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Replaced "GPL" with "the GPL" wherever it was used to refer to the license,

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but *not* when used when referring to GPL'd software or GPL violation or GPL
enforcement, etc.
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Joshua Gay 2014-03-20 13:31:54 -04:00 committed by Bradley M. Kuhn
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90
enforcement-case-studies.tex
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@ -50,7 +50,7 @@ available at \verb=https://creativecommons.org/licenses/by-sa/4.0/legalcode=.
This one-day course presents the details of five different GPL
compliance cases handled by FSF's GPL Compliance Laboratory. Each case
offers unique insights into problems that can arise when the terms of
GPL are not properly followed, and how diplomatic negotiation between
the GPL are not properly followed, and how diplomatic negotiation between
the violator and the copyright holder can yield positive results for
both parties.
@ -79,40 +79,40 @@ not equivalent to attending the course.
\chapter{Overview of Community Enforcement}
The GPL is a Free Software license with legal teeth. Unlike licenses like
the X11-style or various BSD licenses, GPL (and by extension, the LGPL) is
the X11-style or various BSD licenses, the GPL (and by extension, the LGPL) is
designed to defend as well as grant freedom. We saw in the last course
that GPL uses copyright law as a mechanism to grant all the key freedoms
that the GPL uses copyright law as a mechanism to grant all the key freedoms
essential in Free Software, but also to ensure that those freedoms
propagate throughout the distribution chain of the software.
\section{Termination Begins Enforcement}
As we have learned, the assurance that Free Software under GPL remains
Free Software is accomplished through various terms of GPL: \S 3 ensures
As we have learned, the assurance that Free Software under the GPL remains
Free Software is accomplished through various terms of the GPL: \S 3 ensures
that binaries are always accompanied with source; \S 2 ensures that the
sources are adequate, complete and usable; \S 6 and \S 7 ensure that the
license of the software is always GPL for everyone, and that no other
legal agreements or licenses trump GPL. It is \S 4, however, that ensures
license of the software is always the GPL for everyone, and that no other
legal agreements or licenses trump the GPL. It is \S 4, however, that ensures
that the GPL can be enforced.
Thus, \S 4 is where we begin our discussion of GPL enforcement. This
clause is where the legal teeth of the license are rooted. As a copyright
license, GPL governs only the activities governed by copyright law ---
license, the GPL governs only the activities governed by copyright law ---
copying, modifying and redistributing computer software. Unlike most
copyright licenses, GPL gives wide grants of permission for engaging with
copyright licenses, the GPL gives wide grants of permission for engaging with
these activities. Such permissions continue, and all parties may exercise
them until such time as one party violates the terms of GPL\@. At the
them until such time as one party violates the terms of the GPL\@. At the
moment of such a violation (i.e., the engaging of copying, modifying or
redistributing in ways not permitted by GPL) \S 4 is invoked. While other
parties may continue to operate under GPL, the violating party loses their
redistributing in ways not permitted by the GPL) \S 4 is invoked. While other
parties may continue to operate under the GPL, the violating party loses their
rights.
Specifically, \S 4 terminates the violators' rights to continue
engaging in the permissions that are otherwise granted by GPL\@.
engaging in the permissions that are otherwise granted by the GPL\@.
Effectively, their rights revert to the copyright defaults ---
no permission is granted to copy, modify, nor redistribute the work.
Meanwhile, \S 5 points out that if the violator has no rights under
GPL, they are prohibited by copyright law from engaging in the
the GPL, they are prohibited by copyright law from engaging in the
activities of copying, modifying and distributing. They have lost
these rights because they have violated the GPL, and no other license
gives them permission to engage in these activities governed by copyright law.
@ -128,7 +128,7 @@ distributing that work. For example, the violator may have put the
software in boxes and sold them at stores. Or perhaps the software
was put up for download on the Internet. Regardless of the delivery
mechanism, violators almost always are engaged in {\em ongoing\/}
violation of GPL\@.
violation of the GPL\@.
In fact, when we discover a GPL violation that occurred only once --- for
example, a user group who distributed copies of a GNU/Linux system without
@ -136,7 +136,7 @@ source at one meeting --- we rarely pursue it with a high degree of
tenacity. In our minds, such a violation is an educational problem, and
unless the user group becomes a repeat offender (as it turns out, they
never do), we simply forward along a FAQ entry that best explains how user
groups can most easily comply with GPL, and send them on their merry way.
groups can most easily comply with the GPL, and send them on their merry way.
It is only the cases of {\em ongoing\/} GPL violation that warrant our
active attention. We vehemently pursue those cases where dozens, hundreds
@ -162,12 +162,12 @@ related to GPL'd software to obey the rules of the road and allow them to
operate freely under them. Just as a traffic officer would not revel in
reminding people which side of the road to drive on, so we do not revel in
violations. By contrast, we revel in the successes of educating an
ongoing violator about GPL so that GPL compliance becomes a second-nature
ongoing violator about the GPL so that GPL compliance becomes a second-nature
matter, allowing that company to join the GPL ecosystem as a contributor.
