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The "Death Penalty"...The "Death Penalty"...Posted Mar 26, 2012 20:00 UTC (Mon) by khim (subscriber, #9252)In reply to: The "Death Penalty"... by rqosa Parent article: Enforcing the GPL with Judo moves (The H)
Now suppose that the software downloaded was not an unauthorized copy of Windows, but instead was something (e.g. a GPLed program) that the site owner had permission from the copyright holder to distribute (e.g. because the site owner obeys the terms of the GPL). Then it's perfectly clear that no copyright infringement (by either the site owner or the person who downloaded) occurred as a consequence of the download, and also that the person who downloaded the copy of the software has §117 rights over that copy. This is only true if you have the right to create copy of data sent to you from server on the HDD - and this is not obvious. Usually you can rely on the implied license but if you know that you forfeited your rights under the only known license (GPL) then it's not clear if you should expect to get implied license, too. Even if that's true, it's still true that whether copyright infringement occurred here or not depends only on one thing: the site owner having permission to make and distribute the copy. As you yourself shown it's only true if it's not obvious to you that you are copyright violator. It's of course obvious for the someone who violated GPL, lost the rights granted by it and now is trying to use §117 as fig leaf that he's not dealing with the case of normal downloading. In fact it's easy to build the whole GPL-circumvention scheme using your loophope (if it were real): don't install firmware with GPL components on the factory from the in-factory server. Instead ask your Chinese supplier to put it on ftp, download it from there each time and use §117 to avoid all GPL problems. Chinese supplier will of course send GPL complains where they belong (to /dev/null) and US company is in the clear because of §117.
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The "Death Penalty"... Posted Mar 26, 2012 20:53 UTC (Mon) by rqosa (subscriber, #24136) [Link] > This is only true if you have the right to create copy of data sent to you from server on the HDD - and this is not obvious. But it is obvious — you were sent a copy by someone who had permission to do so, therefore you have the §117 rights over that copy. > > […] whether copyright infringement occurred here or not depends only on one thing: the site owner having permission to make and distribute the copy. > […] it's only true if it's not obvious to you that you are copyright violator. Wrong. Whether or not you previously infringed the copyright is irrelevant as to whether this particular act of downloading was a copyright infringement. (Though in some special cases it could be relevant, such as if the license terms applying to the site owner were something to the effect of "you can distribute the software to some people, but not these people" — but no FLOSS licenses contain such conditions.) > In fact it's easy to build the whole GPL-circumvention scheme using your loophope (if it were real): don't install firmware with GPL components on the factory from the in-factory server. Instead ask your Chinese supplier to put it on ftp, download it from there each time and use §117 to avoid all GPL problems. Chinese supplier will of course send GPL complains where they belong (to /dev/null) and US company is in the clear because of §117. What you're missing here is that the courts would simply ban the import of the infringing firmware. And even if they didn't do so, there would be no need for the US company to invoke §117 — instead, they'd just outsource the manufacturing of the firmware-containing device to China. (They're probably already doing that anyway.) Also, in order for the US company to do what you're describing, they would need to invoke more than just §117, but also the "first sale" right (that is, the right to resell the "original copy" of the firmware they received from the Chinese supplier). Is there actually any legal precedent yet as to whether "first sale" rights apply to downloaded software?
The "Death Penalty"... Posted Mar 26, 2012 21:28 UTC (Mon) by khim (subscriber, #9252) [Link] What you're missing here is that the courts would simply ban the import of the infringing firmware. What infringing firmware? If your insane theory is correct then it's perfectly legal firmware. Chinese guys only need to deliver sources to US company which it turn does not need any license at all (and can just throw delivered sources away without checking that they actually contain anything related to the firmware blob). And even if they didn't do so, there would be no need for the US company to invoke §117 — instead, they'd just outsource the manufacturing of the firmware-containing device to China. (They're probably already doing that anyway.) Right. But now they receive firmware which violates someone's copyright. With this twist they will have perfectly legal firmware. Also, in order for the US company to do what you're describing, they would need to invoke more than just §117, but also the "first sale" right (that is, the right to resell the "original copy" of the firmware they received from the Chinese supplier). Is there actually any legal precedent yet as to whether "first sale" rights apply to downloaded software? Why wouldn't they? Psystar went down in flames not because it resold MacOS, but because it violated it's license which expressly forbid installation on non-Apple hardware. GPL does not have any such restrictions.
