Patrick McHardy and copyright profiteering (Opensource.com) [LWN.net]

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 25, 2017 7:48 UTC (Fri) by fratti (subscriber, #105722)
In reply to: Patrick McHardy and copyright profiteering (Opensource.com) by pabs
Parent article: Patrick McHardy and copyright profiteering (Opensource.com)

I see, so the main issue appears to be the way he goes about the actual lawsuits and his motive behind them. I've heard of cases where the German copyright system has been abused before (notably there was one website which tried its best to have their images listed high in Google Image search so it could sue anyone who used them in a court in Hamburg), and this seems to play the same kind of tune; he's actively looking for ways to profit off the violation through legal peculiarities. One could argue that the GPL's long-winded and complex license gives a lot of opportunity for him to accuse companies of GPL violations after the initial settlement.

Thanks for providing me to these links. I definitely see why what he's doing is not the intent of the GPL.

to post comments

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 25, 2017 15:30 UTC (Fri) by ewan (guest, #5533) [Link] (21 responses)

I'm not sure I completely understand. Clearly his behaviour has its unpleasant aspects, but this seems to amount to a discussion of the ethics of kicking GPL violators in the balls rather than squaring up to them for a fist fight.

Surely the underlying point remains that if they complied with the licence in the first place, neither would happen.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 25, 2017 17:00 UTC (Fri) by dunlapg (guest, #57764) [Link]

Surely the underlying point remains that if they complied with the licence in the first place, neither would happen.

It's nearly impossible to always follow every rule to the letter. Most people like rules because they just want to get along and play fairly. People who are purposely trying to violate the rules may deserve a "kick in the balls", as you say; but people who are genuinely trying to comply should be given more grace.

This is the approach of the SFC: privately approach violators to try to get them into compliance, sue when private negotiation has failed.

On the other hand, there are some people who like rules because it gives them an opportunity to kick lots of people in the balls and get away with it -- catching people out on small violations that are unintentional.

From what I've read, a large number of people that Patrick has sued are unintentional violators -- people who are trying to comply and mostly succeeding, but failing only here and there. These are not the kind of people we want sued; and suing these kinds of people to extort money will only harm the Linux community.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 25, 2017 18:02 UTC (Fri) by seyman (subscriber, #1172) [Link]

> Surely the underlying point remains that if they complied with the licence in the first place, neither would happen.

IMHO, the goal of people releasing GPL software is to get people to contribute code (with the license being "merely" a means toward that end). Going straight to lawsuits without giving GPL violators the chance to correct their mistakes and start contributing back (which seems to be McHardy's M.O.) misses the forest for the trees.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 25, 2017 18:15 UTC (Fri) by rsidd (subscriber, #2582) [Link] (18 responses)

If the Linux kernel were entirely his work you'd have a point. But only a minuscule portion is. Rather than fix the problem (GPL violation) he is trying to personally make money off a violation in which he personally is an extremely minor victim. I would say that's much more unethical than (usually unknowing) GPL violation.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 4:35 UTC (Tue) by paulj (subscriber, #341) [Link] (17 responses)

If his contributions are so minor, why havn't they been rewritten by others if others feel his behaviour is so unethical?

The GPL is _not_ hard to follow.

The truth is there are a lot of corporates out there deliberately pushing the boundaries.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 5:45 UTC (Tue) by Wol (subscriber, #4433) [Link] (15 responses)

> The truth is there are a lot of corporates out there deliberately pushing the boundaries.

And unfortunately there are also a lot of corporates out there who would happily follow the rules, except they didn't even realise the products they RE-sell came with such rules.

Cheers,
Wol

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 6:14 UTC (Tue) by paulj (subscriber, #341) [Link] (14 responses)

There are compliance risks in lots of other areas of business, around trademarks and product standards and safety regulations.

Business _must_ educate themselves about these matters, if they wish to minimise those risks. You can buy goods from a foreign manufacturer, sell them in your own country, and find yourself hit with trademark suits, or find product standards agencies confiscate your goods with no come-back. No Linux or copyrights involved.

