Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
On the other hand, such activities must always be oriented to compliance, and compliance only. Collecting huge amounts of contractual penalties is questionable. And if it was necessary to collect such huge amounts to motivate large corporations to be compliant, then this must be done in the open, with the community knowing about it, and the proceeds of such contractual penalties must be donated to free software related entities to prove that personal financial gain is not a motivation.
Posted Mar 8, 2018 2:02 UTC (Thu)
by Garak (guest, #99377)
[Link] (24 responses)
Posted Mar 8, 2018 2:20 UTC (Thu)
by pabs (subscriber, #43278)
[Link]
https://opensource.com/article/17/8/patrick-mchardy-and-c...
Posted Mar 8, 2018 2:27 UTC (Thu)
by taggart (subscriber, #13801)
[Link] (10 responses)
Some might claim that the GPL was being used as a trap purely for selfish financial gain rather than Free Software goals. Removing that as a possibility makes it harder for them to smear the GPL.
In situations where someone is trying to make a moral claim, I have noticed that those opposed often try to find to find some excuse to (supposedly) discredit the person making the claim. "Oh you're a vegan, then why are you WEARING LEATHER SHOES! HA! GOTCHA!" etc. Rather than attack the argument they attack the person making it (isn't there a latin name for that?)
Posted Mar 8, 2018 3:56 UTC (Thu)
by BlueLightning (subscriber, #38978)
[Link]
There is indeed - (argumentum) ad hominem.
Posted Mar 8, 2018 6:33 UTC (Thu)
by paulj (subscriber, #341)
[Link] (8 responses)
Further, that notion makes it very hard to even proceed with a case against an infringing company in jurisdictions like Scotland (probably Ireland and England too), where there can be no punitive damages and where you will /not/ be awarded all your legal costs - you'll always have to pay some yourself. All you can claim back are your /damages/, and you must make a case that there was financial damage.
If the general theory is that free software authors must never financially benefit from their software, then it becomes impossible to argue there was any financial damage from the infringement. As a result, there can be no damages, and hence it becomes financially very difficult for non-super-rich free software authors to take cases against infringers.
That theory is ridiculous, and it is inconsistent with Free Software philosophy! Stallman quotes his friend, https://www.gnu.org/philosophy/pragmatic.html:
"Sometimes I work on free software, and sometimes I work on proprietary software—but when I work on proprietary software, I expect to get paid.”
A commercial company that refuses to follow the GPL is a company that then has only non-GPL, _commercial_ terms available to it, of the author-copyright-holder's choosing. And *damn sure* they can name their price - and they _should_.
Posted Mar 8, 2018 8:49 UTC (Thu)
by laf0rge (subscriber, #6469)
[Link] (7 responses)
One point is: It is unfair if (as has been alleged) one particular developer is gaining financially by cashing in contractual penalties. So *if* there are proceeds from enforcement, then those proceeds should benefit either all of the copyright holders of the infringed work (and that's tens of thousands of developers in the case of Linux) or at least benefit some kind of entity/charity that supports Linux.
Now let's assume some developer had received the 2 Million EUR that was claimed in the case. Let's assume this developer has only 0.5% of the copyright of the kernel. That would mean that in order to be fair, either those 2 Million have to be shared (i.e. that developer ends up withe EUR 10k), or every other developer holding 0.5% should also get 2 Million EUR, rendering the total amount to be paid to 400 Million EUR, which is a bit of an unrealistic figure?
Posted Mar 8, 2018 9:18 UTC (Thu)
by paulj (subscriber, #341)
[Link] (3 responses)
The way it works here is that, if you won in court on the issue of infringement, you would then have to argue what the damage was to you. Exactly how do you that is up to you. E.g., perhaps you could demonstrate that X% of the code is yours and that the time you spent on it is normally valued at €Y; or perhaps you can show that the code is available either on commercial terms at €Y /or/ GPL terms, and hence that a company either uses the GPL or must pay you €Y. Arguments and counter-arguments are made, and eventually a ruling will be given, awarding you €Z.
