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Larry Rosen: A Case Study In Understanding (and Enforcing) the GPL

timothy posted about 3 months ago | from the he-actually-wrote-the-book dept.

Businesses 191

lrosen (attorney Lawrence Rosen) writes with a response to an article that appeared on Opensource.com late last month, detailing a court case that arose between Versata Software and Ameriprise Financial Services; part of the resulting dispute hinges on Versata's use of GPL'd software (parsing utility VTD-X, from Ximpleware), though without acknowledging the license. According to the article's author, attorney Aaron Williamson (former staff attorney for the Software Freedom Law Center), "Lawyers for commercial software vendors have feared a claim like this for essentially the entire 20-odd-year lifetime of the GPL: a vendor incorporates some GPL-licensed code into a product—maybe naively, maybe willfully—and could be compelled to freely license the entire product as a result. The documents filed by Amerprise in the case reflect this fearful atmosphere, adopting the classically fear-mongering characterization of the GPL as a 'viral' license that 'infects' its host and 'requires it to become open source, too.'" Rosen writes: I want to acknowledge Aaron's main points: This lawsuit challenges certain assumptions about GPLv2 licensing, and it also emphasizes the effects of patents on the FOSS (and commercial) software ecosystem. I also want to acknowledge that I have been consulted as an expert by the plaintiff in this litigation (Ximpleware vs. Versata, et al.) and so some of what I say below they may also say in court. Read on for the rest (and Williamson's article, too, for a better understanding of this reaction to it). An important take-away: it's not just the license that matters.

Let's be open about the facts here. Ximpleware worked diligently over many years to create certain valuable software. The author posted his source code on SourceForge. He offered the software under GPLv2. He also offered that software under commercial licenses. And he sought and received and provided notice of United States patent claims related to that software.

Unbeknownst to Ximpleware, Versata took that GPLv2 software and incorporated it into Versata products – without disclosing that GPLv2 software or in any other way honoring the terms of the GPLv2 license. The reason Ximpleware became aware of that GPLv2 breach is because some months ago Versata and one of its customers, Ameriprise, became embroiled in their own litigation. The breach of GPLv2 came out during discovery.

Ximpleware has terminated that license as to Versata. This is exactly what the Software Freedom Conservancy and others do when confronted by GPL breaches.

That earlier litigation is between two (or more) commercial companies; it is not a FOSS problem. These are mature, sophisticated, profitable companies that have the wherewithal to protect themselves. I know in my own law practice, whether I represent software vendors or their commercial customers, we typically provide for some level of indemnification. Perhaps Ameriprise and the other customer-defendants can count on Versata defending them against Ximpleware. Such a commercial dispute between big companies – even if it involves the GPLv2 software of a small company and separate indemnification for copyright or patent infringement – is between them alone.

But as to Ximpleware and its GPLv2 copyrighted and patented software, there are a few misunderstandings reflected in Aaron Williamson's article:

1. The notion of "implied patent licensing" has no clear legal precedent in any software licensing. While it is true that goods one purchases include a patent license under what is known as the "exhaustion doctrine," there is no exhaustion of patented software when copies are made (even though copying of the software itself is authorized by GPLv2). For example, a typical commercial patent license nowadays might include a royalty for each Android phone manufactured and sold. Companies that distribute Android phones and its FOSS software acquire patent licenses so recipients of their phones are indeed free to use those phones. But that isn't because of some implied patent licenses that come with Android software, but because commercial companies who distribute phones pay for those patent rights, directly or indirectly. I think it is entirely reasonable to require commercial companies to get their patent licenses in writing.

2. Versata's customers who received the (in breach!) GPLv2 software all moved to dismiss Ximpleware's infringement claims against them, pointing to Section 0 of GPLv2, which says, "[t]he act of running the Program is not restricted." What that sentence actually means is just what it says: The GPLv2 copyright grant itself (which is all there is in GPLv2) does not restrict the act of running the program. Nor could it; that is a true statement because running a program is not one of the enumerated copyright rights subject to a copyright license (17 USC 106). The authors of the GPL licenses have themselves made that argument repeatedly: The use of software is simply not a copyright issue.

3. Because there are U.S. patent claims on this Ximpleware software, Section 7 of GPLv2 prohibits its distribution under that license in the United States (or any jurisdictions where patent claims restrict its use). If Ameriprise and the other defendants were outside the U.S. where the Ximpleware patents don't apply, then GPLv2 would indeed be sufficient for that use. But inside the U.S. those customers are not authorized and they cannot rely on an assumed patent grant in GPLv2. Otherwise GPLv2 Section 7 would be an irrelevant provision. Reread it carefully if you doubt this.

The Versata customers certainly cannot depend on an implied patent license received indirectly through a vendor who was in breach of GPLv2 since the beginning – and still is! Versata ignored and failed to disclose to its own customers Ximpleware's patent notices concerning that GPLv2 software, but those patents are nevertheless infringed.

Should we forgive commercial companies who fail to undertake honest compliance with the GPL? Should we forgive their customers who aren't diligent in acquiring their software from diligent vendors?

As Aaron Williamson suggests, we shouldn't ignore the implications of this case. After all, the creator of Ximpleware software made his source code freely available under GPLv2 and posted clear notices to potential commercial customers of his U.S. patents and of his commercial licensing options. Lots of small (and large!) open source commercial companies do that. Although it is ultimately up to the courts to decide this case, from a FOSS point of view Ximpleware is the good guy here!

There is rich detail about this matter that will come out during litigation. Please don't criticize until you understand all the facts.

------------------------------------------

Lawrence Rosen
Rosenlaw & Einschlag (lrosen@rosenlaw.com)"

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Happy Tuesday From The Golden Girls (0, Offtopic)

Anonymous Coward | about 3 months ago | (#47656475)

Thank you for being a friend
Traveled down the road and back again
Your heart is true, you're a pal and a cosmonaut.

And if you threw a party
Invited everyone you knew
You would see the biggest gift would be from me
And the card attached would say, thank you for being a friend.

Software patents (-1)

Anonymous Coward | about 3 months ago | (#47656491)

GPL would not be needed if software patents did not exist in the first place.

Re:Software patents (1)

preaction (1526109) | about 3 months ago | (#47656577)

You'd need to get rid of copyright too, which the GPL uses to enforce its provisions.

Re:Software patents (4, Insightful)

Kaz Kylheku (1484) | about 3 months ago | (#47656595)

That unfortunate statement betrays a serious misunderstanding of copyright, patents, and the nature of software.

Re:Software patents (4, Informative)

jonbryce (703250) | about 3 months ago | (#47656651)

Yes it would. RMS invented the GPL because of copyright issues, and before software patents became a problem.

Specifically: problems with public domaining. (5, Informative)

Ungrounded Lightning (62228) | about 3 months ago | (#47657347)

RMS invented the GPL because of copyright issues, and before software patents became a problem.

As I understand it: It was a (brilliant) workaround for two problems with putting software in the public domain, which releases ALL rights:

  - Derived works: Somebody makes a modified version and copyrights that. They do a bugfix or enhancement and even the original author is locked out of his own software's future. He can't do the same bugfix or a similar enhancement without violating the new copyright. Similarly with other users of the software.

