Sharing the GPL source code, with value addition by vendor specific to his hardware?
Saliya
Hello,
I write this email to get an answer for the question “Can the vendor charge for the GPL source code, for his value addition to the source code?”
In one such case, there is a vendor, who has done value addition to the GPL source code to make the GPL code work on his hardware platform. He claims to have invested huge effort to make the GPL source code to work on his platform. So he wants to charge for the source code separately.
According to the GPL policy, is any vendor allowed to charge for the source code for his device specific value addition? Or is he required to keep his value addition as open source?
I will be more delighted to answer any queries in this regard. I appreciate earnest answers and thank in advance.
With Best Regards, Saliya
--
This message has been scanned for viruses and
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David Kastrup
> I write this email to get an answer for the question “Can the vendor
> charge for the GPL source code, for his value addition to the source
> code?”
He can charge for the software in toto. Whatever he wants. If he uses
sources from a _third_ party licensed to him under the GPL (he can
bargain for different licenses with his software source), the price for
the binaries has to include access to the corresponding source code,
licensed at no extra cost under the version of GPL he received the
source under (or a later version if he received the option to license at
a later version).
> In one such case, there is a vendor, who has done value addition to
> the GPL source code to make the GPL code work on his hardware
> platform. He claims to have invested huge effort to make the GPL
> source code to work on his platform. So he wants to charge for the
> source code separately.
Separately from what?
> According to the GPL policy, is any vendor allowed to charge for the
> source code for his device specific value addition? Or is he required
> to keep his value addition as open source?
He is not required to do anything as long as he does not distribute
binaries (binaries installed in a sold device count as distribution), or
if he has the copyright to the source he offers separately, or an
agreement different from the GPL.
If that is not the case, the copyright holder may tell him to stop
distributing the binaries created from the respective source code. As a
downstream recipient/customer, you can't do more than notify him and the
copyright holder of the situation. If the copyright holder can't be
bothered enforcing his copyright, there is nothing you can really do.
In some states, you might as some sort of last-measure resort make a
complaint about misleading advertising ("GPLed" software without rights
to the source code?). But the chances for that to fly are not really
impressive, and he'll likely find a way around that particular complaint
without changing his business model.
--
David Kastrup
RJack
> Hello,
>
> I write this email to get an answer for the question "Can the vendor
> charge for the GPL source code, for his value addition to the source
> code?"
If the vendor's value addition to the GPL source code consists of his
own original work, the vendor has the *exclusive right* under U.S.
copyright law (17 USC sec. 106) to charge whatever he wishes for his
additional contribution.
Sincerely,
RJack :)
Alan Mackenzie
Saliya <sal...@iwavesystems.com> wrote:
> [-- text/plain, encoding 7bit, charset: US-ASCII, 38 lines --]
> Hello,
> I write this email to get an answer for the question "Can the vendor
> charge for the GPL source code, for his value addition to the source
> code?"
Yes he may, providing he also makes it freely available under the terms
of the GPL.
> In one such case, there is a vendor, who has done value addition to the
> GPL source code to make the GPL code work on his hardware platform. He
> claims to have invested huge effort to make the GPL source code to work
> on his platform. So he wants to charge for the source code separately.
Separately from what? He must make the source code freely available
under the terms of the GPL. If he does this, he may also offer anything
he wishes at whatever charge his customers are willing to pay.
I'm mighty curious as to who this vendor might be. Larger companies
generally understand the GPL perfectly well.
> According to the GPL policy, is any vendor allowed to charge for the
> source code for his device specific value addition? Or is he required
> to keep his value addition as open source?
Yes, to both questions.
> I will be more delighted to answer any queries in this regard. I
> appreciate earnest answers and thank in advance.
> With Best Regards, Saliya
The same to you, too.
--
Alan Mackenzie (Nuremberg, Germany).
Barry Margolin
RJack <us...@example.net> wrote:
But if he combines it with someone else's work, distributing the
combination requires the authorization of the other author as well. The
GPL specifies the conditions under which that author allows such
distribution.
--
Barry Margolin, bar...@alum.mit.edu
Arlington, MA
*** PLEASE post questions in newsgroups, not directly to me ***
*** PLEASE don't copy me on replies, I'll read them in the group ***
Alexander Terekhov
Barry Margolin wrote:
>
> In article <nYidnSnMR6lQ3i7R...@giganews.com>,
> RJack <us...@example.net> wrote:
>
> > On 10/11/2010 2:49 AM, Saliya wrote:
> > > Hello,
> > >
> > > I write this email to get an answer for the question "Can the vendor
> > > charge for the GPL source code, for his value addition to the source
> > > code?"
> >
> > If the vendor's value addition to the GPL source code consists of his
> > own original work, the vendor has the *exclusive right* under U.S.
