coordinated compliance efforts addresses the issues of this thread

[Felipe Contreras]

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.

>> 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.

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.

>> 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.

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

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.

>> 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'.

>> 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.

And the former is not stolen.

>> > 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.

>> >> 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.

>> > _________________________________________________________________________
>> >
>> > 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.

>> 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.

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.

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.

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.

Cheers.

-- 
Felipe Contreras