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Understanding the New Red Hat-IBM-Google-Facebook GPL Enforcement Announcement (perens.com)
Bruce Perens co-founded the Open Source Initiative with Eric Raymond -- and he's also Slashdot reader #3872. Bruce Perens writes: Red Hat, IBM, Google, and Facebook announced that they would give infringers of their GPL software up to a 30-day hold-off period during which an accused infringer could cure a GPL violation after one was brought to their attention by the copyright holder, and a 60 day "statute of limitations" on an already-cured infringement when the copyright holder has never notified the infringer of the violation. In both cases, there would be no penalty: no damages, no fees, probably no lawsuit; for the infringer who promptly cures their infringement.
Perens sees the move as "obviously inspired" by the kernel team's earlier announcement, and believes it's directed against one man who made 50 copyright infringement claims involving the Linux kernel "with intent to collect income rather than simply obtain compliance with the GPL license."
Unfortunately, "as far as I can tell, it's Patrick McHardy's legal right to bring such claims regarding the copyrights which he owns, even if it doesn't fit Community Principles which nobody is actually compelled to follow."
Perens sees the move as "obviously inspired" by the kernel team's earlier announcement, and believes it's directed against one man who made 50 copyright infringement claims involving the Linux kernel "with intent to collect income rather than simply obtain compliance with the GPL license."
Unfortunately, "as far as I can tell, it's Patrick McHardy's legal right to bring such claims regarding the copyrights which he owns, even if it doesn't fit Community Principles which nobody is actually compelled to follow."
From the article:
Q: Is it true that the principles the four companies announced today are taken from the GPL 3 license, but they are applying them to GPL 2?
A: Yes. If your software is under GPL 3, the same waiting periods that the four companies have promised are required. Thus, it is ironic that when originally presented with the opportunity to apply the GPL 3 to Linux, Linus Torvalds and the Kernel team were quite hostile about it, while the kernel team’s recent announcement attributes the principles they have adopted to the text in GPL 3. Perhaps they’ve learned something since those hostile moments.
Without copyright there is no such thing as the GPL. There is no such thing as copyleft,
I don't see the problem with this. Either way, the deliberately offending party gets held accountable. In fact it would be entirely appropriate for these companies to fund lawsuits like this a la the Gawker case because their interests overlap heavily.
Copyright is not the only possible legal regime. It's just the one we have now. A legal structure supporting openness could exist side-by-side with proprietary copyright.
Bruce Perens.
There is such a thing as copyleft, but, yes, as you mentioned, copyleft is empowered by copyright. The two are not mutually exclusive concepts.
I understand the sentiment, but without the rule of law you probably get the rule of mobsters. We do not yet live in a science-fictional world where coercion is impossible, regardless of the number of arms borne by one side or the other. This might have to wait for a post-scarcity society, if it is even possible then.
Bruce Perens.
"....This is disappointing when copyleft should really be at war with ...."
The thing about going to war is that you have to win. If you lose you typically lose in catastrophic, irreversible, grossly injurious ways at best and fatally at worst. If you achieve stalemate you may be so impoverished that you dare not assert your rights in future, and may
find yourself a much more visible and softer target for other adversaries. You have to win, and win unambiguously even if not in every detail. Cheerleading for war from a position of financial inferiority, legal ambiguity and lack of adequate precedent, is beyond brave and well into the realm of foolishness or even suicidal tendency.
Even Hitler is not worse than Hitler.
Copyleft as it stands now is empowered by copyright. There is nothing preventing Congress from passing a law recognizing copyleft as its own thing.
The corporate world is playing hard ball, and the open source world wants to string daisy chains.
Community can be great but isn't enough to make sure our code is used the way we want. Making a choice about what license we are going to use isn't the end of our copyright decision-making. If we want our licenses to be effective, we need to plan for enforcement, for inheritance, and for who will "own" the copyright in our code even if we want our code to be free.
Real lawyers write in C++
Most libertarians still believe they have a right to keep uninvited guests out of their living room. I think the same applies to GPL software. The developers made the rules for their party. If you don't want to play by their rules, you do still have no limit on your freedom: you are entirely free to write your own software and set your own rules for it.
Bruce Perens.