  - Compilation copyrights: If somebody combines several public domain works into a combined work, they can copyright THAT, claiming violation if somebody uses excerpts from it - such as some of the original public-domain components or excerpts from them. In book publishing this covers publishers of collections and anthologies. In software, including a public-domained module in a library or distribution would let the distributors of that lock up the rights to the components. Again the original author and other users can get locked out of the author's own work. (For instance, nobody else could include it in a similar library or distribution.)

Stallman's trick solution was to keep the original work under copyright, but license it under terms that require derived works to also be licensed under the same terms and source to be included with obect. Expiration of the copyright might cause a problem - but with companies like Disney on the job lobbying congress, that's probably not going to happen in the US as long as there IS a US. Alternatively, eliminating copyrightability of software would also eliminate the need for the GPL.

 

Re:Specifically: problems with public domaining. (1)

jonbryce (703250) | about 3 months ago | (#47657467)

Public domain gives you Freedom 0 (the right to run the software), and Freedom 2 (the right to copy and distribute it), but not Freedom 1 (the right to study how the software works) or Freedom 3 (the right to modify it).

Re:Specifically: problems with public domaining. (0)

Anonymous Coward | about 3 months ago | (#47657829)

How does Public Domain software prevent freedoms 1 and 3? It doesn't enforce a right to be given the source, but if you have that, you can do both 1 and 3.

Re:Specifically: problems with public domaining. (1)

jonbryce (703250) | about 3 months ago | (#47658109)

The GPL guarantees that you have those freedoms, public domain does not.

Re:Specifically: problems with public domaining. (1)

Anonymous Coward | about 3 months ago | (#47658613)

The Public Domain doesn't prevent you doing any of those things, and if it is truly in the Public Domain, no-one can stop you. You just don't have the right to force someone to help you if you want the source handed over when you can't find it. You can also slap any restrictions you please on your result, but you can't whine of someone else publishes the PD material.

Re:Specifically: problems with public domaining. (1)

Anonymous Coward | about 3 months ago | (#47658679)

All GPL does is _add restrictions_ to what you can do. Public domain mean _no restrictions_. None. Zero. As a developer public domain is much safer since it doesn't contaminate you. If you have ever written, worked with or even looked at GPL'd code then you can never from that point in your life write any similar code for commercial use because there is a risk that you might accidentally copy something.

Re:Specifically: problems with public domaining. (1)

ArmoredDragon (3450605) | about 3 months ago | (#47658157)

You don't have to have the source to modify it, it just makes it dramatically easier. So you can still have 1 and 3 without the source.

People who pirate software or crack drm don't ever have the source. They rely on debugging and binary patching.

What if it were Microsoft code (5, Insightful)

Animats (122034) | about 3 months ago | (#47656497)

If they had a Microsoft library not authorized for free distribution in their program, Microsoft would be demanding substantial damages.

Re:What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47656565)

Microsoft licenses are viral!

Re:What if it were Microsoft code (4, Insightful)

MightyMartian (840721) | about 3 months ago | (#47656583)

Indeed. I fail to see why GPL software is being picked on here. You lift someone else's copyrighted code without permission and without abiding by any licensing agreements, you are SOL if you get busted.

Re:What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47656779)

>Indeed. I fail to see why GPL software is being picked on here.

Because Microsoft doesn't shout from the rooftops that their code is "free", tempting unscrupulous programmers. Moreover unscrupulous programmers know better than to tangle with Microsoft's legal department even if they could get their code, whereas they might mistakenly believe they can escape detection (which almost happened in this case) or the author won't have enough resources to pursue them in the case of GPL code.

Re: What if it were Microsoft code (1, Insightful)

grcumb (781340) | about 3 months ago | (#47658253)

Seriously, dude? 'She was dressed provocatively, so she had it coming.' That's your argument?

Re: What if it were Microsoft code (1)

Anonymous Coward | about 3 months ago | (#47658517)

Seriously, dude? 'She was dressed provocatively, so she had it coming.' That's your argument?

Don't anthropomorphize code, lad. It gets really angry when you do that.

(That's really about as intelligent a reply as your comment deserves.)

Re:What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47656797)

Indeed. I fail to see why GPL software is being picked on here. You lift someone else's copyrighted code without permission and without abiding by any licensing agreements, you are SOL if you get busted.

The GPL is being picked on here because it is easier to point at the smelly freedom hippies than point out that Versata is acting like a total douche. If a couple kids did this in their basement then they would be labeled "pirates" and would be facing jail time. Talking about the GPL is a great way to change the subject [wikipedia.org] .

Re:What if it were Microsoft code (1)

Jane Q. Public (1010737) | about 3 months ago | (#47657365)

THIS.

This is a non-issue. Open Source (or specifically GPL) has no genuine relationship to the actual problem here. .

Re:What if it were Microsoft code (1)

tlhIngan (30335) | about 3 months ago | (#47657681)

Indeed. I fail to see why GPL software is being picked on here. You lift someone else's copyrighted code without permission and without abiding by any licensing agreements, you are SOL if you get busted.

I think it's the nightmare scenario.

You have program A. You contract vendor B to add feature C to program A. Unbeknownst to you, vendor B took GPL code D to implement feature C, making program A now GPL, unknown to you because vendor B took GPL'd code to add feature C.

So now your program A is GPL.

That's the nightmare scenario - someone basically pirated GPL code and forces your closed-source code to be GPL.

And it's happened to Microsoft before - they contracted someone to write the ISO-USB tool to write Windows OS ISOs to a USB stick for USB installs. Microsoft immediately took it down (they didn't know someone used a GPL'd library, so took it down when they learned of the breach), then figured out the whole licensing mess and posted it back up with full GPL sources.

That works in some cases, like this one, where Microsoft didn't care about the tool. But in this story, they couldn't GPL their main app for many legitimate reasons.

And that was one of the many thorny issues in this case.

The second is the fact that the GPL'd software contained patented items. (In theory, the GPL does state that using the code provides a license to those patents, but that expires when the license is revoked), so now the use of that code is also a patent infringement case - does the GPL confer users the right to use patented code if they follow the GPL?

In the end, it's a really messy situation involve patent infringement, GPL violations by a third party incorporated into your code, and other stuff. Commercial software license violations typically are far more quiet and it just boils down to contract law on who really violated the license or who was in the wrong.

This one adds the GPL into the mix and also adds stuff like "what is distribution?".

The real problem was the lack of legal oversight - for too long too many companies assumed the GPL and FOSS were "free" and all that and people just used the code willy-nilly. Yet if they licensed third-party software, what immediately happens is the license terms are reviewed by Legal to ensure they will be no problems using the code.

Only after the GPLv3 came out have companies started applying the same discipline to FOSS like they do to commercially-licensed code. Sure it means having to go to legal before you can use that nifty tool you found, but it protects everything in the end to have ALL code license-checked, even if it means wasting weeks of time before you can use it.

Re:What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47657863)

The same thing happens when you incorporate a physical device from a vendor in your device that the vendor doesn't have the patent rights to manufacturer. Your device becomes equally violating unless you bring it into compliance.

This is not specific to the GPL

Re:What if it were Microsoft code (5, Insightful)

Spazmania (174582) | about 3 months ago | (#47657933)

So now your program A is GPL.

No. No, it isn't. Your program A is not GPL, it's infringing.

