diff options
Diffstat (limited to '2005/gpl-ec2005/gpl-ec2005.xml')
| -rw-r--r-- | 2005/gpl-ec2005/gpl-ec2005.xml | 413 |
1 files changed, 413 insertions, 0 deletions
diff --git a/2005/gpl-ec2005/gpl-ec2005.xml b/2005/gpl-ec2005/gpl-ec2005.xml new file mode 100644 index 0000000..d75916c --- /dev/null +++ b/2005/gpl-ec2005/gpl-ec2005.xml @@ -0,0 +1,413 @@ +<?xml version='1.0' encoding='ISO-8859-1'?> + +<!DOCTYPE article PUBLIC '-//OASIS//DTD DocBook XML V4.3//EN' 'http://www.docbook.org/xml/4.3/docbookx.dtd'> + +<article id="gpl-enforcement-ccc2004"> + +<articleinfo> + <title>Enforcing the GNU GPL - Copyright helps Copyleft</title> + <authorgroup> + <author> + <personname> + <firstname>Harald</firstname> + <surname>Welte</surname> + </personname> + <!-- + <personblurb>Harald Welte</personblurb> + <affiliation> + <orgname>netfilter core team</orgname> + <address> + <email>laforge@netfilter.org</email> + </address> + </affiliation> + + --> + <email>laforge@gpl-violations.org</email> + </author> + </authorgroup> + <copyright> + <year>2004</year> + <holder>Harald Welte <laforge@gpl-violations.org> </holder> + </copyright> + <date>Dec 01, 2004</date> + <edition>1</edition> + <orgname>netfilter core team</orgname> + <releaseinfo> + $Revision: 1.4 $ + </releaseinfo> + + <abstract> + <para> +More and more vendors of various computing devices, especially network-related +appliances such as Routers, NAT-Gateways and 802.11 Access Points are using +Linux and other GPL licensed free software in their products. + </para> + <para> +While the Linux community can look at this as a big success, there is a back +side of that coin: A large number of those vendors have no idea about the GPL +license terms, and as a result do not fulfill their obligations under the GPL. + </para> + <para> +The netfilter/iptables project has started legal proceedngs against a number of +companies in violation of the GPL since December 2003. Those legal proceedings +were quite successful so far, resulting in twelve amicable agreements and one +granted preliminary injunction. The list of companies includes large +corporations such as Siemens, Asus and Belkin. + </para> + <para> +This paper and the corresponding presentation will give an overview about the +author's recent successful enforcement of the GNU GPL within German +jurisdiction. + </para> + <para> +The paper will go on describing what exactly is neccessarry to fully comply +with the GPL, including the author's legal position on corner cases such as +cryptographic signing. + </para> + <para> +In the end, it seems like the idea of the founding fathers of the GNU GPL +works: Guaranteeing Copyleft by using Copyright. + </para> + </abstract> + +</articleinfo> + + +<section> +<title>Legal Disclaimer</title> +<para> +The author of this paper is a software developer, not a lawyer. The content of +this paper represents his knowledge after dealing with the legal issues of +about 20 gpl violation cases. +</para> +<para> +All information in this paper is presented on a nas-is basis. There is no +warranty for correctness. +</para> +<para> +The paper does not comprise legal advise, and any details might be coupled to German copyright law (UrhG) +</para> +</section> + +<section> +<title>Free Software and its role in the software industry</title> +<para> +Though Free Software (sometimes referred to as Open Source Software) according +to our definition exists since the early 1980's, it didn't became popular until +the advent of the internet. +</para> +<para> +The concept of cooperative development between otherwise unrelated parties was an ideal match with the new possibilities of worldwide communication. +</para> +<para> +Free Software finds its way into almost any market within the industry. While +FOSS deployment traditionally being strong in the server market, it recently +gains in the desktop workstation market, too (e.g. Open Office, Mozilla). +</para> +<para> +However, the largest number of FOSS deployments is in the embedded computing +market. You can easily find Linux and other FOSS embeddeed into devices such +as DSL routers, WLAN access points, network attached storage, digital TV +receivers, home multimedia centres and recently even wireless phones. +</para> +</section> + +<section> +<title>What is copyrightable</title> +<para> +Since the GNU GPL is a copyright license, it can only cover copyrightable +works. The exact definition of what is copyrightable and what not might vary +from legislation to legislation. +</para> +<para> +Software is considered the immaterial result of a creative act, and is treated +very much like literary works. It might therefore be applicable to look at the +analogy of a printed book. +</para> +<para> +In order for a work to be copyrightable, it has to be non-trivial (German: +Schöpfungshöhe). Much like a lector of a book, anybody who just +corrects spelling mistakes, compiler warnings, or even functional fixes such as +fixing a signedness bug or a typecast are unlikely to be seen as a +copyrightable contribution to an existing work. +</para> +<para> +An indication for copyrightability can be the question: Did the author have a +choice (i.e. between different algorithms)? As soon as there are multiple ways +of getting a particular job done, and the author has to make decisions on which +way to go, this is an indication for copyrightability. +</para> +</section> + +<section> +<title>The GNU GPL revisited</title> +<para> +As a copyright license, the GNU GPL mainly regulates distribution of a +copyrighted work, not usage. To the opposite, the GNU GPL does not allow an +author to make any additional restrictions like <quote>must not be used for +military purpose</quote>. +</para> +<para> +As a summary, the license allows distribution of the source code (including +modifications, if any) if +<itemizedlist> +<listitem><para>The GPL license itself is mentioned</para></listitem> +<listitem><para>A copy of the full license text accompanies every copy</para></listitem> +</itemizedlist> +</para> +<para> +The GPL allows distribution of the object code (including modifications) if +<itemizedlist> +<listitem><para>The GPL license itself is mentioned</para></listitem> +<listitem><para>A copy of the full license text accompanies every copy</para></listitem> +<listitem><para>The <quote>complete corresponding source code</quote> or a written offer to ship it to any third party is included with every copy</para></listitem> +</itemizedlist> +</para> +</section> + +<section> +<title>Complete Source Code</title> +<para> +The GPL contains a very specific definition of what the term <quote>full source +code</quote> actually means in practise: +</para> +<para><quote> +... complete source code means all the source code for all modules it contains, +plus any associated interface definition files, plus the scripts used to +control compilation and installation of the executable. +</quote></para> +<para> +The interpretation of the paper's author of this (for C programs) is: +<itemizedlist> +<listitem><para>source code</para></listitem> +<listitem><para>Header Files</para></listitem> +<listitem><para>Makefiles</para></listitem> +<listitem><para>Tools for installation of a modified binary, even if they are not technically implemented as scripts</para></listitem> +</itemizedlist> +</para> +<para> +The general rule in case of any question is the intent of the license: To +enable the user to modify the source code and run modified versions. +</para> +<para> +This brings us to the conclusion that in case of a bundle of hardware and +software, the hardware can not be implemented in a way to only accept +cryptographically signed software, without providing either the original key, +or the option of setting a new key in the hardware. +</para> +</section> + + +<section> +<title>Derivative Work</title> +<para> +The question of derivative works is probably the hardest question with regard +to the GPL. According to the license text, any derivative work can only be +distributed under the GPL, too. However, the definition of a derivative work +is left to the legal framework of copyright. +</para> +<para> +The paper's author is convinced that any court decision would not look at the +particular technology used to integrate multiple software parts. It is much +more a question of how much dependency there is between the two pieces. +</para> +<para> +If a program is written against a specific non-standard API, this can be +considered as an indication for a derivative work. If a program is written +against standard APIs, and the GPL licensed parts that provide those APIs can +be easily exchanged with other [existing] implementations, then it can be considered as indication for no derivative work. +</para> +<para> +Unfortunately there is no precedent on this issue, so it's up to the first +court decisions on the issue of derivative works to determine. +</para> +</section> + +<section> +<title>Collective Works</title> +<para> +<quote>... it is not the intent ... to claim rights or contest your rights to work written entirely by you; rather, the intent is to excercise the right to control the distribution of derivative or collective works ...</quote> +</para> +<para> +<quote>... mere aggregation of another work ... with the program on a volume of a storage or distribution medium does not bring the other work under the scope of this license</quote> +</para> +<para> +So the GPL allows <quote>mere aggregation</quote>, which is what e.g. the +GNU/Linux distributors like RedHat or SuSE do, when they ship GPL-licensed +programs together with a proprietary Macromedia Flash player on one CD- or +DVD-Medium. +</para> +<para> +Further research is required to determine what exactly would be a collective +work, and how far this is backed by copyright law. +</para> +</section> + +<section> +<title>Non-Public Modifications</title> +<para> +Since the GPL regulates distribution and not use, any modifications that are +not distributed in any form do not require offering the source code. +</para> +<para> +Special emphasis has to be given on when distribution happens within the legal +context. +</para> +<para> +Undoubtedly, as soon as you distribute modifications to a third party, such as +a contractor or another company, you are bound by the GPL to either include the +full source code, or a written offer. Please note that if you don't include +the source code at any given time, the written offer must be available to any third party! +</para> +<para> +Interestingly, at least in German copyright law, distribution can also happen +within an organization. Apparently, as soon as a copy is distributed to a +group larger than a small number of close colleagues whom you know personally, +distribution happens - and thus the obligations of the GPL apply. +</para> +</section> + +<section> +<title>GPL Violations</title> +<para> +The GPL is violated as soon as one or more of the obligations are not fulfilled.