Patent holders are not required to announce that fact anywhere under the law
35 U.S. Code  287 (A) reads in part: "In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement"
So technically you're right, it's a question of damages not culpability. But practically speaking I was right too: failure to adequately mark the patented product hurts Ximpleware's case. In the worst case, Versatta could argue that error in conjunction with Ximpleware's other behavior shows bad faith. That could get really ugly.
As far as acceptance of the license goes, it doesn't matter where they steal the source from, the license is not automatically accepted. The GPL is funky that way: one part tries to say it can be automatically accepted, another part concedes that it isn't, and the law everywhere in the US except two states says it isn't.
In the time between the authors filing a suit and the court entering a judgement you can write your way around any GPL infringement that isn't your whole product. After which you take your lumps for the past activity... which amounts to paying the authors who sued.
"If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program."
And:
"You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work"
And:
"You may not impose any further restrictions on the recipients' exercise of the rights granted herein."
So it would seem to me that an argument can be made that if patent restrictions by Ximpleware prevent you from using derivative works of VTD-XML then Ximpleware may not be distributed under the GPL. Since Ximpleware DID distribute it under the GPL, he either intended folks receiving a derivative work to have a license to the patent or he breached the GPL up front.
It also hurts their position that the only mention of patents on VTD-XML's GPL web site (http://vtd-xml.sourceforge.net/) is: "Although VTD-XML is protected by US patents 7133857, 7260652, and 7761459, as long as you abide by GPL, you don't have to worry about patent infringement."
The difference is that the code is distributed for free.
Nonesense. The code is distributed with the expectation of payment in kind, namely providing your source code as well. At a minimum, your source code that you're trying to keep closed has a monetary value which you deprived the GPL author of.
the GPL does not create new obligations upon authors who combine original works with GPL works.
That isn't true either. If you accept license to the GPL'd work, you're bound by the terms of that license, which includes providing the source for the combined work to anyone to whom you also provide the binary. The terms of the license can be enforced against you by anyone the license empowers to do so -- namely anybody to whom you directly provided the binary code.
In tlhIngan's scenario, you never knew about the GPL'd work thus could not have agreed to the license. That makes it unwitting infringement -- copyright and patent law apply, but the GPL does not.
Actually, section 7 of the GPL says "If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."
So, if Ximpleware intentionally distributed the software under the GPLv2 (they did) and held the patents (they did) then either they must have intended that any recipient of the software under the GPLv2 also receive a license to use the patents or they deliberately breached the GPL contract with every single person who downloaded the code making them (Ximpleware) liable for damages from any of those users who are otherwise compliant with the terms of the license.
Either way, the court might reasonably cure Ximpleware's problem by affirming the existence of a patent license to everyone legitimately using the code under the GPL.
That depends. If your customer can prove that you accepted the GPL license for the code you later integrated into your product then that license flowed to them with the copy of the binary and they have the right to demand production of your source code for the relevant binaries. Proof such as an email chain discussing the GPL where you explicitly acknowledge that you acquired the code under that license. Which the customer gains access to through discovery.
If the customer can't prove you ever agreed to the GPL then it's plain infringement. In which case you're forced to discontinue use of the unlawful software and may claim damages for the monetary harm that does you.
Licenses are enforceable -- if you agreed to them. Presumably XimpleHelp doesn't have a signed agreement from Vyatta. Did Vyatta stipulate to using the XimpleHelp software under it's GPL license or is that a disputed fact? If disputed then it's just as likely that we're looking and plain-jane infringement for which the GPL and its terms are irrelevant. Infringement is cured with cash and injunctions. Nothing else, just cash and injunctions.
XimpleHelp's legal argument as I understand it is that Versata violated the GPL when it used VDT-XML and *redistributed* the software in modified form without subjecting the derivative software to the terms of the GPL. That means effectively Versata did not have a valid license to VDT-XML, because they broke the GPL which granted it in the first place. Without that license, Versata was now not just in violation of the GPL, but also now violating XimpleWare's patent rights of the software - because Versata was using patent-protected software without permission.
XimpleHelp's legal argument is wacky. Either Versata agreed to abide by the GPL (in which case they're liable to damages to XimpleHelp for violating the contract but are not liable for copyright or patent infringement since they had a valid contract for them) or they did not agree to abide by the GPL (in which case they're liable for damages due to copyright and patent infringement but not liable for any breach of contract). It's one or the other, not a mix and match free-for-all from both.
