My favourite part of Graham v. James when it comes to the GPL is this:
"The failure of a party to perform his part of a contract does not per se rescind it. The other party must manifest his intention to rescind within a reasonable time."); see also Jacob Maxwell, Inc. , 110 F.3d at 753
Compare that with section 4 of the GPL
4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.
I'm going to reply to you, and no-one else who has made this stupid argument that media companies might be at risk by this too. Metallica's label does allow radio stations to play (aka "redistribute") their music, but they don't allow radio stations to pass on that license to you. That's the difference, the GPL does. If Metallica's label was unhappy with what the radio station was doing with their music, they could sue the radio station, yes, but they would have to do it under contract law, not as a copyright infringement. If Metallica's label was unhappy with what you were doing with their music, they could sue you, yes, but they would have to do it under copyright law, not contract law, because they don't have a contract with you. If, however, as some kind of "viral marketting" promotion, Metallica's label was providing a song that a radio station could pass to you and you could pass on to your friends, then they would neither be able to sue you for copyright infringement (because you have a license), nor would they be able to sue you for contract violation (because they don't have a contract with you). So if you decided to do any of those things you suggested as absurdities, even if their license said you could not, and in this very specific situation, then yes, you'd have no problems (assuming you could afford to defend yourself at all).
Graham claims that even if James owns the copyright in the C version, Graham was licensed to use the copyright under a licensing agreement, and that the district court therefore erred in finding that Graham was an infringer. According to Graham, James was entitled at most to recover for Graham's breach of the licensing agreement.
Under federal law, "nonexclusive licenses may . . . be granted orally, or may even be implied from conduct." 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 10.03[A][7], at 10-43; see also I.A.E., Inc. v. Shaver , 74 F.3d 768, 775-76 (7th Cir. 1996). The district court found that Graham and James had entered into a licensing agreement under which Graham promised to pay James $1,000 for each CD-ROM release containing the C version and one dollar for each disk sold. Graham does not contest on appeal that he breached this agreement by failing to make the required payments, and therefore we affirm the district court's award of breach of contract damages. 3
However, the award of copyright damages in this case is problematic. A copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement. See Jacob Maxwell, Inc. v. Veeck , 110 F.3d 749, 753 (11th Cir. 1997); Peer Int'l Corp. v. Pausa Records, Inc. , 909 F.2d 1332, 1338-39 (9th Cir. 1990); see also United States Naval Inst. v. Charter Communications, Inc. , 936 F.2d 692, 695 (2d Cir. 1991) ("[A]n exclusive licensee of any of the rights comprised in the copyright, though it is capable of breaching the contractual obligations imposed on it by the license, cannot be liable for infringing the copyright rights conveyed to it."). Moreover, Graham's failure to credit James with the copyright on the C version did not itself amount to copyright infringement. According to Nimmer, "The generally prevailing view in this country under copyright law has been that an author who sells or licenses her work does not have an inherent right to be credited as author of the work. In line with that general rule, it has been held not to infringe an author's copyright for one who is licensed to reproduce the work to omit the author's name." 3 Nimmer on Copyright , supra , 8D.03[A][1], at 8D-32 (citations omitted). Thus, as James concedes, the district court could not have found that Graham infringed James's copyright unless the licensing agreement already had been rescinded; the problem is that the district court made no such finding.
Check that shit out. And here's the bit that really fucks the GPL:
Generally, "[i]f the [licensee's] improper conduct constitutes a breach of a covenant undertaken by the [licensee] . . . and if such covenant constitutes an enforcible contractual obligation, then the [licensor] will have a cause of action for breach of contract," not copyright infringement.
and
However, "[i]f the nature of a licensee's violation consists of a failure to satisfy a condition to the license . .., it follows that the rights dependant upon satisfaction of such condition have not been effectively licensed, and therefore, any use by the licensee is without authority from the licensor and may therefore, constitute an infringement of copyright."
That's what the GPL tries to do, it tries to make it clear that providing source code is a condition, not a convenant, but try as it may, it has been upheld that
contract obligations that are to be performed after partial performance by the other party are not treated as conditions.
