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Understanding the New Red Hat-IBM-Google-Facebook GPL Enforcement Announcement (perens.com) 96

Bruce Perens co-founded the Open Source Initiative with Eric Raymond -- and he's also Slashdot reader #3872. Bruce Perens writes: Red Hat, IBM, Google, and Facebook announced that they would give infringers of their GPL software up to a 30-day hold-off period during which an accused infringer could cure a GPL violation after one was brought to their attention by the copyright holder, and a 60 day "statute of limitations" on an already-cured infringement when the copyright holder has never notified the infringer of the violation. In both cases, there would be no penalty: no damages, no fees, probably no lawsuit; for the infringer who promptly cures their infringement.
Perens sees the move as "obviously inspired" by the kernel team's earlier announcement, and believes it's directed against one man who made 50 copyright infringement claims involving the Linux kernel "with intent to collect income rather than simply obtain compliance with the GPL license."

Unfortunately, "as far as I can tell, it's Patrick McHardy's legal right to bring such claims regarding the copyrights which he owns, even if it doesn't fit Community Principles which nobody is actually compelled to follow."

Understanding the New Red Hat-IBM-Google-Facebook GPL Enforcement Announcement

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  • The soft stance taken with GPL violators is an attempt for a peace and love approach to copyleft. This is disappointing when copyleft should really be at war with the copyright tyrants that have repeatedly destroyed lives of so-called pirates with violent para-military raids and freezing of personal assets. The corporate world is playing hard ball, and the open source world wants to string daisy chains.

    • by Anonymous Coward

      Without copyright there is no such thing as the GPL. There is no such thing as copyleft,

      • by Bruce Perens ( 3872 ) <bruce@perens.com> on Saturday December 02, 2017 @04:16PM (#55665077) Homepage Journal

        Copyright is not the only possible legal regime. It's just the one we have now. A legal structure supporting openness could exist side-by-side with proprietary copyright.

        • Copyright is not the only possible legal regime. It's just the one we have now. A legal structure supporting openness could exist side-by-side with proprietary copyright.

          I'd argue also that we have misapplied copyright to software. The fundamental goals of copyright are not met by offering protection for binary-only software. Just as it's possible to take the ideas expressed in a book and apply them in your own work, it should be possible to read software you purchase and remix the ideas in your own work... but this is impossible (or at least impractical) if you receive only a binary. Binary-only distribution means that you can publish your work while simultaneously keeping

          • Okay but right now legal reverse engineering is allowed on the grounds of proven clean-room reimplementation, right? Like say with the ReactOS people being unable to accept patches from former Microsoft employees who worked on Windows. So wouldn't freely-available source muddy those waters?
            • Okay but right now legal reverse engineering is allowed on the grounds of proven clean-room reimplementation, right? Like say with the ReactOS people being unable to accept patches from former Microsoft employees who worked on Windows. So wouldn't freely-available source muddy those waters?

              Wouldn't change it at all. In order to do clean-room reimplementation you have to separate the people who do the reverse engineering from the people who do the reimplementation. You have one group analyze the existing code and create a specification document. The specification contains the ideas from the original code, but none of the original code, nor any mechanical transformation of the original code, so it does not contain any of the original expression (copyright protects expressions, not ideas). Then

              • I don't think it's nearly so bad. If software is published in source-code form, reading it is not reverse-engineering. What you have to do is refrain from cutting and pasting. The way we determine if something is a copy or a new work is spelled out in Judge Walker's finding in CAI v. Altai.

                • I don't think it's nearly so bad.

                  That was part of my point :-)

                  Of course, if you're a startup stepping on the toes of a juggernaut, clean-room might still be advisable. Abstraction-Filtration-Comparison is great, but you have to go to court to do it. Clean-room tends to make the issue so clear-cut that you don't even get to court. Or, if you do, the only avenue of attack open to the plaintiff is to try to prove that you didn't implement the process correctly. Only if they succeed at that do you have to bother with complex AFC arguments.

          • What people came up with to encourage the sharing of trade secrets are patents. In exchange for charging people a license fee for a period of time, you show them the better way you figured out how to do something. Current implementation of the patent concept in law also has issues, particularly for software patents.
            • What people came up with to encourage the sharing of trade secrets are patents. In exchange for charging people a license fee for a period of time, you show them the better way you figured out how to do something. Current implementation of the patent concept in law also has issues, particularly for software patents.

              True. I think the misapplication of copyright to software is much more severe than the misapplication of patents. IMO, the biggest problem with software patents isn't the concept of patenting software designs but the granting of patents for obvious software designs. If the PTO refused to grant for things that are obvious to one skilled in the art, it wouldn't be so bad.

