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Australia Open Source Linux

Telstra Violating the GPL? 197

Posted by Soulskill
from the not-playing-by-the-rules dept.
daria42 writes "It looks like Australia's largest telco, Telstra, hasn't exactly been paying attention to its responsibilities under the GNU GPL. Australian coder Angus Gratton has been investigating the company's branded T-Hub, T-Box and T-Touch products — all based on Linux, and all without any source code or GPL license attached. Naughty. However, it's not as though Telstra is the only one to blame — the goods are manufactured by Sagem, Netgem and Huawei respectively." Telstra responded quickly to Gratton's claims, saying they would work with the vendors to straighten out the licensing situation and fix any compliance issues.
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Telstra Violating the GPL?

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  • by Anonymous Coward on Tuesday November 09, 2010 @05:22AM (#34171600)

    In Australia Telstra is the villain that everyone loves to hate. But in this case, it is not really their problem. They paid some OEM for a branded product that I very much doubt they had that much invested in. This is really a minor oversight that has been turned into a story.

    • by Charliemopps (1157495) on Tuesday November 09, 2010 @06:28AM (#34171862)
      ignorance is no excuse. I've been told this by a judge while in court. Time for a Judge to tell Telstra.
      • by DrgnDancer (137700) on Tuesday November 09, 2010 @08:17AM (#34172492) Homepage

        Ignorance of the law is indeed no excuse (though it is often a mitigating factor), but in this case I'm not sure Telstra has broken a law. They sold and/or rented these devices to their customers as a reseller. Are they responsible for GPL compliance or is the original manufacturer? They slapped their brand on the things, but had nothing to do with design or manufacture. I honestly have no idea what their legal responsibility is, and I doubt anyone but an Austrailian IP attorney could offer a valid opinion. To my mind this is the OEM's problem not the reseller. After all we don't go after Best Buy if some product on their shelves is violating the GPL.

        • by mcgrew (92797) *

          If I'm trying to download an indie song called "scatterbrain" and DL an RIAA song with the same name by accident, the RIAA will still sue me.

    • by dbIII (701233)
      With the greatest possible respect, it's work for hire and has their name on it so they cannot deny responsibility.
    • by sjames (1099)

      The real story though is that fixing this going forward will probably satisfy everyone involved. Were this a proprietary license being violated, we'd be reading about the multi-bajillion dollar lawsuit, C&D orders and have a bunch of stuffed shirts quacking on about how these dreadful pirates are destroying the entire economy single-handed.

  • by DarkOx (621550) on Tuesday November 09, 2010 @05:35AM (#34171650) Journal

    Just because they have branded it does not mean they have changed any source. I have never seen one of these things so I don't know anything about them; but they may not be obligated to distribute any source. Also you don't have to provide the source with your binaries to satisfy the gpl. You just have to make the source available in a useful format if someone wants it. Has anyone asked Telstra or any of the manufacturers for the code?

    • by WarJolt (990309) on Tuesday November 09, 2010 @05:38AM (#34171666)

      You must tell your customers that you are using GPLed code.

      • by jgreco (1542031) on Tuesday November 09, 2010 @06:06AM (#34171778)

        If Toyota were to slyly use GPL'd code in some part of one of their vehicles, it probably would be ridiculous to try to make the case that the local privately-owned Toyota dealership had failed to live up to its responsibilities under the GNU GPL, even though they were the one that sold you the car. In all likelihood, the dealership has no clue about where the code in the car's processors ultimately comes from, because only Toyota would have source code for the stuff.

        It would be helpful to remember that Telstra might similarly have contracted out to have some Internet appliances made; if the manufacturers didn't tell Telstra that the code was legally encumbered, then you wind up in this sort of situation, with no intentional malfeasance on the part of Telstra, and lots of confusion when you start making accusations.

        The idea of holding the seller responsible for a manufacturer's use of GPL code is interesting. I'm pretty sure our local retail stores sell things like generic DSL modems and wireless access points without providing access to the source code. I'm positive that the local T-Mobile reseller who rents a kiosk at the mall had no idea he was required to provide access to source code for the T-Mobile WRT54G-TM's that were being sold a year or two ago. He was selling products in a box, there are no markings on the box that would indicate encumbered GPL code was in use, etc. It would be interesting to see if a case had ever been brought against such a retailer.

        The Telstra case may well lie somewhere in the middle; their engineering department was probably aware of the design of the devices at some level.

        I'm sure this will be read as an anti-GPL message by some zealot with an angry mod finger, but come on people, let's at least try to be fair and openminded. Telstra can be damned if and when the facts are established that they willfully and knowingly violated the GPL.