That €Z is _yours_, to compensate you for the damage _done to you_.
That there are other kernel developers who _also_ were damaged, does not take away any of the €Z damage the court found was _done to you_.
It is up to those other kernel developers to _also_ take action. Whether they join with you, or act individually, or form other groups, that's their choice.
I don't know about Germany. However, it sounds like the _repeatedly infringing_ company had previously _agreed_ with McHardy what the damages/penalties would be _to McHardy_ if they infringed again - and they did.
That McHardy doesn't donate some of that to other kernel developers seems part of the issue, from what you're saying. The answer however is _not_ to stop kernel developers from acting to enforce their GPL licence against _repeat infringers_, but for those other kernel developers to form a collective to implement the enforcement mechanism they wish to see, including the distribution of any damages according to the collective good.
There are probably already organisations that could help with such collective stewardship of free software copyrights. ;)
Posted Mar 8, 2018 11:25 UTC (Thu)
by armijn (subscriber, #3653)
[Link] (2 responses)
The company acknowledged that they made mistakes and they fixed them (I helped them).
Posted Mar 8, 2018 12:44 UTC (Thu)
by paulj (subscriber, #341)
[Link] (1 responses)
It's not my fault there is a dearth of facts. We get comments from prominent kernel people about how what McHardy is doing is bad. Are those statements based on facts that are held back, are we being asked to take this on trust?
Also, you say this company didn't repeatedly infringe, but had made mistakes, what does that mean?
Posted Mar 8, 2018 12:54 UTC (Thu)
by armijn (subscriber, #3653)
[Link]
Geniatech in this case had failed to have source code and/or a written offer with the product/downloadable firmware. This has been corrected.
Posted Mar 8, 2018 9:20 UTC (Thu)
by paulj (subscriber, #341)
[Link] (2 responses)
It's an incredibly valuable body of software. Almost certainly worth many billions.
Posted Mar 11, 2018 19:58 UTC (Sun)
by landley (guest, #6789)
[Link] (1 responses)
The FSF became what it was fighting quite a while ago now.
Posted Mar 11, 2018 20:58 UTC (Sun)
by paulj (subscriber, #341)
[Link]
All I'd expect is that infringers pay the costs of the damage that they do, which is entirely reasonable, in line with what courts here would try to do.
Posted Mar 8, 2018 4:02 UTC (Thu)
by faramir (subscriber, #2327)
[Link] (5 responses)
Posted Mar 8, 2018 12:50 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (4 responses)
The problem is the huge number of END USERS who are easy targets because they have no clue that linux is being used in their products.
Okay, the situation is now a lot better, but how many smart tvs run linux? And until all this really blew up, how many downstream vendors knew that it was in there?
I'm perfectly happy with authors suing *deliberate* violators, and walking off with a big windfall, but the whole point of this McHardy mess is that he's suing *accidental* violators, and engaging in *entrapment*. The point is he's NOT giving them the opportunity/assistance to come into compliance.
If he went to them and said "employ me as a consultant to fix your compliance practices", then fine. But he's saying "sign a contract that says you'll pay me if you can't fix your compliance practices on your own".
The current netfilter guys should sue him - in Germany - for an injunction that bans him from seeking to block distribution of their code :-)
Cheers,
Posted Mar 8, 2018 17:05 UTC (Thu)
by faramir (subscriber, #2327)
[Link] (3 responses)
Posted Mar 8, 2018 18:33 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (2 responses)
No ...
> BTW, your definition of END USER seems to be very different than mine. I see an END USER as someone who actually uses a program directly not someone whoe make thousands of copies and distribute them to real END USERs (and is usually compensated for doing so).
Which these companies aren't doing. They're buying components and using them in their products - or even buying in and onward-distributing products. Point is, they aren't the ones modifying or copying linux, they're just (possibly) modifying a product that already contains it ...
> The companies you are concerned with aren't doing their due diligence on their suppliers products.
