October 1, 2007 4:00 AM PDT

GPL defenders say: See you in court

A legal team enforcing the most widely used license in the open-source and free software movement has shown that it's not afraid to take its cases all the way to court.

For years, violations of the General Public License, or GPL, have been met with quiet discussions to resolve compliance problems that can result when open-source software is used improperly. Now, however, the Software Freedom Law Center is taking a hard-line approach, filing a copyright infringement lawsuit against Monsoon Multimedia for allegedly failing to abide by requirements of the GPL.

Dan Ravicher, SFLC's attorney on the case, said the suit isn't part of a broader effort to give GPL enforcement a stronger legal foundation. But the action has repercussions for a much larger audience than just the single defendant.

"There still appear to be flaming examples of either indifference to or outright disregard for the GPL," said James Harvey, an attorney with Hunton & Williams who is not involved with the suit. "I think those flaming examples will increasingly be called to order by somebody, whether SFLC, a copyright holder or someone else in the open-source ecosystem."

After the SFLC filed suit on September 20, Moonsoon said it would comply with the GPL. But that's not enough to call off the lawyers.

"Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance," Ravicher said, though he declined to say what other actions the SFLC is seeking.

And the SFLC doesn't want to be a pushover. "If you start getting a reputation for being a pansy, then people are going to conclude they don't have to do anything," he said.

Ravicher co-founded the SFLC along with one of the biggest legal guns in the free and open-source software arena--Eben Moglen, the Columbia Law School professor who for years represented GPL creator Free Software Foundation and who also oversaw the creation of the new GPL version 3. The center initially was funded by the Open Source Development Labs--a consortium now called the Linux Foundation--and also is sponsored by Linux open-source allies including IBM, Hewlett-Packard and Red Hat.

The center's willingness to sue Monsoon isn't the first recent example of legal assertiveness on the part of free and open-source players. In July, Microsoft sought to distance itself from a provision in the newly released GPLv3, but in August, the Free Software Foundation--which the SFLC represents legally--countered with a strongly worded statement. "We will ensure--and, to the extent of our resources, assist other GPLv3 licensors in ensuring--that Microsoft respects our copyrights and complies with our licenses," the foundation said.

Hackles raised
The Monsoon dispute involves software called BusyBox, a collection of utilities tailored for devices with tight memory constraints. It's governed by version 2 of the GPL, which permits anyone to see, modify and distribute the software, as long as modifications are also released under the GPL. This is the quid pro quo arrangement that attracted Linux kernel leader Linus Torvalds: anyone can benefit from a freely available software project, but changing it requires them to give back the fruits of their own labor.

The license also requires anyone distributing GPL software, in an executable form that a computer can run, to make the complete source code available. One example: Cisco Systems subsidiary Linksys, which shares the GPL software used in its wireless networking equipment.

"If you start getting a reputation for being a pansy, then people are going to conclude they don't have to do anything."
--Dan Ravicher, attorney, SFLC

Monsoon's Hava product line lets customers record video and watch it on multiple PCs or over the Internet. In August, a Hava Forum discussion began on whether the systems used Linux, which like BusyBox is governed by the GPL. A Hava support representative whose screen name is Gary-MM said in the discussion: "I have a little secret to let you in on--Hava runs Linux! Yes, much of the source is GPL."

But the interaction turned frosty. "Some of you appear to be violating the terms of the End User License Agreement," Gary-MM said of efforts to deduce whether GPL software was used in Hava. (Those efforts included finding the text "BusyBox" in the Hava software.) "Seems to me that some of you have just come out blatantly admitting you are reverse-engineering the firmware--or trying to."

Although Gary-MM later said he was just "pokin' a bit of fun at you" without intending any threat, "adversarial" forum postings and the company's lack of response to a September 11 letter from SFLC led to the suit.

CONTINUED: Broader repercussions…
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Not quite right
If you make changes, that alone does not trigger the reciprocity requirement.

You also have to distribute it.

A company can take an OSS project, alter it for internal use and never have to release anything, unless they want to.

Really, is it difficult to get that right?

It is about time the FSLC take a hard line to those who try to steal others work.
Posted by The_Decider (3097 comments )
Reply Link Flag
Change OSS to GPL.

Maybe it is hard to get right :p
Posted by The_Decider (3097 comments )
Link Flag
You mean WITH those don't you? Bad grammar yet again.
Posted by mikalg (195 comments )
Link Flag
High Impact? Ok, but old news
Why wasn't CNET reporting on this last week when everyone else was?
Posted by ittesi259 (727 comments )
Reply Link Flag
Those in Glass Houses...
and what goes around comes around. This group is propping up a baseless license, since the license itself violates over 235 know patents of Microsoft. They should count their lucky stars the Microsoft hasn't sued their constituency yet.
Posted by WJeansonne (480 comments )
Reply Link Flag
Truly clueless
1 MS hasn't offered a shred of proof.

