Jumping the licensing shark
Jumping the licensing shark
Posted May 3, 2023 11:15 UTC (Wed) by malmedal (subscriber, #56172)In reply to: Jumping the licensing shark by farnz
Parent article: Jumping the licensing shark
Deception, which you dismiss as emotive, is widely considered a bad thing and is a serious accusation.
It can also have legal repercussions, depending on details deception might invalidate his contracts.
Unlike the Linux community in the SCO case McHardy has been publicly silent. Why isn't he giving us his version of the story?
Posted May 3, 2023 12:15 UTC (Wed)
by paulj (subscriber, #341)
[Link] (20 responses)
If I were dealing with a company violating my copyright, and I told them, and they agreed to stop. And they continued to do so anyway, does it really make a difference if the continued violation was one I knew of before but didn't tell them about? The company concerned clearly is incompetent at a minimum in its processes for incorporating other people's code into their product - if not wilfully malicious.
These companies are profiting from other people's software - while a subset of the Free Software developers who wrote that code struggle to make ends meet. And these "softly softly" attitudes mean there is little incentive for any of these companies to change their ways.
Posted May 3, 2023 12:40 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (4 responses)
If SOMEONE ELSE knew of a company violating YOUR copyrights, and then (through whatever means) got them to sign a contract which allowed THEM to claim damages for violation of YOUR copyrights, would you be happy?
Hardy is that "someone else", and he made a pretty tidy penny out of it. Especially as (iirc) his code had been removed from the kernel several years prior.
If Hardy had been collecting damages on HIS OWN code, a lot of people would have been happy, a lot of people would have been miffed, most people would not have complained. The problem is he was collecting damages on OTHER PEOPLES' code.
Cheers,
Posted May 3, 2023 12:50 UTC (Wed)
by paulj (subscriber, #341)
[Link] (3 responses)
And indeed, I think I'd be a bit of a dick if I then launched a campaign to smear that other author within my community because he enforced his copyright against *serial* and _commercial_ violators, and only /after/ first asking the violator to stop, and the violator not doing so. (Least, I think I would be, on /those/ facts).
Now, whether McHardy has enough code in Linux, in the form Genietech (or whoever) were using it, to give him legal or moral standing to take copyright enforcement actions, those are other questions. Assuming he does, refer to above. If not - that's a *different* matter.
Posted May 3, 2023 15:52 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (2 responses)
Except McHardy is NOT a joint copyright holder. If my co-holder chooses to enforce copyright and I don't, that's our mutual separate decisions, and we both have to put up with the consequences of our decisions. But if some random joe decides to enforce MY copyright to HIS benefit in a work to which he has made no contribution whatsoever ... ???
Cheers,
Posted May 3, 2023 16:02 UTC (Wed)
by paulj (subscriber, #341)
[Link] (1 responses)
There-after, if the company signs an agreement to stop violating anyone's code, in return for a "let off" on the original violation, then that is an agreement that McHardy and the company are allowed to enter into between themselves. That agreement is predicated on *McHardy's copyright in the code* and the *original violation of McHardy's copyright* (and above, we are taking that as given - if not, that's a different issue).
Posted May 3, 2023 16:09 UTC (Wed)
by paulj (subscriber, #341)
[Link]
The precise details still elude the wider community - these seem only deemed suitable for discussion behind closed doors at the Chatham House LLW type events. :(
Posted May 3, 2023 13:15 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (14 responses)
The allegation I heard is that companies were asked to pay a small fee and sign a contract and then they could continue to use technology A and the matter of technology A would be resolved forever.
Then later they would get a claim demanding money for technology B. This sum was much larger and had more legal teeth because of the first contract for technology A.
Note that when the lawyer for one party comments on a case while the other side is silent that is usually a sign that anything they could possibly say would only make the situation worse.
Posted May 3, 2023 13:44 UTC (Wed)
by paulj (subscriber, #341)
[Link] (13 responses)
Farnz's comment about this being about - at best - incompetence at the companies concerned. Remember, the clearest and most detailed description we have of McHardy's actions are this, from the lawyer who represented geniatech:
"The tactics used by McHardy are to first notify the company of the GPL violation and ask for a cease-and-desist declaration that would subject the company to a flexible contractual fine. If that is signed, it is followed up with another letter, pointing to a different GPL violation, that asks for a second cease-and-desist declaration with a fixed contractual fine. After that is signed, further violations are alleged, each of which comes with a request for the fines (which can be a five-figure value per infraction), along with further cease-and-desist declarations with even higher fines."