> > copyright law (17 USC sec. 106) to charge whatever he wishes for his
> > additional contribution.
> >
> > Sincerely,
> > RJack :)
>
> But if he combines it with someone else's work, distributing the
> combination requires the authorization of the other author as well. The
> GPL specifies the conditions under which that author allows such
> distribution.
Do you mean
GPL-free code + GPL-contaminated code = GPL-contaminated whole work
GNUtian theory?
Well, the FSF-while-in-court is on record:
"In fact, the GPL itself rejects any automatic aggregation of software
copyrights under the GPL simply because one program licensed under the
GPL is distributed together with another program that is not licensed
under the GPL: "In addition, mere aggregation of another work not based
on the Program with the Program (or with a work based on the Program)
on a volume of a storage or distribution medium does not bring the
other work under the scope of this License." Plaintiff's
mischaracterization of the GPL in his Response has no bearing on the
resolution of the pending Motion to Dismiss because the Court can
examine the GPL itself. "[T]o the extent that the terms of an attached
contract conflict with the allegations of the complaint, the contract
controls." Centers v. Centennial Mortg., Inc., 398 F.3d 930, 933 (7th
Cir. 2005)"
Philip A. Whistler (#1205-49)
Curtis W. McCauley (#16456-49)
Attorneys for Defendant, Free Software Foundation, Inc.
ICE MILLER
One American Square Box 82001
Indianapolis, IN 46282-0002
317.236.2100
regards,
alexander.
regards,
alexander.
"Plaintiff Erik Andersen is a work-from-home father who has gifted
to the world software underlying a significant body of consumer
electronics." ROFL
-- SFLC crooks Ravicher, Williamson, Spiegel
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
Hyman Rosen
> Do you mean
> GPL-free code + GPL-contaminated code = GPL-contaminated whole work
> GNUtian theory?
That's not a theory, those are the terms of the license.
As courts have determined, users are not free to ignore
terms of software licenses.
> Well, the FSF-while-in-court is on record:
>
> "In fact, the GPL itself rejects any automatic aggregation of software
> copyrights under the GPL simply because one program licensed under the
> GPL is distributed together with another program that is not licensed
> under the GPL: "In addition, mere aggregation of another work not based
> on the Program with the Program (or with a work based on the Program)
> on a volume of a storage or distribution medium does not bring the
> other work under the scope of this License."
Precisely. If the OP's software is merely aggregated on the same
distribution medium as GPLed software, it is likely that the OP will
not be required to distribute it under the terms of the GPL. However
the OP sounded like there was a more intimate association involved,
in which case distribution is permitted only under the terms of the
GPL.
David Kastrup
The GPL demands delivery of the corresponding source code. If the
binaries are delivered in a way where you can no longer separate them,
the corresponding source code would need to encompass the whole binary.
Things become more complex if the binaries _can_ be separated (delivery
of unlinked files or shared libraries, where the proprietary component
needs at most such header files for compilation that contain no
copyrightable content). Then opinions become more diverse and legal
precedence much thinner.
But the case for which the question has been asked sounds quite more
clear than that.
--
David Kastrup
RJack
> In article<nYidnSnMR6lQ3i7R...@giganews.com>,
> RJack<us...@example.net> wrote:
>
>> On 10/11/2010 2:49 AM, Saliya wrote:
>>> Hello,
>>>
>>> I write this email to get an answer for the question "Can the
>>> vendor charge for the GPL source code, for his value addition to
>>> the source code?"
>>
>> If the vendor's value addition to the GPL source code consists of
>> his own original work, the vendor has the *exclusive right* under
>> U.S. copyright law (17 USC sec. 106) to charge whatever he wishes
>> for his additional contribution.
>>
>> Sincerely, RJack :)
>
> But if he combines it with someone else's work, distributing the
> combination requires the authorization of the other author as well.
> The GPL specifies the conditions under which that author allows such
> distribution.
>
Unfortunately it is folks like you who are at a total loss when speaking
of "conditions" in copyright contracts.
Almost invariably, a "scope of use condition" is confused with a
"condition precedent" in copyright contracts. A "scope of use" condition
has been described by the Supreme Court:
"An unlicensed use of the copyright is not an infringement unless it
conflicts with one of the specific exclusive rights conferred by the
copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at
154-155."; SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S.
417 (1984).
A "scope of use condition" must directly restrict one of the the
exclusive rights enumerated in 17 USC sec. 106.
The above must be contrasted with a "condition precedent" which is
defined in the Restatement (Second) of Contracts sec. 224 as:
"A condition is an event, not certain to occur, which must occur,
unless its non-occurrence is excused, before performance under a
contract becomes due."