              BTW, since you brought up the subject, I'll share my notional "patent system test". You know that your patent system is working correctly

              • My idea for an individual software patent test is: "if you attempt to keep the idea secret, will anyone care?" If the answer is "no," then no patent is granted. I have a feeling that outside of software (where the design is the product), licensing patented ideas is more common.
        • by Anonymous Coward

          That's ok but why try to even discourage this guy? If the "profiteering" targets had complied with the license he wouldn't even have a case. Are you blaming the victim here? He contributed code under conditions that it will continue to be free. The targets violated the license, now he wants to be compensated. Now that he has done the homework and identified non compliant commercial distributors of Linux, other copyright holders should file their claims as well. Teach them a lesson. We only care that people

      • by Anonymous Coward

        There is such a thing as copyleft, but, yes, as you mentioned, copyleft is empowered by copyright. The two are not mutually exclusive concepts.

        • Copyleft as it stands now is empowered by copyright. There is nothing preventing Congress from passing a law recognizing copyleft as its own thing.
      • by KiloByte ( 825081 ) on Saturday December 02, 2017 @04:40PM (#55665183)

        Without copyright there is no such thing as the GPL. There is no such thing as copyleft,

        Without copyright, there would be no need for copyleft. Somewhat counterintuitively, it's GPL (v2) rather than BSD/MIT that emulates a world without copyright better: we'd have decompilers.

        Decompiling is merely an optimization problem: make a front-end that takes x86/etc code (these already exist), output C/etc code, optimizing for human readability; you lose comments and (without debug info) function and variable names. The only reason no one wrote a serious decompiler yet is that cases when using source recovered this way are so niche it's not worth the effort.

        For pretty much any interesting program, people would clean up and comment such source, thus there'd be no commercial benefit for keeping the code closed. And, releasing real source means you get better outside contributions, thus cooperating with your users is a win. Ie, we'd have an all-GPL world.

        I specified GPLv2, as there exist a way around decompilers: DRM. Of course, doing so on a general-purpose CPU would be mere pointless obfuscation (just run the thing in an emulator and dump memory when decrypted), thus such evil CPU would need to include sealed DRM chips. But, the corp would still have to give the user both the lock and the key: decapping is not that simple, but it can be done, immediately breaking all DRMed code runnable by the chip that got decapped. DRM is physically impossible, it serves merely as a stumbling block. At this point, it'd be so niche that no company would really bother, turning the tables to what we have now with decompilers.

        We'd end with a prisoner dilemma world where everyone cooperates, instead of current population of defectors.

        • by Knuckx ( 1127339 )

          The only reason no one wrote a serious decompiler yet

          I'd call Hex-Rays Decompiler for IDA pretty serious. It can do x86/64, PPC and ARM/ARM64; I've only seen output from the x86/64 version and it did a damn good job of making assembler into C. Of course, it also has a pretty serious price tag!

        • Without copyright there is no such thing as the GPL. There is no such thing as copyleft,

          Without copyright, there would be no need for copyleft. Somewhat counterintuitively, it's GPL (v2) rather than BSD/MIT that emulates a world without copyright better: we'd have decompilers.

          IMO, there's a better solution than a world without copyright: A world that grants copyright protection only when the expression is published. This is trivially the case in all other areas of copyright: You can't publish a book without letting people read the words that it's made of, thus allowing them to learn and therefore remix your ideas in their own expressions. Same for music, same for everything except software. Only in software is it possible to publish your ideas while simultaneously keeping them h

    • "....This is disappointing when copyleft should really be at war with ...."

      The thing about going to war is that you have to win. If you lose you typically lose in catastrophic, irreversible, grossly injurious ways at best and fatally at worst. If you achieve stalemate you may be so impoverished that you dare not assert your rights in future, and may
      find yourself a much more visible and softer target for other adversaries. You have to win, and win unambiguously even if not in every detail. Cheerl

      • by Bruce Perens ( 3872 ) <bruce@perens.com> on Saturday December 02, 2017 @04:45PM (#55665211) Homepage Journal

        The thing about going to war is that you have to win.

        If your goal is having as many users as possible, you don't set out to use the GPL. Inherent in that choice you are rejecting some users in favor of gaining a better bargain for everyone else. The Kernel Team still has trouble dealing with this.

        • Thank you for making that distinction.

          War, even if corporate or legal or ideological rather than national, is a state that encompasses the possibility of being annihilated, and also the opportunity to enforce the same on the opponent.

          It's very pleasant to be reminded that some people and organisations seek to create frameworks, laws, habits, methods etc. that anticipate and preempt those mindsets and situations. It's also nice to be reminded that pretty much all the software I use to read and to post here

    • The corporate world is playing hard ball, and the open source world wants to string daisy chains.

      Community can be great but isn't enough to make sure our code is used the way we want. Making a choice about what license we are going to use isn't the end of our copyright decision-making [linkedin.com]. If we want our licenses to be effective, we need to plan for enforcement, for inheritance, and for who will "own" the copyright in our code even if we want our code to be free.

  • by gQuigs ( 913879 ) on Saturday December 02, 2017 @03:55PM (#55665003) Homepage

    From the article:
    Q: Is it true that the principles the four companies announced today are taken from the GPL 3 license, but they are applying them to GPL 2?
    A: Yes. If your software is under GPL 3, the same waiting periods that the four companies have promised are required. Thus, it is ironic that when originally presented with the opportunity to apply the GPL 3 to Linux, Linus Torvalds and the Kernel team were quite hostile about it, while the kernel team’s recent announcement attributes the principles they have adopted to the text in GPL 3. Perhaps they’ve learned something since those hostile moments.

    • by Bruce Perens ( 3872 ) <bruce@perens.com> on Saturday December 02, 2017 @04:12PM (#55665057) Homepage Journal

      To be fair to the Kernel Team, the major thing they objected to in GPL3 back then was the anti-TiVo-ization terms. These would prevent lock-down of the software such that the end user would be blocked from updating it. I am told that a number of products gained a "developer mode" just to comply with GPL3. This is something we should encourage, IMO. But perhaps the Kernel Team are still more oriented to having companies use Linux than keeping it as Free as I would like.

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        To be doubly fair to the kernel team, it's borderline impossible to relicense linux even if they want to. When someone contributes code, they do *not* transfer ownership of the code's copyright to the kernel team, they simply make available their code under the GPLv2 and then the kernel team pulls the changes. The kernel doesn't include an "or later" clause in its license, and neither do most contributions, so the kernel team can't legally relicense the kernel without first obtaining approval from every con

      • by tlhIngan ( 30335 )

        To be fair to the Kernel Team, the major thing they objected to in GPL3 back then was the anti-TiVo-ization terms. These would prevent lock-down of the software such that the end user would be blocked from updating it. I am told that a number of products gained a "developer mode" just to comply with GPL3. This is something we should encourage, IMO. But perhaps the Kernel Team are still more oriented to having companies use Linux than keeping it as Free as I would like.

        Here's the thing - GPLv3 would basicall

        • I don't know who told you this, but it's just not true. A lot of businesses prefer GPL3 to GPL2 because many of its terms are more well written and more fair than GPL2.

          Businesses that want to do a TiVo-like lock-down might not like GPL3. That might be some manufacturers or embedded devices. But consider how many WiFi access points allow installation of OpenWRT, etc.

          Google is said to have forbidden the Affero versions of the GPL since they effect software-as-a-service. Is that what you're thinking of?

  • Unfortunately, "as far as I can tell, it's Patrick McHardy's legal right to bring such claims regarding the copyrights which he owns, even if it doesn't fit Community Principles which nobody is actually compelled to follow."

    I don't see the problem with this. Either way, the deliberately offending party gets held accountable. In fact it would be entirely appropriate for these companies to fund lawsuits like this a la the Gawker case because their interests overlap heavily.

    • As far as I can tell so far (not having read the actual cases) it's McHardy's legal right. However, the Kernel Team is bothered that it might turn users away from Linux and don't condone his asking people for money. Nor do any community norms I've seen in 20 years approve of his behavior.

      • by guruevi ( 827432 )

        The problem is that in many jurisdictions non-enforcement of copyright violations makes the license unenforceable. I'm not sure what the statutes of limitations are here (and I also think they are very flexible), but I would say much of the 2.2 and 2.4 kernel code could probably be considered "public domain" in many areas by now.

        If there is a "community agreement" not to sue infringers of the GPL licence in connection with the kernel, then I'd say that is evidence that the license is void and any compliance

        • Re:Bad cop (Score:4, Insightful)

          by Bruce Perens ( 3872 ) <bruce@perens.com> on Saturday December 02, 2017 @07:44PM (#55665839) Homepage Journal

          Creating a Laches (which is what you are talking about) isn't really the same as placing something in the public domain. Laches means you waited for economic demand for the infringing product to develop before you brought the lawsuit, presumably to enrich your income. It doesn't apply to the next new infringer to come along.

          Also, be careful not to confuse it with trademarks going into the public domain.

        • Copyright doesn't go away if you don't enforce it. Trademarks do.

          I know of no community agreement to not sue violators. TFS describes one to go soft at first, giving violators a solid chance to come into conformance. If they don't, the kid gloves are off and lawsuits are reasonable.

          • by guruevi ( 827432 )

            There are plenty of examples where copyright wasn't enforced because the copyright holder waited too long to enforce it, usually until a deep-pocketed entity comes along. Pretty much any claim in civil courts is subject to it including trademarks and patents.

            The OP stated that the community frowns upon suing someone for copyright because it might turn big companies away from using Linux. There is no 'agreement' as in a written contract but Linus himself has quite publicly stated he doesn't care much about w

    • It is as simple as this: People against him using his legit enforcement powers want to muddy the moral waters to make him look bad, and even though this harms everybody involved, they're happy to drive users away with confusion as long as they can phrase it as if they have the moral high ground and are fighting the good fight.

      They may not have considered the moral implications of their combination of licensing and code-sharing terms, but I sure did, and for clarity: When I release code under a Free Software

  • Original Article (Score:5, Informative)

    by Bruce Perens ( 3872 ) <bruce@perens.com> on Saturday December 02, 2017 @05:33PM (#55665393) Homepage Journal
    In case you didn't realize, the original article is the last link. Or you can just look at it here [perens.com].

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