Bruce Sewell: "Well, the FSF is the copyright holder and it's under the GPL license, so they're 'asking' us to put the entire App Store in 'compliance' with their license."
Steve Jobs: "You're kidding me. Are they nuts? Look, there can't be more than five applications on there using GPL code on there, can there?"
Bertrand Serlet: "You wouldn't need my hands and yours to count them all, that looks like a good estimate..."
Steve Jobs: "Are any of them any good?"
Bertrand Serlet: "Hahahahahahahahahahahahahaha! No."
Steve Jobs: "Well, what's the problem? They say their copyright is infringed, did they file a proper cease-and-desist?"
Bruce Sewell: "No, they put up a web site claiming they were conducting an 'enforcement action' against us."
Steve Jobs: "'Enforcement'? What the hell do they think they can 'enforce' against us?"
Bruce Sewell: "Well, whatever they think, the only thing they can enforce is their copyright."
Steve Jobs: "On some crappy free Go program? There are good Go programs for the iPhone. Okay, screw those bozos. Take the app down, and tell the developer that they misled us on its salability. If they don't like that, they can sue the FSF."
Bruce Sewell: "Yeah, makes sense."
Steve Jobs: "And look into changing the FOSS language in the Developer Agreement to specifically exclude the GPL as an acceptable 'FOSS license'. If you can get some kind of language in there making it clear that this is the FSF's choice, and not ours, that'd be great."
Bruce Sewell: "Right."
Steve Jobs: "And send Stallman an iPad, the big 3G one. Have 'Hey, Stallman! Where's your contract, hippie? Love, Steve Jobs' engraved on the back in letters, like, two inches high. And use the corporate font." ::general laughter::
So if you download the binary of a GPL'd program, you are bound by the GPL. In practice, you can ignore the requirements of the GPL right up until the point at which you give a copy of the binary to someone else.
You can ignore them after that, too. You'll be in infringement though.
Given that this was a program from which neither Apple nor the FSF got a penny of income, what exactly would the FSF ask a judge to do, other than remove the offending copy from the store (which they've already done)? A judge won't order Apple to "observe the GPL".
You're just making this up as you go, aren't you?
It requires the express permission of the copyright holder, or the holder of a valid license to the copyright. Robota represented themselves to Apple as having a valid license to the copyright, as well as having "used FOSS code appropriately".
At which point did Apple sign a contract with the FSF to observe the GPL? The prior poster is correct: this is nothing more than a situation of Robota Softwarehouse of the Netherlands infringing a copyright held by the GNU Project.
You hire the demolition company. The demolition company asks for your ID and a copy of the deed to the property. You show them a forged driver's license in your neighbor's name, and a forged deed. The demolition company knocks down the house. You pay them with a forged check.
Yes, the demolition company walks away completely without penalty. They did their "due diligence" in making what any reasonable person would agree is a reasonable effort to ascertain that you were, in fact, the owner of the property.
You lied to them, using forged documents to do so. You are completely liable for all actual damages suffered by your neighbor, and almost certainly punitive damages as well. You are also guilty of destruction of property, fraud, impersonation, use of forged documents and a variety of other criminal charges.
The driver gets the ticket, regardless of whether the car is stolen or not because the car doesn't commit the act of speeding, the driver does. Apple relied on Robota's statement that they had the right to sell the program and that they had handled FOSS code appropriately. If Robota misled Apple, that's not Apple's fault.
That's silly. What exactly is the FSF going to tell the court?
"Apple violated our license!" "Do you have a contract with Apple wherein they agreed to observe your license?" "Er......no......" "Hm. Well, you can't hold them to a license they never contracted to observe." "Apple infringed our copyright!" "It looks more to me that Robota infringed your copyright, if anyone did. Apple never even saw the source code for this program." "But Apple had an infringing copy on their store!" "And they apparently relied on Robota's statement in their contract with Apple that the program could be legitimately sold. Did you send them a DMCA notification?" "Er.......no......." "Did you send them a cease and desist letter?" "Um...not exactly..." "What did you do?" "We put up a page on our web site announcing an enforcement action and..." "A what?" "An enforcement action. If someone violates our license..." "You've already said you had no contract with Apple regarding this license, so that's irrelevant. Look: did Apple make any money by providing this application?" "Er.......no......" "Did you lose any?" "Um......well......it's not about the money..." "That's good, because there doesn't seem to be any. Are you deliberately wasting the court's time here?" "We're working for software freedom!" "You'll be doing it from a jail cell on a contempt charge in a minute, at this rate. You haven't lost any money, Apple hasn't made any money, Apple has removed the infringing application in spite of never having been properly notified by you... What damages are you claiming? What remedy are you seeking in this case?" "The cause of freedom has been damaged! We want you to order Apple to observe our license!" "I'm ordering you to the slammer for fourteen days for wasting my time with this frivolous suit." ::BANG!::
Pulling the app from the store stops further infringement, but doesn't address the illegal distribution that has already occurred; the only way they can deal with that is either an agreed deal with the FSF or a resolution through the courts.
