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GNU is Not Unix The Courts

Software Freedom Conservancy Wins GPL Case Against Westinghouse 225

Posted by CmdrTaco
from the do-the-dance-of-joy dept.
fishthegeek writes "The Software Freedom Conservancy has received a judgement against Westinghouse Digital Electronics for $90,000 in damages, $50,000 in costs plus a donation of all of the offending HDTV's that were using BusyBox in violation of the GPL. Given that WDE is nearly bankrupt it's likely that most if not all of the cash will disappear in a legal 'poof,' but it is a victory regardless."
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Software Freedom Conservancy Wins GPL Case Against Westinghouse

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  • It helps explain all those crappy 37" Westinghouse TVs that were being blown out by retailers on the cheap last year.

    • Re: (Score:3, Interesting)

      by Andy Dodd (701)

      And the 47" units that were discontinued within a year of them being sold, including no service/warranty parts being available.

      I purchased a 47" 1080p Westy 3 years ago or so and was pretty happy with it, until it died 30 days before warranty expiration. (I also had a BB service plan due to making the calculation that this model with a so-so reliability rep plus the cost of the service plan was less than the cost of a model that had a good long-term reliability reputation.) It took almost a month for BB's

  • by JazzXP (770338) on Thursday August 05, 2010 @08:55AM (#33148888) Homepage
    Isn't this the first proper test of GPL in a court of law?
    • by eldavojohn (898314) * <eldavojohn.gmail@com> on Thursday August 05, 2010 @09:06AM (#33148980) Journal

      Isn't this the first proper test of GPL in a court of law?

      I'm not a lawyer so maybe I'm not understanding the weight of "first proper test" but there have been many court cases [wikipedia.org] I think most are settled out of court though. Example:

      In 2002, MySQL AB sued Progress NuSphere for copyright and trademark infringement in United States district court. NuSphere had allegedly violated MySQL's copyright by linking code for the Gemini table type into the MySQL server. After a preliminary hearing before Judge Patti Saris on February 27, 2002, the parties entered settlement talks and eventually settled. At the hearing, Judge Saris "saw no reason" that the GPL would not be enforceable.

      This might be the first one inside the United States to come down to a court decision without being short circuited by a settlement, yes. Keep in mind that they claim to find one violation per day [slashdot.org] so it's awfully kind of them to give years worth of warning before starting to take legal action. I'm sure that if someone with money really wanted to stick it to their competitors and they are listed as violators of the GPL (like any retailer who competes with Best Buy) they could probably be a real thorn in their side. The last thing you want is big companies afraid to use GPL'd code because it's a legal liability -- adoption and buy in from a huge company is one of the best things that could happen to a small GPL project because it means you'll always be around.

      • by Andy Dodd (701) <atd7@co[ ]ll.edu ['rne' in gap]> on Thursday August 05, 2010 @09:42AM (#33149270) Homepage

        It would've been pretty easy to fully comply with the GPL in this situation without giving anything of substance away to competitors.

        There's no reason to be afraid of using GPLed code as long as you actually READ THE DAMN LICENSE and comply. For something like busybox there is almost no one who would suffer any competitive disadvantage by publishing the source code for the GPL software used in compliance with the license, and a pretty good market advantage (don't have to develop any of the basic functions busybox provides, so you can focus on developing the product-specific functionality).

        • by udippel (562132)

          If only I had mod points ... !
          Now I even endanger my karma; but I can take a hit.
          This is just too beautifully written. Have heard this really, really stupid argument just too often over the years. What the hell are your competitors to do with your code on their hardware? Except your name is Steve The Maniac of Cupertino. Of course.

          • Re: (Score:3, Insightful)

            by b4dc0d3r (1268512)

            The source code itself probably won't run as-is on different hardware, but there are clues and hints and subtleties that can be copied. A more efficient algorithm for this, or a creative way of doing that. Something clever like Carmack's inverse square root which most sane people would shy away from until proven are great examples. An efficient, error-tolerant input achieved by creative hit testing might give your interface usability advantages.

            Clever ordering might save users from the problem I have whe

            • The source code itself probably won't run as-is on different hardware, but there are clues and hints and subtleties that can be copied. A more efficient algorithm for this, or a creative way of doing that.

              In Busybox?

              Just because you've got busybox in your TV doesn't mean you have to give away the source code to the rest of it.

