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The Mobile Earthquake - GPL Compliance, Google Acquisitions, etc.
Monday, August 15 2011 @ 03:30 PM EDT

Attorney Edward Naughton of Brown Rudnick has written [ Part II] more misinformation about the GPL in yet another false prediction of Android's doom. Once again Mr. Naughton takes a non-story and blows it out of proportion, and of course, FOSSPatents does its part to blow hot air into the story as well.

If the idea is to scare off potential Android OEM's or purchasers of Android-powered phones, this sort of scare tactic is just rubbish. It has failed in the past, and it will fail this time.

People who don't understand the GPL probably shouldn't write about it, including lawyers. I'll show you the mistakes in the article, and please note that while I am a member of the board of directors of Software Freedom Law Center, which will factor into this story, I speak only for myself and Groklaw, not for SFLC in this article.

Now we have run into Mr. Naughton before as he has advanced what many of us see as a pro-Microsoft, anti-FOSS position. The fact that he has ties to Microsoft is already established (see Lawyer behind Android infringement claim has Microsoft ties by Joe Brockmeier on NetworkWorld). Why is it a non-story? Consider each of the following points:

  • The oft-cited BusyBox cases are frequently misconstrued. First, both the Software Freedom Conservancy and the Software Freedom Law Center are on record as saying they have never sued (nor do they intend to sue) any party that will respond to a phone call. The important part of that statement is that they are merely seeking compliance, not the millions or billions of dollars frequently sought in software patent infringement litigation. Yes, there have been some non-complying parties that have required a bit more effort and who have then been asked to make a contribution to the above entities to offset the cost of the litigation, but there are far more parties who have simply said, "Help us comply with the rules of the road because we simply want to do the right thing." And, yes, there have been instances where SFC has sought injunctive relief against some recalcitrants, but those instances have been the exception, not the rule. From a Software Freedom Conservancy Memorandum of Law in Support [PDF] of a motion for injunctive relief in the Best Buy case:
    As of the filing of this motion, Plaintiffs have reached settlement with nine of the fourteen defendants and received a default judgment from the court with respect to one other defendant. Thus, only four defendants remain. Settlement discussions with two of those defendants have been very productive and plaintiffs believe settlement with them is imminent. Plaintiffs have hoped to reach an amicable settlement with the remaining two defendants, Best Buy and Phoebe Micro, however, settlement negotiations with those two defendants have proven futile. In the fourteen months since Plaintiffs first contacted Best Buy and Phoebe Micro regarding their violation of the free and open source software license, both have repeatedly failed to come into compliance with Plaintiffs' license and instead chosen to brazenly begin completely new infringing distributions of Plaintiffs' copyrighted software. To be sure, both Best Buy and Phoebe Micro continue to distribute Plaintiffs' copyrighted software today without Plaintiffs' permission, causing irreparable harm to Plaintiffs' rights as copyright holders of BusyBox.

    Plaintiffs would be happy to settle this matter with Best Buy and Phoebe Micro if they either (i) ceased all distribution of BusyBox or (ii) committed to distribute BusyBox in compliance with the free and open source license terms under which Plaintiffs offer BusyBox to the world. Plaintiffs have patiently worked with Best Buy and Phoebe Micro to bring their products into compliance with the license, but unfortunately have now concluded that those efforts are destined to fail because neither Best Buy nor Phoebe Micro has the capacity and desire to meet either of Plaintiffs' demands for settlement. As such, Plaintiffs are forced to protect their interests in BusyBox by now respectfully moving for a preliminary injunction, pursuant to Rule 65, enjoining and restraining defendants Best Buy and Phoebe Micro from any further copying, distribution, or use of their copyrighted software BusyBox.

  • While the claim is that tens -- no, make that hundreds, no, make that thousands -- of Android manufacturers are ignoring their obligation to make the source code for their phones and tablets available in compliance with the GPL, neither author identifies a single one. Doesn't that strike you as a bit interesting?
  • GPL compliance issues with OEMs are not new history; they have been around for awhile and most have nothing to do with Android. More frequently the issues arise from manufacturers of things like set-top boxes who are located outside the U.S.
  • Enforcement of the GPL is not mandatory. Each copyright holder may elect whether or not to enforce (this, of course, does not change the facts of whether a party is in compliance with their obligation to make source code available; only with whether the copyright holders care enough to pursue the issue). This discretion and the election to enforce differs from one FOSS project to the next.