        • by dattaway (3088) * on Tuesday November 09, 2010 @06:15AM (#34171814) Homepage Journal

          In your analogy of Toyota distributing cars without following terms of the license, the dealer is NOT authorized to distribute under terms of the license. It becomes a copyright violation. The GPL is very clear about this.

          • Re: (Score:2, Insightful)

            by Xugumad (39311)

            I despair gently over the fact that copyright is /.'s worst enemy 90% of the time, and then someone mentions GPL...

            • Re: (Score:2, Interesting)

              by contra_mundi (1362297)
              There isn't much cognitive dissonance. GPL just uses the strong copyright to keep itself and derivatives one sort of free.
              A much stranger position to me is hating copyright and GPL, because you at the same time hate the former which takes away freedom (to use and copy) and the latter which gives freedom (to use and copy).
              • by jgreco (1542031)

                The latter gives one form of freedom by encumbering the code; this whole topic is about that encumbering, and the obligations Telstra and/or their OEM have, so let's please not try to argue otherwise.

                You can hate (typical) copyright because it requires things of you. For example, it may require you to not copy something that you'd find useful copied. Or it may require you to go to effort to distribute source, as in the GPL.

                The BSD license is less onerous in that regard because its restrictions are passive

                • by Bert64 (520050)

                  The GPL restricts some freedoms with the primary goal of ensuring that other freedoms it considers more important are not taken away...

                  Society (ie common law) does the exact same thing, it restricts your freedom to commit murder for instance so that other peoples freedom to live cannot be taken away. I doubt there are many places in the world where it is legal to go and kill anyone you want.

                  By that same token, the GPL restricts your freedom to create a proprietary fork to ensure that other people can have t

          • by Stray7Xi (698337) on Tuesday November 09, 2010 @06:57AM (#34172008)

            In your analogy of Toyota distributing cars without following terms of the license, the dealer is NOT authorized to distribute under terms of the license. It becomes a copyright violation. The GPL is very clear about this.

            The point is they don't need to agree to the license, the GPL never forces anyone into it (section 9). By not agreeing to the license, all normal copyright law restrictions apply to them. However in this case they aren't infringing copyright, they're merely abiding by first sale rule.

            In fact a case can be made that apps that include a click-through EULA of the GPL violate the GPL. Since clicking I disagree will refuse to install the app which is an additional restriction (section 10). You can't force someone into the GPL, only pursue them for copyright infringement if they disagree.

            Pursuing Telstra is stupid, they should be attacking the OEM manufacturers.

            9. You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

            10. ...
            You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License. For example, you may not impose a license fee, royalty, or other charge for exercise of rights granted under this License, and you may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it.

            • by Kjella (173770)

              In fact a case can be made that apps that include a click-through EULA of the GPL violate the GPL. Since clicking I disagree will refuse to install the app which is an additional restriction (section 10).

              I consider those a little bit like the reading of your Miranda rights, they're not *given* to you by the reading. They're rights you already have, it's just giving you a summary of them. Same with the GPL, the part about not accepting is basically a short reading of copyright law. Perhaps the acknowledgement that you have been given notice of this should be slightly different than "I agree", but you're nitpicking on something no judge would substantially care about.

            • The point is they don't need to agree to the license, the GPL never forces anyone into it

              You're not forced into it if you only run the code. If you redistribute the code, you are either in violation of the law or you have accepted the GPL, or the program is dual-licensed and you have accepted the other license (or multi-licensed and you accepted the nth).

              In fact a case can be made that apps that include a click-through EULA of the GPL violate the GPL.

              You refer to section 10, which talk about legal (not practical) restrictions.

              Sure, building the software to force people to click "I accept" is a practical restriction (though not a big one), and you might argue that it goes against the spirit

          • by jgreco (1542031)

            I can write a license that says you must kill your first born child if you use this code. Does that make it legally enforceable?

            "The GPL is very clear about this" is not compelling. It is clear in this case that the *manufacturer* has a responsibility to distribute the code. However, whether or not such responsibility can be transferred to a third party who merely purchased and resold a product is not necessarily that clear.

            Consider this the other way around. Let's say I run a kid-themed restaurant. I

            • by shentino (1139071)

              Stranger things have happened...

              This is America, home of the litigious after all...

              Assuming the case even made it to trial, it probably would be dismissed with prejudice, and Pixar would probably be told to go sue the person who exhibited it in public.

