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Michigan Diagnostic Software Case Big Win for GPL

Posted by timothy on Mon Mar 21, 2005 01:40 PM
from the nicely-done dept.
GNU is Not Unix Government The Courts News
Pig Hogger writes "Many people claim that the validity of the GNU Public License has not been tested in court in the US. Well, it just had been, in Michigan, in a case that validated open-source car diagnostic software against the pretension of automakers who want to keep it secret. But don't take my word for it; read the story on GROKLAW." It's actually the Society of Automotive Engineers involved here; DrewTech (the developers in this case) nicely donated half of their settlement money to the SAE.
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  • Good. (Score:5, Informative)

    by daveschroeder (516195) * on Monday March 21 2005, @01:41PM (#12002088)
    But remember, the GPL itself is not specifically "tested", per se, because GPL software developers assert them rights granted to them via copyright on an individual basis. This makes it a sometimes long and arduous process to assert rights and/or prove infringement, but hopefully more precedent will help.

    Since the provisions of the GPL have been upheld in a case in Germany as well [boingboing.net], maybe PearPC [sf.net] will be able to more easily defend itself against CherryOS [cherryos.com], which has blatantly taken GPL code, without release of source code or attribution, from PearPC and several other GPL projects:

    eWeek has a general overview of the situation:

    http://www.eweek.com/article2/0,1759,1775386,00.as p [eweek.com]

    Below is a comprehensive collection of evidence, which runs the gamut from CherryOS including original PearPC graphics, extremely unique strings and error messages, debug code from PearPC, the same unique MAC address as PearPC's default network adapter, shared specific functionality, including bugs, and so on:

    http://www.ht-technology.com/cherryos-pearpc/cherr yos-pearpc.html [ht-technology.com]

    http://www.drunkenblog.com/drunkenblog-archives/00 0501.html [drunkenblog.com]
    http://www.drunkenblog.com/drunkenblog-archives/00 0503.html [drunkenblog.com]
    http://www.drunkenblog.com/drunkenblog-archives/00 0504.html [drunkenblog.com]
    http://www.drunkenblog.com/drunkenblog-archives/00 0507.html [drunkenblog.com]

    http://starport.dnsalias.net/index.php?show=articl e&id=348 [dnsalias.net]

    http://forums.pearpc.net/viewtopic.php?p=16178#161 78 [pearpc.net]
    http://www.tliquest.net/ryan/cherryos/ [tliquest.net]
    http://dhost.info/kourge/en/projects/frauds/cherry os.php [dhost.info]

    Additionally, PearPC project authors are already asserting their rights under the GPL:

    http://sourceforge.net/mailarchive/message.php?msg _id=11116974 [sourceforge.net]

    And a general compilation of some of the evidence so far against CherryOS:

    http://sourceforge.net/mailarchive/message.php?msg _id=11125509 [sourceforge.net]
    • But remember, the GPL itself is not specifically "tested", per se, because GPL software developers assert them rights granted to them via copyright on an individual basis.

      Also: As I read it GPL wasn't strictly at issue here. The core issue was whether a standards organization can claim IP rights over the standard itself when that standard is embodied as code. Once that issue was clearly articulated both parties seemed to take the enforcability of the terms of the GPL as a given.

      What is important here is that it was the terms of the GPL that allwed Drew Technologies to haul the SAE into court, claim damages from them, and get them to settle WITH a payment of damages.

      The SAE had posted Drew Tech's code, claiming they owned the copyright because it was derivitive of the standard and demanding a "subscription fee" from both Drew Tech and from all other users of Drew Tech's GPLed code.

      The GPL violation was the hook Drew Tech chose to file a takedown demand, drag the SAE into court, and demand damages for violation of THEIR copyrights - like any other GPL software provider. B-)

      Even in the absense of an actual decision, this case shows that licensing your code under the GPL doesn't jepoardize your ability to haul offenders into court and claim (and get settlements for) damages for violating your license terms.

