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Bruce Perens Discusses Lawsuit Against Corel (UPDATED)
ac writes "It seems that Corel has made one mistake too many. Bruce Perens [?] is calling for a lawsuit against Corel on the behalf of Debian.
The text of his message follows and should appear here soon.
" Wow - check out the recent story regarding the 18 and older EULA. Update by RM: Bruce later backed off on the lawsuit threat. He reads Slashdot comments and takes them seriously, and he's a good dude at heart, okay?Update: 11/26 08:53 by H :And for all the people e-mailing me, mea culpa. Shoulda checked.
To: debian-legal@lists.debian.org
Subject: Corel Lawsuit
Date: Fri, 26 Nov 1999 10:09:00 -0800 (PST)
From: bruce@perens.com (Bruce Perens)
Message-Id:
It's time for us to bring suit against Corel for this "can't download unless
you're 18" stuff. That's not in our license and they know it. I've tried to
help them several times, and they continue to be 100% clueless. I think at
this point they are not representing Debian well, and should not distribute
it. I'm not going to help them any longer.
Bruce Perens
The problem is the EULA on the Corel software--in Canada at least, you cannot sign a binding contract if you're a minor.
Let me first say that I agree, Corel has made _some_ mistakes. However, it is obvious that a big company with a huge legal department would have such problems.
We should NOT however alienate them. Do you think that they would have spent so much money into Linux and made such a huge booth at Comdex if they were just around for the hype? of course not.
We need to be forceful, yet forgiving in the way we handle the corel situation. If we alienate the first major company to support Linux then we may be jeoperdizing our future.
I think Bruce Perens simply misses the spotlight. I respect him for what he has done and accomplished, but a lawsuit will not solve anything for Linux users and for the image of Linux.
Bruce: you really ought to give this some more thought.
-Davidu
# Hack the planet, it's important.
I can only read this as "Perens calls for Corel to be sent signal that Debian's patience has limits". Debian would surely win if they sued, so I guess perhaps he's come to the conclusion that threats are the only language Corel's lawyer's speak. In other words, if all you recognise is "cover your ass" thinking, then you'll have to cover your ass from GPL violations too.
I'm surprised, and I advocated showing patience to Corel earlier, but maybe Bruce is right: maybe it is time to say that the GPL demands attention and has backup if it's needed.
--
Xenu loves you!
Following is a letter I just sent to Bruce. I'm wondering if this is more a problem with the GPL than Corel; the GPL is not sacred folks, and it may indeed have flaws that need to be fixed. Anyway, we're getting ahead of the deal.
I'm getting tired of the community going off half-cocked. Less than 24 hours after a problem DOES NOT MEAN we've looked at the things from all sides. Have we gotten REAL legal advice? From at least 3 different sources? Are we SURE of what we're doing? I'm getting really suspicious of the "witchhunt" mentality everyone someone screams "GPL violation!!!" Hysteria is bad for us, and I want us to think things through before we jump with both feet into the quicksand....
-Erik
Letter follows:
Bruce,
This is a followup to my thread on /. (found here) about the possibilities that an age restriction might be necessary to uphold the GPL.
On further thought, I was wondering about this:
The GPL requires that in order to use the software, I agree to the term (the contract) that forces me to distribute it to anyone who asks. And I must insure that the code is passed along with the GPL.
Implicit in this is that I must insure that the person I'm passing the code to must uphold (or at least legally agree to uphold) the GPL. If they cannot, or willnot, I cannot pass the code to them, since I would be responsible for breaking my contract.
This, however, is a catch-22 (or paradox) when talking about minors. The GPL requires that I give it to anyone who asks; however, I cannot give it to a minor, since I cannot insure that they abide by the contract (indeed, I have foreknowledge that they CANNOT), which is a further condition of the GPL.
Paradoxes in contract law are EXTREMELY BAD, as it immediately invalidates the contract.
Is this a flaw? Does the GPL need to be modified?
Also, here is another pertinent question: suppose I am restricted from distributing the program due to content it contains. I've looked at sections 7 & 8 of the GPLv2, and it's not clear as to what the ramifications are in this situation. My reading is that any legally required restriction on code makes that code ineligible for coverage by the GPL (in otherwords, the author cannot GPL the program, nor can GPL'd code be included in the program).
