Talking to McHardy & misplaced blame for his actions [LWN.net]

Talking to McHardy & misplaced blame for his actions

Posted Aug 29, 2017 6:30 UTC (Tue) by paulj (subscriber, #341)
In reply to: Talking to McHardy & misplaced blame for his actions by Wol
Parent article: Patrick McHardy and copyright profiteering (Opensource.com)

What is "The Cause" exactly?

The guy wrote code that's widely used in Linux across the world. Clearly non-trivial, given how long it has lasted despite corporate disquiet with his enforcement activities. People are distributing that code in egregious breach of the licence, so clearly *utterly unlicensed* - a copyright violation.

He apparently (from what Bradley has written) has given re-sellers and integrators a chance to come into compliance, and obtained agreements from them to do so. Those re-sellers and integrators have then apparently ignored the issue, and continued to sell products in a manner outwith the licence. Though, the exact details are hard to come by.

The world is a complex place. It shouldn't be McHardy's place to have to further educate repeat copyright violators. Indeed, as the injured party, he _should not_ offer advice to the parties he has a complaint against (your lawyer will never let you do this, in a similar situation).

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Talking to McHardy & misplaced blame for his actions

Posted Aug 29, 2017 13:31 UTC (Tue) by Wol (subscriber, #4433) [Link] (4 responses)

> What is "The Cause" exactly?

In quotes because I was - deliberately - being vague. I guess it's probably World Domination ... :-)

> The guy wrote code that's widely used in Linux across the world. Clearly non-trivial, given how long it has lasted despite corporate disquiet with his enforcement activities.

Complete non-sequitur. Have you ever worked on a software project? Have you any idea how much old and obsolete code there is lying around? EVEN IN THE LINUX KERNEL?!

If no-one is either (a) paid, or (b) has a serious itch to scratch, they're not going to do the work. And if McHardy's code is trivial - as it apparently is - then neither (a) or (b) is likely to happen.

> People are distributing that code in egregious breach of the licence, so clearly *utterly unlicensed* - a copyright violation.

And what do you mean by egregious? If they bought a complete product from someone else and are merely reselling it (which appears on several occasions to have been the case) then in those circumstances people do NOT expect to get bitten by Intellectual Property issues!

> He apparently (from what Bradley has written) has given re-sellers and integrators a chance to come into compliance, and obtained agreements from them to do so. Those re-sellers and integrators have then apparently ignored the issue, and continued to sell products in a manner outwith the licence. Though, the exact details are hard to come by.

That's the whole point. Details are hard to come by. Although it appears pretty clear that McHardy's settlements are intended to make subsequent compliance "tricky", shall we say. There's a legal name for that - "entrapment".

> The world is a complex place. It shouldn't be McHardy's place to have to further educate repeat copyright violators. Indeed, as the injured party, he _should not_ offer advice to the parties he has a complaint against (your lawyer will never let you do this, in a similar situation).

So your lawyer will actively frustrate your attempts to get your preferred resolution to the case? The job of a lawyer is to DO AS THEY'RE TOLD, and to GET THE BEST RESOLUTION POSSIBLE.

If, *in the client's eyes*, the best resolution is to get compliance with the licence, then it is the lawyer's DUTY to seek to achieve that, and if that means giving advice to the other party, then so be it.

Cheers,
Wol

Talking to McHardy & misplaced blame for his actions

Posted Aug 29, 2017 14:12 UTC (Tue) by anselm (subscriber, #2796) [Link] (2 responses)

From what we've been told, McHardy's game is to find someone who violates the GPL on “his” copyrighted code in the Linux kernel, say, for product A, and get them to agree to stop doing that. He gets to recover “attorney's fees” for that (a couple of thousand Euros or so) and part of the agreement is that further GPL violations on their part will attract an automatic much larger fine. He then goes away and comes back a few months later to see whether there are more violations, e.g., in product B. In that case the contractual fine kicks in.

If you're the company that is shaken down, paying a few thousand Euros to make the guy go away for the time being may not look that bad at first. The correct approach, however, is to say “thank you”, fix the GPL violation, and let the guy sue you in court for actual damages, which he may either not bother with in the end or else lose (it may be a more lucrative and less risky use of his time to go shake down somebody else instead). Whatever you do, you certainly do not want to commit to the future-automatic-penalty agreement.

Talking to McHardy & misplaced blame for his actions

Posted Aug 29, 2017 20:49 UTC (Tue) by paulj (subscriber, #341) [Link] (1 responses)

"his" - why the quotes? Is there any doubt about him having copyright in code in the kernel?

Also, is it possible the reason no one has contested his demands so far potentially because they havn't a leg to stand on?

Talking to McHardy & misplaced blame for his actions

Posted Aug 29, 2017 22:39 UTC (Tue) by anselm (subscriber, #2796) [Link]

Whether “they haven't a leg to stand on” would be up in the air. Remember that Christoph Hellwig got his case against VMware dismissed because the court thought his individual contributions to the Linux kernel weren't sufficient to give him standing to sue. If that happened to McHardy he would have a real problem right there, so this may be a strong disincentive for him to actually sue somebody (and, in effect, roll the dice about the ongoing viability of his “business model”).

The other problem is that German civil law only deals in actual damages, not punitive damages, so McHardy would have to prove in court to what extent he was personally defrauded by company XYZ's GPL violations, which again might be difficult to do in actual practice.

Finally, the future-contractual-penalty-for-copyright-and-trademark-violations racket here in Germany is the hallmark of sleazy lawyers. People who have been around the home computer scene in the 1980s and 1990s may remember the late Günter Freiherr von Gravenreuth, who basically turned this into a cottage industry, but the practice has been alive and kicking in various guises ever since.

Talking to McHardy & misplaced blame for his actions

Posted Aug 29, 2017 20:47 UTC (Tue) by paulj (subscriber, #341) [Link]

Old code can still be valuable code.

As for egregious, perhaps in the first instance it was not the reseller. However, his copyright was still being infringed upon egregiously by someone, somewhere upstream of the reseller. If I understand Bradley correctly, at that point McHardy does *not* get any significant money from them, and the reseller /is/ told about their GPL obligations, and they do sign up to becoming compliant.

The second instance, the reseller clearly can not claim to be unaware. That's the entire reason McHardy can at that point get more significant damages. I find it hard, on the face of those facts, to have much sympathy for these resellers - it seems to me they *chose* to keep infringing.

We've heard a lot about McHardy and his actions, though still very filtered paraphrasings (it would be really good if Bradley and/or others could make the copies of the agreements public, mod redactions of clearly identifying details).

We've heard very little detail though about these repeat GPL violators, who are supposedly so innocent. I'm a little sceptical on that.