Submitted by The Software Freedom Law Center and Monsoon Multimedia today jointly announced that an agreement has been reached to dismiss the GPL enforcement lawsuit filed by SFLC on behalf of two principal developers of BusyBox. As a result of the plaintiffs agreeing to dismiss the lawsuit and reinstate Monsoon Multimedia’s rights to distribute BusyBox under the GPL, Monsoon Multimedia has agreed to appoint an Open Source Compliance Officer within its organization to monitor and ensure GPL compliance, to publish the source code for the version of BusyBox it previously distributed on its Web site, and to undertake substantial efforts to notify previous recipients of BusyBox from Monsoon Multimedia of their rights to the software under the GPL. The settlement also includes an undisclosed amount of financial consideration paid by Monsoon Multimedia to the plaintiffs.
I was actually expecting this lawsuit to find its ways into the courts, so that the validity of the GPL would be finally battle-tested and established as sound and legally binding.
Damn…
Edit: abuse of “actually”
Edited 2007-10-30 21:11
Yeah… oh man!
Anyway, is there still chance for them to bring it to the courts if Monsoon takes too long to deliver on their promises?
Ah.. at least the Busybox devs are going to get some $$$ out of this…
There is nothing legally binding about the GPL. The “legally binding” bit that Monsoon ran afoul of was copyright law.
Copyright law says that you must have permission from the author(s) of a work in order to make and then sell or distribute copies. Monsoon were making copies of Busybox and selling them, without permission.
Fortunately for Monsoon there was an amicable, low-cost way for them to get the required permission. All they had to do was actions that were spelled out in a license document called the GPL, and the BusyBox authors would grant to Monsoon their required permission.
So, in the end, you don’t actually “break” the GPL. You either comply with the terms in the GPL in exchange for a required permission to do something, or you “break” copyright law.
So what is there to be “tested in court”? Surely you are not suggesting that Monsoons illegal copying and distribution of BusyBox would have been sufficient cause to bring to court a challenge to copyright law?
You are, of course, right on all counts.
GPL is a permissive license, it relieves you from legal obligations. If you don’t accept it, you are simply violating copyright law, and there is no challenge to that.
> > I was actually expecting this lawsuit to find its ways into the courts,
> > so that the validity of the GPL would be finally battle-tested and
> > established as sound and legally binding.
>
> So what is there to be “tested in court”? Surely you are not suggesting
> that Monsoons illegal copying and distribution of BusyBox would have
> been sufficient cause to bring to court a challenge to copyright law?
What is to be tested is whether everything works as you described. Until then it’s all theory.
As an analogy from programming, I can tell you that it means jack if a computer program *looks* as if it should work, especially if you have never made a single test run.
(side question: is it really true that the GPL has never made a single hard test run?)
Not at all. There is nothing at all “theoretical” about the requirement of copyright law that you must have permission from the copyright holder before you may make copies of a work in order to distribute or sell those copies.
If you are thinking to object along the lines “but the work is open, it is public already, it is published” … then you need to explain how copyright law works for a published paperback novel such as a new Harry Potter book.
The GPL is no different in principle from any other copyright. I happen to have an analogy of my own.
If you want to make copies of a Harry Potter novel for sale, even though the text is publicly published and anyone can read it by borrowing a copy from a library, you will still need to arrange a deal with the copyright holder of the Harry Potter text before you are permitted to do this.
This is a well established principle that applies to original published works. It has been the law for centuries. There are literally thousands upon thousands of cases in terms of precedent. Copyright law still holds.
The only slight difference with the GPL is that the “deal” you make, the payment you make to the copyright holder … is slightly unusual. The payment in this instance is simply that you must re-publish the work as you used it, including any changes you made to the work. There is no requirement in copyright law that the deal one makes with the copyright holder must necessarily involve money.
BTW, the GPL has been tested in court before. It was in Germany, I think. Guess what? The judge decided that copyright law says exactly what it says, and that that law still applied in Germany, and that software source code can indeed be copyrighted.
I can see no reason why an American court would decide differently.
Apparently, Monsoon’s lawyers rapidly came to exactly the same conclusion.