Businesses protect themselves against those risks by doing research about trademarks, about safety regulations, waste disposal regulations, etc., and then by doing their research on the products they intend to re-sell and acquiring all the necessary assurances (inc. compliance certifications, legal documents, etc.). That _should_ be a function of businesses who are re-selling products. They _should_ do their due diligence. They _should_ - if they are selling Linux based products - demand the supplier has their GPL compliance in order. Importers _are_ held to account in many other areas, and this is the impetus for them to hold their suppliers to account (who are out of jurisdiction, so the importer's $$ is the only way they can be held to account). So why not in this area? How else can a global supply chain be held to account in today's world?

That many businesses today are not aware is an education issue - not a McHardy issue per se. MBA courses need to get with the modern era and start teaching free software licensing compliance issues in courses. Product managers need to learn about this.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 8:05 UTC (Tue) by rsidd (subscriber, #2582) [Link] (13 responses)

Business _must_ educate themselves about these matters, if they wish to minimise those risks. You can buy goods from a foreign manufacturer, sell them in your own country, and find yourself hit with trademark suits, or find product standards agencies confiscate your goods with no come-back. No Linux or copyrights involved.

Linus and other kernel developers have said rather explicitly, many times, that they are not interested in going down the lawyer route unless all else fails. Their goal is to ensure usage and compliance. Hitting hard with lawyers will kill usage -- as Linus pointed out in this fine rant, that's what happened with busybox.

What's happening in this case is extortion by a very, very minor stakeholder in Linux, not at all sanctioned by the project leaders. In the commercial world this would be impossible. A minor Apple employee cannot sue Google (or anyone) for violating an Apple product's trademark/copyright/patent against the wishes of the bosses. Even if he, himself, did legally own a minor piece of IP in the case. Well, I guess he could but he'd be fired.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 13:27 UTC (Tue) by pboddie (guest, #50784) [Link] (10 responses)

Hitting hard with lawyers will kill usage -- as Linus pointed out in this fine rant, that's what happened with busybox.

Ah, the rant where he blatantly insults people trying to do responsible compliance and mixes up the Software Freedom Conservancy with the Software Freedom Law Center. I guess one shouldn't let the facts get in the way of a good rant, particularly when there are interests that do very nicely out of keeping the licensing situation ambiguous and letting corporations off the hook, "old boy network" style.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 14:14 UTC (Tue) by rsidd (subscriber, #2582) [Link] (9 responses)

So he wrote SFC where he clearly meant SFLC. And I agree the name-calling was excessive but that's what Linus does. Forget his mail then, consider GregKH's mail which is quoted in full there. Do you actually disagree with any of it? This passage for instance?

I've spent the last decade of my life working to support, grow, and enhance our community. And corporations are a _huge_ part of our community, and frankly, the only reason we are where we are today. We _have_ to work to bring more companies and their developers into our group, never working to purposefully alienate anyone.

Here's what happens when you threaten legal action against a company:

they instantly stop talking to any "external" developer that might have been working with them to figure this community and license thing out. So much for our "back channel" to them that was slowing starting to pay off.
they bring in more lawyers, and react defensively to protect themselves, as that's what they have to do to preserve the company.
Anyone in the company that pushed to use Linux is now seen as "wrong" and instantly is pissed off that external people just messed up their employment future.
Anyone in the company that resisted the use of Linux (possibly in ways that caused the code not to be released over the objection of the previously mentioned people) are vindicated in their opinion of those "hippy"[2] programmers who develop Linux.
The lawyers know that now that you are willing to accept that loosing is an option, and will do everything in their capability to ensure that it happens (drag it out, annoy the hell out of developers by disposing them, burn your money in whatever way they can, etc.)
Now, even if, after many years of work on your part, you do get that code, what is the end result? You have made an enemy for life from the people who brought Linux into the company, you have pissed off the people who didn't like Linux in the first place as they were right and yet you "defeated" them. Both of those groups of people will now work together to never use Linux again as they don't want to go through that hell again, no matter what. And look, we have a case study of this, BusyBox. That's exactly what happened numerous times. Some of those people/companies you upset had enough resources to create a competing project to replace it and ensure that they never have to deal with that mess again.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 16:03 UTC (Tue) by pboddie (guest, #50784) [Link] (6 responses)

And I agree the name-calling was excessive but that's what Linus does.

