Licence text and fabs [LWN.net]

Licence text and fabs

Posted Oct 5, 2006 8:42 UTC (Thu) by nim-nim (subscriber, #34454)
In reply to: Licence text and fabs by mingo
Parent article: Busy busy busybox

Oh, some people will think of it.

But you know what? I don't care. They'll be laughted out of court since judges have a very low tolerance for this kind of legal trick.

The judge's test will be the following: are the copyrighted/trademark/whatever parts functionnaly necessary? If the answer is no and they've been knowingly inserted only to make copyright/trademark/whatever law conflict with another legal requirement, game over. You're trying to game the law and wasting the judge's times. Too bad for you if you loose some IP property in the process, no one forced you to expose it.

Even if someone managed to construct some functionnal reason for the use of these parts, copyright/trademark/whatever law wouldn't win automatically -- the judge would balance one requirement against another, and the more artificial convoluted one would lose.

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Licence text and fabs

Posted Oct 5, 2006 9:12 UTC (Thu) by mingo (subscriber, #31122) [Link]

Sensing some fundamental disagreement that causes us to argue circularly i have read back some of your other replies in other threads and I think your core argument in favor of DRM is in one of your sentences:

  GPLv2+DRM happens to enable corporations to do the BSD on GPL code they    
  wanted all along.

Does that fairly summarize your points around DRM up in essence?

If yes then i contest your suggestion above. (i thought i did that before, but hey)

GPLv2+DRM still gives us the source code. BSD doesnt. Tivo gives us their source code for the DRM-ed kernel they utilize. So where does the GPLv2+DRM combination create the "BSD on GPL code" situation in the Tivo case? I'd really like to understand your logic here.

I'd agree with you that if GPLv2+DRM would be equivalent to the BSD then that would not be acceptable to me and i'd find little joy in hacking the kernel. (when i started developing Linux years ago i made a conscious choice against BSD, mostly due to their license)

Licence text and fabs

Posted Oct 5, 2006 11:16 UTC (Thu) by nim-nim (subscriber, #34454) [Link]

> So where does the GPLv2+DRM combination create the "BSD on GPL code"
> situation in the Tivo case

Very easily, you only need to make DRMed PCs the cheap norm and open PCs the expensive exception.

for every-market-without-GPLv3-software ; do
{
// Get MS/Hollywood money and help
release (spec-mandating-DRM-on-next-hardware-gen);

// Making exceptions costs money and the majors don't like hairies
apply (DRM-on-GPLv2-software);

// Need some GPLv2 devs with access to DRMed hardware
// Or the FLOSS ecosystem will collapse brutaly, regulators notice
// and floss users not buy the new hardware generation
hire (some-gplv2-devs-to-do-life-support);

// This only takes a few years with modern lifecycles
wait (DRM-hardware-is-the-norm);

// This takes a tad longuer, as hairies will hoard previous gen hardware
// However without hardware access they're bound to disappear and find
// a cheaper hobby
wait (floss-hobbyists-have-disappeared);

// Without hobbyists there are less floss devs on the job market
// All the new software contributions come from competitors
// May as well make a consortium and work together
// Denying entry to new would-be competitors
replace (GPLv2-software,consortium-software);

note (floss-in-market-nonexistent);
}

This is the usual BSD pattern of hire key community people, stop contributing downstream, redeploy once the community is anemic

Licence text and fabs

Posted Oct 5, 2006 11:33 UTC (Thu) by nim-nim (subscriber, #34454) [Link]

> How do you know that it's "defendant laughed out of court" instead of "GPLv3
> plaintiff's copyrights being judged unenforceable, due to misuse of
> copyright"?

As the GPLv2 enforcements efforts have shown, a judge will tend to consider someone availing himself of some provisions of a licence (free code access) has no legs to stand on contesting the obligations part later (as long as the obligations are clearly expressed).

Nobody forces anyone to use copyrighted/trade secrets/trademarks as DRM keys.
Nobody forces anyone to use GPLv3 software.

Licence text and fabs

Posted Oct 5, 2006 14:25 UTC (Thu) by mingo (subscriber, #31122) [Link]

Oh, the GPLv2 enforcements so far were mostly about clear-cut violations like "not giving out the source code", or trying to hide the origin of the code and copyright ownership by modifying binaries.

I believe you are over-simplifying the picture. A more realistic case would be like this:

- hardware maker fully living up to all provisions of the GPL. Source code made available on their website, etc.

- separate content provider (provider of expensive GPS maps, movies, pay-per-view events, etc.) insists on copy protection of their content.

- hardware maker use of DRM to restrict the extraction of that content from the hardware, by only allowing trusted installs approved by the hardware maker.

GPLv3 copyright owner sues. The judge will weigh: on the one side, the legitimate interests of the content owner, and the trade secret of the hardware maker, and the contractual obligation of the hardware maker to not make the content copiable, against the interest of the GPL owner, who gets his modified source code. The hardware maker even contributed back to the copyright owner's project.

But besides the source code (which was the main object of trade in a previous version of the same license, which was "similar in spirit"), the GPL work owner now also insists on a new-found and pretty far-fetched "right to tweak the hardware".

The hardware does not look all that tweakable to the judge, it's a sealed pink plastic cube. The copyright holder insists on the defendant either ceasing distribution (which likely bankrups the defendant) or requires the giveout of the trade-secret crypto key (which likely bankrupts the defendant too, because he was contractually obligated to the content owner to protect stuff and to not give out the key).

Furthermore, the judge will look who the people with this "right to tweak the hardware" are. They describe themselves as certain "hackers", and they want to "hack on the hardware". To do good stuff, amongst them, as the defendant will point out, "to enable pay-per-view piracy".

On the other hand, the judge will weigh the "harm" that the denial of this request for keys causes the copyright owner, but that harm seems rather remote: the copyright owner has only a personal interest in modifying the hardware. Out of curiosity. No matter how difficult technically. And he could run the manufacturer's code on his home PC. No, of course he does not want to watch pirated content.

Do you think the decision is so clear-cut against the defendant, especially if the defendant insists on a jury trial?

Licence text and fabs

Posted Oct 5, 2006 15:22 UTC (Thu) by nim-nim (subscriber, #34454) [Link]

The answer is simple :

1. hardware maker uses GPLvx code -> he's now bound by the license requirement

2. here comes content provider, asking something incompatible with the hardware maker licensing obligations :
A. hardware maker can refuse
B. hardware maker can accept to breach his legal obligations, and be sued
C. hardware maker can accept, replacing the GPLed code with something compatible with the content provider demands. He won't be sued. If he's smart, he'll make the content provider pay for the change

No judge will defend someone promising to do foo to A and not-foo to B.