GPL sec. 2(b) to which you are referring, contains no valid condition
precedent controlling the performance of a grant of permissions
involving derivative works. The GPL is unenforceable under contract law
and gives rise to an equitable action for promissory estoppel.
Sincerely,
RJack :)
Hyman Rosen
> The GPL is unenforceable under contract law
> and gives rise to an equitable action for
> promissory estoppel.
The GPL is a straightforward copyright license. Each time a court
has had an opportunity to read it, they regarded it as such. There
is no promissory estoppel because the GPL explains exactly what you
must do in order to gain permission to distribute.
David Kastrup
> The GPL is unenforceable under contract law and gives rise to an
> equitable action for promissory estoppel.
Oxymoron. "promissory estoppel" means that a good faith interpretation
implies a permission while there is none, "unenforceable" means that a
good faith interpretation implies a restriction while there is none.
Your brain is leaking out of both ears. At one point of time, you'll
need to decide in which of those opposite directions you want to troll.
--
David Kastrup
Alexander Terekhov
[...]
> the OP sounded like there was a more intimate association involved,
Hyman, your sexual fantasies are insane. Go to a speciaslist in sexual
pathology (clinic) or straight to prostitutes (bordel), silly.
RJack
To which federal courts are you referring, Dear Hyman, Dear Hyman?
There's a hole in your bucket, Dear Hyman, Dear Hyman!
Sincerely,
RJack :)
Hyman Rosen
> On 10/12/2010 10:20 AM, Hyman Rosen wrote:
>> The GPL is a straightforward copyright license. Each time a court
>> has had an opportunity to read it, they regarded it as such.
>
The 7th Circuit Court of Appeals:
<http://scholar.google.com/scholar_case?case=3689055814945636124>
the GPL ... is a cooperative agreement that facilitates
production of new derivative works
The Massachusetts District Court:
<http://scholar.google.com/scholar_case?case=13584730711160488510>
With respect to the General Public License ("GPL"), MYSQL has not
demonstrated a substantial likelihood of success on the merits or
irreparable harm. Affidavits submitted by the parties' experts
raise a factual dispute concerning whether the Gemini program is
a derivative or an independent and separate work under GPL ¶ 2.
After hearing, MySQL seems to have the better argument here, but
the matter is one of fair dispute. Moreover, I am not persuaded
based on this record that the release of the Gemini source code
in July 2001 didn't cure the breach.
The N.D. Illinois District Court:
<http://scholar.google.com/scholar_case?case=10652472992569528848>
The output of that program (the parser source code), however, is
not subject to the restrictions of the GPL — it is the creation
of plaintiff. FSF explicitly allowed for such commercial use of
the output by adopting the following exception to the GPL:
/* As a special exception, when this file is copied by Bison into
a Bison output file, you may use that output file without
restriction. This special exception was added by the Free
Software Foundation in version 1.24 of Bison */
There is no indication that Mackowiak, or any other Platinum or CA
employee, used a version of Bison older than 1.24. Therefore, even
though the output lines contain some of the utility source code, CA
is free to use the output files without restriction, as allowed by
the exception to the GPL.
The 11th Circuit Court of Appeals:
<http://scholar.google.com/scholar_case?case=6365166943909134489>
That the Software had been distributed pursuant to a GNU General
Public License does not defeat trademark ownership, nor does this
in any way compel a finding that Darrah abandoned his rights in
trademark. Appellants misconstrue the function of a GNU General
Public License. Software distributed pursuant to such a license
is not necessarily ceded to the public domain and the licensor
purports to retain ownership rights, which may or may not include
rights to a mark.
Alexander Terekhov
Hyman Rosen wrote:
>
> On 10/12/2010 10:59 AM, RJack wrote:
> > On 10/12/2010 10:20 AM, Hyman Rosen wrote:
> >> The GPL is a straightforward copyright license. Each time a court
> >> has had an opportunity to read it, they regarded it as such.
> >
> > To which federal courts are you referring?
>
> The 7th Circuit Court of Appeals:
> <http://scholar.google.com/scholar_case?case=3689055814945636124>
Uh silly Hyman...
> the GPL ... is a cooperative agreement that facilitates
> production of new derivative works
The BSD agreement facilitates production of new derivative works even
more.
Thanks to Daniel Wallace, the 7th Circuit of the United States now
operates under the following law:
1.) [FOSS contributors can't charge] "Thus the GPL propagates from
user to user and revision to revision: neither the original author,
nor any creator of a revised or improved version, may charge for the
software or allow any successor to charge. ... Linux and other
open-source projects have been able to cover their fixed costs
through donations of time"
and
2.) [FOSS is junk] "People willingly pay for quality software even
when they can get free (but imperfect) substitutes. Open Office is
a free, open-source suite of word processor, spreadsheet and
presentation software, but the proprietary Microsoft Office has
many more users. Gimp is a free, open-source image editor, but the
proprietary Adobe Photoshop enjoys the lion's share of the market."
and
3.) [FOSS is doomed] "The number of proprietary operating systems
is growing, not shrinking, so competition in this market continues
quite apart from the fact that the GPL ensures the future
availability of Linux and other Unix offshoots."
