Linux Devicemaker Sued In First US Test of GPL

An anonymous reader writes "For the first time in the U.S., a company is being taken to court for a GPL violation. The Software Freedom Law Center has sued Monsoon Multimedia over alleged GPL violations in the Hava, a place- and time-shifting TV recorder similar to the SlingBox. Interestingly, Monsoon Multimedia is run by a highly experienced international lawyer named Graham Radstone. According to his corporate biography, Radstone has an MA in Law from the University of Cambridge, England, and held the top legal spot at an unnamed "$1 billion private multinational company." He also reportedly held top management positions with Philip Morris, Pfizer, and DHL. Sounds like the makings of a good old legal Donnybrook ahead."

There is a big deal

[EmbeddedJanitor]

Sure, the GPL uses copyright as an instrument and copyright law is pretty well tested, but that is not all there is to GPL. If it was then there would be no GPL.

What remains untested is the interpretation of the GPL and there are large parts of the GPL which are open to different interpretation.

For instance, the definition of "derived work" is pretty key to understanding the the GPL and the definition of that phrase is from being a done deal. The FSF has an faq that give Stallman's definitions and interpretations but these are not binding on the GPL.

Re:Available or Supply?

[maz2331]

GPL is pretty clear that whoever is distributing the binaries must also distribute the source themselves. It's not acceptable to rely on the "upstream" to do so.

No

[maz2331]

It will not scare away anyone who is willing to follow the license terms, but will make those who believe that GPL'ed code is a sort of "freeware" change their attitude fast.

If they are unwilling to distribute source, they shouldn't use GPL covered code, period. Use BSD or license proprietary code instead.

May be a mere aggregation

[rg3]

I've read the article at Linux Watch but I haven't read the PDF copy of the complaint, so I may be completely wrong. That said, BusyBox is a program that, as far as I know, is standalone. For example, Slackware uses BusyBox in the initrd you create with mkinitrd. The end result is a static binary called /bin/busybox that has links made to it, like /bin/ls -> busybox. BusyBox implements a lot of commands (they call them applets), and you can either call it as "busybox ls -l" or, if ls is a link to busybox, you can call it as "ls -l" directly and it will run the ls applet. So I am not sure how you can infringe the GPL with that. If they distribute something that contains BusyBox it could be considered a mere aggregation (as in "we need to run a bourne shell script so we distribute the script we wrote together with busybox and busybox runs the script"). But maybe they distribute a modified BusyBox.

Anyone willing to give more details about where the legal problem is? Thanks in advance.

Re:What's the big deal?

[mark-t]

Actually, it's a little bit simpler than that.

Fair and personal use exemptions notwithstanding, copying copyrighted works without permission from the copyright holder is copyright infringement. Period.

GPL'd code is copyrighted. The GPL merely grants permission to copy to people. Period.

However, the GPL _ONLY_ grants permission to those who agree to the terms of the license. If one doesn't agree, then unless alternative arrangements have been made with the copyright holder, there is nothing granting permission to copy. Without permission, any copying that isn't otherwise exempt from infringement suddenly becomes copyright infringement, just like any other copyrighted work.

The only reason derivative works are allowed to be forced to be subject to the GPL is because copyright naturally extends to derivative works anyways, as long as any copyrighted content from the original exists in the derived work.

Re:What's the big deal?

[NitroWolf]

The big deal is that it will set precedent for future cases. This accomplishes two things. One being it makes it easier for future copyright holders to win a case by citing this case (assuming the SFLC wins) when making theirs. When another judge has already ruled that this sort of case one way, another judge (or the same judge) is more likely to go with that ruling, rather than going the other way. Everything else being equal in a case, if there is precedent set, it will usually tip the judge in favor of ruling with the established precedent.

The second, and perhaps bigger issue here is, as I've already said, set precedent... so if this case is handled poorly by the SFLC, and precedent is set improperly, it's going to make enforcing the GPL that much harder for the next person. While it's unlikely that the SFLC would lose, if their lawyers completely botched it, it would be very bad for the GPL, at least in the short term and would potentially encourage unscrupulous companies to continue or begin to infringe the GPL, since there is case law that shows it's unenforceable.

So yes, it's a big case. Any case that establishes precedent is a big case for the issue involved.

Re:May be a mere aggregation

[QuantumG]

They're distributing GPL licensed software in binary form without the source code and without an offer to supply the source code on request.

These are requirements of the license.

It's really that simple.

Re:What's the big deal?

[Ajehals]

Using your example of "Monsoon built a box, and put the BusyBox software on it, and uses the BusyBox software as a "black box" utility package."

I think the issues would arise if:

1) They are not telling anyone that they are using GPL software and not passing on the license or an offer for the source,
2) They have not modified BusyBox and are not passing on where they got the sourc0e for it from or passing on an offer for the source,
3) They have modified BusyBox and wont share the changes to their customers.
4) They are making some sort of claim that the GPL means that copyright doesn't apply - I have heard it before but never from a top lawyer.

