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The Courts Government GNU is Not Unix News

GPL Lawsuit May Not Settle 285

Posted by kdawson
from the maybe-a-day-in-court-after-all dept.
A number of readers wrote in to inform us that contrary to earlier indications, it's no sure thing that the lawsuit alleging GPL violation by Monsoon Multimedia will get settled out of court. Linux.com now reports that the SFLC's legal director Daniel Ravicher has stressed that no agreement has been reached: "Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance." (Linux.com and Slashdot are both part of Sourceforge, Inc.)
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GPL Lawsuit May Not Settle

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  • Stick it to 'em. Make them pay for copyright violations and "loss of revenue".
    • Re:Oh yeah (Score:4, Insightful)

      by BiggerIsBetter (682164) on Tuesday September 25, 2007 @09:40PM (#20751465)

      Stick it to 'em. Make them pay for copyright violations and "loss of revenue".
      How about fining them for the costs of developing, testing, and maintaining the software themselves?
      • They would have done that even without Monsoon's infringement. So Monsoon hasn't incurred any additional costs for SFLC. The only punishment can be punitive, how much does the law allow for that?
      • by dedazo (737510)
        I'm sure the RIAA can use that argument as well. After all, it takes money to produce records.
    • Re:Oh yeah (Score:4, Interesting)

      by PCM2 (4486) on Tuesday September 25, 2007 @09:48PM (#20751509) Homepage

      Stick it to 'em. Make them pay for copyright violations and "loss of revenue".

      IANAL, but the way I understand it, lost revenue is often difficult to prove. In cases where it can be established that the offending party knew that it was violating copyright and willfully did so anyway, however, the court can require payment of statutory damages (which can be much higher than any revenue the plaintiff might have actually lost). The only glitch here is that I was under the impression that you needed to have registered your work with the Copyright Office in advance in order to claim statutory damages.

      • by sumdumass (711423)
        I don't think you have to actually register it, rather it is very much more difficult to win statutory damages without having already registered it.

        It may be that it is so difficult to win without registering, it has become a defacto standard. I don't know. But I or anyone for that matter could just claim that the original versions they found on the Net had a BSD license and they were shocked to discover that it was GPLed instead. They could claim their lack of compliance with the terms of the GPL was becau
        • Re: (Score:3, Informative)

          by hawk (1151)
          I am a lawyer, but this isn't legal advice. If you need legal advice, find a lawyer in your jurisdiction and hire him.

          Registration is a pre-condition for litigation. Furthermore, registration prior to violation is a pre-condition for statutory damages.

          hawk, esq.
      • IANAL, but the way I understand it, lost revenue is often difficult to prove. In cases where it can be established that the offending party knew that it was violating copyright and willfully did so anyway, however, the court can require payment of statutory damages (which can be much higher than any revenue the plaintiff might have actually lost). The only glitch here is that I was under the impression that you needed to have registered your work with the Copyright Office in advance in order to claim statut

        • by QuantumG (50515)

          However the knowing infringment damages are much (3x?) higher.
          Dude, you're thinking patent infringement.. completely different set of laws.

          • Dude, you're thinking patent infringement.. completely different set of laws.

            Patent infringment also has two different levels of infringment. But so do copyrights. Copyright and patent laws tend to have quite a few similiarities. The (3x?) may have been based on patent and not copyright law.

            • by QuantumG (50515)
              Meh, in copyright cases they just decide on the day. That goes for the legalities as much as the damages. Try to get a straight answer out of a lawyer on a copyright issue. "It depends" is the only advice they'll give you, other than "comply".
        • Re: (Score:3, Informative)

          by PCM2 (4486)

          Second, the requirement to register your work was removed almost thirty years ago.

          I'm not sure about that. If you mean that the Copyright Act of 1976 (which was 30 years ago) removed some old requirements for copyright (like putting the circle-C on the work) then you're right ... but my understanding was that there were still additional benefits to actual registration where it came to the damages you could claim in court. That is, you can certainly still WIN a copyright case without registering, but my

      • by adolf (21054)
        IANAL, too, but I was forced spend some quality time with the Ohio statutes governing contracts (alternatively, I did stay at a Holiday Inn Express last night).

        If I recall (it's been a couple of years), it was all within the realm of the Uniform Commercial Code, which would mean such statutes exist in most (if not all) states in largely-unmodified form.

        In this reading, I learned that all valid contracts have to abide by certain rules (otherwise, they are invalid and null). Chief among these requirements is
        • Re:Oh yeah (Score:4, Interesting)

          by jhoger (519683) on Wednesday September 26, 2007 @01:07AM (#20752429) Homepage
          License != Contract.
          I guess you have consideration. What about the offer and acceptance? Do you really have an exchange of promises?

          A license is not a contract. It is more a one-sided offer of permission to do something that would, without the license grant, be illegal. A license can have restrictions.

