Re: SFLC's GPL court enforcement -- track record - Linux

This is a discussion on Re: SFLC's GPL court enforcement -- track record - Linux ; rjack wrote: > There is no such thing as a "chain of licensing" under the GPL. The GPL > is a nonexclusive license and there is no such thing as "sub-licensing" > under a nonexclusive license. The best you can ...

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Thread: Re: SFLC's GPL court enforcement -- track record

  1. Re: SFLC's GPL court enforcement -- track record

    rjack wrote:
    > There is no such thing as a "chain of licensing" under the GPL. The GPL
    > is a nonexclusive license and there is no such thing as "sub-licensing"
    > under a nonexclusive license. The best you can do is a "transfer of contractual
    > interest". You can't transfer ownership of copyrights with a nonexclusive
    > license and you can't license what you don't own.


    Wrong. The GPL itself explains that there is no sub-licensing.
    Instead, as a work is conveyed under terms of the GPL, the
    recipient receives a license from the copyright holders.

  2. Re: SFLC's GPL court enforcement -- track record

    In article ,
    Hyman Rosen wrote:
    > Rahul Dhesi wrote:
    > > I think you folks are assuming that the GPL somehow gives you, the
    > > buyer of the router, the right to get source code from somewhere.

    >
    > It does, unless the chain of GPL licensing is somehow broken,
    > perhaps through the use of the First Sale Doctrine.


    There are two cases to consider, as GPLv2 provides two options for the
    person distributing binaries (the same general considerations apply to
    GPLv3, and pretty much any other free software license):

    1. Accompany the binary with the source, or

    2. Accompany the binary with a written offer to provide source to anyone
    who asks for it, for at least three years.

    Let's consider first software that is distributed under option #1. I
    see two scenarios that are reasonably likely to become common where
    First Sale will lead to binaries in circulation with no one obligated to
    provide source.

    1. Consumer buys a gadget that runs Linux. The source is on a CD in the
    box. Consumer doesn't give a damn about source and loses track of the
    CD. Consumer sells the gadget on eBay.

    Result: no one is obligated to provide the buyer with source. The
    seller is covered by First Sale. The original vendor completely
    satisfied their GPL obligation by including the source with the device
    when they sold it to the first consumer.

    People are selling used Linux-based gadgets now

    2. Company X makes a stand-alone box that has Linux in flash memory, and
    has an empty slot to install more flash memory. The system is
    configured so that when it automatically mounts the filesystem on any
    flash memory inserted in the slot, and looks for "runme.sh" shell
    script, which it runs. Company Y buys these boxes from X, an inserts
    into the slot flash memory that contains their proprietary applications
    that turn the box into a router, or a set-top box, or whatever. X ships
    each box to Y with a CD containing the source. Y takes the boxes,
    sticks a Y logo and model number sticker on it, and ships it to stores
    in Y labelled boxes with manuals in them. Y doesn't give a damn about
    the source CDs and tosses them in the nearest landfill. Consumers buy
    the boxes from stores.

    Result: quite similar to the consumer gadget scenario, actually. X
    satisfied their GPL obligation by shipping the source with the box.
    That qualifies them for branch #1 of the GPL options. They are done.
    Company Y has not modified the software or made copies. All they've
    done is take the copies they have received, and redistributed those
    physical copies. That puts them right smack dab in the middle of First
    Sale, so they aren't responsible for supplying source to the customer.

    Note that these results change if the gadget maker (in scenario 1) or
    company X (in scenario 2) choose to go with option #2 from GPL,
    accompany the software with a written offer to provide source to anyone.
    The consumer selling on eBay, and company Y, are still covered by first
    sale. But the eBay buyer, or buyer of Y's boxes, can now at least go
    back to the gadget maker or company X and ask for and receive source.
    (Well, if it is within three years...).

    There are still practical problems in this case for the consumer,
    though. Company Y has no obligation to tell the consumer that the box
    was made by company X. Y might even consider this fact to be a trade
    secret.