2. The GPL is a license not software. Those non-existent 235 infringing patents is alleged against Linux, not the GPL. You do realize there is a difference, don't you? Why are MS astroturfers so bleeding ignorant?

Once again you show everyone that you don't have clue one about computing.
Posted by The_Decider (3097 comments )
Link Flag
Name them.
I challenge you to name any of the 235 patents the GPL license (v2 or v3) itself violates.

If you CAN, I won't post here for a month.

If you CAN'T, then YOU can't post here for a month.

Those are the terms.
Posted by `WarpKat (275 comments )
Link Flag
...over 235 known patents of Microsoft.
How can a patent be known if Microsoft will not disclose what patents are violated. It is quite well known that most if not all Microsoft patents have prior art. Microsoft knows that if they publish the list of patents they claim are violated, those patents will be invalidated.

The solution to this problem is to invalidate all of Microsoft's IP. The OSS community as well as companies like IBM and Red Hat are acquiring IP that preexists Microsoft patents to use if Microsoft is stupid enough to bring any of this to court.

The next step would be to show Windows infringed the GNU license and force Microsoft to publish its source code.
Posted by ralfthedog (1589 comments )
Link Flag
Put up or shut up
Posted by Phillep_H (497 comments )
Link Flag
If M$ had the laws in force at the time of it's inseption with IBM the software obtained would have certainly been in violation.

The code from Linux came from Unix not M$.M$ may claim those accusations of 235 pattents but they have not specified them.There intelectual property is broad and vague at best.
Posted by ibmorjamn (8 comments )
Link Flag
Name 'em.
Not even MSFT can do that.

QED: there are no violations until someone does, and can prove them.

Posted by Penguinisto (5042 comments )
Link Flag
the 235 patents don't relate to the GPL
I've covered the <a href="http://www.news.com/Report-Microsoft-says-open-source-violates-235-patents/2100-1014_3-6183437.html">235 patent issue</a> extensively; the Microsoft patents in question have nothing to do with the GPL itself but rather with some open-source projects that are in some cases are governed by the GPL. For example, the Linux kernel violates 42 patents, Microsoft argues. Don't expect them to tell anybody what the patents are, though; such information typically shows up only in lawsuits or confidential licensing discussions.
Posted by Shankland (1858 comments )
Link Flag
Retract Your Statement
First of all, since you obviously can't tell the difference between a license and source code, your statement is about as truthful as available beach-front property in Utah; and no, lake shores don't count.

Secondly, Microsoft is ALLEGING that the Linux kernel violates 235 of its patents. Which leads us to:

Thirdly, Microsoft has yet to prove, let alone provide a list of, any of its 235 patents that have been violated.

And since you've not accepted nor declined my challenge, I can safely assume that you will retract your statements as they are completely baseless, to coin your choice of words.
Posted by `WarpKat (275 comments )
Link Flag
Re: Glass Houses
Great trolling! You've got a lot of people worked up about a statement that's ridiculous on its face. You couldn't possibly be that ignorant.
Posted by alflanagan (115 comments )
Link Flag
The SLC tactic
This lawsuit isn?t even a copyright case. It is a breach of contract claim. The complaint
states, ?Defendant has distributed to the public copies of the Firmware in its Infringing Products and via its website without providing source code to BusyBox?. That is a breach of contract claim since ?failure" to distribute source code is not a violation of the Copyright Act.

The complaint states, ?As such, any rights Defendant may have had under the License to redistribute BusyBox were automatically terminated the instant that Defendant made non-compliant distribution of the Infringing Products or Firmware.? Here is what the federal courts say about New York law concerning this claim:

?. . . rescission of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in rescission of a contract. Id. at 238 (?New York law does not presume the rescission or abandonment of a contract and the party asserting rescission or abandonment has the burden of proving it?).?; Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y. April 30, 2007).

-- so much for ?automatic termination?. The plaintiffs named in the complaint have no standing to bring this action because the GPL requires distribution of source code to ?all third parties?. The plaintiffs are obviously not ?third party? beneficiaries to the GPL and hence have suffered no personal ?injury-in-fact? which is required for standing in a lawsuit.

This lawsuit is simply a propaganda move by the SFLC. The SFLC will file for dismissal of this action before any F.R.C.P. Rule 12 (Motion to Dismiss) is ever filed with the Court, since they would appear very foolish when the Court subsequently dismissed the case. The SFLC will dismiss and then trumpet ?The GPL won in court !?
Posted by gumout (3 comments )
Reply Link Flag
Yeah, not
If the GPL can't pass legal muster, then neither can the draconian licenses that slime like MS uses.

The SFLC is not pulling an SCO.
Posted by The_Decider (3097 comments )
Link Flag
I don't think so
"This lawsuit isn?t even a copyright case. It is a breach of contract claim."

There was no contract, so there is no breach. It is clearly a copyright case, it isn't anything else.

The defendant used copyrighted material in a manner not permitted by the copyright. Period. How hard is that to understand?
Posted by McBlayde (72 comments )
Link Flag

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