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Several things: The FSF, and the SF Conservancy (which does the bulk of GPL enforcement) espouse Community-Oriented GPL Enforcement[1]. The goal of Community-

Several things: The FSF, and the SF Conservancy (which does the bulk of GPL enforcement) espouse Community-Oriented GPL Enforcement[1]. The goal of Community-Oriented Enforcement is compliance, not punishment. [1]: https://www.fsf.org/licensing/enforcement-principles https://www.fsf.org/licensing/enforcement-principles McHardy wasn't seeking compliance. He was saying "Your license to my portions of the kernel was automatically revoked when you did X. Pay me damages." This could arguably work as a deterrent, but it does nothing to fix the current violation. Additionally, a problem with the GPLv2 is that it is automatically revoked upon violation, and has no reinstatement clauses. If a company violates the GPLv2, and then the SF Conservancy enforces the GPL against them, after it's all worked out, the SF Conservancy can reinstate the license to the portion of the code that the SF Conservancy owns or represents the owners of, but there's still quite a bit of code for which the infringer technically hasn't had its license reinstated for. Even after working everything out with the SF Conservancy, McHardy could say "Ok, but they didn't reinstate your license to the portion of the code that I own. You're infringing on my copyright, pay me damages."

forapurpose 9y ago
Thanks; that's very informative. > The goal of Community-Oriented Enforcement is compliance, not punishment. Is there some record of the debate, if any, that led to this policy? Clearly, financial costs are a deterrent that leads to compliance. Many laws, regulations, and contracts achieve compliance in this manner. That doesn't make the FSF's position wrong, but I wonder how they reached it. The FSF agrees, to an extent: https://www.fsf.org/licensing/enforcement-principles https://www.fsf.org/licensing/enforcement-principles Community-oriented enforcement must never prioritize financial gain. Financial penalties are a legitimate tool to achieve compliance when used judiciously. Logically, if the only penalty for violation is simply compliance with the original rules, bad actors will just wait for an enforcement action before even reading the GPL. That social model for copyleft and its enforcement is untenable and unsustainable. An enforcement system without a financial penalty favors bad actors over good ones, since the latter bear the minimal (but non-trivial) staffing cost of compliant distribution while the former avoid it ...
- afarrell 9y ago
  > deterrent that leads to compliance Note about general principles: a deterrent needs more than pain to ensure compliance. * There also needs to be a clear path to compliance. If the subject of a rule isn’t capable of complying, they won’t comply. * Knowledge about the possibility of violation & penalty needs to be available to the subject. * There needs to be consistency in what will ensure compliance. Otherwise, the subject is better off taking out insurance, raising their prices, and accepting fines as a cost of business. Or getting out of the situation entirely. ————————- There is a story from somewhere (possibly the warring states period of pre-Han China?) of a general who was late returning from an engagement. General: “what is the punishment for lateness?” Aide: “death.” General: “and and what is the penalty for mutiny?” Aide: “also death.” General: “Well, I suppose mutiny gives us a chance of survival. Summon the captains.”
  - forapurpose 9y ago
    Excellent points, and great story. Thanks.
  - ubernostrum 9y ago
    The possibly-apocryphal story of the first Han ruler, Emperor Gaozu (pre-regnal name Liu Bang), is that he was overseeing the transport of convicts when some escaped. Since the penalty for allowing an escape was death, he released all of the convicts, went into the mountains and became the leader of an outlaw group which came out on top after the fall of the Qin dynasty. https://en.wikipedia.org/wiki/Emperor_Gaozu_of_Han https://en.wikipedia.org/wiki/Emperor_Gaozu_of_Han
cup-of-tea 9y ago
So, in fact, there's no real way to "fix" the violation for a project like Linux. It could be done with FSF projects because they own the copyright too. But for Linux it would seem the only way to enforce compliance is to make people aware that their licence will be lost forever, and the only way to make them care about that is the threat of legal action from any one of thousands of developers. Otherwise how else will compliance for Linux be enforced?

forapurpose 9y ago

Thanks; that's very informative. > The goal of Community-Oriented Enforcement is compliance, not punishment. Is there some record of the debate, if any, that led to this policy? Clearly, financial costs are a deterrent that leads to compliance. Many laws, regulations, and contracts achieve compliance in this manner. That doesn't make the FSF's position wrong, but I wonder how they reached it. The FSF agrees, to an extent: https://www.fsf.org/licensing/enforcement-principles https://www.fsf.org/licensing/enforcement-principles Community-oriented enforcement must never prioritize financial gain. Financial penalties are a legitimate tool to achieve compliance when used judiciously. Logically, if the only penalty for violation is simply compliance with the original rules, bad actors will just wait for an enforcement action before even reading the GPL. That social model for copyleft and its enforcement is untenable and unsustainable. An enforcement system without a financial penalty favors bad actors over good ones, since the latter bear the minimal (but non-trivial) staffing cost of compliant distribution while the former avoid it ...

afarrell 9y ago
> deterrent that leads to compliance Note about general principles: a deterrent needs more than pain to ensure compliance. * There also needs to be a clear path to compliance. If the subject of a rule isn’t capable of complying, they won’t comply. * Knowledge about the possibility of violation & penalty needs to be available to the subject. * There needs to be consistency in what will ensure compliance. Otherwise, the subject is better off taking out insurance, raising their prices, and accepting fines as a cost of business. Or getting out of the situation entirely. ————————- There is a story from somewhere (possibly the warring states period of pre-Han China?) of a general who was late returning from an engagement. General: “what is the punishment for lateness?” Aide: “death.” General: “and and what is the penalty for mutiny?” Aide: “also death.” General: “Well, I suppose mutiny gives us a chance of survival. Summon the captains.”
- forapurpose 9y ago
  Excellent points, and great story. Thanks.
- ubernostrum 9y ago
  The possibly-apocryphal story of the first Han ruler, Emperor Gaozu (pre-regnal name Liu Bang), is that he was overseeing the transport of convicts when some escaped. Since the penalty for allowing an escape was death, he released all of the convicts, went into the mountains and became the leader of an outlaw group which came out on top after the fall of the Qin dynasty. https://en.wikipedia.org/wiki/Emperor_Gaozu_of_Han https://en.wikipedia.org/wiki/Emperor_Gaozu_of_Han

cup-of-tea 9y ago

So, in fact, there's no real way to "fix" the violation for a project like Linux. It could be done with FSF projects because they own the copyright too. But for Linux it would seem the only way to enforce compliance is to make people aware that their licence will be lost forever, and the only way to make them care about that is the threat of legal action from any one of thousands of developers. Otherwise how else will compliance for Linux be enforced?