FDL again, was: My concerns about GPLv3 process

Harald Welte laforge at gnumonks.org
Tue Feb 14 09:25:10 UTC 2006

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.  

Oh no, they are certainly in the order of 50+ people who really hold
copyrightable contributions.  All the rest is probably too simple
bugfixes to be copyrightabel works.

It doesn't really matter how many there are.  The only important fact is
that you can identify a given piece of code as copyrightable work by the
person who wants to enforce.

> 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.  

Yes, this is true if you think you need to enforce each and every piece
separately.  But in all practical cases, doing ot for one part is enough
to make them learn. 

> Something that is infact a practical impossibility. 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.

That is true.  But you are missing some points, see below.

> 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.

there are no 'stand alone bits' in Linux.  Every software of reasonable
complexity has sections.  And as long as one copyright holder wants to
enforce his copyright on his section, he's perfectly free to do so.

> 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 

EvilCorpTM could certainly do so, but:

1) there's still the question of 'past infringement'.  Just changing the
   software by removing that 'section' and complying from now on is not
   sufficient to redeem the past infringements.   
   In gpl-violations.org out-of-court settlements, the settlement
   usually includes wording to state that the complete corresponding
   source code of all (L)GPL licensed parts of the product(s) has to be
   handed over to me.

   Also, with real-world products, it's unlikely that you will be able
   to prevent any sale of even a single device that still contains the
   old software (including the enforced 'section') after the enforcement
   is 'active'.  

   This means that the copyright holder could go after each and every
   distirbutor, importer, wholesale, even retail store who still has the
   old software version and distributes it gpl-incompliant.  This will
   create enormous economic pressure onto the vendor, since they can all
   regress onto him, and will probably refrain from selling any of his
   products in the future.

2) if other parts outside that 'section' are derivative works, then the
   GPL has to apply to them, too

3) from the first enforcement on the first section on, it is definitely
   known infringement on the rest of the program.  This changes the
   liability and damages claims situation drastically for any
   following-up enforcements on other sections.

> (have any of the cases listed on gpl-violations.org gone go court?), 

three preliminary injunctions (maybe four? I don't even remember off my
head), of which one had an appeal filed which was later turned down.

- Harald Welte <laforge at gnumonks.org>          	        http://gnumonks.org/
"Privacy in residential applications is a desirable marketing option."
                                                  (ETSI EN 300 175-7 Ch. A6)
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