    So how likely are any of these scenarios? The first, a consumer
    reselling a used gadget, is pretty likely. People sell used Linux
    gadgets now, and that's only going to become more common as Linux
    becomes more popular as a gadget OS. I think most gadget makers are
    going with GPL option #2 at the moment, so source should be available
    somewhere, but I think that's going to change. Why opt for #2, which
    required you to deal with source distribution for at least three years,
    when you can go for option #1, and deal with your obligation
    immediately? I'd go for #1 every time unless for some reason it was not
    feasible to ship source with the gadget.

    How about the company X/company Y case? I think there will be many
    companies playing the role of company X (I'd be surprised if there
    aren't already such boxes available to OEMs). The big question here is
    will there be many companies in the roll of Y. That is, companies who
    do not make any modifications to the box software, but just add their
    own applications? And that don't bother to include the source CD? If I
    were advising them, I'd tell them to include the source CD--even though
    they don't have to and are legally safe thanks to First Sale, it doesn't
    HURT them to include the source CD, and it will avoid ill will. But I
    will not be surprised if a lot of Y's consider the box to be a black
    box, and pretty much ignore the source CD that comes with it.

    Anyway, I think First Sale is going to become a big deal in the world of
    free software licensing. I'm surprised how little discussion there has
    been of this.

    --
    --Tim Smith

  3. Re: SFLC's GPL court enforcement -- track record

    JEDIDIAH writes:

    > On 2008-07-22, Rahul Dhesi wrote:
    >> thufir writes:
    >>
    >>>> I guess that the plaintiffs decided that having the manufacturer of
    >>>> the routers comply with the GPL was good enough for them, because
    >>>> it would be difficult to explain in court that Verizon was not
    >>>> complying with the GPL given this availability. But that's just a
    >>>> guess.

    >>
    >>>If it's an action tek router, sold to an importer exporter, and then
    >>>to another middleman, and then to a retailer, to whom do you go for
    >>>the source code? presumably, just action tek.

    >>
    >> I think you folks are assuming that the GPL somehow gives you, the
    >> buyer of the router, the right to get source code from somewhere. I
    >> don't think it does.

    >
    > THAT is EXACTLY what the GPL provides for.


    Yes, but it is not a right of the buyer, but a right of the copyright
    owner that this happens. So the buyer can't sue, he can just notify the
    copyright owner. If the copyright owner can't be bothered, the buyer is
    pretty much out of options.

    That is the reason that the FSF wants copyright assignments to
    contributions for important GNU software.

    >> All is does is require everybody distributing the router to others to
    >> also give recipients the source code, which is not quite the same
    >> thing as giving you the right to demand it.
    >>
    >> So where would you get the source code? From anywhere where it's
    >> available.

    >
    > No. Whomever distributes the software is on the hook for providing the
    > source.


    Quite so. But the line to the hook is held by the author, not the
    buyer.

    --
    David Kastrup, Kriemhildstr. 15, 44793 Bochum

  4. Re: SFLC's GPL court enforcement -- track record

    rjack writes:

    > Hyman Rosen wrote:
    >> Rjack wrote:
    >>> The GPL is a purported third party donee beneficiary contract:
    >>> b) You must cause any work that you distribute or publish, that in
    >>> whole or in part contains or is derived from the Program or any
    >>> part thereof, to be licensed as a whole at no charge to all third
    >>> parties under the terms of this License.

    >>
    >> Notice that "licensed as a whole at no charge to all third parties"
    >> does not mean that there is any obligation to deliver anything to
    >> them.

    >
    > True. No distribution no problem. So what? Presumably some authors do
    > want their code to be distributed though.


    That's their problem. The GPL only places conditions on the _kind_ of
    distribution (has to be with access to the source at no additional
    cost). As long as any recipients (including zero) receive the material
    in the prescribed form, no further duty regarding accessibility or
    distribution exists.