Or they are, and their suppliers are lying or are in the same position and don't have a clue ...
> In any case GPL3, already allows for companies to correct innocent mistakes and recent developments among Linux kernel developers/companies shows they are willing to do the same thing.
Except that McHardy clearly does NOT subscribe to that school of thought ...
> That's great. But that should not preclude the idea of getting money out of companies who just couldn't be bothered.
I have no qualms about getting money out of companies that couldn't be bothered. But McHardy's enforcement is along the lines of the shyster who notices that your roof is dodgy, offers to fix it, then charges you hundreds of times what the job was worth. If a tile or two falls off my roof, I expect to pay about £100 to fix it, not several thousand ...
Actually, McHardy's worse. He tricks you into signing a contract where you commit to fix it, then he comes back six months later, sees you haven't, and invokes the contract to force you to pay him because you hadn't got round to fixing your roof because you couldn't find a roofer to do it.
Cheers,
Posted Mar 9, 2018 9:50 UTC (Fri)
by niner (subscriber, #26151)
[Link] (1 responses)
If those companies couldn't be bothered to even ask their suppliers, they simply deserve to pay damages.
When Microsoft sends license questionnaires to companies, they jump and proof their compliance. They run license management anyway to ensure they get it right. With free software the same companies just don't bother. And why should they? Nothing happens anyway.
Posted Mar 9, 2018 10:19 UTC (Fri)
by Wol (subscriber, #4433)
[Link]
Two words (one name). Ernie Ball.
https://www.computerworld.com.au/article/77470/guitar_mak...
They got busted by the BSA, because the guy in charge of compliance (a) didn't do a proper job, and (b) shopped the company and got rewarded for his own incompetence (or, more like, maliciousness).
McHardy couldn't give a damn who he targets. He's like the BSA, raking in money any way he can get it. Amoral, a loose cannon, and basically a bigger danger to his own (allegedly) side than the enemy.
Nobody here would shed a tear if real violators got hammered. There are companies that ship a product for a few months, discontinue it, ship a new product, and think they'll get away with it. Fine, sue them out of existence. We don't care.
But there are plenty of companies that try to comply, get the rules wrong or misunderstand them, and make mistakes. McHardy couldn't care. But we do. Which is why apologists for money-grubbing muck-rakers like him don't belong here.
Cheers,
Posted Mar 8, 2018 6:31 UTC (Thu)
by laf0rge (subscriber, #6469)
[Link] (3 responses)
Posted Mar 8, 2018 8:40 UTC (Thu)
by paulj (subscriber, #341)
[Link] (2 responses)
What is ridiculous is the notion that any single Linux developer must not take unilateral action, and that any action requires _all_ the kernel developers to come together and agree. Even worse, the notion that it is somehow unethical for a kernel developer to take unilateral action against *repeat* violators.
Posted Mar 8, 2018 12:21 UTC (Thu)
by nhippi (subscriber, #34640)
[Link] (1 responses)
In general you make the typical internet forums mistake, assuming courts work like computer programs. They are not "if ... then ... else". In the courts, intentions and motivations matter. You don't never every kernel developers signature to sue... but the more you have, the stronger position you have.
Posted Mar 8, 2018 12:40 UTC (Thu)
by paulj (subscriber, #341)
[Link]
Where I referred to the notion of action requiring agreement of all kernel devs, I'm referring to the notion that seems to be advanced by some in the /kernel/ (programmers) world, taken to its extreme, precisely to show it is not workable. And once it is conceded that wide agreement is impractical, you have to start from the /other/ end - that enforcement activities have to be a bottom-up thing, driven by individual developers, coming together if/when it suits them.
Posted Mar 8, 2018 16:13 UTC (Thu)
by cornelio (guest, #117499)
[Link]
Companies should have read the license before taking the code, if the license is such that they may feel the shouldn't comply or even use the code at all then so be it.