So you think it is acceptable for people in positions of power and responsibility to be abusive because "that's what they do"?

Forget his mail then, consider GregKH's mail which is quoted in full there. Do you actually disagree with any of it?

I have already written what I thought about the argument that people shouldn't uphold Free Software licences, referencing this previous discussion in particular.

But although the quoted text may accurately describe how certain companies respond to the threat (or possibility) of legal action, it seems to advocate that licences should have no legal power because some people think it might upset their corporate friends. I cannot agree with that position at all. The text, particularly as originally quoted, also serves to cultivate a false equivalence between eager litigation and "principled" enforcement, the latter employing litigation as the tool of very last resort.

The author seems to think that those contributing code should allow well-resourced organisations to deliver products that ignore the needs of the users and the contributors' demands that the users be empowered. That contributors and users should all wait for some far-off day when various people in the right "scene" have oiled the right cogs, greased the right palms, or whatever, so that the machine will start spitting out half-relevant source code for the newer products of whichever company it is that cannot follow the licensing terms (and yet have such a formidable legal department).

Apparently, should that day arrive, this will somehow be a victory even though the original infringing products will have long since been rendered obsolete and consigned to the waste pile, forcing their owners to buy new, shiny, and also probably infringing stuff. But some people will have had some lucrative fun along the way, so I guess it will all have been worth it for them. The users, meanwhile? "Let them eat cake!"

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 16:25 UTC (Tue) by rsidd (subscriber, #2582) [Link] (5 responses)

Apparently, should that day arrive, this will somehow be a victory even though the original infringing products will have long since been rendered obsolete and consigned to the waste pile, forcing their owners to buy new, shiny, and also probably infringing stuff.

Actually, it will be (and is, in a huge number of cases) a victory because the drivers (or whatever code it is) have finally been upstreamed and new users of those products have proper support. In other words, Linux runs on a couple of billion devices now, which it wouldn't have if Linus et al had the FSF's ideological purity. But it wasn't by lying back and accepting proprietary drivers as you seem to portray it. It's an ongoing and successful process to get manufacturers to open up their drivers.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 17:41 UTC (Tue) by pboddie (guest, #50784) [Link] (4 responses)

Well, it is only a victory if the day arrives and if the code remains maintained. Meanwhile, licence-violating products get sold, no remedies are ever offered, and the perpetrators act as if they're doing everyone a favour if they agree to cooperate and do eventually manage to get some source code out there.

And, by the way, lots of code ends up on billions of devices, much of it probably governed by more restrictive licensing policies and policed by much more severe enforcement regimes than the relatively benign practices of the FSF, Conservancy and other reputable organisations.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 30, 2017 0:56 UTC (Wed) by rsidd (subscriber, #2582) [Link] (3 responses)

Bottom line: FSF had limited desktop/server penetration with the GNU tools but never even got a working kernel (largely because of closed-door development practices in early years, despite the free-software licence). BSDs got on to devices thanks to Apple, but saw very limited contribution in return -- the almost unusable "Darwin" code dump, which too ceased to get updates. (On the other hand, Apple maintains LLVM and keeps it free, so there's that. Also CUPS and some other stuff.) The Linux way, of having a copyleft licence and enforcement by persuasion rather than by lawyer, is what has made a real impact on the world. The reason Google and many others use the Linux kernel is the hardware support, and the reason for the hardware support is doing things the GregKH way not the SFLC way. But if the FSF types still haven't realised this, a quarter century after Linux was first released, they never will.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 30, 2017 3:57 UTC (Wed) by paulj (subscriber, #341) [Link] (1 responses)

I think the "truth" lies somewhere in the middle. You need to be tolerant and nice and educate, with those who ultimately are persuadable, but you need also to be willing to apply the stick to those who are just taking the piss (who often will do their best to /appear/ to seem reasonable).

