GPL tested in court .. - Linux

This is a discussion on GPL tested in court .. - Linux ; "The Software Freedom Law Center (SFLC) today announced that it has filed the first ever U.S. copyright infringement lawsuit based on a violation of the GNU General Public License (GPL) on behalf of its clients, two principal developers of BusyBox, ...

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  1. GPL tested in court ..

    "The Software Freedom Law Center (SFLC) today announced that it has
    filed the first ever U.S. copyright infringement lawsuit based on a
    violation of the GNU General Public License (GPL) on behalf of its
    clients, two principal developers of BusyBox, against Monsoon
    Multimedia, Inc"

    http://www.earthtimes.org/articles/s...e,182497.shtml

  2. Re: GPL tested in court ..


    Doug Mentohl wrote:
    >
    > "The Software Freedom Law Center (SFLC) today announced that it has
    > filed the first ever U.S. copyright infringement lawsuit based on a
    > violation of the GNU General Public License (GPL) on behalf of its
    > clients, two principal developers of BusyBox, against Monsoon
    > Multimedia, Inc"
    >
    > http://www.earthtimes.org/articles/s...e,182497.shtml


    http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:14190

    -------
    If the suit goes forward (which I seriously doubt) the District Court
    will dismiss due to failure to state a claim.

    Failing to provide source code is a contract breach and not a violation
    of scope of use under copyright law.

    1.) There is no “automatic” contract rescission under New York law.

    “. . . recession of the contract only occurs upon affirmative acts by
    the licensor, and a breach by one party does not automatically result in
    recession of a contract. Id. at 238 (“New York law does not presume the
    rescission or abandonment of a contract and the party asserting
    rescission or abandonment has the burden of proving it”).”; Atlantis
    Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y.
    April 30, 2007)

    2.) Federal Courts will not hear copyright license rescission claims.

    The First Circuit Court of Appeals ruled a contract rescission in
    federal court concerning copyright infringement is preempted by 17 USC
    sec. 301.

    “Because Santa Rosa seeks rescission of his contract, if we were to
    grant him the relief that he sought, we would be required to determine
    his ownership rights by reference to the Copyright Act. In such a case,
    there is little question that we would be merely determining whether
    Santa Rosa was entitled to compensation because of "mere copying" or
    "performance, distribution or display" of his recordings. Data Gen.
    Corp., 36 F.3d at 1164. As such, 17 U.S.C. § 301(a) preempts Santa
    Rosa's rescission claim.”; /Santa-Rosa v. Combo Records, /05–2237 (1st
    Cir. Dec. 15, 2006).
    -------

    regards,
    alexander.

    --
    "The revolution might take significantly longer than anticipated."

    -- The GNU Monk Harald Welte

  3. Re: GPL tested in court ..

    Alexander Terekhov wrote:

    > If the suit goes forward (which I seriously doubt) the District
    > Court will dismiss due to failure to state a claim.


    "This is an action by Erik Andersen, an individual, and Rob Landley, an
    individual, (“Plaintiffs”) by and through their attorneys, the Software
    Freedom Law Center, Inc., to recover damages arising from infringement
    of their copyrights by Monsoon Multimedia, Inc.,"

    > Failing to provide source code is a contract breach
    > and not a violation of scope of use under copyright law.


    "Specifically, Defendant distributed and continues to distribute
    Plaintiffs’ copyrighted BusyBox software without Plaintiffs’ permission
    and despite the fact that Plaintiffs notified Defendant of its unlawful
    activity"

    "This Court has subject matter jurisdiction over Plaintiffs’ claims for
    copyright infringement pursuant to 17 U.S.C. §501 and 28 U.S.C. §§1331
    and 1338(a)"

    http://www.softwarefreedom.org/news/.../complaint.pdf

  4. Re: GPL tested in court ..


    "Alexander Terekhov" wrote in message
    news:46F3B27C.39476948@web.de...
    >
    > -------
    > If the suit goes forward (which I seriously doubt) the District Court
    > will dismiss due to failure to state a claim.
    >

    The suit seems to be squarely framed as a test of the GPL, but it seems a
    little thin on claimed proof. For one thing, there is no mention of the
    copyright identification for this "BusyBox" and there isn't anything I could
    find on the copyright site for BusyBox, or the named authors. Doesn't the
    copyright need to be registered before any suit can be filed? Also, the
    evidence of infringement seems to stem from an unidentifed "employee or
    agent" who posted some comment on a forum somewhere.

    They claim damages, but offer no arguement that they were actually damaged
    in any way.



  5. Re: GPL tested in court ..

    amicus_curious wrote:

    > there is no mention of the copyright identification
    > for this "BusyBox" and there isn't anything I could
    > find on the copyright site for BusyBox, or the named authors.


    'A "contributor" is a copyright holder who authorizes use under this
    License of the Program or a work on which the Program is based. The
    work thus licensed is called the contributor's "contributor version"'

    http://www.gnu.org/licenses/gpl.txt

    > Doesn't the copyright need to be registered before any suit can be filed? ..


    "the use of copyright notices has become optional to claim copyright,
    because the Berne Convention makes copyright automatic.[1] However,
    notice of copyright (using these marks) does have consequences in terms
    of allowable damages in an infringement lawsuit in some places"

    Absence of a copyright notice does not mean that the work is not covered
    by copyright. The creator of an original work instantaneously possesses
    its copyright when that work is created through "mental labor" and
    "fixed" in tangible form. Thus, a natural copyright exists from the time
    a work is invented or created, regardless of whether it has been
    registered with a particular Copyright Office"

    http://en.wikipedia.org/wiki/Copyrig...cing_copyright

  6. Re: GPL tested in court ..


    "Doug Mentohl" wrote in message
    news:fd0jhc$kvf$1@news.datemas.de...
    > amicus_curious wrote:
    >
    >> there is no mention of the copyright identification
    > > for this "BusyBox" and there isn't anything I could
    > > find on the copyright site for BusyBox, or the named authors.

    >
    > 'A "contributor" is a copyright holder who authorizes use under this
    > License of the Program or a work on which the Program is based. The work
    > thus licensed is called the contributor's "contributor version"'
    >
    > http://www.gnu.org/licenses/gpl.txt
    >

    What is that supposed to mean? How do these jamokes intend to prove that
    they have any standing to sue anyone over anything?


    >> Doesn't the copyright need to be registered before any suit can be filed?
    >> ..

    >
    > "the use of copyright notices has become optional to claim copyright,
    > because the Berne Convention makes copyright automatic.[1] However, notice
    > of copyright (using these marks) does have consequences in terms of
    > allowable damages in an infringement lawsuit in some places"
    >
    > Absence of a copyright notice does not mean that the work is not covered
    > by copyright. The creator of an original work instantaneously possesses
    > its copyright when that work is created through "mental labor" and "fixed"
    > in tangible form. Thus, a natural copyright exists from the time a work is
    > invented or created, regardless of whether it has been registered with a
    > particular Copyright Office"
    >
    > http://en.wikipedia.org/wiki/Copyrig...cing_copyright


    "Before an infringement suit may be filed in court, registration is
    necessary for works of U.S. origin. "

    http://www.copyright.gov/circs/circ1.html#cr

    Two US guys suing a US company in a US court would seem to have to follow
    the US law.



  7. Re: GPL tested in court ..

    amicus_curious wrote:

    >> http://www.gnu.org/licenses/gpl.txt


    It's called a license ..

    > What is that supposed to mean? How do these jamokes intend to prove
    > that they have any standing to sue anyone over anything?


    That's why it is going before a duly convened Court of LAW ..

    > "Before an infringement suit may be filed in court, registration is
    > necessary for works of U.S. origin. "


    "registration is not a condition of copyright protection"

  8. Re: GPL tested in court ..


    "Doug Mentohl" wrote in message
    news:fd0rch$lda$1@news.datemas.de...
    > amicus_curious wrote:
    >
    >>> http://www.gnu.org/licenses/gpl.txt

    >
    > It's called a license ..
    >
    >> What is that supposed to mean? How do these jamokes intend to prove that
    >> they have any standing to sue anyone over anything?

    >
    > That's why it is going before a duly convened Court of LAW ..
    >

    Not unless a judge decides that there is a matter for a jury or court to
    consider at trial. If the plaintiffs cannot show that they have any
    ownership of the copyright to begin with, they are never going to trial.
    Consider your own glee at SCO's failure to get in front of a trial judge or
    jury due to the recent preemptive dismissal of their suit. Or did you miss
    the point? SCO had paid some $124 million dollars, presumably to own the
    copyright, but that was not itself enough proof for the judge. What do
    these beggars have to show?


    >> "Before an infringement suit may be filed in court, registration is
    >> necessary for works of U.S. origin. "

    >
    > "registration is not a condition of copyright protection"


    Perhaps you are protected, and I would agree with that, but you are a long
    way from being able to assert a claim.


  9. Re: GPL tested in court ..

    amicus_curious wrote:

    > SCO had paid some $124 million dollars, presumably to own the copyright,


    What dishonest shills like you "presume" is often not the case.

    > but that was not itself enough proof for the judge.


    The judge who had full access to the evidence and knowledge of the law.

    >What do these beggars have to show?


    Proof that they own the copyright, which they clearly do not.


  10. Re: GPL tested in court ..

    Anti-GPL FUD. The idea of the GPL being tested implies that is is
    testable, and therefore there is some risk in using the GPL.

    This suit is a copyright infrigement suit, and the GPL is only
    incidental to it, and will not be tested here. If you would go read the
    documents at fsf.org about the GPL, you'l find that they specifically
    designed it so that it would not become an issue in court.

    The correct way to report this, if you don't want to spread anti-GPL
    FUD, is that someone is being sued for copyright infringement, and if
    they had followed the GPL, they would not be in this mess. That
    highlights the fact that the GPL is something that *helps* them, by
    giving them a way to use the code without suffering legal penalties.

  11. Re: GPL tested in court ..

    On 2007-09-21, Doug Mentohl wrote:
    > amicus_curious wrote:
    >> Doesn't the copyright need to be registered before any suit can be filed? ..

    >
    > "the use of copyright notices has become optional to claim copyright,
    > because the Berne Convention makes copyright automatic.[1] However,
    > notice of copyright (using these marks) does have consequences in terms
    > of allowable damages in an infringement lawsuit in some places"
    >
    > Absence of a copyright notice does not mean that the work is not covered
    > by copyright. The creator of an original work instantaneously possesses
    > its copyright when that work is created through "mental labor" and
    > "fixed" in tangible form. Thus, a natural copyright exists from the time
    > a work is invented or created, regardless of whether it has been
    > registered with a particular Copyright Office"


    He didn't ask about notice. He asked about registration. Notice is
    putting the "Copyright 2007 by Bob Dobbs" message or something similar
    on the work. Registration involves depositing a copy of the work with
    the Library of Congress and filling out a form and paying a small fee.

    Registration is a prerequisite, generally, for winning attorney's fees
    and statutory damages. They are asking for attorney's fees in their
    pleading, so perhaps they did register.

  12. Re: GPL tested in court ..


    "Tim Smith" wrote in message
    news:13f880qscv44fce@news.supernews.com...
    > Anti-GPL FUD. The idea of the GPL being tested implies that is is
    > testable, and therefore there is some risk in using the GPL.
    >

    That is an overreaction. There is no signed contract in effect between the
    parties. The only linkage is the GPL wording. The authors have granted the
    world whatever rights are conveyed by the GPL, which may only be that the
    authors have abandoned any claim to revenues deriving from the use of their
    code. Or it may mean that they have the right to estop anyone from
    distributing a product based on that code without complying with the
    covenants contained in the GPL. This issue has not been tested.

    People trivialize the exercise to highlight the lack of financial
    consideration present in the GPL, which is the foundation of most contract
    issues in other circumstances. For example, if the GPL said that in order
    to distribute the work legally the distributor had to howl at the moon at
    midnight on Friday the 13th whenever it occurred rather than publishe the
    source. Thus a person would be in violation if they failed to perform the
    howling. The point being argued on occasion in the courts is whether the
    lack of consideration means that the GPL itself is nothing more than a quit
    claim by the work's author.

    The only people who are providing the thinking behind the GPL, Stallman and
    Moglen, are extremists in terms of thoughts and actions and may be out on a
    limb as many more central thinkers suppose.

    There is no risk to the consumer in using the GPL unless it involves
    violation of someone else's copyright or patent. The only issue is whether
    the source release covenant can be effectively enforced. There has been one
    adverse decision to the idea of open source requirements already this year.
    This may be another.

    > This suit is a copyright infrigement suit, and the GPL is only
    > incidental to it, and will not be tested here. If you would go read the
    > documents at fsf.org about the GPL, you'l find that they specifically
    > designed it so that it would not become an issue in court.
    >

    But it is said that their reasoning is flawed.

    > The correct way to report this, if you don't want to spread anti-GPL
    > FUD, is that someone is being sued for copyright infringement, and if
    > they had followed the GPL, they would not be in this mess. That
    > highlights the fact that the GPL is something that *helps* them, by
    > giving them a way to use the code without suffering legal penalties.


    And it may do even more than that if there are no legal penalties to start
    with. There is a cost associated with doing the distribution that the GPL
    would insist upon and and even greater reluctance to expose any trade secret
    or copyrighted source by anyone who uses GPL code included in their own
    products.


  13. Re: GPL tested in court ..


    Tim Smith wrote:
    >
    > Anti-GPL FUD. The idea of the GPL being tested implies that is is
    > testable, and therefore there is some risk in using the GPL.
    >
    > This suit is a copyright infrigement suit, and the GPL is only
    > incidental to it, and will not be tested here. If you would go read the
    > documents at fsf.org about the GPL, you'l find that they specifically
    > designed it so that it would not become an issue in court.


    Yet the complaint argues that Monsoon *lost* the rights to BusyBox code
    the moment it shipped object code without offering the source code also.

    regards,
    alexander.

    --
    "The revolution might take significantly longer than anticipated."

    -- The GNU Monk Harald Welte

  14. Re: GPL tested in court ..

    Tim Smith wrote:

    > This suit is a copyright infrigement suit,
    > and the GPL is only incidental to it, and ..


    "The Software Freedom Law Center (SFLC) today announced that it has
    filed the first ever U.S. copyright infringement lawsuit based on a
    violation of the GNU General Public License (GPL) .."

    http://www.earthtimes.org/articles/s...e,182497.shtml

    --

    ****ing DOH .. eeh ...

  15. Re: GPL tested in court ..

    Alexander Terekhov wrote:

    > Failing to provide source code is a contract breach and not a violation of scope of use under copyright law.


    "Monsoon Multimedia admitted today that it had violated the GPLv2 (GNU
    General Public License version 2), and said it will release its modified
    BusyBox code in full compliance with the license"

    http://www.linux-watch.com/news/NS3761924232.html

  16. Re: GPL tested in court ..


    Doug Mentohl wrote:
    >
    > Alexander Terekhov wrote:
    >
    > > Failing to provide source code is a contract breach and not a
    > > violation of scope of use under copyright law.

    >
    > "Monsoon Multimedia admitted today that it had violated the GPLv2 (GNU
    > General Public License version 2), and said it will release its modified
    > BusyBox code in full compliance with the license"
    >
    > http://www.linux-watch.com/news/NS3761924232.html


    And what is your point, Mentohl?

    First off, my initial post to this thread said

    "If the suit goes forward (which I seriously doubt)"

    Next, the exact language of Monsoon Multimedia's "admission" isn't quite
    that colorful.

    "SAN MATEO, Calif. — September 21, 2007 — Monsoon Multimedia today
    announced efforts to fully comply with the GNU General Public License
    (GPL). Monsoon is in settlement negotiations with BusyBox to resolve
    the matter and intends to fully comply with all open-source software
    license requirements. Monsoon will make modified BusyBox source code
    publicly available on the company web-site at www.myhava.com in the
    coming weeks.

    "Since we intend to and always intended to comply with all open
    source software license requirements, we are confident that the
    matter will be quickly resolved,” said Graham Radstone, Chairman and
    Chief Operating Officer at Monsoon Multimedia."

    IOW, they're ready to comply with contractual covenant regarding
    making BusyBox code available. Compliance with a contract is almost
    always voluntary -- if you choose not to comply, then you don't have
    to. You merely have to compensate the non-breaching party for his
    expectancy interest.

    Finally, let's wait and see what turns out from settlement
    negotiations...

    regards,
    alexander.

    --
    "The revolution might take significantly longer than anticipated."