EASTERBROOK, Chief Judge of the U.S. Court of Appeals for 7th Circuit.
Ha! "The number of proprietary operating systems is growing..."
Judge Easterbrook sure got that one right. By simply querying any
software outlet for their vast selection of proprietary operating
systems aside from Linux (to wit: Windows and OS X) we know
competition is flourishing. No need to ever contemplate antitrust
charges against Microsoft again!
I wonder where Judge Easterbrook shops for his software...
FOSS advocates danced in the street with the Wallace v. IBM et al
ruling... utterly oblivious to the fact that it was the best
antitrust news that Microsoft had heard in years. Thanks in part
to Easterbrook's ruling, Microsoft can now threaten FOSS without
worrying about the DOJ.
Sleep easy Steve and Bill there IS a tooth fairy. :-)
[end quoting Wallace]
Hyman Rosen
>>>> The GPL is a straightforward copyright license. Each time a court
>>>> has had an opportunity to read it, they regarded it as such.
>>>
>>> To which federal courts are you referring?
>>
>> The 7th Circuit Court of Appeals:
>> <http://scholar.google.com/scholar_case?case=3689055814945636124>
>
> Uh silly Hyman...
>
>> the GPL ... is a cooperative agreement that facilitates
>> production of new derivative works
>
> The BSD agreement facilitates production of new derivative works even
> more.
Your fellow crank asked which federal courts looked at the GPL
as a valid copyright license, and I responded with a number of
examples. Why are you referring to a different license?
Alexander Terekhov
I am referring to your absence of logic you moron. It is a fact that
that the BSD is less restrictive versus the GPL, don't you agree silly?
The courts you referred to explicitly did NOT rule on validity of the
GPL restrictions you idiot.
Hyman Rosen
> I am referring to your absence of logic you moron. It is a fact that
> that the BSD is less restrictive versus the GPL, don't you agree silly?
Your fellow crank asked which federal courts looked at the GPL
as a valid copyright license, and I responded with a number of
examples. Why are you referring to a different license?
> The courts you referred to explicitly did NOT rule on validity of the
> GPL restrictions you idiot.
Of course not. Nor did they rule that the sky was blue. The point
is that you and your fellow cranks like to rant about how the GPL
is ineffective, illegal, and invalid. However, when courts look at
the GPL they see a license so unremarkable that they accept its
validity as a given.
And yes, the BSD license is absolutely less restrictive than the GPL.
It may be used by developers who don't care about preventing their
software from being used in non-free code.
Alexander Terekhov
Hyman Rosen wrote:
[...]
> preventing their software from being used in non-free code.
Hyman, your sexual fantasies are insane. Go to a specialist in sexual
pathology (clinic) or straight to prostitutes (bordel), silly.
regards,
RJack
Nobody disputes that the GPL is a copyright license. I certainly
don't. I dispute the claim that the GPL is an enforceable copyright
license. No federal court has ever ruled on the merits that the GPL is
an enforceable copyright license. No federal court has ever found
copyright infringement liability on the merits concerning a GPL
defendant. Your citations to extraneous dicta notwithstanding.
The eight remaining defendants in the Best Buy Inc. litigation are about
to expose the Free Software movement for what it is -- a complete fraud.
Stay tuned Hyman.
Sincerely,
RJack :)
Hyman Rosen
> No federal court has ever ruled on the merits that the GPL is
> an enforceable copyright license. No federal court has ever found
> copyright infringement liability on the merits concerning a GPL
> defendant. Your citations to extraneous dicta notwithstanding.
They haven't "ruled on the merits" because the merits are so obvious
that no one has taken a case to completion to dispute them.
> The eight remaining defendants in the Best Buy Inc. litigation are about
> to expose the Free Software movement for what it is -- a complete fraud.
> Stay tuned Hyman.
Yawn. This is what you cranks say every time, and every time the
defendants come into compliance with the GPL instead of fulfilling
your little fantasies.
David Kastrup
> On 10/12/2010 11:19 AM, Hyman Rosen wrote:
>> On 10/12/2010 10:59 AM, RJack wrote:
>>> On 10/12/2010 10:20 AM, Hyman Rosen wrote:
>>>> The GPL is a straightforward copyright license. Each time a
>>>> court has had an opportunity to read it, they regarded it as
>>>> such.
>>>
>>> To which federal courts are you referring?
>>
>> The 7th Circuit Court of Appeals:
>>
>> The Massachusetts District Court:
>>
>> The N.D. Illinois District Court:
>> The 11th Circuit Court of Appeals:
>
> Nobody disputes that the GPL is a copyright license. I certainly
> don't. I dispute the claim that the GPL is an enforceable copyright
> license. No federal court has ever ruled on the merits that the GPL is
> an enforceable copyright license.
There is no such thing as an "enforceable license" since a license is by
definition a _permission_, notwithstanding the abuse of legal terms
software companies use when calling a licensing _contract_ a license.
The GPL certainly is not enforceable: ignore its conditions, and it
becomes irrelevant. In jurisdictions without copyright, its terms and
conditions can be ignored without legal repercussions. That is in
contrast to licensing contracts, in case you have agreed to them.
Now jurisdictions without copyright are somewhat rare in this world, so
short of any other copying permission, you are usually well-advised to
heed the GPL licensing terms when distributing software. Otherwise you
are likely to end up in court. Not for breaching the GPL (that is
entirely up to you), but for breaching copyright without a valid
permission. Now you'll shout "promissory estoppel", namely "your honor,
I was of the impression that I was allowed to use the permissions of the
GPL without heeding its conditions, because Rjack told me so, and that
is entirely the licensor's fault".
This line of reasoning might conceivably work if Rjack himself happens
to be the licensor, as he is on public record that he considers the GPL
as the equivalent of Public Domain. Unfortunately, real-world licensors
tend not to spout off nonsense like that, and promissory estoppel will
be good for a short laugh in the court at best.
> The eight remaining defendants in the Best Buy Inc. litigation are
> about to expose the Free Software movement for what it is -- a
> complete fraud.
That's what we have heard in every case so far from you. You have no
explanations for defendants coming into compliance after out of court
settlements, and when no such settlement occurs and a verdict is handed
down, you foam at your mouth about drunk judges and why they are all
wrong and such.
I hope you are a better grandfather than a troll.
--
David Kastrup
Alexander Terekhov
David Kastrup wrote:
[...]
> There is no such thing as an "enforceable license" since a license is by
Oh really? Uh silly dak...
http://www.freepatentsonline.com/y2009/0132422.html
(MACHINE-READABLE AND ENFORCEABLE LICENSE)
"There currently exists no convenient way for a content creator to
license her content to other participants within the MMO environment. In
many cases, the content creator is limited to providing her content for
free. More sophisticated content creators may be able to create and
enforce licensing terms separate and apart from the MMO computer
application. However, the typical recreational content creator does not
have the ability and/or resources to define and enforce licensing terms.
"
(Kudos to colleagues at the Microsoft Corporation)
Here's another one for you silly dak:
http://www.ferc.gov/industries/hydropower/indus-act/itf/track_final.pdf
"Anatomy of Trackable and Enforceable License Conditions***"
*** "The term �condition� in this document is used to refer to
requirements under the CWA, FPA, and CZMA, and not as a legal term of
art."
So stop hallucination, dak.
Alexander Terekhov
Hyman Rosen wrote:
[snip silliness]
Hey Hyman how is the progress to get the source code for a refurbished
Insignia player you so badly needed some time ago, silly?
<chuckles>
Hyman Rosen
> Hey Hyman how is the progress to get the source code for a refurbished
> Insignia player you so badly needed some time ago, silly?
>
> <chuckles>
Nothing yet. This is, of course, why the SFLC is still pressing
its suit against Insignia. If it gets to trial, Insignia will be
in the rather odd position of having promised to comply with the
GPL in its manual. Sounds like promissory estoppel to me.
David Kastrup
Promissory estoppel is a defense, not a complaint.
--
David Kastrup
Alexander Terekhov
Hyman Rosen wrote:
>
> On 10/13/2010 8:17 AM, Alexander Terekhov wrote:
> > Hey Hyman how is the progress to get the source code for a refurbished
> > Insignia player you so badly needed some time ago, silly?
> >
> > <chuckles>
>
> Nothing yet. This is, of course, why the SFLC is still pressing
> its suit against Insignia.
LMAO!!!
The SFLC crooks are still *NOT* "pressing its suit against Insignia"
(that would be suing Best Buy
Stores, L.P. and BestBuy.Com, LLC) to begin with, stupid Hyman.
http://insigniaproducts.com/termsofuse.html
Best Buy Co., Inc. on the other hand is still pressing its suit against
moronic GNUtard plaintiffs:
"10. Owner and Operator of the Insignia Products Web site
10.1 Best Buy Stores, LP is the owner and operator of the Insignia
Products Web site."
"Best Buy Co., Inc. (�Best Buy�), erroneously sued in place of Best Buy
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Stores, L.P. and BestBuy.Com, LLC, answers Software Freedom Conservancy,
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Inc. and Erik Andersen�s (�Plaintiffs�) Original Complaint (�Complaint�)
as follows:
[... snip answer ...]