Bradley Kuhn of the Software Freedom Conservancy has called Mr. Naughton out before about his incorrect notions about Android and GPL enforcement. As Bradley says, "Don't you think if he was really worried about getting a GPL or LGPL violation resolved, he'd contact the guy in the world most known for doing GPL enforcement and see if I could help?"

Enough said on that topic, at least by us. Look for Eben Moglen to address these articles when he speaks at the Linux 20th Anniversary in Vancouver on Wednesday.

Now how does all of this tie into Google's purchase of Motorola Mobility. [There are a lot of articles about the purchase, but I found this to be one of the funniest.]

It's all about leveling the playing field and making sure that consumers have choice, not a choice merely between an iPhone 4 or an iPhone 5 or between an iPhone and a phone powered by Windows Phone 7, but a choice between phones operated with a *closed* operating system and one powered by a (relatively) open operating system.

Patently O estimates that Motorola Mobility's huge patent portfolio be as many as 24,000 patents and pending patent applications worldwide in that portfolio now changing hands. And some of those patents are already problematic to both Apple and Microsoft. I would expect one of two outcomes from this purchase: (a) an earlier than expected truce between Google and Apple and Google and Microsoft; or (b) a battle to the death. Let's hope for all involved - the companies, the economy, and consumers - it is the former and not the latter.


  


The Mobile Earthquake - GPL Compliance, Google Acquisitions, etc. | 350 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Mobile Earthquake - GPL Compliance, Google Acquisitions, etc.
Authored by: Anonymous on Monday, August 15 2011 @ 03:35 PM EDT
There's a quote in the first sentence that never gets closed (or never was
opened?).

bjd

[ Reply to This | # ]

Corrections
Authored by: Anonymous on Monday, August 15 2011 @ 03:36 PM EDT
n/t

[ Reply to This | # ]

Android GPL non-compliance articles
Authored by: tknarr on Monday, August 15 2011 @ 03:53 PM EDT

One thing I've noticed in these articles: they're long on assertions that Android and/or manufacturers of Android-based phones are not complying with the GPL, and long on links to other articles making the same assertion. What they seem to be short on are the details of exactly what this non-compliance consists of. I learned long ago to be skeptical of that sort of article. I want references to primary sources, details of the actual underlying activities, mention of the exact code involved and the exact way it's being distributed in a non-compliant manner. If you can do that you don't need to pad the article out with references to other secondary sources, and if you can't then all the secondary sources in the world won't make the argument any stronger.

I also note they're short on mention of exactly which copyright holders have taken action. I'm fairly sure, given how much news Android is getting, that at least one copyright holder would've stepped up and said something by now. It's not like some of the copyright holders of the code involved in Android lack for resources or motivation. If none of the copyright holders believe there's been enough violation to make it worthwhile to call Google et. al. on it, then perhaps that's because there's just no violation after all?

[ Reply to This | # ]

Corrections
Authored by: SilverWave on Monday, August 15 2011 @ 03:55 PM EDT
Log on.
So every one can see them ;-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Off Topic
Authored by: SilverWave on Monday, August 15 2011 @ 03:56 PM EDT
Log on.
So every one can see them ;-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

News Picks Thread
Authored by: SilverWave on Monday, August 15 2011 @ 03:57 PM EDT
Log on.
So every one can see them ;-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Comes Thread
Authored by: SilverWave on Monday, August 15 2011 @ 03:58 PM EDT
Log on.
So every one can see them ;-)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Java ME technology licensees >
Authored by: SilverWave on Monday, August 15 2011 @ 04:03 PM EDT
Java ME technology licensees
The companies listed below have licensed Java Platform, Micro Edition (Java ME) configurations and profiles and the associated Technology Compatibility Kits (TCK). Only Java ME technology licensees can claim compatibility with Java ME technology specifications and TCKs. ACCESS Co., Ltd. Aplix Corporation ARM Ltd. Ericsson AB IBM Jmobile Ltd. LG Electronics Matsushita Electric Industrial Co., Ltd. Microsoft (formerly Danger Inc.) Motorola Myriad Group AG Nokia Research In Motion Ltd. Sagem Samsung Electronics Co., Ltd. Sharp Electronics Siemens AG Sonic Solutions Sony Ericsson Mobile Communications AB Toshiba Veloxsoft, Inc.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

