More Lessons The Pinewood Derby
Whatever, dude. We jam econo!
Summary
Have
The Courts Upheld The GPL?
The
GNUi
General Public License, or GNU Public License (GPL), is a software
license which grants users freedom to copy, freedom to modify, and
freedom to redistribute software as they please, so long as they keep
the software “free” under the same license. It is at the
core of the “free software movement”, whose believers
espouse that software, like science, best serves society by being
kept free from patents, trade secrets or copyrights.
The
purpose of this inquiry was to determine if the courts have upheld
the GPL, the so-called “copyleft” license. The answer, in
short, is a resounding yes. Courts have enforced the duties of the
GPL both domestically and abroad. Additionally, the license has
weathered attacks in the form of anti-trust claims.
This
paper details the following: There is an overview of the GPL, and an
accounting for the major parties enforcing it. There is then a
summary of major cases, both international and domestic.
The GNU General Public License
The
GNU General Public License (GPL), is used for distributing free
software. Most prominently, the GPL is the license of Linux operating
systems. The GPL is maintained by the Free Software Foundation (FSF),
a not-for profit organization with “a worldwide mission to
promote computer user freedom and to defend the rights of all
software users.” Version 1 was published in 1989. The latest
version is GPL version 3, published June 2007.
The
free software movement (including the FSF) has a limited definition
of what is “free software”. As they say, “think of
free speech, not free beer.” The following is from the FSF
website:
“Free software is
software that gives you the user the freedom to share, study and
modify it. We call this free software because the user is free.
To use free software is to
make a political and ethical choice asserting the right to learn, and
share what we learn with others. Free software has become the
foundation of a learning society where we share our knowledge in a
way that others can build upon and enjoy.
Currently, many people use
proprietary software that denies users these freedoms and benefits.
If we make a copy and give it to a friend, if we try to figure out
how the program works, if we put a copy on more than one of our own
computers in our own home, we could be caught and fined or put in
jail. That’s what’s in the fine print of the license
agreement you accept when using proprietary software.”
"Software" is any executable program that
functions on a user's computer. "Source code" is the "plain
language" code (usually a programming language, such as C++,
Java or Perl) the programmer used to create the software. Proprietary
software is distributed with only the executable program. The user is
able to run the program, but cannot see the source code.
The GPL license varies from commercial licenses in the
rights and duties it assigns. The user's rights, under the GPL,
include the following: The user has the right to modify the software.
The user is allowed to make copies and re-distribute them. The user
is allowed to sell copies. (There is no limit to what the user may
charge.) The user is entitled to these rights without restrictions
(e.g. advertising inhibitions on usage are not allowed).
Recently, Version 3 of the GPL added the user's right to
any information needed to modify the software. This was added to
prevent “Tivoization”, i.e. products being distributed
with GPL software that has been locked from changes through
compatibility issues. Early TiVo systems used GPL software, which
shipped with the source code. However, the Tivo hardware prevented
modified versions of software from running on it, thus rendering user
changes unworkable. (Hence, the term “Tivoization”.)
The GPL also grants rights to third parties: In GPL
version 2 and above, any third party who makes a written request for
the source code of the software is entitled to it.
The user has duties under the GPL. All GPL software must
be distributed with the source code. If modified software is
re-distributed, it must be under GPL. The source code for the new
software must be distributed with it. All improvements must be
released as GPL. Modified versions are not allowed to be proprietary.
And, if a program outputs part of itself (i.e. if it is a program
which creates programs), the output software must be licensed under
the GPL.
The law naturally assigns copyrights for modified
sections of code to their author. The author owns these copyrights
unless they assign or disclaim them. But, distributing under the GPL
effectively places the software in the public domain. So, by using
the GPL, the author may seem to disclaim their copyrights. However,
free software advocates encourage developers to register their
copyrights to be in a position to defend the software as free.
Several not-for-profit groups have undertaken to enforce
the license for social reasons. One group is the aforementioned FSF.