Posted Mar 9, 2018 7:55 UTC (Fri)
by CycoJ (guest, #70454)
[Link]
Now that many of these are moving to a business model where software is a commodity and the real value is in the vast amounts of data they collect, they base significant amount of their software on free software and the work of thousands of small time developers and volunteers. Suddenly it is immoral to try to make a personal profit when enforcing your copyright. One might even see this as further evidence of the general trend of wealth accumulation in fewer and fewer hands.
While I agree that efforts should be transparent, I fail to have much sympathy with many of the infringers. The argument that companies will move away from free software is bogus IMO, this never happened with the enforcement efforts from the BSA. Furthermore free software won, the amount of work that is necessary to suddenly move away from it is huge.
Maybe instead of the current enforcement, which implies a slap on the wrist for infringement. There should be a foundation/entity suing for real damages and putting the money into a trust fund to pay future work on the kernel for example. If done properly there should be hundreds of millions of dollars coming into the fund and we would not have to worry about some companies moving away from kernel work.
Posted Mar 8, 2018 2:37 UTC (Thu)
by pabs (subscriber, #43278)
[Link]
http://www.channelobserver.de/artikel/linux-klaeger-zieht...
Posted Mar 8, 2018 3:16 UTC (Thu)
by karkhaz (subscriber, #99844)
[Link] (1 responses)
Posted Mar 8, 2018 6:44 UTC (Thu)
by laf0rge (subscriber, #6469)
[Link]
McHardy submitted a last minute sworn affidavit in the night before the hearing supposedly on those "financial motivastion" claims, but unfortunately it was not read aloud or taken into consideration due to the later withdrawal, I think.
Posted Mar 8, 2018 6:20 UTC (Thu)
by paulj (subscriber, #341)
[Link] (11 responses)
Posted Mar 8, 2018 6:37 UTC (Thu)
by laf0rge (subscriber, #6469)
[Link] (10 responses)
Please note that none of the court cases in Germany including this one have ever been about damages to begin with.
Also, damages are always awarded by a court, unlike the contractual penalties that are paid out of court (in huge amounts according to claims of some people including the defendant here)
Posted Mar 8, 2018 7:24 UTC (Thu)
by Cyberax (✭ supporter ✭, #52523)
[Link] (1 responses)
Posted Mar 8, 2018 8:36 UTC (Thu)
by laf0rge (subscriber, #6469)
[Link]
... and as indicated, the court decline co-authorship / joint authorship in this case anyway.
Posted Mar 8, 2018 8:51 UTC (Thu)
by paulj (subscriber, #341)
[Link] (7 responses)
The company agreed to those contractual penalties in order to a) have previous infringement forgiven, and b) regain a GPL licence to be able to continue to distribute Linux. They agreed with McHardy that those would be the recoverable damages if there was further infringement. What I am very interested to hear about is the exact nature of the infringement of this company. Whether it was accidental, as some have tried to suggest, or through negligence, or deliberate.
Ultimately, the GPL needs teeth (and the long-standing writings of the FSF say the same). Economic consequences are the only way to make companies do the due diligence and compliance efforts necessary to stop the chronic repeated infringement through gross negligence and/or deliberate acts.
You can be soft and nice to begin with, and things should be left those for those companies that respond to that. However, for the repeat infringers, they ultimately need an economically-felt kick in the arse - nothing else will persuade them.
Posted Mar 8, 2018 11:28 UTC (Thu)
by armijn (subscriber, #3653)
[Link] (6 responses)
Posted Mar 8, 2018 12:49 UTC (Thu)
by paulj (subscriber, #341)
[Link] (5 responses)
And that McHardy has received such payments is something other netfilter and kernel people dislike, because (in part) it isn't fair they have not received anything?
McHardy does have kernel contributions, and those contributions presumably are significant enough that they're not easily removed, otherwise that would surely already have been done, correct?
Posted Mar 8, 2018 12:54 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (1 responses)
You can't retrospectively remove his contributions. How many systems still ship with 3.x or even 2.x kernels? It's probably pretty easy to remove his contributions from the latest kernel(s) but that still leaves a LOT of targets out there.
