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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Alan Mackenzie
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Sun, 22 Feb 2009 15:12:30 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

In gnu.misc.discuss amicus_curious <> wrote:

> "Alan Mackenzie" <> wrote in message 
> news:gnq384$27ef$

>> You could make the same sort of argument about any "petty" peccadillo.
>> Why bother prosecuting a fare dodger for a 2 Euro fare?  Seems a bit
>> disproportionate, doesn't it?

> Do they arraign and prosecute people for this in your town?

Apparently.  It's actually easy to forget to buy a ticket, and there are
not a few people who "forget", too.  When you get caught by roving
ticket checkers, it's a 40 euro immediate penalty, and they take your
details.  The third time you're caught, you get prosecuted in court.  So
they say, and I have no reason to doubt it.  It's done as a deterrent.

>> [ .... ]

>>> I am saying, instead, that the filing of a lawsuit can only make the
>>> logical users of FOSS pause and consider whether or not they want to
>>> risk using a FOSS program or library when clowns like BusyBox are out
>>> in the wild preying on those who might make a misstep.

>> :-)  Honestly, how much effort, really, does it take for a company, no
>> matter how small, to understand the GPL (any version) and comply with it?
>> It's straightforward enough that you barely even need to consult a
>> lawyer.  You need to put a tarball of your source code up on your
>> company's website.  Half a day's work to read the GPL, understand it,
>> create the tarball and put it on the site.

>> And if, somehow, you manage to get even that wrong, you can put it right
>> on receiving that dreaded letter from the SFLC, or from the copyright
>> holders.

> How big a deal is it to just ignore it?  Even less work.

It seems to me, you're in favour of ignoring the GPL's conditions, yet
are in favour of conforming to the conditions of proprietary licenses.

>>> That is only accruing to Moglen and his cronies at the SFLC.  They get
>>> their attorney's fees paid by the victim.  That is the way the RIAA
>>> works, too, holding up the huge cost of a litigation, if lost, over the
>>> head of their prey who can escape by paying a few thousand bucks to the
>>> shysters instead. Few fight when the penalties and rewards are so
>>> lopsided.

>> I believe the RIAA doesn't give their victims the opportunity to put
>> right, at minimal cost, what the RIAA claims is wrong.  The SFLC,
>> however, does.

> Attorney's fees, etc?  How minimal is that cost, do you suppose.  That is 
> the big club with the RIAA.

With the RIAA, yes.  I believe GPL copyright holders and even the SFLC
give you a chance to put things right without demanding a lot of, or
possibly any, money.  Please correct me if I'm mistaken on this point.

>> People do change complex GPL'd applications.  So do companies.

> Name one.

The place where I was working a year ago, doing mobile telephones,
enhanced WireShark (a network packet sniffer, GPL licensed) to decode a
protocol layer which it wasn't already capable of.

>>>> So where do the lawsuits come from if nobody actually makes use of
>>>> the software in question?

>>> From the guys who have the GPL copyright, of course.  That is only
>>> BusyBox, it seems.  For example in the Actiontec suit there were about
>>> 20 GPL source packages eventually listed on the Actiontec website, but
>>> they were only sued for the BusyBox stuff.  The old idea that Stallman
>>> had about those who received software downstream needing to understand
>>> it so that they could modify it is rather passe'.  If OpenOffice or
>>> Linux doesn't work exactly the way I want, I am not going to fool
>>> around re-writing the damn thing.

>> That's fair enough.  It's probably outside your capabilities anyhow.

>>> No one does that.

>> False.  I have modified Linux, if only peripherally.  I have modified
>> several other FOSS programs slightly, and enhanced one large GPL program
>> substantially.

> What is "only peripherally"?  Sounds like a waffle to me.

Fair enough!  :-)  I enhanced my own keyboard layout so as to handle
key combinations like <ctrl>-arrow properly.  The keyboard is a

> So what did you do to enhance the large GPL program and what was the
> program and why did you do it?

The program is Emacs, and I added a working mode for the AWK language to
it.  For the last few years, I've been maintaining the modes for C, C++,
Java, etc., as well as making occasional amendments to other bits of

Why?  Because I'm an AWK user, and wanted the language handled properly.
Also the intellectual challenge of doing this was much more satisfying
than the humdrum tedious programming I do in my day job.

>>> They just complain to the manufacturer and maybe their needs are
>>> taken care of in a subsequent release, maybe not.  Who can afford to
>>> learn enough about Linux or OO or any other big program to the point
>>> where they can effectively make modifications?

>> Me.  David Kastrup, too.

As David pointed out, I am one of the "manufacturers".

> Well, maybe you are that inefficient, but I think you are just
> bluffing.

Well, thanks, and all that.  Search the Web for my name with either
"Emacs" or "CC Mode", and that should persuade you.

>>> Stallman is living in the 70s or worse.

>> Yet, somehow, the GPL remains the most popular license, by an
>> overwhelming margin.  If your notions on the GPL were accurate, it
>> would by now have dwindled to unimportance and been superseded by a
>> BSD license, or whatever.  There're no signs of that happening.

> Linux uses it, but not the latest version, apparently the copyright
> owner has some problems with that.

Linus Torvalds indeed has problems with GPL3.  So Linux has stayed with

> Apache has something else, I know.  Ditto PHP.  I'm not so sure MySQL
> is even open anymore.

I think it's dual licensed - either GPL or a proprietary license,
depending on how much support you want, or something like that.

> I don't bother with it, but Sun seems to be locking things down.
>  Anything else of importance using the GPL?

The "infrastructure" code in GNU/Linux - glibc, stuff like file handling
libraries, and other POSIX stuff, upon which all Linux programs depend.

The bash shell, and essential shell commands like ls, mv, ln, rm, xargs,
grep, find, ..... the engine that snazzy file managers use to get their
work done.

Masses of development tools - Emacs, diff, patch, grep, gcc (compiler
for several languages), gdb (debugger), ld (linker), CVS and bzr and
probably quite a few more (version control systems), ....

Quite a lot of applications, like Gimp.

>> Why do you think the GPL governs so many programs, and other free and
>> open-source licenses so few?

> I don't know that you are correct.  You wave your hands as if that is
> enough for everyone to believe you, but you are suspiciously shy of any
> detail.

Well, I don't give much detail when I say the world's round, either. ;-)
The wikipedia entry for GPL states that it is used in about 60% of free
and open source software.  As a source, it cites Black Duck Software.

If this is true, why do you think the GPL has become so prevelant, if it
has all the snags you've been asserting?

>>>>> The actions of the SDLC prove that it is only viable as a way to
>>>>> harass those who might want to take advantage of FOSS.  With that
>>>>> kind of trouble, the users will be fewer than otherwise.

>> Have you compared the sort of "hassle" a user might get from SDLC
>> with what he might get on violating some other type of license, say a
>> proprietary one from Microsoft, or Oracle, or some other major
>> software maker?

> That is very hard to do, I think.  Other than illegally copying the 
> binaries, how are you going to violate their licenses?

By using them in an emulator, or a virtual OS, or by disassembling them.
Or of course, as you say, by illicitly copying them, installing them on
too many machines, that kind of thing.

> Certainly people have made illegal copies galore and generally get away
> with the act.  If they use it commercially, though, they are often
> found out and prosecuted.  It is hardly a hassle, it is a serious
> amount of money whereas the need to post yet another copy of BusyBox is
> much more of a trivial irritation, particularly when offered as part of
> a lawsuit.

I think you're saying here, the pain you suffer on being caught
violating the GPL is much less than that from violating a proprietary
license.  I think that is correct.

Alan Mackenzie (Nuremberg, Germany).

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