The Software Freedom Law Center has filed the first US infringement case to defend the General Public License version 2. The case has been brought against Monsoon Multimedia, a specialist in video viewing and capturing devices, which has offices in Silicon Valley and in New Delhi. SFLC legal director Dan Ravicher told The Register: “This case could have far-reaching implications because it’s the first case in the US to enforce copyright in GPL.”
They weren’t distributing the executables?!? Not to nitpick but shouldn’t they be talking HUMAN readable code…
There are several press articles online from a day or so ago which explain this much better:
http://www.groklaw.net/article.php?story=20070920153227686
http://linux-watch.com/news/NS3973290690.html
http://www.earthtimes.org/articles/show/news_press_release,182497.s…
http://www.softwarefreedom.org/news/2007/sep/20/busybox/complaint.p…
… and here is the forum discussion which provoked it all …
http://www.myhava.com/forum/viewtopic.php?t=499
There are a number of statements from Monsoon Multimedia to the effect that the source for BusyBox as it appears in the Hava device would be made available soon, but apparently it never was …
As soon as Monsoon Multimedia make the source code for BusyBox (as it appears in the Hava) available, the whole thing will blow over.
I cannot for the life of me imagine any scenario where it makes sense for Monsoon Multimedia to fight this in court as opposed to the simple act of making available source code to BusyBox which is already open source anyway.
Edited 2007-09-23 14:13
Looking passed your broken English deathshadow…
I think they are distributing a “modified” GPL executable.. inside the devices firmware..
This court case will be interesting though, I suspect many companies will be waiting for the final judgement..
Looking passed your broken English
???
If you insist on insulting other people of broken English, please use proper English in your insults.
lol… It’s just like people spelling things “moran” and “ignorent”… I love people who are almost or, at times, dumber than the people they are insulting. You see it all over Digg…
“lol… It’s just like people spelling things “moran” and “ignorent”… I love people who are almost or, at times, dumber than the people they are insulting. You see it all over Digg…
“
Thatt plusgood Newspeak Englisch in outside Germani as here Newspeack German iss. Ignorent morans with out many intelligets norecognize formall parrameters off language because contennt plusimportent. Funktional illtracy widespreading norules. 🙂
It’s interesting someone recognized this (valid) nuance at language level. Allthough English is not my native language, But honestly, they should not be worth any insulting comment.
Many people consider me a grammar nazi, but I saw nothing wrong with the gp apart from perhaps wanting a question-mark at the end. And yes, I was reminded of Digg too (and Neowin)…
Oh, that hurts. I just woke up and read your post. I shouldn’t laugh that hard first thing in the morning!
Get a brain! Morans
go USA
It won’t go to a court case. Monsoon Multimedia will find that they are obliged by the GPL to publish the source code for BusyBox, and they will determine that they may as well do just that because BusyBox is already open source anyway. This course of action is immeasurably cheaper for Monsoon Multimedia than going to court would be.
As soon as Monsoon Multimedia publish the source code, the whole lawsuit will go away for them.
A similar thing happened recently with a company called “Parallels” and a product for the Apple which used GRUB.
>> Looking passed your broken English deathshadow…
Conversational prose is not broken English; using the word passed instead of past is – as is your own use of unrelated sentence fragments. Helf hit it on the head – what a maroon, next we’ll brake and axel, our troops will go rouge (better dead than red I always say), eco-nuts will try to stop the cutting down of timbre, there’ll be ignorant ideas and points will be mute: Oh the humanity!
As to most everyone else who responded so far it looks like nobody got the joke. I KNOW what they mean and what this is about. Just to clarify, my point was this part of the article:
>> Monsoon lost its right to distribute BusyBox code
>> because it was, according to the SFLC, not adhering
>> to the terms of the GPL; it was not distributing
>> machine readable code that would allow end-users of
>> the product to modify the software.