In all cases the appropriate result would be that Monsoon either release the source, plus and modifications and derivatives, plus the license, to their customers, or they must stop using the software and presumably pay some compensation to both the copyright holder (for copyright violation / contract violation) and preferably also pay compensation to their customers (they are also harmed by this after all). In no case should they be compelled to release code that does not fall under the GPL (as decided by the court - if it gets there.)

Well that's my view anyway, but then I am not a top lawyer and have never worked for a $billion company. - IANAL this is not advice.

Re:What's the big deal?

[Planesdragon]

GPL'd code is copyrighted. The GPL merely grants permission to copy to people. Period.

Wrong.

The GPL is legal agreement between two parties -- the copyright holders and anyone who wishes to make a derivative work thereof. Like any other legal agreement, it is subject to the interpretation of the judges of the world, as argued by the lawyers of the world. (even a simple "you may use my work X in your work Y" permission is a legal agreement.)

One of the things that judges can do, if moved by a lawyer's argument or their own sense of public policy, is void part of a contract while still leaving others parts enforceable.

For the most extreme relevant example, imagine if you took a photograph, and I asked for permission to use that photograph. The hypothetical you, being a racist, writes a permission statement that says "may only use in a work that includes a denunciation of all non-blacks." (The hypothetical you is both black, and a racist. Since this is /., I presume the former is only possible and the latter quite unlikely. Anyway.) I take the photo and use it in my happy-bunny cook book, which contains no denunciation of the white man, and you sue me. The judge takes one look at your permission statement, laughs, and voids that "may only" clause, while leaving the permission itself intact.

Let's put it in clear terms: the GPL has not been tested in US courts, which means that there is NO binding precedent for it. Given Congress's and SCOTUS's recent predilection for expansive, pro-business interpretation of copyright law, there is a non-zero chance that the GPL could be rewritten from the bench. (And then appealed, and appealed, until SCOTUS gets a chance to weigh in on the matter).

(And FWIW, you're wrong about derivative works, too. For some works, even if you completely re-create the entire thing, it's still a derivative work. What is and isn't "derivative" is the sort of thing that copyright lawyers get paid millions to figure out.)

((IANAL, RU?))

Re:There is a big deal

[Dunbal]

and there are large parts of the GPL which are open to different interpretation.

For instance, the definition of "derived work"

      I thought that copyright law was pretty clear on what a "derived work" is. The GPL does not modify copyright law.

Re:Maybe they're just clumsy

[redneckHippe]

Actually, we know what Eben Moglen would do. from TFA:
'In a statement, Eben Moglen, Founding Director of the SFLC, said, "Free software licenses such as the GPL exist to protect the freedom of computer users. If we don't ensure that these licenses are respected, then they will not be able to achieve their goal. Our goal is simply to ensure that Monsoon Multimedia complies with the terms of the GPL." '

The GPL isn't a contract

[Anonymous Coward]

so the rest of your post is meaningless.

The GPL is a distribution license (as stated by Eben Moglen), which you are free to accept or reject. And the instant that you redistribute the work that it covers (and hence copy that work), then you are subject to copyright law, whether or not you agreed to the license.

And that's where agreeing or rejecting the GPL becomes relevant, because if you didn't agree to the GPL then you are guilty of copyright infringement, since nothing else gives you the right to copy. Simple.

Contracts require bilateral agreement. A distribution license doesn't require your agreement at all --- nobody forces you to agree to it, but it's on offer if you want it. However, if you don't accept it then nothing else will protect you from copyright infringement if you redistribute the work.

Re:What's the big deal?

[Sparr0]

The point that some lawyers have tried to make is that the violator DID agree to the terms, and GOT permission. *THEN* they violated the terms during distribution. There ARE precedents that say that once permission is given, the only further recourse is as a contract violation, not as copyright infringement. And sadly, some judges think that is binding.

false and true

[Trepidity]

Copyright law is notoriously unclear on what a "derived work" is. But yes, this is a general copyright-law issue, not a GPL-specific issue.

Re:Where is the copyright registration

[Anonymous Coward]

You still need to register to claim statutory damages. Pay more attention to the parent.

Re:Why not use a BSD?

[Flimzy]

I'd like to see you boot a working Unix system without those tools. I'm not talking about running a shell. I'm talking about simply booting the system. Mounting the root filesystem, starting init, starting whatever daemons are necessary... The Linux boot scripts depend *very* heavily on these tools. (That's not to say it's theoretically impossible to boot without using 'ls', 'cd', 'rm', etc... But you would need *something* that accomplishes the same functions.)

Re:What's the big deal?