    --
    David Kastrup, Kriemhildstr. 15, 44793 Bochum

  5. Re: SFLC's GPL court enforcement -- track record

    Hyman Rosen writes:

    > rjack wrote:
    >> The trouble is you can't write a copyright license that controls
    >> "all third parties" as long "as they follow the GPL". Congress
    >> specifically forbid this situation with 17 USC sec. 301.

    >
    > That's the federal preemption clause. What does that
    > have to do with anything? Who says anything about
    > controlling anyone? The distributor is licensing the
    > code to all third parties under the terms of the GPL.


    Uh no. Third parties are not involved. Only recipients. In GPLv2,
    there was a clause that you could replace source code with a written
    offer to source code, and this offer had to be valid for any third party
    (namely, any downstream recipients) and had to be passed on to any such
    third party. That was a very specific circumstance and only made third
    parties involved when you _used_ that option.

    GPLv3 contains no such option AFAICS.

    --
    David Kastrup, Kriemhildstr. 15, 44793 Bochum

  6. Re: SFLC's GPL court enforcement -- track record

    Hyman Rosen writes:

    > Rahul Dhesi wrote:
    >> I think you folks are assuming that the GPL somehow gives you, the
    >> buyer of the router, the right to get source code from somewhere.

    >
    > It does, unless the chain of GPL licensing is somehow broken,
    > perhaps through the use of the First Sale Doctrine.


    No, it doesn't. It gives the buyer the possibility to notify the
    copyright holder, because the copyright holder (and nobody else) has the
    right to enforce the form of distribution.

    --
    David Kastrup, Kriemhildstr. 15, 44793 Bochum

  7. Re: SFLC's GPL court enforcement -- track record

    On Tue, 22 Jul 2008 17:01:14 -0500, JEDIDIAH wrote:


    > No. Whomever distributes the software is on the hook for providing the
    > source.
    >
    > You can force people to walk the chain all the way back to the
    > manufacturer, but they are still ultimately on the hook for using
    > someone elses work without proper authorization.


    But, if you've just got a router sitting in your window which you
    purchased on e-bay and are reselling, surely you, retailer, are not on
    the hook? Just the manufacturer, I'd think.


    -Thufir

  8. Re: SFLC's GPL court enforcement -- track record

    In article <85tzeh3yw9.fsf@lola.goethe.zz>, David Kastrup
    wrote:
    > Uh no. Third parties are not involved. Only recipients. In GPLv2,
    > there was a clause that you could replace source code with a written
    > offer to source code, and this offer had to be valid for any third party
    > (namely, any downstream recipients) and had to be passed on to any such
    > third party. That was a very specific circumstance and only made third
    > parties involved when you _used_ that option.
    >
    > GPLv3 contains no such option AFAICS.


    Take a look at section 6b of GPLv3. It's similar to 3b of GPLv2, with
    the notable difference that it is only for the case where you distribute
    the object code on a physical medium.

    --
    --Tim Smith

  9. Re: SFLC's GPL court enforcement -- track record

    thufir wrote:
    > On Tue, 22 Jul 2008 17:01:14 -0500, JEDIDIAH wrote:
    >
    >
    >> No. Whomever distributes the software is on the hook for providing the
    >> source.
    >>
    >> You can force people to walk the chain all the way back to the
    >> manufacturer, but they are still ultimately on the hook for using
    >> someone elses work without proper authorization.

    >
    > But, if you've just got a router sitting in your window which you
    > purchased on e-bay and are reselling, surely you, retailer, are not on
    > the hook? Just the manufacturer, I'd think.
    >
    >
    > -Thufir


    When you get near the GPL it takes control of your wife, kids, family
    dog *and* your source code. The SFLC for all intents and purposes then
    owns your life.

    Sincerely
    Rjack

  10. Re: SFLC's GPL court enforcement -- track record


    Alexander Terekhov wrote:
    >
    > Hyman Rosen wrote:
    > >
    > > Alexander Terekhov wrote:
    > > > Extreme Networks' offer regarding GPL'd stuff:
    > > > http://www.extremenetworks.com/services/osl-exos.aspx

    > >
    > > So when did this page appear? And do they actually honor

    >
    > So once again you want me to prove something?
    >
    > The latest (as of now) google's cached version is of 5 Jul 2008 05:33:37
    > GMT. Go check it yourself.


    http://www.extremenetworks.com/services/osl-exos.aspx

    "To download a printable version, click here."

