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Subject: Re: coordinated compliance efforts addresses the issues of this thread
From: "farmatito () tiscali ! it" <farmatito () tiscali ! it>
Date: 2012-10-20 20:19:23
Message-ID: 12377980.57901350764363687.JavaMail.defaultUser () defaultHost
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Hi,
you are always good at making a lot of examples, so I'll do a few
to.
But first a few facts about the italian copyright law, that even if
not
born exactly for software nonetheless applies to it.
I would like
to bring to your attention a few articles of this law
as they are in
the "real" reality:
Legge 22 aprile 1941 n. 633:
Art. 3
Le opere
collettive, costituite dalla riunione di opere o di parti di opere, che
hanno carattere di creazione autonoma, come risultato della scelta e
del coordinamento ad un determinato fine letterario, scientifico
didattico, religioso, politico od artistico, quali le enciclopedie, i
dizionari, le antologie, le riviste e i giornali sono protette come
opere originali, indipendentemente e senza pregiudizio dei diritti di
autore sulle opere o sulle parti di opere di cui sono composte.
roughly translated:
Collective works made by the union of other works
or parts thereof, that have a character of autonomous creations,
as
result of choice and coordination for a particular literary ,
scientific, didactic, religious, political or artistical purpose,
as
encyclopaedias, dictionaries, antologies or newspapers are protected as
orginal works, independently end without
prejudice of the owner's
rights of the works or parts thereof of which they are composed.
also
Art. 7
E' considerato autore dell'opera collettiva chi organizza e
dirige la creazione dell'opera stessa.
Author of the collective work
is who organizes and directs the creation of the collective work.
This opens up interesting questions about the ownership of the
copyright of collective works
like for example busybox or even the
linux kernel.
You the author of the single part are of course always
the copyright holder of this very single part
but the author of the
whole collective work is who organizes and directs it so in the case
of
busybox software the maintainer. This defeats your argument that it is
up to the single
authors of the code to do the enforcement as there is
at least one more party that is entitled
to do so and is entitled to do
it for the whole work.
Let us now take a look at this example of
yours:
1) Felipe (licensor) -> Omar (licensee) # Omar downloads my
source
code that is publicly available through the GPL
2) Omar
(licensor) -> Federico (licensee) # Federico gets the same
source code,
but doesn't see the licenses (Omar removed them, and the
copyright
notices)
3) Federico (licensor) -> Commercial entity (licensee)
# Commercial entity gets the
source code by paying money to Federico,
which provides it with a
propriety license
4) Commercial
entity (licensor) -> End user (licensee) # The end user
buys a product
from Commercial entity which uses the original software, but doesn't
show any license
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
I also doubt
you would dare to make the same example
if the program at stake would
be a proprietary software.
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
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.
It is easy
today through the use of the internet to compare code as the open
source
code is all published.
Should the code be obfuscated it should
even more encrease the diligence to be done.
Should the commercial
entity discover the code is under the GPL and decide to continue
to buy
it or use it without paying which is surely the __MOST__ common case to
obtain
a commercial advantage upon concurrents than it becames a
wrongful conduct.
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.
As we have seen before for
the italian law they are:
1) the author of the software (or part of
the sofware if it is a collective work)
2) the maintainer/coordinator
of the software if it is a collective work
3) the user of the device
containing the software as he should have
gotten a copy of the
source code but has not and was de facto deprived
of a
good/right/privilege or however you will call it.
The user has
suffered a damage.
The judges in the various judicial degrees will
then decide upon the matter.
Ciao,
Tito
----Messaggio originale----
Da: felipe.contreras@gmail.com
Data: 20/10/2012 10.09
A: <busybox@beer.
org.uk>
Cc: <busybox@busybox.net>
Ogg: Re: coordinated compliance
efforts addresses the issues of this thread
On Fri, Oct 19, 2012 at 2:
56 PM, Vic <busybox@beer.org.uk> wrote:
>
> > It seems you don't
understand how reality works.
>
> See, now you're just getting
offensive.
>
> You've said something that is demonstrably factually
incorrect about the
> GPL. Let's just leav it like that, shall we?
>
> >
One _must_ not cross the street when the red light is on,
>
> Utter
rubbish.
It happens to be true.
> > Yes, companies must pass the same
rights to the recipient, but then
> > often don't. It happens, really.
>
> If they fail to do so, they are not compliant with the terms under
which
> they are distributing. That's no different whatsoever from me
making hooky
> copies of "Pirates of the Caribbean" and selling it on
at car boot sales.
> It's simply a case of copying without a licence so
to do.
That's right, but the original authors of "Pirates of the
Caribbean"
will make use of their rights granted by copyright law, and
sue the
distributor.