[yankpop]

that's a different suit than "they are using BusyBox but they aren't making all the source to everything on their hardware available".

I think the more tricky points here are about what it will do to the related works (aggregates, etc.)

This is very clearly spelled out in the GPL. From version 3:

Inclusion of a covered {i.e., GPL} work in an aggregate does not cause this License to apply to the other parts of the aggregate.

As far as the difference between a png decoder and a Stephen King novel, there is no difference in terms of copyright. Because you consider a novel to be inherently more valuable than an unmodified bit of GPL code is immaterial. What you think about it doesn't matter, both works are covered by copyright, and you are bound by law to respect that copyright. And it doesn't matter if you modify the decoder. The key event is distribution. You can modify it all you like and keep your modifications to yourself, *until you distribute it*. Then you are required to release the source to anyone you give the binary to. And that's the case for unmodified code too - if you distribute it, you have to make the source available.

Re:What's the big deal?

[AJWM]

Nope, it's not a contract. It's a conditional license, the granting and continuation of which is conditional upon complying with its terms. As soon as you break the terms you have revoked the license yourself, and may no longer distribute under it.

This is why Slashdot is a poor source for legal information, because people like you post ridiculous theories on it.

Re:What's the big deal?

[AJWM]

The GPL is constructed in such a way that downloading the software is acceptance to be bound by its terms.

Bullshit. It is no such thing.

Read Section 0, second paragraph, and Section 5 (referring to GPL 2, which is the one in question here).

Offering the software for download indicates acceptance of the terms by the offeror of the download (who may be several steps downstream from the copyright holder). The downloader is free to do with it as he or she wishes, totally ignoring the GPL unless he or she wishes to further redistribute the code (modified or unmodified). The license, should they choose to accept it, is granted by the upstream copyright holder, not the offeror of the download.

check out the firmware for yourself

[Sirius25]

Even though they said something about requiring an EULA to download the firmware over two weeks ago, it's still freely available from their site.

myhava.com/support_downloads_hava.html [myhava.com]

For the, "Firmware - 32 bit version" (4.4 MB), just strip the first 96 bytes & mount it as a cramfs image.

Re:What's the big deal?

[AJWM]

Monsoon built a box, and put the BusyBox software on it, and uses the BusyBox software as a "black box" utility package.

Yes, and for every instance of that box that Monsoon sells (or gives away), they are distribiting a copy of that BusyBox software.

The GPL doesn't offer the option of distributers in Monsoon's situation just saying "oh, you can get the source from BusyBox's web site". Monsoon has to provide or make available the source themselves. This is especially true if Monsoon has modified BusyBox (or any other included GPL'd software) it distributes.

As far as the copyright owners are concerned, Monsoon is distributing unauthorized copies of BusyBox; they just happen to be distributing it on unusual media (the box).

As for your "hello world" example, you only have to distribute the "hello world" source (assuming you're also distributing Linux) if it forms an integral part (not necessarily linked in, but necessary to get everything working) of the Linux you're distributing. If it's just another program on the same disk ("mere aggregation"), then no.

Re:The GPL isn't a contract

[SashaMan]

Why is this modded down? It is legally correct. For a fairly good description of why the GPL is NOT a contract (but is still enforceable) see http://weblog.infoworld.com/openresource/archives/2007/06/enforcing_the_g.html [infoworld.com]

Re:Why not use a BSD?

[ZachPruckowski]

He seems to think they are running a stripped down Linux distro on this box. You seem to think the same. Why do you think this?

Well, they've said that they're running Linux [myhava.com] on the box (gary-MM, halfway down the page). People also found evidence of Linux on the Hava using nmap and strings(1). I'm assuming it's with a patch-set, but you're right in that it could probably just be compiled with only certain modules. As far as the "for something", given the list of Busybox tools [busybox.net], the idea that they're using at least a handful of them does not surprise me. Maybe there are ways around using them, but that's not the point.

I'm fully aware that Linux is a kernel, not an OS. However, between Linux and Busybox, you've got most of the necessary platform to run their proprietary program on, which was what I meant originally. From Hava's perspective, the goal is to have a platform to run their media-streaming and GUI software on for the box.

Ya know, if you keep using "OS" and "Linux" synonymously I'm going to have a hard time understanding what you are talking about.

I didn't use OS and Linux interchangeably. Everywhere where I said OS I either meant it generically or used it in a context ("write or license") that disqualified Linux.

Re:The GPL isn't a contract

[Anonymous Coward]

Looks like that argument hinges on that idea that there is no consideration. But one can argue that there is consideration. In exchange for GPL'ed code, you agree to provide/release your code under the same terms. Basically a trade of intellectual property.

Now who the beneficiary would be is an interesting question in that the beneficiary is the "community". The community as a third party is kind of vague. But no more vague than terms like "public" or "public domain" or "public trust". The specific community for a GPL'ed work is probably less vague than those since there are identifiable leaders, members and places where they convene.