      • Re:Okay, now it's official (slightly off-topic) (Score:5, Insightful)

        by dgatwood (11270) on Monday March 21 2005, @03:52PM (#12003672) Journal
        Actually, it's pretty easy to say those two things consecutively. One has to do with using copyright to protect profits versus people taking copyrighted material for personal use, while the other has to do with using copyright to protect people's right to personal use against a company taking the source code, changing it in non-public ways, and selling it for a profit. A lot of people see those as being very different arguments. In fact, they are basically diametrically opposite uses of copyright.

        In fact, one might reasonably argue that copyright law should be altered to always allow personal use, in which case using copyright to protect against GPL infringement would be covered, while the RIAA suing their customers wouldn't. More to the point, almost all "fair use" falls into the category of "personal use", and most "personal use" has historically fallen under "fair use". The Audio Home Recording Act essentially set that as the standard when it came to infringement, so it isn't really as unreasonable as it sounds.

        As for myself, I could go either way on the issue of personal use. However, I don't think that's what the RIAA suits are really about. I think that in those suits, copyright is essentially being used as a sledgehammer to stifle potential competition. By painting P2P in such a negative light, they reduce the effectiveness of P2P technology and the internet as a whole at allowing unsigned artists to be heard---something that the recording industry desperately wants to avoid, as it significantly weakens the relevance of their role as gatekeeper....

        Sometimes coins have more than just two sides.

          • Re:Okay, now it's official (slightly off-topic) (Score:4, Insightful)

            by jericho4.0 (565125) on Monday March 21 2005, @04:39PM (#12004277)
            Simple. If I print up a book to give to a friend, that's personal use. If I print up 1000 novels to sell, that's not.

              • Oh, well. I live in Canada, where P2P is legal, and the stores still sell music.

                The OP's argument, that because the GPL rests on copyright law, the music industry's use of copyright law is right, is absurd. Copyright law was made to curtail the rights of publishers, and protect the rights of consumers. Now that we are all publishers and consumers, it can change to fit the new model. The fact remains that re-publishing for profit is different than sharing, even if said 'sharing' can amount to thousands of c

                  • Canadian Copyright Act, Section 80;

                    80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of (a) a musical work embodied in a sound recording, (b) a performer's performance of a musical work embodied in a sound recording, or(br> (c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in

  • I wondered what he was doing these days. Is Mimi still his secretary?

  • Not a win, but a settlement (Score:5, Informative)

    by suso (153703) * on Monday March 21 2005, @01:43PM (#12002104) Homepage Journal
    Unless I'm missing something, this ended in a settlement, not an in court win backed up by a judge.
    • Yes. But the fact is that having never got as far as the court shows the strength of the GPL rather than its weakness. Think about it: you go to court because both sides think they can win. Everyone who has been about to challenge the GPL has realised they had lost before it got that far. Plenty of licenses have never been tested in court; a well worded license that any lawyer can tell you is valid doesn't need to.

      • Re:Not a win, but a settlement (Score:5, Insightful)

        by confusion (14388) on Monday March 21 2005, @02:00PM (#12002349) Homepage
        Because it was settled and not ruled upon, there is no case law that other lawyers can reference from this outcome.

        I don't think the GPL can declare any court victories until a judge actually rules in it's favor.

        It is good to see that the SAE came to their senses, though.

        Jerry
        http://www.syslog.org/ [syslog.org]

        • Re:Not a win, but a settlement (Score:5, Insightful)

          by bear_phillips (165929) * on Monday March 21 2005, @02:53PM (#12002984) Homepage
          Each settlement is a win. When the GPL is fully tested in court the number of prior settlements in favor of the GPL will be evidence that the GPL is an accepted industry contract. When a style of contract is widely accepted, judges are less likely to break them. So even though this is not binding case law, it still helps in the long run.

