More DTrace envy [LWN.net]

More DTrace envy

Posted Jul 3, 2008 22:10 UTC (Thu) by bronson (subscriber, #4806)
In reply to: More DTrace envy by bronson
Parent article: More DTrace envy

I showed my engineer-attemptls-law post to a friend and she said:

> Sometimes when you sue for breach of contract, you can be awarded restitutionary damages
which means that even if you can't prove that you have been damaged, you can be awarded money
equivalent to the other party's "ill gotten gain".  So if the other party unfairly got some
advantage that was, for lack of a better term "unfair", you could recover their gain just
because it is unfair for them to keep it.

> That's one reason why it is dangerous for profitable companies to use open source code.  You
use code in a way that breaks your contract with the programmer ... that programmer could
recover your "ill gotten gain".

Wow.  Now I'm curious if this has been used in any of the GPL violation cases.  I'll have to
watch them a little closer!

to post comments

More DTrace envy

Posted Jul 3, 2008 22:47 UTC (Thu) by bcantrill (guest, #31087) [Link] (2 responses)

You (or rather your friend) is making my point:  the restitutionary damages that she mentions
are the case of Meglocorp shipping GPL'd goober in proprietary product, and Hacker suing for
damages.  That's not the case that was being floated; the assertion was that Meglocorp would
become a Linux copyright holder and then could sue when CDDL'd source was distributed with
the(ir) GPL'd source.  I don't see what the damages are in this case -- compensatory or
restitutionary.  I think if it's flipped around -- Meglocorp ships GPL'd+CDDL'd goober, Hacker
sues because GPL has been violated -- one at least has a case, but I happen to think it's an
extraordinarily weak case: it relies on both an expansive definition of a derived work, and a
creative approach to damages.

More DTrace envy

Posted Jul 3, 2008 22:58 UTC (Thu) by mjg59 (subscriber, #23239) [Link]

Nobody knows how far the derived work clause of the GPL would actually reach. Staking your
future business to a legal gamble isn't a move many people are willing to make without a large
resulting benefit, and dtrace simply isn't perceived as a sufficiently large benefit. It's
perfectly rational reasoning.

More DTrace envy

Posted Jul 4, 2008 0:03 UTC (Fri) by bronson (subscriber, #4806) [Link]

> Meglocorp ships GPL'd+CDDL'd goober, Hacker sues because GPL has been violated

Agreed. This is the only one that seems plausible. But proving damages seems to be rather
easy nowadays. And just about anybody involved with Meglocorp could sue; it doesn't have to
be a Linux kernel hacker.

Here's the big-picture problem as I see it: after the SCO disaster, the Linux kernel devs will
not incorporate any code of questionable license status into the kernel. They want to keep
the entire tree completely unencumbered by legal issues. It was a good lesson at a good time.

So, until it can be demonstrated that CDDL and GPL code absolutely can be mixed, they won't
accept CDDL-licensed code into the kernel. it's just too risky.

As far as derived work, while I agree that those parts of the GPL are horribly murky and
untested, I don't think it's very relevant here... Even if someone *could* claim that DTrace
is a derived work (a stretch!), as long as the CDDL+GPL combination is "licensed as a whole at
no charge to all third parties under the terms of [the GPL]" everything is good. If the CDDL
and the GPL are compatible, the terms of the GPL are met, and the whole derived work issue is
moot. (Right?)

To make CDDL+GPL compatible, IIUC the patent issues just need to be resolved the way Mozilla
did with the MPL. Everything else in the CDDL and the GPL is compatible today. (I'm no
expert though so I'd sure value someone else's opinion. That almost sounds too easy!)

It would be nice to see someone reject license prejudices and try to maintain an out-of-tree
DTrace-Linux but... can you imagine? The git-rebases would make the even the heartiest
programmer cower in fear!

Contracts

Posted Jul 3, 2008 23:13 UTC (Thu) by corbet (editor, #1) [Link] (2 responses)

This scenario, of course, depends on the idea that the GPL is a contract; the people who wrote the GPL did not intend that, however; they wrote a license. Assuming that legal reasoning holds, there's no contract to be sued for breaching. And no, I do not believe any GPL-violation case has been a breach-of-contract case; they are copyright infringement cases.

Contracts

Posted Jul 3, 2008 23:17 UTC (Thu) by bcantrill (guest, #31087) [Link]

Yes, the authors did intend it to be a license -- but the attorneys that I have spoken with on
this issue believe that the expansive views of the GPL require it to be interpreted as a
contract.  Again, some case law here would be quite helpful...

Contracts

Posted Jul 4, 2008 0:22 UTC (Fri) by bronson (subscriber, #4806) [Link]

http://lwn.net/Articles/61292/

That's a relief, although it does diminish the chances of me finding my code in the Google
Toolbar and making a quick hundred million.  :)