How not to handle a licensing violation

Posted Apr 11, 2007 22:40 UTC (Wed) by k8to (guest, #15413)
Parent article: How not to handle a licensing violation

There's no particular problem to my thinking of starting with the GPL code and rewriting it until the original is gone. There's no particular problem with doing this among multiple OpenBSD developers in collaberation in a source repository.

The problem is that the source repository is public, and so was essentially made available to the public in an ongoing fashion. This is where the license is being trammaled upon, and is also a clear and present risk to the public in that they are at risk for acquiring and incorporating tainted code under false pretenses.

In this situation, I cannot criticize the choice of bringing the problem to the attention of the public immediately. In the usual GPL situations, the problem is that binaries are being provided without source, or that code is being linked in a manner which is not license-compatable. Neither of these situations will lead to further legal problem if they are addressed at a measured and diplomatic pace in private. This particular problem _did_ represent the real possibility of the creation of additional legal problems for any number of third parties in a present manner.

Thus the communication of the problem in the manner it was communicated was reasonable. There was no error.

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How not to handle a licensing violation

Posted Apr 12, 2007 3:07 UTC (Thu) by njs (subscriber, #40338) [Link] (3 responses)

>There's no particular problem to my thinking of starting with the GPL code and rewriting it until the original is gone.

There are multiple theories on this. The situation you propose is likely okay as a matter of law (it would probably depend on the similarity between the original and the rewritten version), and that's enough for some people. Other people get understandably put off by those words "likely" and "probably", so they only accept code that was built in a fully clean-room fashion. Most commonly one is worried about contamination from proprietary code, but contamination from GPL code would work exactly the same way.

I am pretty sure that the OpenBSD developers fall, as a rule, into the more-cautious second group.

How not to handle a licensing violation

Posted Apr 12, 2007 17:47 UTC (Thu) by NRArnot (subscriber, #3033) [Link] (2 responses)

> There's no particular problem to my thinking of starting with the GPL code and rewriting it until the original is gone.

IANAL but I'm pretty certain that there is a problem! The situation is very similar to the translation of a book out of one language and into another, perhaps followed by renaming all the characters and places until no words at all of the original remain (though if there is no common script or phonetics, such as Chinese to English, that can't happen anyway). A good human-language translation often requires linguistic restructuring of the order of a paragraph and not infrequently some degree of re-invention of the plot details. (For example, what to do when something arises out of a character mis-hearing one word as another, when in the target language the mis-hearing could not arise?) Regardless of such rewriting and even re-plotting, a translation is quite definitely a derived work in law.

This is why when folks are doing reverse-engineering of proprietary stuff they tend to adopy very stringent two-team "clean-room" approaches, to make sure that nothing derivative of decompiled machine code gets copied into the new project. This is of course a paranoid approach necessary where you know that the original author's lawyers are definitely out to get you if they can.

How not to handle a licensing violation

Posted Apr 13, 2007 16:39 UTC (Fri) by notamisfit (guest, #40886) [Link] (1 responses)

Just out of curiosity, does this mean that the copyright to GNU Emacs is still in the hands of James Gosling?

How not to handle a licensing violation

Posted Sep 3, 2008 20:57 UTC (Wed) by dvdeug (subscriber, #10998) [Link]

There is no "the" copyright to GNU Emacs; it's possible that James Gosling could hold some copyright to GNU Emacs. However, I believe that any court would settle a legal battle by evoking estoppel; you can't let someone publicly put that much work into a product and then after 20 years contest their right to do so. For example, Kevin McClory who worked on a film script with Ian Fleming claimed that the cinematic James Bond was a derivative work of his work, but a court said that you can't wait until the DVDs of movies made in the 60s out to press a copyright claim.

How not to handle a licensing violation

Posted Apr 12, 2007 9:05 UTC (Thu) by dark (guest, #8483) [Link]

There wouldn't have been a problem in any case if the GPL parts of the
code had been clearly marked and accompanied by their license. Then the
license could be removed once all the covered code is gone, and in the
meantime the work in progress is in compliance.

If it's the developer's intention to replace all the GPLed code
eventually, then it seems to me that clearly marking it is a necessary
step. But that didn't happen.

How not to handle a licensing violation

Posted Apr 12, 2007 13:03 UTC (Thu) by lysse (guest, #3190) [Link] (1 responses)

> Thus the communication of the problem in the manner it was communicated was reasonable. There was no error.

Does "reasonable" include an acceptance of the consequences of such an action? Because honestly, I'd have seen Theo's response coming a mile off, and almost certainly would have responded in a similar manner myself, were I in Theo's position; and the communication of the problem only remains "reasonable" if the communicators were prepared for that entirely predictable response, even if they hadn't specifically anticipated it. (If they were expecting an "oops, sorry, we'll get that sorted", the kindest thing that could be said is that they hadn't considered their audience.) The subsequent statements of those communicators indicate that they were not so prepared.

Whatever one thinks of Theo, he comes across as straightforward (to a fault), loyal, and guileless; whatever one thinks of the wisdom of his response, it comes across as entirely natural. Someone attacked one of "his people" and he went mama-bear on them.

How not to handle a licensing violation

Posted Apr 16, 2007 17:42 UTC (Mon) by tuxchick (guest, #42009) [Link]

Funny, whenever I read one of Theo's diatribes, I think "mentally
unbalanced." Not loyal, true blue, and all that. After going nuclear over
this, what's he going to do when it's something serious?