Again I ask: Machine readable code? (and yes, that too is proper English.) Last time I checked the only code that was ‘machine readable’ was native bytecode, often called an executable or binary. If they didn’t include that then they had no product.
Last time I checked the GPL was about source code, not binaries…
Oh, and remind me not to try and use intellectual humor in here – it’s apparantly wasted.
Edited 2007-09-23 15:27
Arc Technica has some insight in its comments section about this issue. You’ll especially get a picture of why the decision is important whether the GPL is regarded a contract or a license. As far as I understood, if the GPL is regarded a contract, then the requirement to publish source code is a covenant, and upon breach the BusyBox project would receive damages, but there is no further obligation that Monsoon complies with the GPL. They might also seek to minimize damages by arguing with the fact that BusyBox is not a for-profit company.
On the other hand, if the GPL is regarded a license (as the FSF tries to assert), then the requirement to publish source code is a condition for the license. BusyBox might still go for damages (with an uncertain outcome), but anyways Monsoon’s license is terminated and they may no longer distribute their binaries. They’d have to re-acquire a license (possibly paying a hefty license fee) AND distribute their modified source code AND will be on the SFLC’s radar in the future in case they pull this again.
Link to Ars’s comments section: http://episteme.arstechnica.com/eve/forums?a=tpc&s=50009562&…
However do not forget that some laws don’t make a difference between license and contract as the US law does.
In Austria for example there is no thing like a license in that context, here it’s a contract.
Yes, I was specifically referring to US (and more specifically NY state) law. Do you know whether contracts in Austria allow the kind of auto-termination that the GPL attempts, or what the consequences of contract breaching are?
No, I don’t know that. It’s just recently that I found out that there are no such “licenses” here. (NB: Most if not all EULAs are invalid here as well)
I think we’d only “know” that if someone was sued over a GPL violation. Even the ruling in Munich does not make the GPL valid in Germany per se as the court did not focus on the whole license but rather on some terms of it. (cf. p. 469, http://sharealike.org/20_Berkeley_Tech_L_J_443.pdf )
One problem could arise in Austrian law, because you have to approve a contract and pressing an “accept” button is not enough. So while the terms could be valid, the contract could be non-existing as there was no sufficient approvement. That would touch the way of distribution of GPL software.
In fact that is only imo and “imo” means here that I’m not (not even close) an expert on that topic but have little knowledge compared with the knowledge experts have and that knowledge would be essential on such case.
AFAIK it’s almost the same here in Germany (that’s why I wanted to know about Austria). One thing though: If the contract is nonexistant due to the click-through process, the situation is different from contract breaching (though contract breaching may have the same outcome), and different from EULAs (this is the rock on which the GPL’s copyleft mechanism is built): Without *any* agreement, only the author may distribute the code, so by declaring the cklick-through process invalid, and refusing to agree with the “license” (contract) in the first place, you’d also deny yourself the right to copy the code (whether source or binary, original or modified).
As said, things may be different if you declare that you accept the GPL (as a contract) but then breach that contract.
About Austrian law:
I am from Austria, and whatever the court does, it has to be consistent (like everywhere else in the world).
So either you have a license, or you have a contract, then you are allowed to distribute.
If either the license’s or the contract’s terms are broken, you no longer have a license or contract, so you are no longer allowed to distribute.
On the other hand, the GPL could be declared neither license (because maybe such a thing does not exist in Austria), nor contract (because it was not signed), then it would not be valid.
But invalidating the GPL leaves you to deal with “Urheberrecht” = creator’s right, which is close to copyright, which says you are not allowed to widely distribute other people’s works (just “fair use” is allowed).
So in effect, the GPL works as intended, because either it is valid, then you have to abide by it’s terms, or it is invalid, then you fall back into the much less free copyright.
So it boils down to either abiding by the terms to not get sued, or facing copyright infringement lawsuits.
