LWN: Comments on "A GPL-enforcement suit against VMware"

A GPL-enforcement suit against VMware

bronson — Wed, 01 Apr 2015 04:54:18 +0000

Care to add some content to your post? I particularly like your implication that it's humanly impossible to criticize v3. You don't actually believe that, do you?

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marcH — Fri, 27 Mar 2015 17:48:22 +0000

> This is exactly how my country (India)'s IMPS (Instant Mobile Payment System) works

Neat, thanks for sharing.

As the world leader, the USA are at the cutting-edge of so many things. But when they're not, they seem to be fairly bad at shopping around and adopting foreign solutions. Not enough neighbors/too much water around? I heard the Romans were more flexible back in the day...

How to help !

nileshtrivedi — Fri, 27 Mar 2015 16:46:29 +0000

> The system just needs to be reversed: the merchant/charity/receiver publishes a money mailbox ID. Buyers and givers connect securely to their bank and request a transfer. Problem solved.

This is exactly how my country (India)'s IMPS (Instant Mobile Payment System) works. Every bank account (consumer and merchant alike) gets a 7-digit ID which you can publicise along with your 10-digit mobile number. Using these two pieces of info, anyone can make a payment through web/ATM/mobile and even SMS. Money is transferred instantly, both the parties receive an instant SMS notification confirming the transaction and this system works 24x7x365. You don't even have to reveal the bank account number!

A GPL-enforcement suit against VMware

Del- — Sat, 21 Mar 2015 20:43:47 +0000

>I don't agree that it's inappropriate to criticize GPLv3 "because it hurts GPL".

Now that wasn't quite what you did.

>For the record, I think Linus has it right

And I think you should let Linus talk for himself, you are hardly a mind reader. Personally I think both him and RMS let their ego come in the way. However, I have yet to see anybody criticize v3 without twisting facts, and you are no exception. It is counterproductive and it creates some noise that I am sick and tired of.

A GPL-enforcement suit against VMware

dlang — Fri, 20 Mar 2015 20:18:55 +0000

I don't agree that it's inappropriate to criticize GPLv3 "because it hurts GPL". For the record, I think Linus has it right and GPLv3 has too many shades of "I am altering our deal, pray that I don't alter it further". But I wasn't arguing that the GPLv3 is bad, I was correcting the statement "google hates GPL"

I came away from the google training understanding that GPLv2 was perfectly acceptable, GPLv3 somewhat acceptable, but going back and looking up the license on the project that I remember being used as an example of Google paying big bucks for an exception to the license, it turns out that the project in question is AGPLv3, not GPLv3. so at this point it could be that I had a bad instructer in my session, or I just remembered it wrong.

People see the lack of GPL code in Android and think that it means that Google in anti-GPL and that is very much not the case, that's just the Android project.

A GPL-enforcement suit against VMware

Del- — Fri, 20 Mar 2015 17:53:00 +0000

You said Google was anti-GPLv3, and got called on it. Moreover, mud slinging v3 hurts GPL in general, and a smart man like you should realise that.

A GPL-enforcement suit against VMware

enyst — Thu, 19 Mar 2015 13:05:51 +0000

> In Oracle v. Google, Google has re-implemented a entire, rather extensive API. You could make a reasonable case that any re- implementation of such an extensive and detailed interface amounts to a derived work, even if the similarity is strictly speaking only superficial.

This is what Oracle lawyers have argued in the trial court.

It's a shocking theory, to say the least. I wish more people would realize that this is what Oracle is arguing, that any reimplementation of a "creative enough" API would be a derivative work merely by being a reimplementation.

If this was becoming the copyright law, then almost any clean room reimplementation would be presumably infringing.

I note that the "creative enough" -only standard of copyrightability would mean only slightly more "choices" than just random numbers or alphabetical lists.

Saying 'extensive' or 'detailed' doesn't give a criterium. The criterium Oracle is arguing for is Feist (slightly more than alphabetical lists).

> The rather more questionable (if not absolutely ridiculous) claim, however, is that any consumer of an API is a derived work of the original description or implementation of the API. Under that standard, which appears to have no basis in law anywhere, anything compatible with X would be considered a legally restricted derivative of X.