Programmers should only be paid if someone wants to pay them.
Without copyright there is no such thing as the GPL. There is no such thing as copyleft,
Without copyright, there would be no need for copyleft. Somewhat counterintuitively, it's GPL (v2) rather than BSD/MIT that emulates a world without copyright better: we'd have decompilers.
Decompiling is merely an optimization problem: make a front-end that takes x86/etc code (these already exist), output C/etc code, optimizing for human readability; you lose comments and (without debug info) function and variable names. The only reason no one wrote a serious decompiler yet is that cases when using source recovered this way are so niche it's not worth the effort.
For pretty much any interesting program, people would clean up and comment such source, thus there'd be no commercial benefit for keeping the code closed. And, releasing real source means you get better outside contributions, thus cooperating with your users is a win. Ie, we'd have an all-GPL world.
I specified GPLv2, as there exist a way around decompilers: DRM. Of course, doing so on a general-purpose CPU would be mere pointless obfuscation (just run the thing in an emulator and dump memory when decrypted), thus such evil CPU would need to include sealed DRM chips. But, the corp would still have to give the user both the lock and the key: decapping is not that simple, but it can be done, immediately breaking all DRMed code runnable by the chip that got decapped. DRM is physically impossible, it serves merely as a stumbling block. At this point, it'd be so niche that no company would really bother, turning the tables to what we have now with decompilers.
We'd end with a prisoner dilemma world where everyone cooperates, instead of current population of defectors.
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
I think it is good for people to remember that science fiction isn't only Star Trek, but also Snow Crash.
Surely we could do better than the current copyright regime, and surely we could do worse too.
What worries me about the "advisory" nonsense is that it muddies casual understanding of what the rules are without actually stopping anything or giving real clarity; to the extent a reader thinks it brings clarity, they're most likely just misunderstanding more!
It is perhaps a good policy, but it is unfortunate that the response is mostly about ideology instead of about the specific terms of license contracts with specific vendors who don't hold the copyright to everything under that license. You won't get sued by these companies prior to the deadline, but you might really still get sued over the same software.
I think every single libertarian I've talked to believes that they have a natural right to kill an uninvited guest found in their living room!
If your goal is having as many users as possible, you don't set out to use the GPL. Inherent in that choice you are rejecting some users in favor of gaining a better bargain for everyone else. The Kernel Team still has trouble dealing with this.
Bruce Perens.
No. Last I heard (and many people are not aware of this) the VMWare case was under appeal in Germany. Meaning that VMWare could still lose. However, VMWare has been given cure periods far in excess of the ones mentioned here.
Bruce Perens.
Thank you for making that distinction.
War, even if corporate or legal or ideological rather than national, is a state that encompasses the possibility of being annihilated, and also the opportunity to enforce the same on the opponent.
It's very pleasant to be reminded that some people and organisations seek to create frameworks, laws, habits, methods etc. that anticipate and preempt those mindsets and situations. It's also nice to be reminded that pretty much all the software I use to read and to post here is a result of those endeavours.
Free Software FTW!
btw in my mind "FTW!" always auto-translates into "Fucks The World!" but I'm really trying hard to use and understand the TLA in what is, I grudgingly concede, its more commonplace and modern context.
The prisoner's dilemma doesn't result in everyone cooperating. If it did, then it wouldn't be a dilemma.
If the reward for defecting is small enough, and the population punishes defectors enough, it's a smart play to cooperate. If the payoffs are (5,0), (3,3), (0,5), (1,1), you can get 5 once then nothing but 1s for the rest of your life -- while everyone else keeps getting 3s. On the other hand, if you're in a population of defectors, cooperation is suicidal. Note that in a world of cooperation, the average person fares drastically better.
But alas, we live in a world where defectors buy themselves draconian copyright laws, and attempt to make cooperation illegal (like FCC rules or Article 13 of the EU Copyright Directive).
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
The only reason no one wrote a serious decompiler yet
I'd call Hex-Rays Decompiler for IDA pretty serious. It can do x86/64, PPC and ARM/ARM64; I've only seen output from the x86/64 version and it did a damn good job of making assembler into C. Of course, it also has a pretty serious price tag!