            • by Andy Dodd (701) <atd7@co[ ]ll.edu ['rne' in gap]> on Thursday August 05, 2010 @11:04AM (#33150154) Homepage

              OK, name a single one of the functions you described that would be handled by busybox.

              Just because one component (busybox) to handle basic OS housekeeping functions is open source doesn't mean your main application (the TV stuff) has to be. That was my whole point. You can save a LOT of development time on OS housekeeping type stuff with busybox, and then publish that source code in compliance with the license and your competitors get NOTHING, because the stuff that matters is in another fully independent software component that does not fall under the GPL.

              • +1 for this whole thread.

                I wondered what Westinghouse had violated, and now I know - failed to publish the open source code for BusyBox. Also good to know they didn't have to publish their own self-developed proprietary code. It's pretty stupid Westinghouse chose to fight the GPL instead of simply complying with it.

          • by drsmithy (35869)

            Have heard this really, really stupid argument just too often over the years. What the hell are your competitors to do with your code on their hardware?

            Everything your product does without having to spend time and money figuring out how ?

      • What are they going to do instead? Use proprietary software so that they can have more complex licences to work around, and less (if any) ability to tweak the code to suit their products? develop their own? Use only BSD or MIT licensed stuff.

    • by jonbryce (703250)

      No. See MySQL AG vs Progress Software.

    • by Sockatume (732728)

      It wasn't tested. It didn't even come up for discussion. The case was lost because Westinghouse failed to participate in discovery, and had basically withdrawn its own defense.

    • by Sique (173459)

      No, it's not. Jacobson vs. Katzer was previously decided.
      And outside the U.S. the GPL has been hold up several times already.

    • Isn't this the first proper test of GPL in a court of law?

      It isn't a test of anything in a court of law, since the defendant didn't show up. It is a default judgement.

  • Not what it seems (Score:5, Informative)

    by ledow (319597) on Thursday August 05, 2010 @08:56AM (#33148904) Homepage

    As has been discussed in the million other websites that jumped on this news earlier in the week:

    It wasn't so much a win as a "no contest":
    - The company that's gone bankrupt, went bankrupt (in a real, non-SCO fashion) and couldn't have afforded to fight the case.
    - The people handling the bankruptcy don't want the lawyers who were working the case representing them any more (presumably they stopped paying them).
    - The lawyers handling the case stopped defending it because they were asked not to provide any further representation.

    In many senses it was a "win by default" - it was unchallenged, they couldn't afford to challenge it, and they were bankrupt anyway. In terms of legal precedent, this is like saying "I *do* own an acre of the moon because I presented it in a case against NASA and NASA went bankrupt before they could file any defence whatsoever" and then using this as a legal precedent that everyone with the same paper as you owns an acre of the moon. It's not a "win", it's not even a "loss", it's just a "nothing" in legal terms.

    • Re: (Score:3, Funny)

      by Anonymous Coward

      "de fault" the two sweetest words in the English language.

      Homer Simpson

    • by maroberts (15852) on Thursday August 05, 2010 @09:03AM (#33148950) Homepage Journal

      ..but what matters is that a judge has issued a ruling on the matters before the court.

      Its a common practise to start with little guys to get precedents and then work your way up to the bigger fish; the bad guys (eg, patent trolls) have been using this technique for ages, so its no biggie if the Good Guys learn from them,

      • Re: (Score:3, Informative)

        But there isn't any precedent here. It basically says "the defendants didn't show up, so I'll assume everything the plaintiffs said is true and give them everything they asked for". There's no decision on whether there actually was any infringement, because that assertion was never contested. (Plus, I think only appeals courts set precedent?)
        • Re: (Score:3, Informative)

          by Sockatume (732728)

          Precisely. Res judicata only applies to actual decisions of fact or law. If I bring suit against you for libel and claim you're a martian sympathiser, and you don't show up, I win by default but no legal precident is set regarding your loyalties to the green men of the red planet.

      • Re: (Score:3, Informative)

        by Sockatume (732728)

        Please, read the judge's decision. The only matters he issued a ruling on were SFC's uncontested motion for summary judgement because of Westinghouse's failure to appear in court, and the appropriate damages under copyright law.

    • Re:Not what it seems (Score:5, Interesting)

      by blackraven14250 (902843) on Thursday August 05, 2010 @09:03AM (#33148952)
      I think this might be a win in the sense that the court recognized the GPL as being a valid license, regardless as to how well contested the case was. It also sets precedent that the GPL is valid for use in future cases.
      • Re: (Score:3, Insightful)

        by Chris Burke (6130)

        That the GPL is a valid license was never seriously in question.