If Austria recognizes copyright, and I’m pretty sure it does (all WTO countries do), it doesn’t matter. The GPL is a permission from the author to redistribute (and modify). It’s not a contract in any way (for example, you don’t need to sign it). If you don’t recognize the GPL, however, then you are putting yourself in violation of copyright, because you no longer have permission to redistribute the software.
Look at it this way: should the GPL be somehow struck down (however likely that would be), it wouldn’t mean that those who are sued for violation of copyright would win – on the contrary, they would automatically be barred from redistributing copyrighted work.
Don’t forget that this depends on laws which may be different in different countries.
> If you don’t recognize the GPL, however, then you are putting yourself
> in violation of copyright, because you no longer have permission to
> redistribute the software.
According to the ars comments, written by somebody with greater legal experience than mine (read: zero), this is NOT the case. If the GPL is regarded a contract, they would still have permission to distribute (but can sue for damages). That’s all I can say. You didn’t read the ars comments either, did you?
The auto-termination you described relies on the fact that the GPL is regarded a license. That’s why the FSF is advocating for this interpretation – because it means the GPL works as intended.
Are you indicating YOUR legal experience (read zero) or the person who wrote the comment on ars (which would seem about the same).
I’m wondering if you know anything about the legal experience of the author of the GPL:
http://en.wikipedia.org/wiki/Eben_Moglen
http://en.wikipedia.org/wiki/Eben_Moglen#Professional_biography
Sounds like the GPL author has quite a bit more credibility (when it comes to qualifications and experience in the legal profession) that some random poster on ars with a dubious agenda and unknown qualifications.
Read some more of Eben’s thoughts about the legal efforts behind free software here:
http://emoglen.law.columbia.edu/blog/2007/04/index.html
Related info here:
http://en.wikipedia.org/wiki/SFLC
http://www.softwarefreedom.org/
http://www.softwarefreedom.org/about/team/
Edited 2007-09-24 12:16
That’s a pretty big if, considering that there is no signature involved, and that it doesn’t resemble a contract in any other way.
If the GPL is declared invalid, there’s no way that this would invalidate the copyright held by the owner. To do so would undermine the entire copyright system, which in case you aren’t aware, represents tens of billion dollars in the US alone. That’s *not* going to happen.
If the copyright owner doesn’t want you to distribute, you can’t force him to agree. You could try suing him for breach of contract (the contract being the GPL), but since you’re in violation of the GPL in the first place, you would *also* be in violation of the contract, since you didn’t respect its clauses.
I don’t need to, because if it’s anything like you describe it, it’s utter rubbish. The GPL is *not* a contract.
That’s because that’s what it is. It’s not an interpretation, it’s the law.
I agree, but let’s look at it this way. Microsoft would love for it to be legally deemed a ‘contract’. So would many others. Let’s just say that if the GPL is deemed a contract, and not a licence, then practically every other EULA in existence is doomed.
Of course, I’m sure all the BSD lovers will be getting a kick out of this. They’d love nothing more than the GPL to be legally screwed.
Given that I have no faith in the US legal system, and no faith in the chance that said judge[s] would not be ‘swayed’ to decide against the GPL by people richer and more powerful than you or I, I’m worried.
Dave
That’s a self-contradictory argument. If the GPL is deemed a contract (which is highly unlikely) and EULAs are doomed (even though the two are unrelated, EULAs not being a copyright license but rather a “license to use” the software), how would that be a good thing for Microsoft, who relies on EULA (and copyright) to protect its business model? I’m sorry, but you’re not making any sense here.
I disagree. What do the BSD lovers care about other licenses? If the GPL was somehow deemed a contract, that would mean that the BSD license could be treated the same.
Don’t be. The GPL can’t be struck down, as this would bring the entire copyright industry down. There are many, many people who make tons of money in this industry (Film, Music, Books, TV, etc.), and they are much more powerful taken together than the few anti-GPL entities out there.