And that's the rub. You are allowed to distribute GPL'd code in binary form provided that you accompany it with a written offer to provide source code (partial performance). If you then fail to provide source code, you can only be sued under contract law, not copyright law. You havn't violated c
Google for Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998). This finding is used in just about every case of copyright violation. For example RT COMPUTER GRAPHICS, INC., vs United States Postal Service. They claimed the post office was violating copyright because they used some of their computer graphics in a stamp. The post office's reply is that they secured a license to use the graphics through a third party. RT Computer Graphics claimed that the use in stamps was not authorized. The post office claimed that matters of contract are null because they don't have a contract with RT Computer Graphics and, as such, RT Computer Graphics can only sue them for copyright infringement, but because the post office has a license, they can't. Post office wins. That's my understanding anyway. Ahh, here's the finding. I'll probably read all this now and find out I'm wrong:)
Oh, BTW, the GPL Violations Project has won every case they have won because the other side didn't even turn up. They could have presented the case that distributing Linux without source was against the 10 commandments and they would have won. It's called a "default". What's especially funny about this guy is that the code he has written for the Linux kernel is in a tiny part of the core that you could easily remove and rewrite. That's actually one of the great things about the Linux kernel, because it has so many authors, you can always just remove the code that the person who is suing you has written, then go to court and say "huh? we removed this guy's code already" and the judge will throw it out. Then the next guy comes along to sue you and you do it again. Unless Linus or Alan Cox pony up a lawyer, you're fine.
Ummm, definitely. That is what I believe this finding says. Similarly, when Microsoft gives out "redistributables" and then says "but you can't use these binaries on Linux", I think they can't sue you if you do. Well, of course, they can sue you, and you can go broke before you even get to court, but if you happen to be rich enough to defend yourself, this is the defense you would use.
I'm not saying anything. The judge in Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998) has said that a "copyright owner who grants a non-exclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement" where "non-exclusive" means third party redistribution. The exact interpretation of the ruling, and the precedent it sets, is one that threatens the GPL.. why is it so hard for people to accept this. The judge wasn't thinking about the GPL when he decided this, so he didn't take the uniqueness of the GPL into account, but that means nothing. His finding is a valid framework for building a defense against suit by a copyright owner who has used the GPL. It sucks, but there it is. Now, if the judge in this new case has any sense he'll through it out because he'll fully understand what the intention of the GPL is and that the GPL is adamently clear in this purpose, but he might not! If that happens, we're all screwed. So stop saying "is not" and think about it.
Sigh, there's no talking to you is there? Why would you want to sue them if they were following the license? How could you sue them if that were the case? What would be the point of the judges decision that you can't sue them for violating the license if you provide third party distribution rights? Pull you head out of the sand and think.
If your right sue to third parties for copyright infringement is forfeit then it doesn't matter that they have no right to distribute the software, you can't sue them.
What is so hard for *you* to understand? I am not saying that these guys are not violating the GPL. I am saying that they are violating the GPL and that it doesn't matter, because there's this stupid precedent that says that if you provide redistribution rights then you've forfeit your right to sue third parties who violate the license. Under pre-1998 copyright law the GPL is rock solid, this change to the copyright law by precedent puts a gapping big hole in the GPL. If the judge of this case sees it the same way, we're all fucked.
The situation here isn't the same as it was in the Sun vs. Microsoft action. In that case, Microsoft altered Java so as to be incompatible with the standard, in violation of their license agreement. That was clearly a contract issue.
Uhhh, what's clear about that? The whole point of the Sun vs. Microsoft action was that Microsoft didn't have a contract with Sun because Microsoft obtained the source from from a third party. What Microsoft then claimed was that Sun couldn't sue them because this precedent states that allowing third parties to redistribute forfeits your right to sue for copyright infringement. The same situation exists here. Don't get me wrong, I'm not saying these people are not violating the license on this software (which happens to be the GPL). They definitely are, ok, no question. But this precedent states that it doesn't matter because even though they are violating the license, the licensor doesn't actually have the right to sue. They've forfeit that right by allowing third parties to redistribute the work. The courts think this is reasonable because they assume that you only gave this right to redistribute to someone under contract and that contract held them responsible for any copyright infringement that the people they redistribute to happen to engage in. The courts consider that the only sensible way to give someone redistributing rights. Obviously the courts are wrong, hello? heard of the GPL? well no, they havn't.. they don't take that stuff into consideration when making precedents like this.