From LWNs reporting, https://lwn.net/Articles/752485/, of the presentation given at the FSFE Legal and Licensing Workshop: https://fsfe.org/activities/ln/llw-past.en.html - under Chatham House rules, so we have very little to go on. We don't have the presentation, but presumably Wensler agreed for LWN to report on it, and presumably LWN has given a fair characterisation (complete?).
So, to be clear,
1 Company is violating the GPL on Linux
"You're violating my copyright on the netfilter Flobble module in the Linux kernel. Sign this agreement, promise to stop, and we're good. If you do it again, you'll owe me X".
3 Company removes the Flobble module from their product, and ships updated Linux, without the Flobble module
5 McHardy comes back and says (explicitly or implicitly):
"You're still violating the GPL on Linux, and I also have the Wibble module in it, even if you removed the Flobble module. You owe me X. Sign this new agreement and stop violating. Violate again and you owe me X*Y"
And so on.
If anything, if McHardy repeated his copyright claims over a series of distinct modules, then this is _worse_ for the company than I thought. The only way this story adds up is if these companies did _work_ to address the violation /only/ of McHardy's components - that he'd told them about. Which implies they updated their product, and continued to wilfully violate the copyright vested in the remaining code!
And the "deception" is that McHardy hadn't told them he happened to still have copyright in that remaining code, which they continued to wilfully violate?
I have even _less_ sympathy for these companies than before. And I am increasingly sceptical of the criticism of McHardy. McHardy is the "troll"?
Posted May 3, 2023 13:53 UTC (Wed)
by paulj (subscriber, #341)
[Link]
An earlier LLW, LWN report: https://lwn.net/Articles/721458/
"The panel was moderated by OpenChain program manager Shane Coughlan and consisted of Armijn Hemel, of Tjaldur Software Governance Solutions, and Mark Radcliffe, chair of global open source practice at DLA Piper, who has advised a number of clients in disputes with McHardy. Coughlan and Hemel have both been active in the GPL compliance world for many years; they have written about some of that here at LWN as well as in a new freely available book on GPL compliance."
"who has advised a number of clients in disputes with McHardy."
So basically, serial GPL violators dislike Free Software developers enforcing their copyright and the GPL. And the lawyers they pay who are active in Free Software licensing are now trying to defang copyleft completely, while smearing said Free Software dev for taking enforcement action against GPL violators who signed a contract with McHardy to stop violating, and who then _actively did work_ to remove McHardy's code so they could *continue* to violate the GPL - not realising McHardy had more code? (If we assume McHardy did indeed have copyright on multiple modules, as McHardy appears to have claimed, going by the violators accounts - different issue).
Posted May 3, 2023 14:18 UTC (Wed)
by paulj (subscriber, #341)
[Link]
- McHardy got them to sign to agree to stop violating.
"Our agreement bound you to stop violating /any/ of Linux, not just my code in it that you removed".
Which still means the company _did work_ so they could keep wilfully violating the licence on the code, thinking they could workaround McHardy!
It appears these companies must have been active, wilful GPL violators?
Posted May 3, 2023 15:45 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (1 responses)
No. What he apparently said was "You're still violating the GPL on Linux with regard to the Wibble module. You owe me X". After removing the Flobble module, ALL MCHARDY'S CODE HAD BEEN REMOVED. So McHardy is now collecting damages on a version of Linux in which he has no copyright interest whatsoever.
HOW HARD IS THIS FOR PEOPLE TO UNDERSTAND. The outrage from the community is not because McHardy is enforcing his own copyrights. It is because he is collecting damages for a version of Linux in which he has no copyright interest whatsoever !!!
Cheers,
Posted May 3, 2023 15:56 UTC (Wed)
by paulj (subscriber, #341)
[Link]
So they removed his code - a deliberate and knowing act - and then kept on violating!
The penalty is basically on the strength of the *original copyright violation* of /his/ module, and then failing to stick to the "let off" agreement to be good to the community.
So, on the story as you present it we have:
A: A company which is a deliberate and repeated GPL violator.
B: McHardy, who tried to get this company to respect both his own copyright and the entire community's. And gave Company A a let-off on the original violation if they did so in future.