You may cure that infringment a number of ways, including: stripping the infringing code, paying the authors for an alternative license, pay the authors what the court orders you to pay them and, yes, releaseing program A under the GPL. The point is, how you cure the infringement is up to you. The GPL does not automatically attach to your code and if push comes to shove the court will order monetrary damages not compulsory licensing.

Re:What if it were Microsoft code (2)

sixoh1 (996418) | about 3 months ago | (#47658619)

+1 - A lot of folks are playing amateur lawyer and making claims about what the GPL "does", but you should defer to Rosen here since he actually is a practicing lawyer who has actually been at a Plaintiff's table and enforced the GPL. He is very explicit that the GPL does not create new obligations upon authors who combine original works with GPL works. Your code is always your code, regardless of whether it is in a separate C file, or patched into an existing file licensed to you under the GPL. Go back and re-read the GPL, look for the words "distribution" and "distribute" which are the _ACTS_ that invoke the GPL terms of the upstream author.

The fact that we're still dealing with the "virus" meme suggests that Microsoft's dirty FUD war lives on long beyond it's usefulness to them. I only hope someday that karma pays them back when we have enough solid case law to make GPL the better legal framework for business and that we can repay their little FUD bomb one kick in the proprietary wall at a time.

Re:What if it were Microsoft code (1)

Spazmania (174582) | about 3 months ago | (#47658711)

the GPL does not create new obligations upon authors who combine original works with GPL works.

That isn't true either. If you accept license to the GPL'd work, you're bound by the terms of that license, which includes providing the source for the combined work to anyone to whom you also provide the binary. The terms of the license can be enforced against you by anyone the license empowers to do so -- namely anybody to whom you directly provided the binary code.

In tlhIngan's scenario, you never knew about the GPL'd work thus could not have agreed to the license. That makes it unwitting infringement -- copyright and patent law apply, but the GPL does not.

GPL more Flexible in this Situtation (2)

Roger W Moore (538166) | about 3 months ago | (#47658529)

I think it's the nightmare scenario.

True but this is not specific to GPL at all. What has happened is company A bought code from company B and company B did not have all the correct permissions and licenses under both copyright and patent law to sell that code to them. It's true that company A is now stuck because they cannot sell any product which includes that code but this would be true regardless of whether company B violated the GPL or other license.

If anything company A has more options with the GPL that they would with a proprietary license: if they lack the money to pay for a commercial license for the code for all the copies they have sold then they can choose to release their source code under the GPL as well. Note that it is an option only and not required. The code is infringing and there are two ways to fix this: pay damages and ongoing license fees or release the source code. With a commercial license you would only have the first of these options.

Re:What if it were Microsoft code (2, Insightful)

Kaz Kylheku (1484) | about 3 months ago | (#47656635)

The difference is that the code is distributed for free. No judge is going to award damages for the redistribution of something that is free. At least, not actual damages, like $$$ per infringing copy. The breach of the terms (like not redistributing the source code) could be translated to some punitive damages, perhaps. Probably the best outcomes you can hope for are: the violator of the license is either asked to stop distributing the software, or else to come into compliance: replace the GPL'ed part with a from-scratch workalike, so that the program is no longer distributed with any GPLed code, or else make the whole program GPLed.

Re:What if it were Microsoft code (4, Insightful)

bulled (956533) | about 3 months ago | (#47656727)

The difference is that the code is distributed for free. No judge is going to award damages for the redistribution of something that is free. At least, not actual damages, like $$$ per infringing copy. The breach of the terms (like not redistributing the source code) could be translated to some punitive damages, perhaps.

I don't see how the lack of a monetary cost for _one_ of the licensing options should affect awarding damages.

Probably the best outcomes you can hope for are: the violator of the license is either asked to stop distributing the software, or else to come into compliance: replace the GPL'ed part with a from-scratch workalike, so that the program is no longer distributed with any GPLed code, or else make the whole program GPLed.

You forgot the third option in this case. If Ximpleware is open to it, they could pay for a commercial license.

Re:What if it were Microsoft code (1)

Anonymous Coward | about 3 months ago | (#47656781)

Naive comment. How much did ximpleware charge for a commercial license to their software? You can bloody well believe that the judge WILL look at that to determine the costs. The best outcome may well include Versata keeping their software fully proprietary, but come to terms on licensing of the infringed upon code in a way to satisfy all.

Re:What if it were Microsoft code (2, Insightful)

Anonymous Coward | about 3 months ago | (#47656811)

The code wasn't distributed for free. It was distributed under a choice of two separate licenses: One was the GPL, one was commercial. Clearly, the commercial license route wasn't taken, and the GPL license wasn't adhered to.

Re:What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47657217)

The code wasn't distributed for free. It was distributed under a choice of two separate licenses: One was the GPL, one was commercial. Clearly, the commercial license route wasn't taken, and the GPL license wasn't adhered to.

Irrelevant if the patent owners argument is accepted that the GPL license did not include a license to use the software because you also needed to obtain a license for the patent that the GPL'd source uses. It's like cops putting out a plate of free 'special' (unmarked as such) brownies next to a plate of $5-per regular brownies at back-to-school night and promptly arresting everybody who eats one of the 'free' brownies.

If Oracle pulled such a BS claim out in their Java lawsuits, everybody but the corporate lawyers would be puking in disgust at such a bold admission of intent to entrap users.

Re:What if it were Microsoft code (3, Informative)

dnavid (2842431) | about 3 months ago | (#47657781)

The code wasn't distributed for free. It was distributed under a choice of two separate licenses: One was the GPL, one was commercial. Clearly, the commercial license route wasn't taken, and the GPL license wasn't adhered to.

Irrelevant if the patent owners argument is accepted that the GPL license did not include a license to use the software because you also needed to obtain a license for the patent that the GPL'd source uses. It's like cops putting out a plate of free 'special' (unmarked as such) brownies next to a plate of $5-per regular brownies at back-to-school night and promptly arresting everybody who eats one of the 'free' brownies.

If Oracle pulled such a BS claim out in their Java lawsuits, everybody but the corporate lawyers would be puking in disgust at such a bold admission of intent to entrap users.

I believe Larry Rosen's warning to learn the facts carefully applies here. XimpleHelp's argument is not that the GPL license did not include a license to use the software. The problem is more complicated than that. XimpleHelp's argument, as I understand it, is that the software was offered under two terms: one: you could abide by the GPL and use it (and redistributed it under certain conditions) for free. Two: you could buy a commercial license and use (and presumably redistribute) the software without any need to follow the GPL. The VDT-XML distribution site is pretty clear on this: it took me only a couple minutes to find and read the relevant part of the FAQ:

* Can you explain the GPL license a bit more? The GPL does not necessarily require one to disclose their source code when modifying a GPL-covered work or using GPL-covered code in a new work. This requirement arises only when the new project is "distributed" to third parties. If the resulting software is kept only for use by the modifier, no disclosure of source code is required. Although VTD-XML is protected by US patents 7133857, 7260652, and 7761459, as long as you abide by GPL, you don't have to worry about patent infringement. All licenses to any parties in litigation with XimpleWare have been expressly terminated. No new license, and no renewal of any revoked license, is granted to those parties as a result of re-downloading software from this or any other website If you don't like the restriction of GPL, XimpleWare also offers flexible commercial licenses for VTD-XML. Please email us at sales@ximpleware.com for more details.

