The rise of copyright trolls [LWN.net]

The rise of copyright trolls

Posted May 2, 2017 21:00 UTC (Tue) by armijn (subscriber, #3653)
Parent article: The rise of copyright trolls

One of the panelists here. To make it clear: this panel was purely about frivolous enforcement actions by someone not interested in compliance, but purely personal monetary gain and how to deal with this threat.

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The rise of copyright trolls

Posted May 2, 2017 21:02 UTC (Tue) by boog (subscriber, #30882) [Link] (40 responses)

"...and how to deal with this threat." By being in compliance?

The rise of copyright trolls

Posted May 2, 2017 21:19 UTC (Tue) by armijn (subscriber, #3653) [Link] (39 responses)

It is, unfortunately, not as easy as that because "compliance" could mean very different things depending on whom you talk to and in which jurisdiction that conversation takes place, which creates uncertainty that can be exploited. Please read the section called "Governance" in the parent article.

The rise of copyright trolls

Posted May 2, 2017 21:48 UTC (Tue) by boog (subscriber, #30882) [Link] (38 responses)

The "Governance" section you mention contains a single example of ambiguity about compliance: can a distributor of unmodified code be in compliance by pointing to to a supplier offer of the source? Surely that isn't a huge problem and doesn't require extensive jurisprudence to establish.

The rest of the section describes the large attack surface that non-compliant operators expose. It is significant, but I'm tempted to say that that is their problem.

The rise of copyright trolls

Posted May 2, 2017 22:13 UTC (Tue) by armijn (subscriber, #3653) [Link] (37 responses)

OK, since you asked for it I invoke: EU packaging regulations! These require companies to minimize packaging material for products sold in the EU to combat unnecessary waste. Say that you have a tiny component that comes with GPL software. Adding a CD, with the sources would increase the packaging dramatically, and might not be compliant with EU packaging regulations. Same might go for adding paper with the license texts and written offer.

Fair enough, you add those license texts electronically you would say and display them. Now, this hypothetical product has no interface, so there is no way for the user to actually see those license texts and written offer.

Now there is a possible conflict between EU packaging regulations and a *strict* reading of the GPL (as pushed for by several people) and it might be impossible to satisfy both requirements (and you are simply not going to win from Brussels). And that is just one of many possibly conflicting sets of rules.

What Mr Radcliffe said is that we need to set community expectations of what acceptable in terms of compliance actually means, but at the moment we are not having that discussion.

The rise of copyright trolls

Posted May 2, 2017 22:36 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link] (18 responses)

> Adding a CD, with the sources would increase the packaging dramatically, and might not be compliant with EU packaging regulations. Same might go for adding paper with the license texts and written offer.
GPLv2 is a smallish two-page text. Putting it along with your software is enough, no need for CD.

My lawyers assured me that printing: "Warning! Code may contain peanuts^W GPL, see the full license and source code at: http://..." is enough to comply.

The rise of copyright trolls

Posted May 2, 2017 22:43 UTC (Tue) by armijn (subscriber, #3653) [Link] (11 responses)

Thank you for proving my point, as this is definitely not everyone's interpretation (and very certainly not Mr McHardy's interpretation). We, as a wider community, really need to have this conversation about what acceptable means in terms of compliance.

The rise of copyright trolls

Posted May 3, 2017 6:20 UTC (Wed) by paulj (subscriber, #341) [Link] (10 responses)

Are you seriously arguing that EU regulations do not allow the inclusion of some text that would probably fit on one sheet of easily recycled paper? And, ergo, we should ignore GPL non-compliance?

I seem to get volumes of paper with most electronics that I buy, even trivial bits of electronics. Yet, a copy of the GPL and a URI is a problem?

The rise of copyright trolls

Posted May 3, 2017 7:21 UTC (Wed) by armijn (subscriber, #3653) [Link] (9 responses)

It is an example that was mentioned to me a couple of years ago as a possible future clash (EU regulations tend to take a while to come into effect). The thing is: there are many laws in various jurisdiction that might be conflicting with the GPL that likely we don't know about and that will come as a surprise when exploited. So, once again: we need to set expectations about what we think acceptable compliance should look like.

The rise of copyright trolls

Posted May 3, 2017 8:30 UTC (Wed) by Cyberax (✭ supporter ✭, #52523) [Link]

GPL is pretty clear on this:

"7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License."

So either you get a waiver for the legal requirements or stop distributing a GPL-ed product. As of now there are no laws preventing putting a tiny printed GPLv2 text with a product.