Edited 2007-10-31 08:45
Whatever. Are you a lawyer? I ask because in that case, I would accept the fact that you are the expert and I’m the layman. Of course, you’d not give legal advice, and we’re not entering a lawyer-client relationship
I’m not a lawyer. To see what an actual lawyer would do, you need to look at what some real lawyers actually decided to do when faced with this situation. You would need to see if they decided to try to challenge centuries worth of legal precedent when it comes to violating a valid copyright, or if it is far, far easier and cheaper to just accept the terms on offer from the copyright holder and hence to simply publish the source code of the GPL’d work as it appears in your product.
So Monsoon’s lawyers were recently faced with this very decision … and they are real lawyers.
I wonder what they decided to do, I wonder how hugely difficult it was for them to ask the copyright holders of BusyBox exactly what they wanted of Monsoon in exchange for giving Monsoon the right to use BusyBox, I wonder how incredibly hard it was to re-publish the source code of BusyBox as it appeared in Monsoon’s product, I wonder how they planned go about “attacking” the GPL and bringing it down, I wonder how they planned to get copyright law repealled globally
…
oh wait.
Edited 2007-10-31 22:33
I was actually expecting this lawsuit to find its ways into the courts, so that the validity of the GPL would be finally battle-tested and established as sound and legally binding.
Damn…
If you ask me the GPL has a pretty good track record already. No one seems to want to challenge it directly. They always back down. The SCO case only solidified the GPLs power. There were a lot of doomsday naysayers out there predicting the demise of the GPL but instead we saw the demise of SCO and the strengthening of the GPL. This is the Nth time I’ve heard of a company getting a GPL compliance officer or some similarly named title. I assure you this isn’t out of the goodness of their hearts but because they know that they have to respect the GPL and other open source licenses. Besides it’s probably a lot easier and more cost effective for companies to just release the source code than it is to deal with a lawsuit.
Exactly. Especially so when you consider that the source code (apart from any chnages you might have made) is already public in any event.
Again I’d point out … what is to challenge? The GPL does not force you to do anything, it is not a contract that you have to agree to and sign or anything like it.
Copyright law is the “enforcer” here. Copyright law says that you must get permission form the copyright holder in order to be allowed to make copies of a work.
All that the GPL is is the enabler. The GPL gives you the permission (as is required by copyright law) in exchange for keeping the source code of the work open.
This is true, there were a lot of naysayers. I never understood their reasoning.
If you did actually go to court in a case like this and somehow managed to “bring about the demise of the GPL” … then even after all that effort and expense then still you would not have permission (as still required by copyright law) to copy and distribute the copyright holder’s work.
Edited 2007-10-31 04:10
I believe you have misread it…
How so?
It seems to me to say … if you want to run this code on a computer, if you want to study how it works, if you want to change it for your own use … fill your boots.
If you want, however, to copy this code in order to distribute it, or you want to include it as part of your product, or you want to enable it to be given to other people downstream … then according to copyright law the authors of the code get to say what the terms and conditions are for your doing that. What follows are the terms conditions we the authors set under copyright law for our code (as is our right) … the GPL then goes on to say essentially “you must make the source code and any changes you made to it available to anyone who asks, and as per the terms you got the code in the first place, so you must offer to anyone who receives the code downstream from yourself … the right to run this code on a computer, to study how it works, to change it for their own use … fill your boots”.
Do you have to do any of this? Does the GPL force you? No, it doesn’t. The GPL is an offer. It says you can have the permissions (as required by copyright law) if you do follow the GPL terms & conditions. Take it or leave it. If you don’t want to get the permissions that way, there is nothing stopping you from either (a) not copying or re-distributing the GPL code at all and not using it as part of your product, or (b) making a separate arrangement with the authors of the code.
It is up to you what you do. The GPL is an offer you don’t have to take, you have at least two other choices. Therefore the GPL does not force you to do anything. It is not law, and it is not a contract.
How would you read the GPL any differently to that?
Settlement involved Money, Which was I thought the whole point of this exercise. The point is coming into compliance *only when caught* is not good enough, and I suspect we will see more of this kind of action in the future.
So is this a good thing or a bad thing for GPL’d software?