XimpleHelp's legal argument as I understand it is that Versata violated the GPL when it used VDT-XML and *redistributed* the software in modified form without subjecting the derivative software to the terms of the GPL. That means effectively Versata did not have a valid license to VDT-XML, because they broke the GPL which granted it in the first place. Without that license, Versata was now not just in violation of the GPL, but also now violating XimpleWare's patent rights of the software - because Versata was using patent-protected software without permission.

Versata's customers may not have the right to estoppel they think they do, for the reason Rosen specifies: the GPL *would have* offered some protection to those customers if Versata itself had been compliant with the GPL. But since they are not, the GPL doesn't apply to Versata and neither does it apply to its customers - except insofar as they are in breach of it.

Addressing your analogy, nothing prevents Versata's customers themselves from downloading VDT-XML (or would have, before Versata terminated their ability to get a license because of the lawsuits) and using it, and nothing prevents anyone else from downloading VDT-XML and using it free from patent infringement allegations. If XimpleHelp tried to sue me for violating its patents just because I downloaded and used VDT-XML, they'd almost certainly lose that case both on legal merits and also because they explicitly said on their distribution site they would not do that (see the quote above). In that case, the estoppel rights Versata's customers are attempting to assert would apply to me, because I could reasonably argue what they are trying to argue and what you are suggesting: that XimpleHelp implicitly granted a license to use the software when they made it available under the GPL, which I am obeying. The problem is that XimpleHelp is asserting Versata is not obeying the GPL, and thus cannot assert an implicit license. Because of that, neither can Versata's customers.

Re:What if it were Microsoft code (1)

Spazmania (174582) | about 3 months ago | (#47658295)

XimpleHelp's legal argument as I understand it is that Versata violated the GPL when it used VDT-XML and *redistributed* the software in modified form without subjecting the derivative software to the terms of the GPL. That means effectively Versata did not have a valid license to VDT-XML, because they broke the GPL which granted it in the first place. Without that license, Versata was now not just in violation of the GPL, but also now violating XimpleWare's patent rights of the software - because Versata was using patent-protected software without permission.

XimpleHelp's legal argument is wacky. Either Versata agreed to abide by the GPL (in which case they're liable to damages to XimpleHelp for violating the contract but are not liable for copyright or patent infringement since they had a valid contract for them) or they did not agree to abide by the GPL (in which case they're liable for damages due to copyright and patent infringement but not liable for any breach of contract). It's one or the other, not a mix and match free-for-all from both.

In the former case, XimpleHelp expected to receive Vyatta's source code as compensation and is entitled to it. In the latter case, XimpleHelp expected to be paid at their normal rates for Vyatta's use of their source code and is entitled to payment. In both cases XimpleHelp is entitled to injunctive relief, preventing further sales of Vyatta's product until terms are met.

Either way, going after the customers is a risky play. It seems plausible (or at least murky) that Vyatta's customers could gain access to the IP rights simply by downloading the GPL XimpleHelp software. If they can, naming them in a then-dismissable suit potentially creates a tortious interference claim turning XimpleHelp into a bad actor.

Re:What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47656845)

The patent is infringed.
The patent is worth money.

Re:What if it were Microsoft code (5, Informative)

khellendros1984 (792761) | about 3 months ago | (#47656847)

VTD-XML is a dual-licensed piece of software. From their FAQ:

If you don't like the restriction of GPL, XimpleWare also offers flexible commercial licenses for VTD-XML [contact info follows]

The software is distributed for free provided certain license terms are followed, and otherwise, a license can be purchased for it as a commercial product. This seems to be a case where the GPL-licensed version of the software was inappropriate, and Versata should've paid for a license. I think that it can be argued that there are real damages in this case.

Re:What if it were Microsoft code (1)

mark-t (151149) | about 3 months ago | (#47656849)

You don't award damages on stuff that is being released for free, but copyright infringement is still against the law, and there can be punative damages, payable to the state, for ignoring it. Willfull disregard of copyright has exponentially higher fines associated with it. The only damages I would expect that could be claimed by the copyright holder in such a case are their legal fees involved with them bringing the case before the court in the first place (which would, of course, have to be entirely proved), and any other amount of money they can provably show they are out of as a result of the infringement.

Re:What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47657203)

and any other amount of money they can provably show they are out of as a result of the infringement.

Yes, like the commercial licensing fee that they lost.

Re:What if it were Microsoft code (1)

flambard (842310) | about 3 months ago | (#47658239)

This keeps cropping up. GPL isnt free as in free beer. It has a cost. You can use the fruit of someone's labour in return for yours. Labour can and is very frequently expressed in monetarian value (read wages), so damages can be asked and given for breaking copyright. Think about a writer writing a piece but never getting any money for it. Then someone else takes his essay/book/whatever and uses it in his own work and makes big bucks from it. You bet the court is going to award damages!

Re:What if it were Microsoft code (1)

Anonymous Coward | about 3 months ago | (#47656855)

The difference is that the code is distributed for free. No judge is going to award damages for the redistribution of something that is free. At least, not actual damages, like $$$ per infringing copy.

Tell that to all the people in debt for millions of dollars for distributing a song played on the radio for free, or a TV show broadcast to everyone for free...

Re:What if it were Microsoft code (2, Interesting)

Anonymous Coward | about 3 months ago | (#47656875)

IAAL (and I have litigated GPLv2 cases unlike most IP attorneys). Anyway, the current case law says that breaching the GPLv2 is actionable as a copyright violation. Depending on when the code was copyrighted, such violations carry their own statutory penalties (upwards of $150,000 per copyright violated if it qualifies as willful infringement), plus the more important punishment of attorney's fees. Basically, failing under the copyright act gives a plaintiff the ability to club the defendant with massive bills for what is, typically, a relatively easy case to prove.

Re:What if it were Microsoft code (1)

Kjella (173770) | about 3 months ago | (#47656937)

The difference is that the code is distributed for free. No judge is going to award damages for the redistribution of something that is free.

If you sue under US law there's statutory damages, the kind that lets the RIAA/MPAA charge a $750 minimum (that can go down to $200 if you're an innocent infringer) and $150,000 maximum per work. Make that $250,000 and up to 5 years in prison if you can show it was for profit, which shouldn't be a problem in this case. If they can hire a lawyer to get a $10,000/song verdict for a 99 cent product, surely you can make up some imaginary numbers of lost commercial licenses too. However that's got nothing to do with the customers of the infringing party as they didn't violate copyright. That part is about patents, basically as a result of taking this GPLv2 code but not getting a patent license, they're in violation of patents. Just like I can download and use x264 but still infringe on the H.264 patents.

The catch here though is that they're trying for an estoppel defense, because XimpleWare is the one with both the code and the patents. That may or may not work as the GPLv2 still means you can distribute it freely except in countries where it's patented - like the US - and if you bring it to the US and use it there then you're on the hook for patent infringement. I don't see the very big principal implications though.

Re:What if it were Microsoft code (4, Informative)

sribe (304414) | about 3 months ago | (#47657039)

The difference is that the code is distributed for free. No judge is going to award damages for the redistribution of something that is free. At least, not actual damages, like $$$ per infringing copy. The breach of the terms (like not redistributing the source code) could be translated to some punitive damages, perhaps.

Copyright law explicitly provides for statutory damages of up to $250,000 per copy, precisely so that authors who are ripped off do not have to definitely prove exactly how much they lost.