Well, put it this way. If the GPL is not a license, then what license does Monsoon Multimedia have to distribute BusyBox, which is copyrighted software?
Monsoon Multimedia would be hoping and praying that the GPL is a valid license for BusyBox … because if it is, then all that Monsoon Multimedia need to do is publish the source code for BusyBox, which is open source anyway.
I can only report what was said in the ars comment section, since IANAL myself (did you actually read it? It doesn’t sound like that):
> Well, put it this way. If the GPL is not a license, then what license does
> Monsoon Multimedia have to distribute BusyBox, which is copyrighted
> software?
If the GPL is regarded a contract, and not a license, then said contract would allow them to distribute BusyBox. The requirement to publish source code would be a covenant (not a condition), and non-compliance with said requirement would be a contract breach. This means the GPL’s build-in auto-termination would NOT kick in.
Don’t see how that would work in the case of the GPL. A contract requires agreement between both parties.
http://en.wikipedia.org/wiki/Contract#Offer_and_acceptance
The GPL requires none of that. In the GPL there is a one-way offer (you may use this source code in the stated manner if you abide by these terms … then a statement of the terms).
Then the classic warning is plainly stated:
http://www.gnu.org/licenses/gpl.html
Since you are not required to accept the license, then there is no “acceptance”. There is merely “abide by” or “don’t abide by” … and correspondingly “permission granted” or “permission withheld”.
The license is purely a grant of permission, under copyright law.
http://en.wikipedia.org/wiki/License
Nothing other than the GPL gives copying permissions for GPL software. The permissions is only granted subject to the provisions in the GPL. If you do not follow said provisions, then you have no permission to copy.
There is nothing in the GPL that requires agreement between the parties. Either permission is granted, or it is not, depending purely on the actions of the recipient. Permission is required by copyright law (not by the GPL) for some actions in relation to the copyrighted software which is the subject of the license.
Ergo, on the plain simple face of it, the GPL is a license (a conditional grant of permission), just as it claims to be, and not a contract.
Certainly, Microsoft agrees with this reasoning to the extent they found it necessary to try to claim they were not acting under the provisions of the GPL.
Edited 2007-09-24 10:57
“You’ll especially get a picture of why the decision is important whether the GPL is regarded a contract or a license.”
General Public *License*. I wonder what it is….
Contracts also must be signed by all involved parties for it to be binding. Usually.
> General Public *License*. I wonder what it is….
That’s up for the courts to decide. You might as well argue that the MS-PL is permissive because the title says so. Or that any book saying “the holy bible” on its cover must be the bible, because the title says so.
> Contracts also must be signed by all involved parties for it to be
> binding. Usually.
That’s the location-dependent part. For example (AFAIK), under Austrian and German law you would be right. This is going to be decided in the state of NY though. If you have information about the legal situation there, I’d be very interested.
I don’t think so. It has already (apparently) been decided by Monsoon Multimedia that they will comply with the simple requirements of the GPL, and hence get the permission to copy that the GPL license grants them. It doesn’t look like it will go anywhere near a court.
http://www.myhava.com/forum/viewtopic.php?p=3626#3626
“That’s the location-dependent part. ”
I seriously doubt there’s a single country in the world where contract law does not specify that all involved parties must sign a contract for it to be valid. Otherwise you could just make shit up. “Oh hey, here’s a piece of paper that says you’re contracted to build my new house. For free”.
Whether EULA’s and such are legally binding is different but a EULA is not a contract in any country that I’m aware of.
I don’t know about this. If I enter into a taxi, and the cab driver says “where to?” and I say “downtown” and then the cab driver starts the meter … then I would say a valid contract has been entered into between the two parties without any signatures required.
However, please note there is an offer and acceptance, and an implied “meeting of the minds” over the arrangement. For the GPL or for a EULA, there is no such exchange … both of these in effect state “you are hereby granted these permissions if and only if you abide by these conditions”.
