Copyleft Currents

The Beijing Intellectual Property Court recently handed down a decision relating to GPL.

See WYSIWYG note below on the facts.

The plaintiff Digital Heaven Internet Technology CO., LTD. (数字天堂网络技术) made publicly available its product HBuilder. One of the modules in HBuilder (“Aptana” released by Appcelerator, Inc., a third party) was licensed under GPL 3.0, and three modules developed by the plaintiff, “CIM plugin”, “ACR plugin”, and “HTML code drawing in real time plugin”, also included in HBuilder, had no other specific licensing terms.  Plaintiff alleged that defendant Pomelo Technology CO., LTD.(柚子科技有限公司) used some of its source code in a project called APICloud without permission.

The judges opined that the GPL license is enforceable in China, but that interpreting the copyleft conditions should be done on a case-by-case basis.  Asked to distinguish between mere “aggregation” and “derivative” works in GPL-3.0, the judges ruled that the relationship between the modules developed by the plaintiff to the GPL licensed Aptana is aggregation only, and thus the plaintiff’s modules need not be licensed under GPL 3.0. (Here, it is not clear whether the plaintiff or defendant alleged that plaintiff’s modules were under GPL 3.0, by inference.)

The judges ruled for the plaintiff and ordered damages of  “one million and 250 thousand” RMB, or approximately 165 thousand EU dollars, not including lawyers fees and court costs.  (See the decision for more information about the latter; the Google Translate feature does a decent job on this part of the decision.)  The judgement is appealable.

WYSIWYG: The decision is in Chinese, and the above is based on a description from secondary sources, which I will update if and when I receive a translation or learn to read Chinese, whichever comes sooner.  Actually, the facts are not clear to me at this time — particularly, it is not clear why the judges would rule that the Digital Heaven modules need not be under GPL, but state that the GPL is enforceable, because in that case the issue of enforceability does not seem ripe for decision.   The court awarded damages, but it is unclear to me whether these damages were for breach of GPL or simply copyright infringement.

Update: The defendant argued that the plaintiff’s software was under GPL. Note this may be a generally useful strategy to defend against copyright claims for proprietary software, though asking a court to interpret GPL as a matter of first impression may be an expensive defense to prosecute.  The damages were for copyright infringement, not violation of GPL.

Update: An English translation appears here.

Thanks to WordPress and Creative Mornings for putting together this interview in which I talk about IP and content rights, and Paul Jun took the trouble to draw a nice picture of me.

Six more companies have joined Red Hat, Facebook, Google and IBM (after the lead of Linux Foundation) to provide a cure period for GPL2 and LGPL2.1 violations.  This initiative was originally announced in November 2017.  See the press release from Red Hat.

It’s great to see momentum for this effort, which enables licensors and licensees to work out GPL and LGPL violations amicably.

My post on the initial announcement is here.

Open source has nearly reached the drinking age.  According to OSI, the term “open source”  was created at a strategy session on February 3rd, 1998.  Happy birthday!

Under pressure from open source advocates, the Israeli Information and Communications Technology Authority recently shared its first open source software, extensions made by the ICT Authority to the CKAN data portal platform to help make the platform usable in Hebrew.  The case did not involve formal enforcement of AGPL, but resulted in a code release.

For more details, see the Momentum post.

I recently was interviewed by Ben Hancock for an episode of the Unprecedented podcast on Law.com.

Software Freedom Conservancy filed a motion for summary judgement in response to SFLC’s petition to cancel Software Freedom Conservancy’s trademark (noted previously here).  The motion is based on various grounds, but the most interesting part of the motion lays out the unclean-hands argument.

The motion states, “SFLC chose the name “Sotware Freedom Conservancy” and filed the legal documents forming the Software Freedom Conservancy, Inc. It then proceeded to provide Conservancy with legal services, including trademark services.”

The motion goes on to say:

After the SFLC filed this action Moglen stated in an interview with the newspaper The Register that he has no problem with the Conservancy name. The Register reports: “ ‘I have been trying for three years to have a conversation about some differences with some former employees,’ …he said that any outcome he could imagine that involves [Conservancy] would have the organization ‘continue to exist and flourish under its existing name.’”… These words, spoken by the Executive Director of the petitioner after it filed the petition to cancel the registration of the Conservancy mark, illustrate that the petition was filed, not because there is any confusion at all, but in an abuse of this legal process, wasting the Board’s time and resources, solely to inflict pain on former SFLC employees by attacking the organization that they are passionate about.

Once can only observe with awe and dismay as this internecine battle plays out.

A guide entitled Starting an Open Source Project was released by the Linux Foundation, with contributions from open source advocates at Facebook, Samsung Research America, Capital One and Autodesk.  The guide describes business and technical considerations for businesses contemplating an open source code release, with a handy checklist at the end.

Today, Red Hat and several other major technology companies released a commitment to afford GPLv3-style cure terms to GPLv2 violations, in an effort to “provide greater predictability to users of open source software.”

Red Hat’s pledge comes on the heels of a community enforcement pledge by the Linux kernel developers, reported here,which was in turn preceded by the SFC/FSF community enforcement guidelines.

These commitments represent a consistent community effort to distance enforcers (or potential enforcers) — like Software Freedom Conservancy, the Linux Foundation, and other technology companies — from the kind of copyright trolls reported here.  They also represent an effort to resolve the legal questions raised by lack of an express cure provision in GPLv2, and other open source licenses.

 

UPDATE: Bruce Perens wrote an interesting FAQ on this.

The Software Freedom Law Center (SFLC) and the Software Freedom Conservancy (SFC) have fallen out publicly over a filing by SFLC seeking cancellation of the SFC’s trademark due to confusion between the two.

The SFC posted about it here.  The posting says the SFLC took ” the bizarre and frivolous step of filing a legal action…seeking cancellation of Conservancy’s trademark….We are surprised and sad that our former attorneys, who kindly helped our organization start in our earliest days and later excitedly endorsed us when we moved from a volunteer organization to a staffed one, would seek to invalidate our trademark.”

The SFLC’s response is here.  It describes the SFC posting as “a puff of near-apocalyptic rhetoric about us…published by SFLC’s former employees, Karen Sandler and Bradley Kuhn, who now manage the Conservancy, which was originally established and wholly funded by SFLC, and still bears our name…”

I will write up some legal analysis of this intermural dispute, right after I have taken care of more important things, like leveling up all of my characters in Disgaea 5.*

*For the benefit of those more sensible than me: the playable characters in this game are essentially unlimited, and the process of leveling them up takes essentially forever.

UPDATE: Here is some interesting additional commentary by Karl Fogel.  But I am still leveling up.

UPDATE:  Interesting article in the Register describes some background about the differing ideologies of SFC and SFLC.