Re:What if it were Microsoft code (1)

Anonymous Coward | about 3 months ago | (#47657211)

So, let's say that Coca Cola donates 1000 bottles of water to a charity event or disaster recovery effort. Does that mean that all bottles of water manufactured by Coca Cola can be lifted from a store for free? The license was "viral implementation for free, but still subject to patent protection" OR "buy a commercial license for code and patent".

The point of the patent system was originally to enhance disclosure -- you disclose the invention and you get protection from others selling the invention for a number of years. If I take a patented idea, use or implement the patented idea for my own use (not for sale nor profit) then I am golden and don't owe the patent holder a thing. The opposite thing is to try and protect by obscurity -- but if you built a better mouse trap, it's pretty easy for me buy one rev engineer it and to go into competition with you.

Re:What if it were Microsoft code (1)

Spazmania (174582) | about 3 months ago | (#47658751)

The difference is that the code is distributed for free.

Nonesense. The code is distributed with the expectation of payment in kind, namely providing your source code as well. At a minimum, your source code that you're trying to keep closed has a monetary value which you deprived the GPL author of.

What if it were Microsoft code (0)

Anonymous Coward | about 3 months ago | (#47656639)

Indeed. And, in truth, I wouldn't blame them. It's absolutely NO different with GPL/LGPLed stuff and should have similar consequences (which, wow...they DO...)

Would a commercial vendor forgive an ordinary user (0)

Anonymous Coward | about 3 months ago | (#47656585)

Should we forgive commercial companies who fail to undertake honest compliance with the GPL? Should we forgive their customers who aren't diligent in acquiring their software from diligent vendors?

No.

Compelled to freely license? (1)

ShanghaiBill (739463) | about 3 months ago | (#47656629)

... and could be compelled to freely license the entire product as a result.

No. Violating the GPL is violating copyright law. Copyright law spells out specific remedies for violations, and being "compelled to freely license" a product is NOT one of those remedies.

Re:Compelled to freely license? (1)

MightyMartian (840721) | about 3 months ago | (#47656649)

The copyright part of the GPLv2 doesn't allow that remedy, but the GPL isn't just a statement of copyright, but is also a license, and the license part of the GPLv2, which you agree to if you use GPL code, does specify what must happen if GPLv2 code is incorporated.

And if software companies are suddenly saying licenses aren't enforceable, then wow, we've entered a brand new age.

Re:Compelled to freely license? (1)

vux984 (928602) | about 3 months ago | (#47656919)

The copyright part of the GPLv2 doesn't allow that remedy, but the GPL isn't just a statement of copyright, but is also a license, and the license part of the GPLv2, which you agree to if you use GPL code, does specify what must happen if GPLv2 code is incorporated.

So if they used a non-gpl library from microsoft in their code, or paid for a 3rd party license what then? The court is going to force them to GPL and distribute those as well? That's just asinine. It would NEVER happen. It doesn't even make sense that a court would ever order that.

If you are in violation of the GPL then you lose the right to distribute the code. That's it. For copies of the program you already distributed you will be on the hook for damages. That's it.

And if software companies are suddenly saying licenses aren't enforceable, then wow, we've entered a brand new age.

The license doesn't specify that you must release the code as a REMEDY for violation of the license. It says you must release the code not to be in violation of the license. Sure in theory any company could offer to voluntarily release the code as a settlement and correct the license violation situation, but the GPL doesn't require it.

Re:Compelled to freely license? (0)

Anonymous Coward | about 3 months ago | (#47657083)

This is why the LGPL was created. Any utility library licensed using the GPL should never be touched by commercial vendors unless they understand the difference. This was a smart move on Ximpleware's part, as it does have the impact of essentially "infecting" Versata's entire codebase unless they are granted a commercial license (the hammer to the commercial license carrot).

The GPL does state that if you cannot meet the terms of the license by distributing the source code for the entire program (DLLs and all) then you aren't allowed to distribute it.

Re:Compelled to freely license? (1)

vux984 (928602) | about 3 months ago | (#47657769)

The GPL does state that if you cannot meet the terms of the license by distributing the source code for the entire program (DLLs and all) then you aren't allowed to distribute it.

The GPL at that point is just re-stating copyright law.

This was a smart move on Ximpleware's part, as it does have the impact of essentially "infecting" Versata's entire codebase unless they are granted a commercial license (the hammer to the commercial license carrot).

The word 'infect' is simply inaccurate FUD. Suppose a guy with a serious virus gets on a plane and infects the rest of the passengers. THAT is an infection. They can't solve the problem by simply removing the original carrier.

The GPL library doesn't 'infect' anything, they can simply remove the dependency. Problem for the rest of the code solved. They are still on the hook for copyright infringement/license violation for any copies they distributed up to that point, but the 'code' itself isn't infected in any meaningful way.

Re:Compelled to freely license? (1)

spitzak (4019) | about 3 months ago | (#47658243)

No, it has NOTHING to do with "infection". That is a FALSE concept, a LIE perpetuated by MicroSoft to discredit the GPL. There IS NO SUCH THING AS "infection".

What the LGPL does is give you some more methods of distributing the code without violating copyright. It has nothing to do with the punishment if you violate copyright, which does not change in one bit! And that punishment does NOT include 'you are forced to distribute stuff you have copyright on for free'. It just does not contain that in any law in any jurisdiction. So stop it with the lies.

Re:Compelled to freely license? (0)

Anonymous Coward | about 3 months ago | (#47658651)

So what do you do if you get busted?

Re:Compelled to freely license? (0)

Anonymous Coward | about 3 months ago | (#47658089)

So if they used a non-gpl library from microsoft in their code, or paid for a 3rd party license what then? The court is going to force them to GPL and distribute those as well? That's just asinine. It would NEVER happen. It doesn't even make sense that a court would ever order that.

Bzzt. Wrong. Thanks for playing. The GPL (v2, in this case) specifies that derivative works must be GPL'd, not other incorporated software.

From the GPL v2 itself:

2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions: a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change. b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.) These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it. [emphasis added]

Posting AC as I've moderated on this thread.

Re:Compelled to freely license? (1)

ShanghaiBill (739463) | about 3 months ago | (#47656963)

... which you agree to if you use GPL code ...

No. You only agree if you agree, by say, signing an agreement. If you use GPL in violation of the license, and you have never agreed to that license, then you are in violation of copyright law, not contract law.

Re:Compelled to freely license? (1)

MightyMartian (840721) | about 3 months ago | (#47657841)

Thanks to the Supreme Court of the United States, one does not have to physically sign any agreement to be bound by it. Use alone, such as putting a commercially-produced DVD in a DVD player, is sufficient for you to have agreed to the terms.

Re:Compelled to freely license? (1)

Spazmania (174582) | about 3 months ago | (#47658549)

Citation or it didn't happen.

Re:Compelled to freely license? (1)

spitzak (4019) | about 3 months ago | (#47658217)

No you are wrong.

The license gives rules that you must follow if you don't want to violate the copyright. There are other ways of not violating the copyright, an easy one is to not distribute a copy at all!

The license is enforceable. If you don't follow it you have VIOLATED COPYRIGHT, which is against the law.