Have we got ourselves a serious problem here?
There are always four sides to every story: your side, their side, the truth, and what really happened.
IANAL, and I don't know what the law literally states... but there's absolutely no way that the software industry would let a "minors aren't bound by software licenses" precedent be set. What, is it OK to be a warez dude as long as you're under 18? Does CompUSA have to start checking IDs before it sells the next Kings Quest installment?
This is true for shrinkwrap "agreements" (which are a legal fiction, anyway), but not true for the GPL.
Normal shrinkwrap "licenses" offer an array of ludicrous restrictions and covenants to which you are expected to agree before the vendor will "allow" you to use the software.
The GPL, however, is different. It acknowledges the fact that, as a copyrighted work, the right to use software is concomitant with lawful possession and, thus, you are free to make use of the software as you will. What the GPL does is stipulate the conditions you must fulfill if you want to make copies of the software.
Note the distinction: Shrinkwraps purport to offer a license to use. The GPL offers a license to make copies.
Copyright law is criminal as well as civil law. Minors are not exempt from criminal statutes. Thus, a minor making and distributing copies of GPL'd software, but not meeting the terms of the GPL, would therefore not be granted a license to make those copies, and would be criminally liable for copyright infringement.
So, no, being a minor does not escape you from the GPL.
Schwab
Editor, A1-AAA AmeriCaptions
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
I got frustrated with Corel because I have worked to smooth these things out twice before. I sent a message asking if it was time for a lawsuit to a Debian mailing list. I did not expect that message to be posted to Slashdot. The people on the Debian list told me to chill out, which was good advice.
So, Corel folks, I apologize. You need to sort our some issues with the community, but any talk of a lawsuit at this time is way out of proportion.
Bruce Perens
Bruce Perens.
I agree with you, slashdot this was one of the occurences where slashdot has to decide whether they want to be pure journalists or journalists with a positive relation to linux/opensource.
If they decide to be the latter, they should have rechecked this, because bruce seemed to be a little too fast in this case.
But this shows that one has to doublecheck what he posts in public/semi-public forums, cause there's _no_ privacy.
That was Bruce's fault and could have led to a zdnet headline without slashdot.
OTOH slashdot shouldn't have been the first to carry this in the public.
It seems to me that the Corel EULA has problems in addition to the 'minor' business. In particular this little gem:
B. PROPRIETARY RIGHTS:
All right, title and interest in the Software Programs, including source code, documentation, appearance, structure and organization, are held by Corel Corporation, Corel Corporation Limited, and others and are protected by copyright and other laws.
How can Corel just paste in something like this? They don't own any such rights to the bulk of what constitutes Corel Linux. To pass through something like seems to me to be an indication of total lack of clue.
Frankly, the whole issue is moot. Here is why: 1. If one is 18+ yrs old, then the clause does not apply to him or her and that person can download the software with both a clear conscience and a legal right to do so. 2. If the person is less than 18, the agreeing to the contract is pointless because a minor cannot be held responsible anyway. In either case, the clause serves no purpose because either it doesn't apply because of age, or because of age, the responsibility is negated. This is not to say, that I support Corel. I think they were wrong to add this clause. But I think the real point is being missed. The question is not why are minors being licensed, but rather, why is anybody being licensed? Each individual piece of software has its own license. Be it GPL, BSD, or Corel. Why included the EULA at all?
You can't get a blue screen on a black and white monitor.
I think the whole thing is a ploy by Bruce to get Karma points ;> He got four for just apologizing!
Everyone -- businesses and the open source community -- would be better off if we adopted the win/win, "live and let livee" approach of other software licenses, such as the BSD license, the MIT X license, and the Artistic License.
Open source that's reusable by all -- such as the BSD TCP/IP stack -- is responsible for the growth of the Internet and the success of the World Wide Web. Instead of threatening lawsuits based on overly restrictive licenses such as the GPL, we should say, "Use this code as you will. You can't un-publish what's already been published for the world to see, so you can't 'take' it; you can only use it to avoid tediously reinventing the wheel. Now, let's see what you can do wih it! If you do not choose to publish the source to what you build with it, good luck to you -- it's not easy to make a living that way. If you are good enough to do it you deserve success."
Bruce, in the past you have had the strength and foresight to opt out of movements and groups which have become dogmatic and/or territorial. Perhaps it is time to reconsider your support of the GPL.
It seems that the only thing that the GPL has done which less restrictive licenses have not is to alienate and hurt people. (The GPL hasn't "forced" the opening of any code; people who don't want to publish their source, such as Be, have merely worked around it or reimplemented the algorithms themselves.) It even appears to violate Point 6 of the Open Source Definition -- which you helped to write! -- by discriminating against a field of endeavor: the creation of software which does not happen to be open source.
I realize that this would be a bold move, to be sure, but you're one of the few people I've encountered who has the guts to make it. Let's end the conflict, the bitterness, and the spite. It's time to get on with writing software, and to publish it in a way that quells conflicts rather than creating them. We will all be more productive, and happier, if we do.
--Brett Glass
I'm seeing quite a bit of sentiment indicating that Linux users and GPL-using authors should ask Corel to apologize, to say 'oops', and then should sit back and trust them.
Well... of course somebody at Corel will be told to say 'oops'. That's his job. Its name is 'Public Relations'.
There's also people there whose job it is to figure out the next testing of the outside of the envelope. They are called 'lawyers'.
Forget that they have PR people for a minute, and also forget about their lawyers, and let's just look at their ACTIONS, okay? Their actions have consistently been causing problems. It doesn't matter that there's somebody to say 'oops'. That is a PR person, that's their job, it does not mean as much as people would like to believe.
I personally have a lot more respect for Bruce Perens for momentarily _refusing_ to listen to the PR flacks and looking at what Corel is repeatedly doing. I'm not sure if people realise that permitting such abuses of the GPL is very similar to letting people talk about xeroxing documents...
If you do that, the Xerox people _will_ speak to you and make sure you are aware that you are using their registered trademark as if it were a generic term, that other companies have lost their trademarks over just such weakening of the mark, and that Xerox (r) does not intend to weaken its mark in such a manner.
Well, the behavior by Corel obviously weakens the GPL- to the extent that it goes unchallenged. Anybody picking a fight with the GPL will be able to point at the Corel actions involving it, and the community responses to it. They will be able to truthfully say to a judge or jury, "This is not actually binding, because it is not obeyed or respected by even the people who use it. Look, here are 500 slashdot posts saying that Corel should not be penalized in any way for their alterations of the license, because Corel will benefit the community. Isn't it true that the GPL is a legal fiction that is not actually intended to be followed- as seen by these posts effectively waiving it in the court of public opinion... and therefore, shouldn't it be declared null and void?"
That's a perfectly legitimate approach for a lawyer to take, to invalidate the GPL. It's Corel above all who are making that argument possible, by repeatedly adding and altering conditions- and it's Linux users who are helping, by assenting to this alteration of the license, and making the argument that Corel should not be held responsible to the terms of the license.
I'm sorry, but I don't assent to the alterations of the license. I have software out there under the GPL, and I don't remember giving Corel permission to alter, challenge and weaken the license for their own convenience. I'm not concerned with how quickly a PR flack can be found and made to say 'oops'. These changes need to stop, or Bruce Perens' hasty reaction will be the only sensible course of action in the long run.
I _realize_ people want to be nice and not seem threatening or combative, but this is not fantasyland, or high school: this is the real world, there are consequences, and allowing a widely used agreement like the GPL to be defined differently in practice than it is in writing is bad. It makes an argument possible that the written version isn't really the applicable one- just as we need to look at Corel's _action_, so the courts will assuredly look at the Linux community's _action_ to ascertain how valid the GPL is when challenged. Do we, seriously, want to establish the precedent that you get to do whatever you want as long as you don't keep doing it for so long that it gets annoying? More relevantly, how many people advocating that Corel be let off easy have themselves written GPLed software- which of these people don't actually have anything to lose?
I think if attention is paid to the Linux community's wishes as to how closely the GPL must be followed, the attention needs to go to the people who have written software that uses it. I don't think it's at all helpful for people who aren't actually using the license on their own work to say 'Take it easy, maybe they don't have to obey this license that closely'. I think most people who do use the GPL on their own work would not wish legal precedent to be set that the license isn't really real, that in practice it's customarily altered and bent to fit situations. I certainly do not. From Bruce Perens' initial reaction, I don't think he wishes that conclusion to be drawn either.