The "Death Penalty"... Posted Mar 26, 2012 22:04 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
> Psystar went down in flames not because it resold MacOS, but because it violated it's license which expressly forbid installation on non-Apple hardware.
From what I saw of the lawsuit, they lost because even though they purchased many copies of OS/X, they didn't install from all of those copies and instead had a single "master server" that installed multiple copies from one image. From what I read, if they had instead opened every box and installed from the individual media they would not have been shot down in flames (they may not able to afford the labor to do things this way, but they would have been legal)
This completely ignores standard industry practice of buying many copies of software and then automating the installation from one copy, but that's what Apple convinced the Judge the law said.
> Right. But now they receive firmware which violates someone's copyright. With this twist they will have perfectly legal firmware.
It's not a matter of the firmware being legal, it's a matter of who is liable for the infringement.
With this twist, someone going after the US company would be told "we acted in good faith, here is the company we got this from, go after them", then the lawsuit would have to go after that company, and if the Chinese government chooses to not do anything, the next response is to block the import of the devices
This shifts things around, and may make it a little harder on the person bringing the lawsuit, but it's not a 'get out of jail free' card that invalidates the copyright.
The "Death Penalty"... Posted Mar 26, 2012 23:09 UTC (Mon) by rqosa (subscriber, #24136) [Link] > From what I read, if they had instead opened every box and installed from the individual media they would not have been shot down in flames (they may not able to afford the labor to do things this way, but they would have been legal) Or maybe, they would have needed to not install the OS at all, but instead only bundle the installation discs along with the hardware. Because §117 doesn't seem to allow you to send copies that you made to other people: Adaptations so prepared may be transferred only with the authorization of the copyright owner. (And there's also the separate issues of breach-of-contract and violation of the DMCA anti-circumvention law, which were also part of Apple's claims.)
The "Death Penalty"... Posted Mar 26, 2012 22:50 UTC (Mon) by rqosa (subscriber, #24136) [Link] > it's perfectly legal firmware. Chinese guys only need to deliver sources to US company First of all, you said that "Chinese supplier will of course send GPL complains where they belong (to /dev/null)". How is it that someone is accusing the Chinese supplier of infringing the GPL, when they actually are not infringing? Secondly, in the case that the US company actually did receive the firmware source code from the Chinese supplier, why wouldn't they simply forward it to their customers, instead of contesting the issue in court? Thirdly, if the US company did try to invoke first-sale rights, they'd need to send the unmodified "original copy" to the customer. (Either the "original copy" contains source or it doesn't. If it doesn't contain the source, then the Chinese supplier infringed the copyright and the courts will ban importing from them. If it does contain the source, then the customer received the source and no infringement happened.) And finally, it seems unclear at best whether first-sale rights apply at all to software (or any other copyrighted works) distributed by download (instead of by physical media). > > Is there actually any legal precedent yet as to whether "first sale" rights apply to downloaded software? > Why wouldn't they? Because it's unclear what the "original copy" is in the case of downloads. For works distributed on physical media (optical discs, printed books, etc.) it's obvious what the original copy is: it's the physical item the buyer received from the seller. For a downloaded file, though, what physical item is the original copy? If you initially downloaded it onto your HDD, then does that mean that your HDD is the "original copy"? Or maybe the "original copy" is actually the RAM used by your NIC device, in which case there's no way that you can send it to someone else. (And according to §117, you are not allowed to send any copies you made, e.g. "archival copies", to other people, unless the copyright holder gives you permission.)