MS (and Nokia?) retaliation
Authored by: IMANAL_TOO on Monday, August 15 2011 @ 04:17 PM EDT
Even if MS will try to get their hands on Nokia, one must rest reasonably assured that both Nokia and Microsoft will honor the GPL.

See, Microsoft was actually one of the biggest contributors to the Linux kernel in 2010! And the Microsoft contributions to open source began before that:
xperts say Microsoft's submission Monday of virtualization driver source code to the Linux kernel marks a watershed event in the vendor's understanding of open source's future.

"This is another sign of Microsoft's maturation with respect to open source," says Jeffrey Hammond, an analyst with Forrester Research. "There has been a real set of stepping stones toward a pragmatic and practical embrace of open source. This is like the final capstone."

Microsoft has made code submissions to PHP, given significant financial support to the Apache Foundation and added open source code to its product portfolio in such places as Windows HPC Server, System Center management software and its Visual Studio development tools.

And the vendor operates a Linux/Windows integration lab with partner Novell.

"There is no going back now on their attitude with the GPL. They can no longer say Linux is a cancer when they have 22,000 lines of code in the kernel," Hammond said.

Microsoft says its goal is to become a platform Linux users can turn to.

"As open source is adopted on a range of platforms we need to understand it really clearly to make ourselves one of the best platforms to adopt it on," said Sam Ramji, who runs the Open Source Software Lab for Microsoft and is the company's director of open source technology strategy.

N okia, too, just loves Linux and will disregard of patent use made in Linux, even if they "reserved the right to exclude future patents from the agreement":
Nokia said Wednesday its patented technology may be freely used in the Linux kernel, making the Finnish cell phone giant the newest computing company to begin offering intellectual property protections to open-source programmers. "Nokia believes that the investment made by so many individuals and companies in creating and developing the Linux kernel and other open-source software deserves a framework of certainty," the company said in a statement. Nokia made the announcement the same day it introduced a small Internet device based on Linux.
There was also a Groklaw article on it!

So, my guess is the exact form of a MS (and Nokia?) retaliation probably will be hard to anticipate as they both have GPL software under their nails. Nokia has GPL/LGPL software in droves thanks to buying Trolltech some years ago.



---
______
IMANAL


.

[ Reply to This | # ]

hey google ill make you code
Authored by: Anonymous on Monday, August 15 2011 @ 04:38 PM EDT
do it free and do as much as i can, now all those trolls come
sue me....

[ Reply to This | # ]

you could have just quoted my comment
Authored by: designerfx on Monday, August 15 2011 @ 04:45 PM EDT
from the previous article :P momma don't raise no fool.
Don't forget that this is quoted all over fosspatents as "evidence lawyers have surmised the GPL violations are a big deal", too.

[ Reply to This | # ]

Conflicted
Authored by: MDT on Monday, August 15 2011 @ 04:53 PM EDT
I would expect one of two outcomes from this purchase: (a) an earlier than expected truce between Google and Apple and Google and Microsoft; or (b) a battle to the death. Let's hope for all involved - the companies, the economy, and consumers - it is the former and not the latter.

I feel highly conflicted here. Yes, the former would be bad for the companies and economy and consumers. In the short term. However, such a visible and stupendous (or should bit be stupidious) example of just how bad for the economy and companies and consumers software patents are (and yes, I know not all of Motorola's patents are software, but I would bet money that many are, and of the hardware patents, quite a few are either obvious or a combination of old hardware ideas wrapped up with 'with a computer chip and program on it') that it might finally rock the boat enough for everyone to get on their congresscritters (including the people that bought a lease option on their souls via campaign contributions) to fix it. Which would be very good for companies and the economy and the consumer in the long run.