In case you didn't realize, the original article is the last link. Or you can just look at it here.
Bruce Perens.
Please tell me why I should be unable to defend myself in my own home.
And don't tell me "call the police". Not a single crime I've been a victim of that I reported had been acted upon, even though in two of three times catching the perpetrator would be trivial (unprovoked battery: the bum kept sitting there, cell phone robbery: robbers did not turn the phone off). That's why I don't even bother to report crimes anymore. On the other hand, try to cross the street at a crosswalk with a broken (always red) light...
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
Even Hitler is not worse than Hitler.
Mao, Stalin, Muhammad?
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
They may or may not have been worse than Hitler, but Hitler is not worse than Hitler.
To be less flippant:
Of Hitler, Mao, Stalin, and Muhammad it seems that Hitler is the only one who sought to murder millions of people as a matter of policy, on principle as it were. The others murdered millions of people, evidently many more millions in the cases of Stalin and Mao, incidentally. The moral import of this escapes me. To be in fear is to be in fear. To be murdered is to be murdered. The scale of the crimes defies my ability to assess or differentiate.
David Ben-Gurion:
"We must support the army as though there were no White Paper, and fight the White Paper as though there were no war. "
That is what one might describe as a nuanced strategy, or deep pragmatism, or farsightedness, or wisdom.
Bear in mind that in the (supposedly) most militant Zionist factions such as Lehi there were people who regarded Hitler and the Nazis as a mere problem but the British as the real enemy. For some of them 6 million murders by the Nazis and 6 years of existential struggle by the British did not change their minds (i.e. Mr Menachem Begin).
The various Arab neighbours of Israel thought they would achieve victory and the opportunity to annihilate Israel in 1948. They quite reasonably estimated that they had overwhelmingly huge resources of manpower, materiel and wealth with which to crush an upstart.
But war is a very risky business. The Fuzzy Wuzzies broke the British Square, the Viát Minh crushed the elite of the French army, the 300 Spartans stymied the almighty Xerxes. You really have to win.
Like most libertarians, you were unable even to tell if I had expressed an opinion or policy proposal, or if I was simply stating a fact.
The answer to your question is, hey dillweed, I didn't say if you should be able to or not, argue with yourself in the mirror not in "reply".
Oh, and if your State's laws tell you to just stand there and die at a broken traffic light, you're really from an exceptional backwater. In my State, a malfunctioning traffic signal is legally equivalent to a stop sign in every direction; which actually means not only that the pedestrian doesn't need to wait for a light, it actually means they can cross at any time and cars are required to yield!
The funniest part is that you agreed with what I said, but demanded I argue anyways. Yeah, happy to oblige, that makes you wrong by definition.
Without copyright there is no such thing as the GPL. There is no such thing as copyleft,
Without copyright, there would be no need for copyleft. Somewhat counterintuitively, it's GPL (v2) rather than BSD/MIT that emulates a world without copyright better: we'd have decompilers.
IMO, there's a better solution than a world without copyright: A world that grants copyright protection only when the expression is published. This is trivially the case in all other areas of copyright: You can't publish a book without letting people read the words that it's made of, thus allowing them to learn and therefore remix your ideas in their own expressions. Same for music, same for everything except software. Only in software is it possible to publish your ideas while simultaneously keeping them hidden.
We made a huge mistake in allowing software distributed in binary-only form to have copyright protection. It doesn't achieve the goal of modern copyright[*], which is to encourage the dissemination of ideas by allowing temporary ownership of the expression of those ideas. (Note that we've also broken the "temporary" part, but that's a separate issue). Binary-only software distribution means that it's impractical to read code and learn from it. The only part of the ideas embodied in the software that get disseminated with it are those observable from outside.
A more appropriate way to apply copyright to software would have been to provide it only to programs distributed in source form. This wouldn't seriously inhibit commercial software. Indeed in the early days of commercial software, licenses usually included access to the source code. This approach wouldn't imply that licensees had the permission to modify or compile the code (that would be production of a derived work), but most of the early licenses I mention did allow modification and recompiling, and I think it would be the norm, because it just makes sense to allow licensees to fix bugs that they discover, or to make enhancements that they need.
