About the calculus for the project [LWN.net]

About the calculus for the project

Posted Feb 5, 2012 15:14 UTC (Sun) by khim (subscriber, #9252)
In reply to: About the calculus for the project by alankila
Parent article: A tempest in a toybox

I personally do hope that people would not find this argument reasonable way to think about licenses, because in general case any piece of software that happens to eliminate another piece of GPL software could be argued to help facilitate GPL infringement on the remaining software.

Nope. Again: context matters. As rahvin already wrote: The court verdicts to date have basically established the precedent that if the intent and use of the product was for the primary purpose of infringing copyright, even if there are legitimate uses that make up a small part of the use case, that the parties responsible are guilty of contributory copyright infringement for the behavior of their users. Not only you should show that someone picked your piece of software because it's under BSD license (that's understandable: less rules to follow), you must show another piece of GPLed code which is commonly used with first one and show that most users of your software not only continue to use it, but also do it in violation of it's copyright. Tall order, indeed.

But as you point out, law is essentially insane and random, and stranger things could happen. My personal feeling, however, is that this is not fair nor right, whatever the courts might find.

No questions here. I also feel that copyright's power is inflated way, way, WAY beyond any reasonable limits. But... dura lex sed lex. And since Disneys and SONYs of the world were instrumental in said insane inflation it's only proper to apply no mercy, as much punishment as possible principle to them.

to post comments

About the calculus for the project

Posted Feb 5, 2012 23:13 UTC (Sun) by anselm (subscriber, #2796) [Link] (1 responses)

Not only you should show that someone picked your piece of software because it's under BSD license (that's understandable: less rules to follow), …

What about the idea of someone picking the BSD-licensed software simply because it was better code than the GPL software (i.e., written by somebody with several years of experience with the GPL codebase, taking into account any design and implementation issues since discovered with the GPL codebase etc., and better targeted towards solving the actual problem that users of the software need solved)?

In that case it would be difficult to argue that the »intent and use« of a BSD-licensed Busybox workalike would be »for the primary purpose of infringing copyright«. Maybe its intent and use is to provide a technically superior all-in-one shell-type tool, and its users prefer it to Busybox on these grounds (with the more liberal license as a fringe benefit). This isn't Napster, after all.

Given this, it would be next to impossible (for someone like the SFC) to show that somebody picked the BSD-licensed software exclusively on licensing grounds, and claiming that this in turn was only done to avoid GPL compliance issues concerning the Linux kernel would border on a conspiracy theory. At the very least, someone like the SFC would have to prove that the workalike was clearly less suited, technically, for its intended use (by the defendant, not the FLOSS community in general) than the original GPLed Busybox, and that the defendant still went for the workalike just to be able to do an end-run round the SFC. Have fun.

About the calculus for the project

Posted Feb 6, 2012 0:33 UTC (Mon) by khim (subscriber, #9252) [Link]

I never said it's easy to probe illegality of this work. In fact just a dozen years this question was flat out crazy: it was obvious that if there no copyright violation then there are no material for lawsuit. And as I've already said: it's hard to say a-priori which way the development will go. In fact there already exist alternative BSD-licensed userspace fro Linux: Android's one (albeit in this case it's pretty clear that it's goal was to support Java-based environment and not to act as GPL-free replacement for GNU tools). And if companies that use toybox will be postly good citizens then we'll not a problem: as was shown many times already it's not about busybox or toybox.

But Disneys and SONYs of the world are hard at work - and they continue to extend the reach of copyright in the vain hope to squeeze more money from 100 years old creations.

If enough guys from enough companies will blab out that they are switching to toybox to solve "SFC problem" then you'll have materials for lawsuit. It'll not matter if toybox is inferior or superior. If proportion of GPL-violating companies will be high enough among toybox users and low enough among busybox users and you'll have direct evidence for a few "switchers" - you'll probably have enough for the court in the current world, where copyright importance is inflated beyond any reason. And in tomorrow's world it may be even easier.