    Clicking there yields:

    http://www.extremenetworks.com/libra...ExtremeXOS.pdf

    That PDF is dated May 14, 2008. Interestingly enough it predates June
    25, 2008:

    http://www.softwarefreedom.org/news/...e-networks.pdf

    ------
    17. On March 12, 2008, through their counsel, Plaintiffs sent Defendant
    their requirements for settling the dispute, which included that
    Defendant: comply with the License; appoint an Open Source Compliance
    Officer; notify prior recipients of infinging products of their rights
    under the License; and compensate Plaintiffs.

    18. On June 25, 2008, after a series of communications between the
    parties regarding other of Plaintiffs’ requirements for settlement,
    Defendant refused to compensate Plaintiffs.

    19. On June 26, 2008, through their counsel, Plaintiffs again notified
    Defendant that its continued distribution of the Program was in
    violation of the License and an infringement of Plaintiffs’ copyrights.
    Plaintiffs’ counsel requested a call to discuss the matter further.

    20. Defendant has not responded to Plaintiff’s June 26 notice, and
    continues to distribute the Infringing Products and Firmware in
    violation of Plaintiffs’ exclusive rights under the Copyright Act.
    ------

    Hey Hyman, what do you think about all that?

    regards,
    alexander.

    --
    http://gng.z505.com/index.htm
    (GNG is a derecursive recursive derecursion which pwns GNU since it can
    be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
    too, whereas GNU cannot.)

  11. Re: SFLC's GPL court enforcement -- track record

    Alexander Terekhov wrote:
    > That PDF is dated May 14, 2008.
    > Interestingly enough it predates June 25, 2008:


    Legal time is the very opposite of internet time.
    Delays and postponements of months at a time are
    routine. It should come as no surprise that actions
    by plaintiffs and defendants can cross each other,
    so that an action demanded by one in a filing has
    already been carried out by the other prior to the
    filing.

    Not only that, it is appropriate that distributors
    who have been distributing illegally should be forced
    to pay some monetary damages, even if only legal costs
    of the other side. Otherwise, there is no penalty for
    distributing illegally up to the moment you are caught,
    and that would encourage non-compliance. The BSA works
    the same way - when you are caught using commercial
    software for which you did not pay, you have to pay for
    it and pay a fine. Otherwise many people would choose
    to use illegal copies because it would always be
    profitable to do so.

  12. Re: SFLC's GPL court enforcement -- track record

    Hyman Rosen wrote:
    > Alexander Terekhov wrote:
    >> That PDF is dated May 14, 2008.
    > > Interestingly enough it predates June 25, 2008:

    >
    > Legal time is the very opposite of internet time.


    I could certainly use time running backward for a few years. . .

    > Delays and postponements of months at a time are
    > routine. It should come as no surprise that actions
    > by plaintiffs and defendants can cross each other,
    > so that an action demanded by one in a filing has
    > already been carried out by the other prior to the
    > filing.
    >
    > Not only that, it is appropriate that distributors
    > who have been distributing illegally should be forced
    > to pay some monetary damages, even if only legal costs
    > of the other side.


    I couldn't agree more about distributing illegally and violateing an
    *enforceable* copyright license.

    An illegal toilet-paper license like the GPL is a whole 'nuther story. An now
    for the rest of the story. . .

    > Otherwise, there is no penalty for
    > distributing illegally up to the moment you are caught,
    > and that would encourage non-compliance. The BSA works
    > the same way - when you are caught using commercial
    > software for which you did not pay, you have to pay for
    > it and pay a fine. Otherwise many people would choose
    > to use illegal copies because it would always be
    > profitable to do so.


    First you dis Microsoft and then you adopt the tactics of their primary license
    enforcement organization. Are you a Microsoft shill in disguise?