Cheers,
Posted Mar 8, 2018 15:59 UTC (Thu)
by cesarb (subscriber, #6266)
[Link]
It could be a good incentive to ship a less ancient kernel.
Posted Mar 8, 2018 12:59 UTC (Thu)
by armijn (subscriber, #3653)
[Link] (2 responses)
Posted Mar 8, 2018 13:12 UTC (Thu)
by paulj (subscriber, #341)
[Link] (1 responses)
Semi-random aside: I can't help but think of pro-elite politicians in a number of countries, whose general goal is to bias wealth accumulation (wealth that today goes to the the public good particularly) towards the already-wealthy, and who want to implement policies to do so that are against the general interest of most of the electorate. Their method for gaining support for those policies, which are against most voter's interests, often involves sowing discord between elements of the populace to disunite the populace. This often involves hyping up some social-ill and then using $OTHER-blaming rhetoric. E.g., that public services (hospitals, schools, etc.) are being overwhelmed by immigrants is a common one.
Then I look at the various big companies, who like being able to use copyleft software but hate having to contribute, and I look at the sustained campaign over the last X years of trying to undermine copyleft - the GPL especially - and how some prominent individuals in the kernel community (working for a consortium that has GPL infringers as members) have come out and made arguments that the community basically should next-to-never enforce the GPL, and the opprobrium heaped on McHardy for having the gall to have collected *damages* from infringing companies...
Posted Mar 8, 2018 13:25 UTC (Thu)
by armijn (subscriber, #3653)
[Link]
Posted Mar 8, 2018 11:16 UTC (Thu)
by armijn (subscriber, #3653)
[Link]
Posted Mar 14, 2018 3:24 UTC (Wed)
by branden (guest, #7029)
[Link]
* the court understood that Linux was created by Linus Torvalds in 1991 and released under GPL to facilitate the open and collaborative development
* the court recognized that there is no co-authorship / joint authorship (German: Miturheber) in the Linux kernel as a whole, as it was not a group of people planning+developing a given program together, but it is a program that has been released by Linus Torvalds and has since been edited by more than 15.000 developers without any "grand joint plan" but rather in successive iterations. This situation constitutes "editing authorship" (German: Bearbeiterurheber)
* the court further recognized that being listed as "head of the netfilter core team" or a "subsystem maintainer" doesn't necessarily mean that one is contributing copyrightable works. Reviewing thousands of patches doesn't mean you own copyright on them, drawing an analogy to an editorial office at a publisher. Bad news for Eric Raymond's idea of copyright/authorship; see the ncurses licensing story.
self interested motivational factors
And if it was necessary to collect such huge amounts to motivate large corporations to be compliant, then this must be done in the open, with the community knowing about it, and the proceeds of such contractual penalties must be donated to free software related entities to prove that personal financial gain is not a motivation.
I don't grok why the authors "mustn't" be the financial beneficiaries of the penalty. This statement could be interpreted as suggesting that personal financial gain as a motivator is a bad thing intrinsically/for some reason. Personal financial/reputational/personal-utility gain seem to me to be some of the best natural motivational foundations FOSS authorship.
self interested motivational factors
https://marc.info/?l=netfilter&m=146887465012705&w=2
http://www.netfilter.org/files/statement.pdf
http://www.netfilter.org/licensing.html#faq
https://lwn.net/Articles/721458/
https://lwn.net/Articles/731941/
https://lwn.net/Articles/694890/
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
Wol
self interested motivational factors
self interested motivational factors
Wol
self interested motivational factors
If their suppliers don't have a clue and thus answered the compliance question wrongly, those companies can sue their suppliers for damages.
self interested motivational factors
Wol
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
self interested motivational factors
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Nope, only to those who joined in on the lawsuit.
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Wol
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Excellent summary
Welte: Report from the Geniatech vs. McHardy GPL violation court hearing
Just to give you some examples: