coordinated compliance efforts addresses the issues of this thread

[Tito]

On Monday 12 November 2012 14:59:44 Felipe Contreras wrote:
> On Mon, Nov 12, 2012 at 12:09 AM, Tito <farmatito at tiscali.it> wrote:
> > On Friday 09 November 2012 23:55:19 Felipe Contreras wrote:
> 
> >> *You* should not mix terms, we are not talking about a collection of
> >> works that have a character of autonomous creations; the Linux kernel
> >> is not a collection of patches each one considered an autonomous
> >> creation.
> >
> > Italian Copyright  law is very ancient
> > "Legge 22 aprile 1941 n. 633" and at that time there was
> > no software,  so it is not explicitely named because it did not exist yet.
> > One more point, surely due to my rough translation,
> > is that the words "character of autonomous creations",
> > probably better translated as "character of autonomous creation",
> > are reffered to the  collective work and not to the parts
> > thereof. I am sorry for this error.
> 
> Merging patches cannot be considered to have a character of autonomous
> creation either. And either way, we are not talking about a collection
> of works, this is a single entity.

I disagree as the simple act of deciding which patches are to be merged
greatly influences the final collective work.

> >> And supposing hyopthetically that he did, he couldn't claim anything
> >> for the work that Linus did, so it's really dubious how exactly this
> >> article would apply, and even if it did apply, let's wait for that to
> >> happen, this is already too many hypothetical levels.
> >
> > Yes I agree, but as long as there are no juridical facts
> > the hypothetical level is the only one we have
> > to reason about this things.
> 
> I didn't mean hypothesize on the trial, I meant hypothesize on Linus
> being replaced by another maintainer who would claim the Linux kernel
> is his autonomous creation.
> 

From the moment he takes maintainership in fact it is as he decides
the way the development goes.

> Either way, what is clear is that no Linux maintainer is going to sue
> anybody taking advantage of this Italian law any time soon (nor can
> he/her).
> 
> >> > 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?
> >>
> >> The judge might order them to do that, because they violated the
> >> license, but the owner of the code (e.g. me), might provide exactly
> >> the same code under a different license, therefore they wouldn't be
> >> violating the license.
> >
> > Very difficult solution to be applied to busybox or the Linux kernel.
> 
> The fact that something is impractical doesn't mean that's it's not
> the case, which is precisely why I picked the example.
> 
> We are not talking about busybox, or the Linux kernel, or open source,
> or even software. We are talking about licenses.

I tought we were talking about enforcing  __busybox's__ __open_source__ __license__,
and the fact that you don't like the way it is done.
How does it come now that we are talking about licenses?
Here there are no licenses, here is "The license", the GPL license busybox is under.
There are no other licenses to discuss about. For your personal
software work you are free to choose whatever license you like, even dual,tri,tetra-licensing.
But busybox is and will be under the GPL. This is what matters.
 
> 
> >> Whether the custom license was provided before or after the product
> >> was launched has absolutely no relevance to the end-user, because the
> >> end-user never saw any license.
> >
> > In the case of busybox the user maybe didn't see the license
> > but once he is aware that this software  is running on his device
> > he knows that there was a license, a GPL license
> > and that he was deprived of seeing the source code
> > and/or modifications thereof.
> 
> But he is not entitled to this, the software wasn't given to him with
> that license.

So you claim that if I stick a new license on a MS win setup disc
I can than say  to the BSA raiding my business :
 "Sorry, I never saw the other license it was sold 
like that to me, the other (real) license does not apply".

> A license is a contract between *two* parties. If one party is not
> aware of the license, then the license doesn't apply.

This story you continue telling about the "oh, so poor" corporation
not aware of the license is simply ridiculous and I never have seen
a business (even the smallest) not aware of the legal stuff
even (or especially) when they are deliberately breaking it.

> Like, if I reverse engineer some software, the owner of that software can't sue
> me for doing something that is legal claiming that it was prohibited
> in a license that I never saw.

Reverse engineering for the sake of interoperability is allowed by the law.

> In the case of a missing GPL, one party never received the software
> with the license, and the other party never provided such license, so
> the license can't possibly apply in that transaction. It might apply
> in other transactions, but not from software provider to end-user.

You are insisting about this corner case were one party never sees
the license  but statistically it is irrelevant as most of GPL
infringements are deliberate due to the fact that there was not much enforcement.
This hopefully will change now.

> >> But supposing the judge orders them to do that, he cannot enforce such
> >> a thing, they can claim the code was damaged in a server fault, or any
> >> lame excuse like that. In the end the code might be truly gone (e.g.
> >> they deliveratively removed it), and the only thing left is to pay
> >> punitive damages, which _can_ be enforced.
> >
> > Bad bad boys, of course they could burn down their headquartes
> > and so the poor GPL fanboy gets nothing. They need new headquarters tough...
> 
> They only need to click 'delete'. In fact, they don't even need to do
> that, they only need to claim they clicked 'delete'.

This is ridiculos. Please explain me why all this smart people
in the IBM vs. SCO or Apple vs. Samsung trials
didn't delete all their emails and internal docs
rather than give it to their counterparts when requested by the court?
Couldn't they simply say: 
"Judge, I erroneously pushed the self-destruction button
and everything is gone now....."
 
> >> It sounds like something illogical, but companies might opt to do that
> >> rather than to reveal some of their IP.
> >
> > You mean the stolen IP or some other NDA encumbered IP they should
> > have never been mixing with GPL code?
> 
> The later.

So they abused the linux kernel license willfully.

> And the former is not stolen.

Yes, I know they found it while they were looking for mushrooms
in the forrest and a bad witch put a spell on the still so good
software and removed the license.

> >> > 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.
> >>
> >> The judge might have ordered them to do that, and they might have
> >> complied, but that was their _choice_. They might have decided
> >> otherwise; that they didn't loose too much by giving the code, so they
> >> did it, but if the situation was different, they might have opted to
> >> destroy the code, lie, and face the consequences. It wouldn't be the
> >> first time a company does something inappropriate.
> >
> > Still it is hard to believe that for example the busybox
> > source code can contain such secrets to compell a company
> > to hide it, or burn their servers. Mostly it is greed or arrogance.
> 
> Not busybox, but the Linux kernel.

The Linux kernel code does not contain secrets as it is public for everybody to see.
This is a contraddiction.
 
> >> >> 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.
> >>
> >> I don't understand what you are trying to say here. If I wrote the
> >> code, Federico took it and sold it as his own to Company X, how on
> >> Earth could Company X know that if it was not public?
> >
> > If it was a GPL project it was indeed public.
> 
> I said "if my software is *proprietary*". What is not clear about
> that? Closed, proprietary, not public. The topic, again, is licenses.
> 

If your software is proprietary I don't care about it.
Here we talk about GPL enforcement of the busybox project.
 
> >> > _________________________________________________________________________
> >> >
> >> > Result:  No money for Federico
> >>
> >> If Federico didn't get any money, a lot of colleagues from one-many
> >> companies would be having very difficult times (they aren't).
> >
> > This is fine, you did your due diligence and got paid.
> 
> No, it's the other way around. The company is doing the due diligence
> and Federico got paid for software he stole.
> 
> >> > Federico deliberately changed the original license with a fake one with the purpose of making a profit.
> >>
> >> Yes, but if nobody determines the license is a fake, the license remains.
> >
> > In the case of busybox I can assure you that it is usually
> > very easy even for a self-taught hobby developer like me
> > to spot its presence in firmware images.
> 
> We are not talking about busybox, we are talking about the role of licenses.
> 

This is the busybox mailing list and we usually talk about busybox.

> >> Yes, Spherical Earth, Heliocentrism, Gravity, Evolution, they are all
> >> _very_ strong theories. But any scientist would tell you nothing is
> >> 100% sure. 99.9e100 maybe, but not 100%.
> >
> > 99,9 % is good enough.
> 
> I'm sure a jury would not ask for 99.9% certainty. Maybe 90%, maybe 80%.
> 
> >> >> 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.
> >>
> >> Of course, but things that might happen in certain circumstances are
> >> not *rights*.
> >
> > Once a law case is established things could became rights depending on the law system
> > and on the degree of judgment.
> 
> Emphasis on *could*. Could users get the right to be entitled to the
> code if it was originally provided as GPL? Definitely. Do they have it
> now? No.
> 
> The law might ensure under certain circumstances that they get it, but
> not all of them. It's certainly not a right (yet?).
> 
> >> Is it *possible* that you, as a user, will sue a company for a GPL
> >> violation and will get the source code you seek as a result?
> >> Definitely. Is is a *right*? No.
> >
> > So summarizing it is possible for me as a user to sue a company
> > for a GPL violation in other words I have the right
> > to sue them, whatever the outcome will be.
> 
> Yes, you have the right to sue for everything, including psychological
> damages if somebody stepped on your toe. The actual outcome would
> depend on many factors.
> 
> But I think you kind of already agreed that the end-user *could* loose
> such a case, for example, if the developer provides the violator the
> software with another license. If the end-user *could* loose, then the
> user never had a right.

Dual licensing is not possible for busybox so there is no other license.
 
> The GPL is a hack on the copyright system; it's called copyleft for a
> reason; it's exploiting copyright for something it was never intended
> to be used for. And it achieves great success. But it's the copyright
> and contract law that allows that, and copyright was written to
> protect the copyright owner, the software developer, the original
> author, not the end-user, and the fact that with the GPL it can
> protect users is a glitch, or a bug, the good kind of bug, the one
> that might someday become a feature, not in copyright law, but say,
> software law, or public domain law, or who knows. The fact that *in
> some cases*, it can protect the end-user, as the GPL intended, is
> nice, but it's not guaranteed; it is not a RIGHT.
> 
> So, I think you have agreed with one point:
> 
> 1) In some cases the end-user will not be able to obtain the source
> code of works originally provided through GPL license. For example, if
> the developer provides it with a different license.

I don't agree with that as I don't believe that relicensing
could be retroactive. If the dual licensing was done before the 
distribution of the binary it is acceptable (but not for busybox nor the linux kernel).

> You haven't agreed with the second point:
> 
> 2) If a user never received software with a license, he/she cannot
> hold the other party accountable for it, nor the other party hold
> him/her accountable for it either.

I will agree when the BSA agrees to it (in written form).
 
> And I don't think you _can_ agree either, even with clear examples,
> such as Skype suing me for something that was not in the provided
> EULA.

Like suing Apple because they don't provide in their EULA the 2 years warranty
requested by italian/european law?

> 
> Cheers.
> 
> 
Ciao,
Tito