    Sincerely,
    Rjack

    -- "Whether express or implied, a license is a contract 'governed by ordinary
    principles of state contract law.'"; McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d
    917, (United States Court of Appeals for the Federal Circuit 1995) --

    -- "Although the United States Copyright Act, 17 U.S.C. §§ 101- 1332, grants
    exclusive jurisdiction for infringement claims to the federal courts, those
    courts construe copyrights as contracts and turn to the relevant state law to
    interpret them."; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d
    749, (United States Court of Appeals for the Seventh Circuit 2006) --


  13. Re: SFLC's GPL court enforcement -- track record

    rjack wrote:
    > First you dis Microsoft


    You must be thinking of someone else.

  14. Re: SFLC's GPL court enforcement -- track record

    On Wed, 23 Jul 2008 08:11:33 +0200, David Kastrup wrote:


    > Yes, but it is not a right of the buyer, but a right of the copyright
    > owner that this happens. So the buyer can't sue, he can just notify the
    > copyright owner. If the copyright owner can't be bothered, the buyer is
    > pretty much out of options.
    >
    > That is the reason that the FSF wants copyright assignments to
    > contributions for important GNU software.



    Wouldn't the buyer notify either the retailer, or, preferably, the
    manufacturer? Might there not be multiple copyright owners? I don't see
    why their participation is required, it's between the buyer and the
    manufacturer. The manufacturer is distributing binaries, so must make
    the source available to its customers.


    -Thufir

  15. Re: SFLC's GPL court enforcement -- track record

    rjack writes:

    > Hyman Rosen wrote:
    >
    >> Not only that, it is appropriate that distributors
    >> who have been distributing illegally should be forced
    >> to pay some monetary damages, even if only legal costs
    >> of the other side.

    >
    > I couldn't agree more about distributing illegally and violateing an
    > *enforceable* copyright license.
    >
    > An illegal toilet-paper license like the GPL is a whole 'nuther
    > story. An now for the rest of the story. . .


    Oh, you are certainly free to use the GPL for toilet paper, like you are
    free to use your paycheck for the same purpose.

    But that leaves you without a license, and that's not an advantage.

    --
    David Kastrup, Kriemhildstr. 15, 44793 Bochum

  16. Re: SFLC's GPL court enforcement -- track record

    thufir writes:

    > On Wed, 23 Jul 2008 08:11:33 +0200, David Kastrup wrote:
    >
    >
    >> Yes, but it is not a right of the buyer, but a right of the copyright
    >> owner that this happens. So the buyer can't sue, he can just notify the
    >> copyright owner. If the copyright owner can't be bothered, the buyer is
    >> pretty much out of options.
    >>
    >> That is the reason that the FSF wants copyright assignments to
    >> contributions for important GNU software.

    >
    >
    > Wouldn't the buyer notify either the retailer, or, preferably, the
    > manufacturer?


    Sure, he can do that.

    > Might there not be multiple copyright owners?


    Yes.

    > I don't see why their participation is required, it's between the
    > buyer and the manufacturer.


    No. The buyer has no rights derived from copyright law since he is not
    the copyright owner.

    > The manufacturer is distributing binaries, so must make the source
    > available to its customers.


    Yes, but it is not the customer who can enforce this. The manufacturer
    has an obligation to the copyright owner to make the source available to
    his customers.

    --
    David Kastrup, Kriemhildstr. 15, 44793 Bochum

  17. Re: SFLC's GPL court enforcement -- track record

    On Wed, 23 Jul 2008 20:45:15 +0200, David Kastrup wrote:

    >> I don't see why their participation is required, it's between the buyer
    >> and the manufacturer.

    >
    > No. The buyer has no rights derived from copyright law since he is not
    > the copyright owner.


    The buyer is the guy who walks in off the street and purchases the router
    (which run GPL'ed software)?

    To my understanding, the buyer does have the right, under the GPL, to the
    source. After, the GPL is targeted, you could say, at buyers to protect
    copyright owners.

