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Larry Rosen: A Case Study In Understanding (and Enforcing) the GPL 191

Posted by timothy from the he-actually-wrote-the-book dept.
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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Larry Rosen: A Case Study In Understanding (and Enforcing) the GPL More

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

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

    by Animats ( 122034 ) on Tuesday August 12, 2014 @12:47PM (#47656497) Homepage

    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 (Score:5, Insightful)

      by MightyMartian ( 840721 ) on Tuesday August 12, 2014 @12:56PM (#47656583) Journal

      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.

      • THIS.

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

      • Re: (Score:2)

        by tlhIngan ( 30335 )

        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

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

          by Spazmania ( 174582 ) on Tuesday August 12, 2014 @03:37PM (#47657933) Homepage

          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: (Score:3)

            by sixoh1 ( 996418 )

            +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

            • 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 --

              • The GPL doesn't proscribe that "You must GPL the end result" it says that you are infringement and must not distribute. The way out is to GPL or hash out some agreement with the Licensors (GPL authors) of some sort, but relicensing simply is not automatic, as frusturating as it might seem.

        • 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 proprietar

        • Re: (Score:2)

          by sjames ( 1099 )

          GPL isn't the relevant part of the nightmare though. It is no less harmful if B takes per-instance proprietary library D and links it to A. You are now potentially on the hook for more than each copy of A was sold for.

    • Re: (Score:3, Insightful)

      by Kaz Kylheku ( 1484 )
      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

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

        by bulled ( 956533 ) on Tuesday August 12, 2014 @01:13PM (#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.

        • Indeed. This is no different from distributing, say, a copy of Oracle's database with your code without a licensing deal. They don't require a key code to install or run it - you can download, install and run it, but without paying $17k per processor, you are in violation of their copyright.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        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 (Score:5, Informative)

        by khellendros1984 ( 792761 ) on Tuesday August 12, 2014 @01:25PM (#47656847) Journal
        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: (Score:2)

        by mark-t ( 151149 )
        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 p

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        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 bi

      • Re: (Score:2)

        by Kjella ( 173770 )

        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

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

        by sribe ( 304414 ) on Tuesday August 12, 2014 @01:49PM (#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.

      • 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.

      • Re: (Score:2)

        by jrumney ( 197329 )
        The original author was distributing both GPL and commercially licensed copies, so a monetary value can very easily be attributed as damages in this case.

      • The difference is that the code is distributed for free.

        Nonsense. The GPL is especially used against finance-driven development. You "pay" by being a human instead of a robotic bean counter. The GPL states other demands than monetary. The GPL exist to fight money based extortions. The damages are damages against humanity. These damages are more real than the dollars you want to express them in.

  • ... 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.

    • 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: (Score:2)

        by vux984 ( 928602 )

        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 sens

      • ... 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.

        • 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: (Score:2)

        by spitzak ( 4019 )

        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 violatin

      • 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.

        • Where did Vyatta get the source if not from a GPL version?

          • Versata, I typoed it.

            As far as acceptance of the license goes, it doesn't matter where they steal the source from, the license is not automatically accepted. The GPL is funky that way: one part tries to say it can be automatically accepted, another part concedes that it isn't, and the law everywhere in the US except two states says it isn't.

    • 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: (Score:2)

        by sixoh1 ( 996418 )

        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

  • Fault appears to lie with Versata (Score:3)

    by BaronM ( 122102 ) on Tuesday August 12, 2014 @01:05PM (#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.

    • "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 Androi

    • Re: (Score:3)

      by msobkow ( 48369 )

      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: (Score:2)

        by msobkow ( 48369 )

        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.

    • XimpleWare was apparently of the opinion that using the GPLv2 license carried along a patent license, whether implicit or explicit. In that case, it could be redistributed under the GPLv2, but any distribution or copying not compliant with the GPLv2 would violate not only copyright but patents.

      Ameriprise did distribute copies of XimpleWare's code without proper license. If they'd merely used copies they got from Versata, they'd be in a much better position. If the contract with Versata contained an in

  • The viral argument is misleading. (Score:3)

    by queazocotal ( 915608 ) on Tuesday August 12, 2014 @01:09PM (#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.

    • 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

    • Actually, no, you can't come into compliance with GPLv2 by retroactively following it. If you've violated it, you no longer have a license (GPLv3 has provisions for coming into compliance again, but GPLv2 doesn't).