              Now, if Best Buy tampered with any of the copyright notices, or otherwise encouraged you to violate Pixar's copyright by showing it in public, they may be liable to for breach of warranty to you, if they falsely claimed that it could be shown in public when in

            • I can write a license that says you must kill your first born child if you use this code. Does that make it legally enforceable?

              I doubt they can force you to kill your first born child, but you have no right to use the software if you dont.

              • AFAIK you do as that part of the licence gets struck out as if it wasn't there.
                • If the license says:

                  "You can use this software if you sacrifice your first born child to Baal"

                  And you strike that out because its illegal.

                  Then what part of the license allows you to use the software?

            • by u17 (1730558)

              I can write a license that says you must kill your first born child if you use this code. Does that make it legally enforceable?

              If you cannot meet the terms of the license then you don't have any rights to the code.

              If the license is not legally enforceable, i.e. it is an invalid license, then you don't have any license, hence you don't have any rights to the code.

              What seems to be the problem?

              • by jgreco (1542031)

                The agreement is in a shrink-wrapped box and it also says "Returns of opened merchandise for same product only."

                Welcome to the modern world.

          • by yelvington (8169)

            ... and it's REALLY easy to fix, without any action whatsoever on the part of the dealer. The manufacturer should disclose the use of GPL software, provide the license and create the mechanism by which a purchaser can request and obtain a copy of the source code.

            GPL isn't onerous at all, and compliance is not difficult.

            But there are boatloads of devices coming out of China that violate GPL due to sloppy practices on the part of the manufacturers. I have a Chinese Android tablet, for example, to which I can'

          • by real gumby (11516)

            The two cases (of a dealer distributing a car with GPL code in it and Telstra distributing a device than an OEM had put GPL code into) are the same. Nobody is surprised when we make the same declaration for physical goods (e.g. we expect drug manufacturers to vet their raw materials, or car manufacturers to make sure the steel they start with is of the specified grade/alloy).

            In this case the point is that the person who distributes the "code" (through the device) has to make the source available. That's t

        • Re: (Score:3, Interesting)

          by MichaelSmith (789609)

          My LG Android phone has a long file of OSS licenses which detail which binaries the licenses apply to. At the bottom of the list there is a statement from LG that they will provide the source code to me on CDROM. It gives an email address I have to contact with my request. For me they are fulfilling with the requirements of the GPL by doing that. Now I wonder if the Telstra products have the same license window and if the ultimate supplier has filled in the statement at the end with the offer of the source.

          • by jgreco (1542031)

            Right, but the question here is more along the lines of, can you go to the store that sold you that LD Android phone and demand that *they* provide you with that code. The GPL (v3 sec 6) would appear that it might require that. The obvious counterargument is that the seller can point you at the manufacturer's web site, but if the manufacturer isn't distributing the code or has gone out of business, that doesn't seem to work.

            • by Bert64 (520050)

              In the case of LG, LG are clearly providing the necessary infrastructure to comply with the GPL on behalf of the reseller.
              If they failed to do that, you would be well within your rights to contact the reseller.

        • So if you dont perform due dilligence (yes, this applies when buying items to resell) you shoudl somehow not be responsible for the products you sell, claiming ignorance that was entirely avoidable?

        • So let's apply your analogy to any other copyright infringement. Say Toyota included a DVD player in the back seating area of their vans and bundled a collection of Disney DVDs with the vehicle. Now suppose, Toyota never licensed those DVDs and just burned or pressed them themselves without permission from Disney. Disney notices and notifies the dealerships of the violation.

          So, what do the dealerships do? Do they continue to sell the vans including the DVDs, knowing they are breaking the law and let Toyota

    • Re: (Score:3, Informative)

      by abhi_beckert (785219)

      That is simply not true. If you commercially distribute a GPL or GPL-derived product, you must inform all users that it is GPL, and inform them how to get the source code, and all tools needed to work with/build said code.

    • If they distribute the hardware they must make the source available. They can't just point to kernel.org.

      • by Xugumad (39311)

        You almost can...

        "Convey the object code in, or embodied in, a physical product (including a physical distribution medium), accompanied by a written offer, valid for at least three years and valid for as long as you offer spare parts or customer support for that product model, to give anyone who possesses the object code either (1) a copy of the Corresponding Source for all the software in the product that is covered by this License, on a durable physical medium customarily used for software interchange, fo

        • I'd just point out that the kernel is GPLv2 btw :) Slight differences here and thee although not really for that case.

        • But if they point to kernel.org and I fetch the code on a day when Linus is changing a power supply then I can go back to the manufacturer and ask what gives? What if Linus has blocked my IP address because of my notorious trolling on his mailing lists?

