
Report from the Geniatech vs. McHardy GPL violation court hearing - kiyanwang
http://laforge.gnumonks.org/blog/20180307-mchardy-gpl/
======
anilgulecha
I see both:

> I believe individual developers who have contributed to the Linux kernel
> should have the right to enforce the license, if needed.

and then..

> On the other hand, such activities must always be oriented to compliance,
> and compliance only. Collecting huge amounts of contractual penalties is
> questionable.

To wit, isn't this a dichotomy? Either you make compliance mandatory, or
optional. Can you have both of the above? How can you enforce without a threat
of penalty?

~~~
larkeith
Monetary penalties should be used only as a threat, for example in cases where
entities are unwilling to come into compliance, rather than a goal; My
understanding is that McHardy is doing something much more equitable to patent
trolling, attempting to obtain large payouts for past violations, whereas the
preferred methodologies would be to pursue legal penalty against contract
violations only in cases where prior requests and legal actions have failed to
cause a noncompliant entity to fall into line.

------
wiz21c
Damn, the report is super well written (I dunno if it reflects the facts
though). The copyright claims analysis is really good. A must read.

~~~
consp
I was more surprised by the maybe no-so-noble motives of the accuser and
summarized court ruling on the injunction. The conclusions though, as you
mentioned, are a definite goto for all involved in OS software.

~~~
AstralStorm
It still means the company is supposed to comply. But then, who has the right
to terminate the license if noncompliance is found? It seems that the court
sided that each author can only terminate the licence on the pieces of code
they worked on. This ruling will make enforcing it on Linux kernel require
community action.

Instead of invoking par. 4 as the termination clause, McHardy tried to
unilaterally revoke the licence which is not allowed by GPLv2.

------
belorn
The more I think about it, the legal distinction between editing author and
co-author seems very dangerous. With more than 15.000 developers, having one
case for each developer and establishing exactly what lines and changes they
personally added and from there how the defendant used those lines and what
damages the plaintiff should get seems like a unrealistic amount of work and
weight put on the legal system. It would force every copyright case involving
large project to be made into class action law suits, which is not an option
in Germany.

A lot of recent (last 10 years) in FOSS legal discussion seems to have
concluded that personal copyright is the best practice. Every developer with
substantially contribution can defend the project in their local legal system.
This case seems to imply that we should abandon this practice and return to
copyright assignment so that a single legal entity can claim in court to be
the legal owner of the complete work.

~~~
zaarn
Having a CLA/Copyright Assignment is IMO a bad choice, it might lead to less
contributions to a project on part of developers not wanting to sign a CLA.

I think despite some drawbacks, the "everyone has their own" model is still
better but needs some fixes. Probably in form of binding Contributor
Guidelines.

~~~
jsmthrowaway
ASF has a CLA for every single project, and seems to be doing alright. It also
seems like what you call “binding Contributor Guidelines” is basically a CLA.

------
bluesign
From what I read court seems to ignore GPL license in this perspective, and
totally based decision on copyright law.

~~~
rostigerpudel
In a way, yes. You can only assert the GPL is you are the copyright owner of a
work. The court first had to test whether McHardy can actually claim copyright
as he did (for the whole Linux kernel) and found that he cannot according to
copyright law.

In short: The license only governs the rights you give others relating to what
you own. You cannot give (or revoke) a license for things you do not own.

~~~
bluesign
One part kinda confuses me, the article sounds like, Linus Torvalds is the
author of the linux and all other contributors are ‘editors’. Do you think
this means for example Linus can claim copyright ownership on the whole?

Edit: I mean even there is minimal contribution left from Linus in kernel, if
he was the plaintiff here, would result be different?

~~~
rostigerpudel
I'm not familiar with the details of copyright law. But I would think that
Linus has contributions in all part of the kernel. It should be possible for
him to claim copyright ownership on all of these part, effectively making it
impossible for anyone to legitimately use any of those parts of the kernel
against his will. Since that probably (!) also means some essential core
parts, I would consider that nobody legitimately uses Linux against Linus's
will.

He still cannot claim copyright ownership of the whole though, since he did
not create _everything_ in the kernel. Commits from other authors still have
their own copyright.

~~~
lolc
> I would consider that nobody legitimately uses Linux against Linus's will.

It's Free Software. As long as you adhere to the GPL2, you don't need to take
Linus' will in consideration. It's nice if you do, but he can't take back the
licence. If he could, it wouldn't be Free Software.

------
RcouF1uZ4gsC
It's because of this potential drama with the GPL that Apple went to the
trouble of investing in LLVM/Clang as a GCC replacement. Also, Google is
working on Fuchsia which is an OS without GPL.

Companies are explicitly trying to make software with different licenses for
stuff they actually sell/give to consumers. I would not be surprised if in 10
years, the only major software with GPL used by large companies is all on
servers where they are basically no compliance issues.

~~~
cityroasted
Actually, GCC (and other GNU projects) require explicit copyright assignment,
avoiding this particular flavor of drama.

------
crististm
Apparently, everyone that has not pursued the idea of benefiting monetarily
from the GPL non-compliance is blaming Patrick McHardy for doing so.

What is appalling is that the same people that missed the "opportunity" claim
that he should have donated the money to a good cause/community/Linux
foundation etc.

Of course he did it for the money! To think that he did it for the "good of
the community", whatever that is, is simply naive. He saw an opportunity and
if there was compliance as a side-product even better.

How about not considering yourself morally superior because he was in for the
money and you were not invited to the party?

~~~
tptacek
I think the idea is that people are morally superior to McHardy because they
haven't exploited technicalities to coerce people who were attempting good-
faith compliance into giving them cash, since the overwhelming majority of the
kernel development team prefers to secure compliance over cash disbursements.

~~~
crististm
> ... because they haven't exploited technicalities to coerce people ...

I like this idea a lot.

McHardy's action is (quite) less commendable than one which would have
resulted in him not benefiting directly from the legal loopholes. He is to
take the backlash but probably assumed it.

However I don't think the non-action of the rest of people stems from the
"moral superiority" but from the lack of inclination or time to assume the
fight for GPL compliance without monetary gains.

