On 4 March 2016 at 14:41, Brian May via luv-talk <luv-talk@luv.asn.au> wrote:

Geoff D'Arcy via luv-talk <luv-talk@luv.asn.au> writes:

...

BMW Australia Refusing to Comply with Terms of GNU Public License

"Part of the usage rights agreement states that the software is protected by copyright and BMW is the sole owner. So in this case it is not subject to the requirements of a "Public" licence."

If this was true, then while it might be weird licensing their own proprietary code as GPL, and then only distributing binaries, it is perfectly ok for them to do so.

However I get the impression that BMW is not the "sole owner", and as such this makes the statement not true.

Just because you have have a "usage rights agreement" doesn't suddenly mean you own the copyright to everything.

Or is it a case of BMW compiling binaries using private modifications that are instlled into the cars for use but not actually distributing the software, if the usage within their cars is not counted as distribution. Of course, IANAL. -- Colin Fee tfeccles@gmail.com

On 4 Mar 2016 4:27 pm, "Russell Coker" <russell@coker.com.au> wrote:

On Fri, 4 Mar 2016 03:52:30 PM Colin Fee via luv-talk wrote:

...

Or is it a case of BMW compiling binaries using private modifications

that

...

are instlled into the cars for use but not actually distributing the software, if the usage within their cars is not counted as distribution.

Usage in cars they own is not distribution. It becomes distribution when they sell any of those cars.

Interesting point. Is there an expectation amongst your typical car buyer that you could have access to the underlying software? In a similar vein we bought new Siemens ovens over Christmas and amongst the literature was a GPL licence issued by Texas Instruments for the touch menu software. Not sure I'd want access with a view to changing and reinstalling it. Same goes for the car software. I guess the point of the article is more about the spirit of the GPL. If you're not willing to distribute the source, don't use that licence.

Quoting Craig Sanders (cas@taz.net.au):

it's not their code that's being discussed. if it was their code, they could do whatever they want with it, including distribute it under both GPL and proprietary licenses.

Scenario divides into two sub-cases: BMW Australia (or parent) are the licensor (owner of the relevant copyright title), or they are not. I've discussed upthread case 1, so let's turn attention to case 2.

when it comes to other people's GPL-licensed code, though, they have no choice. Their only options are to distribute under the terms of the GPL, to negotiate a different license with the author(s)/copyright-holder(s), or not distribute it at all. there is no other option for them.

Actually, a third option is to commit a tort (copyright infringement). It's actually pretty common for businesses to choose to do so, typically as what is perceived as the lesser of two problems, e.g., where the alternative is expected to create serious problems for the company or its partners. And a fourth alternative is the one where they don't own copyright but have contractual rights from the copyright holder, that permit BMW to do things a copyright holder might otherwise object to. Consider option #3, commit the tort. OK, who's the copyright holder? This is relevant question because said party is the _only_ entity on the planet with standing to bring litigation over the tort. And standing matters because, if the tort-feasor knows that the only party with standing doesn't mind, committing the tort might be a very attractive option indeed. I don't know who that copyright holder might be, but I'm going to strongly guess that it's a frequent business partner of Bayerische Motoren Werke AG that wouldn't actually give a tinker's damn about this (hypothesised) tort on the automobile company's part.

Quoting Russell Coker (russell@coker.com.au):

If that was the case then they would have just given a non-GPL license to BMW.

I think you perhaps are ascribing rather too much planning to intra- and inter-corporate affairs. I've seen this sort of thing happen repeatedly because someone at company A picked a licence out of the blue without thinking of effects on company B (and itself).

Quoting Craig Sanders (cas@taz.net.au):

...

Actually, a third option is to commit a tort (copyright infringement).

It should have been obvious that by 'only options', I meant 'only non-infringing options'. Otherwise you may as well include criminal "options" like murdering the author and their heirs so there's no-one with any standing to complain.

I thought it important to stress that companies sometimes commit torts as a matter of deliberate and entirely rational policy. Most often, it's in situations where the company finds itself needing to choose between two bad outcomes, and elects the less-bad of the two. Back in 2007, I told a story about this exact thing happening at my firm VA Linux Systems (though I redacted the name of the firm at that time). I've appended it to the bottom of this post.

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And a fourth alternative is the one where they don't own copyright but have contractual rights from the copyright holder, that permit BMW to do things a copyright holder might otherwise object to.

this is effectively the same as my 2nd option - negotiate a different license with the author.

They may already have a contractual relationship that leads the (hypothesised) third-party copyright owner to not care about BMW Australia failing to comply. In that hypothetical, that third party would be unlikely to _literally_ issue a formal licence. Instead, it would be just 'Oh, we certainly don't care if you keep the source secret.'

this is precisely why efforts to enforce the GPL are necessary (even if some chattering bystanders think it's being pedantic or overly litigious).

Which is possible only if the party with standing cares (a great deal). I keep encountering software _users_ who think they can apply pressure to force party A to avoid infringing third party B's copyright. There seems to be a shortage of clear thinking about standing.

the point of copyleft is "once free, always free", for **ALL** users, forever, no matter how far downstream from the original release, with no risk of the software or any contributions to it being buried in proprietary forks. copyleft is worthless if it's unenforced and effectively the same as a non-copyleft license like BSD.

I don't know why you're sending me an advocacy speech, when all I did was attempt to trace out some possible legal relationships among the parties, in the discussed case.

From rick Thu Jul 12 13:13:39 2007 Date: Thu, 12 Jul 2007 13:13:39 -0700 To: linux-elitists@zgp.org Subject: Re: [linux-elitists] ultra 20 m2

Quoting Steven Critchfield (le@drunkenlogic.com):

A derivative work is one that _INCORPORATES_ portions of other code.

Actually, that incorporates substantial amounts of copyrightable expressive elements. Such copying can be either literal or non-literal: See, for USA jurisdictions, the decision in Micro Star v. FormGen, Inc., 154 F.3d 1107 9th Cir. 1998, where a competitor's game program was ruled derivative even though it didn't have a single line of code in common with the original; the copy incorporated audiovideo display data, a protected creative work, from the original, thereby incorporating the "story" (not the story idea, but its various expressive elements) of the original game.

This is why some people consider the GPL to be a viral license. Specifically if you can't stay at arms distance from it,....

...which means nothing more than avoiding using someone else's copyrighted creative works without permission....

you are likely going to be required to release under the terms of the GPL.