On the other hand, if they choose not to do
anything, that's
completely their choice. If *I* choose not to enforce
my rights,
nothing happens. Just like nothing happens if I get
assaulted, but I
choose to press no charges... It's completely up to me
how I exercise
my rights.
> Trying to infer somethnig about the GLP
from that is a fool's errand; it
> says nothing whatosever because it
is simply unlawful copying.
It is unlawful *only* if the original
author says it's so.
> The GPL, however, has one more thing to say:
should the above occur, the
> recipient *still* gets all his GPL rights
directly from the original
> licensor, despite the distributor not
being in compliance. This is section
> 6 of GPLv2, section 10 of GPLv3.
So even in your scenario, the end-user
> *still* receives those rights
from the original licensor, despite the
> middle-man unlawfully trying
to prevent that happening.
The GPL might say so, but there's no law
that will allow this.
Imagine that I use another license, the EPL
(evil public license),
which says the licensee must give the licensor
their firstborn, and,
like copyleft licenses, they must distribute the
software (binaries or
sourcecode) under the same license. What happens
if you buy a product
that uses such software, but you never see such
license, are you bound
by this? No, of course not! Each pair of
licensor-licensee is a
separate contract, if you don't get the license
in any way, you are
not a licensee of this evil license. Period.
Imagine this chain:
1) Felipe (licensor) -> Omar (licensee) # Omar
downloads my source
code that is publicly available through the GPL
2) Omar (licensor) -> Federico (licensee) # Federico gets the same
source code, but doesn't see the licenses (Omar removed them, and the
copyright notices)
3) Federico (licensor) -> Sony (licensee) #
Sony gets the
source code by paying money to Federico, which provides
it with a
propriety license
4) Sony (licensor) -> End user
(licensee) # The end user
buys a product from Sony which uses the
original software, but doesn't
show any license
Did Sony violate the
GPL? No, they never saw it. Did Federico? No, he
never saw it. Omar is
the one that changed the license, and he did so
against copyright law.
I can't sue Sony, nor Federico, they never did
anything wrong.
_You_
can say that they they all violated the GPL, because they did
something
that was explicitly prohibited in the GPL. But what the GPL
says is
irrelevant, licenses encompass what happens between the
licensor and
the licensee, and to blame Federico, or Sony, for
something they were
not aware of would be unfair, like it would be
unfair to ask the End
User for their firstborn if Felipe had chosen
the EPL instead of the
GPL. A court of law would only find Omar
guilty, because Omar is the
only one that received the code under the
GPL license, he broke the
chain.
Imagine another chain:
1) Felipe -> Omar # Omar steals my
watch
2) Omar -> Federico # Omar sells the watch to Federico
3) Federico -> End User # Federico sells the watch to the End
User
Neither Federico nor the End User knew the watch was stolen, are
they
liable? No, of course not! Each person is liable for their own
transaction, and nothing more, if their transaction was completely
legitimate, they have nothing to fear.
Finally, imagine this one:
1)
Felipe -> Omar # Omar gets my watch free with a license that says
we
will not sell it, if he gives to somebody else, it must be free,
and
with the same license
2) Omar -> Federico # Omar sells the watch to
Federico, no license
3) Federico -> End User # Federico sells
the watch to the End User
It is the same, Omar is the one to blame, he
broke the viral license
chain, and the rest of the participants can't
be blamed because they
never saw any license, so they never violated
it.
> > I don't give the end users anything
>
> Yes you do. Read the
sections I've just highlighted. Your understanding is
> simply
incorrect.
I don't, I'm neither the licensor, nor the licensee. A
company
distributing the software on their products would be the
licensor,
_they_ give the user their rights through the EULA, _if_ they
choose
to do so.
> > I give permission to the software
> > users, and
what they do is their own problem. They can choose to
> > violate the
license, and in that case the end users get nothing.
>
> This is
factually incorrect.
No, it is true.
Just like it is true that people
can choose to cross while the light
is red. Really, it does happen.
> >
The end users receive their rights from the company, not from me.
>
>
This is factually incorrect.
It is true.
> > No, I didn't say anything
like that
>
> You made a definitive (untrue) statement about the GPL,
then said "I'm not
> talking about the GPL". You said something exactly
like that.
>
> > it's particularily convenient that you didn't quote
what I wrote right
> > after this
>
> You've said so much, it's tricky
to quote all of it. Most of what you've
> said is erroneous, and I
don't really want to quote it anyway.
>
> > > In the specific case of the
GPL, the company might be violating the
> > > GPL, so the end user would
not see the license, but that's a problem
> > > between me, and the
company; the licensor, and the licensee.
>
> And that is fundamentally
untrue.
It's true.
> > See? The GPL is no exception; the license is
still a contract between
> > the licensor (me), and the licensee (the
company).
>
> No, you've misrepresented the GPL. You do not know
whereof yuo speak.