“I don’t know about this. If I enter into a taxi, and the cab driver says “where to?” and I say “downtown” and then the cab driver starts the meter … then I would say a valid contract has been entered into between the two parties without any signatures required.”
-Where to?
-Downtown
…
-It’s $20
-WTF, I was hitchhiking!
The person who posted nonsense on ars about “if the GPL is a contract” is very, very confused.
Here is some of the drivel:
And here is a free Cluebat: BusyBox is not Monsoon’s code. This case is about BusyBox source code (which is licensed by the GPL), not Monsoon’s source code (which has nothing to do with the GPL).
no because whether or not GPL is enforced as a contract is fundamental to the case.
First and foremost the GPL is a SOURCE CODE license. That’s important because it’s the source licensed and binaries inherit that. The FSF and common interpretation says that the GPL is a license because it is one-way. Actually it’s TWO licenses. One for unlimited USE and Verbatim reproduction with no strings attached other than VERBATIM (no modification). The second License is to re-use the SOURCE CODE in your own projects with additional conditions.
People are trying to put the GPL in line with EULAs which are actually contracts. The GPL is NOT a contract because the author RECEIVES nothing in return. Much like when you watch Major League Baseball and they end the program with the “property of MLB… no reproduction…” they give you a LICENSE to watch the game. Once you watch the game on TV without contract you can’t decide MLB’s not the copyright holder and redistribute copies of the game footage wherever you wish. They have a monopoly on giving out licenses to distribute the show, even iv you didn’t pay to watch it, you’re still bound by the license.
What these guys are trying to say in court is that the GPL is just another EULA… or with the arguments given even less than that. That somehow the “free” plus “redistributable” amounts to some kind of public domain contract they can debate terms of. They want to say that GPL violations can’t shut them down.. something Congress has been trying to fix in the patent front so the court may be sympathetic even though the logic is flawed. Contracts require two-way negotiation. GPL offers no such mechanism. By distributing you accept the terms, if you don’t accept, stop distribution… there’s no middle ground that I can debate it only if I get caught…. if that was remotely legal, we’d just put mp3’s of OTA radio songs online and it would be 100% legal… and that is clearly not legal by any means.
The trouble is that one part of one case argued that in actual court and while they still lost, they might have set a precedent there. The fear in this case is that somebody may try to apply that other case as precedent and that would take extra work to knock down.
edit:
the motivation is that companies don’t want the revoke sentence, they want to claim in court GPL is a contract.. so they should be negotiating “damages” which courts might like to grant to keep things “tidy” with other business cases. But then when negotiating the “contract” damages (with shutting them down off the table) they will say GPL is submitted for “free” and has no monetary damage claims… so they shouldn’t have to pay any money damages either. Effectively turning GPL (and any other license) into BSD as far as the courts.
Edited 2007-09-24 17:31
to http://www.busybox.net and be done with it?
>> to http://www.busybox.net and be done with it?
Read section 5 of GPL3 or section 2 of GPL2. I’m assuming they made modifications.
But then, I recommend reading the GPL if for no other reason than entertainment value.
Edited 2007-09-25 08:30
GPL relies upon copyright to even function. The more companies like Viacom, Disney, etc work to strengthen Copyright, the stronger the GPL becomes. And, when fights come out to try and dismantle the GPL, they have to fight to defend it else a precident will be made that can topple their own house of hards.
Man, I am enjoying this.
Monsoon Multimedia will comply with the GPL on this issue. At least, that is what Monsoon Multimedias rep is promising on the hava forum.
http://www.myhava.com/forum/viewtopic.php?p=3626#3626
This response was totally to be expected. It will shortly all become an absolute storm in a teacup.
Next … Toshiba?
http://www.groklaw.net/comment.php?mode=display&sid=200709201532276…
“The Toshiba A2 HD DVD player uses busybox.”
The only advantage the US will have in the future is its citizens ability to innovate freely.