BusyBox and the GPL Prevail Again (Groklaw)

[Posted August 3, 2010 by corbet]

Groklaw has the latest ruling from Conservancy v. Best Buy. "One of the defendants was Westinghouse Digital Technologies, LLC, which refused to participate in discovery. It had applied for a kind of bankruptcy equivalent in California. Judge Shira Scheindlin of the Southern District of New York has now granted Software Freedom Conservancy, a wing of Software Freedom Law Center, triple damages ($90,000) for willful copyright infringement, lawyer's fees and costs ($47,865), an injunction against Westinghouse, and an order requiring Westinghouse to turn over all infringing equipment in its possession to the plaintiffs, to be donated to charity. So, presumably a lot of high-def TVs are on their way to charities." Given that the defendant is in bankruptcy, one should not hold one's breath waiting for those TVs, but, as the article points out, this ruling cannot fail to get the attention of the other defendants.

LWN lists the plaintiff wrong.

Posted Aug 3, 2010 21:01 UTC (Tue) by bkuhn (subscriber, #58642) [Link] (3 responses)

The lwn article says it's "SFLC v. Best Buy". it's actually "Conservancy v. Best Buy, et al". In this case, SFLC acts as lawyers to plaintiffs in the matter. The plaintiffs are "Software Freedom Conservancy, Inc." and "Erik Andersen".

LWN lists the plaintiff wrong.

Posted Aug 3, 2010 21:11 UTC (Tue) by corbet (editor, #1) [Link] (1 responses)

Hey, who are you going to trust...LWN or this "bkuhn" guy?

Oh...OK...fixed...sorry for the confusion.

LWN lists the plaintiff wrong.

Posted Aug 4, 2010 17:39 UTC (Wed) by bronson (subscriber, #4806) [Link]

[1]: http://en.wikipedia.org/wiki/Bradley_M._Kuhn

(for those who don't immediately recognize the name)

"Best Buy" as defendant

Posted Aug 4, 2010 20:17 UTC (Wed) by markhb (guest, #1003) [Link]

Was Best Buy a defendant (I'm not sure if "defendant" or "respondent" is correct in this case) because of its own Insignia TV's, or because selling e.g. "Westinghouse" (or Sony or Panasonic) TV's with embedded Linux makes it effectively a distributor of GPL'd software and therefore subject to the requirement to make source available?

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 5, 2010 1:44 UTC (Thu) by pmilne (guest, #34533) [Link] (14 responses)

"Given that the defendant is in bankruptcy, one should not hold one's breath waiting for those TVs"

Except that it would be no more lawful for the bankrupcy trustee to sell off the IP impaired TV's than for the defendant company to do so when solvent.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 5, 2010 19:15 UTC (Thu) by zlynx (guest, #2285) [Link] (13 responses)

Nah. Once they are built the copying is already done. There can be court ordered consequences of that but it does not mean the objects are impossible to use or sell. That isn't copying, after all.

It is probably against the law to copy the TVs...

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 6, 2010 9:42 UTC (Fri) by etienne (guest, #25256) [Link] (12 responses)

Well, if you steal a car, you cannot legally use or sell it *because it has been stolen*.
I do not know why unlicenced software should be treated differently (replace "car" by "pirated version of another OS") but maybe it is because IANAL.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 8, 2010 20:47 UTC (Sun) by nix (subscriber, #2304) [Link] (11 responses)

Because theft deprives another individual of the use of the thing you stole? Copyright violation and theft are completely unrelated: I don't know why people associate them any more than they do, say, fraud and arson. (Well, other than that large corporations have spent many millions trying to convince people that copyright violation, theft, and, oddly, the taking of ships at sea by armed force are the same thing.)

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 10, 2010 23:48 UTC (Tue) by fergal (guest, #602) [Link] (5 responses)

Something is fishy here.

Let's say I am the author. I have not authorized my work to be included in this TV. You have bought the TV in good faith from Westinghouse, who performed the illegal copying. Then I have no right to stop you using my work? That's what you appear to be saying.

I'm pretty sure I cannot legally use a proprietary OS that came pre-installed on a computer if the person who installed it had done so illegally.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 1:24 UTC (Wed) by zlynx (guest, #2285) [Link] (4 responses)

Your only recourse is through the courts. For cases of copyright infringement the court decides what the penalty is. It's often monetary damages. It does not necessarily include an injunction against selling the product.

