Jumping the licensing shark

Posted May 3, 2023 13:44 UTC (Wed) by paulj (subscriber, #341)
In reply to: Jumping the licensing shark by malmedal
Parent article: Jumping the licensing shark

And by "technology A" and "technology B" you mean "some feature of netfilter", correct?

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
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):

"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
4 Company keeps violating the GPL on Linux

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"?

Jumping the licensing shark

Posted May 3, 2023 13:53 UTC (Wed) by paulj (subscriber, #341) [Link]

A futher observation of the criticism of McHardy's enforcement actions and painting him as a "copyright troll". Some of the prime movers appear to be IP lawyers who specialise in Free Software licensing, whose client base are corporates engaged in GPL violation:

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).

Jumping the licensing shark

Posted May 3, 2023 14:18 UTC (Wed) by paulj (subscriber, #341) [Link]

Another possibility is the one farnz lays out: https://lwn.net/Articles/930730/

- McHardy got them to sign to agree to stop violating.
- 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:

"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?

Jumping the licensing shark

Posted May 3, 2023 15:45 UTC (Wed) by Wol (subscriber, #4433) [Link] (1 responses)

> "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"

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,
Wol

Jumping the licensing shark

Posted May 3, 2023 15:56 UTC (Wed) by paulj (subscriber, #341) [Link]

He is entitled to do that though. They /had/ violated his copyright. They got caught. They signed an agreement with him, which let them away with it if they would stop violating *everyone's* copyright - or otherwise they'd have to pay a penalty.

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?

Jumping the licensing shark

Posted May 3, 2023 16:45 UTC (Wed) by malmedal (subscriber, #56172) [Link] (8 responses)

Do you have any evidence for your claim that the companies involved were asked to actually remove anything?

Such a strategy would be very foolish on McHardy's side.

Jumping the licensing shark

Posted May 3, 2023 17:07 UTC (Wed) by paulj (subscriber, #341) [Link] (7 responses)

We have little evidence of anything specific. I am painting possible scenarios, based on vague descriptions given by lawyers representing the violators as reported here on LWN; plus comments made here by people saying what they have heard happened.

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?

Jumping the licensing shark

Posted May 3, 2023 17:09 UTC (Wed) by paulj (subscriber, #341) [Link] (4 responses)

More to the point, I am trying to understand the factual basis for your comment that McHardy deceived the GPL violator, as part of the first agreement.

(As is farnz I think).

Jumping the licensing shark

Posted May 3, 2023 18:40 UTC (Wed) by malmedal (subscriber, #56172) [Link] (3 responses)

Both of you are arguing in such a way that it looks like you really don't understand what the allegations actually are. So I am trying to explain that.
Whether the allegations are true or not is a different matter.

Jumping the licensing shark

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?

Jumping the licensing shark

Posted May 3, 2023 21:22 UTC (Wed) by malmedal (subscriber, #56172) [Link] (1 responses)

Why not ask him directly? If the allegations against him are unfounded I would like to know about it.

Jumping the licensing shark

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?

Jumping the licensing shark

Posted May 3, 2023 17:40 UTC (Wed) by malmedal (subscriber, #56172) [Link] (1 responses)

I do not see any reason to assume a scenario involving any sort of code-removal. Why would McHardy ask for it? It would be expensive for the company to comply for no benefit. It would mean harder negotiations for the money. And if they weren't asked, why would the company do it?

Jumping the licensing shark

Posted May 3, 2023 18:36 UTC (Wed) by paulj (subscriber, #341) [Link]

I never posited any scenario where McHardy asked for removal. I'm not sure where you got that.

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.