OpenWRT exists because of the stick.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 30, 2017 11:44 UTC (Wed) by pizza (subscriber, #46) [Link]

I've personally dealt with folks who take a "bugger off" attitude, most notably Senao/Engenius.

Their products are built on OpenWRT, but they *refuse* to release their kernel sources for at least some of their products. They do however occasionally release "GPL sources" tarballs of everything but the kernel -- Albeit after some cajoling.

They are an example of a company that has absolutely no excuse for continuing to violate the GPL, and IMO utterly deserve the stick to be waved at them.

It's funny. The Senao products I have contain the proprietary Atheros wifi driver. Back when I was still in that line of work, Atheros required some truly onerous licensing requirements to ensure their driver (and the developers working on it) in no way co-mingled with other source code, and had per-unit royalties which required proper production accounting, and massive penalties if any term of the (long) agreement was violated.

Yet somehow the requirement to release their complete corresponding source code to the kernel is too much of a burden for a publicly-traded company who posted a US$3.4M profit (on revenues of about $57M) during Q1 2017?

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 30, 2017 12:14 UTC (Wed) by pboddie (guest, #50784) [Link]

The Linux way, of having a copyleft licence and enforcement by persuasion rather than by lawyer, is what has made a real impact on the world.

When you take away the legal standing of a licence, all that remains for "persuasion" in the face of a party violating that licence is to indicate that they will suffer unspecified consequences to their reputation or to their economic activities, but these will be empty threats in many cases. You could, of course, not use a licence at all or use a permissive licence instead and see if this "persuasion" is still a successful tactic.

I suspect that the "persuasion" only works precisely because the licence brings legal obligations and consequences that, indeed, involve lawyers in the case of the most stubborn violators. But, of course, various people are happy to portray responsible compliance efforts in a bad way, while letting licence compliance slide because it either doesn't affect them or they may even benefit in that it sends more paid work their way.

Maybe those people might acknowledge their role in creating the environment for the situation described in the article instead of whining about lawyers, while getting lawyers to write guides about how not to be taken down in the German legal system, and instead of being generally offensive.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 30, 2017 17:25 UTC (Wed) by BrucePerens (guest, #2510) [Link] (1 responses)

Linus and his inner circle should learn more about it before they talk about law. They tend to further fog up the issue rather than make anything clearer.

In general, companies that have been enforced against recognize that they have had a lapse of due diligence and do not become enemies. There are, however, a few exceptions where the companies "start out arrogant" and dig in. Cisco was one, and VMWare is being one now. VMWare has literally spent 4 or 5 Millions to fight something they could have gotten out of for at most a quarter Million counting any necessary re-engineering for compliance, and only tens of thousands to the plaintiff.

Having people know that rules are rules and must be followed is more important than losing a few companies who simply refuse to play well with others.

Imagine what would happen to us if we infringed their copyrights. Enforcement upon them under SFC guidelines is a lot kinder and gentler than the way they operate.

BrucePerens and VMWare GPL Legal Issues

Posted Sep 10, 2017 6:48 UTC (Sun) by Garak (guest, #99377) [Link]

