Licence text and fabs

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

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).

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?