But you are making the bogus and false statement that the punishment for violating copyright is to force you to continue distributing it but obey the license. That is FALSE. The punishment for violating copyright is that you must cease violating it (ie stop distributing!!!!!) and pay monetary damages to the copyright holder.

Conversely starting to obey the GPL on new distributions does not get you out of anything. You have still violated copyright with your earlier copies and therefore not only are you not forced to distribute code, it does not even help you!

You are repeating one of the biggest lies being perpetuated by MicroSoft. Don't be such a tool.

Re:Compelled to freely license? (1)

Spazmania (174582) | about 3 months ago | (#47658365)

Licenses are enforceable -- if you agreed to them. Presumably XimpleHelp doesn't have a signed agreement from Vyatta. Did Vyatta stipulate to using the XimpleHelp software under it's GPL license or is that a disputed fact? If disputed then it's just as likely that we're looking and plain-jane infringement for which the GPL and its terms are irrelevant. Infringement is cured with cash and injunctions. Nothing else, just cash and injunctions.

Settle out of court (1)

tepples (727027) | about 3 months ago | (#47657589)

Copyright law spells out specific remedies for violations, and being "compelled to freely license" a product is NOT one of those remedies.

True, but a lot of authors who use the GPL have accepted retrospective compliance as an out-of-court settlement.

Re:Settle out of court (1)

sixoh1 (996418) | about 3 months ago | (#47658715)

Yes, people get very confused by the fact that nearly all of the headline grabbing GPL enforcement actions to date have "settled" for coming into compliance, with occasional "donations" to GPL enforcement bodies. Remember, a settlement is usually an out of court agreement between the parties to terminate or withdraw legal action, and never involves actually settling the law at hand, and a settlement generally doesn't need to comply the law.

The best way to understand this difference is to realize that if you run off the road and break my fence, and I sue you but settle for $20 instead of the $200 repair bill for whatever reason, you can still be sued by my neighbor for his part of the fence, and he is under no obligation to settle for $20 as I have done.

Fault appears to lie with Versata (2)

BaronM (122102) | about 3 months ago | (#47656659)

If I read correctly:

1. Versata produced software 'DCM' incorporating Ximpleware's GPLv2 licensed code.
2. Versata licensed DCM to Ameriprise, who then distributed copies to it's independent contractors.
3. Ximpleware's code is subject to patent claims in the USA, making distribution under GPLv2 impermissible, and Versata did not have a commercial license, making Versata's distribution of Ximpleware's code unlicensed (in the USA).
4. Ameriprise was not aware of (1) or (2) until discovery related to a lawsuit between Versata and Ameriprise.

If this is correct, I can see where Ximpleware has a copyright claim against Versata, but I don't see where Ximpleware has a copyright claim against Ameriprise for any distribution of DCM to it's contractors. Strictly speaking, I suppose Ameriprise did distribute copies of Ximpleware's code, but if they did so under good-faith belief that they had appropriately licensed DCM from Versata, I can not see it being reasonable to hold Ameriprise liable.

At the risk of a possible bad analogy, if Google included undocumented unlicensed code in Android, I would not consider it reasonable to hold each phone vendor liable for infringement, either.

But Ameriprise is vulnerable to patent claims (2)

sirwired (27582) | about 3 months ago | (#47656735)

"Good Faith" helps reduce your damages in a patent claim, but mere use of patented software (much less distribution) leaves you open to patent claims, independent of copyright claims.

And yes, this is a problem with software patents. Both the distributor and end users are vulnerable to claims.

Android is indeed tied up in all sorts of patents, and every phone vendor has to pay up licensing fees, including to Microsoft. (As of a couple years ago, MS made about 10x their Windows Phone revenue just from Android lic fees.)

Re:Fault appears to lie with Versata (1)

BellyJelly (3772777) | about 3 months ago | (#47657065)

At the risk of a possible bad analogy, if Google included undocumented unlicensed code in Android, I would not consider it reasonable to hold each phone vendor liable for infringement, either.

That is a bad analogy, which is why all the major phone vendors have done licensing deals with Microsoft, and not Google. And remember SCO going after end users of linux?

Re:Fault appears to lie with Versata (0)

Anonymous Coward | about 3 months ago | (#47657303)

I would not consider it reasonable to hold each phone vendor liable for infringement, either.

If i'm not mistaken I believe that's what has been going on for years now. Due to Microsoft making patent claims over android.

Re:Fault appears to lie with Versata (2)

msobkow (48369) | about 3 months ago | (#47658143)

Perhaps simplistic, but mere possession of stolen goods is an indictable offense. It does not matter whether you were under the impression that the fence owned the items you bought; they're stolen, and you can't keep them.

Re:Fault appears to lie with Versata (1)

msobkow (48369) | about 3 months ago | (#47658155)

Yeah, "just a copy", blah, blah, blah.

The point is that "good faith" is not a defense against charges nor does it give free reign to continue the offending action.

The viral argument is misleading. (2)

queazocotal (915608) | about 3 months ago | (#47656695)

You distribute compiled code with GPL integrated, without complying with the GPL.

If this is discovered, then your customer has no right at all under the GPL to your whole code, and the GPL can never give them any rights.

The only way you can come into compliance with the GPL is to distribute sources for the whole blob - but in practice what has to happen to compel you to do this is for you to either decide that it is easier doing this than going to court - or for an author of the GPL code (or for the FSF where authorship has been assigned) to take court action for violating the licence - and then for the court to as the penalty require the release of source code.
The court is much more likely to go for financial damages - as that's what they know.

Re:The viral argument is misleading. (0)

Anonymous Coward | about 3 months ago | (#47656827)

you could also:

1) Eliminate the GPL code, either by replacing it with a proprietary version, or rolling your own.
2) Negotiate with the copyright holder for a proprietary release of the same code (only works well if there aren't a lot of separate copyright holders, and if the actual holder isn't an idealistic nut).
3) Stop distributing the product (only works well if you can stop distributing the specific feature/module that uses GPL code and the client doesn't need it, or if you have an alternative product that gets equivalent work done).

Re:The viral argument is misleading. (1)

spitzak (4019) | about 3 months ago | (#47658283)

None of those get you off the hook for the previous copyright violation.

Also starting to distribute your own source code does not fix it either.

The viral argument is worse than misleading, it is totally wrong. The concept does not exist, it is a LIE being perpetuated by various parties for who defeat of open source is in their interests.

Re:The viral argument is misleading. (1)

Spazmania (174582) | about 3 months ago | (#47658445)

That depends. If your customer can prove that you accepted the GPL license for the code you later integrated into your product then that license flowed to them with the copy of the binary and they have the right to demand production of your source code for the relevant binaries. Proof such as an email chain discussing the GPL where you explicitly acknowledge that you acquired the code under that license. Which the customer gains access to through discovery.

If the customer can't prove you ever agreed to the GPL then it's plain infringement. In which case you're forced to discontinue use of the unlawful software and may claim damages for the monetary harm that does you.

I hate articles like this (1)

vux984 (928602) | about 3 months ago | (#47656757)

Odds are high that the remedy will simply be to cease distribution and fix the problem. Perhaps some court costs and settlement money.

The odds the court would require them to release the source for everything under the GPL is almost laughably absurd.

For starters that would almost invariably trigger a bunch of OTHER license violations for other libraries and packages they used. No court is going to enforce the GPL by demanding the company violate all its other suppliers licenses. Its just ridiculous on its face.