          The idea with the GPL is it has restrictions. The logic is that if you don't comply with these restrictions then you never had the right to distribute. And in the case of a copyrighted work, if you redistribute without ownership or a license, and you do it willfully, then you are liable for 3x the statutory damages.

          http://www.informit.com/articles/article.aspx?p=212176&seqNum=3&rl=1 [informit.com]

          That's the theory anyway. I guess we'll see.

          -- John.
          • by Pofy (471469)
            >License != Contract.
            >I guess you have consideration. What about
            >the offer and acceptance? Do you really have
            >an exchange of promises?

            However, the term license is often used for cases were there IS a contract or is part of a contract or as part of the naming of the contract and so on. Which of course causes confusion.
      • Re: (Score:3, Insightful)

        by dedazo (737510)

        IANAL, but the way I understand it, lost revenue is often difficult to prove.

        As I understand it from reading Slashdot, the "loss of revenue" and "copyright infringement" arguments are essentially bullshit when the *AA uses them. So how is the SFLC (nee the FSF) any different?

        When this story broke a few days ago I theorized that they were more than entitled to try to get this company to comply with the license. Maybe even make them donate money to Busybox. Heck, even try to get an injunction to make Mons

        • Re: (Score:3, Insightful)

          No one disputes that downloading a song without the rights to it is copyright infringement. Noncommercial infringement (listening to a pirated song, etc.) is (or should be) different from commercial infringement. One person downloading songs to check them out is one thing, and using code illegally in a product you charge top dollar for is another. Arguing that one song is worth $3000 or so is crazy, but saying that illegitimately using Busybox in their product is worth money is another.

          There's also a c
        • Re: (Score:3, Interesting)

          by swillden (191260) *

          As I understand it from reading Slashdot, the "loss of revenue" and "copyright infringement" arguments are essentially bullshit when the *AA uses them. So how is the SFLC (nee the FSF) any different?

          They aren't inherently bullshit arguments. The problem is with the *way* the RIAA uses them, not with the concepts themselves.

          But damages? For copyright infringement and loss of revenue?

          Compensatory damages would make no sense, obviously. But there are statutory damages and perhaps even punitive damages that the court could toss in there.

          More likely, though, the FSF will simply want the court to enforce the termination language in the GPL, and bar Monsoon from distributing Busybox at all. Then, if Monsoon wants their permission to distribute Busybox to be r

  • Gotta cost something (Score:2, Interesting)

    by zIRtrON (48344)
    As an contributor to OSS and about to release a project, the GPL is there to be used how it states - any OSS license states what can and can't be done.

    All profits from this product could be re-invested to projects or project maintainers to create better OSS products and services in a closely related area.

    They pay a penalty now, but can redeem themselves by building a partner network.

    Someone needs to write up a website with what you can and can't do (in plain english - with case studies) with various free so
    • I believe your answer to number 3 is wrong according to MySQL AB (the corporation that owns the copyright of MySQL). They changed from the LGPL in version 2.x to GPL in version 3.x. See http://mmmysql.sourceforge.net/ [sourceforge.net]. I can't find the page right now, but at the time all this changed it was fairly clear that MySQL was tired of losing the licensing fees. Because the Connector was LGPL, you could embed MySQL in virtually any application and never need to purchase a license. The LGPL had little burden on

  • by martin-boundary (547041) on Tuesday September 25, 2007 @10:03PM (#20751577)

    "Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance."
    I must be living on a different planet from the lawyers. Here I was thinking that compliance means publishing the source code together with all the proprietary modifications, in a form that anybody can recreate the exact same software by recompiling it. In the warped mindset of a PHB, that means giving away the crown jewels for free. How is this not a deterrent for such deadbeat companies?
    • by QuantumG (50515)
      Another way to come into compliance, if you were mixing proprietary code with GPL code, which isn't the case here, would be to remove the GPL code from your product and replace it with something else which you have a right to distribute.

      • No, that wouldn't bring you into compliance. After all, what about the GPL code you already distributed? You still have to give the source code for that!

        • by QuantumG (50515)
          No, you wouldn't.

          • Care to provide any reasoning to back up that unsupported assertion?

            • by QuantumG (50515)
              What reasoning do I need to provide exactly? Can you show a single case, ever, where a court, anywhere, has forced a defendant to reveal their source code for failure to comply with a software license? No, didn't think so. So you're suggesting that something that is unprecedented in the entire history of copyright law is going to happen.

              Just so we're on the same page here, are you saying that for distributing a derivative work without a license that the court is going to demand that you comply with a lic
              • Re: (Score:3, Insightful)

                by mrchaotica (681592) *

                Can you show a single case, ever, where a court, anywhere, has forced a defendant to reveal their source code for failure to comply with a software license?

                No, but that's because no license which specified that source code had to be revealed has ever been tested! And anyway, I'm not a lawyer. Instead, I'm trying to argue this from the perspective of simple common sense, which seems to be woefully lacking in the legal world!

                Here's a simple question: when the company does stop distributing, how do the copie

  • and case law to be made, as well. Settling this out of court will imply that such violations of the spirit of the GPL are not 'costly' - the FSF would like to create the exact opposite impression, with respect to the unholy MS-Novell agreement.

