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Linux Devicemaker Sued In First US Test of GPL

CowboyNeal posted more than 6 years ago | from the running-it-up-the-flagpole dept.

The Courts 315

An anonymous reader writes "For the first time in the U.S., a company is being taken to court for a GPL violation. The Software Freedom Law Center has sued Monsoon Multimedia over alleged GPL violations in the Hava, a place- and time-shifting TV recorder similar to the SlingBox. Interestingly, Monsoon Multimedia is run by a highly experienced international lawyer named Graham Radstone. According to his corporate biography, Radstone has an MA in Law from the University of Cambridge, England, and held the top legal spot at an unnamed "$1 billion private multinational company." He also reportedly held top management positions with Philip Morris, Pfizer, and DHL. Sounds like the makings of a good old legal Donnybrook ahead."

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315 comments

What's the big deal? (5, Insightful)

dedazo (737510) | more than 6 years ago | (#20690361)

I'm not sure what the big test is here. The GPL isn't some sort of special magical construct that exists on a different plane of reality. It relies on established copyright and contract law to enforce its distribution restrictions. Laws that have a crapload of precedents, usually in favor of the plaintiffs.

A court would be hard pressed not to uphold a copyright claim from the SFLC. That would mean that everyone else's copyright claims on everything else are also null and void. If Viacom and Disney can do it, so can the FSF. That's how it works.

Re:What's the big deal? (4, Interesting)

Sparr0 (451780) | more than 6 years ago | (#20690463)

Some [misguided] courts have held that because the GPL makes some "offers", the author gives up their rights to pursue copyright violations and is restricted to only pursuing the issue as a matter of contract breach. This has at least SOME logical basis, illustrated by this quite-oversimplified semantic example:

I say {you can distribute my code} under the terms of the GPL.
I say you can {distribute my code under the terms of the GPL}.

In the former case, you have permission to distribute my code, but have violated our contract if you do so outside the terms of the GPL. In the latter case, you ONLY have permission to distribute my code if you do so under the terms of the GPL, and have violated my copyright if you do so without that conditional permission. Any sensible judge will understand that the latter is the only viable way to handle the issue, but we have some quite nonsensible judges on benches in various places these days.

Re:What's the big deal? (5, Informative)

mark-t (151149) | more than 6 years ago | (#20690569)

Actually, it's a little bit simpler than that.

Fair and personal use exemptions notwithstanding, copying copyrighted works without permission from the copyright holder is copyright infringement. Period.

GPL'd code is copyrighted. The GPL merely grants permission to copy to people. Period.

However, the GPL _ONLY_ grants permission to those who agree to the terms of the license. If one doesn't agree, then unless alternative arrangements have been made with the copyright holder, there is nothing granting permission to copy. Without permission, any copying that isn't otherwise exempt from infringement suddenly becomes copyright infringement, just like any other copyrighted work.

The only reason derivative works are allowed to be forced to be subject to the GPL is because copyright naturally extends to derivative works anyways, as long as any copyrighted content from the original exists in the derived work.

Re:What's the big deal? (0)

Anonymous Coward | more than 6 years ago | (#20690695)

It's really not, unfortunately. Once an offer to contract is extended and accepted, you've essentially given up your right to sue for infringement. You've still got breach of contract remedies, but once you offer a contract to people and they accept, you can't revoke once performance has begun.

You can't make a logical policy argument for licenses only taking effect when they're complied with. It's a nice fiction, but it doesn't work. It's called offer and acceptance for a reason. It's not offer and "compliance".

Re:What's the big deal? (1)

mark-t (151149) | more than 6 years ago | (#20690989)

By the same token, if they accept the terms of the contract and then later change their mind, then the originating party has every right to revoke privileges that were offered within the scope of that contract.

Re:What's the big deal? (2, Informative)

Planesdragon (210349) | more than 6 years ago | (#20690811)

GPL'd code is copyrighted. The GPL merely grants permission to copy to people. Period.
Wrong.

The GPL is legal agreement between two parties -- the copyright holders and anyone who wishes to make a derivative work thereof. Like any other legal agreement, it is subject to the interpretation of the judges of the world, as argued by the lawyers of the world. (even a simple "you may use my work X in your work Y" permission is a legal agreement.)

One of the things that judges can do, if moved by a lawyer's argument or their own sense of public policy, is void part of a contract while still leaving others parts enforceable.

For the most extreme relevant example, imagine if you took a photograph, and I asked for permission to use that photograph. The hypothetical you, being a racist, writes a permission statement that says "may only use in a work that includes a denunciation of all non-blacks." (The hypothetical you is both black, and a racist. Since this is /., I presume the former is only possible and the latter quite unlikely. Anyway.) I take the photo and use it in my happy-bunny cook book, which contains no denunciation of the white man, and you sue me. The judge takes one look at your permission statement, laughs, and voids that "may only" clause, while leaving the permission itself intact.

Let's put it in clear terms: the GPL has not been tested in US courts, which means that there is NO binding precedent for it. Given Congress's and SCOTUS's recent predilection for expansive, pro-business interpretation of copyright law, there is a non-zero chance that the GPL could be rewritten from the bench. (And then appealed, and appealed, until SCOTUS gets a chance to weigh in on the matter).

(And FWIW, you're wrong about derivative works, too. For some works, even if you completely re-create the entire thing, it's still a derivative work. What is and isn't "derivative" is the sort of thing that copyright lawyers get paid millions to figure out.)

((IANAL, RU?))

Re:What's the big deal? (4, Interesting)

mark-t (151149) | more than 6 years ago | (#20690935)

The GPL is legal agreement between two parties
Even if this were correct, it is superfluous. GPL'd works are copyrighted, and may not be copied without permission from the copyright holder. The GPL says that one must agree to its terms to get permission, so without it there is no permission unless otherwise arranged with the copyright holder. Whether the GPL itself has never been tested in court is also irrelevant because copying any copyrighted work still requires permission from the copyright holder.

