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FSF takes on Apple's App Store over GPL

FSF takes on Apple's App Store over GPL

Posted Jun 10, 2010 21:34 UTC (Thu) by sfeam (subscriber, #2841)
In reply to: FSF takes on Apple's App Store over GPL by farnz
Parent article: FSF takes on Apple's App Store over GPL

So you're claiming that if I produce "Farnz Windows 7", which is a box of my own design, with a copyright infringing copy of Windows 7 inside the box, and Best Buy stock it at $25, Best Buy can't get in trouble? I am not claiming that. They would have a problem because the box in question was already illegal/pirated/infringing/whatever as it came from the upstream supplier. It would have been an infringing copy whether one purchased it directly from Farnz Inc or from Best Buy. They are at fault for not determining that it was a legal product to begin with.

But in the case of a SUSE box, so far as I understand your line of argument, the box and contents were fine and proper as delivered from SUSE but somehow became tainted by having a Best Buy sales-tag attached. Let us assume for the purpose of argument that Best Buy was diligent in checking that the box and contents were license-compliant from the start, with SUSE providing the source and/or a written offer inside that box. You seem to be arguing that nevertheless Best Buy itself has acquired additional obligations under the terms of a license agreed to by SUSE (the packager/distributer) and by the end user. How? No one is suggesting that Best Buy modified the contents, much less the original source, in any way. If I buy the box at Best Buy, and then re-sell it still-unopened to a friend, am I suddenly responsible for providing a copy of SUSE's source trees? I can imagine that there are people who hold such over-zealous interpretations of the virulence of the GPL, but I think Schlesinger is not the only one who would be "taken aback" by such an interpretation.

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FSF takes on Apple's App Store over GPL

Posted Jun 10, 2010 22:38 UTC (Thu) by farnz (subscriber, #17727) [Link]

Best Buy take this sort of risk all the time - how often do you think they verify for themselves that (for example) no toxic materials are present in illegal quantities in product they sell?

If you pass on the box unopened as it came from SuSE, you're including SuSE's written promise and adding a guarantee that it will be honoured, or including source code. The risk from doing so is small, and I assume that Best Buy have done due diligence to ensure that they're safe (e.g. by getting their distributor to agree to take on the risks that come from supplying infringing product); until SuSE refuse to honour their promise, the product is legal, after all, and if source is included, it's legal even if SuSE disappear tomorrow.

And the same applies to everything else under copyright that Best Buy stock; as a distributor, they are bound to obey copyright law. This greatly limits their liability, but doesn't remove it completely. The general rule here is that a retailer like Best Buy will normally only ever engage in so-called "innocent" infringement - they genuinely believed that they were in compliance with the licences (and will have a paper trail to show why they believed this), and thus, assuming they remove the problematic product from sale as soon as they discover it's infringing, their net liability is as close to 0 as makes no difference.

In particular, you would be hard-put to require specific performance, as you could get the sources elsewhere, albeit at some effort, so you are not in a position that cannot be fixed by application of money. Best Buy should be in a position to demonstrate that they did not deliberately infringe (i.e. that they thought they were compliant), and that they took action to stop infringing as soon as they were notified. As a result, the chances are that, at worst, they'd be ordered to give you the necessary information to chase their upstream, but no money.

The reason this is acceptable risk for Best Buy, but not for a device manufacturer is twofold:

  1. Best Buy can easily demonstrate that they did not deliberately infringe, but thought that they were in compliance - they bought and sold sealed boxes. A device manufacturer who customises the code they receive before they ship it is going to struggle to say that they didn't have an opportunity to check for infringement themselves.
  2. The loss to Best Buy if they have to stop selling a product for legal reasons is small - their distributor will generally have to buy the product back. The loss to a device manufacturer in having to take a product off the market and reclaim stock from resellers is high.

Of these reasons, the first is the biggie - because Best Buy can show innocence, they have a good chance of not facing damages for non-compliance. Bringing it back round to the Apple situation - there's probably not a lot that can legally be done to Apple over this sorry mess, this time round, as they pulled the product as soon as they discovered it was infringing; this changes if someone can show that their approvals process gives them a chance to check for infringement. However, it does put everyone on notice that (in the FSF's opinion at least), it's impossible to distribute GPL code on the App Store without an exception clause added. Future developers who wish to use GPL code in App Store applications now know the intentions of at least one copyright holder who uses the GPL.

FSF takes on Apple's App Store over GPL

Posted Jun 11, 2010 14:28 UTC (Fri) by Lefty (guest, #51528) [Link]

This is an accurate analysis of the situation. No, there's nothing much the FSF could "do" to Apple, on a couple of grounds. In addition to their being in a situation of inadvertent infringement, there's no revenue associated with GNUgo, either for the FSF or for Apple (since the program was given away for free).

The FSF cannot argue that Apple has damaged them in any way: the source code was publicly available, Apple never made a dime on GNUgo, and the FSF never lost one. All they could get (in an optimistic world) would be a judge's order to take the app down, which Apple's already done. (I wonder whether the FSF could get a contempt charge for bringing a frivolous lawsuit. Quite possibly, I think.)

FSF takes on Apple's App Store over GPL

Posted Jun 11, 2010 15:40 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

"In most ways, this is a typical enforcement action for the FSF: we want to resolve this situation as amicably as possible. We have not sued Apple, nor have we sent them any legal demand that they remove the programs from the App Store."

There was no lawsuit. You seem to be engaged in wishful thinking and speculation and basing your arguments on your dislike of FSF. Apple has zero grounds for a contempt charge based on a mere license violation notice.

FSF takes on Apple's App Store over GPL

Posted Jun 23, 2010 18:44 UTC (Wed) by jospoortvliet (subscriber, #33164) [Link]

But they were talking to apple, and decided to not wait for the results but publicly damn them. I think that's stupid - esp considering the talks were (some ppl said) constructive.

FSF takes on Apple's App Store over GPL

Posted Jun 23, 2010 19:05 UTC (Wed) by rahulsundaram (subscriber, #21946) [Link]

You are free to criticize their approach and they have cited their reasons for taking this approach and outcome was going to be exactly the same regardless of the approach in this case but nevertheless lefty who really should be knowing better is making an incorrect claim about a lawsuit. That is a dent on his credibility.

FSF takes on Apple's App Store over GPL

Posted Jun 11, 2010 15:30 UTC (Fri) by vonbrand (guest, #4458) [Link]

What if they are original, sealed SUSE boxes; but stolen from them and the thief sold them to BestBuy?

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