I have very few sympathies to companies that violate GPL and I absolutely welcome any attempts to bring compliance, even by trollish methods. I'd gladly contribute to a fund that will extend this trolling to all other companies that ignore GPL.

This is quite selfish - we spend time making sure our products are license-clean (either no GPL or GPL with source code offer) and I absolutely detest that many of our competitors can just wave away all the compliance issues.

The rise of copyright trolls

Posted May 3, 2017 12:35 UTC (Wed) by paulj (subscriber, #341) [Link] (7 responses)

Ok, so I think what is missing from this article, and which really needs is to be done is to specify exactly which parts of McHardy's compliance efforts are unacceptable.

Is it the fact that he sends Cease and Desist letters?

Is it that he offers to help them become compliant, in return for a fee for his time (which this article describes as 'modest')?

Is it that he has them sign an undertaking to remain in compliance from there on in, with penalties for further non-compliance?

Is it the size of those penalties for further non-compliance?

Is it the threat of injunctions?

What exactly is it that free software developers are not allowed to do, to enforce their copyright?

The rise of copyright trolls

Posted May 3, 2017 12:51 UTC (Wed) by armijn (subscriber, #3653) [Link] (6 responses)

He actually does not offer companies to help them to come back in compliance. The "engineering time" specifically refers to the hours of engineering to discover "his" code in devices and establishing that the product is not complying. In the past 3.5 years I have never seen him help a company come back into compliance apart from saying "read this FAQ from FSF" or similar. The only feedback companies get is "this is wrong" and it makes them feel like a piñata as they feel lost.

This is one of the reasons is why Shane and I wrote this new (free of charge) guide we just published to get the companies up to speed.

The rise of copyright trolls

Posted May 3, 2017 21:08 UTC (Wed) by paulj (subscriber, #341) [Link] (5 responses)

OK, so, should I ever find a company is infringing on the free software licence I have given to some code of mine, are you saying that:

- I can not recover my costs in the time I spent to show there was infringement, unless I also provide further time consulting with them on how to come into compliance?

What if I have another job and I am not at liberty, via conditions of employment and/or time, to go and do other licence compliance consulting? I simply am not allowed to try get infringers to honour the licence to my code?

I think precision is very important here.

The rise of copyright trolls

Posted May 3, 2017 21:17 UTC (Wed) by paulj (subscriber, #341) [Link]

I'll be honest, this sounds to me like there's possibly not actually be any intrinsic problem with what McHardy is doing - other than that you feel there are companies who don't understand how they got into their compliance mess, nor how to get out of it, and have sympathy for them.

Which makes me think the answer isn't to find a way to stop people from enforcing the licence on their code, but to provide some kind of service to these companies to help them with compliance. Possibly the only "social contract" change needed then is to have those who initiate enforcement actions be required to refer to the subject to a reputable or neutral compliance advice service

From what you say, McHardy did refer people to GPL resources in his actions. He's hardly obligated to provide further legal advice to them. Indeed, my experience of lawyers is that they strongly advise you to _not_ try give any legal-ish advice to any parties you have a complaint with - so I doubt that someone pursuing a GPL infringement would ever want to do anything more than provide a link to a neutral website.

The rise of copyright trolls

Posted May 3, 2017 21:44 UTC (Wed) by armijn (subscriber, #3653) [Link] (3 responses)

No, I did not say that at all.

Approaching companies with a fairly innocent request, tricking them into signing a contract (at which point it is no longer about the license, but about the *contract*) and then coming up with the most bizarre interpretations of the license to show that companies are breaching the contract to milk them for a lot of money under the guise of compliance while not actually helping companies despite companies actively asking for help (and simply letting them figure it out themselves), and then hitting them again over and over again crying about non-compliance is simply immoral. It has nothing to do with compliance, or helping free software. It is ordinary trolling.

Enforcement and helping free software can actually go hand in hand: when I was helping out at gpl-violations.org we tried to make sure to start a dialogue with the companies to find out where their issues were and how to help them further. There it served as a wakeup call to companies. With McHardy it is scorched earth.

The rise of copyright trolls

Posted May 22, 2017 7:43 UTC (Mon) by ras (subscriber, #33059) [Link] (2 responses)

Thanks for participating here. I've found you comments very helpful in understanding what the actual issues are.

Others have commented how this is a GPL v2 problem mostly fixed by GPL v3. IMO GPL v3 is a would be a truly worthy successor on GPL v2, if it weren't "Installation Information" brain fart that renders ended up rendering it incompatible with the way most software is distributed nowadays (app stores). (I give Moglen credit for the beauty and clarity of the writing in GPL v3, but as one of the great intellects behind it he must shoulder a fair portion of the blame for this mistake. I'm sure it's the main reason for it's poor uptake to date.)