---
MDT

[ Reply to This | # ]

The Mobile Earthquake - GPL Compliance, Google Acquisitions, etc.
Authored by: ftcsm on Monday, August 15 2011 @ 04:53 PM EDT
I would really love to all parties to come to their normal senses and stop this
madness. But I don't believe in it and I'm not quite sure that a fearsome battle
is not the best solution.

Imagine for a moment that Google goes to FTC and ITC and block imports and sale
of iPad and iPhone. Get 3 months of blocking and them call Apple to say:
"maybe we could stop fighting about patents and start battling only at
technical level. The alternative is to continue this pointless battle up to 2020
...". I suppose Apple will immediatelly start a non-agression agreement
with Google and the rest of the market will fear (a lot) Google even more.

The problem for Apple and MS is that google does not depend on products, they
sell services. If Motorola stays 2 years without selling a single handset, they
can afford to do it. Apple cannot survive 2 years without selling iPhones and
iPads (and eveything similar). (Get the message: USA economy down, Apple even
lower and possibility of more big players going down the drain, it's the worst
nightmare of politicians).

It would teach the "gang" a tough lesson: do not battle someone that
does not fear you or who knows your weakness! If Apple and MS starts to feel
that much pain, then laws would start to change fast, I believe. When you want
bullies to stop threatening you, you go to the end with the first bully, the
others will not want to be humilliated in front of everyone like the first one.

Flavio

---

------
Faith moves mountains but I still prefer dynamite

[ Reply to This | # ]

Chris Hazelton, of The 451 Group: predicts [Deal] will lead to a slowing in its growth rate...
Authored by: SilverWave on Monday, August 15 2011 @ 04:58 PM EDT
Hazelton called this acquisition a defining moment in Android's history that will lead to a slowing in its growth rate.

Bookmarked :-)

Lets see eh?

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Discretion of each copyright holder?
Authored by: Anonymous on Monday, August 15 2011 @ 05:23 PM EDT
Enforcement of the GPL is not mandatory. Each copyright holder may elect whether or not to enforce (this, of course, does not change the facts of whether a party is in compliance with their obligation to make source code available; only with whether the copyright holders care enough to pursue the issue). This discretion and the election to enforce differs from one FOSS project to the next.
The threat might be overblown, but the threat is still there, if a copyright holder chooses to enforce. The threat is more significant if the holder is a significant contributor. All it takes is one. Yes, there could be workarounds, but this could be potentially damaging to an OEM.

[ Reply to This | # ]

GPL Feature Creep
Authored by: Anonymous on Monday, August 15 2011 @ 07:03 PM EDT
FWIW, GPL "feature creep" is a genuine concern for some of us.

... first they came for the kernel plugins, and I didn't speak out because I
don't write kernel plugins. Then they came for the Wordpress extensions, and I
didn't speak out because I don't write Wordpress extensions. Then they came for
the apps and there was noone left to speak out for me ... :-)

[ Reply to This | # ]

Motorola
Authored by: Anonymous on Monday, August 15 2011 @ 07:09 PM EDT
Google grabbing Motorola surprised me a bit. Though after what the Motorola CEO
have been reported to be saying lately, wanting some company to buy them up,
thinking about Windows Phone... etc. I wonder how much of that gave Google the
nudge to go through with the deal.

Assuming this does not get delayed or blocked by authorities, this seems to be
really bad for Nokia (and it is already bad enough for them without this). I
suppose there will be lots of noise for Microsoft to buy Nokia. This is great
news for Android. I wonder if this can help Amazon and other "smaller"
Android device sellers.

[ Reply to This | # ]

My favourite lie repeatedly thrown around in all of this...
Authored by: DarkPhoenix on Monday, August 15 2011 @ 09:09 PM EDT
... is the continuous claim that OEM's will fear Google competing with them, and
so they'll jump to a "truly open platform in Windows Phone 7."

Which always makes me laugh. What exactly is open about Windows Phone 7? It
seems to me that the only time the word open is used around Microsoft is when
you're talking about your wallet.

---
Please note that sections in quotes are NOT copied verbatim from articles, but
are my interpretations of the articles.