The two are related, the consumer replicates names too. Can't 'use' an interface without writing those names in a form or another; as many names as one needs.

According to Pamela Samuelson, consumers are potentially infringing:
http://goo.gl/DCoSqv

A GPL-enforcement suit against VMware

Cyberax — Sun, 15 Mar 2015 22:56:31 +0000

> I think that legal fiction is because I didn't technically pay the seller $300,000 -- rather, the mortgage company paid $299,999 and I paid $1 -- ie "other considerations" the seller received from a third party. Of course, I have to pay the mortgage company back plus interest, but the only direct payment from the buyer to the seller was that $1.
In Russia this is explicitly not allowed. In this situation, the mortgage company pays you $300000 and then you pay the seller. Of course, there are certain legal constructs to make this process to be atomic (so you won't be left with $300000 on your account and without a house, for example).

Anyway, this is getting a bit too far from the point - contract law is not suitable to replace licenses.

A GPL-enforcement suit against VMware

smurf — Sun, 15 Mar 2015 19:06:15 +0000

In Germany, as a legal entity you definitely must (expect to) benefit from any contract you enter into. You can't just give away some asset (unless the other party is the owner, or the asset is written off completely, or the recipient is a tax-exempt charity, or …).

There's no actual law against it, but representing a corporation you're expected to act in its benefit and, economically speaking, giving stuff to random people is not.

A GPL-enforcement suit against VMware

pizza — Sun, 15 Mar 2015 12:44:58 +0000

> Declaring that a house sold for a dollar doesn't sound like a very effective way to get around taxes... Can't see my municipality falling for it anyway.

IANAL, but I have been through this a couple of times.

It's not the sale of the house per se (and the property taxes you pay depend on "fair market valuation") but rather it's the recording of the property deed at the time of sale. The two times I've dealt with that (in two different states) the deed was for "$1 and other considerations" to avoid having to pay several thousand extra dollars for what basically amounts to a title transfer.

I think that legal fiction is because I didn't technically pay the seller $300,000 -- rather, the mortgage company paid $299,999 and I paid $1 -- ie "other considerations" the seller received from a third party. Of course, I have to pay the mortgage company back plus interest, but the only direct payment from the buyer to the seller was that $1.

Now on a car registration (in Florida, anyway) the actual sales price on the bill of sale is used to compute sales tax at time of registration. There are no yearly ad valorem taxes on the car itself, but the fees are based on the vehicle type and weight. Once the state gets its initial cut, they no longer care what the car's technically worth.

A GPL-enforcement suit against VMware

lsl — Sun, 15 Mar 2015 06:13:24 +0000

> I always thought the validity of click-through "licences" was a bit dubious, but my knowledge is limited.

At least in Germany (and probably the rest of continental Europe, too), EULAs and shrink wrap agreements are generally considered invalid if they put the customer at an undue disadvantage. Which, if I remember correctly, applies to almost anything you wouldn't voluntarily agree with if it wasn't a required part of using the software in question.

A GPL-enforcement suit against VMware

bronson — Sun, 15 Mar 2015 04:19:40 +0000

I don't think that's true. The US requires consideration for a contract to be valid (in most cases, IANAL) so, yes, some contracts tried to make themselves enforceable by exchanging something silly. In the past this tended to work since the court interpreted it as meeting the letter of the law. In recent decades they've been taking a more subjective view (IMO rightfully so) so you probably won't see contracts like that written nowadays.

http://en.wikipedia.org/wiki/Consideration_under_American...

Declaring that a house sold for a dollar doesn't sound like a very effective way to get around taxes... Can't see my municipality falling for it anyway.

A GPL-enforcement suit against VMware

vonbrand — Sun, 15 Mar 2015 02:32:18 +0000

Around here, selling something for substantially less than the "real value" will get you into hot water with the tax authority...

A GPL-enforcement suit against VMware

pizza — Sun, 15 Mar 2015 01:45:50 +0000

> Could the U.S. be such a country? Hence the famous “for one dollar and other considerations” clause.