But there is a fix patch for GPL v3. You can neuter that rule. I am no lawyer so so I pinched this para from a fsf lawyers blog post, where he praised it (or maybe didn't criticise it - which I took as praise):

> The copyright holders grant you an additional permission under Section 7 of the GNU Affero General Public License, version 3, exempting you from the requirement in Section 6 of the GNU General Public License, version 3, to accompany Corresponding Source with Installation Information for the Program or any work based on the Program. You are still required to comply with all other Section 6 requirements to provide Corresponding Source.

Add that little snippet, and you have an excellent successor for GPL V2. I wish more people would do it because GPL v3 is so much better than GPL v2 in so many ways.

The rise of copyright trolls

Posted May 22, 2017 8:16 UTC (Mon) by Cyberax (✭ supporter ✭, #52523) [Link] (1 responses)

> Add that little snippet, and you have an excellent successor for GPL V2. I wish more people would do it because GPL v3 is so much better than GPL v2 in so many ways.
You're joking, right?

The rise of copyright trolls

Posted May 23, 2017 14:40 UTC (Tue) by bronson (subscriber, #4806) [Link]

Just massively oversimplifying I think. There are a few more issues to address before the GPLv2/v3 schism can be fixed.

The rise of copyright trolls

Posted May 3, 2017 3:35 UTC (Wed) by bronson (subscriber, #4806) [Link] (5 responses)

You saw this line in the article, right?

> There are some "more exotic" complaints too, Radcliffe said, including that the GPL text distributed is not translated into German or that the source offer should not come from the parent company; there are others that are even more odd.

You probably want to find some more careful lawyers.

The rise of copyright trolls

Posted May 3, 2017 3:41 UTC (Wed) by Cyberax (✭ supporter ✭, #52523) [Link] (4 responses)

Yes I did.

These are the sorts of the complaints that are usually tucked onto a larger litigation ("murder, arson and jaywalking" style). I very much doubt that he's suing solely for GPL not being translated into German.

Also keep in mind that German law is pretty harsh towards frivolous lawsuits.

The rise of copyright trolls

Posted May 5, 2017 6:41 UTC (Fri) by bronson (subscriber, #4806) [Link] (3 responses)

So jaywalking is allowed if it's not accompanied by murder and arson?

The point is: this stuff is complex and open to interpretation. Your comments seem to show this, even though you claim otherwise.

If you can find a reputable lawyer to agree that printing "Contains GPL, see license at http://blah" on a slip of paper is clearly sufficient, then I'm interested. Until then, I don't think anyone's going to stake their company on advice found in a LWN comment.

Besides, I bet McHardy could find compliance issues in the paper type and font size...

The rise of copyright trolls

Posted May 5, 2017 9:27 UTC (Fri) by farnz (subscriber, #17727) [Link] (2 responses)

At a former employer, we had a serious lawyer say exactly that. Of course, what had to be present at http://blah/ was more than just the licence text - we also had to provide full GPL sources for all the software we shipped, and detailed build instructions to enable you to rebuild and replace any GPL software on the devices we shipped with your own build.

Indeed, our lawyer actually suggested that we could go further - we already put a sticker on the device with MAC address and serial number - we could simply put "Software licence details at http://blah/ - you have rights" on that sticker, and as long as http://blah was correctly set up to cover the licence requirements, they'd defend us pro-bono. We also ran this past the FSFE, who verified our instructions on the web site, and then were willing to write a letter telling us that in their opinion, we were compliant given the sticker or the slip of paper. Further, there was no issue with the idea that to get support from us, you had to restore our original software, or with us shipping "surplus" source (e.g. we used gdb internally for debugging - we didn't install gdb on shipped devices, but we could still choose to offer you gdb source code).

This did lead to some challenges for us (we had to come up with a process to let you rebuild things that we shipped outside our infra, to let you reinstall binaries on the product in such a way that it was tamper-evident for our support team, and to reset back to a clean state), but we made it work.

The rise of copyright trolls

Posted May 5, 2017 15:28 UTC (Fri) by bronson (subscriber, #4806) [Link] (1 responses)

You found a great lawyer! And thanks for the details -- it sounds like the slip of paper was one of the easier parts.

If you ever felt like turning this into an article or a blog post, I'd be interested to read more.

The rise of copyright trolls

Posted May 7, 2017 15:13 UTC (Sun) by pboddie (guest, #50784) [Link]

Agreed with this! Also, given that the intent behind a licence must surely have something to do with what is acceptable practice in the context of fulfilling the terms of such a licence, would it not be a good idea to get the FSF to verify that certain practices are, indeed, sufficient?

The rise of copyright trolls

Posted May 2, 2017 23:07 UTC (Tue) by boog (subscriber, #30882) [Link] (1 responses)

These issues are for the courts to decide. They will read the GPL to decide what is enforceable, not listen to a community to which a plaintiff probably won't even belong. If good faith distributors are being trolled over such minutiae, then I can see the problem. But the solution there is to change to a clearer licence (GPL3?) or establish jurisprudence in the courts.

In any case: https://www.gnu.org/licenses/gpl-faq.en.html#WhatDoesWrit...

Basically, you can comply by passing on a written offer to the unmodified source code that the original supplier has made publicly available. Certainly no need to provide a CD.

The rise of copyright trolls

Posted May 3, 2017 6:52 UTC (Wed) by pbonzini (subscriber, #60935) [Link]

Passing along someone else's offer only applies in case of non-commercial distribution.

The rise of copyright trolls

Posted May 3, 2017 9:49 UTC (Wed) by niner (guest, #26151) [Link] (1 responses)

Please explain how companies manage to sell any products containing source code. You make it sound almost impossible despite most proprietary licenses being much more stringent than the GPL. If complying with the GPL is so hard, how can they comply with proprietary licenses with all those juristictions and conflicting rules involved?

The rise of copyright trolls

Posted May 3, 2017 10:22 UTC (Wed) by armijn (subscriber, #3653) [Link]

I am not dealing with licensing of proprietary code, but money likely gets you a long way with proprietary licensing. I am pretty sure that there are plenty of lawsuits going on in proprietary land that we simply don't know about.

Truth is that the GPLv2 is showing its age: some of the requirements were clearly made for different times. There is a very big difference between *practical* compliance and *strict* compliance. Practical compliance is good, trolling because companies are not strictly complying is not good. At no time during the panel discussion was it even suggested that non-compliance is an option (far from it) and I am really puzzled where people seem to get this idea. It was not about preventing enforcement, it was not about hindering compliance, it was about dealing with excesses that are harmful.

What everyone would benefit from is having a clear understanding about what compliance means to a community of developers and to establish a social norm. This is much more helpful than pursuing it in the courts.

The rise of copyright trolls

Posted May 3, 2017 10:07 UTC (Wed) by pbonzini (subscriber, #60935) [Link]

> Same might go for adding paper with the license texts and written offer.

Pharmaceutical companies (at least in Italy) are very good at folding pages and pages of small print inside a small package.

The rise of copyright trolls

Posted May 3, 2017 10:32 UTC (Wed) by JanC_ (subscriber, #34940) [Link] (7 responses)

Please give proof that EU packaging regulations forbid you to include legally required documentation.

The rise of copyright trolls

Posted May 3, 2017 11:09 UTC (Wed) by armijn (subscriber, #3653) [Link]

You (and many others) are totally missing the point that I am making. As said, it was an example given to me by a someone indicating a *potential* future problem and how regulations totally unrelated to software could interfere with a *strict* interpretation of the GPL. The real problem that this panel tried to address is that most projects out there have not made it clear what "compliance" means in their book, allowing trolls to exploit ambiguities and that is something that should be addressed. We need a social norm around compliance.

Now, if you'll excuse me, a few more urgent and frivolous cases just landed on my desk...

The rise of copyright trolls

Posted May 3, 2017 11:31 UTC (Wed) by armijn (subscriber, #3653) [Link] (5 responses)

I suggest reading annex II.1 at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:...

The rise of copyright trolls

Posted May 3, 2017 11:47 UTC (Wed) by aggelos (subscriber, #41752) [Link] (1 responses)

Please present your argument; not the text of the directive. If there is an issue here, it needs to be further publicized, but that's not at all obvious from the text.

The rise of copyright trolls

Posted May 5, 2017 9:03 UTC (Fri) by aggelos (subscriber, #41752) [Link]

Please present your argument; not the text of the directive. If there is an issue here, it needs to be further publicized, but that's not at all obvious from the text.

Hey Armijn. Any chance you could do this? I realize this is a long discussion and wouldn't want this part (which I think is central to some of the points) to fall through the cracks.

The rise of copyright trolls

Posted May 3, 2017 15:30 UTC (Wed) by ballombe (subscriber, #9523) [Link]

I suggest you buy anything at IKEA and come back (do not read all the notices first, we would wait too long).