For code that really does need to be kept secret, there are other options under the law, including trade secret law. It would be more cumbersome to apply, since every recipient would have to sign a contract including an NDA -- no shrink-wrapped EULAs possible. But that seems fine to me, since it's pretty rare that code actually needs to be kept secret. SaaS would be another option for keeping code secret.
But under such a regime, most commercial software would be source-available, and open source and copyleft licenses would work as well. You could take open source-licensed software and add proprietary bits and redistribute, with the open source license on the original code and your proprietary bits under your own license. Your licensees would have full source code, but would only be free to redistribute the open source-licensed bits. Your parts would be subject to the restrictions in your license. But copyleft licenses would require that all code redistributed with the copylefted code fall under the copyleft license, meaning that whoever you give the combined code to has permission to modify and redistribute all of it.
[*] By "modern copyright" I'm essentially referring to the notion of copyright espoused by the US Constitution, as opposed to the earlier form embodied in the Statute of Anne. The earlier form was mostly about censorship, enabling the crown to decide what could or could not be published.
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The point of Open Source isn't really to have source code. That source is a means to an end, but not the end itself. The end goal is to have software that end users can modify to suit their purposes. And even further, the ability to legally share those modifications with other end users.
It is difficult to share modifications with binary patch schemes, and it is difficult to write those modifications. And I say this as a someone who spend a lot of time on 8-bit computers in the 80's where we did this sort of thing.
I wish decompilers were better. I've used them before, and HexRays is the best I've used but it's still sub-optimal. This is partly because the act of compiling discards much of the annotation that we enjoy in source code. You can find many obfuscators for your source code that basically discard annotation and mutate the structure of your code to make it difficult for a human being to comprehend. Distributing obfuscated source code is not really any better than distributing binaries, and is not at all in the spirit of the GPL.
“Common sense is not so common.” — Voltaire
Copyright is not the only possible legal regime. It's just the one we have now. A legal structure supporting openness could exist side-by-side with proprietary copyright.
I'd argue also that we have misapplied copyright to software. The fundamental goals of copyright are not met by offering protection for binary-only software. Just as it's possible to take the ideas expressed in a book and apply them in your own work, it should be possible to read software you purchase and remix the ideas in your own work... but this is impossible (or at least impractical) if you receive only a binary. Binary-only distribution means that you can publish your work while simultaneously keeping most of the ideas it contains secret, thus not enabling progress in the useful art and science of software engineering.
A more correct application of the principles of copyright to software would be to extend copyright protection only to software distributed in source form. This would make nearly all commercial software "source-available", which obviously isn't the same as "open source", much less the same as "free software", but would make the world of software considerably more open. Closed source software would still be possible, but would not have copyright protection so other means would have to be used to protect it, such as trade secret and contract law. But that would be cumbersome, so most software would have source available.
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Please tell me why I should be unable to defend myself in my own home.
Please tell me why you need to defend yourself with lethal force against an uninvited guest in your living room?
I mean, civilised people would offer them a cup of tea, sit down and have a chat about why they're there and whether they're ok.
The claim I was responding to, was that if a licence has any rules, then it is not free. My (yes, sarcastic) response is intended to point out the absurdity of equating freedom to the lack of rules.
Oh really? So I don't have a right to tell you not to commit theft or murder?
I mean, civilised people would offer them a cup of tea, sit down and have a chat about why they're there and whether they're ok.
Against a civilised person, no potentially lethal force is required. Such a person wouldn't also break into my home.
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
You're making a very large number of assumptions there, many of which could easily be wrong should you encounter an uninvited guest.
However, it's very clear: If I ever find myself in your house uninvited, I must kill you with immediate effect as an urgent matter of self-defence.
That's ok but why try to even discourage this guy? If the "profiteering" targets had complied with the license he wouldn't even have a case. Are you blaming the victim here? He contributed code under conditions that it will continue to be free. The targets violated the license, now he wants to be compensated. Now that he has done the homework and identified non compliant commercial distributors of Linux, other copyright holders should file their claims as well. Teach them a lesson. We only care that people adopt Linux if they participate in the community. The violators now and in the future need to weigh the cost of developing themselves or buying similar capabilities from a commercial vendor against the downsides of publishing their probably insignificant modifications to free software.
