs, for example because my code is intended for use as a library, then I can use the LGPL to allow that.
To all the other devs out there, do yourself a favor and spend 30 minutes reading about the commonly used licensing strategies on Wikipedia. It's not scary and you can choose the license that best suits your tastes and the intended uses of your software. You put in the hard time on that code and you have the right to restrict use or modification if that's what you want.
.: Semper Absurda
and more 'swinging pendulum.'
When GPL gets too oppressive you'll see a shift to more BSD/MIT licensed software, and then after enough companies leech, encumber, embrace and extend, you'll see a pushback to more GPL'd software, just like initially happened when Stallman and Co created the GPL.
period.
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
i think you misunderstood public domain. public domain says "you can have it". if you want it more formal, read the WTFPL, "the public domain licence"