Finally, here is the obligatory link. This one provides a reason why someone could make a case for the GPL as a contract: http://hietanen.typepad.com/copyfraud/2005/06/creative_common.html [typepad.com]

See the first response.

Re:Maybe they're just clumsy

[EzInKy]

I have to say that I agree. In all such things I ask myself: "What would Eban Moglen do?" Until recently he was the legal genius behind the GPL. (maybe he still is, I'm a bit confused) His approach was always to resolve the problem without needing to sue. It really does seem to me that these guys went off half cocked. If you want to see what happens when you do that, check out SCO.


Well at first I thought as you did, at least until I went to Hava's forums [myhava.com] to see what got everybody up in arms. The support drones first response was to accuse the users of violating Hava's EULA:

Greetings all.

I have a little secret to let you in on - HAVA runs Linux! Yes, much of the source is GPL and we should publish those sections which we have modified per the terms of GPL. A project is underway to pull this together.

A couple of observations - some of you appear to be violating the terms of the End User License Agreement, specifically:

Quote:
2. Restrictions

You recognize and agree that the HAVA Software including its structure, source code and the design and structure of modules or programs, constitute valuable trade secrets owned by Snappymultimedia or its licensors. You will not copy or use the HAVA Software except as expressly permitted by this EULA and, specifically, you will not

[...]

(b) yourself or through any third party modify, reverse engineer, disassemble or decompile the HAVA Software in whole or part, except to the extent expressly permitted by applicable law, and then only after you have notified Snappymultimedia in writing of your intended activities;

Seems to me that some of you have just come out blatantly admitting you are reverse engineering the firmware - or trying to. How should we handle this?

Also, please realize that NOT ALL of HAVA's important functionality is covered by GPL, so you won't actually have everything you need to get HAVA working.
_________________
Best regards,

MyHAVA Support

Re:Where is the copyright registration

[karl.auerbach]

You are confusing the now obsolete need to register to obtain a copyright with the still present obligation to register in order to bring an action complaining that the copyright has been infringed.

In other words, even if you have a copyright you can't sue anybody until you register the copyright.

And as far as I can see from the complaint busybox isn't registered. And there is a question whether the plaintiffs can do anything more than file a copyright registration on any but pieces of busybox, particularly since it includes a rather large number of chunks of code from others, many of which are not under the GPL and rather more liberal licenses - e.g. the e2fsprogs.

By-the-way, your perjoratives are rather misdirected; You seem to misread the wikipedia entry, which is at best ill written, and you might want to check out the actual law, which I quoted in a follow-up to my initial comment.

Re:Why no claim based on contract?

[amber_of_luxor]

>I know that the FSF and the SFLC say that GPL is only license, not contract, but are they really willing to live or die on this issue?

Under Anglo-American Law, a contract requires consideration. With the GPL there is no consideration,and hence no contract.

Under Roman Dutch Law, a contract does not require consideration. Hence,in jurisdictions that are based upon Roman-Dutch law, the GPL can be construed to be a contract.

For the US, the only legal theory they can use, is that the GPL is a license. If they are not willing to bet the farm that it is a license, then they need to be in another line of work.

Note: I am not a lawyer, this is not legal advice.

Amber

Re:What's the big deal?

[nickco3]

Eben Moglen, "Licenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits."

[http://www.gnu.org/philosophy/enforcing-gpl.html]

Re:What's the big deal?

[psmears]

Well, no. The license exists. There's no way to go back in time to make it not exist. That cat is already out of the bag.

Until you give notice of termination of the license, it is still in effect and you're still not bound by your legal promise not to sue for infringement.

[I assume you mean "you're still bound" :-) ].

Perhaps that's why the GPL has the following section?

8. Termination.

You may not propagate or modify a covered work except as expressly
provided under this License. Any attempt otherwise to propagate or
modify it is void, and will automatically terminate your rights under
this License (including any patent licenses granted under the third
paragraph of section 11).

...that is, giving notice in advance that performing certain actions will terminate the licence.

Re:Maybe they're just clumsy

[zebslash]

To be fair to the man, one has to read the rest of the thread:

Honestly I was just pokin' a bit of fun at you. There was no threat.

Hugh, You da man. Thanks for taking the time to write all that. I admit it. The guys on phone support started harassing me over and over about GPL and I got a bit tweaked. My initial reaction was out of line. Now that I'm laying on the carpet begging not to be kicked again, I can inform you that the following modules' source code will be released. - madwifi driver - wpa_supplicant - busybox - Z-com driver (for wi-fi card) Will follow up with the "when" "when" I found out. Actually - now that you mention it - I would like to see this thing compatible with MythTV too. Let me see if I can sneak it into the plan. Thank you and have a lovely day.