To clarify, my post was intended as sarcasm. Also, my argument wasn't supposed to be about whether or not we should have complete freedom, but only that freedom isn't the same thing as the absence of rules. i.e. We need rules to ensure people respect each other's freedom.
To clarify, my post was intended as sarcasm. I was arguing against the idea that the absence of rules equates to freedom.
Then, depending on jurisdiction, you'd be guilty of murder or at least manslaughter. Homicide during home invasion is no small thing. While this will be no consolation for me (I'd be dead), homicides are a kind of crime that the police tends to actually investigate. In Poland where I live, this is 8 to life if it appeared you were in my home accidentally or with no intention to confront me, 25 to life if it counted as (even unarmed) robbery -- facts don't seem to matter as in practice our courts decide this completely at random, even contrary to elementary common sense.
As for me, in nearly every jurisdiction I have a duty to see what's going on, but usually it's about whether a reasonable person would believe you're either a danger or intend to commit a crime. Poland was until recently one of worst offenders, with about no right to self-defense, but fixing this is pretty much the only good deed of our current government. They're also fixing home invasion law by making defense against such entry immune from prosecution unless I "drastically exceed" what is considered reasonable. I'm only waiting to actually be allowed to own a gun (currently you need quite some connections to get a permit), as currently I don't believe I'd have any chances against even a single weakish thug.
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
Oh, and if your State's laws tell you to just stand there and die at a broken traffic light, you're really from an exceptional backwater. In my State, a malfunctioning traffic signal is legally equivalent to a stop sign in every direction; which actually means not only that the pedestrian doesn't need to wait for a light, it actually means they can cross at any time and cars are required to yield!
I live in no State, thank you. But, pray tell, how exactly a car is supposed to know that green light doesn't mean green?
The problem in Poland is, you get a fine for crossing on red not only when there's not a single car in sight, but even if the road is completely closed. You are allowed to cross a road at your own risk only if there's no pedestrian crossing within 100 meters. Who cares if the red light is stuck, and there was no traffic at the time? There's money to be obtained, catching criminals on the other hand means risk but no monetary gain.
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
The car will know because cars here always have to yield to pedestrians anyways.
I know in a lot of the world people would just get run over in that case, but I live in a more civilized place.
In any case, this story is about US copyright law. Your opinion is out of place.
Wow, you must live in a fucked up country that you were the victim of a crime.
More than once.
And: police is not working.
Did you pay your taxes?
Cost free eBook I read (by iBook/Kobo/Amazon/ObookO/Gutenberg etc.): "The Green Odyssey" by Philip Jose Farmer.
Okay but right now legal reverse engineering is allowed on the grounds of proven clean-room reimplementation, right? Like say with the ReactOS people being unable to accept patches from former Microsoft employees who worked on Windows. So wouldn't freely-available source muddy those waters?
Silicon & Charybdis McLuhan Kildall Papert Kay
It makes more sense if you understand or acknowledge that Israel and the Jews are one of the oldest continuously existing civilizations on the planet. They have been struggling to keep and maintain their national identity and native homeland since the beginning of human civilization.
This isn't about yesterday or 50 years or 100 years or even 500.
They've been at it since our ancestors lived in caves and ate each other.
A Pirate and a Puritan look the same on a balance sheet.
Not everyone lives in a city.
My house is on a back country road that is a back way between 2 small towns, one of which has a bar and the other doesn't. Every 9 or so months, someone misses the curve and ends up in my fence. I call 911, if an ambulance is needed it is 10-40 minutes. Police (state highway patrol) take an hour to show up and give me a report for insurance/etc. For criminal activity, county sheriffs respond. I've only had to call them once (found a gun in the road at the end of my drive) and it took 20 minutes to get 2 deputies there.
No, it wasn't one of my guns - it was a POS plastic Smith & Wesson V40 and totally crushed and useless, so I never claimed it as found property. I like blue steel and walnut.
Don't blame me, I voted for Kodos
Okay but right now legal reverse engineering is allowed on the grounds of proven clean-room reimplementation, right? Like say with the ReactOS people being unable to accept patches from former Microsoft employees who worked on Windows. So wouldn't freely-available source muddy those waters?