[ Reply to This | # ]

Value for money???
Authored by: maroberts on Tuesday, August 16 2011 @ 03:12 AM EDT
In the current litigation it seems that even if the court accepts Oracles claims
of patent breaches, then Google is only on the hook for $100million give or
take. One would presume other patent cases would also settle for around these
figures


I'm not entirely certain whether Google is getting value for money in spending
$13 billion to get round a problem that, on its face seems to be only a few
hundred million in scale....

[ Reply to This | # ]

Motorola A760
Authored by: IMANAL_TOO on Tuesday, August 16 2011 @ 06:08 AM EDT

Here is an interesting gadget, the Motorola_A760 which used the Linux and Qt and Java!:
The A760 is particularly significant in that Motorola was a founding member of the Symbian OS initiative (a software platform competing against Linux, Windows Mobile and Palm OS for mobile phones) and in spite of this, used Linux instead of Symbian for the phone. As such the A760 may mark the beginning of the use of Linux on mobile phones. Other newer Motorola phone models which use Linux are the A768 and the E680, as well as the A1200. The A760 is reportedly the world’s first handset combining a Linux Operating System (OS) and Java Technology, with full multimedia PDA functionality and a built-in camera.

The phone's user interface was built using Trolltech's Qtopia Phone Edition platform on top of the Qt/Embedded software development framework for embedded systems.

What would the significance of that one be as it was released already in February 16, 2003? This is getting entangled as that was before the SCO debacle too.


---
______
IMANAL


.

[ Reply to This | # ]

Google relicensed code?
Authored by: Anonymous on Tuesday, August 16 2011 @ 08:57 AM EDT
Edward J. Naughton suggests that Google relicensed code:
A visual examination of the source code for Gingerbread -- the latest complete version of Android that is publicly available – reveals several instances of what appears to be GPLv2-licensed code included in files that are licensed under the Apache License. For example, Android uses “bootcharting” logic, which uses “the 'bootchartd' script provided by www.bootchart.org, but a C re-implementation that is directly compiled into our init program.” The license that appears at www.bootchart.org is the GPLv2, not the Apache 2.0 license that Google claims for its implementation.
I found that hard to believe, so I looked into it. The best I could find was searching for the quote he used. It seems that there is a typo in a readme file. It should say that it does NOT use the bootchartd script. Clearly this guy doesn't have a clue what he's looking at. So how did he come across this? In my searching I did see a post from a Sony programmer asking if a dual license could be obtained, but if not it would be easy enough to rewrite it. Just makes me wonder what Mr. Naughton was actually using for his search criteria...

[ Reply to This | # ]

How exactly does Google's Motorola Acquisition protect anyone?
Authored by: Anonymous on Tuesday, August 16 2011 @ 10:07 AM EDT
Motorola's patent portfolio hasn't stopped Microsoft or Apple from suing
Motorola.

How would Motorola's patent portfolio stop patent trolls (non-practicing
entities) from suing Motorola if
practicing entities aren't afraid to sue Motorola?

How would Motorola's patent portfolio stop Microsoft or Apple from suing other
Android OEMs such as
Samsung or HTC???? It does not.

How would Motorola's patent portfolio stop patent trolls (non-practicing
entities) from suing other Android
OEMs???? It does not.

How would Motorola's patent portfolio stop Microsoft or Apple from suing Google
when it hasn't stopped
them from suing Motorola???? It does not.

How would Motorola's patent portfolio stop patent trolls (non-practicing
entities) from suing Google when it
hasn't stopped practicing entities from suing Motorola???? It does not.

So how does Motorola's patent portfolio exactly protect Android????

All that Google's purchase of Motorola's patent portfolio seems to do is to
protect other Android OEMs from
Motorola's patent suits against them, potentially adding another layer of costs
to Android.

Google just sacrificed the last TWO YEARS OF PROFITS to purchase Motorola.
Google now competes against
other Android Licensees - a channel conflict - which usually does not work out.
And Motorola hardly makes
money in its primary business - the cellphone business - nor will it without
harming the other Android
licensees since it will obviously have preferential treatment.

Interesting move.