Re:What's the big deal? (0)

mr_matticus (928346) | more than 6 years ago | (#20691441)

The GPL says that one must agree to its terms to get permission,
You keep saying "agree" but neglecting the fact that you actually mean "comply." These two are not the same.

You've got an offer and an acceptance, and thus a contract is formed and a license exists. Breach of contract from one party does not legitimate breach of contract from the other. Performance of the contract is separate from agreement to the contract. If you sue for copyright infringement because a party has not disclosed its source code (and you believe that they are obligated to), you're going to get countersued for breach of contract yourself.

You don't get to revoke your offer after it has been accepted. Specific performance of the terms is a contractual issue, not a copyright issue. You, as the copyright owner, extended an offer for a license (a promise not to sue) and performed by providing the code. The other party has accepted by using said code. The power to revoke is OVER. You, the copyright holder, are now bound not to sue; if you do so, you're breaching your contract. "But he broke the contract first!" is not a defense. This is why Slashdot is a poor source for legal information, because the masses just mod up your comments because they seem to make sense and support a popular viewpoint. It is sadly irrelevant to the community that what you're saying is completely bogus.

Re:What's the big deal? (2, Informative)

Sparr0 (451780) | more than 6 years ago | (#20691487)

The point that some lawyers have tried to make is that the violator DID agree to the terms, and GOT permission. *THEN* they violated the terms during distribution. There ARE precedents that say that once permission is given, the only further recourse is as a contract violation, not as copyright infringement. And sadly, some judges think that is binding.

Re:What's the big deal? (1)

revengebomber (1080189) | more than 6 years ago | (#20691489)

Right. The GPL states, "I grant permission only to distribute this program in a specific way", that way being with source.

Re:What's the big deal? (1)

Brandybuck (704397) | more than 6 years ago | (#20691769)

The problem goes much deeper. The GPL claims that it is based only on copyright law, yet parts of it demand that the license be agreed to. Yet contracts are a completely different body of law than copyrights. If the GPL is indeed a EULA, then the conditions hold. But if I do not assent to the GPL contract, do the conditions still apply? If the GPL is not a contract, do I get the permissions without the conditions?

Yes, I know how the average Slashdot poster will answer. But the average Slashdot poster is NOT a lawyer. I would love to hear an answer from a bona fide contract attorney.

Re:What's the big deal? (1)

RobertM1968 (951074) | more than 6 years ago | (#20690941)

Actually, I think you are wrong on this one... it doesnt matter whether you agree to the GPL or not, you need permission to use copyrighted works. The GPL offers such permission in agreeing to it - in whole. By ignoring parts of the GPL, you thus are stating you don't agree to that contract and would need other means to obtain permission to use the copyrighted work - or it's copyright infringement.

Now, IANAL, but I would think that "claiming" to agree to the GPL and then violating it would be pursued as two counts... (1) breach of contract, and (2) copyright infringement, leaving a win-win scenario for the copyright owners - as the violator would either have to amend his claim to "I didnt agree" = infringement, or in keeping his claim = contract violation - and still probably infringement.

I doubt even the contract violation aspect would need to be addressed - and there are plenty of precedents set in other areas (software, music, etc - in which case you are not sued for breach of contract for "only making 1 backup copy, blah, blah, blah" but instead for copyright violation. Also the same thing in books. Many books are released with notices allowing certain sized excerpts (or none at all) to be used for certain purposes, or require permission for certain types of use, or allow certain groups (schools) to use them without permission - and if a category of person or entity that doesnt fit within those guidelines uses a (too big) excerpt, they are sued for infringement - not breach of contract.

As with the above examples, the GPL determines what constitutes copyright infringement.

Re:What's the big deal? (4, Insightful)

arth1 (260657) | more than 6 years ago | (#20691175)

The GPL is legal agreement between two parties -- the copyright holders and anyone who wishes to make a derivative work thereof. Like any other legal agreement, it is subject to the interpretation of the judges of the world, as argued by the lawyers of the world. (even a simple "you may use my work X in your work Y" permission is a legal agreement.)

An agreement or contract is only valid if both parties accept it. It's not enough that one party does. If you don't accept the contract, but still copy the software, you're not violating the contract, cause you never entered it in the first place, but you are violating copyrights.

Saying "by copying this code you agree to the contract" is not valid, because there's nothing to stop you from disagreeing and yet copy it. It's not enough that the copyright holder says you agree -- you too must agree.

In other words, it's pretty much up to the defendant whether this should be seen as a copyright violation or a breech of contract. It's clearly a violation no matter what, but of two different kinds.

The GPL isn't a contract (5, Informative)

Anonymous Coward | more than 6 years ago | (#20691473)

so the rest of your post is meaningless.

The GPL is a distribution license (as stated by Eben Moglen), which you are free to accept or reject. And the instant that you redistribute the work that it covers (and hence copy that work), then you are subject to copyright law, whether or not you agreed to the license.

And that's where agreeing or rejecting the GPL becomes relevant, because if you didn't agree to the GPL then you are guilty of copyright infringement, since nothing else gives you the right to copy. Simple.

Contracts require bilateral agreement. A distribution license doesn't require your agreement at all --- nobody forces you to agree to it, but it's on offer if you want it. However, if you don't accept it then nothing else will protect you from copyright infringement if you redistribute the work.

Re:What's the big deal? (1)

mr_matticus (928346) | more than 6 years ago | (#20691531)

An agreement or contract is only valid if both parties accept it.
Yes. But acceptance is not the same as performance. The GPL is constructed in such a way that downloading the software is acceptance to be bound by its terms. No explicit grant of permission is needed from the copyright holder, since the authorization exists in making the software available in the first place. No specific notification is required by the licensee, as the GPL has neither requested nor required it.

