Re: The SFLC dismissals should be coming soon

[Hyman Rosen]

On 2/18/2010 4:30 PM, RJack wrote:
> Your links lead back to an old Actiontec site -- not Verizon.

What does "old" mean? Alexander's beloved page,
<http://www2.verizon.net/micro/actiontec/actiontec.asp>,
links to
<http://download.verizon.net/webdownload/firmware/upgrades/actiontec%20gateway/4.0.16.1.56.0.10.7-MI424WR.rmt>.
On Verizon's page
<http://www22.verizon.com/ResidentialHelp/FiOSInternet/Networking/Troubleshooting/QuestionsOne/124346.htm>
we see a link for firmware source "MI424WR - FW: 4.0.16.1.56.0.10.11.6".
On Actiontec's page, <http://opensource.actiontec.com/>, we see
MI424WR (Rev. A, C or D)
MI424WR - FW: 4.0.16.1.56.0.10.7
MI424WR - FW: 4.0.16.1.56.0.10.11.6

Both companies are working together, Actiontec making the FiOS
routers for Verizon, and both are supplying GPLed sources for
the binaries they ship.

> Verizon received a voluntary dismissal *with prejudice* from the SFLC

The SFLC dismissed its case once the two sides settled.
Dismissing with prejudice is routine in settlements, to
prevent the plaintiffs from reopening a settled case.

> couldn't give a rat's ass less about the SFLC *or* the GPL. I doubt
> anyone at Verizon knows who the SFLC is or what the GPL is.

The persons at Verizon responsible for these pages on their site,
<http://www22.verizon.com/ResidentialHelp/FiOSInternet/Networking/Troubleshooting/QuestionsOne/124346.htm>
<http://www22.verizon.com/residentialhelp/fiosinternet/networking/setup/questionstwo/98768.htm>
<http://www22.verizon.com/residentialhelp/fiosinternet/networking/setup/questionstwo/98770.htm>
know about the GPL, since these pages reference it. So do the
people who wrote this manual,
<http://support.actiontec.com/doc_files/MI424WR_Rev._ACD_User_Manual_4.0.16.1.56.0.10.11.3_v6.pdf>,
since it is Verizon-branded and mentions the GPL.

But insisting that the obvious is illusory is par for
the course for a crank.

> No defendant ever cares about an SFLC lawsuit because any lawsuit filed
> by the SFLC is subsequently followed by a plaintiff's voluntary
> dismissal.

After each case filed by the SFLC ended, the defendants came into
compliance with the GPL.

> There is a *verifiable* factual cause and effect here. One
> hundred percent of the time, the *verifiable* court records reflect a
> complaint filed then no further legal action that is subsequently
> followed by voluntary dismissal and no settlement agreement. Defendants
> know the SFLC lawsuit is all-blow-and-no-go designed to stimulate public
> donations to SFLC staff salaries.

After each case filed by the SFLC ended, the defendants came into
compliance with the GPL. Since the only goal of the SFLC lawsuits
is for the defendants to comply with the GPL, and since after each
case the defendants comply with the GPL, the goals of the lawsuit
are accomplished. Accomplishment of goals constitutes success.

> All this collateral spin about compliance certainly deflects the focus
> away from the fact that the GPL is preempted by the Copyright Act and
> unenforceable as a contract.

Preemption is irrelevant to the GPL, since the GPL deals only with
normal federal copyright law. It is not enforceable as a contract,
since it is a voluntary license. However, copyright infringement is
enforceable, because there is no other way for GPLed code to be
copied and distributed.

> Professor Robert P. Merges of the Berkeley Law School has noted this
> fact in his treatise "The End of Friction? Property Rights and Contract
> in the 'Newtonian' World of On-Line Commerce" (12 Berkeley Tech. L.J.
> 115). He describes the GPL license as legally unenforceable restrictions
> on digital works:
>
> ---------------------------------------------------------------------------
> "One prominent organization, the Free Software Foundation, promotes this
> norm today through the institution of "copyleft," a copyright license
> that requires transferees of free software to promise not to incorporate
> it in a commercial product and to pass it on, even if embedded in a
> larger program, to others free of use restrictions.46

The GPL does not require anyone to promise anything, does not
disallow inclusion into commercial software, and does not require
anyone to pass anything on. It requires only that covered software
be distributed only under its terms, and that when incorporated
into certain types of collective works, that those works as a
whole be distributed that way.

> By its own terms, the copyleft agreement is an unusual license; at the
> most basic level consider the problem of determining damages when the
> licensee frustrates the licensor's expectation of zero profits under the
> contract.

The JMRI appeals court already covered this subject. Damages
need not be monetary in nature. Copyright law already provides
for statutory damages, and in any case the infringing party can
be enjoined from continuing the infringement.

> But what is most significant about the agreement is that it
> purports to restrict subsequent transferees who receive software from a
> licensee, presumably even if the licensee fails to attach a copy of the
> agreement. As this new transferee is not in privity with the original
> copyleft licensor, the stipulation seems unenforceable."

What can the subsequent transferee do without a license?
He may pass his copy on, but otherwise is prevented by
copyright law from making copies and distributing them.
There is nothing that needs to be enforced here except
for copyright law.