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

Talking to McHardy & misplaced blame for his actions

Posted Aug 29, 2017 14:12 UTC (Tue) by anselm (subscriber, #2796)
In reply to: Talking to McHardy & misplaced blame for his actions by Wol
Parent article: Patrick McHardy and copyright profiteering (Opensource.com)

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.

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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.