FSF founder Richard Stallman was the original author of the GPL. The
FSF is the copyright owner for GNU and other core components of the
Linux operating systems. In an effort to be in the best position to
enforce the GPL, the FSF asks developers to voluntarily assign
copyrights of modified FSF software back to the FSF. Another
advocacy group is gpl-violations.org. Founded by Harold Welt,
gpl-violations.org is a private non-profit group that litigates
reported violations of the GPL. Finally, the Software Freedom Law
Center (SFLC) is a private not-for-profit foundation started by Eben
Moglen, Law professor at Columbia University, and Daniel B. Ravicher,
its Legal Director.
In technical writing, the term “GPL” is used
as a noun for the license, as a verb describing distribution, and as
an adjective for software licensed by the GPL.
History of GPL decisions.
Early cases: German Courts uphold GPL, MySQL
injunction, and US settlements.
The first major GPL case to have judgment issued was at
a District Court in Munich, Germany in 2004.
The plaintiff was the developer of Netfilters/Iptables,
a GPL licensed software. The defendant was a German subsidiary of the
Dutch company Sitecom. Sitecom produced a Wireless network Broadband
Router, model WL-122, distributed with pre-loaded software, including
Netfilters/Iptables. The routers did not ship with source code.
Plaintiff sued for an injunction, 100,000Eu, and attorney’s
fees. The court issued the injunction. The defendant appealed. Upon
hearing, the court found for the plaintiff on May 19, 2004.
The first two widely publicized U.S. cases involving the
GPL settled out of court.
In 2002, Progress Software Corporation v. MySQL AB was
filed in US District Court in Massachusetts. Progress Software had an
agreement to non-exclusively distribute MySQL, a GPL database. Part
of their agreement was that all distribution was to be GPL. In an
early release, Progress distributed MySQL along with Gemini, a
non-GPL package. They released source code for MySQL, but not for
Gemini. MySQL filed the complaint, and moved for a preliminary
injunction, which the court granted. (Progress was not to use the
MySQL mark on any of its products or websites). However, the court
did not rule on whether Gemini was a derivative work or an
independent work under the GPL. Judge Patti Saris stated that, by the
time of the ruling, it was known that Progress had promised to
distribute Gemini under GPL, including its source code.
The second case was in Michigan in 2004. The complaint,
in Drew Technologies, Inc. v. Society of Automotive Engineers (SAE),
pertained to a software package written by Drew Technologies and
distributed under the GPL. The SAE claimed a copyright on the
software, since its operations were based on information contained
within their standards. SAE then attempted to charge Drew
Technologies for usage of the software. When the SAE begin
distributing the software and attempted to charge Drew Technologies
usage fees, Drew filed a complaint alleging violation of the GPL and
damages. The case settled, with SAE paying Drew $75,000. (Drew
Technologies, in turn, donated half of the money to the SAE as a
charitable contribution.) Free software advocates claimed that by not
immediately granting the copyright to the SAE, the court implied
recognition of the GPL.
German Cases: gpl-violations.org and D-Link.
GPL-violations.org filed against hardware manufacturer
D-link in a District Court in Frankfurt, Germany, in late 2006.
Plaintiff asked for judgment in support of the GPL requirements and
for reimbursement for out of court enforcement expenses. D-Link
Germany GmbH (D-link) distributed a network storage device that used
a Linux-based operating system. It included the Linux kernel and
other GPL software. The device was distributed without the source
code. D-link signed a cease and desist statement, but refused to pay
the reimbursements, arguing that the GPL was not legally binding.
Gpl-violations.org argued that the license was binding based on the
earlier Munich court decision. In its decision, the Frankfurt
District Court held that gpl-violations.org indeed had rights to the
source code as a third party under the GPL, and ordered D-link to
reimburse expenses for purchasing, re-engineering, and out of court
legal expenses associated with enforcement. A reduced amount were
awarded to gpl-violations.org, as the court considered their asking
amount too high.
US Court of Appeals: Daniel Wallace v. IBM et.all.
In May of 2005, a case filed in the US courts gained an
appellate decision regarding the GPL.
Daniel Wallace filed a complaint in US District Court in
Southern Indiana against IBM, Novell, Red Hat Software, Inc, and the
FSF. Wallace alleged the defendants had conspired in “a
copyright licensing scheme employing the GNU general public license
to fix the prices of computer programs." Wallace claimed that
setting the prices of operating systems to $0 excluded new
competitors from entering the field. The defendants moved for
dismissal, which the District Court granted, noting that Wallace had
not suffered antitrust injury. Wallace appealed, and the US Court of
Appeals, Seventh Circuit, heard the case.
For the Court of Appeals, the issue was whether the GPL
violates federal antitrust law. The court upheld the District Court's
dismissal. In their holding, they reasoned that since the GPL ensures
the software will remain free forever, it couldn’t be used for
antitrust injury. Predatory pricing occurs in three stages: low
prices, exit of producers that cannot make a profit, and monopoly
pricing. Since the GPL set prices to $0 forever, it cannot be used
for monopoly pricing.
German Cases: gpl-violations.org cases: Skype, and
the Skype Appeal.
In July 2007, gpl-violations.org filed against Skype in
German District Court. The Skype WSKP100 phone was sold with GPL
software, without giving users access to the source code. The court
found for gpl-violations.org, and Skype agreed to include a flier in
the phone package with a web link to the source code.
Gpl-violations.org did not accept the flier as compliance to the GPL.
Skype appealed the decision to the German Appellate courts, based on
German anti-trust laws. (The argument was similar to the Wallace
case.) The Appellate Court dismissed Skype’s appeal in 2008.
Skype ultimately reached an agreement for GPL compliance with
gpl-violations.org.
US Enforcement: SFLC and Busybox
The Software Freedom Legal Center (SFLC) has
successfully filed and settled a number of GPL violation inquiries.
They represent the program BusyBox, originally written by Erik
Anderson and Rob Landley. BusyBox is a package of programs that are
core to the Linux operating system. BusyBox is contained by nearly
every usable version of Linux, from simple cell phone firmware to
complicated servers operating systems.
The SFLC has initiated lawsuits in three rounds against
companies distributing BusyBox without source code. All suits have
been filed in the US District Court for the Southern District of New
York.
In September 2007, the SFLC filed Erik Anderson and Rob
Landley v. Monsoon Media, a manufacturer of mobile devices and
consumer electronics. The complaint accused Monsoon Multimedia of
distributing BusyBox on several products without source code. The
case was settled in October 2007. Monsoon announced they would come
into compliance with the GPL and would ensure future compliance. An
undisclosed financial settlement was also included.
In November 2007, the SFLC filed against Xterasys
Corporation. Xterasys Settled out of court. Xterasys agreed to GPL
compliance in its products, and to an undisclosed financial
settlement. The SFLC filed against High Gain Antennas, LLC. High Gain
Antennas settled out of court in a similar agreement.
In December 2007, the SFLC filed Erik Anderson and Rob
Landley v. Verizon. Verizon, and their vendor, Actiontec Electronics,
settled out of court in a similar agreement.
In June 2008, the SFLC filed Erik Anderson and Rob
Landley v. Bell Microproducts Inc and Erik Anderson and Rob Landley
v. Super Micro Computer, Inc. In July 2008, the SFLC filed Erik
Anderson and Rob Landley v. Extreme Action Networks, Inc. The Bell
Microproducts case is settled. The other two cases are currently
unresolved.
1.
Articles:
Bruce
Bryfield, "Settlement Reached in Busybox-Monsoon GPL Case",
Linux.com, http://www.linux.com/feature/120629, Accessed 12-3-08
Drew
Wilson, "Skype Violated the GPL - German Appeals Court",
ZeroPad.com,
http://www.zeropaid.com/news/9485/Skype+Violated+the+GPL+-+German+Appeals+Court,
Accessed 12-3-08
Enterprise
OpenSource magazine, "Wallace's Anti-GPL Suite Looses Again",
Enterprise OpenSource magazine,
http://opensource.sys-con.com/node/224798, Accessed 12-3-08
Free
Software Foundation, "The GPL tested in US courts - Wallace Vs
FSF", Free Software Foundation,
http://www.fsf.org/news/wallace-vs-fsf, Accessed 12-3-08
gpl-violations.org,
"About the gpl-violations.org project", gpl-violations.org,
http://gpl-violations.org/about.html#whois, Accessed 12-3-08
gpl-violations.org,
"Gpl-violations.org project prevails in court case on GPL
violation by D-Link", gpl-violations.org,
http://svn.gnumonks.org/trunk/gpl-violations.org/homepage/xml/news/20060922-dlink-judgement_frankfurt.xml
Accessed
12-3-08
Laura
A Majerus, FENWICK & WEST LLP, "Court Evaluates Meaning of
"Derivitive Work" in an Open Source Liscence",
http://library.findlaw.com/2003/Jun/16/132811.html, Accessed 12-3-08
Peter
Judge, "Skype agrees to obey GPL", ZDNet.co.uk,
http://news.zdnet.co.uk/software/0,1000000121,39413764,00.htm,
Accessed 12-3-08
Peter
Judge, "German court convicts Skype of GPL breach",
ZDNet.co.uk,
http://news.zdnet.co.uk/software/0,1000000121,39288211,00.htm?r=1,
Accessed 12-3-08
Software
Freedom Legal Center, "BusyBox Developers and Xterasys
Corporation agree to settle GPL lawsuit", Software Freedom Legal
Center Press Release,
http://www.softwarefreedom.org/news/2007/dec/17/busybox-xterasys-settlement/,
Accessed 12-3-08
Software
Freedom Legal Center, "BusyBox Developers and High-Gain Antennas
Agree to Dismiss GPL Lawsuit", Software Freedom Legal Center
Press Release,
http://www.softwarefreedom.org/news/2008/mar/06/busybox-hga/,
Accessed 12-3-08
Software
Freedom Legal Center, "Verizon Settles Open Source Software
Lawsuit", Paul McDougal, InformationWeek.com,
http://www.informationweek.com/news/software/linux/showArticle.jhtml?articleID=206904096,
Accessed 12-3-08
2.
Complaints:
"Complaint",
United States District Court Southern District Of New York,"Erik
Andersen And Rob Landley V. Monsoon Multimedia, Inc",
Http://Www.Softwarefreedom.Org/News/2007/Sep/20/Busybox/Complaint.Pdf
3.
Court Opinions:
United
States Court Of Appeals For The Seventh Circuit, "Wallace V.
International Business Machines Corporation; Red Hat, Inc.; And
Novell, Inc.", No. 1:05-Cv-678 Rly-Vss,
Http://Www.Internetcases.Com/Library/Cases/2006-11-09_Wallace_V_Ibm.Pdf
United
States District Court District Of Massachusetts, "Progress
Software Corporation, Et Al., V. Mysql Ab, Et Al.", Civil Action
No. 01-11031-Pbs,
Http://Pacer.Mad.Uscourts.Gov/Dc/Opinions/Saris/Pdf/Progress%20software.Pdf
6th
Civil Panel Of The District Court Of Frankfurt Am Main, "Harald
Welte Vs.Deutschland Gmbh", Docket Number 2-6 0 224/06,
Http://Www.Jbb.De/Judgment_Dc_Frankfurt_Gpl.Pdf
i
GNU is pronounced “ga-new”. The letters of GNU are a
recursive acronym. GNU stands for GNU’s Not Unix, where
the G stands for GNU, which stands for GNU’s Not Unix, where
the G stands for GNU, which stands for GNU’s Not Unix…..
you get the idea.
1
Please take a stand on this financial crisis.
An illustration: Let’s say that some beach-bum, surfed-out, pot-smoking loser asked me to borrow $1,000. He looks honest, as far as pot-smoking losers go, so I give it to him. Six months later, I go to his dirty apartment to ask for a payment. And, his response is “Whoa, man. Have we met before?”
Now, who is at fault here? Is the pot-smoking loser at fault for borrowing my $1,000, knowing that he wouldn’t be able to pay me back? Sure, he is. But, he’s also a pot-smoking loser. And, I knew that when I gave him the money. So, shame on me.
My point is this: bad loans are primarily the responsibility of the lender.
And, bad loans - after all the repackaging, CDOs, swaps, and security bundling – are at the heart of this crisis. Shame on the lenders!
Here’s a picture of the future: It’s 2020, 12 years after the mortgage loan bailout. The federal debt is still monstrous. Credit card debt, retail consumer debt, student loan debt, and new “innovative” lending (we now lend to pre-school kids as a school voucher program) have risen to astronomical levels since mortgage lending was curtailed by that nasty crisis of ‘08. A mild recession hits, triggered by a price increase in some anti-aging medication. Lending tightens, and, viola, we’re right back here. Only this time, China offers to buy out our whole banking system – with $4 trillion cash in hand– in exchange for us putting posters of Mao up in every church and having our school children chant “China is great” for five minutes a day.
The point is, responsible lending is a MUST. Moving forward, we can’t leave any gray area about responsible lending. And, as much as I’d like to think lenders would learn their lessons here, and move forward responsibly, THEY WON’T! I came home from work yesterday, listening to the news of the bailout, and guess what I found in my mailbox? Yea. Credit Card offers. Four of ‘em.
Look, if the government needs to inject cash to shore up confidence, do it. But, I say you should GIVE THE $1,000 TO THE POT-SMOKING LOSER! Sure, he’s a loser. He smokes pot. He’s probably an idiot. But, at least he’s not an irresponsible lender.
Besides, the $1,000 borrowed by that loser has been packaged and re-packaged, and converted to CDOs ,and swapped, and securitized, and sold to the long-term asset line on the balance sheet of every company in the Fortune 500. You have to wonder if anything other than killing the bad loan at the source is going to work.
Good luck, congressman.
Travis English
This week...
What a ride.
There’s a part of me that wishes I didn't care. I’m sure that the majority of Americans have no idea what is actually happening in the financial markets. Jon Stewart called the headlines "Big numbers attack three letter acronyms!" And, frankly, most may be better for it. I, on the other hand, have a dangerous amateur interest in economics, and have followed the story as best I can, trying to understand it.
I’m sure that, two or three years from now, there will be three well written books that explain the crisis from three totally different perspectives. One will decry the lack of regulation. One will decry the greed of the financial institutions. One will decry the sheer irresponsibility of the American homebuyers who signed all these loans.
Did you know that an FBI background check is required to be a notary public? And, every new home loan has to be notarized. Doesn’t this just spell out the depth of the fraud going on behind this whole thing? Every loan written had a signing session where a person and a notary sat down for an hour and signed papers saying that all sorts of things were true. And, they weren't.
So, surly we should all place blame soundly on the greedy people who obtained huge loans that they couldn't afford for homes that were grossly overvalued.
That category, I suppose, includes me. At least, to some extent. I bought a house that was hugely overvalued. But, I can make the payments. They’re big, but I can make them. Now, if this whole thing fails to recover by 2016, I’ll have to default, too.
And, if that time comes, I’ll swallow my losses. I knew, when I signed the papers, there was risk involved.
Damn these bailouts.
I understand the whole "too big to fail" idea. The whole system is based on confidence, right? So, we have to maintain it. And, so, regardless of the actions of the banking industry, we have to save it.
I get it. Really, I do.
But, it tastes horrible.
Hopefully, in retrospect, history will conclude that the lesser evil would have been to bail out the people. Had the treasury department, three months ago, started paying on defaulting loans, they could have upheld the system's integrity for less money. And, at the end of this whole thing, years from now, all the morally reprehensible stupid people would still be living in their houses. Instead, we're spending billions bailing out the lenders. And, at the end of this whole thing, years from now, the banks will own a lot of houses. And, a lot of people will be starting over.
The way I see it, a bailout is going to happen. So, either way, the government is protecting a select group from the consequences of their actions. We're incurring the so-called economic "moral hazard". At this point, it's a question utilitarian ethics. Which bailout practice would result in the most good for the most people? In that light, I think giving money to the banks is the wrong move.
Of course, to really put it in perspective gets depressing. For 4 to 6 trillion, we could have bought ourselves a national healthcare system, bailed out social security, bolstered national education to be the best on the planet, and, with the leftovers, made a pretty good dent on solving world hunger. Instead, we got two mortgage banks and an insurance company.
Bad deal?
Setting up a really, really simple file server at my house for a grand total out of pocket cost of $0.00.
Smoked Chicken Barbeque
Two days before Jenn went into the hospital to have the baby, I smoked three chickens. The reason was to fill the refrigerator with chicken for sandwiches for the upcoming week. The cook was a success. Here are the photos and the recipe.
I started with the three foster farms chickens, which are very nice. Say what you will about factory bred animals, but its nice to have three chickens that look like exact clones of each other.
I didn't do any marinade, but rubbed the chickens down with a mixture of soy sauce and virgin olive oil in equal parts. Then I sprinkled them with black pepper and paprika and rubbed it all in. Here are the chickens before they went in the smoker.
