coordinated compliance efforts addresses the issues of this thread

Tito farmatito at tiscali.it
Thu Nov 8 20:35:51 UTC 2012


On Wednesday 07 November 2012 20:03:52 you wrote:
> On Sat, Oct 20, 2012 at 10:19 PM, farmatito at tiscali.it
> <farmatito at tiscali.it> wrote:
> 
> > I would like
> > to bring to your attention a few articles of this law
> > as they are in
> > the "real" reality:
> 
> The reality in Italy.

Yes, which is part of the EU and therefore
I guess that its copyright law must be in line
with european directives.

> > Collective works made by the union of other works
> 
> Software projects are not a dictionary; it's collaborative work, not
> collective work. CPAN is a collection, busybox is not.

There is not such a thing in italian law, there are collective works
that are characterized by having somebody that acts as coordinator
and therefore heavily influences the collective work and therefore
is entitled to be holder of the copyright and to enforce it.
This is a fact.
 
> > This opens up interesting questions about the ownership of the
> > copyright of collective works
> > like for example busybox or even the
> > linux kernel.
> 
> Linus Torvalds has said that it's up to each developer to decide how
> to exercise their copyright rights. Even if under *Italian* law the
> Linux kernel was considered nothing more than a compilation of other

Not a compilation, a collective work. Please don't mix up terms.

> works, Linus Torvalds wouldn't ask for enforcement.

Today he wouldn't, tomorrow who knows......
after tomorrow there will be another maintainer......
Panta rei.

> > it is very naive for the part that concers the
> > commercial entity
> > as in most law system there are the concepts of:
> > 1) due diligence
> > 2) wilful misconduct
> > 3) worngful conduct
> 
> The burden of proof is on the plantiff to demonstrate either of those,
> and if the defense shows proof of due diligence, and no signs of the
> other, they can't be considered at fault.

They cannot be considered at fault of having deliberately
changed the software license themselves for profit
but during this process it is ascertained that the software
is not correctly licensed.

> But let's assume they are, the court will force to either a) get a
> proper license from the copyright owner (which might mean complying
> with the GPL), 

Exactly.

> or b) stop using that software from their products. But
> this doesn't automatically transfer rights to the end-user.

Even in this case why shouldn't the judge order them to "show the source"
of the already distributed binaries once it is ascertained that the 
software is under the GPL?
There are no law cases until now apart the french "vnc" one
(where they in fact had to show the source, the source of the 
distributed binary, not an earlier nor a later version) 
so how could you be sure?  it is just your opinion.

> Which is what the court would ask them to do anyway, even if they are
> not guilty of misconduct. The only difference is that they won't get
> punitive damages.
> 
> > I also doubt
> > you would dare  to make the same example
> > if the program at stake would
> > be a proprietary software.
> 
> Yes I would, specially in this case. If my software is proprietary, a
> colleague of mine sells it to another company, how on Earth can the
> company be blamed for something they didn't know (and couldn't know).

Usually it is possible for people educated in some activity to  value the 
work of other people working in the same field.

> They can't use Google to search for my code, because it's not there.
> So even if the company spends tons of resources in their due
> diligence, they won't find anything wrong.

If they don't want to of course they will not find that something is wrong.
Sometimes asking a few simple questions helps:
1) who is this man?
2) is he a reliable partner of other corporations?
3) where are his headquarters?
4) how many people compose the staff?
5) how many years needs his staff to write such a software?
6) was this software ever seen or heard of before?
7) is there other software out there performing the same functions?
8) is there maybe some GPL software out there performing the same functions?
9) if there is GPL software out there performing the same functions maybe
    comparing  hardcoded message strings and so on could be a good idea
_________________________________________________________________________

Result:  No money for Federico


> > Now let us reduce and analyze the only
> > important step of the example:
> >
> > 3)         Federico (licensor) ->
> > Commercial entity (licensee) # Commercial entity  gets the
> > source code
> > by paying money to Federico, which provides it with a  __(FALSE)__
> >
> > propriety license
> 
> It is a true license. Federico can sue the Commercial entity for not
> complying with the license. The license might get invalidated if it's
> found out that Federico had no rights to license the software, but
> that makes it invalid, not "false" (whatever that might mean), and
> that might not happen at all.

False means fake. Federico deliberately changed the original license
with a fake one with the purpose of making a profit.

> > The commercial entity must follow the principle of
> > due diligence
> > and have to ascertain that the source code they are
> > buying for their product
> > is legally sound  as they have the knowhow
> > legally and technically.
> > If they fail to do so it is at least a wilful
> > misconduct. In other words no
> > commercial entity whatsover will give
> > money to the first Federico that comes knocking
> > at their door without
> > being sure he is the author of the software being sold.
> 
> Nobody can be sure of anything. 

Yes and the Earth is a dish.

> After doing their due diligence they
> might find no signs that the software comes from another entity, where
> in fact they are wrong. Specially if the software is proprietary.
> 
> In a trial, if they show proof of this due diligence, they are out of
> the waters.
> 
> > In case of a wrongful conduct/wilful misconduct
> > there are third parties that are damaged
> > and that are entitled to start
> > a legal action whatever the outcome will be.
> 
> Yes, *in that case*, which might not be.

But also might be and as you said before: Nobody can be sure of anything. 

> 
> Either way, in reality, companies might be forced to pay money to the
> plantiff, or stop using the software, or if found guilty of
> misconduct, punitive damages, but not give rights to the end users.
> The company is the one that decides.
> 
> 

Best regards and Ciao,
Tito


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