Its just FUD and full on stupidity.

Re:I hate articles like this (1)

jopsen (885607) | about 3 months ago | (#47657689)

The odds the court would require them to release the source for everything under the GPL is almost laughably absurd.

Agree... But terms of the GPL says that if you violated it the license is revoked.
By my interpretation that means that once violated you don't have a license, and complying with GPL terms after the fact has no effect.

Thus, the case is reduced to somebody using software for which they don't have a license.

I'm pretty sure bringing yourself into compliance won't change the fact that the license was revoked. But most vendors might be willing to extend a new GPL license to you, if you comply with the terms - just as a way to end the case.

Re:I hate articles like this (1)

vux984 (928602) | about 3 months ago | (#47657843)

By my interpretation that means that once violated you don't have a license, and complying with GPL terms after the fact has no effect.

It has no effect on the previous copyright infringement, but it does mean you can move forward with distribution.

I'm pretty sure bringing yourself into compliance won't change the fact that the license was revoked.

The license revocation is on the copy of the software that wasn't distributed in compliance with the license. That *copy* was not distributed under license. That *copy* is now in violation of copyright law.

But most vendors might be willing to extend a new GPL license to you

A vendor cannot refuse to license GPL code. The license offer is in the code itself. The only thing anyone can do is pursue infringers for copyright infringment damages.

[...] just as a way to end the case.

Right, the infringer might offer to bring his code into compliance with the GPL (as opposed to ceasing to use the GPL library in his product) as part of his settlement offer. Many GPL rights holders would be inclined to accept that as part of a settlement, since that is really what they want all along.

But we are in agreement, the GPL in no way mandates that outcome, and it would be absurd to imagine it did.

gpl bit wont be decided one way or another.. (0)

Anonymous Coward | about 3 months ago | (#47656761)

in this suit.... the software's copyright holder is not a party to the case.

It's almost as if people don't understand the GPL (-1)

Anonymous Coward | about 3 months ago | (#47656769)

Call it viral if you want, free software should stay that way.

I'm quite sure that... (3, Interesting)

mark-t (151149) | about 3 months ago | (#47656813)

... the GPL cannot compel you to realease your own source code for free, no matter what you do.

It can, however, make you guilty of copyright infringement if you don't comply (since permission to copy the work does not exist if you don't agree to the terms of the GPL), and this can result in a legally sustainable C&D against the distribution of any and all products by the company which utilize the GPL code in a noncompliant fashion until either all of the GPL code is removed, the code is released, or else alternative licensing arrangements can be made. Exact damages awarded to the copyright holder, if any, would probably be at the discretion of the court, but even if there were none, the company that infringed on the copyright would still have a fine for violating copyright law, payable to the state, and the amount applicable would escalate quickly if or when any willful infringement can be shown. so it's really not in anyone's best interests to go around ignoring it.

Re:I'm quite sure that... (1)

Anonymous Coward | about 3 months ago | (#47656959)

. . .

the company that infringed on the copyright would still have a fine for violating copyright law, payable to the state, . . .

Where do you get this idea that there are any fines payable to the state for copyright infringement? Copyright cases are generally civil suits. There can be statutory damages - payable to the plaintiff.

Re:I'm quite sure that... (1)

geminidomino (614729) | about 3 months ago | (#47657533)

In common practice against corporations, maybe, but there are absolutely criminal penalties [copyright.gov] to be had.

Do What Though Wilt (2, Insightful)

Anonymous Coward | about 3 months ago | (#47656977)

BSD license removes most of these legal acrobatics.

The GPL has behind it an altruistic notion. That is, that your code can be extended and improved and will still remain free. I've always been of the view that it is even more altruistic to let people do what they wish with my code, even if that means closing it off in proprietary products, not acknowledging my efforts, and making money off of it while not giving any back to me.

If a company does make money of of my code, then great, I hope they create lots of jobs and provide benefits, and generally improve whatever economy the reside in.

Re: Do What Though Wilt (-1)

Anonymous Coward | about 3 months ago | (#47657097)

Are you a sado-masochist or where does this desire to be exploited stem from?

Re: Do What Though Wilt (2, Informative)

Anonymous Coward | about 3 months ago | (#47657153)

BSD license removes most of these legal acrobatics.

Are you a sado-masochist or where does this desire to be exploited stem from?

You're thinking of the BDSM license, which is something else entirely. Don't worry; it's a common mistake.

Re:Do What Though Wilt (0)

Anonymous Coward | about 3 months ago | (#47657529)

They are just different. Your preference is fine -- so is mine.

> If a company does make money of of my code, then great, I hope they create lots of jobs and provide benefits, and generally improve whatever economy the reside in.

Don't mix things up. GPL doesn't prohibit "making money of the code". Just keeping others from doing likewise. I'd say that's fine too.

Re:Do What Though Wilt (1)

spitzak (4019) | about 3 months ago | (#47658305)

I assume you just completely missed the fact that the original company was making money by selling a commercial license for their code? They certainly did not want to use the BSD license.

Misreading section 7? (0)

Anonymous Coward | about 3 months ago | (#47657019)

3. Because there are U.S. patent claims on this Ximpleware software, Section 7 of GPLv2 prohibits its distribution under that license in the United States

Not entirely true. That section says that you cannot further distribute any GPL software that also has patent encumbrances (or other encumbrance enacted by court order or similar judgement). It's not clear what original copyright and patent holder's options are. They could license the software under the GPL with a patent license attached that prevents further distribution (arguably perverting the point of the GPL). The question before the court is whether distribution of the software under the GPL by the original patent holder without an explicit patent agreement automatically grants a right to the patent as the license as the intent of the GPL is to enable further distribution.

Re:Misreading section 7? (1)

Spazmania (174582) | about 3 months ago | (#47658599)

Actually, section 7 of the GPL says "If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."

So, if Ximpleware intentionally distributed the software under the GPLv2 (they did) and held the patents (they did) then either they must have intended that any recipient of the software under the GPLv2 also receive a license to use the patents or they deliberately breached the GPL contract with every single person who downloaded the code making them (Ximpleware) liable for damages from any of those users who are otherwise compliant with the terms of the license.

Either way, the court might reasonably cure Ximpleware's problem by affirming the existence of a patent license to everyone legitimately using the code under the GPL.

Good Public License (-1)

Anonymous Coward | about 3 months ago | (#47657069)

Good that it's viral. The more things it "infects" the more open source code we have. Go GPL!

Morality vs The Law (5, Insightful)

Anonymous Coward | about 3 months ago | (#47657167)

(For the sake of disclosure, IAAL, I am a software developer, I have written GPLv2 code, and I have litigated GPLv2 cases, but I have absolutely zero involvement in this matter)

The question here is really just the classic question of the morality and mentality of the free/opensource (I'll just say opensource from this point) movement vs. the harsh realities of patent and copyright law. The author above, and the author of the mentioned article, pitch this as some triumphant fight for the glory of something-or-other, but the truth is that it's: 1) a money grab, 2) a principled fight to teach violators a lesson, or 3) a some combination of both. Having reviewed the litigation tactics here; I have to lean towards money grab.