The rise of copyright trolls

Posted May 8, 2017 9:21 UTC (Mon) by aggelos (subscriber, #41752) [Link]

(Once more, replying to Armijn directly in case he has missed the other messages)

Hey Armijn. Any chance you could explain how you think the requirements of the GPL might conflict with the EU directive you referenced, given the text of Annex II.1 and the preceding context?

The rise of copyright trolls

Posted May 27, 2017 20:42 UTC (Sat) by JanC_ (subscriber, #34940) [Link]

That says you should limit packaging to what is necessary, and that whenever possible packaging should be reusable or recyclable. Including the GPL is legally necessary when you distribute software that is released under the GPL, so there is no problem.

Also, Article 7, 2nd point, explicitly says that protection of authenticity, technical characteristics, property rights, etc. must be taken into account.

The rise of copyright trolls

Posted May 3, 2017 11:35 UTC (Wed) by aggelos (subscriber, #41752) [Link] (2 responses)

Now there is a possible conflict between EU packaging regulations and a *strict* reading of the GPL (as pushed for by several people) and it might be impossible to satisfy both requirements (and you are simply not going to win from Brussels). And that is just one of many possibly conflicting sets of rules.

I was going to ask for some instances of commercial products running afoul of the EU packaging regulations due to text that is included because of an obligation to a third party, but I see you already shifted your claim to "a possible future clash" and then to "many laws in various jurisdiction that might be conflicting with the GPL that likely we don't know about".

Would you kindly drop the unsubstantiated speculation and point to _specific_ cases that constitute problems so that there can be a meaningful discussion? Otherwise, this all sounds like fearmongering.

The rise of copyright trolls

Posted May 3, 2017 12:47 UTC (Wed) by armijn (subscriber, #3653) [Link] (1 responses)

I didn't shift anything. Please read more carefully.

It seems that a few of you are trying to put *me* on trial here for flagging a serious issue that companies are having (trolling because there is no social norm around compliance which is a different problem than general non-compliance with the GPL). I understand the anger, but it is not very productive.

The rise of copyright trolls

Posted May 3, 2017 13:20 UTC (Wed) by aggelos (subscriber, #41752) [Link]

I specifically pointed to where I noticed the shift. If I have misread, please explain how.

My impression is the "anger" as you perceive it, comes from how the disproportionate the talking up of the "potential" issues is to the evidence brought forward. Personally, I'm all for hearing your reading of the EU packaging directive to justify a potential conflict with the GPL and less for how this "could be bigger than patents" (attributed to Coughlan), nebulous "uncertainty" (your comment here), "I really wish it were as simple as that.<EOM>" and other such fearmongering.

So yah, it could happen that you'll make a clear case and be faced with anger and denial. But AFAICT this hasn't happened yet.

The rise of copyright trolls

Posted May 3, 2017 23:04 UTC (Wed) by anselm (subscriber, #2796) [Link] (1 responses)

EU packaging regulations! These require companies to minimize packaging material for products sold in the EU to combat unnecessary waste. Say that you have a tiny component that comes with GPL software. Adding a CD, with the sources would increase the packaging dramatically, and might not be compliant with EU packaging regulations.

All sorts of computer products here in the EU come with a CD, which usually contains drivers and/or documentation. This doesn't seem to fall foul of packaging regulations even though including the CD could easily be avoided by making the drivers and documentation downloadable on the Internet. And of course on the typical driver/documentation CD there would be ample room for source code if the manufacturer had to comply with the GPL. Therefore I call BS. Come up with a better example.

What Mr Radcliffe said is that we need to set community expectations of what acceptable in terms of compliance actually means, but at the moment we are not having that discussion.

Presumably, acceptable compliance means that the complete source code for all GPL-licensed components of a product is made available to downstream users as per the stipulations of the GPL (i.e., either by direct inclusion or else by making a written offer to provide it at cost). That doesn't appear to be negotiable, because effectively waiving this obligation would make it silly for software authors to use the GPL in the first place (the BSD licence would do perfectly well).

The rise of copyright trolls

Posted May 4, 2017 9:01 UTC (Thu) by armijn (subscriber, #3653) [Link]

Indeed, the GPL itself was never part of the discussion (which people here seem to forget). The discussion was about excesses due to lack of social norms about what is acceptable. To give an example, for most people it is acceptable to just go to a download page and download the complete and corresponding source code. But, if you adhere to a very strict reading of the license it might not be that easy.