Now the court case that the article says is happening now will possibly set a new precedent.. specifically stating that people who license their software under the GPL have no right to sue third parties for copyright violation. If that happens then the Free Software community is in big trouble. We'll probably have to come up with some new wording that causes an implicit contract to be formed between copyright holder and third parties. This will probably require "consideration", i.e., money will have to change hands. This is scary shit ok?
Remember that scene from Syriana where they blow up the SUV? A convoy is driving through a desert in the middle east. The CIA are sitting in their comfy air conditioned office in the USA. On screen they have live satellite coverage of the convoy. The convoy stops, they watch a few of the passengers change vehicles but agree that the target vehicle hasn't changed. The convoy stops again. The commanding officer gives the order to the operator to take out the target. The operator draws a box around the stationary vehicle with the mouse cursor, then grips onto a flight controller style joystick and presses the red "launch" button. Somewhere, deep in the desert probably (we're not shown) a missile pops out of its silo and heads towards the target. The operator says something like "30 miles". The commanding officers look on. The operator says "10 miles" a few seconds later. The missile autonomously locks onto the target. There's a giant explosion. When the smoke clears, all that is left of the target is a blackened crater in the ground. The other vehicles in the convoy are slightly damaged but not destroyed. The operator says something like "target destroyed". The commanding officer leaves the room.
How close to reality is that? It sounds pretty doable doesn't it? It's not like they're shooting lasers from space. It's not like you'd have trouble funding it. "Strategic Strike Capability", that'd get you some tax dollars.
Because this is all civil crap.. as the person filing the lawsuit you're disturbing the peace. Why can't you just live and let live? There's no need for justice here. He didn't stab your granny, he copied your work, get over it. If you suffered a loss then yes, you've gotta pay to regain that loss from him. This idea of yours of having some "free" lawyer that the government pays for really really stinks.. you're basically saying that you want the rest of us to look out for your interests. You wanna sue? You wanna tie up the courts with your personal grievancies? You pay, not me.
Riiiight. Consult a lawyer, pay their fees, sue the bastard, if you lose, pay his fees and sue your lawyer for giving you bad advice. You can't just wish on a rainbow.
Not that a spreadsheet was a new idea when he wrote Visicalc, or for like, hundreds of years before that. Shit, he wasn't even the first guy to make a computer spreadsheet. There was even a patent awarded in 1970 for computer spreadsheets.
No, The Issue (ya know, the one the article is about) is that a 1998 precident has cast doubt over whether or not you even have a right to sue for copyright infringement if you are granting redistribution rights. It doesn't matter if someone is violating the license if you have no right to sue them. If you would just read the article you would understand this.
You're right of course, but I believe the guy you're replying to was thinking of "use" as "use in software you then redistribute". I think this, because that's what the article is about. Ya know, context?
Oh do fuck off. If you threaten me with legal action, AND YOU ARE WRONG, you have to expect that you will AT LEAST have to pay my legal fees to defend myself. Jesus.
You're obviously confusing the two uses of the word "exclusive". We're not talking about an "I'll only license it to you, I promise" license, we're talking about a "you may redistribute this to others" license. Which, again, would be obvious, if you would READ THE ARTICLE.
Mate, I understand the traditional view of copyright ok? But there's these things called precidents and one of them was set in '98 which holds that if you give people redistribution rights then you are weakening your ability to sue for copyright infringement. The law isn't static, like language, it changes based on use. In the case of the GPL I believe the ability to sue downstream violators hasn't been weakened very much, but it certainly has been weakened some and this court case will decide exactly how much.
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Compare that with section 4 of the GPL
What absolute fiction!
I'm going to reply to you, and no-one else who has made this stupid argument that media companies might be at risk by this too. Metallica's label does allow radio stations to play (aka "redistribute") their music, but they don't allow radio stations to pass on that license to you. That's the difference, the GPL does. If Metallica's label was unhappy with what the radio station was doing with their music, they could sue the radio station, yes, but they would have to do it under contract law, not as a copyright infringement. If Metallica's label was unhappy with what you were doing with their music, they could sue you, yes, but they would have to do it under copyright law, not contract law, because they don't have a contract with you. If, however, as some kind of "viral marketting" promotion, Metallica's label was providing a song that a radio station could pass to you and you could pass on to your friends, then they would neither be able to sue you for copyright infringement (because you have a license), nor would they be able to sue you for contract violation (because they don't have a contract with you). So if you decided to do any of those things you suggested as absurdities, even if their license said you could not, and in this very specific situation, then yes, you'd have no problems (assuming you could afford to defend yourself at all).