Rubbish. Infamous misinformation, at that. Let's say I was working, some years back, at a Linux firm when one of these issues came up. I could probably name the firm without harm because it can't seem to make up its mind what it name is, but it's a bad habit, so I won't. Let's say an e-mail request came in, one morning, for matching source uy at Mountain View Data, who noted that the firm had published a binary RPM of an ndmp backup utility coded from a programmer in, say, New Hampshire. He noted that the firm's version, which it published as part of a Red Hat variant distro for clusters, seemed to have improvements, and he wanted to see them. This was referred to me as the firm's unofficial licensing guy. The request sounded sensible to me, and so I inquired with Software Engineering about source -- and they panicked. It turned out that some failure of communication between Professional Services and Software Engineering had permitted some code from two of the firm's major business partners, which was proprietary and shared under NDA, had been added to the GPL ndmp by one department, and then released to the public by the other department without double-checking code provenance.[1] I sent a summary of the situation to Jay S., the chief company counsel, waited half an hour, and went to knock on his door. Now, Jay is a very sharp fellow, and I was always proud that Jay considered me relatively clueful for a non-lawyer, so he would often let me work things out rather than hand me explanations on a platter. RM: Let me guess: We're not going to provide source code to the Mountain View Data guy. JS: No, we aren't. RM: But we _are_ obligated to do so under the terms of GPLv2 clause 3b that we accepted when we made derivative works and redistributed, right? JS: Yes. RM: Hold on. Let me work this out.... Failing to provide the source violates the New Hampshire guy's copyright, which is a tort, because we've been carrying out actions permitted only if we meet that obligation.... This is going to be one of those situations where we are forced by circumstances to choose between two torts, and so are picking the one that's harmless, right? JS: Right. RM: OK, complying with the request would mean violating our contracts with [names of the two heavy-hitter business partners], and being in breach of contract with them would be very bad, subjecting us to possible serious tort litigation as well as souring important relationships and ruining our reputation generally. So, very bad outcomes if we do that. On the other hand, let's say that we cease offering the modified ndmp package to all outside parties right now. We've been violating the New Hampshire guy's copyright in a very minor way up until now, but (1) he almost certainly didn't know about it, and didn't complain, (2) he's probably suffered about zero demonstrable economic loss aka "actual damages", which is all (other than enjoining further infringement) that's even potentially available unless you've registered your copyright with the Library of Congress either prior to infringement or within three months of publication, (3) almost no open source coder bothers to register (which allows collection of statutory damages plus attorney's fees) because it takes $35 and some paperwork. The New Hampshire guy would have standing to sue, but isn't motivated, isn't annoyed at us, and couldn't collect anything -- and we're right about to fix the only thing that could annoy him. The Mountain View guy completely lacks standing concerning the ndmp code (not being the affected copyright owner), and therefore couldn't even potentially sue anyone. JS: Right. RM: So, we're going to reply back to the Mountain View Data guy saying, "We're really sorry for the inconvenience, but the modified ndmp code was made available in binary RPM form accidentally, and should not have been. Accordingly, we've removed it from the ftp site." And thus we'll have fixed the problem _and_ done the right thing. JS: You got it. Another case that should be more familiar: NeXT, Inc. started distributing binary-only releases of modified gcc, hacked to include ObjC (and, IIRC, C++?) support. FSF asked politely for the source to their changes; Jobs and company initially stated that this was contrary to their company policy. What happened next is frequently misrepresented, in recountings. It is -not- true that NeXT, Inc. was "required" to release its source modifications to gcc under GPLv2. It had been committing the tort of copyright violation, but tort law _nowhere_ has the power to compel violators to release their changes to the public. That's not how it works. If Jobs had wished, Next, Inc. could have said something like "Oh, we misunderstood, but wish to do the right thing, and are therefore ceasing effective immediately to distribute our modified gcc. We apologise for any problems this causes." What would FSF's recourse have been? Absent gcc copyright registration, it could have sued for an injunction ordering cessation of infringement (pointless, as it would have already ceased), and for actual damages, which would have been nil. With copyright registration, it could have done the same, but sought statutory damages plus attorney's fees. Statutory damages are in a range subject to the judge's discretion, but, if defendant credibly claims to have been "not aware and had no reason to believe" they were infringing copyright, damages would typically be $200 per work.[2] So, FSF would have about zero motivation to sue, even if they hated NeXT, Inc.'s guts and wanted to punish it. My point: NeXT, Inc. _elected_ to give back source code, after the obligatory initial period when they behaved like jerks, not because they had to (which they absolutely did not), but rather because it was greatly to the company's advantage to be able to give/sell customers compilers with enhanced language support. So, Steven: Please do not continue to spread that ridiculous and erroneous assertion about infringers supposedly being "required" to release changes. It's done more than enough damage, over the years. [1] http://linuxmafia.com/~rick/lexicon.html#stepwise-disaster [2] http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000504----000-....

From rick Thu Jul 12 14:42:21 2007 Date: Thu, 12 Jul 2007 14:42:22 -0700 To: linux-elitists@zgp.org Subject: Re: [linux-elitists] ultra 20 m2

Quoting Steven Critchfield (le@drunkenlogic.com):

<sniped large and very informational examples>

Yr. welcome, sir. I've been meaning to publish some account of that illustrative incident at the unnamed Very Ancient Linux Systems firm, specifically because this misconception is so widespread, so this was a welcome opportunity.

Okay, so the required wording is over the top. One would be required to release as GPL or GPL compatible license code that one still wishes to distribute. The alternative is to stop distribution and hope that the limited damage created isn't worth the original authors wishing to sue.