          My reading of that paragraph is that the (manufacturer|supplier|distributor) have to directly provide the code, or pay Linus to explicitly provide it to me.

  • that we got caught. We will ensure that it won't happen again.
    • Did Telestra even know they were violating the GPL?
      • by abhi_beckert (785219) on Tuesday November 09, 2010 @06:06AM (#34171782)

        How could they not have known? You don't spend a hundred million dollars promoting a product without hiring competent lawyers to cross your t's and dot your i's.

        Any IP laywer would check the origin and license of the software.

        • Any IP laywer would check the origin and license of the software.

          We're talking about something that they will probably regard as purely hardware though.

          Do you really think they would they do a background check on the firmware running on the routers? Would Telstra even hire an IP lawyer to vet hardware purchases?

          • Given it is part of due dilligence YES they should have done.

            Either it is negligence on their part of deliberate violation. Ignorance of the requirements is, however, NO defence in this matter.

        • by kramulous (977841)

          Just flipped through Telstra's latest Annual Report to Shareholders (01/10/2010 12:21PM) and although they only mention T-Box and sales, they do use other examples of businesses consuming other licenses for T-Suite products.

          They are fully aware of license conditions. You don't sell different levels of licenses for products and claim that "you were not aware" other other license conditions.

          This was deliberate.

      • You're trying to say they didnt perform due dilligence and so shouldnt be liable for their negligence?

      • by thegarbz (1787294)
        Not knowing is not a legal defence. Also you're talking about a company who once actively supported all things GPLed by hosting most of the major Linux distributions and many major projects on it's servers for it's subscribers download metered free, the very same kind of servers which now host the T-Box media. So let's assume they are not a complete stranger to the GPL.
  • Sagem usually releases the source code for their boxes. For the box used in France by Orange, the hosting site [livebox-opensource.com] is provided by the operator. It does not look like Sagem directly provides the source code, probably because they only sell the boxes to operators, and the GPL only states that you need to provide the source to your clients.
  • by abhi_beckert (785219) on Tuesday November 09, 2010 @06:04AM (#34171772)

    Telstra should get a serious ass kicking over this. The amount of money they've spent on advertising alone for this product line wipes out any possible "we didn't know" excuse.

    They had to have been told, by multiple lawyers, that this is happening.

    If an ordinary person can get fined millions of dollars for minor IP violations, then a corporation the size of Telstra should be fined tens of billions for knowingly violating the GPL in a flagship product. But of course, the law is never fair.

    • If an ordinary person can get fined millions of dollars for minor IP violations, then a corporation the size of Telstra should be fined tens of billions for knowingly violating the GPL in a flagship product. But of course, the law is never fair.

      Who are these tens of billions going to go to?

      Normal people are fined millions for minor IP violations because the IP they are violating is owned by a single profit driven behemoth that doesn't allow for copying. It's a rather different scenario to some GPLed code that may have legally passed through hundreds of hands.

    • by Mr_Silver (213637)

      Telstra should get a serious ass kicking over this. The amount of money they've spent on advertising alone for this product line wipes out any possible "we didn't know" excuse.

      Not quite.

      Because Telstra have no access to the source code, they will have asked their third parties to agree to unlimited IPR indemnity on the basis that it is the responsibility of the software company (and not Telstra) to ensure they are in compliance with the licences for the portions of code that they have in their firmware.

      This

    • by DrXym (126579)
      If an ordinary person can get fined millions of dollars for minor IP violations, then a corporation the size of Telstra should be fined tens of billions for knowingly violating the GPL in a flagship product. But of course, the law is never fair.

      Okay, it shouldn't have gotten to this stage, but the only remedy required by the GPL is they release the source code to the GPL bits and supply it upon demand. In a modern context, that means hosting the source code on their own web browser and making it easy to o

      • by Nursie (632944)

        Yup, most likely.

        Not all of them work that way. Netgear have, in the past, provided a pretty coherent tarball and build instructions. Linksys too. Western Digital more recently have just spuffed out a load of source with a broken build system. That's when you have to go in with the multimeter and the soldering iron to get serial access and try a bunch of things...

    • Just like Walmart was shocked (shocked!) that their sub-contracted cleaning crews were mostly comprised of illegal aliens (because of the massively low-ball contracts WM offers), Telstra will also wholly blame those they hired.
  • IP Vision in the UK are in a similar boat. They ship near-identical hardware (branded as a Technika 8320HD) to the Telstra T-Box, with the only difference being DVB-T2 twin tuners instead of DVB-T. They too run Linux and have a "legal information" dialogue box in the user interface, but I haven't seen any source code for the GPL'ed items they use either. More 8320HD info in my blog [blogspot.com]...
  • by kevingolding2001 (590321) on Tuesday November 09, 2010 @06:33AM (#34171880)
    Until my contract ended, I was recently working for a large IT company (50K people worldwide).

