On the 'death penalty' thing [LWN.net]

On the 'death penalty' thing

Posted Feb 1, 2012 18:24 UTC (Wed) by armijn (subscriber, #3653)
In reply to: On the 'death penalty' thing by mjg59
Parent article: A tempest in a toybox

Please don't confuse an end result with something being legally sound.

I talked to several companies and lawyers and the pretty harsh terms (veto, review, binary kernel modules) are only pretty recent (Best Buy case, end of 2009). Before that it was indeed just as Bruce said: "not that bad" and reasonable terms.

Every company so far that has settled in the Best Buy case has settled under undisclosed terms but there is no *actual* judgement.

Perhaps the end result is indeed the same and companies said they would disclose source code, plus agree to something else (perhaps money, perhaps something else, but since those terms are not disclosed we don't know), just to get the lawsuits of their backs. But that still does not answer the core question whether or not it is actually legal to do so, which is what I am most interested in.

So far I have not heard a single lawyer (except from the ones from SFC) speak in support of the demands of SFC.

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On the 'death penalty' thing

Posted Feb 1, 2012 18:36 UTC (Wed) by mjg59 (subscriber, #23239) [Link] (2 responses)

Just to make sure we're on the same page here - are you saying that you've received legal advice to the effect that it's actively illegal for the SFC to make demands on unrelated software as a condition of restoring a Busybox license, or merely that there's no law saying that they can?

On the 'death penalty' thing

Posted Feb 2, 2012 2:56 UTC (Thu) by rahvin (guest, #16953) [Link]

I think anyone with at least the basic understanding of the legal system in the US should know that a plaintiff could demand the CEO of the defendant dress up in a bunny suit and play in traffic and there is nothing illegal about the request. The judge isn't likely to award such a thing in the event infringement is found but they can still claim it and demand it as part of a settlement AND the other side can agree to it as part of the settlement and it would be binding as long as the clause itself isn't illegal (such as requiring the murder of some other person).

IANAL, but there is nothing illegal about what SFC is doing. They can only make these claims and requests because the companies in question open the door by infringing the GPL.

I'd also like to point something else out which unfortunately wasn't in the article. It should go without saying that if a Kernel developer steps forward to work with SFC as the plaintiff they will be the one in the driver seat and if they disagree with certain actions SFC is taking they would be in a position to stop that and prevent SFC from doing whatever it is that the developer disagreed with. The only thing SFC could do would be to refuse to work for the plaintiff.

If you don't like how SFC is engaging in these actions and the terms and conditions they demand for closure the best way to stop them is to become their plaintiff and work with them.

On the 'death penalty' thing

Posted Feb 2, 2012 14:32 UTC (Thu) by dwmw2 (subscriber, #2063) [Link]

They most definitely can. They can require whatever they like in "payment" for granting a licence to use their code.

Some people grant a licence in return for money; some grant a licence in return for postcards. There's absolutely no reason that they can't grant a licence on the condition that the licensee complies with the licence of the *other* software they use. Or stops beating their wife. Or stands on their head and asks nicely.

I believe that the standing on the head example was actually made by a judge in a recent ruling.

On the 'death penalty' thing

Posted Feb 1, 2012 19:44 UTC (Wed) by jku (subscriber, #42379) [Link]

I understand the discussion on whether this the right thing to do or not, but why on earth would SFCs actions be illegal? Remember that we're talking about a settlement, something that the infringer chooses to take part in. They always have the option of not settling.

On the 'death penalty' thing

Posted Feb 2, 2012 2:07 UTC (Thu) by Trelane (guest, #56877) [Link]

How is the veto different from the "we may audit you for compliance at any time" terms of most proprietary software?

Aside from the obvious issue of the SFC not auditing you until you've allegedly violated the terms once.

On the 'death penalty' thing

Posted Feb 11, 2012 12:21 UTC (Sat) by Wol (subscriber, #4433) [Link]

I think the problem here is that, in most cases, once the SFLC get through to someone senior who understands the problem, the offender caves pretty quick and says "how can we put it right?".

Once the SFLC has got hold of someone who (a) has the clout to fix things, and (b) has the determination to fix things, it's pretty easy to come to an amicable solution.

The problem with Best Buy, as far as I can make out, was the only response the SFLC got was "not our problem". To the point they were finally exasperated enough to say "well it is your problem and we're going to court to make you face up to it!"

I don't know whether you have the same thing in America, but over here we have a position called "Company Secretary", of which most companies *M*U*S*T* legally have one. And one of the "perks" of the post is that if the company breaks the law, the Secretary is - *PERSONALLY* - legally liable and can be fined or imprisoned.

So over here, the equivalent of the SFLC could go to Companies House (the relevant public records office), find out who the Secretary is, and send them a registered letter. At which point he is personally on notice that he could end up in jail. He now has two choices. Pass the buck to the rest of the board, placing them on notice of jail terms, or resign. What do you think it's going to do to confidence in the Company if the Secretary resigns, giving as his reason that he doesn't want to go to jail?

Cheers,
Wol