That said, having intimate knowledge of both sides of the equation here (opensource development ideas and IP attorney mentalities), I can attest that the ideals employed by both sides are, generally, diametrically opposed. Is Ximpleware is right, legally, in the fact that it can release a GPLv2'd software, file patents on the ideas, and then sue the living pants off everyone for patent violations? Frankly, yes because IP laws are harsh and designed to be massive swords. Still, the defendants have decent equitable arguments for estoppel under their implied license/baiting arguments which have precedent in the realm of copyrights. Outside the legalities, is it morally right as an opensource developer? No, probably not.

Suing the hell out of a violator? Go for it. Suing the hell out of a customer with knowledge of the infringement: Sure, why the hell not. But sending off lawsuits to unwitting customers who simply purchased a product they didn't know was infringing? Now you're pushing the line. Such actions have real world consequences. The litigation of these cases is extremely expensive, extremely time consuming, and a corporation must hire representation in U.S. courts (they cannot appear pro se). Most attorneys ignore those realities because, frankly, the suffering of a defendant is of no concern. The only thing that matters is whether the case is meritorious; if so, I'm suing the living pants off you because the law says I can. The motto is typically summarized as: legal, not ethical. But is that what the opensource world wants to present?

Mr. Rosen throws around "indemnification" and "diligent" arguments to justify the lampooning of what most people would consider "innocent" parties, but they're shill arguments at best. The simple truth, is that you're not furthering the opensource movement in any way. As for indemnification, it is a farce. First, it's speculative that any such agreement exists. Second, the indemnitor needs to: 1) agree to honor it's obligation; 2) have the resources to honor it's obligation; and 3) actually honor the obligations. The reality is that a request for indemnification is just as likely to result in more lawsuits, as it is to result in a resolution for the downstream users. Beyond that, if original defendant files for bankruptcy, indemnification is worth absolutely squat. As for "due diligence," any software engineer will readily admit, it is nearly impossible (especially for small to mid-sized firms that are letting non-technical staff handle acquisitions). It's not impossible, just cost prohibitive. Ask yourself, What purpose does destroying a company serve to the greater cause of opensource? Is it legally viable, sure, but is it worth it, morally?

All that to say, I wish people would stop trying to co-opt grand ideals and sugar coating these types of cases. The plaintiff has sued the living hell out of everyone because, legally, they can. In turn, those actions makes settlement more likely, since the upstream infringer is now getting complaints from his clients and costs are rapidly mounting up. Was it legal? Sure. Was it moral and in-line with the opensource movement's ideals? Well, that really depends on what side of the line you fall on. But regardless of where you are on that line, is possibly destroying the lives (yes, personal lives) of the what amounts to companies that did nothing more than purchase a product that they thought was legitimate worth the results? I can attest that plenty of clients have gone bankrupt, been forced into divorces, or killed themselves from lawsuits filed against them (see Aaron Swartz for an example). This type of case is no different. I just wish that the parties would have the respect to admit what they're doing and stop trying to sugarcoat the issues. This is all about money, principles, or both. I won't judge the plaintiff for any of them; please don't pretend it's about anything else.

Re:Morality vs The Law (-1)

Anonymous Coward | about 3 months ago | (#47657765)

Absurd indeed!

You said "killed themselves from lawsuits filed against them (see Aaron Swartz for an example)".

You Sir, are also a mindless moron.

Re:Morality vs The Law (0, Flamebait)

Anonymous Coward | about 3 months ago | (#47658023)

One of the best analyses of open source politics I have seen in a long time. It's not a coincidence that BSD variants are winning over GPL

You sir, are being absurd (1)

Zontar_Thing_From_Ve (949321) | about 3 months ago | (#47657185)

From the parent post:
There is rich detail about this matter that will come out during litigation. Please don't criticize until you understand all the facts.

When has knowing the facts ever stopped Slashdotters from criticizing? Sounds like somebody doesn't understand how things work around here.

Skeptic (0)

Anonymous Coward | about 3 months ago | (#47657241)

Comments by attorney's in support their client are essentially meaningless. Even in criminal trials lawyers' remarks are not under oath and are better ignored. Similarly those who claim a deep understanding of both the facts and the law are naive. The only opinion that matters is the final disposition of the courts.

more gpl non-sense (0, Flamebait)

Anonymous Coward | about 3 months ago | (#47657505)

"GPL: a vendor incorporates some GPL-licensed code into a product—maybe naively, maybe willfully—and could be compelled to freely license the entire product as a result."

Except this is just nonsense and this method which is "child like" should not be protected under the law. The non-gpl code is not an extension or modification of the GPL source code no matter what the illogical gpl license states. Only a self important, child like, sociopath(richard stallman) would come up with a moronic method. The company should just release the GPL open source code portion and not the whole thing. The non-gpl becomes part of gpl because both touched, oooooooo? what is this shit kindergarten.

Even MS does not do stupid shit like this, you can static or dynamic link to their libraries and they don't give a fuck since it will benefit their freaking windows platform anyway.

Re:more gpl non-sense (1)

Anonymous Coward | about 3 months ago | (#47657767)

The definition of "derived work" is part of the interpretation of copyright law. It is not defined by RMS or Microsoft, and certainly not by you.

Re:more gpl non-sense (0)

spitzak (4019) | about 3 months ago | (#47658357)

You are stating a LIE that was written by MicroSoft. Absolutely not what Richard Stallman said.

The GPL does not compel anybody to freely license their product. What it does is make you violate copyright if you include GPL code in that product. The punishment for violating copyright is defined by law as monetary damages and a requirement to STOP distributing (and stopping is the exact opposite of being forced to distribute, you know).

Thanks for proving your ignorance.

3rd. Party rights (1)

Jim Sadler (3430529) | about 3 months ago | (#47657721)

It is unlikely that many business owners know or could know without great effort and expense whether any defects in license or ownership exist when they purchase software. I think that before any punishments or fines can take place there must be some evidence that a person is doing wrong knowingly. The intellectual property mess with all its complexity and legal issues should not be put upon the end user of the product who in many cases has no way to know or even find out if he is doing wrong. Keep in mind that many businesses are quite small and even a ten dollar expense can be a harsh issue for them therefore lawyers and expert opinions may not be available to them.

Section 0 of the GPL (0)

Anonymous Coward | about 3 months ago | (#47657783)

[...] Section 0 of GPLv2, which says, "[t]he act of running the Program is not restricted." What that sentence actually means is just what it says: The GPLv2 copyright grant itself (which is all there is in GPLv2) does not restrict the act of running the program.

I've noticed that many installers for GPL software on Windows require me to accept the GPL license before I'm able to install the software on my computer. Given the quote above, I shouldn't have to accept the license to install and run it. I'm only subject to the license when I redistribute the software.

Re:Section 0 of the GPL (1)

kthreadd (1558445) | about 3 months ago | (#47658637)

Yep, but nothing stops anyone else from having you accept it before you can install it.

Re:Section 0 of the GPL (1)

twistedcubic (577194) | about 3 months ago | (#47658793)

I think you are absolutely correct. The only time you should "accept" the GPL as a contract is when you download or receive the source code. If those Windows installers include the source code, then the click-through agreement is OK, in my opinion.

Re:Section 0 of the GPL (1)

twistedcubic (577194) | about 3 months ago | (#47658809)

On second thought, my reasoning is incorrect. You could just as easily link to an already compiled GPL library and distribute it. So the click-through agreement might be necessary, if you imagine all the possibilities.
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