          • Re:Not a win, but a settlement (Score:4, Interesting)

            by man_of_mr_e (217855) on Monday March 21 2005, @02:59PM (#12003045)
            Not necessarily. Simply being a widely accepted contract doesn't mean the contract is legal. I'm not saying the GPL isn't, just that your argument is faulty.

            As an example, Microsoft's OEM contracts were widely accepted. That didn't mean they were legal.
      • Maybe. But it appears the case was settled, not because of the GPL, but because the SAE couldn't legally lay copyright to code that was already copyrighted, GPL or not. It doesn't seem like it supports the GPL at all.

        In any event, the article submitter (and Groklaw) claim this is a test of the GPL in court. It's not. There was no ruling.
        • Thank you. The only thing that was tested here was the SAE's lame ownership attempt, based on a usage policy buried in a disused lavatory on their website that essentially said "all your base....". The GPL is orthogonal to the dispute.
      • OK, but that's not what it says in the article submission. That's the point.
      • I disagree. The reality of our system is such that parties cave in to settlement offers not based on true innocence or guilt but on cost-benefit analyses of pursuing the case in court and possibly winning (but at a high price), or losing at an even higher price, versus cutting losses and settling out of court. Settlements are not effective precedent setters as future battles may involve parties with different political liability and cash flow.
    • It also had nothing to do with the GPL - the license wasn't even an issue.

      It's talking about whether deriving a program from a published standard constitutes a derived work of the standard or not.. copyright law, and the judge, said no.

      This may even be bad for the GPL - the FSF are big on how everything is a derived work of everything else, and asserting that there are limits to that starts to chip away at their interpretation.

      • Re:Not a win, but a settlement (Score:2, Informative)

        by Anonymous Coward
        It also had nothing to do with the GPL - the license wasn't even an issue.

        It's talking about whether deriving a program from a published standard constitutes a derived work of the standard or not.. copyright law, and the judge, said no.

        Please read TFA. The plaintiff disagrees that the GPL is irrelevant. In fact, it's very relevant--the fact that the code in question was released under the GPL, and therefore not SAE's exclusive property, was one of the plaintiff's major claims.

        Most GPL issues ARE copy
        • "Please read TFA. The plaintiff disagrees that the GPL is irrelevant. In fact, it's very relevant--the fact that the code in question was released under the GPL, and therefore not SAE's exclusive property, was one of the plaintiff's major claims."

          However, that would be true of ANY license -- there's nothing about the claims of the GPL that are unique to this case. If they had released it under a commercial license, it would have been the same argument, just on a more limitted scale. The terms of the GPL
          • "In fact, the GPL is unlike most other EULAs in that it _adds_ rights rather than takes them away."

            Whether licenses add rights or take them away depends on your perspective.

            Certainly licensing software under the GPL is more restrictive than releasing it in the public domain just as releasing binary code with a typical EULA is more restrictive than allowing people to copy it freely.

            On the other hand, people don't have the automatic right to distribute source or binary, so you could say that both the GPL a

            • Re:Not a win, but a settlement (Score:4, Informative)

              by johnnyb (4816) <johnnyb@eskimo.com> on Monday March 21 2005, @04:36PM (#12004244) Homepage
              "Whether licenses add rights or take them away depends on your perspective."

              Incorrect. It depends simply on copyright law. The GPL takes away NO FREEDOMS that are given by default by copyright law. Instead, it adds to them.

              "On the other hand, people don't have the automatic right to distribute source or binary, so you could say that both the GPL and an EULA add rights."

              Incorrect. EULA's don't generally give you a right to distribute source or binary. If you know of one that does, give me a holler.

              By default, copyright allows you to (a) use your program for any purpose, (b) learn from it, (c) modify it for yourself, and (d) keep an archival copy. Most EULA's restrict (b) and (c). The GPL adds additional rights. That is why it is unique. If you know of an EULA from a major vendor that adds additional rights that normal copyright wouldn't give you, let me know.
                • "You have no right to use a copyrighted program without permission. The EULA gives you that right in exchange for money."