In the former case, XimpleHelp expected to receive Vyatta's source code as compensation and is entitled to it. In the latter case, XimpleHelp expected to be paid at their normal rates for Vyatta's use of their source code and is entitled to payment. In both cases XimpleHelp is entitled to injunctive relief, preventing further sales of Vyatta's product until terms are met.
Either way, going after the customers is a risky play. It seems plausible (or at least murky) that Vyatta's customers could gain access to the IP rights simply by downloading the GPL XimpleHelp software. If they can, naming them in a then-dismissable suit potentially creates a tortious interference claim turning XimpleHelp into a bad actor.
No. No, it isn't. Your program A is not GPL, it's infringing.
You may cure that infringment a number of ways, including: stripping the infringing code, paying the authors for an alternative license, pay the authors what the court orders you to pay them and, yes, releaseing program A under the GPL. The point is, how you cure the infringement is up to you. The GPL does not automatically attach to your code and if push comes to shove the court will order monetrary damages not compulsory licensing.
The threshold of measurement is around 0.5 C for a single station, and we have an effect that is about 1 C over the past 100 years. Not as big a margin as one would like, but difficult to ignore. And growing.
But... that's even smaller than the ratio versus the threshold of measurement the fellow in this article claims implied experimenter bias and bad science.
The "test" performed at NASA was sensitive to a minimum thrust threshold of about 10-to-15 microNewtons, and the "positive result" claimed detection of somewhere between 30-to-50 microNewtons of thrust.
The difference is that the space drive hypothesis is still falsifiable.
More than falsifiable. The NASA experiment demonstrated that the hypothesis was false: the control experiment got the same results.
We're left with either an experimental error which, if corrected, would move the result into the error band or we're left with a real effect for which we don't yet have a satisfactory explanation.
N-rays started this way but so did relativity: the Michelson Morley experiments and their predecessors found a real effect of light which had a lot of quack theories explaining it until Einstein came along and figured it out.
Correct! And until the 1600's, the universe revolved around the Earth. And while politicians can't repeal the law of gravity, scientists can! Isn't that cool?
Online voting and vote by mail present essentially identical issues for vote selling. And if you have to sign your name on or inside the envelope containing the vote by mail then it presents exactly the same secret ballot issues as online voting as well. That leaves security. I'd guess your vote by mail system uses photocopies on easily procured papers, yes?
Sticks and stones. I'd rather face honest anger than than a disingenuous veneer of reasonableness. And this isn't the first (or second or third) time in the last couple years GCC has been found to have optimized something into wrong code.
Taxes pay to print cash. They could pay to run the transaction system.
Cards could carry a monthly fee that covers up to some number of transactions.
Transactions consisting solely of splitting or combining cards could be made free while transactions consisting of the purchase of goods or services continue to carry a fee.
There are any number of ways to set up the system where one activity or another carries no fee. When I write a check I pay no fee. The bank makes its money off me other ways.
By the parent using the parent's bank card. By the kid splitting a larger card so he can give some amount to his buddy or combining several cards he got from his buddies.
I'm against a cashless society but not because there's any practical obstruction to it working. There isn't.
"Appeal to consequences" means an argument that something must be false because the consequences would be bad. I made no such argument. I said, "we'd better be damn sure we're right" before undertaking an effort with such negative consequences.
Unproven is not the same as false, nor is disputing unfounded conclusions the same as calling the conclusions untrue. This is one of the central fallacies that the alarmists have been perpetrating: that anyone who says, "hold on, it looks like you should investigate this a little more thoroughly" is a "denier" claiming that the hypotheses are false.
Climate alarmists may yet find sufficient scientific evidence to justify drastic action. I claim only that the ringing of the alarm bells is premature and I even suggest a form of acceptable evidence which, if found, would sustain the yet unproven claims.
Unfortunately science only works when scientists are at liberty to try as hard as they can to demonstrate counter-examples to your theory. The whole "denier" politics discourages folks from asking the questions scientists must ask in order to sustain or refute the hypotheses on the table. Your politics have gotten in the way of actually proving whether you're right.
Slashdot Mirror
Patent holders are not required to announce that fact anywhere under the law
35 U.S. Code  287 (A) reads in part: "In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement"
So technically you're right, it's a question of damages not culpability. But practically speaking I was right too: failure to adequately mark the patented product hurts Ximpleware's case. In the worst case, Versatta could argue that error in conjunction with Ximpleware's other behavior shows bad faith. That could get really ugly.