[ Reply to This | # ]

Google buys Motorola: Antitrust issues?
Authored by: Anonymous on Tuesday, August 16 2011 @ 11:54 AM EDT
This is cool news, and I'm glad it happened. That shows that the money saved by
Google when not buying the Nortel patents was well spent.

Now I am worried something else. To what point will this acquisition make
Google's antitrust case against MS, Apple et al. feebler?

Can Google in turn get an antitrust complaint?

[ Reply to This | # ]

Google - Microsoft et al truce?
Authored by: Anonymous on Tuesday, August 16 2011 @ 01:18 PM EDT
Sorry NOT WANTED... what is wanted is abolition of software patents
completely... not the cross licencing nonsense which still leaves open source
programmers at risk of infringement. Hardware patents I can live with, but
software should NOT be patentable as all software can be reduced to strict
mathematical expressions and mathematics is NOT patentable.

[ Reply to This | # ]

Does this situation make 3?
Authored by: Anonymous on Tuesday, August 16 2011 @ 04:48 PM EDT

I think I've lost count. I know it's not the first such situation where some who are, shall we say - very friendly to Microsoft, came out in force to claim a GPL violation while not a single actual copyright holder thought there was a problem.

I distinctly recall a previous situation quite some time ago that fit the MO (for those unfamiliar with the Latin term: modus operandi - very roughly translated as "method of operation").

If this situation is as I think and is just a continuation of a recent claim with regards Linux headers, then I guess this is just the second time. However, if it's different from the headers claim, I guess this is the third instance.

RAS

[ Reply to This | # ]

The Mobile Earthquake makes sense of the mathematical constants
Authored by: Tolerance on Tuesday, August 16 2011 @ 05:28 PM EDT
Hi all,
Some Groklaw denizens may be puzzled by the latest Google doodle (x^n + y^n
<> z^n, n >2). So what's with the Google doodle noodle boodle? The
latest puzzling picture heading up Google search has Fermat's Last Theorem
googlified. I think it's all about dollars for value.


The short uninteresting explanation is that it marks the famous "Last
Theorem" of Pierre de Fermat, a French lawyer who started being an amateur
mathematician in his 40s. More interestingly, one can say Google is expressing
its corporate inner geek. But why now? I think it's all about dollars for
value.

You may or may not be aware that Google is engaged in a corporate war with
a consortium led by Apple, Microsoft et al. over patents for mobile telephony.
Call them the Anti-Android Intervention Evil Empire of Electronics for now
(AAIEEE for short).

As one step in that war, Google was outbid for a bunch of patents which
were eventually bought by AIEEE for $4.5 billion, about five times what Google
thought they were worth. Google was accused by some of being flippant and
UnSerious because Google's bids were numbers like $3,141,592 .... etc. No-one
who places a bid of pi billion dollars can possibly be a serious businessperson,
clearly.

A short time ago the reason for the flippant bids became clear. Google could
afford to make bids for the Nortel patents which amounted to geeky math
constants ... because it was negotiating to buy Motorola's mother and fatherlode
of all patents.

It seems Google forked over US$12.5 billion for the entire mobile phone
company, which was a worthwhile purchase, certainly better value than six times
the stalking-horse value of Nortel. Google could do that because it was sitting
on roughly five times that much cash in hand.

Prediction: there will be an antitrust enquiry from AAIEEE
congresscritters.



---
Grumpy old man

[ Reply to This | # ]

We know that GPL copyright holders are nice, but...
Authored by: Anonymous on Wednesday, August 17 2011 @ 09:17 AM EDT

In terms of refuting the FUD, I don't think "Hey, GPL rights-holders are all nice guys who wouldn't dream of trying to sue the shirt off your back" is a particularly compelling argument. (Think about some companies who might actually own the copyrights for some GPL material, e.g. Oracle, maybe even SCO*...) I hope I'm wrong, but I wouldn't be surprised to see GPL "trolling" soon (bad guys have a puppet company buy up some rights to some GPL code in a fire sale, scour the land for anybody not following GPL to the letter and offer them a "generous" settlement deal).