No, that's just a legal nod-nod-wink-wink to get around paying more taxes than necessary on $VeryBigPurchases. Eg a house.

A GPL-enforcement suit against VMware

Max.Hyre — Sat, 14 Mar 2015 21:49:06 +0000

Many countries (Russia) explicitly forbid legal entities to enter contracts that do not require a payment.

Could the U.S. be such a country? Hence the famous “for one dollar and other considerations” clause.

A GPL-enforcement suit against VMware

Cyberax — Sat, 14 Mar 2015 05:26:01 +0000

> No one would be able to write, license, or sell a Java program to anyone anywhere without some kind of license from Oracle to do so, for example. One might imagine that Oracle is just the kind of company that might require a commercial license to distribute Java programs, or even to compose one in a text editor.
Stop. Giving. Ideas. To. Oracle.

A GPL-enforcement suit against VMware

butlerm — Sat, 14 Mar 2015 04:27:58 +0000

In Oracle v. Google, Google has re-implemented a entire, rather extensive API. You could make a reasonable case that any re- implementation of such an extensive and detailed interface amounts to a derived work, even if the similarity is strictly speaking only superficial.

The rather more questionable (if not absolutely ridiculous) claim, however, is that any consumer of an API is a derived work of the original description or implementation of the API. Under that standard, which appears to have no basis in law anywhere, anything compatible with X would be considered a legally restricted derivative of X.

No one would be able to write, license, or sell a Java program to anyone anywhere without some kind of license from Oracle to do so, for example. One might imagine that Oracle is just the kind of company that might require a commercial license to distribute Java programs, or even to compose one in a text editor.

So besides the sheer audacity of the claim that mere consumption of an API makes any program a derived work of the API or of the original implementation of the API, it is the sort of thing that if adopted by the courts would create a greater obstacle to progress in the field than practically anything else imaginable.

A GPL-enforcement suit against VMware

zlynx — Sat, 14 Mar 2015 01:10:08 +0000

Law is so ridiculous sometimes.

In that case it seems they would have been OK if only they had opened each individual CD package and used that disc.

In the Aereo case they DID follow the law to its ridiculous end, creating hundreds of small antennas, and got hit with what the judge said was "the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act" Well, yes it was. It was following the "rules" exactly as written.

A GPL-enforcement suit against VMware

dlang — Fri, 13 Mar 2015 22:18:13 +0000

calm down, I wasn't the one who accused Google of not liking the GPL, I actually spoke up to say that Google was not anti-GPL. I was defending google, not attacking anyone.

A GPL-enforcement suit against VMware

dlang — Fri, 13 Mar 2015 22:16:20 +0000

Apple went after them because they were installing MacOS on non-Apple hardware, but if you read the court documents, what convinced the judge was because they were imaging the systems from a imaging server rather than using the CDs in the individual MacOS boxes that they purchased.

At least, that's how I remember it without going back and looking now. It was such an odd thing to be pivotal in that case that it stuck with me.

A GPL-enforcement suit against VMware

jra — Fri, 13 Mar 2015 22:08:41 +0000

I work in Google's Open Source Programs Office reporting to Chris. I've *given* the training you're talking about. You are wrong. You need to pass review to import *any* open source code into Google, and GPLv3 is treated no differently than any other code under a copy left license.

Stop hijacking threads to make them about your personal hobby-horse of how much you dislike GPLv3. I'm sick of it. This thread is about the VMware lawsuit. Let's keep it on topic.

A GPL-enforcement suit against VMware

vonbrand — Fri, 13 Mar 2015 19:30:24 +0000

I remember the problem was installing MacOS on non-Apple hardware, and that is forbidden by the license.

A GPL-enforcement suit against VMware

dlang — Fri, 13 Mar 2015 17:19:59 +0000

> I don't see the relevance of Oracle v. Google here.

I was replying to this part of the comment

> but mere use of an API can never make something a derivative work of something that presents that API.

A GPL-enforcement suit against VMware

dlang — Fri, 13 Mar 2015 17:18:20 +0000

Google requires specific approval to import GPLv3 code

and where did you get that I hate GPLv3? I think it's a mistake, but I don't hate it.

I worked at Google for a while and I'm reporting what they told us in training.

A GPL-enforcement suit against VMware

enyst — Fri, 13 Mar 2015 15:03:53 +0000

I don't understand how is that relevant here. It appears that VMWare did much more, it redesigned a large part of the software to talk to another API they made in-house, then kept the software implementing it proprietary. If my understanding is correct, by doing so, it's highly likely the whole work (emcompassing the proprietary parts) is a derivative of the original.

Do I misunderstand the case? I don't see the relevance of Oracle v. Google here.

A GPL-enforcement suit against VMware

enyst — Fri, 13 Mar 2015 14:55:24 +0000

There are arguments why fan fiction can be considered a derivative work. It can be seen as a 'sequel'. Incorporating another author's copyrightable (not stock) characters and continuing a story in the same world seem easily creation of a sequel, provided of course that there's enough used, even if non-literal, and what is used is copyrightable and copyrighted.

OTOH, at least some fan fiction is highly transformative and really doesn't 'borrow' much else than characters, with some of their history and known world settings. This may go to fair use, though.

Anyway, I don't think the fan fiction issues have anything to do with software and interfaces. As you noted, talking about APIs is talking about essential functionality, not arbitrary expression nor creative, fictional events.

A GPL-enforcement suit against VMware

jra — Fri, 13 Mar 2015 11:49:55 +0000

That is also incorrect. Google imports and uses code under GPLv3 every day. Just *stop* trying to spread your hate about the GPLv3 with untruths about usage you simply seem to be making up. I get it, you don't like it - but you don't have to keep posting the same thing again and again here.

"A zealot is someone who can't change his mind and won't change the subject."

A GPL-enforcement suit against VMware

epa — Fri, 13 Mar 2015 07:11:03 +0000

I'm not sure that wouldn't be a straightforward copyright issue even in the absence of a shrinkwrap licence. I may buy ten copies of a book but that does not entitle me to burn nine of them and then make nine photocopies. Making the copy requires a licence from the copyright holder.

A GPL-enforcement suit against VMware

dlang — Fri, 13 Mar 2015 03:24:01 +0000

Don't forget the Oracle lawsuit over the Java API

That's still pending and working it's way up the court system.

The trial judge (who does know how to program), said it's not derivitive to use the API

The appeals court reversed this, I know that Google appealed the appeals court ruling, but I lost track of it and am waiting for it to work it's way up to the Supreme Court to see what they have to say.

Given how they reacted to the arguments about how the strict copyright interpretation that the textbook publishers were pushing for would cause silly and extreme levels of control, I expect that an argument along the same lines about what's an API and how that could be used to block all competition and hurt consumers would carry similar weight.

A GPL-enforcement suit against VMware

smurf — Fri, 13 Mar 2015 02:03:24 +0000

There is no constraint of API compliance in this case, as VMware wrote it themselves. Designing something like that is creative work and thus falls squarely within copyright.

However, I suspect (but didn't investigate further!) that *this* API is merely a convenience layer which defines an arbitrary boundary between GPL'd and closed-source code.

The kernel is licensed by the GPL and not the LGPL, so this is not sufficient as per the authors' intent. Intent tends to matter to German courts.

A GPL-enforcement suit against VMware

dlang — Fri, 13 Mar 2015 01:17:07 +0000

Ok, I was referring to the licensing of external code and their willingness to incorporate it into their internal tools, based on the guidelines that they give to their programmers on what they have to do for code under different licenses.

A GPL-enforcement suit against VMware

nybble41 — Thu, 12 Mar 2015 19:33:37 +0000

> Take, for instance, fan fiction. An author may impose arbitrary restrictions on what a fan is allowed to do...