IANAL, YMMV.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 7:48 UTC (Wed) by fergal (guest, #602) [Link] (3 responses)

The article specifically mentions an injunction. That said, I don't see what that has to do with it, we're talking about whether an end user could continue to use a TV set they had already bought if it contained illegally acquired software.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 9:33 UTC (Wed) by Trelane (subscriber, #56877) [Link] (2 responses)

I'd wager that it's up to the copyright holder. Given that they have the government-granted monopoly on copying their works, they could ask them to be destroyed (i.e. reset to a state where the copying hadn't happened).

Firmware's tricky, though; they don't have a right to the TV itself.

as always, ianal and tinla. ;)

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 9:36 UTC (Wed) by Trelane (subscriber, #56877) [Link] (1 responses)

(given that this GPL'ed software, I'd bet that they'd allow the *users* to keep using, and probably put up (or have the defendants put up) a website with the source code and notify the users. Especially since this is the core of why the defendants are, well, defending. ;)

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 10:30 UTC (Wed) by etienne (guest, #25256) [Link]

The problem in this kind of equipment, as usual, is that the software is not totally GPL - but a mix of GPL software and commercial software.
The manufacturer has signed a contract saying that they will never show the source code of the commercial software.
The manufacturer may have had the possibility to buy that commercial software with the right to redistribute source code in the past, but they did not do so because it was more expensive.
The manufacturer cannot release source code, so the GPL says the manufacturer cannot sell/distribute the equipment.
That is good in the short term because this manufacturer is not allowed to compete with another one doing The Right Thing (TM) even when it is more expensive.
That is good in the long term because the GPL community slowly see how to talk to new hardware to be able to write more drivers.
That is *only* good if there is a country where copyright laws are respected, this case gives more hope.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 8:58 UTC (Wed) by etienne (guest, #25256) [Link] (4 responses)

> Copyright violation and theft are completely unrelated.

I really do not understand what you are trying to say...

> theft deprives another individual of the use of the thing you stole.

OK. But for me,
Copyright violation deprives the *copyright owner* of the *value* of the thing you stole.
For instance, I would still call stealing "using money from someone else bank account without his authorisation" - even if the guy can still use the bank account after, wouldn't you?
Even when not talking of money like for GPL, the work of the copyright owner has some value which has to be "paid for" by giving back something.
Maybe I should not use "paid for" and "stealing" for non physical objects, maybe ther are better terms.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 9:30 UTC (Wed) by Trelane (subscriber, #56877) [Link] (3 responses)

Copyright violation and theft are completely unrelated.
I really do not understand what you are trying to say...

apparently not.

OK. But for me, Copyright violation deprives the *copyright owner* of the *value* of the thing you stole.

It depends on what you call "value." Your software has the same or more of an impact on humanity if copyright law weren't restricting its copying. Your reputation in the world may be magnified if people copy your software willy-nilly.

You can still charge the same amount of money using the government-provided copyright limited-time monopoly on your creation (which is provided in exchange for creating more stuff; if a creator freeloads and charges the same price, perhaps he/she should be accused of "theft" using the same logic?). However, due to copyright infringement, some number of people who would have otherwise paid may not pay and still receive the work. Some number who would otherwise have paid may not pay and not receive your work. Some people wouldn't have paid regardless. (and then others would and wouldn't have paid for receiving/not receiving the work at various price points!) The number you're concerned with--the number who would have paid but did not and still get the work--is inherently unknowable (knowing for certain would require knowing alternate universes where they didn't infringe on your limited-time copyright monopoly) although it may be estimable.

For instance, I would still call stealing "using money from someone else bank account without his authorisation" - even if the guy can still use the bank account after, wouldn't you?

This is a bad analogy. The money taken from the account is gone, and that is the theft. There would likely be additional charges for other crimes (breaking into their account, fraud, etc.).

Even when not talking of money like for GPL

The GPL has nothing to say about money. You can use the GPL on software you charge for.

the work of the copyright owner has some value which has to be "paid for" by giving back something.

No. The government grants the creator a limited-time monopoly on copying their creative works (i.e. removes the citizens' natural right of copying an idea or intellectual work) in exchange for the creator using the monopoly to create more works. Specifically,

The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

(U.S. constitution, cited on http://www.copyright.gov/title17/92preface.html; Purpose has been bolded; means have been italicized.)