I suppose a third alternative might be to not care if the authors sue. (See below.) The main point is: Remedies for infringement are limited to ones traditional for torts (a term meaning failures of private duties to other firms or companies, resulting in non-criminal wrongful acts), and simply don't ever include court-mandated source release. An infringed copyright owner can sue for: o Injunction against additional infringement. Pointless if infringer has already stopped. o Actual damages. Typically an open-source coder will not be able to prove any. In the staggeringly unlikely event that the owner has _also_ filed a timely copyright registration with LoC, and paid his/her $35: o Statutory damages. For reasons cited, we're talking $200, in a typical case of an open source codebase and a colourable claim of accidental infringement. o Owner's attorney fees. Close to nil if the infringer immediately files a response with the court saying "Er, we did that but it was accidental, so we'd like to petition for judgement or settlement to that effect." So, plaintiff's haul is likely to be laughably small, which underlines his/her lack of motive for suing in the first place. -- Cheers, "I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, rick@linuxmafia.com denigrate means 'put down'." -- Bob Newhart

On Fri, Mar 04, 2016 at 06:02:17PM -0800, Rick Moen wrote:

...

the point of copyleft is "once free, always free", for **ALL** users, forever, no matter how far downstream from the original release, with no risk of the software or any contributions to it being buried in proprietary forks. copyleft is worthless if it's unenforced and effectively the same as a non-copyleft license like BSD.

I don't know why you're sending me an advocacy speech, when all I did was attempt to trace out some possible legal relationships among the parties, in the discussed case.

i dunno. i guess it's because everything is always about you and when a message is posted to a public mailing list, you're the only possible audience for it, even (especially?) when there are multiple participants in the thread. glad we've got that crucially important point cleared up. craig -- craig sanders <cas@taz.net.au>

Craig Sanders via luv-talk <luv-talk@luv.asn.au> writes:

the point of copyleft is "once free, always free", for **ALL** users, forever, no matter how far downstream from the original release, with no risk of the software or any contributions to it being buried in proprietary forks. copyleft is worthless if it's unenforced and effectively the same as a non-copyleft license like BSD.

Suggest people here watch the following LCA2016 talk: https://www.youtube.com/watch?v=5mnHebVSUb0 This talks about some of the problems the GPL is facing. -- Brian May <brian@linuxpenguins.xyz> https://linuxpenguins.xyz/brian/

Quoting Andrew McGlashan (andrew.mcglashan@affinityvision.com.au):

The email is attached fwiw

If indeed BMW Australia are the licensor, they are, as stated, not bound by the licensing terms. The licensing terms are offered to recipients of code instances that were conditioned by that licence. GPLv2 (and similar licences) extend the offer of some rights that otherwise would be reserved to the copyright holder ('reserved rights') to anyone who agrees with those conditions. Others (those who decline to so agree) enjoy only default rights conveyed. Here is an example: http://linuxmafia.com/faq/Mail/muas.html As stated at the bottom, that is a work over which I hold copyright title. I add that the rights to redistribute and/or modify the page contents are available to any recipients who comply with GPLv2 concerning the work. Let's say you do: $ wget http://linuxmafia.com/faq/Mail/muas.html $ wget http://linuxmafia.com/redrick.css Right, you now have local copies of my two files. Because I put them up for public access, you have an implied license to do everything one normally does with a Web page (and to make private copies, etc., all the things that _aren't_ reserved rights). Beyond that, you have two lawful options: You may comply with the requirements of GPLv2 concerning what you just fetched, or you may decline to do so. Either choice is totally lawful. The first permits you to restribute the orignals and make/distribute derivatives, the second doesn't. A recipient exercising those reserved rights _without_ complying with GPLv2 terms risks being sued for violating my copyright. _But_, by contrast, I as copyright holder may do anything I want with the (my) work, because I didn't need to agree to any terms to get access to (my) reserved rights: Those rights were mine already. My deciding to give nothing to recipients beyond what they already have breaks nobody's legal rights. Mind you, it is certainly perverse to issue a work to the public, claiming it's under a copyleft licence, but withholding access to its preferred form. The result is a work that is not open source (for lack of source), even though it's asserted to be under an open source licence. One suspects this was a matter of miscommunication, either within BMW Australia or between them and one of their suppliers. This happens rather more often than many people realise.