Wouldn't change it at all. In order to do clean-room reimplementation you have to separate the people who do the reverse engineering from the people who do the reimplementation. You have one group analyze the existing code and create a specification document. The specification contains the ideas from the original code, but none of the original code, nor any mechanical transformation of the original code, so it does not contain any of the original expression (copyright protects expressions, not ideas). Then you pass the specification document to a new group of people who implement it. Because they've had no exposure to the original code they cannot possibly copy any of the expression. Any identical portions of the result are purely coincidence, or necessity.
Note that nothing in the above says anything about the form of the code from which the specification was produced. It doesn't matter. Source availability would make clean-room reimplementation dramatically easier, by making the job of the analysts who write the specification dramatically easier.
It's also worth noting that clean-room reimplementation isn't legally necessary. You can actually have the same people do both the analysis and the implementation. The problem is that it becomes hard to prove that identical portions were not copied. You'd have to demonstrate that there are only a limited number of ways to implement the relevant bits, and therefore that the probability of coincidental duplication is high. It can be done, and has been done (e.g. in Oracle v Google, where the judge actually learned enough about Java programming to be able to make that determination himself). But clean-room, done correctly, is ironclad proof of the absence of copying.
The notion of clean-room implementation was created when Compaq decided to reverse engineer the IBM PC BIOS. Compaq was a small startup and IBM was a behemoth well-known for it's willingness and ability to litigate. IBM's legal staff hadn't yet acquired the moniker "The Nazgul" (that came during the SCO fiasco), but Compaq would have understood and agreed with the label. So, Compaq's lawyers devised the clean-room process, and Compaq carefully followed it and documented every step, so that IBM would have absolutely no hope of proving copyright infringement. It worked. IBM's lawyers looked at Compaq's process and documentation and didn't bother trying to sue.
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I don't think it's nearly so bad. If software is published in source-code form, reading it is not reverse-engineering. What you have to do is refrain from cutting and pasting. The way we determine if something is a copy or a new work is spelled out in Judge Walker's finding in CAI v. Altai.
Bruce Perens.
What people came up with to encourage the sharing of trade secrets are patents. In exchange for charging people a license fee for a period of time, you show them the better way you figured out how to do something. Current implementation of the patent concept in law also has issues, particularly for software patents.
I don't think it's nearly so bad.
That was part of my point :-)
Of course, if you're a startup stepping on the toes of a juggernaut, clean-room might still be advisable. Abstraction-Filtration-Comparison is great, but you have to go to court to do it. Clean-room tends to make the issue so clear-cut that you don't even get to court. Or, if you do, the only avenue of attack open to the plaintiff is to try to prove that you didn't implement the process correctly. Only if they succeed at that do you have to bother with complex AFC arguments.
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What people came up with to encourage the sharing of trade secrets are patents. In exchange for charging people a license fee for a period of time, you show them the better way you figured out how to do something. Current implementation of the patent concept in law also has issues, particularly for software patents.
True. I think the misapplication of copyright to software is much more severe than the misapplication of patents. IMO, the biggest problem with software patents isn't the concept of patenting software designs but the granting of patents for obvious software designs. If the PTO refused to grant for things that are obvious to one skilled in the art, it wouldn't be so bad.
BTW, since you brought up the subject, I'll share my notional "patent system test". You know that your patent system is working correctly when working engineers regularly search the patent database in search of solutions to their problems, because it's more cost-effective to license a solution than to devise one. That would prove that the sharing of ideas is actually being encouraged by the system. In the software world, of course, every company I've ever worked for cautions software engineers never to look at the patent database, because odds are they'll find something they've independently reinvented, and knowing about it makes the company liable for treble damages. That's fairly compelling evidence that the software patent system is broken.
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My idea for an individual software patent test is: "if you attempt to keep the idea secret, will anyone care?" If the answer is "no," then no patent is granted. I have a feeling that outside of software (where the design is the product), licensing patented ideas is more common.
Under normal circumstances, no. There are highly unusual circumstances that could cause a civilized nonviolent person to break in. Until the intruder demonstrates hostile intent, or you know why the intruder came in, shooting the intruder would be murder.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes