FDL again, was: My concerns about GPLv3 process

[Gareth Bowker]

On Sun, Feb 12, 2006 at 07:29:46PM +0100, Alfred M. Szmidt wrote:
>    > In theory, anyone can go and make Linux a non-free program, since
>    > it is simply impossible to enforce the license there.
> 
>    I suggest you read http://gpl-violations.org/ in order to see where
>    the GPL has been discussed, and upheld, in court, following
>    companies attempting to make the Linux kernel proprietary.  Harald
>    Welte, who started the site and wrote some of the Netfilter code,
>    took (and continues to take) many companies to court over the use
>    of his code, which is included in the kernel. The violations being
>    sued for now are on a wider scale than just Netfilter, as I
>    understand it.
> 
> This is different, netfilter had presumable only a single copyright
> holder (or a few), Harald Welte.

It has many contributors. While Harald is only suing for his specific
parts of code, on a practical level, there's enough of his code in the
core Netfilter to make it practically unusable if it were to be removed.

> This isn't the case with the whole
> of Linux.  For each infginged part, you would have to figure out who
> the copyright holder is, and ask them to sue.  Something that is
> infact a practical impossibility.

If you're talking about getting *every* copyright holder to sue, then I
agree. But you don't need everyone, only a few key people who have code
dotted all over the place. Let's say, for example, Alan Cox sued. He has
code (and by inference, copyright) throughout many parts of the kernel.
To remove his code, and his code only, and still have a usable kernel,
being realistic, I can't see it happening. It's the same for Harald, or
Rusty, or many of the core contributors. All you need is for a small
number of key people to sue to make it impractical to continue to
infringe.

Also, while I don't remember off-hand which case it was (I believe it
was the first one mentioned on gpl-violations.org), I remember Harald
got an injunction against a distributor until the case came to trial.
This stopped them distributing the *whole* product - it was unrealistic
to remove Harald's code and still have a decent product.

My point is that you don't need to have many people suing (or simply
threatening to sue) for companies infringing on the GPL to comply.
Simply having a few key people is all you need. Harald's proved that one
person is plenty.

> Harald Welte can only ask for his
> copyrighted bits to either be removed, or have the infringing party to
> comply with the license, he (or the court I think) cannot dictate what
> should be done with the other parts, since no copyright holder has
> come up and sued.

I don't know the legal status of this, IANAL, but I'd be surprised if I
turned up to court and said "this guy's infringing upon my copyright,
and here's my proof. By the way, he's also infringing on these other
people's copyright too, as it's all licensed to the same way. Please
stop him" if a court didn't stipulate that they had to comply with the
licence in its entirety. Anyway, as I said, I don't know the legal ins
and outs, so unless someone has a genuine legal opinion to express,
let's drop this particular part, if that's OK :)

> None of the cases at http://gpl-violations.org are about companies
> infringing on the license of Linux, but seperate projects or stand
> alone bits in Linux, as far as I can see.

It's not quite that black and white. They *are* infringing upon the
licence of Linux, but the cases in point are about specific parts of
Linux to which Harald (and/or others) are copyright holders.

> I spoke about Linux as a whole, not in small parts.

From a hypothetical point of view, you're absolutely correct. To sue
someone for infringing upon the rights of Linux as a whole would be
impossible. I simply don't believe it's necessary to consider Linux as a
single whole. While Harald has been vocal with his site, I know that
others in the Linux kernel community have also has similar discussions
with distributors of their code.

> For example you could do something like: take Linux, someone sues, you
> remove the infringing bit, continue distributing a non-free version of
> Linux, and simply wait until someone "sues" again (have any of the
> cases listed on gpl-violations.org gone go court?), and only do the
> minimal to comply with the bits you are infringing on.

From memory, at least one has gone to court, at least to a preliminary
injunctive stage. I don't know the specifics of how things ended, except
that the company in question relented, released the modifications under
the GPL and made some payments to someone somewhere as redress. the
details are, I'm sure, available on gpl-violations.org if you're
interested.

Cheers,

Gareth
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