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"The business risk would become too great that they might be litigated by a rival into inoperation." Only the owners of a copyright have standing to sue, so I

by hga 12y ago

"The business risk would become too great that they might be litigated by a rival into inoperation." Only the owners of a copyright have standing to sue, so I think the complete version of your concept fails unless, like in this case, the copyrights are held by many people instead of being assigned to one person or organization. I also can't imagine that a lot of companies haven't considered this risk, it hardly matters to such companies if this hasn't reached the level of a contested (vs. default) decision if they believe it could if pushed. E.g. see this: https://news.ycombinator.com/item?id=9153278 https://news.ycombinator.com/item?id=9153278 EDIT: Maybe not true for copyleft software, reported not to be true in France (see below).

ChuckMcM 12y ago
I don't disagree that only people with an ownership right in the copyright have standing, but I note that this has been worked around by a variety of means. The poster child being people like Prenda Law who used dubious techniques to get just enough copyright ownership on something (in their case porn) to sue. Also, as many have noted and some have experienced, at least in the US it is pretty easy to get sued whether or not the case has merit, and ignoring it results not in it being dismissed because of lack of standing, but a judgement against you by default. This is somewhat moot if the litigation happens in Germany of course. In contrast to camperman's comment, the copyright issue is first determined as a matter of law (its instructive to see the Groklaw archives on this with regards to SCO) and then if the copyright is valid then the question of the license comes up. And party A will say "That wasn't what I meant" and party B will say "But this is what it says" and for each of the clauses and sentences in the GPL a discussion will be had on what it says versus what it means. And finally if what it means is something that can be legally enforced[1]. A good example of that was the AT&T versus UC Regents suit over BSD where the BSD license and the AT&T Unix licenses were extensively examined. [1] You could write a shrink wrap contract that said "By opening this package you agree to give me all your future income." which is clear what it says and what it means, but you would be hard pressed find a court willing to enforce those terms with that contract.
- hga 12y ago
  Except, of course, Prenda Law didn't get around copyright law, but their case is exceptional and I don't think it, or what you've correctly pointed out about how in the US it is easy to get sued, demonstrates much beyond the advantages of loser pays law systems (as I understand it, all of the world but the US). A better one, that I'm a lot more familiar with, is Stephens Media, their property the Las Vegas Review-Journal, and https://en.wikipedia.org/wiki/Righthaven https://en.wikipedia.org/wiki/Righthaven which produced a Federal District Court decision that in order to sue, one must actually own the copyright. But if you're just worried about the prospect of being sued, none of this matters as you point out. New SCO dragged our corner of the world through a huge, long and expensive drama about code that they never had the copyright to, and knew in advance they didn't. Which means that risk exists for any code you don't write yourself.... I'm not sure the SCO case shows the progression you cite. As far as I can remember, everyone assumed SCO had the copyright, there was lots of litigation based on that, and it took years for the case(s) to wander around until in rather a big surprise we learned they didn't. Of course, to continue the theme of "(too) easy to get sued", there should have been severe sanctions levied on the parties responsible for that fraud, which somehow never seems to happen in the US.
  - spacemanmatt 12y ago
    Who kept propping up SCO to draw out that legal battle for so long?
    - hga 12y ago
      Microsoft, as far as we could tell during the saga.
blfr 12y ago
Only the owners of a copyright have standing to sue What about people who receive the compiled software (customers) and would like the source code as well? Don't they have standing?
- hga 12y ago
  In the case of copyleft software, I would think so, and onestone tells us this has been established in France. So I've amended my posting (minimally, near the end of the edit window).
- dragonwriter 12y ago
  > What about people who receive the compiled software (customers) and would like the source code as well? Don't they have standing? In the US, IIRC (and IANAL and this is not legal advice) license are analyzed under contract principles to the extent applicable, which might extend to standing, and, under contract principles, you could argue that those receiving the software are intended third-party beneficiaries with standing to sue. So, its possible.
onestone 12y ago
> Only the owners of a copyright have standing to sue That's not true, at least in some countries. For example, see this case in France from 2009: http://arstechnica.com/information-technology/2009/09/big-gpl-copyright-enforcement-win-in-paris-court-of-appeals/ http://arstechnica.com/information-technology/2009/09/big-gp... > "We've long said the GNU GPL is enforceable, and of course we're pleased to see another court reaffirm that fact," said FSF France president Loic Dachary in a statement. "It's a commonly held belief that only the copyright holder of a work can enforce the license's terms—but that's not true in France. People who received software under the GNU GPL can also request compliance, since the license grants them rights from the authors."
- hugoroy 12y ago
  This interpretation of the decision is wrong, and I think this is also not a right interpretation of copyright and of the GPL. However, I do think that parties receiving GPL software also have standing to sue, not just authors. And this may also be true in the US: see for instance one of the decisions in Versata v. Ameriprise where the court considered GPL to create contractual obligations towards third party beneficiaries -- i.e. towards people receiving the code. That whole case has been settled out of courts but that's still an interesting decision (and to my knowledge, this decision had not been further contradicted by upper courts so it is still interesting).