The "Death Penalty"... Posted Mar 27, 2012 7:19 UTC (Tue) by khim (subscriber, #9252) [Link] First of all, you said that "Chinese supplier will of course send GPL complains where they belong (to /dev/null)". How is it that someone is accusing the Chinese supplier of infringing the GPL, when they actually are not infringing? Because they want to actually hack on their own code? You know: exercise rights GPL was supposed to protect. Secondly, in the case that the US company actually did receive the firmware source code from the Chinese supplier, why wouldn't they simply forward it to their customers, instead of contesting the issue in court? Because their contract with Chinese supplier forbids that? The Chineese supplier can not restrict distribution of the source, but it can add the provision that support contract is null and void if said source is sent to third-parties. Similarly to what RedHat is doing with RHEL kernel and individual patches. Thirdly, if the US company did try to invoke first-sale rights, they'd need to send the unmodified "original copy" to the customer. And they will do that. What's the problem? Either the "original copy" contains source or it doesn't. This is insane interpretation of GPL - not even FSF trying to do that. If you supply device (with GPLed binary in firmware) with sources on CD - you are in the clear. GPL does not ask to include sources in binaries, it demands to accompany binary with source. And finally, it seems unclear at best whether first-sale rights apply at all to software (or any other copyrighted works) distributed by download (instead of by physical media). This depends of where the version captured from the wire and stored on physical media (HDD in regular case, firmware in GPL-circumvention scheme) is "original copy" or the copy created via §117 exception. If it's original (as you try to imply) then everything is fine, if it's not (and the original copy was copy briefly present in the Ethernet wire) then this method will not work.
The "Death Penalty"... Posted Mar 28, 2012 1:54 UTC (Wed) by rqosa (subscriber, #24136) [Link] > > How is it that someone is accusing the Chinese supplier of infringing the GPL, when they actually are not infringing? > Because they want to actually hack on their own code? You know: exercise rights GPL was supposed to protect. So what you're saying is: the customer would first ask the US company for the source, who would say "We got the source from our supplier, but we won't give it to you. Go talk to the supplier instead", and then the customer would actually do that (instead of pursuing legal action against the US company). That's not very believable. > > Either the "original copy" contains source or it doesn't. > This is insane interpretation of GPL - not even FSF trying to do that. It's not even an "interpretation of GPL" at all, nor does it apply to any one license in particular. It's just a tautology. > GPL does not ask to include sources in binaries, it demands to accompany binary with source. You said that the Chinese supplier did accompany the binary with source. Therefore, the physical object that is considered the "original copy" for purposes of first-sale must be something containing both source and binary. Now, I suppose that the US company might try to use a loophole such as this: the Chinese supplier puts on the distribution server two files, one containing source and the other containing the binary, and then the US company downloads only the binary one. (Actually, they could do this even if the server only contanied a single file with both source and binary — they could download only the binary by sending an HTTP request that has a "Range:" header, such that only the section of the file containing the binary is downloaded!) Then, when the US company gets sued, they say in court: "We did give the customer the exact original copy that we received from the supplier. Sure we could have gotten the source from them, but we didn't actually do so. Therefore, the supplier is the guilty one, not us." But that's so obviously unfair to the supplier that the US company would never get away with it. And even if they did somehow get away with it, then they'd be banned from importing from that supplier. (It's exactly this kind of issue that makes it difficult to establish exactly what the "original copy" of a download is. That's why I believe that the courts would just take the easy way out and establish a precedent that first-sale rights simply don't exist for copyrighted works distributed by download.) > This depends of where the version captured from the wire and stored on physical media (HDD in regular case, firmware in GPL-circumvention scheme) is "original copy" or the copy created via §117 exception. If it's original (as you try to imply) No, I never tried to imply that the "original copy" here is the one stored in HDD or flash RAM. If I had to guess, I'd guess that the other possibility (the original was the Ethernet wire or the NIC RAM chips during the brief time they contained the data, and therefore the original no longer exists) is the one that applies in this case.
