Re: [tlug] GPL and Linux in Dvico Tivx

[Edward Middleton <edwardmiddleton@example.com>]

On Fri, 2005-12-16 at 14:36 +0900, Stephen J. Turnbull wrote:
> >>>>> "Edward" == Edward Middleton <edwardmiddleton@example.com> writes:
> 
>     Edward> As you said "whether he did or not is not really the
>     Edward> question", the Linux kernel is not owned by Linus (he is
>     Edward> one of many copyright holders), It is covered by the GPL,
> 
> No, it's covered by whatever license the copyright holders have agreed
> to.  It's harder to prove in court, but a verbal contract is every bit
> as much a contract as a written one.  Remember, at one time Linus did
> have 100% interest in the kernel, and as I recall he did not back down
> when rms challenged him on his "interpretation" of the GPL.  So he
> could argue that his intent was well-known, that such modules are
> distributed in practice, and therefore there was an implicit rider to
> the GPL.  It probably would not stand up in court, at least to the
> extent that irate copyright holders could enforce withdrawal of their
> code from the kernel.  But it might be enough for him to avoid any
> damages.

It is not Linus who has to prove anything in court because he hasn't
tried to change the License, it is and has always been GPL.  It is
developers of proprietary drivers that have to prove it is really
licensed under a LGPL license.
 
>     Edward> if Linus wants to change the copyright, he would, like
>     Edward> anyone else, have to get the permission of all
>     Edward> contributing parties or remove their contributions.
> 
> Or he can do what he wants, wait until somebody complains, and accept
> the risk of damages.  For example, Wikipedia unilaterally relicensed
> its entire content.  The Emacswiki has also done that.

Yes, you are right, he could blatantly infringe the copyright of a
substantial developer base by changing their copyright notices.  But
then we were talking about legal means of effecting a copyright change.

>     Edward> Unless you are suggesting this has happened the rest is
>     Edward> moot.
> 
> I believe that in fact that has happened, implicitly.  I already said
> that Linus was pretty sloppy about the legalities.  It wasn't until
> the SCO case that he even started to consider an assignment policy.
What exactly do you mean by and "assignment policy".

> Do you claim that companies do not distribute proprietary drivers for
> Linux as binary modules without source?  I don't know of any offhand,
> but I'm willing to bet it would not be hard to find them.  In
> particular, I believe that many video drivers require proprietary
> kernel modules (or at least they did back in the day).
Flamebait?

>     Edward> If what you are saying were true then most cases of
>     Edward> software infringement would be tried under US law.
> 
> More cases _are_ tried under U.S. law than under any other.  :-)
Are more cases of copyright infringement in states outside the US tried
under U.S. law That is surprising.  Could you show some evidence to
support this claim.

> However, you're missing an important point, which is that the remedies
> if you win in a U.S. court are limited to what the U.S. can enforce.
> If a company has no presence in the U.S., damages can be awarded but
> (usually) not enforced.
Well I guess we are getting into international law and weather the US
has jurisdiction to make rulings over copyright infringement in foreign
countries.  I guess your conclusion that damages that are awarded in
such cases are "(usually) not enforced" is an admission that foreign
countries don't usually recognise US jurisdiction in such cases.

> Thus a plaintiff may have no choice but to choose a different venue to
> get satisfaction.
Which is the same as saying that in general U.S. law is not recognised
as having jurisdiction over copyright infringement in foreign countries.

> However, if Dvico has a substantial US presence, AFAIK they can be
> sued for the _worldwide_ damages, and if their US business is worth
> enough, those damages awarded and enforced by a US court.
But they only have jurisdiction to charge Dmitri because he was
distributing material in the US.

> Cf. the Dmitri Sklyarov case, where Adobe had to wait until he came
> to the U.S. to nab him.  And that was a criminal complaint.
> (Unjustified, of course, but while sub judice it gave the
> U.S. authorities more power of enforcement than a civil case would.)

-- 
Edward Middleton <edwardmiddleton@example.com>