    The company did a sales demo recently, and one of the main concerns of the client was that 'we don't use open source in any way'. The client was shit scared of anything to do with 'open source' because they believed that if any were used for anything, suddenly they had to give away all their proprietary secrets to the world.

    I tried to explain the differences between the licenses to my boss (BSD vs. GPL vs. Apache etc) and what the GPL really meant (If you don't distribute you have no problem) but since it was my leaving do and people just wanted to drink beer, I don't think anyone was listening.

    Stories like this about Telstra just pander to the FUDists.

    • by AmElder (1385909) on Tuesday November 09, 2010 @08:45AM (#34172758) Homepage

      My first thought was, like yours, that it might be better to give Telstra a chance to bring itself into compliance before hitting it with the bad publicity stick. However, after reading TFAs, I think Angus Gratton (the one who noticed the violations) did this right. He tried to contact the company first and got no response, so he's leveraging the power of the community and Telstra is responding. The blog post linked to in the summary explains how he went about it all.

      Emphasizing compliance over prosecution should make Free Software less threatening to companies (says a guy who's never worked for a big organization). It's the right way to go about things.

      If you read Gratton's post, he doesn't write with any rancour. He's sketches the simple steps Telstra can take to become compliant. By they way, he anticipates most of what people are saying in this thread and gives his own pre-emptive responses.

    • We used this very topic as a litmus test for hiring attorneys. I was working at a medium sized startup, growing into a proper company. We developed appliances and services that relied heavily upon Linux and other OSS, packaged with hardware and some closed source software. We knew very little about corporate law and had one attorney on board part time, but we had some good legal advice about OSS and every single major competitor we had was doing the exact same thing.

      So we need to hire some new legal people,

  • I think there needs to be a punishment clause. Bringing these people into compliance is one thing, but the way it played out in the past - do whatever you please until someone calls you out, then promise compliance and slowly and partially do something - means that the optimal strategy for a business is to try to get by without adhering to the GPL first, and only if that fails put some effort into compliance.

    No surprise they act like that.

    Everywhere else where people don't live in a dream world, there are p

    • by quenda (644621)

      I think there needs to be a punishment clause.

      You are making the common mistake of thinking the GPL is a contract. It is not - nobody signs it, there is no payment.
      Anyone is free to accept it or eject it - they cannot be held to the terms. If they reject it, they are simply in breach of copyright and you must rely on copyright law for redress.

      How about $5000 per device they distributed illegally?

      Why so little? Hire the RIAA lawyers and sue for one billion dollars.

  • The GPL may be enforceable, at least till Telstra continues to distribute the devices on outright sale. DTH operators, on the other hand, make their customers sign a contract that specifies that the Set Top Boxes / DVRs being provided are solely the property of the operator, and are being leased to the customer with minimal rights being transferred. Most of these devices use the Linux kernel and other GPL / open source tools to function.

    In such a case, the operator may take a plea that by leasing the devi

  • Telstra responded quickly to Gratton's claims, saying they would work with the vendors to straighten out the licensing situation and fix any compliance issues.

    What's the problem, exactly? They've been notified of their noncompliance and have stated that they'll fix it. Isn't that what we want them to do? Let me know if they've failed to do so after a reasonable amount of time, but until then, I guess I can't be bothered to care.

    • by bug1 (96678)

      They have stated that they will fix the T-Hub and the T-Box is fine.

      The T-Box has notification that it uses GPL'ed software, provides a link to the GPL License, but they dont think to provide a link to the source, so i dont see how they are in compliance with the GPL with the T-Box.

      There also might be issues with the T-Box in regard to "scripts used to control compilation and installation of the executable" as the firmware is encrypted.

      Does anyone know the accepted interpretation of that part of the GPLv2.0

      • I'm fairly certain they're not legally obligated to, as that was a large part of the motivation for GPLv3.

        • by bug1 (96678)

          Some of the software included on the firmware is GPLv2 (or later), so perhaps GPLv3 could be applied to unlock the firmware ?

          • (or later) wouldn't apply in this case, because it would be Telstra's option to pick which version of the GPL to distribute the code under. If you were to download the source from them, then you would have the right to "upgrade" it to GPLv3 for anyone who wanted to download it from you.

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