Or, ya know, use one of the BSD licensed stacks.. it's not like Berkley sockets is intimately tied to the kernel.
Check that shit out. And here's the bit that really fucks the GPL:
and
That's what the GPL tries to do, it tries to make it clear that providing source code is a condition, not a convenant, but try as it may, it has been upheld that
And that's the rub. You are allowed to distribute GPL'd code in binary form provided that you accompany it with a written offer to provide source code (partial performance). If you then fail to provide source code, you can only be sued under contract law, not copyright law. You havn't violated c
Google for Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998). This finding is used in just about every case of copyright violation. For example RT COMPUTER GRAPHICS, INC., vs United States Postal Service. They claimed the post office was violating copyright because they used some of their computer graphics in a stamp. The post office's reply is that they secured a license to use the graphics through a third party. RT Computer Graphics claimed that the use in stamps was not authorized. The post office claimed that matters of contract are null because they don't have a contract with RT Computer Graphics and, as such, RT Computer Graphics can only sue them for copyright infringement, but because the post office has a license, they can't. Post office wins. That's my understanding anyway. Ahh, here's the finding. I'll probably read all this now and find out I'm wrong :)
Oh, BTW, the GPL Violations Project has won every case they have won because the other side didn't even turn up. They could have presented the case that distributing Linux without source was against the 10 commandments and they would have won. It's called a "default". What's especially funny about this guy is that the code he has written for the Linux kernel is in a tiny part of the core that you could easily remove and rewrite. That's actually one of the great things about the Linux kernel, because it has so many authors, you can always just remove the code that the person who is suing you has written, then go to court and say "huh? we removed this guy's code already" and the judge will throw it out. Then the next guy comes along to sue you and you do it again. Unless Linus or Alan Cox pony up a lawyer, you're fine.
Ummm, definitely. That is what I believe this finding says. Similarly, when Microsoft gives out "redistributables" and then says "but you can't use these binaries on Linux", I think they can't sue you if you do. Well, of course, they can sue you, and you can go broke before you even get to court, but if you happen to be rich enough to defend yourself, this is the defense you would use.
I'm not saying anything. The judge in Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998) has said that a "copyright owner who grants a non-exclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement" where "non-exclusive" means third party redistribution. The exact interpretation of the ruling, and the precedent it sets, is one that threatens the GPL.. why is it so hard for people to accept this. The judge wasn't thinking about the GPL when he decided this, so he didn't take the uniqueness of the GPL into account, but that means nothing. His finding is a valid framework for building a defense against suit by a copyright owner who has used the GPL. It sucks, but there it is. Now, if the judge in this new case has any sense he'll through it out because he'll fully understand what the intention of the GPL is and that the GPL is adamently clear in this purpose, but he might not! If that happens, we're all screwed. So stop saying "is not" and think about it.
Sigh, there's no talking to you is there? Why would you want to sue them if they were following the license? How could you sue them if that were the case? What would be the point of the judges decision that you can't sue them for violating the license if you provide third party distribution rights? Pull you head out of the sand and think.
If your right sue to third parties for copyright infringement is forfeit then it doesn't matter that they have no right to distribute the software, you can't sue them.
What is so hard for *you* to understand? I am not saying that these guys are not violating the GPL. I am saying that they are violating the GPL and that it doesn't matter, because there's this stupid precedent that says that if you provide redistribution rights then you've forfeit your right to sue third parties who violate the license. Under pre-1998 copyright law the GPL is rock solid, this change to the copyright law by precedent puts a gapping big hole in the GPL. If the judge of this case sees it the same way, we're all fucked.
The situation here isn't the same as it was in the Sun vs. Microsoft action. In that case, Microsoft altered Java so as to be incompatible with the standard, in violation of their license agreement. That was clearly a contract issue.