Once a contract is accepted by both parties, a license exists and the power to revoke has left the offeror's hands. Breach of contract is the remedy for non-performance.

Saying "by copying this code you agree to the contract" is not valid, because there's nothing to stop you from disagreeing and yet copy it.
Someone's been asleep for the past century. The offeror has the power to invite acceptance by any terms he sees fit. If the offeror determines that assent may be provided by the taking of the software, it is adequate acceptance, that is his right. Thus the GPL certainly MAY say "by using this software you agree to these terms".

In other words, it's pretty much up to the defendant whether this should be seen as a copyright violation or a breech of contract.
First, you mean plaintiff; second, it's not true; third, if it were a copyright infringement suit, it wouldn't be a test of the GPL. It would be a test of copyright law.

Fair Use IS the question... (1)

tjstork (137384) | more than 6 years ago | (#20690841)

As, we really don't have, to my knowledge, a clear idea of what fair use of software is. Software's not like a book. You can't even use the word "copy" in the traditional sense. When it comes down to brass tacks, you -must- copy software to even inspect it, let alone use it, - across multiple machines, from disk, to RAM and then inside the CPU, through varying layers of cache.

not necessarily (1)

Trepidity (597) | more than 6 years ago | (#20691789)

That's one interpretation, the most sensible one and the one the FSF advances.

However, another interpretation, which also has some precedent, is that the GPL creates a contract, under which the distributor has the right to distribute in return for following its terms. In this case, if the distributor fails to comply with the GPL, it's not a copyright violation, because they did have a copyright license (the GPL), but it's a contract violation, because they breached the GPL's agreed licensing terms. Still illegal, but litigated differently.

I don't think it's a slam-dunk which approach a particular court would take.

Re:What's the big deal? (1)

rtb61 (674572) | more than 6 years ago | (#20690615)

What would the world be with out punctuation. The first case you give cannot work with out a judiciously placed comma. This is of course what the legal battle will be all about, legal obfuscation, delaying tactics and the source and depth of funds for an extended legal tussle. It will hardly be a legal battle because of course all the code can be attributed and the code contributors can join in the case indirectly to support the GPL, a foregone loss by the cancer lawyer.

Then of course there is the negative image being generated for a consumer product, and also the FUD that can result because people will wonder why they don't want to release the code, what is hidden in there ;).

Re:What's the big deal? (0)

Anonymous Coward | more than 6 years ago | (#20690637)

Name the courts. I know of none. If you are talking about the railroad thing, that was the Artistic License. It has nothing to do with the GPL.

There is a big deal (3, Informative)

EmbeddedJanitor (597831) | more than 6 years ago | (#20690477)

Sure, the GPL uses copyright as an instrument and copyright law is pretty well tested, but that is not all there is to GPL. If it was then there would be no GPL.

What remains untested is the interpretation of the GPL and there are large parts of the GPL which are open to different interpretation.

For instance, the definition of "derived work" is pretty key to understanding the the GPL and the definition of that phrase is from being a done deal. The FSF has an faq that give Stallman's definitions and interpretations but these are not binding on the GPL.

Re:There is a big deal (4, Informative)

Dunbal (464142) | more than 6 years ago | (#20691199)

and there are large parts of the GPL which are open to different interpretation.

For instance, the definition of "derived work"


      I thought that copyright law was pretty clear on what a "derived work" is. The GPL does not modify copyright law.

false and true (3, Informative)

Trepidity (597) | more than 6 years ago | (#20691749)

Copyright law is notoriously unclear on what a "derived work" is. But yes, this is a general copyright-law issue, not a GPL-specific issue.

Re:There is a big deal (1)

QuantumG (50515) | more than 6 years ago | (#20691751)

I thought that copyright law was pretty clear on what a "derived work" is.
You're kidding right?

Copyright law is not clear on anything.

That's why you need lawyers.

Re:What's the big deal? (2, Interesting)

angryfirelord (1082111) | more than 6 years ago | (#20690493)

All true, but the big deal here is that this is the first time someone has stepped forward and said, "Hey, you're not complying with the GPL so we're taking you to court."

It'll be interesting to see where this case goes & if other lawsuits will follow if this one is a success.

Re:What's the big deal? (0)

Anonymous Coward | more than 6 years ago | (#20690865)

Hopefully it will go down in flames. Then maybe Linus Torvalds will get his shit together and make the Linux license upgradeable. Its present GPL2-only status and abominable mess of code copyright owners is a ticking time bomb.

Re:What's the big deal? (1)

Kalriath (849904) | more than 6 years ago | (#20691339)

In the US, that's correct. However, it has been upheld overseas several times (mostly against DSL router manufacturers).

It's actually kind of funny, Slashdot gives nowhere near the coverage to overseas GPL lawsuits.

Re:What's the big deal? (2, Interesting)

ThosLives (686517) | more than 6 years ago | (#20690507)

I think this will be an interesting suit. Without knowing all the details, it sounds like the situation may be:

Monsoon built a box, and put the BusyBox software on it, and uses the BusyBox software as a "black box" utility package.

Now, the question is: are the things that use BusyBox derivative of BusyBox or not? It doesn't make sense that Monsoon could be sued because it's not distributing the source code for BusyBox, because the product offered is not "BusyBox" - besides that, BusyBox source can presumably be found wherever it is that Monsoon got it.

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well? This is the sticky point, and my guess is this is what is going to be fought. I think there's a strong case, as well: if I write "Hello, world" that runs on Linux, is that a derivative work? I don't think anyone would consider it to be so. I would bet that if Monsoon can demonstrate that they are just using BusyBox out of convenience and not because it is crucial to their software, the worst that will happen is that they will have to replace the BusyBox with some other code. I don't think they can be forced to release their source code. That said, I don't know that they'd have to stop and wait in the meantime anyway - if they are just using BusyBox "off the shelf", as the hypothetical "hello world" just uses Linux or whatever "off the shelf" then I don't think there would be an issue. I guess the question then is, if I write "hello world" for Linux, and with my hello world distribute Linux as well, does that mean I have to release the source to "hello world"?

That's the question I'm fairly certain people are going to see here.

Re:What's the big deal? (4, Informative)

Ajehals (947354) | more than 6 years ago | (#20690649)

Using your example of "Monsoon built a box, and put the BusyBox software on it, and uses the BusyBox software as a "black box" utility package."

I think the issues would arise if:

1) They are not telling anyone that they are using GPL software and not passing on the license or an offer for the source,
2) They have not modified BusyBox and are not passing on where they got the sourc0e for it from or passing on an offer for the source,
3) They have modified BusyBox and wont share the changes to their customers.
4) They are making some sort of claim that the GPL means that copyright doesn't apply - I have heard it before but never from a top lawyer.

In all cases the appropriate result would be that Monsoon either release the source, plus and modifications and derivatives, plus the license, to their customers, or they must stop using the software and presumably pay some compensation to both the copyright holder (for copyright violation / contract violation) and preferably also pay compensation to their customers (they are also harmed by this after all). In no case should they be compelled to release code that does not fall under the GPL (as decided by the court - if it gets there.)

Well that's my view anyway, but then I am not a top lawyer and have never worked for a $billion company. - IANAL this is not advice.

Re:What's the big deal? (1)

belmolis (702863) | more than 6 years ago | (#20690669)

Sorry, this is wrong. It is not true that the GPL constrains only the distribution of derived works. According to clause (3) of the GPL, if you distribute unmodified binaries you must make the source available. Here is the relevant portion:

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

Re:What's the big deal? (1)

Mr. Slippery (47854) | more than 6 years ago | (#20690777)

It doesn't make sense that Monsoon could be sued because it's not distributing the source code for BusyBox, because the product offered is not "BusyBox"- besides that, BusyBox source can presumably be found wherever it is that Monsoon got it.

If the product includes BusyBox (which it seems that it does), the GPL says they have to provide source for BusyBox. "Get source from the original authors" is not sufficient - what if the authors fold up shop? So the GPLv2 requires that if you distribute GPLd code, you also make available the corresponding source. (That can be as simple as a written offer to send a CD-ROM.)

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well?

If their code is merely aggregated with BusyBox, no.

if I write "hello world" for Linux, and with my hello world distribute Linux as well, does that mean I have to release the source to "hello world"?

No. But you have the make available the source for Linux.

Re:What's the big deal? (0)

Anonymous Coward | more than 6 years ago | (#20690799)

Please mod the parent "Score -1, does not understand GPL"

Re:What's the big deal? (2, Interesting)

yankpop (931224) | more than 6 years ago | (#20690829)

You're very confused about what the GPL does. If Monsoon is selling a piece of hardware that is running GPL code, that is very clearly distribution. If they haven't modified the code in doing so, they are still required to make the source available to their customers should they request it. And if they have modified the source at all, their modifications must be made available. Whether or not there is other code included in the product that is unrelated to busybox is immaterial. They can put all the proprietary code they like in their product, but anything derived from GPL code must be made available to customers who request it.

Some of your particular points:

Now, the question is: are the things that use BusyBox derivative of BusyBox or not?

They don't even need to be 'derivative'. They just need to use BusyBox, and they are bound to provide the sources on request.

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well?

Absolutely not. The GPL doesn't spread to other code. Programmers spread GPL code to other projects. Any derivative of GPL code has to be released when it's distributed, but other unrelated code in the same product is not effected. See almost any Linux distribution for examples of GPL and proprietary code being distributed side by side.

I would bet that if Monsoon can demonstrate that they are just using BusyBox out of convenience and not because it is crucial to their software, the worst that will happen is that they will have to replace the BusyBox with some other code.

This is just plain ridiculous. Can I distribute photocopies of a Stephen King novel, just because it's more convenient than writing my own book?

I don't think they can be forced to release their source code.

If it is derived from GPL code they most certainly can.

I guess the question then is, if I write "hello world" for Linux, and with my hello world distribute Linux as well, does that mean I have to release the source to "hello world"? That's the question I'm fairly certain people are going to see here.

I'm fairly certain you don't have the foggiest idea how the GPL works. You should take a stroll over to gnu.org before you continue with your uninformed speculation.

Re:What's the big deal? (1)

ThosLives (686517) | more than 6 years ago | (#20691611)

Well, it appears I'm uninformed, because I wrote it that way. The article isn't very clear about what the suit is about - and I admit I didn't read the case filing - but if the suit is about "they didn't offer the source code to BusyBox and we couldn't find where they are making that source available, and then we asked them to make it available and they didn't" that's a different suit than "they are using BusyBox but they aren't making all the source to everything on their hardware available". So, I was trying to cover most of the bases.

So, while yes, I understand that the GPL is about ensuring that GPL'd source is always available (which is really interesting because it puts archiving responsibility with anyone that distributes the good rather than on the author. Not to say that's bad, just interesting.) I think the more tricky points here are about what it will do to the related works (aggregates, etc.)

(By the way, there's a vast difference between photocopying a Stephen King novel - which is not a utility by the way - and including, say, a PNG decoder module in my graphics program. My graphics program isn't "derivative" of the decoder, it just "uses" it. A "derivative" of a PNG decoder would be a PNG decoder that does other stuff too - like, say, use the PNG code to compress audio instead of video, or an optimized PNG decoder. That's a subtle difference that I think is often lost and why we have the LGPL which is more often confused than the GPL.)

Re:What's the big deal? (0)

Anonymous Coward | more than 6 years ago | (#20691643)

Does use of BusyBox by Monsoon mean that every bit of Monsoon's other code has to be released as well?
No, it doesn't. The GPL applies ONLY to code released by its authors under the GPL. In this case, the GPL applies to BusyBox.

If Monsoon haven't changed BusyBox at all, then Monsoon should have no problems releasing the source to their version of BusyBox as it appears in Monsoon's product.

If they have modified the source, then that also shouldn't be such a big deal ... they wouldn't have changed that much.

If they have modified the source considerably and commingled all of Monsoon's precious IP with Busybox code ... then that was a pretty silly thing for Monsoon to do. Even in that case, though, if Monsoon release the source code then they can still happily continue to sell their product.

Re:What's the big deal? (0)

Anonymous Coward | more than 6 years ago | (#20690513)

Might this be applicable?
http://www.theregister.co.uk/2007/08/24/open_source_railroad/ [theregister.co.uk]

That fancy Cambridge barrister may have something up his sleeve. Then again, this whole affair may be attributable to laziness and bureaucracy. They may fix the issue quickly now that legal action has been taken.

MALDA IS QUEER (0)

Anonymous Coward | more than 6 years ago | (#20690545)

I'm not sure what the big test is here. The GPL isn't some sort of special magical construct that exists on a different plane of reality. It relies on established copyright and contract law to enforce its distribution restrictions. Laws that have a crapload of precedents, usually in favor of the plaintiffs.

A court would be hard pressed not to uphold a copyright claim from the SFLC. That would mean that everyone else's copyright claims on everything else are also null and void. If Viacom and Disney can do it, so can the FSF. That's how it works.

I AGREE (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#20691767)

NIGGERNIGGERNIGGER

Re:What's the big deal? (3, Informative)

NitroWolf (72977) | more than 6 years ago | (#20690593)

The big deal is that it will set precedent for future cases. This accomplishes two things. One being it makes it easier for future copyright holders to win a case by citing this case (assuming the SFLC wins) when making theirs. When another judge has already ruled that this sort of case one way, another judge (or the same judge) is more likely to go with that ruling, rather than going the other way. Everything else being equal in a case, if there is precedent set, it will usually tip the judge in favor of ruling with the established precedent.

The second, and perhaps bigger issue here is, as I've already said, set precedent... so if this case is handled poorly by the SFLC, and precedent is set improperly, it's going to make enforcing the GPL that much harder for the next person. While it's unlikely that the SFLC would lose, if their lawyers completely botched it, it would be very bad for the GPL, at least in the short term and would potentially encourage unscrupulous companies to continue or begin to infringe the GPL, since there is case law that shows it's unenforceable.

So yes, it's a big case. Any case that establishes precedent is a big case for the issue involved.

They're seeking damages (1)

QuantumG (50515) | more than 6 years ago | (#20690919)

From the complaint [softwarefreedom.org] :

WHEREFORE, Plaintiffs respectfully request judgment against the Defendant as follows:
(1) That the Court issue injunctive relief against Defendant, and that Defendant, its directors,
principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns,
and all others in active concert or participation with Defendant, be enjoined and restrained from
copying, modifying, distributing or making any other infringing use of Plaintiffs' software.
(2) That the Court order Defendant to pay Plaintiffs' actual and consequential damages incurred,
in an amount to be determined at trial;
(3) That the Court order Defendant to account for and disgorge to Plaintiffs all profits derived
by Defendant from its unlawful acts;
(4) That the Court order Defendant to pay Plaintiffs' litigation expenses, including reasonable
attorney's fees and costs of this action; and
(5) That the Court grant Plaintiffs any such further relief as the Court may deem just and
proper.

That's never been done before.. and it could spell a new era of Free Software development.

Re:They're seeking damages (1)

Kalriath (849904) | more than 6 years ago | (#20691435)

Yes, we can look forward to new "GPL Troll" companies. Like Patent Trolls, but all they do is GPL obvious code and sue anyone that uses it. Scary.

Item 3 on the list is a crock of shit, to make the device they would have had to do something themselves, and the SFLC is apparently saying "give us all the money you made, even though we didn't make most of the device". Fine them, yes. Damages, fine. But demanding they hand over all the profit? Fuck off. Seriously.

Re:They're seeking damages (1)

QuantumG (50515) | more than 6 years ago | (#20691595)

Actually, that's about the only one they have a chance of winning.

It's almost the default settlement in copyright infringement cases.

It's *trivial* to comply with the GPL, I don't know why anyone would risk their profits by not.

First Post (0)

Anonymous Coward | more than 6 years ago | (#20690371)

First knee-jerk reaction comment - they'll win.

boo boo (-1, Troll)

Anonymous Coward | more than 6 years ago | (#20690373)

suck my fist bitch

No Stallman! (3, Funny)

QuesarVII (904243) | more than 6 years ago | (#20690381)

I just hope they don't put Stallman on the stand!

If he takes a shower... (0)

Anonymous Coward | more than 6 years ago | (#20691517)

..he might do alright. That smarmy, nutbag aura might be hard to scrub off though.

Doesn't really matter (2, Insightful)

TheRealMindChild (743925) | more than 6 years ago | (#20690429)

It doesn't even really matter if this guy even believes that the GPL is sound. The years long court battle to emerge from it, regardless, will keep him busily employed.

Will this slow adoption? (-1, Troll)

kevmatic (1133523) | more than 6 years ago | (#20690453)

Do you think that companies are now going to avoid using Linux to avoid GPL litigation? Will this create anti-Linux FUD?

Do we want widespread adoption of Linux? What if it requires looking the other way at companies looking the other way? Which is better for Linux in the long run?

I'm worried this will alienate people looking into using it.

Re:Will this slow adoption? (1)

kevmatic (1133523) | more than 6 years ago | (#20690471)

What if it requires looking the other way at companies like this? Curse me happy fingers...