COUNTERCLAIMS
Defendant/Counterclaimant Best Buy for its separate counterclaims
against Plaintiffs Software Freedom Conservancy, Inc. and Erik Andersen
states and alleges as follows:
1. This is an action for declaratory judgment, together with such
further relief based thereon as may be necessary or proper, pursuant to
the Federal Declaratory Judgment Act, 28 U.S.C. �� 2201 and 2202. There
is an actual controversy between Best Buy and Plaintiffs arising under
United States copyright laws, Title 17 of the United States Code.
2. The subject matter jurisdiction of this Court is founded upon Title
28, United States Code �� 1331, 1338(a), 2201 and 2202.
3. Best Buy is a Minnesota corporation with its principal place of
business at 7601 Penn Ave. South, Richfield, Minnesota 55423.
4. Software Freedom Conservancy, Inc. alleges that it is a
not-for-profit New York corporation with its principal place of business
at 1995 Broadway, 17th Fl., New York, New York 10023.
5. Erik Andersen alleges that he has a residence in Springville, Utah.
6. Mr. Anderson alleges that he authored, developed and owns the
copyrights in a computer program called �BusyBox.�
7. Software Freedom Conservancy, Inc. alleges that it is a copyright
enforcement agent for Mr. Andersen with respect to BusyBox.
8. Mr. Andersen and Software Freedom Conservancy, Inc. (�Plaintiffs�)
allege that Best Buy has infringed Mr. Andersen�s alleged copyrights in
BusyBox.
FIRST COUNTERCLAIM
DECLARATORY JUDGMENT OF NON-INFRINGEMENT
9. Best Buy restates and realleges each of the allegations set forth in
the Counterclaim paragraphs 1-8 above.
10. By filing the instant Complaint, Plaintiffs have purported to assert
a claim for copyright infringement by Best Buy of copyrights in BusyBox.
11. Best Buy has not infringed any copyrights in BusyBox.
12. Best Buy is entitled to judgment that it has not infringed any
copyrights in BusyBox.
JURY DEMAND
13. Best Buy requests a jury trial on all issues triable of right by a
jury.
PRAYER FOR RELIEF
WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
favor against Plaintiffs/Counterclaimants as follows:
1. Dismissing Plaintiffs� cause of action with prejudice and on the
merits;
2. Declaring that Best Buy has not infringed the alleged copyrights in
BusyBox;
3. Awarding Best Buy its costs, including reasonable attorneys� fees,
incurred in connection with this matter; and
4. Awarding such other relief as this Court deems just and equitable.
Dated: New York, New York Respectfully submitted,
March 8, 2010
/s/ David Leichtman
David Leichtman (DL-7233) "
Alexander Terekhov
Dak, the concepts of pledge breach (plegii fractio) and estoppel
(including promissory estoppel) are related.
See e.g.
http://architects.dzone.com/articles/ibm-breaks-patent-pledge
("IBM Breaks Patent Pledge; Breaches the OSS Community's Trust
(Updated)")
See also:
http://www.ehow.com/about_5510397_explanation-promissory-estoppel-law.html
"Explanation of Promissory Estoppel Law
By Constitution Guru, eHow Contributor
updated: October 9, 2009
Promissory estoppel law is a legal theory that allows a person to
recover money in a situation that resembles a contract but lacks the
formalities required for an enforceable contract. Promissory estoppel is
an equitable principle, meaning it is a legal rule created and enforced
by courts and judges according to what the judges feel is fair in the
individual circumstances of the case.
Generally
Promissory estoppel law fills in a gap that, if left unfilled, would
leave some people unfairly without a legal remedy. Promissory estoppel
is a way to enforce an agreement that does not meet the legal
requirements for a contract. Estoppel is a Latin term meaning "to stop."
Basically, the defendant is stopped from refusing to honor a promise
made to the plaintiff. The defendant is required to honor the promise
even though it is not a binding contract.
History
The history of promissory estoppel goes back hundreds of years to the
common law of English courts. The law developed as an exercise of the
courts' independent power to grant legal and equitable remedies where
the statutory laws of Parliament were insufficient to meet every
conceivable set of facts. Promissory law developed to aid those who
deserved a remedy but did not meet the strict legal requirements to
prove a contract remedy.
Types
Promissory estoppel is also referred to as "justifiable reliance," or
simply "reliance." The details can vary from state to state, but as a
general matter the guiding principle is that a claim exists where the
plaintiff took some action in reasonable reliance on a promise made by
the defendant. For example, if I tell you that I will sell you a piece
of property for a certain price, and then you sell your current home in
reliance on my promise to sell you a new site for your home, you
probably will be able to enforce that promise even if we never enter
into a written contract.