The "Death Penalty"... Posted Mar 27, 2012 7:41 UTC (Tue) by khim (subscriber, #9252) [Link] Because it's unclear what the "original copy" is in the case of downloads. For works distributed on physical media (optical discs, printed books, etc.) it's obvious what the original copy is: it's the physical item the buyer received from the seller. For a downloaded file, though, what physical item is the original copy? If you initially downloaded it onto your HDD, then does that mean that your HDD is the "original copy"? Or maybe the "original copy" is actually the RAM used by your NIC device, in which case there's no way that you can send it to someone else. Tut-tut-tut. You've said many times that you don't need to keep the content of the RAM used by your NIC device and you don't need to have any license to enjoy exceptions granted by §117. If your insane theory is correct then that means that there are no uncertainty: when the content of the RAM used by your NIC device is lost you still keep original (or else §117 will demand that you destroy all copies) so that means that in a world where you pompous “copyright is copy-right, not use-right” theory is correct original is most definitely the copy on HDD (and if instead of HDD you'll store it in firmware then this will be the original copy, obviously). I agree, I messed up when I thought GPL-circumvention scheme requires use of §117: it does not - at least not directly. Instead it uses indirectly: to establish just what is “original copy”. Take your pick: either you need a license (implied or otherwise) to download and use any software or you don't need it and then it's Ok to sell GPL-compliant routers without source using aforementioned scheme. You can not have both at the same time.
The "Death Penalty"... Posted Mar 28, 2012 0:47 UTC (Wed) by rqosa (subscriber, #24136) [Link] > You've said many times that you don't need to keep the content of the RAM used by your NIC device and you don't need to have any license to enjoy exceptions granted by §117. For the §117 rights, that's true — because it doesn't matter whether the private copies you made are one, two, …, or N generations away from the "original". So, for example, you can copy it from NIC to HDD (passing through CPU RAM and the disk controller along the way), then from HDD to a flash drive, from flash drive to another computer's HDD, etc etc. But the first-sale right is a different matter altogether — it means that you are allowed to sell the "original", but not any copies of it (in fact, §117 says that you must destroy all such copies when you sell the "original"). So if the courts decide that the NIC RAM was the "original copy", then you can't exercise your first-sale rights at all for downloaded software. > when the content of the RAM used by your NIC device is lost you still keep original (or else §117 will demand that you destroy all copies) No, §117 doesn't demand that you destroy all copies when the original is destroyed. (If it did, that would totally negate the point of allowing you to make "archival copies".) It demands that you destroy them when you lose the right to possess the original copy — in other words, when you sell the original copy, or when a court decides that you didn't actually own the original copy in the first place (which is what happened in Vernor v. Autodesk). > correct original is most definitely the copy on HDD That's not obvious at all. > I agree, I messed up when I thought GPL-circumvention scheme requires use of §117: it does not Yes, now that I think about it, it's not actually correct that "they would need to invoke more than just §117, but also the "first sale" right" — instead, §117 is totally irrelevant in this case, and all that matters is whether "first sale" applies or not. > at least not directly. Instead it uses indirectly: to establish just what is “original copy”. §117 does not clarify exactly what is the "original copy" in the case of software distributed by download. That is something that's up to the courts to decide. And I expect that in the event that a router manufacturer did try to invoke first-sale rights in the manner that you described, the courts would quickly establish a legal precedent that the first-sale right only applies to distribution by tangible media, and not to downloads. In fact, I believe that this is already the general consensus, at least among companies in the pay-to-download business (e.g. GamersGate, GOG.com, eMusic, Amazon, etc.), and among companies in the used-media business (e.g. thrift stores, used record stores, etc.). For example, suppose that I take a DVD+RW disc full of Windows games (DRM-less ones, even) that I downloaded from a pay-to-download store to a local thrift store, and say to them "I bought these legitimately and I've deleted all my copies of them other than the ones on this disc, so it's legal for you to buy this disc and resell it; will you buy it from me?" They'd tell me "no, we won't buy it" for sure, because they're not willing to take the risk that first-sale rights don't apply in this case. (And this same thrift store does sell used CD-ROMs with PC software.) > Take your pick: either you need a license (implied or otherwise) to download and use any software or you don't need it and then it's Ok to sell GPL-compliant routers without source using aforementioned scheme. You can not have both at the same time. Take your pick: either the source-less firmware in the router is the "original copy" (in which case the Chinese supplier is guilty of copyright infringement), or it is a non-original copy (and maybe not even an exact copy) made by the US manufacturer (in which case the US router manufacturer is guilty of copyright infringement). You are the one who's trying to have it both ways!
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