\section{How are Violations Discovered?}
Our enforcement of GPL is not a fund-raising effort; in fact, FSF's GPL
Our enforcement of the GPL is not a fund-raising effort; in fact, FSF's GPL
Compliance Lab runs at a loss (in other words, it is subsided by our
donors). Our violation reports come from volunteers, who have encountered,
in their business or personal life, a device or software product that
@ -197,7 +197,7 @@ software is included.
Once we have confirmed that a violation has indeed occurred, we must then
determine whose copyright has been violated. Contrary to popular belief,
FSF does not have the power to enforce GPL in all cases. Since GPL
FSF does not have the power to enforce the GPL in all cases. Since the GPL
operates under copyright law, the powers of enforcement --- to seek
redress once \S 4 has been invoked --- lie with the copyright holder of
the software. FSF is one of the largest copyright holders in the world of
@ -207,11 +207,11 @@ software copyrighted by FSF present.
In cases where FSF does not hold copyright interest in the software, but
we have confirmed a violation, we contact the copyright holders of the
software, and encourage them to enforce GPL\@. We offer our good offices
software, and encourage them to enforce the GPL\@. We offer our good offices
to help negotiate compliance on their behalf, and many times, we help as a
third party to settle such GPL violations. However, what we will describe
primarily in this course is FSF's first-hand experience enforcing its own
copyrights and GPL\@.
copyrights and the GPL\@.
\section{First Contact}
@ -292,9 +292,9 @@ the availability on its Web site and via a customer newsletter.
Bortez did have some concerns regarding patents. They wished to include a
statement with the software release that made sure they were not granting
any patent permission other than what was absolutely required by GPL\@.
any patent permission other than what was absolutely required by the GPL\@.
They understood that their patent assertions could not trump any rights
granted by GPL\@. The following language was negotiated into the release:
granted by the GPL\@. The following language was negotiated into the release:
\begin{quotation}
Subject to the qualifications stated below, Bortez, on behalf of itself
@ -359,7 +359,7 @@ This case introduces a number of concepts regarding GPL enforcement.
possible.
\item {\bf Confirming compliance is a community effort.} The whole point
of making sure that software distributors respect the terms of GPL is to
of making sure that software distributors respect the terms of the GPL is to
allow a thriving software sharing community to benefit and improve the
work. FSF is not the expert on how a compiler for consumer electronic
devices should work. We therefore inform the community who originally
@ -373,7 +373,7 @@ This case introduces a number of concepts regarding GPL enforcement.
\item {\bf Informing the harmed community is part of compliance.} FSF asks
violators to make some attempt --- such as via newsletters and the
company's Web site --- to inform those who already have the products as
to their rights under GPL\@. One of the key thrusts of GPL's \S 1 and
to their rights under the GPL\@. One of the key thrusts of the GPL's \S 1 and
\S 3 is to {\em make sure the user knows she has these rights\/}. If a
product was received out of compliance by a customer, she may never
actually discover that she has such rights. Informing customers, in a
@ -386,8 +386,8 @@ This case introduces a number of concepts regarding GPL enforcement.
difficult negotiation point of the Bortez case was drafting language
that simultaneously protected Bortez's patent rights outside of the
GPL'd source, but was consistent with the implicit patent grant in
GPL\@. As we discussed in the first course of this series, there is
indeed an implicit patent grant with GPL, thanks to \S 6 and \S 7.
the GPL\@. As we discussed in the first course of this series, there is
indeed an implicit patent grant with the GPL, thanks to \S 6 and \S 7.
However, many companies become nervous and wish to make the grant
explicit to assure themselves that the grant is sufficiently narrow for
their needs. We understand that there is no reasonable way to determine
@ -409,7 +409,7 @@ knowledge of the Free Software community and its functions is deep.
Bracken produces a GNU/Linux operating system product that is sold
primarily to OEM vendors to be placed in appliance devices used for a
single purpose, such as an Internet-browsing-only device. The product
is almost 100\% Free Software, mostly licensed under GPL and related
is almost 100\% Free Software, mostly licensed under the GPL and related
Free Software licenses.
FSF found out about this violation through a report first posted on a
@ -430,7 +430,7 @@ online distribution:
available
\item An End User License Agreement (``EULA'') was included that
contradicted the permissions granted by GPL\@
contradicted the permissions granted by the GPL\@
\end{itemize}
@ -441,7 +441,7 @@ following steps:
\begin{itemize}
\item Bracken attorneys would rewrite the EULA to comply with GPL and
\item Bracken attorneys would rewrite the EULA to comply with the GPL and
would vet the new EULA through FSF before use
\item Bracken engineers would provide source side-by-side with the
@ -457,7 +457,7 @@ following steps:
\end{itemize}
This case was completed in about a month. FSF approved the new EULA
text. The key portion in the EULA relating to GPL read as follows:
text. The key portion in the EULA relating to the GPL read as follows:
\begin{quotation}
Many of the Software Programs included in Bracken Software are distributed
@ -497,7 +497,7 @@ role in GPL compliance.
easier time with compliance.} Bracken's products were designed and
built around the GNU/Linux system and Free Software components. Their
engineers were deeply familiar with the Free Software ecosystem, and
their lawyers had seen and reviewed GPL before. The violation was
their lawyers had seen and reviewed the GPL before. The violation was
completely an honest mistake. Since the culture inside the company had
already adapted to the cooperative style of resolution in the Free
Software world, there was very little work for either party to bring the
@ -533,12 +533,12 @@ role in GPL compliance.
\item {\bf EULAs are a common area for GPL problems.} Often, EULAs
are drafted from boilerplate text that a company uses for all its
products. Even the most diligent attorneys forget or simply do not
know that a product contains software licensed under GPL and other
know that a product contains software licensed under the GPL and other
Free Software licenses. Drafting a EULA that accounts for such
licenses is straightforward; the text quoted above works just fine.
The EULA must be designed so that it does not trump rights and
permissions already granted by GPL\@. The EULA must clearly state
that if there is a conflict between it and GPL, with regard to GPL'd
permissions already granted by the GPL\@. The EULA must clearly state
that if there is a conflict between it and the GPL, with regard to GPL'd
code, the GPL is the overriding license.
\item {\bf Compliance Officers are rarely necessary when companies are
@ -574,7 +574,7 @@ FSF discovered the violation from a user report, and determined that the
cryptographic features were the only part of the product that constituted
a derivative work of GNU tar; the extraneous utilities merely made
shell calls out to GNU tar. FSF requested that Vigorien come into
compliance with GPL by releasing the source of GNU tar, with the
compliance with the GPL by releasing the source of GNU tar, with the
cryptographic modifications, to its customers.
Vigorien released the original GNU tar sources, but kept the cryptographic
@ -605,7 +605,7 @@ did so, and the violation was resolved.
\item {\bf Removing the GPL'd portion of the product is always an
option.} Many violators' first response is to simply refuse to
release the source code as GPL requires. FSF offers the option to
release the source code as the GPL requires. FSF offers the option to
simply remove the GPL'd portions from the product and continue along
without them. Every case where this has been suggested has led to
the same conclusion. Like Vigorien, the violator argues that the
@ -620,7 +620,7 @@ did so, and the violation was resolved.
\item {\bf The whole product is not always covered.} In this case,
Vigorien had additional works aggregated. The backup system was a suite
of utilities, some of which were GPL and some of which were not. While
of utilities, some of which were the GPL and some of which were not. While
the cryptographic routines were tightly coupled with GNU tar and clearly
derivative works, the various GUI utilities were separate and
independent works merely aggregated with the distribution of the
@ -647,11 +647,11 @@ did so, and the violation was resolved.
by identifying them early.
\item {\bf External regulatory problems can be difficult to resolve.}
GPL, though grounded in copyright law, does not have the power to trump
The GPL, though grounded in copyright law, does not have the power to trump
regulations like export controls. While Vigorien's ``security
concerns'' were specious, their export control concerns were not. It is
indeed a difficult problem that FSF acknowledges. We want compliance
with GPL and respect for users' freedoms, but we certainly do not expect
with the GPL and respect for users' freedoms, but we certainly do not expect
companies to commit criminal offenses for the sake of compliance. We
will see more about this issue in our next case study.
\end{enumerate}
@ -727,7 +727,7 @@ regarding the problem.
GPL violators if they are negotiating in a friendly way and operating in
good faith toward compliance. Most violations are honest mistakes, and
FSF sees no reason to publicly admonish violators who genuinely want to
come into compliance with GPL and to work hard staying in compliance.
come into compliance with the GPL and to work hard staying in compliance.
This case was so public in the Free Software community that both Haxil's
and Polgara's representatives were nearly shell-shocked by the time FSF
@ -814,9 +814,9 @@ distribute products based on GPL'd software:
Software component.
\item Build a ``Free Software Licensing'' committee that handles requests
and questions about GPL and other Free Software licenses.
and questions about the GPL and other Free Software licenses.
\item Add ``What parts of your products are under GPL or other Free
\item Add ``What parts of your products are under the GPL or other Free
Software licenses?'' to your checklist of questions to ask when you
consider mergers, acquisitions, or joint ventures.
@ -826,13 +826,13 @@ distribute products based on GPL'd software:
rapidly changing field.
\item When someone points out a potential GPL violation in one of your
products, do not assume the product line is doomed. GPL is not a virus;
products, do not assume the product line is doomed. The GPL is not a virus;
merely having GPL'd code in one part of a product does not necessarily
mean that every related product must also be GPL'd. And, even if some
software needs to be released that was not before, the product will
surely survive. In FSF's enforcement efforts, we have not yet
seen a product line die because source was released to customers in
compliance with GPL.
compliance with the GPL.
\end{itemize}