Elements
To prove a claim for promissory estoppel, the plaintiff must show that
the defendant made a clear and definite promise, that the plaintiff
justifiably and substantially relied on that promise and suffered damage
as a result, that the defendant should have been aware the plaintiff
would rely on the promise, and that enforcing the promise like a
contract will be just and fair. Justifiable and substantial reliance
means the plaintiff had a sound, rational reason for relying on the
promise.
Misconceptions
A promissory estoppel is similar in character to a contract claim, but
in fact, the two claims are distinctly different. A contract claim is
based in law, whereas a promissory estoppel is firmly grounded in
equity. A contract requires proof of offer and acceptance, as well as
consideration, while promissory estoppel requires no such formalities. A
contract claim is based on the reasonable expectations of the
contracting parties, while promissory estoppel is based on what is
reasonable and fair under the circumstances."
AND
http://www.duhaime.org/LegalDictionary/E/Estoppel.aspx
"Estoppel Definition: A rule of law that when person A, by act or words,
gives person B reason to believe a certain set of facts upon which
person B takes action, person A cannot later, to his (or her) benefit,
deny those facts or say that his (or her) earlier act was improper.
Related Terms: Waiver By Conduct, Promissory Estoppel
Estoppel is the law's way of saying "you can't have your cake and eat
it."
One British judge said, in 1862:
"A man shall not be allowed to blow hot and cold - to affirm at one time
and deny at another - making a claim on those to whom he has deluded to
their disadvantage, and founding that claim on the very matters of the
delusion."
Estoppel has a rich history in English law, being described by William
Blackstone as:
"An estoppel ... happens where a man hath done some act or executed some
deed which estops or precludes him from averring any thing to the
contrary.
A 1891 English court decision summarized estoppel as:
"... a rule of evidence which precludes a person from denying the truth
of some statement previously made by himself".
In 1923, Justice Idington of Canada's Supreme Court adopted these words
in regards to estoppel:
"... if a man, whatever his real meaning may be, so conducts himself
that a reasonable man would take his conduct to mean a certain
representation of facts, and that it was a true representation, and that
the latter was intended to act upon it in a particular way, and he with
such belief does act in that way to his damage, the first is estopped
from denying that the facts were as represented."
In 1980, Lord Denning had opportunity to try his hand at describing
estoppel:
"... the word estoppel only means stopped. You will find it explained by
Coke. It was brought over by the Normans. They used the old French
estoupail. That meant a bung or cork by which you stopped something from
coming out. It was in common use in our courts when they carried on all
their proceedings in Norman-French.
"Littleton writes in the law-French of his day (15th Century) using the
words pur ceo que le baron est estoppe a dire ceo; meaning simply that
the husband is stopped from saying something.
"From that simple origin there has been built up over the centuries in
our law a big house with many rooms. It is the house called Estoppel.
"In Coke's time, it was a small house with only three rooms, namely
estoppel by matter of record, by matter of writing and by matter 'in
pais'. But by our time, we have so many rooms that we are apt to get
confused between them. Estoppel per rem judicatum, issue estoppel,
estoppel by deed, estoppel by representation, estoppel by conduct,
estoppel by acquiescence, estoppel by election or waiver, estoppel by
negligence, promissory estoppel, proprietary estoppel, and goodness
knows what else.
"These several rooms have this much in common: they are all under the
same roof. Someone is stopped from saying something or other, or doing
something or other, or contesting something or other. But each room is
used differently from the others. If you go into one room, you will find
a notice saying 'estoppel is only a rule of evidence'. If you go into
another room you will find a different notice: 'estoppel can give rise
to a cause of action'.
"Each room has its own separate notices. It is a mistake to suppose that
what you find in one room, you will find in the others.""
RJack
Really?
Google <"promissory estoppel is a cause of action">.
You'll get over 9000 url results. Are all 9000 wrong?
"Under American jurisprudence, equitable estoppel is available only as a
defense, while promissory estoppel can be used as the basis of a cause
of action."
http://en.wikipedia.org/wiki/Estoppel_in_English_law
Sincerely,
RJack :)
Alexander Terekhov
RJack wrote:
>
> On 10/13/2010 9:30 AM, David Kastrup wrote:
> > Hyman Rosen<hyr...@mail.com> writes:
> >
> >> On 10/13/2010 8:17 AM, Alexander Terekhov wrote:
> >>> Hey Hyman how is the progress to get the source code for a
> >>> refurbished Insignia player you so badly needed some time ago,
> >>> silly?
> >>>
> >>> <chuckles>
> >>
> >> Nothing yet. This is, of course, why the SFLC is still pressing
> >> its suit against Insignia. If it gets to trial, Insignia will be in
> >> the rather odd position of having promised to comply with the GPL
> >> in its manual. Sounds like promissory estoppel to me.