Maybe I should not use "paid for" and "stealing" for non physical objects, maybe ther are better terms.

The term for infringing on copyright is "copyright infringement". The term for infringing on a patent is "patent infringement." I'd agree, though, that a creative work can be "paid for" and "unpaid".

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 10:59 UTC (Wed) by etienne (guest, #25256) [Link] (2 responses)

> > OK. But for me, Copyright violation deprives the *copyright owner* of the *value* of the thing you stole.
> It depends on what you call "value."
> Your software has the same or more of an impact on humanity if copyright law weren't restricting its copying.
> Your reputation in the world may be magnified if people copy your software willy-nilly.

If someone distribute something under the GPL license, all that the user can assumes is what is written in the license.
Maybe that copyright owner do not care about "reputation" or "impact on humanity"?
If he really did, he would probably have used another license, or a contract with strange requirements like usual commercial contracts.
What has to be "paid back" is clearly described in the GPL license, there is no point in discuting it too much - in simple terms just give back the source with your bug fixes and modifications - and the way to rebuild.
If you do not agree, either don't use it, or ask the copyright owner to use another license (maybe even for you only).

The government-provided copyright limited-time monopoly on a creation is for the society to evolve as a whole, it does not force the copyright owner to do anything more than enjoying the result of his own work.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 11:32 UTC (Wed) by Trelane (subscriber, #56877) [Link] (1 responses)

If someone distribute something under the GPL license, all that the user can assumes is what is written in the license. Maybe that copyright owner do not care about "reputation" or "impact on humanity"?

You claimed,

Copyright violation deprives the *copyright owner* of the *value* of the thing you stole.

I'm asserting that your claim depends on a number of factors, including the definition of "value". Now you're quibbling about what the definition of "value" is. You're now claiming that "value" is up to whatever the copyright holder wishes it to mean, which is ridiculous. There are categories of value, and the copyright holder may or may not care about some categories, as you've outlined. This is irrelevant to the central issue of whether or not "value" is lost, let alone whether or not copyright infringement is theft.

Your assertion is that the copyright holder is "deprived" of the "value" of the work being copied, which is possibly false, depending upon conditions which are very situation-dependent (reputation, impact on humanity) or inherently unknowable (lost money from sales at a specific price point that would have happened if copyright infringement would not have occurred).

What has to be "paid back" is clearly described in the GPL license, there is no point in discuting it too much - in simple terms just give back the source with your bug fixes and modifications - and the way to rebuild.

No. The GPL requires that you give not prevent the end user from exercising their Freedoms. The rest is technical implementation of that idea.

Still, this is orthogonal to the original dicusssion, which is whether or not copyright infringement is theft.

it does not force the copyright owner to do anything more than enjoying the result of his own work.

This is a non-sequitur. We're talking about whether or not copyright infringement is theft. Please stick to the topic at hand.

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 11, 2010 12:19 UTC (Wed) by etienne (guest, #25256) [Link]

> I'm asserting that your claim depends on a number of factors, including the definition of "value".

I am just claiming that the value is described in the GPL: the currency to use is "source code", and the amount is "all derived work and way to reproduce".
If you want to pay in another currency like hard cash or reputation, GPL is not the license to use and you would better ask the copyright owner for another license (he/they may acccept cash as currency).
The copyright owner may very well have put his source code on the net under GPL to be able to see if someone can make money out of it (like building a TV) and wait himself for a part of this money because the GPL is unworkable to produce a TV.
That is a buisness model I would not object to - the only thing I know about GPL software is what the GPL says (and I have spent time reading it).
If you build a TV, you can ask the copyright owner to use his source code in exchange of increase of reputation like telling everybody that this guy is a genious on all TV channels - that would be another valid license.
If you refuse to accept the GPL terms and refuse to negociate anything else, and still use the source code - I just claim that is stealing (because the copyright owner work has some intrinsic value that you refuse to "pay for").

BusyBox and the GPL Prevail Again (Groklaw)

Posted Aug 5, 2010 13:42 UTC (Thu) by sepreece (guest, #19270) [Link]

As some of the comments on the Groklaw article point out, this was a summary ruling based on the defendants not responding to discovery. The questions about enforceability and infringement weren't a factor in that judgment.

I think the only precedent here is that if you're being sued, you'd better show up.