Uhhh, what's clear about that? The whole point of the Sun vs. Microsoft action was that Microsoft didn't have a contract with Sun because Microsoft obtained the source from from a third party. What Microsoft then claimed was that Sun couldn't sue them because this precedent states that allowing third parties to redistribute forfeits your right to sue for copyright infringement. The same situation exists here. Don't get me wrong, I'm not saying these people are not violating the license on this software (which happens to be the GPL). They definitely are, ok, no question. But this precedent states that it doesn't matter because even though they are violating the license, the licensor doesn't actually have the right to sue. They've forfeit that right by allowing third parties to redistribute the work. The courts think this is reasonable because they assume that you only gave this right to redistribute to someone under contract and that contract held them responsible for any copyright infringement that the people they redistribute to happen to engage in. The courts consider that the only sensible way to give someone redistributing rights. Obviously the courts are wrong, hello? heard of the GPL? well no, they havn't.. they don't take that stuff into consideration when making precedents like this.
Now the court case that the article says is happening now will possibly set a new precedent.. specifically stating that people who license their software under the GPL have no right to sue third parties for copyright violation. If that happens then the Free Software community is in big trouble. We'll probably have to come up with some new wording that causes an implicit contract to be formed between copyright holder and third parties. This will probably require "consideration", i.e., money will have to change hands. This is scary shit ok?
Remember that scene from Syriana where they blow up the SUV? A convoy is driving through a desert in the middle east. The CIA are sitting in their comfy air conditioned office in the USA. On screen they have live satellite coverage of the convoy. The convoy stops, they watch a few of the passengers change vehicles but agree that the target vehicle hasn't changed. The convoy stops again. The commanding officer gives the order to the operator to take out the target. The operator draws a box around the stationary vehicle with the mouse cursor, then grips onto a flight controller style joystick and presses the red "launch" button. Somewhere, deep in the desert probably (we're not shown) a missile pops out of its silo and heads towards the target. The operator says something like "30 miles". The commanding officers look on. The operator says "10 miles" a few seconds later. The missile autonomously locks onto the target. There's a giant explosion. When the smoke clears, all that is left of the target is a blackened crater in the ground. The other vehicles in the convoy are slightly damaged but not destroyed. The operator says something like "target destroyed". The commanding officer leaves the room.
How close to reality is that? It sounds pretty doable doesn't it? It's not like they're shooting lasers from space. It's not like you'd have trouble funding it. "Strategic Strike Capability", that'd get you some tax dollars.
Here ya go one of my other comments. I know, there are a lot.
Because this is all civil crap.. as the person filing the lawsuit you're disturbing the peace. Why can't you just live and let live? There's no need for justice here. He didn't stab your granny, he copied your work, get over it. If you suffered a loss then yes, you've gotta pay to regain that loss from him. This idea of yours of having some "free" lawyer that the government pays for really really stinks.. you're basically saying that you want the rest of us to look out for your interests. You wanna sue? You wanna tie up the courts with your personal grievancies? You pay, not me.
Fuck you and your typo. I'll spell it however the hell I like.
meh, speeling.
If you lose, absolutely. If you're not right, don't sue.
Riiiight. Consult a lawyer, pay their fees, sue the bastard, if you lose, pay his fees and sue your lawyer for giving you bad advice. You can't just wish on a rainbow.
Not that a spreadsheet was a new idea when he wrote Visicalc, or for like, hundreds of years before that. Shit, he wasn't even the first guy to make a computer spreadsheet. There was even a patent awarded in 1970 for computer spreadsheets.
thanks wikipedia
No, The Issue (ya know, the one the article is about) is that a 1998 precident has cast doubt over whether or not you even have a right to sue for copyright infringement if you are granting redistribution rights. It doesn't matter if someone is violating the license if you have no right to sue them. If you would just read the article you would understand this.
You're right of course, but I believe the guy you're replying to was thinking of "use" as "use in software you then redistribute". I think this, because that's what the article is about. Ya know, context?
Oh do fuck off. If you threaten me with legal action, AND YOU ARE WRONG, you have to expect that you will AT LEAST have to pay my legal fees to defend myself. Jesus.
You're obviously confusing the two uses of the word "exclusive". We're not talking about an "I'll only license it to you, I promise" license, we're talking about a "you may redistribute this to others" license. Which, again, would be obvious, if you would READ THE ARTICLE.
Mate, I understand the traditional view of copyright ok? But there's these things called precidents and one of them was set in '98 which holds that if you give people redistribution rights then you are weakening your ability to sue for copyright infringement. The law isn't static, like language, it changes based on use. In the case of the GPL I believe the ability to sue downstream violators hasn't been weakened very much, but it certainly has been weakened some and this court case will decide exactly how much.