Versata, I typoed it.
As far as acceptance of the license goes, it doesn't matter where they steal the source from, the license is not automatically accepted. The GPL is funky that way: one part tries to say it can be automatically accepted, another part concedes that it isn't, and the law everywhere in the US except two states says it isn't.
Of course they still have a valid contract. Breach doesn't void a contract. Think about it.
Breach entitles the non-breaching party to restitution and enforcement. How would that work if the contract was void?
In the time between the authors filing a suit and the court entering a judgement you can write your way around any GPL infringement that isn't your whole product. After which you take your lumps for the past activity... which amounts to paying the authors who sued.
Here's what it says:
"If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program."
And:
"You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work"
And:
"You may not impose any further restrictions on the recipients' exercise of the rights granted herein."
So it would seem to me that an argument can be made that if patent restrictions by Ximpleware prevent you from using derivative works of VTD-XML then Ximpleware may not be distributed under the GPL. Since Ximpleware DID distribute it under the GPL, he either intended folks receiving a derivative work to have a license to the patent or he breached the GPL up front.
It also hurts their position that the only mention of patents on VTD-XML's GPL web site (http://vtd-xml.sourceforge.net/) is: "Although VTD-XML is protected by US patents 7133857, 7260652, and 7761459, as long as you abide by GPL, you don't have to worry about patent infringement."
Explain the error in the reasoning (preferably referencing case law) or STFU.
The difference is that the code is distributed for free.
Nonesense. The code is distributed with the expectation of payment in kind, namely providing your source code as well. At a minimum, your source code that you're trying to keep closed has a monetary value which you deprived the GPL author of.
the GPL does not create new obligations upon authors who combine original works with GPL works.
That isn't true either. If you accept license to the GPL'd work, you're bound by the terms of that license, which includes providing the source for the combined work to anyone to whom you also provide the binary. The terms of the license can be enforced against you by anyone the license empowers to do so -- namely anybody to whom you directly provided the binary code.
In tlhIngan's scenario, you never knew about the GPL'd work thus could not have agreed to the license. That makes it unwitting infringement -- copyright and patent law apply, but the GPL does not.
Actually, section 7 of the GPL says "If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."
So, if Ximpleware intentionally distributed the software under the GPLv2 (they did) and held the patents (they did) then either they must have intended that any recipient of the software under the GPLv2 also receive a license to use the patents or they deliberately breached the GPL contract with every single person who downloaded the code making them (Ximpleware) liable for damages from any of those users who are otherwise compliant with the terms of the license.
Either way, the court might reasonably cure Ximpleware's problem by affirming the existence of a patent license to everyone legitimately using the code under the GPL.
Citation or it didn't happen.
That depends. If your customer can prove that you accepted the GPL license for the code you later integrated into your product then that license flowed to them with the copy of the binary and they have the right to demand production of your source code for the relevant binaries. Proof such as an email chain discussing the GPL where you explicitly acknowledge that you acquired the code under that license. Which the customer gains access to through discovery.
If the customer can't prove you ever agreed to the GPL then it's plain infringement. In which case you're forced to discontinue use of the unlawful software and may claim damages for the monetary harm that does you.
Licenses are enforceable -- if you agreed to them. Presumably XimpleHelp doesn't have a signed agreement from Vyatta. Did Vyatta stipulate to using the XimpleHelp software under it's GPL license or is that a disputed fact? If disputed then it's just as likely that we're looking and plain-jane infringement for which the GPL and its terms are irrelevant. Infringement is cured with cash and injunctions. Nothing else, just cash and injunctions.
XimpleHelp's legal argument as I understand it is that Versata violated the GPL when it used VDT-XML and *redistributed* the software in modified form without subjecting the derivative software to the terms of the GPL. That means effectively Versata did not have a valid license to VDT-XML, because they broke the GPL which granted it in the first place. Without that license, Versata was now not just in violation of the GPL, but also now violating XimpleWare's patent rights of the software - because Versata was using patent-protected software without permission.
XimpleHelp's legal argument is wacky. Either Versata agreed to abide by the GPL (in which case they're liable to damages to XimpleHelp for violating the contract but are not liable for copyright or patent infringement since they had a valid contract for them) or they did not agree to abide by the GPL (in which case they're liable for damages due to copyright and patent infringement but not liable for any breach of contract). It's one or the other, not a mix and match free-for-all from both.