        Certainly not among competent contract lawyers. SCO lawyers might argue it isn't, sure, but that's what I mean.

        That's why out of all the GPL cases the EFF has brought, so many are settled out of court and in the EFF's favor.

        • IANAL, but although I agree that the validity of GPL was never seriously in question, the real problems lie in the details.

          The GPL is actually written in mostly "plain English" instead of the legalese that lawyers are used to. It makes easier reading for us mortals, but the terms are not exactly precise. When developers try debugging a piece of code, they don't want to see pseudocode, and in the same vein, when lawyers analyze a legal issue, they don't want to see plain English. And then various assertions

      • by jonbryce (703250)

        And if the GPL isn't a valid licence, it doesn't help you because nothing else gives you the right to copy it.

      • by Sockatume (732728)

        I don't think the judge entered a decision on GPL's validity. That the case was "taken seriously" and that this implies the GPL's importance is irrelevant: the judge has to actually state as much.

      • I think this might be a win in the sense that the court recognized the GPL as being a valid license, regardless as to how well contested the case was. It also sets precedent that the GPL is valid for use in future cases.

        No, the court didn't even consider the license. In a default judgement, the court assumes that all well-pleaded facts in the plaintiff's filings are true, and then rules based on that assumption. Plaintiff alleged that there was a license and it was not obeyed, so the court accepted that.

        As far as precedent goes, district courts do not set precedent. Only appellate courts set precedent.

      • It also sets precedent that the GPL is valid for use in future cases.

        That the GPL is a "valid license" isn't really a seriously debated proposition in the first place, and a trial court decision isn't precedent of any weight (its not binding as precedent in any other case in any court, though in a dispute between the same parties res judicata applies), so I'm not particularly impressed.

    • by Java Pimp (98454) <java_pimp@NOspam.yahoo.com> on Thursday August 05, 2010 @09:28AM (#33149164) Homepage

      In many senses it was a "win by default" - it was unchallenged, they couldn't afford to challenge it...

      How typical... He with the most money wins! God our justice system needs an overhaul!

      Oh wait... we won... nevermind!

      • by houghi (78078)

        We won, because this time WE had more money. They were not paying their lawyers anymore.

        So nothing changed. The one with the most money wins.

    • by Sique (173459)

      With the NASA not being the proprietor of the Moon, and other countries having the Moon in their coat of arms since ages and thus can point out to claims for the Moon older than NASA or the U.S., it will be difficult to argue that anyone in the U.S. has any legal standings when it comes to the question of ownership of any part of the Moon.

  • WDE? (Score:3, Interesting)

    by mcgrew (92797) * on Thursday August 05, 2010 @09:05AM (#33148970) Homepage Journal

    I had to RTFA to find out that WDE is Westinghouse Digital Electronics.

    Westinghouse is currently in General Assignment, an alternative to bankruptcy under California state law

    I don't get this at all. The US Constitution says bankruptcies are in Federal court and not a state matter. Is there a better FA somewhere?

    • by drinkypoo (153816)

      I don't get this at all. The US Constitution says bankruptcies are in Federal court and not a state matter. Is there a better FA somewhere?

      Bankruptcy has been handled at the state level longer than I can remember, or at least, the laws for same are wildly different in different states. Florida is a home for retirees specifically because going to Florida permits them to evade debts. California is also a great place to be in debt.

      • by nomadic (141991)
        Bankruptcy is in Federal Courts exclusively; state courts are not allowed to hear bankruptcy cases. However, different state laws may impact how certain aspects of the bankruptcy, including what assets are protected, are handled.
        • Re:WDE? (Score:4, Interesting)

          by drinkypoo (153816) <martin.espinoza@gmail.com> on Thursday August 05, 2010 @10:19AM (#33149578) Homepage Journal

          However, different state laws may impact how certain aspects of the bankruptcy, including what assets are protected, are handled.

          Well obviously IANAL. I guess the next logical question is what happens when someone feels that the federal court has disrespected the state laws.

          • by nomadic (141991)
            Well obviously IANAL. I guess the next logical question is what happens when someone feels that the federal court has disrespected the state laws.

            They can just appeal the decision to the Federal appellate court, which in turn can certify the question to the state supreme court if they want, but that is at the Federal court's discretion.
      • by Firethorn (177587)

        Florida is a home for retirees specifically because going to Florida permits them to evade debts.