    • Re: (Score:3, Interesting)

      by QuantumG (50515)
      Well, settling it out of court for some large some of money would do that too, and is a lot more likely.

      Maybe this is what Eben Moglen meant when he said [geof.net]:

      Now, as usual, when you win a small tactical engagement that turns out to be a large strategic victory, you have to consolidate the gains, or the other side will take them back. So we are now moving into a period in which what we have to do is to consolidate the gains. We have to strengthen our own understanding about what our community can do.

      • by jkrise (535370)
        Well, settling it out of court for some large some of money would do that too, and is a lot more likely.

        I think this is unlikely, and a cash settlement would be a step backwards for the FSF. Let me use a portion of your own quote:

        when you win a small tactical engagement that turns out to be a large strategic victory, you have to consolidate the gains, or the other side will take them back.

        Let's look at some recent strategic victories for the FSF:

        1. Microsoft have publicly dissociated themselves from the GPL3, and reworded their prior contract with Novell.
        2. Even under the GPL2, a company that knowingly disrtibutes code in violation of the GPL is liable for penal

  • Why don't they try to test the phrase "No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without written permission from the publisher"?
  • hypocrite much? (Score:3, Insightful)

    by timmarhy (659436) on Tuesday September 25, 2007 @10:35PM (#20751773)
    "Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance."

    how the fuck can they make this claim, yet when SCO filed it's complaint, the open source community's response was "all we have to do is fix the infringment" - the very same claim now being denied.

    you can't have it all your own way.

    • Re:hypocrite much? (Score:5, Insightful)

      by bug_hunter (32923) on Tuesday September 25, 2007 @11:07PM (#20751953)
      Because these guys were warned first that they were violating the GPL and did nothing until legal action was mentioned.
      SCO was more of the opinion "We'll tell you what you're violating in court" without giving Linux a chance pre-lawyers.
      • Although I certainly agree that the SCO case (and everything around it) was quite the circus, I fail to see its relevancy to the matter at hand.

        Assume the offending portions of code in 'Linux' are explicitly pointed out - i.e. 'Linux' is given a chance - the 'Linux developers' work around that code with new code, and call it a day. Then they were still in violation in the past.

        Isn't that the same as what's being said here? They informed a developer that they were violating the GPL, silly potential legal a
  • Slashdot Soap Opera.
  • by hedgefighter (1066902) on Tuesday September 25, 2007 @10:56PM (#20751901)
    you get the horns.
  • If that quote is correct then I suggest Daniel Ravicher is better off acting like a responsable adult instead of giving way to the childish urge of having a head on a stake to scare his enemies. The people he wants to scare with the precident of punishment are unlikely to notice that it has happened.
    • "If that quote is correct then I suggest Daniel Ravicher is better off acting like a responsable adult"

      I see, acting to assure compliance with the GPL is acting 'childish'. As to your erroneous claim that no-one would notice - I don't think so.

      ' Simply coming into compliance now is not sufficient [linux.com] to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance '

      --

      morning shift .. :)

      was: Re:If that quote is
  • by tangent3 (449222) on Tuesday September 25, 2007 @11:51PM (#20752155)
    I like the idea of some of the settlements by http://gpl-violations.org/ [gpl-violations.org] where the offending party makes a donation to the Open Source cause, e.g. the project violated, the FSF or EFF.
  • they're having the same thought that I had yesterday? http://slashdot.org/comments.pl?sid=307011&cid=20735703 [slashdot.org]
  • by harlows_monkeys (106428) on Wednesday September 26, 2007 @03:05AM (#20752877) Homepage
    Interesting tacit assumption that following the GPL is punishment. :-)
  • by harlows_monkeys (106428) on Wednesday September 26, 2007 @03:15AM (#20752917) Homepage
    The complaint asks for 5 things:
    1. Injunction to stop infringing copyright
    2. actual damages
    3. profits from the infringement
    4. attorney fees
    5. anything else the court might want to do
    As soon as the defendant complies with GPL, they aren't infringing, so #1 isn't a big deal.

    Actual damages? That's a big fat zero.

    Profits? At this stage in the product's life-cycle, defendant probably isn't profitable yet, so that's likely to be another big fat zero.

    Attorney fees. Finally something that might actually be non-zero!

    I don't see much punishment happening here. They'll settle for attorney fees and some nice (to the developers) but insignificant (to the company) payment.

  • Simply not enough? (Score:3, Informative)

    by gentlemen_loser (817960) on Wednesday September 26, 2007 @09:38AM (#20755235) Homepage
    The Free Software Foundation considers a GPL violation cured [fsf.org] when the offending entity comes into compliance. Given that the software was free to begin with, I am not sure that its a good idea to pursue additional penalties (especially monetarily). Use of GPLed projects (like Linux) is popular in many corporations and is frequently allowed to fly below the radar by most management and legal departments. If the penalty for a violations stops being compliance and starts being gold digging, management, legal departments, and people in general will shy away from the GPL like a plague.

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