No (2, Informative)

maz2331 (1104901) | more than 6 years ago | (#20690535)

It will not scare away anyone who is willing to follow the license terms, but will make those who believe that GPL'ed code is a sort of "freeware" change their attitude fast.

If they are unwilling to distribute source, they shouldn't use GPL covered code, period. Use BSD or license proprietary code instead.

Re:Will this slow adoption? (1)

Verte (1053342) | more than 6 years ago | (#20691265)

Do you think that companies are now going to avoid abusing Linux to avoid GPL litigation?
There, fixed that for you. Hopefully, it will make them think twice!

Available or Supply? (1)

gbr (31010) | more than 6 years ago | (#20690467)

Okay. Do they have to actually supply the source code, or can they just say "Hey, BusyBox sourcecode is available everywhere on the Internet. We run an unmodified version x.xx of BusyBox, and we will tell end users where to get a copy.

Re:Available or Supply? (2, Informative)

maz2331 (1104901) | more than 6 years ago | (#20690509)

GPL is pretty clear that whoever is distributing the binaries must also distribute the source themselves. It's not acceptable to rely on the "upstream" to do so.

Re:Available or Supply? (1)

SpaceLifeForm (228190) | more than 6 years ago | (#20690797)

Nor would you as a user want to reply upon an upstream source
as the 'product' may contain binaries with back doors that
you can not see.

I want the source that goes into the 'product', I'm not
going to trust someone to say that the 'product' was built
using version x.y.z of some code.

Re:Available or Supply? (0)

Anonymous Coward | more than 6 years ago | (#20691239)

sorry, but you are stupid.

how will you *know* that the source they claim went into the product is unmodified?

sure you can recompile the source they tell you went into it until the cows come home, but that proves nothing.

maybe the compiler has a backdoor which inserts backdoors into compiled code (it's happened before).

at some point you have to trust an upstream source unless you dissect every line of source code from microcode up.

time to don the tinfoil hat ...

Stop spreading Bullshit! (1)

Zero__Kelvin (151819) | more than 6 years ago | (#20691765)

"GPL is pretty clear that whoever is distributing the binaries must also distribute the source themselves. It's not acceptable to rely on the "upstream" to do so."
The GPL quite explicitly states the opposite , to wit:

"To "convey" a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying."

If I link to an active server that serves up the same source code I used to build the binaries I have used some (any) kind of propagation that enables them to make or receive copies. To hear you tell it, I have to host the server myself, and at any moment in time when my server is down I have violated the GPL. To take it further, I may require the recipient of the binary to send me a formal request in writing and send them a hard copy of the source. I will be relying on the mail system as a transport, and perhaps Kinkos as a server. There is no need for me to start my own print shop and mail delivery system to conform to the GPL, any more than I need to own every intermediate node in the path from whatever server serves up the code to the clients computer.

Please stop propagating such ridiculous misconceptions. Also, please don't quote RMS, since his statement of how he wished the GPL said does not constitute a legal interpretation of what is very clearly written.

Re:Available or Supply? (1)

Mr. Slippery (47854) | more than 6 years ago | (#20690813)

Do they have to actually supply the source code

Yes. "Get it from the original authors" isn't sufficient - what if the original authors fold up shop? Or what if you give me FooMatic 1.4, but the FooMatic authors are on 2.1 and no longer have 1.4 source available?

Over under (4, Funny)

Supergood-ape (959376) | more than 6 years ago | (#20690487)

On the number of amateur law experts (with absolutely no fucking idea what they're talking about) that turn out for this one?

250?

Maybe they're just clumsy (5, Insightful)

Anonymous Coward | more than 6 years ago | (#20690525)

DaveJakeman over on Groklaw said:

I'd say insufficient attempts to notify and communicate with the offender have been made. The smart way to litigate is to avoid it if at all possible:

        15. Upon information and belief, on August 28, 2007, Defendants were notified by third parties of Plaintiffs' copyright in BusyBox and of Defendant's infringement thereof. This notification was provided via a public forum on Defendant's website. Upon information and belief, on September 5, 2007, via the same forum, Defendant's employee or agent, identified as "Gary-MM" of "MyHAVA Support", confirmed that Defendant was redistributing BusyBox, but not providing source code as per the requirements of the License.

        16. On September 11, 2007, through their counsel, Plaintiffs notified Defendant of its unlawful conduct based upon its failure to comply with the License. Defendant has not responded to Plaintiffs' notice and continues to distribute the Infringing Products and Firmware in violation of Plaintiffs' exclusive rights under the Copyright Act.

So, plaintiffs posted an entry in the defendant's web forum, acknowledged by a support droid on 5th September and here we are on the 19th, with a lawsuit filed. Have these guys got money to burn? Has the "notification" even got past the support droids to the parts of the company that matter? Whatever happened to communication?

I have to say that I agree. In all such things I ask myself: "What would Eban Moglen do?" Until recently he was the legal genius behind the GPL. (maybe he still is, I'm a bit confused) His approach was always to resolve the problem without needing to sue. It really does seem to me that these guys went off half cocked. If you want to see what happens when you do that, check out SCO.

The reason we should care about this is that it could produce a precedent that we don't like.

Re:Maybe they're just clumsy (2, Informative)

redneckHippe (744945) | more than 6 years ago | (#20691429)

Actually, we know what Eben Moglen would do. from TFA:
'In a statement, Eben Moglen, Founding Director of the SFLC, said, "Free software licenses such as the GPL exist to protect the freedom of computer users. If we don't ensure that these licenses are respected, then they will not be able to achieve their goal. Our goal is simply to ensure that Monsoon Multimedia complies with the terms of the GPL." '

Re:Maybe they're just clumsy (1)

dslauson (914147) | more than 6 years ago | (#20691483)

You know, I tend to agree with you. As a general rule, it's good practice to try to resolve these things without a lawsuit. However, wouldn't it be nice to have a legal precedent to point to? Whether it makes sense or not (hint: it doesn't), just thumbing through the comments here, there are a lot of people who see the GPL as being untested, and therefore potentially legally unsound. Having one easy win in a U.S. court could bring more respect to the license, and maybe help deter those who would violate it.

