Quoting Craig Sanders (cas(a)taz.net.au):
third option is to commit a tort (copyright
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.
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
this is precisely why efforts to enforce the GPL are
if some chattering bystanders think it's being pedantic or overly
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
Subject: Re: [linux-elitists] ultra 20 m2
Quoting Steven Critchfield (le(a)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
This is why some people consider the GPL to be a viral
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
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. 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?
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?
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
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
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. 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.
From rick Thu Jul 12 14:42:21 2007
Date: Thu, 12
Jul 2007 14:42:22 -0700
Subject: Re: [linux-elitists] ultra 20 m2
Quoting Steven Critchfield (le(a)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
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
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(a)linuxmafia.com denigrate means 'put down'." -- Bob Newhart