                  That is incorrect. The sale gives you that right. The EULA is a post-sale contract. Music does not include an EULA, yet it is covered by copyright. EULA's does not give you any right you did not already receive by paying money to legitimate channels.
                    • "The bottom line is that neither the GPL nor EULA's give third parties the maximum rights they could get through public domain or the BSD license."

                      True, but that has nothing to do with anything we are talking about.

                      "To me that is much more important then the somewhat artificial argument about adding or subtracting rights."

                      No, if you look at the subject we were actually talking about, it was whether or not the GPL is enforceable in court. The answer is yes, because it ADDS rights instead of taking them a
                    • "Gain back what rights?"

                      The rights terminated by the EULA.
                • "It also takes away your right to link with the code unless you also GPL all your code - which is a freedom I have already (and not covered by copyright law as copy!=link)."

                  That is incorrect. As a user, you could do this.
  • Wouldn't simply compelling the defendant to release the code with the appropriate acknowledgements be more in line with the community spirit of the GPL? A monetary settlement seems unnecessarily punitive.

    • Re:Suing for damages? Inappropriate, IMHO (Score:5, Insightful)

      by Anonymous Coward on Monday March 21 2005, @01:52PM (#12002247)
      Well, the donated half the profits back to SAE (the defendant). Presumably the rest was for court costs/legal fees. If you read TFA, the lawyer for the plaintiff basically states this--the goal was not to win money, but to improve SAE's processes. There was no intent even from the plaintiff to punish.

    • Re:Suing for damages? Inappropriate, IMHO (Score:2, Interesting)

      by Anonymous Coward
      And how would you propose to deter other companies from stealing GPL code, if their only risk was a little egg on their face and a slap on the wrist?

      How would you offset the costs of determining if some code has been stolen, as well as the lawyer/court fees in order to prove it before a judge?
          • "Ah, but code is infinitily copyable--by taking it, I'm not depriving someone else of their ability to use it. With due respect, this is irrelevant. The issue is whether you are using/taking someone else's property without permission."

            You are confusing terms, though. You are using the word "stolen" which implies that you no longer have said item. "Unauthorized copying" more accurately describes the offense, not "stealing". Your examples show that you are confused as to the differences as well.

            Making un
          • "radio stations would never need to pay license fees to music artists--by playing a song off a CD they own, they're not depriving anyone else of the ability to play the song"

            Circular reasoning.

            You might say that you have rights to your intellectual property. Other people disagree. Fortunately (for you), for now, the courts agree with you. Don't confuse that with a natural right.

            I don't agree that depriving you of a potential sale is, in any way, theft. Would I be stealing from you if I told your pote
    • AFAIK, copyright law does not provide for compelling someone to do anything... other than to pay damages and stop violating the author's copyright.

      Besides that, why shouldn't the author's seek monetary damages??? It costs them money to go to court and to force the violator to quit infringing on their rights.

      What is in the community spirit of the GPL is something that will help ensure that future violations do not occur. Playing hardball will help that happen. Being "nice" about it will not.

      If you don'
    • Without the threat of punitive damages, why would someone pay any attention to the GPL?

  • thank you very much... not (Score:5, Informative)

    by advocate_one (662832) on Monday March 21 2005, @01:49PM (#12002206)
    I wondered why it had gone extremely slow... by the way, the article poster has got it wrong. It's not a victory per se for the GPL as it never went to the finish, the two parties settled instead. However, it is possibly good news for those of us frustrated at companies tying up international standards with submarine patents and other IP trickeries... Microsoft watch out.

  • So why start a new project? (Score:5, Informative)

    by chaffed (672859) on Monday March 21 2005, @01:54PM (#12002271) Homepage
    Freediag [sourceforge.net] is stagnant because people have lost interest. If they want to implement new protocols within the 0BD II standard they should pick up Freediag and continue the development. Freediag is almost completely finished the portability portion of it's development. It compiles under most operating systems.

    I guess Yay! for GPL being upheld in court. Yay! For independent an DIY auto repair folks. However, bummer for a project that really needs some new blood.

