|Authored by: Anonymous on Friday, September 14 2012 @ 11:39 AM EDT|
If the judge says it's illegal for you to drive a car, that doesn't
affect anyone else's right to drive a car.
I suspect the same principle
would apply here.
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|Authored by: Mark Webbink on Friday, September 14 2012 @ 11:45 AM EDT|
|Red Hat has released the code under the GPL only for use in compliance with |
GPL. According to Red Hat, Twin Peaks is not in compliance and has
release its source code as required by the GPL. If the Court
constitutes copyright infringement (exercising a right under
permission). Red Hat will seek a permanent injunction
against Twin Peaks with
respect to the infringing products that would
prevent Twin Peaks from
continuing to sell those products in their present
form. Twin Peaks would have
a choice: either remove the GPL code or
comply with the GPL. If they were to
do either of those, they could seek a
lifting of the injunction. None of this
would impact Twin Peaks customers
who are already using Twin Peaks products so
long as those customers don't
redistribute the GPL code in a manner that is not
in compliance with the GPL.
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|Authored by: Ian Al on Friday, September 14 2012 @ 12:48 PM EDT|
|I got the following from the article:|
52. On its website, Twin
Peaks represents that the “TPS Replication Plus” and “TPS My Mirror” software
packages are covered by the same patent it accuses Red Hat of infringing in this
action (the ’439 Patent).
I got the following
from GPL V2 which is the version cited by Red Hat:
53. Twin Peaks’ proprietary replication
software products, namely, “TPS Replication Plus” and “TPS My Mirror,” include,
inter alia, a program called “mount.mfs.” This program is essential to make Twin
Peaks’ “replication solution” software usable.
54. On information and
belief, rather than develop its own source code to create its proprietary
software replication products, Twin Peaks copied substantial portions of open
source code into those products, including source code originally authored by
Red Hat. Among the code Twin Peaks improperly copied was that embodied in the
“mount” program released in util-linux version 2.12a, which Twin Peaks copied
into the source code for its own “mount.mfs” tool. Twin Peaks’ verbatim and
near-verbatim copying of open source and Red Hat source code into its
“mount.mfs” tool is pervasive and extensive.
2. You may modify
your copy or copies of the Program or any portion of it, thus forming a work
based on the Program, and copy and distribute such modifications or work under
the terms of Section 1 above, provided that you also meet all of these
I now speculate about what all this means. Red Hat seem
to be saying that the entire Twin Peaks product incorporates the Red Hat
software and is not a stand alone program that can be kept apart from Red Hat's
GPL software. Further, Twin Peaks, by taking Red Hat to court over the patents
incorporated into the product are insisting on making royalty charges on the
patent. The loss of royalties would be the basis for the damages
a) You must cause the modified files to carry prominent
notices stating that you changed the files and the date of any change.
b) You must cause any work that you distribute or publish, that in whole or in
part contains or is derived from the Program or any part thereof, to be licensed
as a whole at no charge to all third parties under the terms of this
c) If the modified program normally reads commands
interactively when run, you must cause it, when started running for such
interactive use in the most ordinary way, to print or display an announcement
including an appropriate copyright notice and a notice that there is no warranty
(or else, saying that you provide a warranty) and that users may redistribute
the program under these conditions, and telling the user how to view a copy of
this License. (Exception: if the Program itself is interactive but does not
normally print such an announcement, your work based on the Program is not
required to print an announcement.)...
These requirements apply to the
modified work as a whole. If identifiable sections of that work are not derived
from the Program, and can be reasonably considered independent and separate
works in themselves, then this License, and its terms, do not apply to those
sections when you distribute them as separate works. But when you distribute the
same sections as part of a whole which is a work based on the Program, the
distribution of the whole must be on the terms of this License, whose
permissions for other licensees extend to the entire whole, and thus to each and
every part regardless of who wrote it.
7. If, as a consequence of a
court judgment or allegation of patent infringement or for any other reason (not
limited to patent issues), conditions are imposed on you (whether by court
order, agreement or otherwise) that contradict the conditions of this License,
they do not excuse you from the conditions of this License. If you cannot
distribute so as to satisfy simultaneously your obligations under this License
and any other pertinent obligations, then as a consequence you may not
distribute the Program at all. For example, if a patent license would not permit
royalty-free redistribution of the Program by all those who receive copies
directly or indirectly through you, then the only way you could satisfy both it
and this License would be to refrain entirely from distribution of the
Twin Peaks Prayer for Relief:
c. For an accounting
of all damages caused by Defendants' acts of infringement;
Since the Red Hat
software is part of the whole program then the whole program must be released
under GPL V2. This is because Red Hat are saying that the Twin Peaks software
cannot 'be reasonably considered independent and separate works in themselves'
(as required by GPL V2). Otherwise the copyright continues to be infringed
without a licence. That is both the free version and the paid-for version. I
don't see Twin Peaks being likely to do that.
d. For a
judgment and order requiring each Defendant to pay Twin Peaks' damages, costs,
expenses, and pre- and post-judgment interest for its infringement of the '439
patent as provided under 35 U.S.C. §284;
Twin Peaks would have to
give a free patent licence to have their GPL licence unterminated.
GPL V3 is
very helpful in the area of termination:
None of these licence reinstatement terms are
given in GPL V2. Thus the GPL V2 licence was not used during the alleged copying
by Twin Peaks. Under GPL V2, there is no licence terminated and thus it cannot
be reinstated. It is straight copyright infringement without any
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).
you cease all violation of this License, then your license from a particular
copyright holder is reinstated (a) provisionally, unless and until the copyright
holder explicitly and finally terminates your license, and (b) permanently, if
the copyright holder fails to notify you of the violation by some reasonable
means prior to 60 days after the cessation.
Moreover, your license from
a particular copyright holder is reinstated permanently if the copyright holder
notifies you of the violation by some reasonable means, this is the first time
you have received notice of violation of this License (for any work) from that
copyright holder, and you cure the violation prior to 30 days after your receipt
of the notice.
Termination of your rights under this section does not
terminate the licenses of parties who have received copies or rights from you
under this License. If your rights have been terminated and not permanently
reinstated, you do not qualify to receive new licenses for the same material
under section 10.
Red Hat might, in the instance of a free patent licence, be
prepared to licence their software for future sales, but Twin Peaks can never
unilaterally 'reinstate' a licence that was never employed for this software.
Unlike Busy Box, Red Hat have no reason to agree a copyright licence for Twin
Peaks unless Twin Peaks are prepared to make the whole program GPL open source
together with the required royalty free patent licence.
preparedness to agree to the use of its software under a special licence can be
seen by their Prayer for Relief:
8. Granting a permanent injunction
preventing Twin Peaks Software Inc. from copying, modifying, distributing, or
making any other infringing use of Red Hat’s software;
I'm not qualified to assert all this, but it does all seem
to hang together with what we have learnt from
Twin Peaks to pay Red Hat’s damages for Twin Peaks’ infringement of Red Hat’s
copyright in its software;
10. Ordering Twin Peaks to pay Red Hat’s
damages for Twin Peaks’ violation of the GPL;
11. Ordering Twin Peaks
to account for and disgorge to Red Hat all profits derived from its unlawful
12. Awarding any other such relief as is just and
Software Patents: It's the disclosed functions in the patent, stupid!
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