In the former case, XimpleHelp expected to receive Vyatta's source code as compensation and is entitled to it. In the latter case, XimpleHelp expected to be paid at their normal rates for Vyatta's use of their source code and is entitled to payment. In both cases XimpleHelp is entitled to injunctive relief, preventing further sales of Vyatta's product until terms are met.
Either way, going after the customers is a risky play. It seems plausible (or at least murky) that Vyatta's customers could gain access to the IP rights simply by downloading the GPL XimpleHelp software. If they can, naming them in a then-dismissable suit potentially creates a tortious interference claim turning XimpleHelp into a bad actor.
So now your program A is GPL.
No. No, it isn't. Your program A is not GPL, it's infringing.
You may cure that infringment a number of ways, including: stripping the infringing code, paying the authors for an alternative license, pay the authors what the court orders you to pay them and, yes, releaseing program A under the GPL. The point is, how you cure the infringement is up to you. The GPL does not automatically attach to your code and if push comes to shove the court will order monetrary damages not compulsory licensing.
The threshold of measurement is around 0.5 C for a single station, and we have an effect that is about 1 C over the past 100 years. Not as big a margin as one would like, but difficult to ignore. And growing.
But... that's even smaller than the ratio versus the threshold of measurement the fellow in this article claims implied experimenter bias and bad science.
The "test" performed at NASA was sensitive to a minimum thrust threshold of about 10-to-15 microNewtons, and the "positive result" claimed detection of somewhere between 30-to-50 microNewtons of thrust.
The difference is that the space drive hypothesis is still falsifiable.
More than falsifiable. The NASA experiment demonstrated that the hypothesis was false: the control experiment got the same results.
We're left with either an experimental error which, if corrected, would move the result into the error band or we're left with a real effect for which we don't yet have a satisfactory explanation.
N-rays started this way but so did relativity: the Michelson Morley experiments and their predecessors found a real effect of light which had a lot of quack theories explaining it until Einstein came along and figured it out.
So the earth really was flat for awhile?
Correct! And until the 1600's, the universe revolved around the Earth. And while politicians can't repeal the law of gravity, scientists can! Isn't that cool?
Replicating scientific results (or failing to) is a good thing.
Being rude about it, as was apparently the case here, is plain old asshattery.
Online voting and vote by mail present essentially identical issues for vote selling. And if you have to sign your name on or inside the envelope containing the vote by mail then it presents exactly the same secret ballot issues as online voting as well. That leaves security. I'd guess your vote by mail system uses photocopies on easily procured papers, yes?
He's being a bully, pure and simple
Sticks and stones. I'd rather face honest anger than than a disingenuous veneer of reasonableness. And this isn't the first (or second or third) time in the last couple years GCC has been found to have optimized something into wrong code.
Taxes pay to print cash. They could pay to run the transaction system.
Cards could carry a monthly fee that covers up to some number of transactions.
Transactions consisting solely of splitting or combining cards could be made free while transactions consisting of the purchase of goods or services continue to carry a fee.
There are any number of ways to set up the system where one activity or another carries no fee. When I write a check I pay no fee. The bank makes its money off me other ways.
Maybe. Certainly with today's approach.
So a guy walking around with an artificial leg, a plastic heart valve, dentures and google glass ISN'T a cyborg? What is?
Seriously?
By the parent using the parent's bank card. By the kid splitting a larger card so he can give some amount to his buddy or combining several cards he got from his buddies.
I'm against a cashless society but not because there's any practical obstruction to it working. There isn't.
Shame you don't understand logical fallacies.
"Appeal to consequences" means an argument that something must be false because the consequences would be bad. I made no such argument. I said, "we'd better be damn sure we're right" before undertaking an effort with such negative consequences.
Unproven is not the same as false, nor is disputing unfounded conclusions the same as calling the conclusions untrue. This is one of the central fallacies that the alarmists have been perpetrating: that anyone who says, "hold on, it looks like you should investigate this a little more thoroughly" is a "denier" claiming that the hypotheses are false.
Climate alarmists may yet find sufficient scientific evidence to justify drastic action. I claim only that the ringing of the alarm bells is premature and I even suggest a form of acceptable evidence which, if found, would sustain the yet unproven claims.
Unfortunately science only works when scientists are at liberty to try as hard as they can to demonstrate counter-examples to your theory. The whole "denier" politics discourages folks from asking the questions scientists must ask in order to sustain or refute the hypotheses on the table. Your politics have gotten in the way of actually proving whether you're right.