What the GPL says is irrelevant, what is relevant
is the law.
> > The end user has another license between the the
company (licensor),
> > and the end user (licensee). *If* the company
chooses to do that.
>
> No. The end-user has a grant of rights directly
from the original
> licensor. It's in the licence, if you'd like to
read it sometime...
The license is irrelevant. The license cannot
change contract law.
> > The company might chose to not do that, in
which case it will be in
> > violation of the license from me, *but* I
can choose to not do
> > anything about it.
>
> You can indeed. But that
does *not* preclude the end-user from getting the
> rights grant, just
like the licence says they do.
Only if the company grants them such
rights in the EULA. Not if they don't.
> > It's entire up to me what
license I choose, and it's entirely up to me
> > to decide how to
enforce it. There's nothing wrong with choosing a BSD
> > license, or a
GPL license and not enforce it. It's *my* choice.
>
> It is indeed.
>
>
But your not enforcing a GPL licenmce that you have already chosen does
> *not* mean that the end-user gets no rights - they do. Those rights
are
> granted in the licence, and persist as long as that user does not
violate
> the licence. Someone else violating the licence does *not*
mean that all
> downstream recipients lost those rights; they keep
them.
Yes it does mean that. When the chain is broken, it's broken.
The rest
of the people in the chain don't receive the rights and
responsibilities of the the license, and only the licensee that broke
it can be sued, either for breaking the license (from the previous
licensor), or by breaking copyright law (by the copyright owner).
>
this is all in the licence. I strongly suggest you read it, rather than
> just making it up as you go along.
What the license says is
irrelevant, what is relevant is the law.
> > It's copyright that gives
original authors protection, and makes the
> > GPL enforceable.
>
>
That's where most of the teeth come from, but not all of them. Contract
> law has something to say in many jurisdictions.
Contract law
pertains only to the relationship between the licensor,
and the
licensee.
> > If I chose not to enforce the license, and the end users
didn't get
> > the license, the end users get nothing, and there's
nothing the FSF
> > can do about it. It doesn't matter what is written
in the GPL.
>
> Errr - have I mentioned just how wrong you are about
that?
It's true.
> > A contract is also between two parties, and if
the two parties don't
> > have a problem, there's no problem.
>
> And if
one of them does have a problem - there is a problem.
>
> You persist
in claiming that the end-user gets no rights, despite the very
> clear
plain language in the GPL. Either you're right, and the GPL doesn't
>
say what the GPL says, or else you're wrong. Can you take a guess as to
> whether or not the GPL says what the GPL says?
What the GPL says is
irrelevant. It cannot change that contract law says.
> > It is still
correct, because the GPL can only give rights to end users
> > *if* I
chose to enforce the GPL
>
> Untrue.
True.
> > or *if* the company
distributed the
> > software with that license.
>
> Untrue.
True.
> >
In the first case, it's entirely up to me, I can make it go away in a
> > whim.
>
> You can only choose not to enforce your own rights. You
cannot remove
> someone else's, however much you seem to want to.
They
never received those rights, they didn't get the software with a
GPL
license.
> > > The end-user has rights granted him regardless of what
any intervening
> > > distributor might try to do.
> >
> > Only if *I*
choose to enforce the license.
>
> Wrong.
Right.
> > > Really - you
ought to read the GPL. It says different things to what you
> > > claim
it says.
> >
> > What the GPL says is irrelevant. Get it?
>
> What the
GPL says is *not* irrelevant. Get it?
Oh, so you are saying that the
GPL has prevalence over contract law?
> > One more time: the end users
get their rights from the company
>
> Wrong.
Right.
> > *if* I choose
not to enforce them, the users get nothing
>
> Wrong.
Right.
> > it
doesn't
> > matter what the GPL says, because both sides, me (the
licensor), and
> > the company (the licensee) choose to ignore it.
Period.
>
> Wrong.
Right.
> Really, holding forth about stuff you
clearly don't understand and don't
> even appear to have read is not
doing yuo any favours here.
Is that all you have? Your argument boils
down to "You are wrong".
It's obviously a waste of time to discuss
with you, because your
discussion skills are not beyond the ones of a
five years old who can
only say "You are wrong", I already provided my
arguments, so I will
not reply to you any more.
Here, have some facts:
License:
A license may be granted by a party ("licensor") to another
party
("licensee") as an element of an agreement between those parties.
A
shorthand definition of a license is "an authorization (by the
licensor) to use the licensed material (by the licensee)."
See? Two
parties. That's _all_. The GPL might try to involve parties
other than
the licensor, and the licensee, but that's not covered in
contract
laws, so that's irrelevant, only what happens between the
licensor and
the licensee is relevant. This is basic common sense.
Cheers.
--
Felipe Contreras
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