      You can either accept the injunction from further distribution and pay what the court says to, or you can negotiate with the copyright holder(s). In many cases, the violator has negotiated a settlement in which they provided some guarantees that they would relicense the already distributed co

  • 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 f

    • Re: (Score:2)

      by jopsen ( 885607 )

      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

      • Re: (Score:2)

        by vux984 ( 928602 )

        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

  • I'm quite sure that... (Score:4, Interesting)

    by mark-t ( 151149 ) <markt AT nerdflat DOT com> on Tuesday August 12, 2014 @01:20PM (#47656813) Journal

    ... 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.

  • Do What Though Wilt (Score:2, Insightful)

    by Anonymous Coward

    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 o

    • Re: (Score:2)

      by spitzak ( 4019 )

      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.

    • Re: (Score:2)

      by u38cg ( 607297 )
      Umm, the point of the GPL is not altruism. It is to create software that the end user has the right to inspect and modify. So yes, if altruism is your goal, public domain your code and be done with it (this works perfectly well for, say, SQLite).

      • The point of the GPL is indeed altruism. It's a different approach than the BSD, but both are altruistic in that they allow people to do things with the code freely. Public domain, on the other hand, is legally troublesome, particularly in some countries. If you want anybody to use the code for whatever use the BSD license or the WTF license or something like that.

  • Morality vs The Law (Score:5, Insightful)

    by Anonymous Coward on Tuesday August 12, 2014 @02:02PM (#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 live

    • Re: (Score:2)

      by pem ( 1013437 )
      The thing you have to remember is this:

      The code in question is dual-licensed.

      The code is not produced by a charity; it is produced by a business. From the perspective of a business, the GPL is a marketing tool -- a great marketing tool. "Here's the source; try it out! Talk to others who are using it! Just contact us if you want to merge it with your proprietary code and make money!"

      Any business can use the GPL this way, and many have. Just because a business uses the GPL does not mean that their

    • Thank you for your analysis, but it seems to me that Ameriprise is not just a customer. They're also a distributor of GPLed software not in accordance with the GPL. It seems to me that the plaintiff would have every legal and moral right to at least get an injunction against further distribution. I don't know if there were any lawsuits against anybody for just receiving the software.

      This is also a commercial case, since the software is dual-licensed. The plaintiff would normally have collected mone

  • 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.
  • 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. Kee

    • While I largely agree with you, this is a problem completely unrelated to F/OS licenses.

      For many things, a violation is a violation whether somebody knows it is a violation or not. Ameriprise clearly wasn't willfully or knowingly violating copyright and maybe patent law, but they don't get a free pass just because they didn't know (just reduced penalties). Otherwise, a company could acquire software or other copyrighted and/or patented material through a small "burner" company that could be left to go

  • Versata chose to steal the code instead of licensing it under the commercial license or the GPL. Just because the GPL allowed the thieves to legally look at the code or use it unmodified does not magically transform this into a nightmare scenario. They are not being forced to either abandon their project or release their own code. They could just buy the commercial license like any responsible grownup would do.

    The claim that this is a GPL nightmare scenario is just a stupid lawyer trick to try to f

  • 1. Implied - Not directly expressed.
    Patent - A patent is an exclusive right to a particular invention.
    License - permission to do what what otherwise be illegal.


    IF a company gives you permission to do something that would otherwise violate patent law, you have a patent license for that task even if not patent was specifically mentioned. If Microsoft entered into a contract with me to manufacture android devices for their employees, that can't turn around a sue me for patent infringement of those spec

    • The GPL has generally been held to be a copyright license, and that disregarding it is a copyright violation.

      The law on loading into RAM or whatever is, IIRC, that copyright is not infringed by copying necessary for use of software obtained legally. Personally, I think it should be legal regardless (I'm not liable for copying words into my retina or brain if I'm reading an illegally copied book), but that's another topic. There's also the question of what the plaintiff is suing for; if a plaintiff is n

  • The only thing I don't quite understand is the possible motivation for XimpleWare to only sue for patent infringement, but not for copyright infringement. It's not like you have to choose between the two (you can have both), and anyway it seems that a copyright claim would be quite strong.

    Maybe it's just to keep the lawsuit more contained and therefore save in attorney's fees and costs? On the other hand it seems to me that only claiming patent infringement encourages the defendants to challenge the validit

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