However, what sort of damages could you reasonably claim for non-willful GPL infringement? Please tell me that "Y'r honour, the defendant distributed 10,000,000 copies of the product, which at $0 a copy adds up to, lets see, multiply by zero, carry the zero... er... my Sony calculator says $1.2 billion..." or "We'd have charged them $20M to dual-license their product and since they forgot to put one lousy URL in their documentation that's what they owe us..." aren't going to stand up in court unless the rights holder has made a reasonable effort to get the perp to comply.

So, hopefully the more legally experienced people here could come up with some defensible legal arguments as to why you're unlikely to face a $$$$$$$ GPL infringement lawsuit that doesn't rely on saying "we're all fluffy bunnies really"...? That might be jolly useful if the trolls appear.

Or, perhaps this is all too softly-softly. How about: "Sure: if you distribute GPL code without following the license, you can get sued. Well, duh!!! What do you think would happen if you took some Microsoft code, ignored the license terms, and distributed it anyway?"

(*They sure don't own Linux, and anything they do 'own' is released under the GPL, but ISTR that as Caldera they contributed code, so they're probably on the roll of rights holders).

[ Reply to This | # ]

Do those involved in the FUD face potential liabilities from the real copyright owners?
Authored by: Anonymous on Wednesday, August 17 2011 @ 02:17 PM EDT

Here's a very interesting thought.

Copyright Law makes it very clear that only a copyright owner has standing to bring a Copyright Lawsuit. See section 501(b). Caveat: the link is more for those buying into the FUD. Seriously: if the actual copyright holder says you are in compliance, you should listen to the "facts" as brought from someone without standing with the same level of worth as a 1 year old explaining quantum physics.

Is it possible that those who have no standing to bring a copyright lawsuit, yet claim copyright infringement, face liabilities themselves?

I'm no member of the Justice League (pardon the pun) but it seems to me that spreading such claims could be in breach of some Law (quite probably should be). Lanham Act violations perhaps with regards interfering with business relations?

One would think that if those claiming copyright infringement were actually concerned with "righting a wrong" then they'd contact the actual copyright owners with the evidence. Thereby placing the choice of whether or not to bring a lawsuit in the hands of those with actual standing of raising such a lawsuit. The copyright owner could then decide whether or not actual infringement is occuring and let the "original finder" know if no infringement is occuring.

Once placed on notice that no copyright infringement is occuring, to continue to claim copyright infringement is - at the very least in my humble opinion - extremely irresponsible.

With regards the Lanham Act claims, here's my line of thinking.

Claiming Copyright Infringement could worry those that are being said to be non-compliant. This could result in those responding in a number of ways:

  1. Seeking Legal reassurance from the actual Copyright Owner that no infringement exists.
  2. Drawing away from making use of the particular product.
  3. Ignoring the claim because it's not coming from the copyright holder.
I'd think points 1 and 2 could likely fall into the category of interfering with business relations in an illegal (anti-competition) fashion.

Any thoughts on the possibilities of the FUDsters potentially facing liabilities themselves would be most welcome.

It would be totally sweet Irony if a number of them were actually brought up on such charges, found guilty and that very publicly disclosed.

It might even put an end to this particular tactic of claiming infringement without being in a position of Legal standing.

RAS

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What about this statement?
Authored by: Anonymous on Wednesday, August 17 2011 @ 03:51 PM EDT

From the request for preliminary injunction by SFLC and SFC:

Thus, BestBuy and Phoebe Micro's continued distribution of BusyBox is unauthorized and without Plaintiffs' permission. They cannot merely come into compliance now. They may only continue distribution of BusyBox with Plaintiffs' express permission, which they have not received

That sure seems to support Naughton's interpretation, not yours.

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HUGE ruling it seems -- swpat dead?
Authored by: Anonymous on Thursday, August 18 2011 @ 03:02 AM EDT
Patently-O and techdirt Court Ruling Opens The Door To Rejecting Many Software Patents As Being Mere 'Mental Processes' cover a ruling that may prove to end "mental step" patents on computing devices. A comment on Patently-O by Ned Heller covers some of the history prior to Gottschalk v. Benson. Perhaps the ruling is but an old ruling applied within a slightly "non-obvious" new context, so it took the courts 20+ years for the patent on the old ruling to expire before they could be applied again in the new ruling. ;-)

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