</para> +<para> +For this case, the GPL automatically revokes any right, even the usage right on +the original unmodified code. So not only the distribution is infringing, also the mere use is no longer permitted. +</para> +<para> +This very strong provision is quite common in copyright licenses, especially in +the world of proprietary software - so businesses involved in the software businesses are already used to that concept. +</para> +</section> + +<section> +<title>Past GPL Enforcement</title> +<para> +In fact, GPL enforcement is not something completely new. The Free Software +Foundation (FSF) has been handling a number of GPL enforcement cases throughout +it's history since 1984. +</para> +<para> +However, their approach is quiet negotiations with the respective parties. +While this being productive in the respective cases, it obviously cannot serve +as example to raise public awareness about GPL compliance. +</para> +<para> +Also, anyone who uses GPL licensed software doesn't really have an economic +incentive to behave license compliant, if he cannot loose something. While the +Free Software movement being very ideological, we cannot neglect the fact that +businesses are only driven by economy. +</para> +<para> +Thus, it is the idea of the author to raise the economic price of license +infringement by +<itemizedlist> +<listitem><para>making infringement public (and thus imposing a negative marketing effect)</para></listitem> +<listitem><para>raising legal charges which force them to comply or otherwise loose the chance to use GPL covered code</para></listitem> +<listitem><para>claiming damages as a direct economic price</para></listitem> +</itemizedlist> +</para> +</section> + +<section> +<title>The Linksys Case</title> +<para> +In 2003, the Linksys Case was drawing a lot of attention from the FOSS +community. Linksys Corporation (a subsidiary of Cisco, the worldwide leader in +network equipment such as enterprise switches and routers) was selling 802.11 +(aka WiFi, WLAN) Access Points and Routers containing GPL licensed software. +The devices were sold virtually worldwide, and Linksys is one of the largest +players in the 802.11 consumer market. Software embedded into the device +contains the Linux OS Kernel, uClibc, busybox, netfilter/iptables. +</para> +<para> +An alliance of copyright holders (including the author of this paper) was lead by the Free Software Foundation to bring Linksys into compliance with the GPL license terms. +</para> +<para> +While in the end successfully bringing Linksys into compliance, it took that +alliance about four months to achieve the full sourcecode release by Linksys. +</para> +<para> +The strategy of Linksys was to overly delay the negotiations, making one +incoomplete source code release after the other. +</para> +<para> +Especially considering that the product lifecycle in the 802.11 being usually +somewhere between three and six months, this kind of delay was not acceptable +to a number of involved copyright holders. +</para> +<para> +Looking back from now, it is important to note that the Linksys GPL case has +actually helped Linksys a lot with regard to the popularity of their products. +A lot of users buy their product exactly because they know they receive the +sourcecode and the right to modify it. There's now a vivid community around +their products, offering community-based alternative software (aka firmware) +for them. Also, a number of small and medium-sized businesses have alternative +commercial free software offers. Due to that success, almost any new Linksys +product was based on Free Software, too! +</para> +</section> + +<section> +<title>Enforcement Case Timeline</title> +<para> +The author of this paper started the <quote>gpl-violations.org</quote> project +in order to help with new cases coming up after the Linksys case. +</para> +<para> +The usual timeline of an enforcemnt case looks like this: +<itemizedlist> +<listitem><para>Customer/User of the product sends information about the product to copyright holders</para></listitem> +<listitem><para>Copyright holders confirm violation by re-engineering the product and making a test purchase</para></listitem> +<listitem><para>Copyright holder sends a warning notice to the product vendor</para></listitem> +<listitem><para>Copyright holder waits for some two weeks if vendor is willing to sing a declaration to cease and decist</para></listitem> +<listitem><para>If no declaration to cease and decist was signed + <itemizedlist> + <listitem><para>Contract technical expert recognized to court to do a study</para></listitem> + <listitem><para>Apply for a preliminary injunction at court</para></listitem> + </itemizedlist> +</para></listitem> +<listitem><para>If declaration to cease and decist was signed + <itemizedlist> + <listitem><para>Try to find amicable agreement about damages and information claims</para></listitem> + <listitem><para>Probably grant a grace period for products already produced and in stock</para></listitem> + </itemizedlist> +</para></listitem> +</itemizedlist> +</para> +</section> + +<section> +<title>Success so far</title> +<para> +Since the launch of gpl-violations.org, it has been a huge success for the FOSS +community. Up to now, there have been about 25 cases where the GPL has been +enforced out-of-court. In addition, there two preliminary injunctions have +been granted. An appeals case against one injunction was turned down by the +court. Thus, precedent has been set forth for likely further cases to follow. +</para> +<para> +Especially the first preliminary injunction received big interest throughout +the computing industry and the legal community. It received significant media +coverage and thus resulted in exactly what the copyright holders wanted to +achive: Raising public awareness about the GPL license conditions. +</para> +</section> + +<section> +<title>Further Reading</title> +<itemizedlist> +<listitem><para>The Free Software Foundation: <ulink url="http://www.fsf.org/"/></para></listitem> +<listitem><para>The gpl-violations.org project: <ulink url="http://www.gpl-violations.org/"/></para></listitem> +<listitem><para>The GNU project project: <ulink url="http://www.gnu.org/"/></para></listitem> +<listitem><para>The law firm JBB (has court orders as PDF on their site): <ulink url="http://www.jbb.de/"/></para></listitem> +<listitem><para>The gpl-violations.org section in the weblog of the author: <ulink url="http://gnumonks.org/~laforge/weblog/linux/gpl-violations"/></para></listitem> +</itemizedlist> +<para> +</para> +</section> + + +</article> + |