This seems like more of a trademark issue than copyright. The fan fiction isn't (AFAIK--insert standard "not a lawyer" disclaimer here) considered a derivative work, but there are limitations on incorporating another author's original characters and settings into your own stories. However, APIs are mostly determined by technical considerations and compliance with the API is necessary for interoperability. For both of those reasons, the use of APIs would seem to me to be outside the scope of copyright, which is meant to cover creative expression rather than essential functionality. For that matter, interoperability has been used to justify exceptions to copyright in the past when the action would normally be clearly infringing, e.g. including a copy of a company's logo when that was the only way to allow a program to work in a third-party game console.

A GPL-enforcement suit against VMware

smurf — Thu, 12 Mar 2015 18:13:16 +0000

"No precedent" isn't quite true. Take, for instance, fan fiction. An author may impose arbitrary restrictions on what a fan is allowed to do, which ranges from "nothing, keep off the grass" (Disney) through "don't use my main characters" to "don't do anything I wouldn't do" (McCaffrey's dragons, IIRC; please check before relying on my word).

This issue is far from clear-cut, but that goes for both sides of the argument.

Disclaimer: I am not a lawyer. (Didn't stop me before …)

A GPL-enforcement suit against VMware

butlerm — Thu, 12 Mar 2015 16:03:30 +0000

> My understanding is that even if you hide yourself behind an API, the simple fact of using core kernel API means the code behind the API is a derived work. API works both ways. Linux device driver that are a simple aggregation of called function are probably quite rare. Most of them also callback into the core kernel.

This is a legal fiction that has no basis in the law, not the law of the United States at any rate. In the U.S. a derivative work is "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”." (17 USC 101)

Duplication of an entire API (such as making a clone of the Linux kernel) could conceivably be considered a derivative work, if the courts are so foolish as to establish such a precedent, but mere use of an API can never make something a derivative work of something that presents that API. That is legal insanity and anyone who tells you otherwise is selling something.

How to help !

mstefani — Thu, 12 Mar 2015 15:31:47 +0000

They do have an option to wire Euro's over a bank in Frankfurt/Germany bound to their bank in the US. I used it but took me a while to figure out how to fill the info out correctly. I did pass the info back to Bradley and Karen so they should be able to provide you now with the details. If not please let me know and I can help you out (if you want to believe a stranger on the Internet ;).

But be aware that is not a true German bank account of the Conservancy; it costed me 15 EUR per transaction even though it was an in country wire for me. This makes it feasible only for bigger donations.

A GPL-enforcement suit against VMware

jra — Thu, 12 Mar 2015 11:57:09 +0000

The above statement is incorrect. Whilst Google prefers to release under the Apache license, GPLv3 is also widely used and code is released under it.

A GPL-enforcement suit against VMware

dlang — Thu, 12 Mar 2015 04:08:34 +0000

Google is very willing to use and produce GPLv2 code, they are not willing to use GPLv3

In android they may be a bit more cautious, but that's based on the carrier's fears, not Google's

A GPL-enforcement suit against VMware

ncm — Thu, 12 Mar 2015 01:49:27 +0000

I know of quite a few companies pathologically afraid of GPL code (even LGPL) despite being fundamentally dependent on GPL programs such as Linux -- Apple, Google, and IBM among them. It is as if they adhere to a standard far more radical than is ascribed to Rosen et al. It would be very interesting to get (e.g. via discovery) copies of their reasoning for that fear. It might even make helpful amicus curiae content.

A GPL-enforcement suit against VMware

vonbrand — Wed, 11 Mar 2015 16:20:04 +0000

There the resulting executable contains pieces of the runtime/library. The discussion at hand is around the case where there are no direct code inclusions. I.e., is a program written in the C of K&R a derivative of the book, even if no lines of code were copied from the examples?

An interesting case in point is the readline library (GPLed). The FSF claimed any program using its API had to be GPLed, until the BSD-licensed editline library came around, with the same API...

A GPL-enforcement suit against VMware

dlang — Wed, 11 Mar 2015 16:06:56 +0000

shrinkwrap instead of clickthrough, but Apple successfully put another company out of business because they were installing OS-X from a master copy instead of opening each OS package and installing from the individual CDs. This was in spite of the fact that the company purchased a Copy of OS-X for each machine they installed it on.