Re:Maybe they're just clumsy (0)

Anonymous Coward | more than 6 years ago | (#20691559)

"I have to say that I agree. In all such things I ask myself: "What would Eban Moglen do?" Until recently he was the legal genius behind the GPL. (maybe he still is, I'm a bit confused) His approach was always to resolve the problem without needing to sue. It really does seem to me that these guys went off half cocked. If you want to see what happens when you do that, check out SCO."

You do realise that the chairman and Director-Counsel of the SFLC is Eben Moglen right?

http://www.softwarefreedom.org/about/team/ [softwarefreedom.org]

May be a mere aggregation (2, Informative)

rg3 (858575) | more than 6 years ago | (#20690555)

I've read the article at Linux Watch but I haven't read the PDF copy of the complaint, so I may be completely wrong. That said, BusyBox is a program that, as far as I know, is standalone. For example, Slackware uses BusyBox in the initrd you create with mkinitrd. The end result is a static binary called /bin/busybox that has links made to it, like /bin/ls -> busybox. BusyBox implements a lot of commands (they call them applets), and you can either call it as "busybox ls -l" or, if ls is a link to busybox, you can call it as "ls -l" directly and it will run the ls applet. So I am not sure how you can infringe the GPL with that. If they distribute something that contains BusyBox it could be considered a mere aggregation (as in "we need to run a bourne shell script so we distribute the script we wrote together with busybox and busybox runs the script"). But maybe they distribute a modified BusyBox.

Anyone willing to give more details about where the legal problem is? Thanks in advance.

Re:May be a mere aggregation (3, Informative)

QuantumG (50515) | more than 6 years ago | (#20690607)

They're distributing GPL licensed software in binary form without the source code and without an offer to supply the source code on request.

These are requirements of the license.

It's really that simple.

Re:May be a mere aggregation (1)

rg3 (858575) | more than 6 years ago | (#20690665)

Doh. So it's just a matter of putting a copy of the BusyBox source tarball they're using on their servers and providing a link?

Re:May be a mere aggregation (1)

QuantumG (50515) | more than 6 years ago | (#20690743)

Something like that.

If they put the source on a cd and distribute it with the device, or even, put the source ON the device, they'll be in compliance with the license.

Otherwise, they have to supply to anyone they sell the device to a written offer, valid for 3 years, to provide the source code to any third party.. and yeah, putting the source on their server would be a way to do that, but they don't have to.

It's all spelled out here [gnu.org] .

Re:May be a mere aggregation (1)

GPL Apostate (1138631) | more than 6 years ago | (#20691365)

They can also offer to provide a copy of the source on (machine readable) punched tape, or 80 column punched cards. Or on 6250bpi 9 track tape (with an allowable media charge for the reel(s) of tape, of course)

Re:May be a mere aggregation (0)

Anonymous Coward | more than 6 years ago | (#20691695)

Taking your line of thought a little bit further ...

I wonder if someone will one day try to release their modified GPL source code in an archive that requires a proprietary and highly obfuscated unpacker to unpack.

As long as the source code is not actually encrypted (ie. no secret key is required), then strictly speaking this unfriendly tactic would probably still be in compliance with the terms of the GPL.

Re:May be a mere aggregation (1)

belmolis (702863) | more than 6 years ago | (#20690767)

So long as they aren't linking with the BusyBox code, yes, that's all they have to do to comply. That's what makes it so odd that they haven't complied. All it will cost them is five minutes to set up and a little bandwidth.

Re:May be a mere aggregation (1)

GryMor (88799) | more than 6 years ago | (#20690683)

Modification is irrelevant. Distribution, outside the terms of the GPL, is copyright infringement. They have declined to provide source, one of the requirements of the GPL, and so they can burn (or not, if they actually talk to the Busybox developers and make things right).

Re:May be a mere aggregation (1)

CastrTroy (595695) | more than 6 years ago | (#20691485)

The whole distribution thing kind of confuses me in one way. If I have a friend on dial-up, and I download Linux for them, and install it to their computer, does that count as distributing it to them? Would I be in violation of the GPL if I didn't make the source available to them? What if I did this on 2 computers? What about 10? What about 1 Million? What seems weird to me is that the Linux community encourages people installing Linux on everyone's computers that they can, but at what level of installation does it suddenly become your responsibility to provide the code to them? If the code is unmodified, couldn't you just point them to the original place you got it from?

Re:May be a mere aggregation (1)

dufus4 (581604) | more than 6 years ago | (#20691657)

Yes and no. For noncommercial distribution of binaries, all you have to do is provide them "with the information you received as to the offer to distribute corresponding source code". You can also either a) provide them with the source code, ending your obligation, or b) provide a written offer, valid for at least three years, to provide the code at no more than cost. If you distributed it by "offering access to copy from a designated place" (e.g., a local network server), then all you have to do is put the code beside it. For the actual case of downloading it for a friend, you don't really need to do anything, since nobody's going to do anything about it. If you're doing it commercially, you do need to provide that written offer or the source itself.

Place- and Time-shifting TV Recorder ...? (2, Funny)

Anonymous Coward | more than 6 years ago | (#20690589)

Why limit yourself to a Place and Time-shifting TV Recording when you can call it...

A SPACIAL-TEMPORAL DISPLACEMENT AUDITORY VISUAL TRANSLATIONAL DEVICE!