    -- The GNU Monk Harald Welte

  17. Re: GPL tested in court ..

    Alexander Terekhov wrote:

    > And what is your point, Mentohl?


    ...

    > Finally, let's wait and see what turns out from settlement negotiations...


    First US GPL case is not settled

    "Contrary to yesterday's report, the lawsuit against Monsoon Multimedia
    for violating the GNU General Public License (GPL) in its distribution
    of BusyBox may not be headed for a quick settlement. Nor will the
    settlement necessarily be out-of-court"

    http://www.linux.com/feature/119439

  18. Re: GPL tested in court ..


    Doug Mentohl wrote:
    >
    > Alexander Terekhov wrote:
    >
    > > And what is your point, Mentohl?

    >
    > ..
    >
    > > Finally, let's wait and see what turns out from settlement negotiations...

    >
    > First US GPL case is not settled
    >
    > "Contrary to yesterday's report, the lawsuit against Monsoon Multimedia
    > for violating the GNU General Public License (GPL) in its distribution
    > of BusyBox may not be headed for a quick settlement. Nor will the
    > settlement necessarily be out-of-court"
    >
    > http://www.linux.com/feature/119439


    http://myhava.com/forum/viewtopic.php?p=3703#3703

    ----------------------------------------------------------------------
    Gary-MM wrote:



    And now, the moment you've all been waiting for...

    http://myhava.com/forum/viewtopic.php?t=874



    Yet

    http://www.technewsworld.com/story/59502.html
    (GPL Settlement: Plenty of Buzz, No Deal)

    "No agreement has yet been reached, said Daniel B. Ravicher, the
    attorney who is prosecuting the Software Freedom Law Center's case on
    behalf of two BusyBox plaintiffs against Monsoon.

    "I can confirm that we are discussing settlement, but -- contrary to
    what many in the press seem to believe -- no agreement has been
    reached," said Ravicher.

    [...]

    Not So Fast

    "Note that simply coming into compliance now is not sufficient to settle
    the matter, because that would mean anyone can violate the license until
    caught, because the only punishment would be to come into compliance,"
    Ravicher said.

    He declined to discuss details about what actions the clients
    additionally seek, however. "Hopefully we'll be able to shed light on
    that if/when we do reach an agreement," he stated. "

    Stop talking to SFLC crackpots, hava.

    SFLC will move to dismiss the lawsuit prior to any **Motion to Dismiss**
    by the defendants being heard by the court.

    The SFLC can never allow a court to actually review the GPL on its
    merits. They would appear as crackpots with their "no contract" theory.
    The SFLC filed the lawsuit to gain maximum FUD mileage out of the GPL.
    They will limp along propagandizing until a Motion to Dismiss is filed
    -- then they will dismiss and argue that the GPL "won in court".
    ----------------------------------------------------------------------

    regards,
    alexander.

    --
    "The revolution might take significantly longer than anticipated."

    -- The GNU Monk Harald Welte

  19. Re: GPL tested in court ..

    amicus_curious wrote:

    > That is an overreaction. There is no signed contract in effect between the parties

    ..

    If you use GPL code then you are bound by the terms license ..

  20. Re: GPL tested in court ..

    amicus_curious wrote:

    < snip >

    >>> But you still have
    >>> the right to copy. And the obligation to perform per the covenants.
    >>> But
    >>> they are separable. Read the court decisions.

    >>
    >> I did. You obviously not
    >>

    > Oh I did too. Did you miss the reasoning:
    > "Therefore, under this reasoning, Plaintiff may have a claim against
    > Defendants for breach the nonexclusive license agreement, but perhaps not
    > a claim sounding in copyright."
    >
    > followed by
    >
    > "For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss
    > Counts
    > five, six and ten without leave to amend and GRANTS IN PART AND DENIES IN
    > PART
    > Defendants’ motion to strike. The Court DENIES Plaintiff’s motion for
    > preliminary injunction."
    >
    > http://jmri.sourceforge.net/k/docket/158.pdf
    >


    Fine. And when you start to show what *that* law suit has to do with GPL,
    come back to us

    How come you windows advocates have to be such dishonest imbeciles?

    < snip more Bill Weisgerber garbage >
    --
    Microsoft: The company that made email dangerous
    And web browsing. And viewing pictures. And...


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