by hga 12y ago

ChuckMcM 12y ago

I don't disagree that only people with an ownership right in the copyright have standing, but I note that this has been worked around by a variety of means. The poster child being people like Prenda Law who used dubious techniques to get just enough copyright ownership on something (in their case porn) to sue. Also, as many have noted and some have experienced, at least in the US it is pretty easy to get sued whether or not the case has merit, and ignoring it results not in it being dismissed because of lack of standing, but a judgement against you by default. This is somewhat moot if the litigation happens in Germany of course. In contrast to camperman's comment, the copyright issue is first determined as a matter of law (its instructive to see the Groklaw archives on this with regards to SCO) and then if the copyright is valid then the question of the license comes up. And party A will say "That wasn't what I meant" and party B will say "But this is what it says" and for each of the clauses and sentences in the GPL a discussion will be had on what it says versus what it means. And finally if what it means is something that can be legally enforced[1]. A good example of that was the AT&T versus UC Regents suit over BSD where the BSD license and the AT&T Unix licenses were extensively examined. [1] You could write a shrink wrap contract that said "By opening this package you agree to give me all your future income." which is clear what it says and what it means, but you would be hard pressed find a court willing to enforce those terms with that contract.

hga 12y ago
Except, of course, Prenda Law didn't get around copyright law, but their case is exceptional and I don't think it, or what you've correctly pointed out about how in the US it is easy to get sued, demonstrates much beyond the advantages of loser pays law systems (as I understand it, all of the world but the US). A better one, that I'm a lot more familiar with, is Stephens Media, their property the Las Vegas Review-Journal, and https://en.wikipedia.org/wiki/Righthaven https://en.wikipedia.org/wiki/Righthaven which produced a Federal District Court decision that in order to sue, one must actually own the copyright. But if you're just worried about the prospect of being sued, none of this matters as you point out. New SCO dragged our corner of the world through a huge, long and expensive drama about code that they never had the copyright to, and knew in advance they didn't. Which means that risk exists for any code you don't write yourself.... I'm not sure the SCO case shows the progression you cite. As far as I can remember, everyone assumed SCO had the copyright, there was lots of litigation based on that, and it took years for the case(s) to wander around until in rather a big surprise we learned they didn't. Of course, to continue the theme of "(too) easy to get sued", there should have been severe sanctions levied on the parties responsible for that fraud, which somehow never seems to happen in the US.
- spacemanmatt 12y ago
  Who kept propping up SCO to draw out that legal battle for so long?
  - hga 12y ago
    Microsoft, as far as we could tell during the saga.

blfr 12y ago

Only the owners of a copyright have standing to sue What about people who receive the compiled software (customers) and would like the source code as well? Don't they have standing?

hga 12y ago
In the case of copyleft software, I would think so, and onestone tells us this has been established in France. So I've amended my posting (minimally, near the end of the edit window).
dragonwriter 12y ago
> What about people who receive the compiled software (customers) and would like the source code as well? Don't they have standing? In the US, IIRC (and IANAL and this is not legal advice) license are analyzed under contract principles to the extent applicable, which might extend to standing, and, under contract principles, you could argue that those receiving the software are intended third-party beneficiaries with standing to sue. So, its possible.

onestone 12y ago

> Only the owners of a copyright have standing to sue That's not true, at least in some countries. For example, see this case in France from 2009: http://arstechnica.com/information-technology/2009/09/big-gpl-copyright-enforcement-win-in-paris-court-of-appeals/ http://arstechnica.com/information-technology/2009/09/big-gp... > "We've long said the GNU GPL is enforceable, and of course we're pleased to see another court reaffirm that fact," said FSF France president Loic Dachary in a statement. "It's a commonly held belief that only the copyright holder of a work can enforce the license's terms—but that's not true in France. People who received software under the GNU GPL can also request compliance, since the license grants them rights from the authors."

hugoroy 12y ago
This interpretation of the decision is wrong, and I think this is also not a right interpretation of copyright and of the GPL. However, I do think that parties receiving GPL software also have standing to sue, not just authors. And this may also be true in the US: see for instance one of the decisions in Versata v. Ameriprise where the court considered GPL to create contractual obligations towards third party beneficiaries -- i.e. towards people receiving the code. That whole case has been settled out of courts but that's still an interesting decision (and to my knowledge, this decision had not been further contradicted by upper courts so it is still interesting).