Speaking of fog, I wonder what you consider the worst U.S. legal offense VMWare is guilty of? I worked there for about a year in 2008 and early 2009. My recollection is, that given my general following of lwn/slashdot, for the entire duration of my employment there, the GPL case/s were considered closed, legally, and as far as the mainstream press (including lwn/slashdot) were concerned. You use some foggy words there- like 'arrogant'. Obviously arrogance is not criminal. And I'll admit, there was at least an average level of silicon valley arrogance present at VMWare. But there are different types of arrogance. Specifically I never had direct knowledge of any colleagues that didn't "know rules are rules", though I imagine that kind of arrogance is indeed common enough unfortunately. The arrogance that might sound plausible to me is "thinking one has found a way to exploit profit within the rules" but not actually being correct. I'm curious if you have an opinion that such happened with VMWare in a way that involved violation of U.S. law. (I focus on U.S. because it's where I live, and I have a remarkably low opinion of many other countries laws, even at the same time I have a low opinion of the U.S.'s). Once a year or two ago after reading an LWN article and giving the issue more thought that I probably should, I managed to plausibly grok the issue in some way that boiled down to the core nuance being whether or not it made a difference that two bits of code ran on the same, or different processors in an SMP system. It seems radically unlikely I understood the issue, but that was the point that I remember. Just now, giving a go at grokking the 'worst U.S. legal offence BrucePerens might consider VMWare guilty of', I went to wikipedia and then a reference, and saw something about no busybox source code provided despite binary redistribution. That sounded cut and dry enough to me, but doesn't seem to mesh with the lack of accusation against them in the 2008 timeframe. My vague recollection following the story is maybe that was something they fixed, apologized, and nobody held much of a grudge about. Which gets back to my curiosity as to which is the clearest cut guilt you accuse them of. Or 'foggily' accuse them of to be more precise. Certainly if there is something clearcut, I'd like to know about it and factor into my personal mental assessment of the previous employer. I don't think I've actually used their software since I left, nor plan on it, because I go with FOSS options when available personally. But it's not because I currently have an impression that they did anything wrong WRT GPL. In general I just consider a fact of life people trying to exploit cornercases of nuanced legality to try and provide financially for their families, even if 'the community' doesn't like the extent to which they hoarde their exploitive profits.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 20:40 UTC (Tue) by paulj (subscriber, #341) [Link]

That in the commercial world he'd have signed his copyrights away, and there'd be an executive is irrelevant. In the commercial world the code would also (far more likely than not) have been kept proprietary, and never have turned into a mass+distributed developed kernel.

If everything from the commercial world is good and the final word, then just give up on copyleft altogether. Yet, despite the dislike of copyleft of many of the exec types, they're nearly all using Linux.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 30, 2017 17:14 UTC (Wed) by BrucePerens (guest, #2510) [Link]

Actually, there is still a ton of Busybox usage in embedded products that are produced today. I have been quietly enforcing the license of late, in compliance with SFC's guidelines.

You can not kill either Busybox usage nor (obviously) Linux usage through enforcement of the license. The programs are too desirable for other reasons, and the alternatives available fall short. All you can do through enforcement is get people to perform due diligence, or if you are a bad actor, you can collect some money until people wise up.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 29, 2017 6:02 UTC (Tue) by rsidd (subscriber, #2582) [Link]

All addressed in several other comments on this article.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 25, 2017 19:13 UTC (Fri) by coriordan (guest, #7544) [Link] (4 responses)

> One could argue that the GPL's long-winded and complex license ...

We've been using GPL for 36 years. If there was a concise way to put copyleft in a licence, someone would have done it by now.

This was a major theme in drafting GPL3. There were people bemoaning the number of words, but when they were asked which sentences to delete, they wandered off. Some continued moaning.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 26, 2017 10:33 UTC (Sat) by Wol (subscriber, #4433) [Link]

The problem is lawyers will take advantage of any loophole.

Imho patenting software is an abuse of patent law. The GPL is supposed to be a copyright licence (patents shouldn't even enter into it!). Yet it's got a load of patent language in there, simply to fix a legal problem that shouldn't exist!

So yes, there is a lot of stuff in the GPL that shouldn't be there. But it's there because it's needed :-(

Cheers,
Wol

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 26, 2017 14:11 UTC (Sat) by flussence (guest, #85566) [Link] (2 responses)

>We've been using GPL for 36 years. If there was a concise way to put copyleft in a licence, someone would have done it by now.
And they did: https://github.com/copyleft-next/copyleft-next

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 26, 2017 15:33 UTC (Sat) by coriordan (guest, #7544) [Link] (1 responses)

Well, they certainly tried, and are still trying.

But since no projects are using the licence, and consequently it has never been tested in court or even been looked at by an "enemy" in the software field, we can't currently say they've succeeded in making a simpler GPL replacement.

Patrick McHardy and copyright profiteering (Opensource.com)

Posted Aug 26, 2017 22:30 UTC (Sat) by anselm (subscriber, #2796) [Link]

There's bound to be an equivalent of Schneier's Law for software licenses.