  • I don't see anything for the GPL in here (Score:5, Interesting)

    by Qzukk (229616) on Monday March 21 2005, @01:59PM (#12002339) Journal
    Yes, the code was written under the GPL, yes the SAE did then take that code and start selling it as if they had written it and without the GPL, but it seems that the entire process was over whether the SAE owns their own regulations after the government steps in and turns them into Law.

    The answer, as it was in the prior case cited, was "no".

    It seems that the license of the software involved wasn't related to the case at all, other than as a "starting point" for the case to begin. If the code had been BSD-licensed, they wouldn't have been suing the SAE first. If nothing else, it simply indicates that you can issue a DMCA takedown notice for GPL'd code someone else is using without obeying the GPL license.
  • As I read this, it's a copyright case only. One side (SAE) claimed rights to code that the other side (DrewTech) had released via GPL. It could have been something proprietary, and SAE would still have lost the case from what I understand.

    It's like saying "Axemurderer convicted of killing author of GPL-released code" is a big win for the GPL. It wasn't part of the case, near as I can tell.

  • Legislated methods question (Score:3, Interesting)

    by gr8_phk (621180) on Monday March 21 2005, @02:40PM (#12002859)
    This case mentions that any work incorporated into law by reference can not maintain its copyright. It's happened before (the building code case mentioned) where an existing work became law, so the original authors could not charge others or claim infringement for printing (what was previously) their material. Now shouldn't the same logic apply to patents? If someone patents some algorithm that is incorporated into MPEG, and MPEG is legislated as the standard for HDTV, shouldn't that invalidate any patent claims over the algorithm the same way copyright is over-ridden? Or is this another way patents are different from copyrights?

  • NOT BIG WIN - NOT WIN, MAYBE BIG (Score:3, Insightful)

    by drteknikal (67280) on Monday March 21 2005, @03:04PM (#12003095) Homepage
    If they settle, it's not a win, it's a settlement. Does not set a very useful precedent, however correct the settlement appears to be.

    Until it is tried, adjudicated, and upheld, the original statement stands. At best, the GPL has been tested, but not proven.

    Get your facts straight. This headline is deceptive and wrong.

  • I thought.... (Score:5, Insightful)

    by Audacious (611811) on Monday March 21 2005, @04:18PM (#12004040) Homepage
    I thought that one of the important things to come out of the case was this:

    The doctrine is now enshrined in 17 U.S.C. 102(b). The relevant section says:

    (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

    A lot of people think that their ideas, procedures, processes, etc... are (or can be) protected by copyright. The answer here is - no. They can not be protected by copyright. These are protected by patents.

    Tangibles => copyrights
    Intanigbles => patents

    (I don't know about anyone else, but I do get a lot of questions on this when friends/relatives/and other stranger persons ask me about copyrights. And no, IANAL! I just like to read about the law. [Surprised my own lawyer by how much I knew about the law. :-) ])

  • nothing to do with the GPL (Score:3, Informative)

    by iamnotanumber6 (755703) on Monday March 21 2005, @04:18PM (#12004041)
    really - whether this was a settlement or a judgement, it really has nothing to do with "testing" the GPL.

    1. some people (Drew) wrote some software that complied to (implemented) a standard.
    2. the standard is copyrighted by someone else, the SAE (the issue of whether they can copyright or charge royalties on something that's part of the law I think is a side issue).
    3. SAE tried to claim ownership of the copyright of the software, claiming it was a "deriviative work" of the standard.
    4. they were unsuccessful in doing so, the core reason being because copyright only covers a particular composition of text, not the "ideas, procedures, processes, methods of operation, concepts, principles, or discoveries," that may be described, explained, illustrated, or embodied" within it. if I write a book explaining how to turn lead into gold, you can't copy the sentences and paragraphs I wrote. but you can certainly write your own book explaining the same procedure. this is a long-standing principle, and no new legal ground was broken here - no precedents.
    5. Drew was confirmed as the legal copyright owners of their software, not the SAE, which was what the case was about.
    6. Drew (had) happened to release the code under the GPL. This is an expression of how they wish to excercise their copyrights. But nothing about the GPL was tested or decided. Only that Drew owns the copyright, which allows them to release it under GPL, and SAE cannot prevent them from doing that because SAE does not own the copyright because it is not a derivative of SAE's copyrighted work.