Re:Place- and Time-shifting TV Recorder ...? (1)

Dunbal (464142) | more than 6 years ago | (#20691091)

Why limit yourself to a Place and Time-shifting TV Recording when you can call it...

A SPACIAL-TEMPORAL DISPLACEMENT AUDITORY VISUAL TRANSLATIONAL DEVICE!


      Wow, that sound so good I think we should scrap the copyright idea and go straight for a patent!

fuck slashdot and fuck you (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#20690621)

suck my ass motherfuckers

Re:fuck slashdot and fuck you (-1, Troll)

Anonymous Coward | more than 6 years ago | (#20691097)

you too my dear

now go back to your xbox

gpl-violations.org (1)

pilsner.urquell (734632) | more than 6 years ago | (#20690733)

gpl-violations.org [gpl-violations.org] Has been inactive for almost a year.

Please note that this homepage is not maintained very well. We're so busy in both technically and legally resolving GPL violations that there's hardly any time left to keep this page up-to-date.
Still some good information is contained herein.

If only.... (1)

Rick Zeman (15628) | more than 6 years ago | (#20690753)

...he thought this about the BSD license, too:

In a statement, Eben Moglen, Founding Director of the SFLC, said, "Free software licenses such as the GPL exist to protect the freedom of computer users. If we don't ensure that these licenses are respected, then they will not be able to achieve their goal."

Re:If only.... (1)

mmcuh (1088773) | more than 6 years ago | (#20690861)

What do you mean?

Re:If only.... (0)

Anonymous Coward | more than 6 years ago | (#20690947)

The GP is a BSD user who believes, like a few of OpenBSD's more batshit crazy followers that Eben Moglen's stated aim is to help GPL-using programmers steal from BSD developers?

Yay! (2, Interesting)

frup (998325) | more than 6 years ago | (#20690801)

Grocklaw has something else to jabber about! :P The GPL better hold tight, it would be seriously worrying what would happen otherwise.

Why not use a BSD? (2, Interesting)

noldrin (635339) | more than 6 years ago | (#20690831)

If you want an OS for a box and to keep the source to yourself, then why wouldn't you use a BSD? What advantage do you get for using Linux and other code released under the GPL? Is it just corporate types who are looking to cheap out on development and know the Linux buzzword?

Re:Why not use a BSD? (1)

ScrewMaster (602015) | more than 6 years ago | (#20690875)

Is it just corporate types who are looking to cheap out on development and know the Linux buzzword?

Possibly. Corporate types usually have no clue what's happening with in-house software development. I'd say it's likely to be developers who used GPLed code just to get the job done in a hurry. If so, that's a problem because the corporation needs to be aware of its legal responsibilities. It may turn out no-one outside the software team was even aware of the GPL violations. Wouldn't be the first time.

Re:Why not use a BSD? (2, Insightful)

QuantumG (50515) | more than 6 years ago | (#20691123)

More importantly, why would you want unix utilities like ls and cd and rm on a set top box?

What's the point?

Re:Why not use a BSD? (0)

Anonymous Coward | more than 6 years ago | (#20691253)

Shitty hardware support and it's dead? How's that for why?

Cambridge, offtopic (-1, Redundant)

gnomeza (649598) | more than 6 years ago | (#20690851)

"University of Cambridge, England" is a bit like saying "Harvard University, Massachusetts" or "Yale University, Conecticut".

The addition of a geographical qualifier just seems wrong...

Re:Cambridge, offtopic (0)

Anonymous Coward | more than 6 years ago | (#20690987)

Confusingly, MIT is in Cambridge, Mass. Now, obviously (to a non-american), Cambridge, England has, oh, about a millenium of seniority on the name, but hey - americans.

Where is the copyright registration (1, Interesting)

karl.auerbach (157250) | more than 6 years ago | (#20690871)

Has the copyright been registered with the US copyright office?

If not, the question arises about the legal requirements about having a registration *before* going to court.

If so, it raises the questions of statutory damages, but also raises the question whether the registration(s) were made by the actual authors of each separate snippet of code in the composite work, each having its own author and date of authorship.

Re:Where is the copyright registration (2, Funny)

Anonymous Coward | more than 6 years ago | (#20690963)

There is no need to register copyright since March 1, 1989. [wikipedia.org] .

I see you have been under a rock. You might want to catch up on some other events such as: the fall of the Berlin Wall, the end of the cold war, and the Iraqi invasion of Kuwait.

Re:Where is the copyright registration (1)

karl.auerbach (157250) | more than 6 years ago | (#20691015)

The obligation to register is found in 17 USC 411:

  (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

The complaint does not claim that the work is registered by the author, or because it is may be a work from many hands, by the authors (plural).

Hard target (1)

Damian Hole (22403) | more than 6 years ago | (#20690893)

Suing a lawyer? Has the SFLC learned nothing?

Everybody knows it's in their best interest to sue a school kid or Internet-less grandmother first!

O rly? (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#20690965)

Judging from the SFLC's blatently unsound advice to OpenHAL about the ability to strip and replace licenses, I don't have much faith in their ability to execute the law, especially international law.

Very suspicious (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#20690981)

Hypothetically, how would you go about breaking the Free software movement? Let's say you set up a nice Orwellian sounding organisation and called it, I dunno, "The Free Software Law Institute" or something snappy. Then you pick a battle with a well placed stooge, I dunno, say some guy who spent his entire career as a top shot lawyer for the worlds biggest companies, and then suddenly decided to go into business making set top TV recorders, a fairly normal career move one might suppose. Then, when your big day comes in court you lose.

I dunno what rocks you guys are living under but this STINKS to me. Who the hell are the Sofware Freedom whatever? How long have they been around? Who pays them? What is their motivation? Why choose this lawsuit and not a smaller infringer?

Yeah yeah, bury it down -1 paranoid, but don't come whining when it's I told you so.
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