And company A are the poor victim here, and McHardy is the bad guy?
Posted May 3, 2023 16:45 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (8 responses)
Such a strategy would be very foolish on McHardy's side.
Posted May 3, 2023 17:07 UTC (Wed)
by paulj (subscriber, #341)
[Link] (7 responses)
Note, in the scenario I gave - which I'm trying to make consistent with what you wrote as your understanding of what happened (at a high-level) - it is NOT that McHardy asked them to remove anything, but that the company removed the code (a "technology" in your words, I take it meaning a netfilter module of some kind) that McHardy had told them he had copyright in and they had violated the licence of.
I.e., the company removed McHardy's code, as he had communicated to them; and then continued to violate the licence of the kernel - and hence violating the "let off" agreement they had with McHardy (whether or not there was still code of McHardy's remaining - I am assuming McHardy did have code and standing in the first instance, on the back of which the company made the agreement).
Is that consistent with your understanding too?
Posted May 3, 2023 17:09 UTC (Wed)
by paulj (subscriber, #341)
[Link] (4 responses)
(As is farnz I think).
Posted May 3, 2023 18:40 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (3 responses)
Posted May 3, 2023 20:55 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (2 responses)
I am posting based on the facts that have been given by the copyright infringer's lawyer in relation to the case, ignoring their framing of the issue.
I understand that the infringer might want to make it look like McHardy is the bad guy here, but if there's genuinely more to it than they've revealed so far, I'd like to see the facts, not just their claims - letters from McHardy, perhaps?
Posted May 3, 2023 21:22 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (1 responses)
Posted May 3, 2023 21:44 UTC (Wed)
by farnz (subscriber, #17727)
[Link]
I've sent him an enquiry by e-mail, but had no response. If you have his contact details, why not try yourself?
Posted May 3, 2023 17:40 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (1 responses)
Posted May 3, 2023 18:36 UTC (Wed)
by paulj (subscriber, #341)
[Link]
The claim made by others is that on the /subsequent/ violations, that McHardy did not have code in whatever software it was that was at issue. Whether that was because the company concerned removed it, or whether it was because the kernel community had rewritten the code to remove anything associated with McHardy, I do not know.
The claim by some here seems to be that the deceptiveness was that McHardy claimed to be a copyright holder when he was not. I have not seen evidence that this is true.
As far as I can tell it is accepted that McHardy had a copyright interest in the earlier violations. Or at least, that there was a good chance.
Posted May 3, 2023 14:09 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (45 responses)
You've explained why I consider the accusation of deception (without matching evidence) emotive - deception is a serious accusation, and widely considered to be a bad thing. As a result, accusing someone of engaging in deception is an appeal to emotion to get you to condemn the alleged deceptive person, without thinking through what they've actually done.
Given that you're saying this is a serious accusation, where's the evidence of actual deception?
All I can find is that McHardy offered a settlement saying that he'd expect to be paid for the infringement of his rights each time he could show that the company accepting the settlement was failing to comply with the GPL on any code. Someone at the settling company read "any code" as "any code I have copyright in", and has been surprised that their reading wasn't right - and is calling it deceptive because they misunderstood.
And as for why McHardy is publicly silent - as far as I can tell, there's still ongoing and related legal action; in many jurisdictions, talking about things that are being litigated can only ever go against you in court, and McHardy may well be staying quiet because his lawyer has advised him that he should stay quiet until the judge is done ruling.
Posted May 3, 2023 15:48 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (1 responses)
And plenty of people who DO have copyright in Linux are - quite rightly imho - seriously upset that McHardy is rent-collecting on code that he has no rights to! If he still had code in Linux, fair dos. But he doesn't!
Cheers,
Posted May 3, 2023 15:57 UTC (Wed)
by paulj (subscriber, #341)
[Link]
Posted May 3, 2023 15:59 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (42 responses)
Based on your statements I got the impression that you did not understand why McHardy was disliked.
It seems like you don't understand/agree that being seen as a deceptive person is something that can make you widely disliked?
Far from being emotive, shunning deceptive people is a pragmatic self-defence strategy.
Posted May 3, 2023 16:31 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (41 responses)
I still don't know why he's disliked - you've told me that he's disliked because he's done something that some people think is a reason to dislike him, but you've not told me what he's actually done - it's been words like "practices" hiding it.