It's not "illegal", it's "infringing", first of all. Second, they'll simply pull the app remotely off any phone on which it's been installed. Problem solved.
If "copyright infringement is not theft", then what cause does the FSF have for complaint with Apple? Apple never agreed to observe the GPL (and no, distributing copies of a program they were told by the developer was salable is not a contract to observe the GPL).
This is correct: all of the online stores are screwed, as I've shown in the article here
Apple didn't pull the app to prevent openness: they pulled it to avoid the liability of having a copyright-infringing program (and Apple is not the infringer) in their store.
Or, they could just remove the application and make the GPL an unacceptable license for future submissions. That's easier and cheaper for them.
And what's Apple's motivation to "opt in" to the GPL? Richard Stallman having called Steve Jobs a "snake oil salesman"?
Richard Stallman's having claimed for years that there was a "secret back door" in OS X whereby Apple messed with your system without your knowledge or consent? Stallman repeated this fairy tale right up to the point where he suddenly did a complete about face, offering a full retraction, and apologizing (pretty half-heartedly) to Apple for having spread a defamatory rumor with no actual basis in fact. Funny thing, that.
"Dr. Stallman? There's someone on the phone who says they're from Apple's Legal Department, and they insist on speaking to you immediately. They said that if you're not on the phone in ninety seconds, the next time they chat with you, you'll be in front of a judge as the defendant in a multimillion dollar civil suit for defamation and interference with their trade. They also said something about turning our building into the Boston Apple Store, and giving every FSF employee a free iPod before they threw us all out into the street. I think you'd better talk to them."
Apple simply relied on Robota Softwarehouse's statement that there were no legal impediments on the sale of the program, a stipulation Robota had to make as a precondition to getting it placed on the store. Apple acted in good faith; that Robota misled them is not their fault, and isn't actionable as long as Apple does what it can to remedy the situation (i.e. removing the app from the store) when they're properly notified of the infringement.
The FSF certainly can't claim that they were harmed by this infringement, or that Apple profited by it. Nobody ever paid either Apple or the FSF a red cent for GNUgo.
That the FSF claims that Apple is a "distributor" means nothing. Apple never signed a contract with the FSF to observe the GPL, and no court would hold them to doing so in this case. Apple isn't responsible for the production of this product: Robota Softwarehouse is. Apple relied on Robota's statement—and Robota did make a contract, with Apple—that the product was marketable, and that Robota had the right to sell it through the App Store.
So Robota misled Apple, and through their misinformation, got Apple to place an infringing work in the store. Apple did no wrong here. If anyone's responsible for the infringement, it's got to be Robota. After all, Apple's never even seen the source code for the app, since they don't ask developers to submit sources.
I doubt it. Apple, I would think, enjoys "safe harbor" privileges under the DMCA regarding the apps in the iTunes App Store, so they can't be held responsible for infringements there as long as they observe the rest of the obligations of the act, e.g. to appropriately handle infringement notifications, remove allegedly infringing material promptly in the absence of a counter-notification, etc.
And even if they did sue, and win, the best result they could come away with (assuming for a moment that the FSF wasn't held in contempt for wasting the court's time with a frivolous lawsuit) would be a court order to have the app removed from the store. Apple made no income from GNUgo, and the FSF lost no income as a result of this infringement, so there's no damage done to them.
All the FSF accomplished was to guarantee that GPL-licensed software will be banned from the App Store.
No, only the copyright holder can sue Apple, because only the copyright holder (the FSF) has the standing to do so.
Since Apple has really done nothing, in the eyes of the law, except take a developer's word that the program was salable, the appropriate remedy would have been for the FSF to provide a DMCA infringement notice to Apple advising them that it infringed the FSF's copyright. Apple, after all, never agreed to observe the GPL with respect to this program, and the FSF can't hold them to doing so based on a third party's actions. All of this "enforcement action" stuff is simply a publicity stunt on the FSF's part.
In fact, if the FSF did sue Apple, I think it's pretty likely that the first question the judge would ask, once he had the facts of the matter would be, "Well, did you provide Apple with a DMCA infringement notification?"
When the FSF stated that they had not, I expect the judge's next question might be, "Why are you wasting the court's time with this frivolous lawsuit, when you could have settled this matter with a simple email and in less time than it's taken me to read your briefs?" followed closely by "Can you give me a good reason why I shouldn't hold you in contempt of court?"
The FSF certainly couldn't recover any money here, only spend it: the program was provided at no cost, and Apple never made a dime off it, nor did the FSF lose any income because of sales through the App Store.
Slashdot Mirror
Bruce Sewell: "Well, the FSF is the copyright holder and it's under the GPL license, so they're 'asking' us to put the entire App Store in 'compliance' with their license."
::general laughter::
Steve Jobs: "You're kidding me. Are they nuts? Look, there can't be more than five applications on there using GPL code on there, can there?"
Bertrand Serlet: "You wouldn't need my hands and yours to count them all, that looks like a good estimate..."
Steve Jobs: "Are any of them any good?"
Bertrand Serlet: "Hahahahahahahahahahahahahaha! No."
Steve Jobs: "Well, what's the problem? They say their copyright is infringed, did they file a proper cease-and-desist?"
Bruce Sewell: "No, they put up a web site claiming they were conducting an 'enforcement action' against us."
Steve Jobs: "'Enforcement'? What the hell do they think they can 'enforce' against us?"
Bruce Sewell: "Well, whatever they think, the only thing they can enforce is their copyright."
Steve Jobs: "On some crappy free Go program? There are good Go programs for the iPhone. Okay, screw those bozos. Take the app down, and tell the developer that they misled us on its salability. If they don't like that, they can sue the FSF."
Bruce Sewell: "Yeah, makes sense."
Steve Jobs: "And look into changing the FOSS language in the Developer Agreement to specifically exclude the GPL as an acceptable 'FOSS license'. If you can get some kind of language in there making it clear that this is the FSF's choice, and not ours, that'd be great."
Bruce Sewell: "Right."
Steve Jobs: "And send Stallman an iPad, the big 3G one. Have 'Hey, Stallman! Where's your contract, hippie? Love, Steve Jobs' engraved on the back in letters, like, two inches high. And use the corporate font."
So if you download the binary of a GPL'd program, you are bound by the GPL. In practice, you can ignore the requirements of the GPL right up until the point at which you give a copy of the binary to someone else.
You can ignore them after that, too. You'll be in infringement though. Given that this was a program from which neither Apple nor the FSF got a penny of income, what exactly would the FSF ask a judge to do, other than remove the offending copy from the store (which they've already done)? A judge won't order Apple to "observe the GPL".
"Contacting Apple" via a web page announcing an "enforcement action" against them? Publicity stunt.
You're just making this up as you go, aren't you? It requires the express permission of the copyright holder, or the holder of a valid license to the copyright. Robota represented themselves to Apple as having a valid license to the copyright, as well as having "used FOSS code appropriately".
At which point did Apple sign a contract with the FSF to observe the GPL? The prior poster is correct: this is nothing more than a situation of Robota Softwarehouse of the Netherlands infringing a copyright held by the GNU Project.
You hire the demolition company. The demolition company asks for your ID and a copy of the deed to the property. You show them a forged driver's license in your neighbor's name, and a forged deed. The demolition company knocks down the house. You pay them with a forged check.
Yes, the demolition company walks away completely without penalty. They did their "due diligence" in making what any reasonable person would agree is a reasonable effort to ascertain that you were, in fact, the owner of the property.
You lied to them, using forged documents to do so. You are completely liable for all actual damages suffered by your neighbor, and almost certainly punitive damages as well. You are also guilty of destruction of property, fraud, impersonation, use of forged documents and a variety of other criminal charges.
The driver gets the ticket, regardless of whether the car is stolen or not because the car doesn't commit the act of speeding, the driver does. Apple relied on Robota's statement that they had the right to sell the program and that they had handled FOSS code appropriately. If Robota misled Apple, that's not Apple's fault.
Net result: the FSF can sue and win $200.
This is only on the pretty optimistic assumption that the judge doesn't hold the FSF in contempt and fine them for having wasted the court's time.
That's silly. What exactly is the FSF going to tell the court?
"Apple violated our license!"
"Do you have a contract with Apple wherein they agreed to observe your license?"
"Er......no......"
"Hm. Well, you can't hold them to a license they never contracted to observe."
"Apple infringed our copyright!"
"It looks more to me that Robota infringed your copyright, if anyone did. Apple never even saw the source code for this program."
"But Apple had an infringing copy on their store!"
"And they apparently relied on Robota's statement in their contract with Apple that the program could be legitimately sold. Did you send them a DMCA notification?"
"Er.......no......."
"Did you send them a cease and desist letter?"
"Um...not exactly..."
"What did you do?"
"We put up a page on our web site announcing an enforcement action and..."
"A what?"
"An enforcement action. If someone violates our license..."
"You've already said you had no contract with Apple regarding this license, so that's irrelevant. Look: did Apple make any money by providing this application?"
"Er.......no......"
"Did you lose any?"
"Um......well......it's not about the money..."
"That's good, because there doesn't seem to be any. Are you deliberately wasting the court's time here?"
"We're working for software freedom!"
"You'll be doing it from a jail cell on a contempt charge in a minute, at this rate. You haven't lost any money, Apple hasn't made any money, Apple has removed the infringing application in spite of never having been properly notified by you... What damages are you claiming? What remedy are you seeking in this case?"
"The cause of freedom has been damaged! We want you to order Apple to observe our license!"
"I'm ordering you to the slammer for fourteen days for wasting my time with this frivolous suit."
::BANG!::
Pulling the app from the store stops further infringement, but doesn't address the illegal distribution that has already occurred; the only way they can deal with that is either an agreed deal with the FSF or a resolution through the courts.
It's not "illegal", it's "infringing", first of all. Second, they'll simply pull the app remotely off any phone on which it's been installed. Problem solved.
If "copyright infringement is not theft", then what cause does the FSF have for complaint with Apple? Apple never agreed to observe the GPL (and no, distributing copies of a program they were told by the developer was salable is not a contract to observe the GPL).
This is correct: all of the online stores are screwed, as I've shown in the article here Apple didn't pull the app to prevent openness: they pulled it to avoid the liability of having a copyright-infringing program (and Apple is not the infringer) in their store.
What's the GPL have to do with Apple? Did they sign a contract with the FSF agreeing to abide by the GPL?
And what's Apple's motivation to "opt in" to the GPL? Richard Stallman having called Steve Jobs a "snake oil salesman"?
Richard Stallman's having claimed for years that there was a "secret back door" in OS X whereby Apple messed with your system without your knowledge or consent? Stallman repeated this fairy tale right up to the point where he suddenly did a complete about face, offering a full retraction, and apologizing (pretty half-heartedly) to Apple for having spread a defamatory rumor with no actual basis in fact. Funny thing, that.
Apple simply relied on Robota Softwarehouse's statement that there were no legal impediments on the sale of the program, a stipulation Robota had to make as a precondition to getting it placed on the store. Apple acted in good faith; that Robota misled them is not their fault, and isn't actionable as long as Apple does what it can to remedy the situation (i.e. removing the app from the store) when they're properly notified of the infringement.
The FSF certainly can't claim that they were harmed by this infringement, or that Apple profited by it. Nobody ever paid either Apple or the FSF a red cent for GNUgo.
That the FSF claims that Apple is a "distributor" means nothing. Apple never signed a contract with the FSF to observe the GPL, and no court would hold them to doing so in this case. Apple isn't responsible for the production of this product: Robota Softwarehouse is. Apple relied on Robota's statement—and Robota did make a contract, with Apple—that the product was marketable, and that Robota had the right to sell it through the App Store.
So Robota misled Apple, and through their misinformation, got Apple to place an infringing work in the store. Apple did no wrong here. If anyone's responsible for the infringement, it's got to be Robota. After all, Apple's never even seen the source code for the app, since they don't ask developers to submit sources.
I doubt it. Apple, I would think, enjoys "safe harbor" privileges under the DMCA regarding the apps in the iTunes App Store, so they can't be held responsible for infringements there as long as they observe the rest of the obligations of the act, e.g. to appropriately handle infringement notifications, remove allegedly infringing material promptly in the absence of a counter-notification, etc.
And even if they did sue, and win, the best result they could come away with (assuming for a moment that the FSF wasn't held in contempt for wasting the court's time with a frivolous lawsuit) would be a court order to have the app removed from the store. Apple made no income from GNUgo, and the FSF lost no income as a result of this infringement, so there's no damage done to them.
All the FSF accomplished was to guarantee that GPL-licensed software will be banned from the App Store.
No, only the copyright holder can sue Apple, because only the copyright holder (the FSF) has the standing to do so.
Since Apple has really done nothing, in the eyes of the law, except take a developer's word that the program was salable, the appropriate remedy would have been for the FSF to provide a DMCA infringement notice to Apple advising them that it infringed the FSF's copyright. Apple, after all, never agreed to observe the GPL with respect to this program, and the FSF can't hold them to doing so based on a third party's actions. All of this "enforcement action" stuff is simply a publicity stunt on the FSF's part.
In fact, if the FSF did sue Apple, I think it's pretty likely that the first question the judge would ask, once he had the facts of the matter would be, "Well, did you provide Apple with a DMCA infringement notification?"
When the FSF stated that they had not, I expect the judge's next question might be, "Why are you wasting the court's time with this frivolous lawsuit, when you could have settled this matter with a simple email and in less time than it's taken me to read your briefs?" followed closely by "Can you give me a good reason why I shouldn't hold you in contempt of court?"
The FSF certainly couldn't recover any money here, only spend it: the program was provided at no cost, and Apple never made a dime off it, nor did the FSF lose any income because of sales through the App Store.
Oh, yeah. LaTeX is _just_ the tool your average college student needs for running off a three-page essay. Come on, really?