Is it good that someone got caught, had to pay some money and we get to see all the source code, so there’s more source available?
Or is it a bad thing because companies will think twice about exposing themselves to legal risk by using the GPL. While the terms seem simple enough, actually complying with the terms can be challenging for companies that do not have compliance integrated into their release process. While one can argue about how easy or hard it is to comply, I think the number of mistakes people make in ‘all it takes to comply is…’ type posts show that it is apparently easy to get wrong what you have to do to comply, and that uncertainty translates to business risk.
The only issue that seems to be in doubt about the GPL is how enforcible it is. Is it a pure license, to be adjudicated entirely under copyright law? Or is it partially a license and partially a contract, to be adjudicated under contract law? This distinction is important for two reasons. First, if under copyright law, then one can more easily obtain injunctive relief to stop people distributing the software. The second reason is that in contract law, those things not prohibited are allowed, while in copyright law, those things not allowed are prohibited. These are presently open questions, and only time will tell how licenses like the GPL are interpreted by the courts (cf the recent Model Railroad case where the courts held that plaintiffs weren’t entitled to injunctive relieve because their license was a contract).
Right now, much of the mystique around the GPL exists precisely because it hasn’t been adjudicated and partially due to a history of lax enforcement. Companies are using the software, but don’t fully realize the risks and obligations in doing so. Now that enforcement actions are taking place, I think that companies will be more likely to reevaluate their use of the software. Add to the mix the uncertainty over GPLv3 (laymen’s wishful think FAQs not with standing) and I think we’re going to see people starting to question things more.
That is not an issue at all. The GPL is not enforcible at all. The GPL is not a law, it is simply an offer for use of source code … take it or leave it.
Copyright law is the law. Copyright law is indeed enforcible. There is literally centuries worth of precedent behind it.
The thing about copyright law is this … it says that (1) you must get permission from the copyright holder before you may make copies of a published work for the purposes of re-sale or distribution, and (2) the copyright holder has exclusive rights to set the terms for giving or witholding of that permission.
That is the law. It has been that way for centuries. There have been countless cases as precedent, and the only real point in all of them has been contention over how much one production is or is not a copy of a previous work.
In Monsoon’s case, even that was not in contention … they had undeniably used BusyBox source code in their product, and BusyBox source code is undeniably a copyrighted work. So, in Monsoon’s case … copyright law applied. They needed permission from the copyright holders of BusyBox, and they did not have it.
The only negotiation point then was … how could Monsoon get permission?
The answer was … as per the GPL.
A no-brainer then. All Monsoon had to do was re-publish the source code (that was already largely public in any event, so no skin off Monsson’s nose there) and because they were recalcitrant they were also required to give some monetary compensation to the BusyBox copyright holders.
Easy peasy, problem solved for Monsoon. As I say, a no-brainer. Monsoon must have been kicking themselves about not complying ages ago when first asked to.
Other firms in looking at what is required to use GPL code in a product will easily come to exactly the same conclusion. Just re-publish the source code as required by the GPL, and your “bills” for using GPL source code are all paid up in full.
Edited 2007-10-31 22:56
Just a point there … there is no risk in simply “using” GPL software. The authors of the code have offered it to everyone on the planet to use, gratis.
The terms and conditions of the GPL kick in ONLY when you try to re-distribute or sell the source code to third parties. For the GPLv3, this is clarified to include acts that enable such re-distribution, such as giving out vouchers for the software. That is when copyright law applies, not otherwise.
Just as there is no law (even copyright law) which prevents you from reading (ie. using) a Harry Potter published novel, so too is there no law preventing you from using GPL’d software (as in running it on a computer). Fill your boots. Enjoy.
I think people are getting a little bit confused about copyrights here. Copyrights control the act of copying a work, not using a work.
I think I know where this confusion has come from. There happen to be certain companies writing EULA documents that try to pretend that the mere act of using copyrighted software is somehow illegal …
That is the bit which is not actually supported by the law.
The GPL is on far, far more solid legal grounds that EULAs are.
There is nothing to adjudicate. The GPL is not law. Copyright law is law. There is no laxity of enforcement of copyright law, there is centuries of legal precedent behind it.