If he's been deceptive, then you should be able to tell me what he's done that's deceptive, without using the emotive words - you should be able to say what he did, not just how it made people feel.
Posted May 3, 2023 17:00 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (3 responses)
We HAVE told you - he is rent collecting on other peoples' work.
(And he is widely seen as tricking his victims into signing these contracts.)
It's not the deceptive practices that really annoy a lot of people, it is the fact that he is driving people AWAY from linux. And he's collecting monies that are NOT his by rights. The fact that he's used deceptive tactics to achieve that is a side show.
Cheers,
Posted May 3, 2023 17:13 UTC (Wed)
by paulj (subscriber, #341)
[Link]
Posted May 3, 2023 17:14 UTC (Wed)
by paulj (subscriber, #341)
[Link]
Posted May 3, 2023 20:52 UTC (Wed)
by farnz (subscriber, #17727)
[Link]
No, you haven't. You've shown that he's rent collecting on his own work, and is offering a discount on that rent if people decide to bother with licence compliance in future, then withdrawing that discount when they demonstrate that they lied when they said they were going to comply in future.
Posted May 3, 2023 17:02 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (36 responses)
https://lwn.net/Articles/930693/
Please note that "deceptive" is not an emotive word, it is used to describe a situation where you deliberately make someone believe something which is not true. The word can be used for outright lying, misleading statements, deliberately withholding information and other tactics.
The allegation implies that the victim companies were led to believe that signing the contract and paying money would make the problem go away, while in reality it made the problem worse.
Posted May 3, 2023 17:33 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (35 responses)
No, you did not. You described a whole bunch of practices that are completely normal in copyright infringement cases generally, and called them deceptive in order to get me to feel that McHardy had done something wrong. You've not even told me who claimed they're deceptive - as far as I can find, everyone calling them deceptive is on the side of infringers in copyright cases a lot of the time, and is basically arguing that it's unfair to expect infringers to comply with copyright law.
It's completely and utterly standard (I've been involved indirectly in a number of copyright-related software lawsuits, gathering up evidence requested in discovery) to not notify all infringement at first, but instead to offer a sample of known infringement; the idea is that the infringing company, now that they know that they're doing something wrong, will not only fix the notified problem, but also go away and check that they're generally getting things right. Part of the reason copyright holders do this is that they want to see whether you're going to fix your process issues that result in infringement, and confirm that you've found all the infringements you're engaging in, or whether you're going to simply address the one issue you've been told about and continue otherwise infringing.
The idea is that if your idea of "fixing" your infringement is to remove my copyrighted code, rather than licence it, you need to do the work to actually find all of my code and remove it. I keep my knowledge of further infringement to myself, so that if you simply remove the things I've told you about, I can come back round with the things I didn't mention the first time - and I can demonstrate to the court that you are not only infringing on the latest matter, but also that it's part of a pattern of behaviour, and not a one-off error.
So, I ask again - what's he doing that's not normal practice for copyright lawsuits outside the oepn source space, and therefore might qualify as deceptive?
Posted May 3, 2023 17:52 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (15 responses)
Claiming damages on OTHER PEOPLES' code. If that's standard practice, I'm horrified ... to be frank I'd call that either *fraud*, or *theft*.
Cheers,
Posted May 3, 2023 18:32 UTC (Wed)
by paulj (subscriber, #341)
[Link] (14 responses)
Posted May 3, 2023 19:40 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (13 responses)
In other words, he was mostly claiming damages for code he had no copyright interest in whatsoever.
Cheers,
Posted May 3, 2023 20:48 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (12 responses)
But he wasn't claiming damages for the newer kernels - the damages were for the kernels he had code in, but he'd offered to discount the amount he claimed if you promised to not infringe the kernel's licences in future.
That some companies wish to characterise "we took a discount on damages that we were offered in return for a promise of future good conduct, then had that discount withdrawn because we couldn't be bothered to keep to the contract we signed" as "McHardy is claiming damages on code he didn't write" is a stretch.
Posted May 4, 2023 14:58 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (11 responses)
Given that - when McHardy came back for more money - the companies were no longer infringing ON MCHARDY'S CODE I fail to to see any difference.
Yes, legally, he was dinging them for breaking a contract, but that was why he got them to sign the contract (rather unusual in the Free Software world) in the first place. Without that contract, they would have said "On yer bike mate", and there would have been ABSOLUTELY NOTHING he could do about it.
In other words, the quickest, cheapest and easiest way to come into compliance with respect to McHardy, would have been to upgrade the kernel. He took advantage of their ignorance to put himself in a position where he could claim rent on other peoples' code.
Cheers,
Posted May 4, 2023 15:10 UTC (Thu)
by farnz (subscriber, #17727)
[Link] (10 responses)
They didn't have to sign the contract - they could have said "no, we are not willing to agree that we will not violate the kernel licence in future in order to get a settlement from you". If they'd done that, they'd be taking the risk that McHardy would pursue them through the courts for more damages than they were willing to pay, and that the fact of McHardy suing and winning over past infringements would cause other people whose copyrights were infringed to do the same thing as McHardy.
That's where all of this comes from, after all - they knew they were violating McHardy's copyrights, and believed that McHardy's settlement offer was a better deal than they'd get offered in court. So they agreed to it, and then, because their legal advisors were incompetent, discovered that the agreement they'd signed wasn't as good a deal as they thought it was.
They always had the option of saying "we don't like your settlement offer - this is our counter-offer, take it or see us in court", and they chose not to do that. Why? And why should we feel sorry for a serial GPL violator whose lawyer made a huge mistake when advising them to take the settlement agreement McHardy offered instead of either counter-offering, or insisting on going to court?
Posted May 4, 2023 16:11 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (9 responses)
Which McHardy was banking on. Isn't that the DEFINITION of deception? Offering some sucker a deal which you *know* is too good to be true?
Cheers,
Posted May 4, 2023 17:49 UTC (Thu)
by farnz (subscriber, #17727)
[Link] (8 responses)
See, this is where I disagree - I don't think McHardy was banking on them continuing to violate, I think he'd have been just as happy if they'd done as they agreed and stopped violating the licence.
The only person who's actually claimed that McHardy was banking on that is the lawyer for a company that took the settlement, and then chose to continue violating the kernel licence, ignoring the settlement language. And he's not a trustworthy source, because it's entirely possible that he's saying that because he was banking on McHardy not enforcing the settlement after McHardy's code was removed from future versions.
Posted May 4, 2023 19:42 UTC (Thu)
by Wol (subscriber, #4433)
[Link] (7 responses)
I don't think he CARED if they continued to violate or not, he had a plentiful source of suckers. How can you claim repeatedly offering a deceptive agreement isn't intentional deception?
Cheers,
Posted May 4, 2023 20:00 UTC (Thu)
by farnz (subscriber, #17727)
[Link]
How can you claim the agreement is deceptive without seeing it, purely on the basis of a claim by a copyright infringer's lawyer?
Posted May 4, 2023 21:48 UTC (Thu)
by rschroev (subscriber, #4164)
[Link] (3 responses)
Posted May 5, 2023 9:57 UTC (Fri)
by malmedal (subscriber, #56172)
[Link] (2 responses)
Imagine you are a company making something traditionally non-computer related, say a CNC-machine or something. At some point you hire a contractor who designs a box to control your machine.
Later you get hit with a lawsuit because something called Linux in this box which you weren't aware of.
And then the same guy comes back with another lawsuit for what you thought was already resolved.
This is the alleged tactic.
The tactic is deceptive because it exploits the victim's ignorance, The fact that the victim was indeed doing something illegal is not relevant for whether something is deceptive or not.
Posted May 5, 2023 10:04 UTC (Fri)
by farnz (subscriber, #17727)
[Link] (1 responses)
Except you're missing a key part - the contract is alleged to have included a requirement that you ship the source code for Linux with the CNC machine (or whatever) in future.
And it's this requirement that companies thought they'd work around - instead of shipping the source code, like you agreed to, you instead remove McHardy's code from future versions of the CNC machine, and say "well, I know we signed an agreement, but your code isn't in our machine any more, so we can ignore the agreement now". And then get surprised that the agreement is enforceable against your past violation.
Posted May 5, 2023 10:49 UTC (Fri)
by rschroev (subscriber, #4164)
[Link]
That's not how agreements work?!. Once you signed the contract, you have to comply, unless the contract states otherwise. You can't simply ignore the agreement.
Posted May 5, 2023 9:20 UTC (Fri)
by paulj (subscriber, #341)
[Link] (1 responses)
Might it not be an idea to just have a /smidgen/ of caution about taking that as gospel?
Posted May 5, 2023 9:26 UTC (Fri)
by paulj (subscriber, #341)
[Link]
I just see greed and incompetence by said serial GPL violators.
Posted May 3, 2023 18:16 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (18 responses)
To quote myself:
> The main allegation is that he knew of multiple infringements at the start but would only mention a small issue that could be resolved for a small amount of money, and in the next multiple lawsuits he would collect larger amounts than if the victims had not signed an agreement.
Note the allegation used the word "resolved". This would mean the victim company would think they needed to take no further action after paying.
If the allegation is accurate this would be very different from a standard enforcement action.
Posted May 3, 2023 18:40 UTC (Wed)
by paulj (subscriber, #341)
[Link] (17 responses)
The onus is not on the copyright holder to fix all the violators issues. Indeed - and I have mentioned this in other articles on this in the past - the copyright holder taking the enforcement action may be legally ill-advised to indemnify the violator for any and all other issues that may or may not be known to the copyright holder, for a variety of reasons. Why would the copyright holder want to risk that they are blocked from tackling further wilful violations, because of a dumb "I won't ever take any further action against you once you sign this" clause? That would be incredibly stupid.
Farnz has just made similar points.
Posted May 3, 2023 19:11 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (16 responses)
However, if he does this every single time with every company and multiple times with each, as was alleged, you will find that quite a few people will consider it deceptive.
Anyway, I have no interest in convincing you of this point, I was just trying to explain why so many people were unhappy with him.
Posted May 3, 2023 20:50 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (15 responses)
Why is it "deceptive" to expect that a company that has agreed that they have at least one issue with their licence compliance, and has further agreed that they will put processes in place to ensure that they are compliant in future to actually put those processes in place?
Posted May 3, 2023 21:15 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (14 responses)
Posted May 3, 2023 21:18 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (13 responses)
That is exactly the situation the infringer's lawyer has alleged has happened, and where they're calling McHardy deceptive, since he did not tell them about all the infringements, and hence they were still out of compliance when they addressed just the reported infringement.
Unless, of course, you have more facts to link - court filings, letters from McHardy, or other evidence beyond what the infringer's lawyer has said?
Posted May 3, 2023 21:53 UTC (Wed)
by malmedal (subscriber, #56172)
[Link] (12 responses)
You seem to just want to invent excuses that would make his alleged behaviour reasonable, if you want to help him I would instead suggest you talk to him directly and then come back and present his version of the events.
I'll just stop here, except since you asked for more information, the rumours have been going on for years, it's not just that one lawyer, an old LWN article:
https://lwn.net/Articles/694890/
Posted May 3, 2023 21:58 UTC (Wed)
by farnz (subscriber, #17727)
[Link] (11 responses)
I have read that LWN article, and looked at the sources. I've also read the stuff from the lawyer whose client was caught up in this, and who kicked it all off. What I said is a literal restatement of what the lawyer said, which you're calling "not a reasonable interpretation" - but it's literally what the lawyer said happened, and they're saying that he was deceptive because, while he said that they would have to pay more if they continued to be non-compliant with the kernel licence, McHardy only told them about some of the non-compliance, and not others.
This is not an interpretation - it's a restatement of the facts of the case that led rise to people calling McHardy deceptive - apparently, it was deceptive of McHardy to offer a settlement that included a "you will ensure that you comply with the kernel licence in future" clause while knowing that the client had more non-compliance than McHardy pointed out.
Posted May 4, 2023 9:26 UTC (Thu)
by paulj (subscriber, #341)
[Link] (10 responses)
And now they are helping to shape a vision for future of copyleft licensing. A "softly softly" vision which of course suits their clients and sponsors.
Posted May 4, 2023 10:52 UTC (Thu)
by farnz (subscriber, #17727)
[Link] (2 responses)
And further, they've managed to conflate the SFLC's position with their own.
The SFLC's position is that copyright enforcement is inherently unfair and arbitrary, because you can only ever enforce against a subset of violators - there is no way to enforce your rights against all violators at a time (not least because you can only enforce against violators you've discovered, and not ones you don't yet know about). Free Software lays claim to being a morally better way to do software, and thus enforcement should be "softly softly", since we know that enforcement is unfair. They would still agree that violating Free Software rights is wrong, and worse than any form of enforcement - their claim is just that gentle enforcement is better than harsh enforcement.
The serial violators are trying to reorder the bottom of that pile - they know that they can't get away with "violating Free Software rights is morally superior to any form of enforcement", but they're trying to shift the perception from "gentle enforcers have the moral high ground, harsh enforcers are somewhere less moral than gentle enforcers, violators are less moral than harsh enforcers" to "gentle enforcers have the moral high ground, violators are less moral than gentle enforcers, harsh enforcers are less moral than violators", thus justifying their clients' positions.
Posted May 4, 2023 11:08 UTC (Thu)
by paulj (subscriber, #341)
[Link] (1 responses)
If BadCorp only has to pay /costs/ of some poor Free Software dev or para-legal every now and then, while reaping the benefits of in lower R&D and licensing of exploiting Free Software (which could easily be many millions - licensing a proprietary embedded OS need not be cheap say) and ignoring the licensing obligations, then BadCorp's economic incentives are obvious.
Are we for the BadCorps?
Posted May 4, 2023 11:28 UTC (Thu)
by pizza (subscriber, #46)
[Link]
Yep, exactly. And the penalties need to be _very_ large in order for it to make a dent in BadCorp's bottom line.
Unfortunately, with said very large penalties on the line, it's going to take years of very expensive lawyering to get to the point where you might eventually collect.
Posted May 4, 2023 11:17 UTC (Thu)
by pizza (subscriber, #46)
[Link] (6 responses)
That's not really fair.
What's the point of Free Software? Empowering users by ensuring they have the complete source code and the rights necessary to utilize it. The approach "traditionally" taken is intended to maximize compliance, ie bring about process changes so that organizations would be compliant in the future, thus maximizing the overall "user empowerment" in the future.
The McHardy approach encouraged "compliance by payoff" rather than something more, um, sustainable. Of course that small payoff did nothing to make the underlying problem go away as it was much lower than the internal cost of changing processes. If anything the payoff made it _worse_ as the settlement contract expanded the scope of what could trigger a new breach beyond the stuff that McHardy directly "owned", with those proceeds going to McHardy rather than that stuff's nominal "owner".
TBH I think that was ultimately due to incompetent corporate counsel (and I don't have any sympathy for "serial GPL violators" as you put it) but it does reek of deliberately-setting-them-up-to-fail bad faith. Furthermore, because corporate lawyer-types talk to each other, this meant that those trying softer approaches aimed at maximizing compliance through process change (eg the SFC) found themselves facing "you're operating in bad faith so we're just better off not engaging at all" doors suddenly slammed in their faces, undoing many months (if not years) of effort.
So the net results of McHardy's efforts seems to hurt, rather than helped, overall compliance, and it has been also been cited as one of the primary reasons why so many organizations are actively trying to avoid copyleft anything. So if you consider the "empower users" to be the end goal of this Free Software thing, everyone but McHardy ends up worse off.
Posted May 4, 2023 11:38 UTC (Thu)
by farnz (subscriber, #17727)
[Link] (4 responses)
Ultimately, the core of the conflict is that on the Free Software side, which includes the SFLC, the goal is to get everyone to Free their software, so that there's no non-Free software out there. On the Open Source side, which includes McHardy, the goal is to get companies to either respect the licence or not use Open Source code at all.
This is an unresolvable situation - the Free Software side would prefer you to use only Free software, and will accept you using it in violation of the licence as the first step towards full Freedom. The Open Source side doesn't care what software you use, but wants you to respect their decisions as set out in their licence.
McHardy's approach fits the Open Source side - if more people did that, then many entities would stop using FOSS because they do not intend to ever comply with the licence. The SFLC, meanwhile, is on the side that says that it's better that you're using FOSS, because once you depend on enough of it, enforcement can bring you into the Free Software community.
Posted May 4, 2023 15:13 UTC (Thu)
by pizza (subscriber, #46)
[Link] (3 responses)
I don't know if that generalization is accurate. I'd think that all sides want their chosen licenses to be respected; after all that's why those particular licenses were chosen, and it is quite common to waive or ignore violations for strategic purposes (eg to encourage wider adoption, or perhaps more commonly, a lack of resources to put into enforcement [1])
Where things differ is that the "Open Source" side has deliberately chosen weaker licenses that are nearly impossible to violate unintentionally. For example, about the only way to run afoul of the (1) BSD license family is to strip off copyright notices in what you redistribute, and (2) Apache license adds retaliation if you launch legal attacks against other authors or users of the software.
[1] Granted, most of us completely lack the means to effectively enforce these licenses -- taking a single lawsuit to trial would probably cost more than my lifetime earnings, and that is something the more cynical players are absolutely counting on.
Posted May 4, 2023 16:19 UTC (Thu)
by farnz (subscriber, #17727)
[Link] (2 responses)
I don't think you're actually disagreeing with me.
Both sides want the licence to be respected - the one I'm characterising as Open Source, and the one I'm characterising as Free Software. Indeed, the Free Software side ideally wants all software to be Free. Both sides also agree that the best result if you find a violation is for the violator to come into compliance.
But, when faced with a violator who does not intend to comply, the two sides take different views; the Free Software side sees enforcement as a tool towards the bigger moral imperative of getting all software to be Free Software, and will ignore or waive the violation if that's a better route to the final goal.
The side I called the Open Source side doesn't see a bigger moral imperative - they choose licences like the GPL because, in their view, they want something back if you use their code. If you don't intend to give back as required by the licence, then they'd prefer you to not use their code at all, or indeed any code under that licence.
And this is a fundamental divide, not easy to cross.
Posted May 5, 2023 9:25 UTC (Fri)
by paulj (subscriber, #341)
[Link] (1 responses)
Though, for whatever reason, in my mind it would be the "open source" side who are the "just use the code, don't really enforce" types, and the Free Software ones would be "Either you follow the licence to the letter, or you don't use it at all". E.g., Look at the FSF position on firmware.
But the exact labels matter less. That divide is certainly there. In my mind, the strong-enforcement view was more dominant earlier on, and the "softly softly" developed later, as the economic-goodness (for everyone and for developers) argument was developed ("The Cathedral and the Bazaar" being an example of the development of that argument for Free Software).
Posted May 5, 2023 18:29 UTC (Fri)
by pizza (subscriber, #46)
[Link]
FWIW, I'd agree with this sentiment.
(Because licenses typically chosen by "open source" folks are tend to not have many (if any) terms that can actually be enforced, whereas "free software" folks chose licenses that have a bit more teeth to them, presumably because they care!)
> But the exact labels matter less. That divide is certainly there. In my mind, the strong-enforcement view was more dominant earlier on, and the "softly softly" developed later, as the economic-goodness (for everyone and for developers) argument was developed ("The Cathedral and the Bazaar" being an example of the development of that argument for Free Software).
Yeah, CatB was a major inflection point that led to the "softly softly" folks breaking away from the "strong enforcement" types, and created the "open source" movement in the process.
Posted May 4, 2023 13:00 UTC (Thu)
by farnz (subscriber, #17727)
[Link]
I would note, though, that if Mentor Graphics get in touch saying "you're infringing our rights in Nucleus, let's talk", or Blackberry get in touch to ask you to bring your use of QNX into compliance with the licence, corporate lawyers don't close the door. They talk instead, because they know that their choice is to deal with this while it's being done on the "softly, softly" basis, or face enforcement action that'll cost them far more than dealing while everyone's playing nice.
This leads to the SFLC's problem with doors being closed being a self-fulfilling prophecy; as long as the chances of harsh enforcement are close to zero, there's no consequences for refusing to talk to the SFLC. If, however, enforcement was common, then violators would talk the moment the SFLC knock on their door - better to talk to the SFLC when they're playing nice and get things fixed at low cost, rather than wait for enforcement action that's likely to happen soon and cost a lot (be it a McHardy, or the SFLC losing patience).
Jumping the licensing shark
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2 McHardy (let's assume he has copyright in bits of netfilter, that were in the Linux that the alleged violator was distributing) notices and contacts them and says something like (based on others' characterisations of his deceptive practices, note):
4 Company keeps violating the GPL on Linux
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- Company agrees and signs
- Company does work to remove McHardy's Flobble module from their product, updates the product, and wilfully keeps on violating the remaining code.
- McHardy comes back:
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Whether the allegations are true or not is a different matter.
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So I explained that it was because he was accused of deceptive practices.
Is that the case?
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So you pay and sign the contract as requested.
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Furthermore, because corporate lawyer-types talk to each other, this meant that those trying softer approaches aimed at maximizing compliance through process change (eg the SFC) found themselves facing "you're operating in bad faith so we're just better off not engaging at all" doors suddenly slammed in their faces, undoing many months (if not years) of effort.