> >
> > Promissory estoppel is a defense, not a complaint.
> >
>
> Really?
>
> Google <"promissory estoppel is a cause of action">.
Poor dak should go directly to
http://everything2.com/title/gratuitous+promise
"In the case of promissory estoppel, the party trying to weasel out of
an agreement is "estopped" from asserting any of the usual defenses to a
contract: no agreement in writing, lack of consideration, that sort of
thing.
The theory of promissory estoppel provides:
A promise which the promisor should reasonably expect to induce action
or forbearance on the part of the promisee or a third person and which
does induce such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise.
Restatement (Second) of Contracts � 90(1) (1981)
Note well: the promise has to be something it would be reasonable to
expect people to rely on: you can't be legally bound to a promise made
jokingly. "
David Kastrup
> RJack wrote:
>>
>> On 10/13/2010 9:30 AM, David Kastrup wrote:
>> > Hyman Rosen<hyr...@mail.com> writes:
>> >
>> >> On 10/13/2010 8:17 AM, Alexander Terekhov wrote:
>> >>> Hey Hyman how is the progress to get the source code for a
>> >>> refurbished Insignia player you so badly needed some time ago,
>> >>> silly?
>> >>>
>> >>> <chuckles>
>> >>
>> >> Nothing yet. This is, of course, why the SFLC is still pressing
>> >> its suit against Insignia. If it gets to trial, Insignia will be in
>> >> the rather odd position of having promised to comply with the GPL
>> >> in its manual. Sounds like promissory estoppel to me.
>> >
>> > Promissory estoppel is a defense, not a complaint.
>> >
>>
>> Really?
>>
>> Google <"promissory estoppel is a cause of action">.
>
> Poor dak should go directly to
>
> http://everything2.com/title/gratuitous+promise
>
> "In the case of promissory estoppel, the party trying to weasel out of
> an agreement is "estopped" from asserting any of the usual defenses to a
> contract: no agreement in writing, lack of consideration, that sort of
> thing.
So just try to remember _who_ is trying to weasel out of an agreement.
--
David Kastrup
Alexander Terekhov
I fully agree that busybox folks collectively have a valid breach of
contract (agreement) claim against Insignia for failing to provide a
(pretty useless but still) replica of source code.
The problem with the claim is that busybox folks have no actual damages.
If I were a judge I would award Eric Andersen nominal contractual
http://en.wikipedia.org/wiki/Damages
"Nominal damages
On the other hand, nominal damages are very small damages awarded to
show that the loss or harm suffered was technical rather than actual.
Perhaps the most famous nominal damages award in modern times has been
the $1 verdict against the National Football League (NFL) in the 1986
antitrust suit prosecuted by the United States Football League. Although
the verdict was automatically trebled pursuant to antitrust law in the
United States, the resulting $3 judgment was regarded as a victory for
the NFL. Historically, one of the best known nominal damage awards was
the farthing that the jury awarded to James Whistler in his libel suit
against John Ruskin. In the English jurisdiction, nominal damages are
generally fixed at �2."
and impose attoney fees and sanctions on SFLC/SFC crooks for filing a
copyright (not a contract) suit.
Alfred M. Szmidt
I write this email to get an answer for the question "Can the vendor charge
for the GPL source code, for his value addition to the source code?"
I suggest you check the GPL FAQ, it answers your question:
http://www.gnu.org/licenses/gpl-faq.html
RJack
That's right! Check the Free Software site for straightforward advice!
ROFL
Also, when you have questions about file sharing goto the RIAA's site
http://www.riaa.com/physicalpiracy.php for equally unbiased,
straightforward advice. Yes sir... unbiased ... no propaganda there!
Sincerely,
RJack :)
Alexander Terekhov
Alexander Terekhov
On 06/14/2011 it was ordered to dismiss the claims against "Insignia"
(the defendant was Best Buy) WITH PREJUDICE per stipulation filed by
Busybox Plaintiffs and "Insignia" (the defendant was Best Buy).
(In exchange Best Buy agreed that its counter claims against Busybox
plaintiffs be dismissed as well).
Forget the source code, Hyman.
Oh mighty mighty GPL...
<chuckles>
regards,
alexander.
Hyman Rosen
> Forget the source code, Hyman.
> Oh mighty mighty GPL...
Insignia does make the GPLed sources for its "Chumby" device
available for download at
<http://insignia.chumby.com/pages/source_code>, so as usual,
it's not some company anti-GPL policy that's involved, just
neglect. Those sources include BusyBox.
Alexander Terekhov
[... blah blah ...]
Stop being silly and instead try to get the source code for Insignia
player that you reportedly needed so badly for so long time...
Then post here the results.