    the validity and terms of the GPL never entered into it. talk about a "victory for the GPL" is nonsense.
      • There are more than 300,000 pages referring to "gnu public license", and that is just in Google.

        Except that it is the GNU General Public License [gnu.org], not the "GNU Public License", which is what the poster was pointing out.

      • There are more than 300,000 pages referring to "gnu public license", and that is just in Google.

        Sure. There are more than four thousand Google hits for "life on Jupiter", so it is now proven that there's life on Jupiter, right?

        One of the links points to a good wikipedia article, as well.

        That's about the GNU General Public License. We're discussing the "GNU Public License" here.

      • Lol...is this guy for real?

        Yes.

        Results 1 - 10 of about 453,000 for GNU Public Licence.

        Sure, but does any of the pages contain a hint that a "GNU Public Licence" actually exists?

        Now then, as to what it is...

        I know what the GNU General Public License is. Follow the link in my sig, and you'll see that I've used it myself for years. The article, however, talks about a "GNU Public License".

    • Re:morons (Score:4, Insightful)

      by ReelOddeeo (115880) on Monday March 21 2005, @04:04PM (#12003859)
      From TFA...

      PJ: Why did you donate back half of what you won under the settlement?

      Eric: The reason for donation of half back is because the purpose of the lawsuit always has been to benefit and improve the SAE. It may have been necessary to drag them kicking and screaming up the learning curve, but my client has done so precisely because the organization needed the benefit of the learning experience.

      The whole point is that DrewTech has been very generous to the SAE by donating 1/2 of the money back as a charitable contribution, to symbolize the educational benefit conferred on the organization (in particular, organization staff -- as distinct from the Membership, who mostly tend to "get" the GPL) through the mechanism of the lawsuit as a whole.

    • Re:GPL Derivative Works (Score:4, Interesting)

      by Almost-Retired (637760) on Monday March 21 2005, @06:29PM (#12005778)
      I see you still don't 'get' it regarding the GPL. So let one of those freaks you refer to attempt to enlighten you.

      When those GPL'd libraries are linked in, staticly or dynamicly at runtime, you are still making use of code that bears a GPL license. If your code that wants to use that GPL licensed code as part of its functionality isn't GPL also, then the linking is, and properly so, a violation of the GPL and illegal by copyright law.

      There is no 'slightly pregnant' here. If you want to use GPL'd code, then your code must be likewise GPL'd or under an approved similar license. End of discussion.

      Gawd I wish some dummy would actually let this get to where the judge renders his/her opinion for public record and let the precedent actually be set instead of saveing a few on attorneys fees with a settlement when they realise that tweaking the GPL tigers tail is going to get them eaten.

      You're right about one thing, these decisions really are quite obvious. Oh, and go learn how to spell license too. There are in fact several ways, but yours is not among them in my dictionary.

      --
      Cheers, gene
      "There are four boxes to be used in defense of liberty:
      soap, ballot, jury, and ammo. Please use in that order."
      -Ed Howdershelt (Author)
      99.34% setiathome rank, not too shabby for a WV hillbilly
    • In fact, if one really thinks about it, patents are probably the most anti-capitalist, anti-freedom, anti-progress part of our Constitution. They are the equivalent of economic terrorism - patent liability can strike any business, anywhere, with devastating effect.

      While I can sympathize with this sentiment, there are a couple of case I can relate to where the cease and desist orders were simply ignored.

      The most recent case occured maybe 7 or 8 years ago now, in the broadcast industry, where we all got

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