        There's more to it than that. It's also got a tax structure that is favorable to them. Many are looking to 'get out of the cold', which is why they aren't going to Alaska. Better cost of living than AK as well.

    • I had to RTFA to find out that WDE is Westinghouse Digital Electronics.

      From TFS:

      "The Software Freedom Conservancy has received a judgement against Westinghouse Digital Electronics for $90,000 in damages, $50,000 in costs plus a donation of all of the offending HDTV's that were using BusyBox in violation of the GPL. Given that WDE is nearly bankrupt it's likely that most if not all of the cash will disappear in a legal 'poof', but it is a victory regardless."

      Did the summary get edited to include that, or what?

    • This isn't a court proceeding. A General Assignment, i.e. an assignment for the benefit of creditors, is a private out of court transaction where the debtor assigns all his assets to an assignee that he has chosen who takes the property in trust for the benefit of all creditors. The assignee is charged with the responsibility of liquidating all of the debtors assets and distributing the proceeds to the creditors on a pro rata basis subject to whatever creditor priority laws may exist under state law, if any
    • Re: (Score:3, Informative)

      by DragonWriter (970822)

      Westinghouse is currently in General Assignment, an alternative to bankruptcy under California state law

      I don't get this at all. The US Constitution says bankruptcies are in Federal court and not a state matter.

      General Assignment is not bankruptcy, it is a procedure governed by state law which can provide an alternative to bankruptcy in the dissolution of a concern in some circumstances. Unlike bankruptcy, it is not a judicial process (which can often make it more expedient and less costly.)

  • by AceJohnny (253840) <jlargentaye@@@gmail...com> on Thursday August 05, 2010 @09:06AM (#33148984) Journal

    plus a donation of all of the offending HDTV's that were using BusyBox

    Huh, WDE has to give away their HDTVs? Where do I sign up?

    To clear things up a little, from TFA:

    SFC has also secured the right to compel Westinghouse to hand over all unsold products loaded with BusyBox for donation to charity.

    That sounds cool, but the cynic in me believes that won't happen for a variety of reasons ("we don't have any unsold products! The last ones went on eBay for 1$ each!")

    • Particularly since they are currently undergoing some sort of bankruptcy proceedings -- they may be legally required to liquate the remaining merchandise before they comply with this particular court order.
      • by John Hasler (414242) on Thursday August 05, 2010 @09:28AM (#33149162) Homepage

        they may be legally required to liquate the remaining merchandise before they comply with this particular court order.

        I don't think so. This is a court order assigning ownership of this property, not an unsecured debt. I think that it will be considered senior to the claims of the other creditors in the same way that a lien is senior to unpaid bills.

      • by jonbryce (703250)

        Except that they can't, because it contains pirated software. I'm sure the RIAA etc can explain how serious an offence it is to sell pirated materials.

  • How do they do it? (Score:3, Interesting)

    by bogaboga (793279) on Thursday August 05, 2010 @09:09AM (#33149006)

    I have always wondered how these GPL folks determine that a product contains GPLed code. How do they do it?

    Having been around computers and electronic equipment for a while, I know that we users only receive a working piece of equipment and a manual probably. Now how one delves into getting to establish that GPLed code [or firmware] is contained withing the equipment troubles my mind.

    How do they do it?

    • by Nursie (632944)

      Depends. Maybe someone sees a version string somewhere, or an interface that looks familiar. Maybe on some machines they have a way to get to the binaries and extract strings and symbols from them.

      With a tv, I have no idea though.

    • by betterunixthanunix (980855) on Thursday August 05, 2010 @09:17AM (#33149090)
      One thing you can do is reverse engineer the product and keep an eye out for certain strings in the firmware. From what I have seen, most GPL violators do not even bother to try to cover their tracks, and will often leave author names, GPL notices, and so forth in the software. The biggest challenge with consumer electronics is actually reading the contents of the firmware; once you can do that, you can just do some basic checks.

      Of course, that is not an easy thing to do, so it is possible that a number of consumer products contain GPL violations that go unnoticed.
      • by drinkypoo (153816) <martin.espinoza@gmail.com> on Thursday August 05, 2010 @10:30AM (#33149702) Homepage Journal

        Don't forget all the firmware that you can download without so much as a serial number.

        And then there's all the photos of serial numbers on the internet, which can reduce the number of unchecked cases still further.

        Don't think that there's not nerds out there with nothing better to do than to download firmware and run it through strings.