And here is the smoker setup in my backyard. Actaully, this photo was taken much later in the day, but it does show how I set up my kitchen. From left to right, the important things are: the smoker, the meat thermometer stuck to the leg (it needs to be out of direct sunlight), a bag of charcoal, and a little table with some water and wood chips. The black gate is to keep my son out. And, in the back corner, you can see my other grille.
Now, back to the birds. I've tried the “beer-in-the-ass” variety once before, and didn't like it. Still, I know that you need to use a water pan in the smoker when you do chicken. So, I filled a water pan with water and beer (Budweiser). Here's me filling the water pan. You can see the oven thermometer that I keep in the main chamber. I try to keep the surface temperature at 300 degrees or lower.
OK, so here they are on the grille. The meat thermometer is plugged into the thickest part of the breast of the middle chicken. Surface temp is a little low right here. But, it got better.
And, here is a nice picture of the birds mid smoke. I did have to move the one on the right over to the left, because it was too close to the fire and was getting crispy. You can see the crispy part on the right leg of the left bird. Cooking surface temperature is right at 300, which reads between 225 and 230 on the face of the smoker. These guys were on the barbecue from about 1:30 PM in the afternoon until just before 5:00 PM.
I pulled them off of the grille at an internal temperature in the high 170s. So, they were done. I wrapped each bird in a few layers of foil and let them sit on the counter for about a half hour or forty minutes.
I cracked open the foil and pulled on one of the bones. It pretty much just came out.
It wouldn't really be fair to call what happened next “carving”. I actually just pulled the birds apart with my hands. I had to try hard to keep some of the wings and legs together, so they could be eaten as pieces. So, here is the final. I only pulled apart two of the three. The third chicken was still in foil and I put it in the fridge to take apart later in the week.
Tech notes: this post was created with open office writer, then uploaded to Google docs and re-directed to the blog site.
I’m really fascinated by this idea of Gödel's incompleteness theorems. Simply stated, he asserted that there are fundamental truths at the foundation of mathematics that cannot be proved.
I like the description here about the UTM machine. But, the easiest one to understand is the paradoxical “I am lying” statement.
So, even mathematics – pure logic and reason – rests on a foundation of unresonability. The simplest number system cannot be proved.
What I like about this concept is that it points to another way of arriving at truth: First, we must assume the basis of truth. Then, truth can build upon that basis.
I think this is a deal killer to the atheist debate.
If the number system of mathematics has no proof, and must be assumed, does that invalidate all of mathematics? Of course it does not. It simply means that a first assumption must be made to build on.
So, if a theist or spiritualist cannot prove the fundamental assumption of infinite intelligence or connectivity, does that invalidate all spiritual thought and discourse? Of course not.
An atheist cannot disclaim spirituality any more than I (using Godel’s theorems) can discount mathematics.
At my retreat a few weeks ago, the leader talked about atheists. Mind you, this guy spends an hour a day in prayer. He’s a very intelligent guy, a well-spoken guy, and a nice guy. But, his response to atheism was remarkably stupid. He simply said: “they have no idea how wrong there are.”
To him, who has assumed God as true, and built upon that foundation with demonstrable results throughout his life, questioning the assumption was ridiculous. It was like questioning the number system
1/28/08 (Feast of St. Thomas)
Well, the format I spelled out before worked for the first week. But, once my house filled back up with kids and wives (OK, just one), it because less manageable.
I missed a few morning sessions. In those cases, I tried to add prayer times in the afternoons. But, this format is hard to do once the day is in full swing. So, I’ve been using the rosary for afternoon or mid day prayers.
I need to give credit to the rosary army folk. I put their “scriptural rosary” pages on my blackberry, and have used them to good effect walking in the park behind my house. I also got the mp3 files of the scriptural rosary, and prayed a rosary listening to them on Sunday after church in the Marian garden.
I’d never done the mysteries as part of the rosary before a few weeks ago. Using them really changes the whole tone of the rosary prayer to a more meditative one. I think the scriptural rosary works very well for me, since there is a “prompting” before each bead.
This morning, I was able to do the 10 min reading and quiet format. But, I think I was also falling asleep a bit.