    If no buyer has rights to the source, then that would make the GPL
    pointless, which, I suppose is your argument?

    >> The manufacturer is distributing binaries, so must make the source
    >> available to its customers.

    >
    > Yes, but it is not the customer who can enforce this. The manufacturer
    > has an obligation to the copyright owner to make the source available to
    > his customers.



    That seems backwards in that, for example, the copyright holder might be
    dead, and lets say has no heirs and no will.


    -Thufir

  18. Re: SFLC's GPL court enforcement -- track record

    thufir writes:

    >To my understanding, the buyer does have the right, under the GPL, to
    >the source. After, the GPL is targeted, you could say, at buyers to
    >protect copyright owners.


    >If no buyer has rights to the source, then that would make the GPL
    >pointless, which, I suppose is your argument?


    "Rights to the source" is not a useful phrase, as it does not
    distinguish between the right to ask for the source (which the buyer
    has), the right to redistribute the source once the source is available
    (which the buyer has), and the right to enforce the seller's obligation
    to provide the source (which the copyright owner has but the buyer does
    not).
    --
    Rahul
    http://rahul.rahul.net/

  19. Re: SFLC's GPL court enforcement -- track record

    In article ,
    thufir wrote:
    > To my understanding, the buyer does have the right, under the GPL, to the
    > source. After, the GPL is targeted, you could say, at buyers to protect
    > copyright owners.
    >
    > If no buyer has rights to the source, then that would make the GPL
    > pointless, which, I suppose is your argument?
    >
    > >> The manufacturer is distributing binaries, so must make the source
    > >> available to its customers.

    > >
    > > Yes, but it is not the customer who can enforce this. The manufacturer
    > > has an obligation to the copyright owner to make the source available to
    > > his customers.

    >
    >
    > That seems backwards in that, for example, the copyright holder might be
    > dead, and lets say has no heirs and no will.


    The issue is one of standing. Only the copyright owner in these
    situations is going to have standing to sue for copyright infringement.
    If someone gives you some GPL software, and doesn't play nice and give
    you the source when you ask, your only recourse is to notify the
    copyright holder.

    As far as dead copyright holders go, if there are no heirs and no will,
    ownership of the copyright would be determined the same way it would be
    for any other property of the deceased. It would probably end up owned
    by some government. (Note that even though some governments have laws
    that make their works public domain, those do not apply to works of
    others that are given to the government. E.g., if the government were
    to assign an employee the task of writing a griping novel about forest
    ranger, in order to raise awareness of land management issues, that
    novel would be public domain. But if you or I were to write such a
    novel, and then give the rights to the government, it would NOT become
    public domain).

    I suppose one could imagine a situation where the copyright ends up
    owned by the government of a small country, and some natural disaster
    completely wipes that country off the face of the earth. Presumably,
    the code would then be public domain.


    --
    --Tim Smith

  20. Re: SFLC's GPL court enforcement -- track record

    thufir wrote:
    > The buyer is the guy who walks in off the street and purchases the router
    > (which run GPL'ed software)?
    >
    > To my understanding, the buyer does have the right, under the GPL, to the
    > source. After, the GPL is targeted, you could say, at buyers to protect
    > copyright owners.


    That depends on how the seller of the routers acquired them.
    If he buys them from the manufacturer, he can sell them to
    the guy in the street, and that buyer has no one from whom
    he can demand the source, because first sale doctrine allows
    the seller to sell the included software without a license.
    The buyer of the router still has full rights under the GPL,
    so, for example, he could decompile the software, change it,
    redistribute it, and so forth. But there is no one who must
    provide source code to him.

    > If no buyer has rights to the source, then that would make
    > the GPL pointless, which, I suppose is your argument?


    It's not that the buyer has no rights to the source, it's that
    no one in this case has an obligation to provide it to him.

    > That seems backwards in that, for example, the copyright
    > holder might be dead, and lets say has no heirs and no will.


    That's just the way it is. Old but still copyrighted works
    languish all over the place.

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