        • Don't think that there's not nerds out there with nothing better to do than to download firmware and run it through strings.

          Nerds? Yes.
          Nothing better to do? "Nothing better to do" is a condescending way to say, should be doing something else with their time. Time is a limited quantity in ones life. They are literally doing a public service for free and you shit on them? Whether they are living in their parents basement or taking time out from the rest of their real life, these geeks are policing companies infringing on the free software world, while you are making fun of them on /. .

        • by Eunuchswear (210685) on Thursday August 05, 2010 @11:09AM (#33150226) Journal

          $ uname -a
          UnixWare xxxxxx 5 7.1.1 i386 x86at SCO UNIX_SVR5
          $ strings /usr/lib/drf/bzip
          ...
            Copyright (C) 1992-1993 Jean-loup Gailly
            This program is free software; you can redistribute it and/or modify
            it under the terms of the GNU General Public License as published by
            the Free Software Foundation; either version 2, or (at your option)
            any later version.
            This program is distributed in the hope that it will be useful,
            but WITHOUT ANY WARRANTY; without even the implied warranty of
            MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the
            GNU General Public License for more details.
            You should have received a copy of the GNU General Public License
            along with this program; if not, write to the Free Software
            Foundation, Inc., 675 Mass Ave, Cambridge, MA 02139, USA.
          ...

          Oh look, a GPL violation in SCO UnixWare.

          That was hard to find, wasn't it.

      • Using unique string patterns in your code that can be easily searched for helps too ... not that I've ever done such a thing of course.

    • Re: (Score:2, Informative)

      by bigrockpeltr (1752472)
      well here are a few ways i can think of.
      • A firmware update became availbale online and it looked similar to a linux-base firmware and then causes the person to investigate further.( not reallly applicable in this particular case )
      • The device has some kind of boot message that at least gives a hint of OSS software.
      • The device has a NIC or serial port. you connect to the device and try to ssh or telnet to it. then do further investigation.
      • someone found some manufacturer's manual or some insiders information
    • Lots of ways - many of the cases I've read about the device/software behaved in a way unique to their product - usually an exhibited bug in an early version or something.

      Once you know you can disassemble the device/software, dump the strings out of the firmware - stuff like that and gather evidence.

  • NOT EFF (Score:2, Informative)

    by Anonymous Coward

    > EFF Wins GPL Case Against Westinghouse
    Give proper attiribution, please!
    Neither SFLC http://www.softwarefreedom.org/ [softwarefreedom.org]
    nor SFC http://conservancy.softwarefreedom.org/ [softwarefreedom.org]
    are EFF, and as far as I can see, they have no relation to EFF.
    So why is EFF in the title?

    • by nomadic (141991)
      So why is EFF in the title?

      Because slashdot editors get their jobs by being friends of its founders, and don't actually do any editing. Anyway the EFF has taken credit for other organizations' wins in the past, maybe they'll do that here too...
  • by bkuhn (41121) on Thursday August 05, 2010 @09:15AM (#33149074) Homepage

    I cannot figure out why the headline says that the EFF won this case. This case was brought by the Software Freedom Conservancy [sfconservancy.org], with the Software Freedom Law Center [softwarefreedom.org] acting as the Conservancy's legal counsel. The EFF was not, nor has ever been to my knowledge, involved in anything to do with the GPL.

    Also, winning the whole case is probably inaccurate. What's been achieved here is a permanent injunction and judgment against one of the violators. Thus, the case against Westinghouse has been won, but there are other defendants in the case as well.

    — bkuhn, President, Software Freedom Conservancy

  • by bkuhn (41121) on Thursday August 05, 2010 @09:27AM (#33149150) Homepage

    Slashdot readers might be interested to read the actual judgment as issued by the Court [sfconservancy.org], which is available Conservancy's announcement of the decision [sfconservancy.org]. I also wrote a blog post about the decision [ebb.org] that may be of interest.

    — bkuhn, President, Software Freedom Conservancy

  • by DrXym (126579) on Thursday August 05, 2010 @02:24PM (#33152804)
    I've written set top box software that runs on embedded Linux with busybox taking care of most of the shell side of things. And I can't for the life of me figure out why Westinghouse didn't simply release the source code when they were asked. Even if they were clueless about their obligations, surely it would be simple to meet them after being notified.

    I have to wonder if they did something completely insane like link their TV application software straight into the busybox executable because I can't think of any other reason to withold it upon request. If they did straight link then more fool them.

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