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Re: Licensing question about the BSD

From: Alexander Terekhov
Subject: Re: Licensing question about the BSD
Date: Sun, 07 Aug 2005 01:14:38 +0200

Alexander Terekhov wrote:

I like this:


Some of Welte's targets have complied voluntarily, but one suspects that 
is because they were simply unaware of the problem. Welte apparently has 
no authority to enforce these copyrights. These actions are not really 
legal enforcement -- more the equivalent of picketing companies that use 
cheap overseas labor. It is an attempt to embarrass, not enforce.

It is also impossible to avoid observing that Welte often proceeds 
without the benefit of legal analysis. For instance, he targeted AOpen, 
which responded, that he "should have directed that letter to their 
Taiwanese mother company, since the products that I claim are in 
violation of the GPL are not sold in Germany. They don't get it. Its 
their problem if they don't comply with the license. Its they who are 
liable for copyright infringement. I don't care which particular 
subsidiary of a multinational corportation [sic] is responsible. It is 
in the best mutual interest of any subsidiary to assure that they comply 
with license conditions."

Actually, AOpen's point was probably that there was no action under 
German law because lack of an infringing product in Germany meant it was 
not within German jurisdiction. But, it so happened, that AOpen was 
actually compliant, having offered the source code on a German Web site, 
as Welte later noted in his blog. Nevermind.

This kind of stuff gives lawyers the willies, on the one hand. Lay 
commentators who post on blogs or bulletin boards about open source legal 
issues without the benefit of legal reasoning are a dime a dozen, but at 
least they don't usually sue people. On the other hand, who would you 
rather be sued by: Welte or the FSF? Given that most of Welte's complaints 
would fail in the U.S. on procedural grounds that would allow a defendant 
to jettison the case quickly, he is my plaintiff of choice. 

Other enforcement of the GPL has been of less note. The MySQL case, which 
is the only lawsuit ever filed in the U.S. regarding GPL code, was 
disposed of on unrelated grounds. The FSF has conducted regular informal 
enforcement, but none has garnered quite the press of the Linksys matter. 
In 2002, the FSF engaged in a GPL enforcement action against OpenTV, a San 
Francisco company that ships a set-top box containing Linux. According to 
Forbes, OpenTV ended up paying the FSF $65,000. But OpenTV also reportedly 
complied by making available the requested code, so the purpose of the 
payment is unclear. The FSF's stated mission is not to demand money 
damages for GPL violations.

Meanwhile, we are all waiting for the other shoe to drop. And while rumors 
occasionally circulate that lawsuits will be filed -- as in the case of 
OpenTV -- there is a big difference between making threats and filing 
lawsuits. So, get used to standing on one foot, while legend of Linksys 
lives on.



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