Top 10 legal events in the field of free software in 2015
- Transfer
In 2015, there were a ton of legal cases important to the free software community. Continuing the tradition of a retrospective review of the top 10 legal events in the field of free software , the following events were included in such a list for 2015:
1. Settlement of court cases of Versata regarding the interpretation of the General Public License of the second version (GPLv2)
As we noted last year, GPLv2 continues to be the most widely used and most important license for free and free software. Black Duck Software believesthat under the GPLv2 license, 16 billion lines of code were licensed. The courts resolved several important issues in Versata's affairs back in 2014, however, all processes were completed in 2015 without further definitions.
The definitions were made solely on the stated issues, and thus, their precedent value is limited, but they suggest how the courts will resolve the main issues related to GPLv2:
These cases emphasize the need to manage the use of open source software because a dispute arose when Versata, a proprietary software vendor, included GPLv2 licensed software in its software package from Ximpleware. Versata did not explain how the Ximpleware software appeared in its own software, and thereby violated the provisions of GPLv2. After finding a violation of the provisions of the GPLv2, Ximpleware sued all Versata customers. Given that the cases eventually ended with amicable agreements, we will have to wait for another trial to clarify the interpretation of the provisions of the GPLv2 license.
2. The first decision on the interpretation of the General Public License of the third version (GPLv3)
The Halle Land Court, Germany, in July 2015 issued the first decision to interpret the GPLv3 license. The case concerned the actions of the institute of higher education. The defendant (licensee) did not object to allegations of violation of GPLv3. Instead, the dispute centered on applying the “restorative” provisions of section 8 of the GPLv3 license. Section 8 retains the automatic termination provided for in the GPLv2 license, but provides for the restoration of rights under this license if the licensee eliminated the violation within 30 days.
In this case, the user eliminated the violation within the required time period, but refused to sign the statement on termination of the continuation of unlawful actions, which was requested by the plaintiff in order to encourage the defendant to refrain from re-violating the provisions of the GPLv3. The court ruled that the provision of section 8 on the restoration of rights does not deprive the plaintiff of the right to a preliminary injunction to prevent future violations, in particular if the defendant refused to sign the plaintiff's statement to cease the continuation of unlawful actions. For more information, see German Court Explores Section 8 of the GPLv3 Termination License by Richard Fontana.
3. Linux programmer judges VMWare for violating GPLv2 for Linux
The Linux operating system is one of the most widely used software in the world from a number of free software, but still rarely affected by lawsuits. Be that as it may, in March 2015, Christoph Hellwig, a key Linux kernel developer, sued VMware in the Hamburg District Court, Germany. Helvig claimed that VMware violated the terms of GPLv2 by combining its own VMware code, referred to as “vmkernel”, with Linux in such a way that a derivative work was created but the corresponding vmkernel source code was not licensed under the GPLv2 license. VMkernel is the "core" of VMware's ESXi operating system, which manages the hardware and software resources of a physical server.
VMware replied that vmkernel is not a derivative work with respect to Linux, but only interacts with Linux through the VMK API. VMware also noted that drivers working with vmkernel do not need Linux drivers, but VMware offers a "compatible alternative through the downloadable kernel module" vmklinux "associated with any Linux drivers that loads via vmkernel and connects via the VMK API." The facts relevant to the case could not be confirmed, since the lawsuit and other judicial documents are confidential information in accordance with the rules of legal proceedings in Germany. This case is very likely to become very important in determining the scope of GPLv2, since the parties apparently have not reached an agreement in this dispute.
4. GPL Community Compliance
The Software Freedom Conservancy and Free Software Foundation have teamed up this year to develop the GPL-Oriented Community Guidelines (Guidelines), published in September 2015 ( here and here ). The increase in free software litigation has become a source of community concern, and the Guidelines are therefore intended to help the community prepare the basis for a consistent and unified approach to law enforcement. The guidelines follow last year’s publication of the second edition of the GPL Compliance Practical Guide prepared by Software Freedom Law Center and the joint publication of the joint first edition of the SFC and FSF"Copyleft and the GNU General Public License: A Comprehensive Tutorial and Guide . "
5. European Commission antitrust investigation of Google and its Android operating system The
European Commission has launched an informal investigation to determine whether certain provisions of Google’s contracts for distributing the Android operating system violate European Union antitrust laws. The Commission is paying particular attention to the question of whether the provisions of the Android OS agreements that require the use of Google’s own applications and services violate EU legal regulations. The Commission's investigation will focus on the following three statements:
The investigation demonstrates the importance of the Android OS in the smartphone and tablet market, as The Commission is investigating a potential violation by Google regarding its “dominant position” in relation to the Android OS.
6. Android continues to branch
CyanogenMod LLC is a venture capital-backed company that developed CyanogenMod, a specialized after-sales firmware for Android devices. The CyanogenMod firmware is based on the Android Open Source Project. The CyanogenMod firmware is positioned as an important potential competitor for the Android OS due to its substantial funding. Be that as it may, the company's potential business model is now the subject of legal proceedings in India.
One of the first licensees of CyanogenMod was Oppo Electronics, which is part of the BBK Electronics Group, a huge company from China. CyanogenMod granted Oppo a non-exclusive, worldwide valid license, and Oppo founded a new company, OnePlus, to distribute its phone based on CyanogenMod firmware. However, CyanogenMod has also granted exclusive rights to Micromax Informatics, Ltd. in India. An Indian court found that Micromax had exclusive rights to the CyanogenMod firmware and trademark in India. Later, OnePlus decided to develop its own version of the Android OS and stop using the CyanogenMod firmware. Such a version will, like CyanogenMod firmware, be based on the Android Open Source Project.
7. Promotion policies
All open source projects need reasons to obtain intellectual property rights (IP) from contributors to the extent that they can be sure that projects can license their software developed within the framework of projects. Many projects use either “project licenses” or counter-licensing agreements (projects that instead require the alienation of the exclusive right to counter-credits are very few). Be that as it may, the use of “contributor license agreements” is very controversial in certain communities, and in particular in the Linux community. On the other hand, my review of emails during the development of the Apache Software License of the second version (ASLv2) and discussion with the people involved in the preparation of this document makes it clear
The various views of the free software communities were very clear in the debate with the OpenStack community regarding the use of standard Apache contributor license agreements. Many experienced Linux community developers strongly objected to the continued use of Apache Contributor License Agreements and wanted to use the Developers Certificate of Origin, abbreviated DCO, used in the Linux community. After significant debate, the Board of Directors [1] decided to continue to use the Apache Standard Contributor License Agreement for company-provided counter-promotions, but to apply the DCO procedure to individuals-based contributions.
8. Companies publish projects under free licenses
As we noted last year, many large companies used open source software as an explicit strategy for the development of their software, and this trend continues to grow and gain momentum this year. Jim Zemlin, executive director of the Linux Foundation, described the strategic use of open source software as external “research and development.” Last year, Microsoft published under a free license the .NET software framework (software used by millions of developers to create functional sites and other large online applications). This year, Apple announced the disclosure of Swift programming language code. This event continues the trend when large companies use open source software development methods to manage projects originally created within companies,
9. Successful exemption under Section 501 (c) (6)
Several years ago, STR funds in accordance with federal tax laws were regularly exempted by the United States Internal Revenue Service (IRS) from taxes under Section 501 (c) (6). [2] This exemption made it possible to exclude contributions from their participants from the tax base of STR funds. However, in the last 3-4 years, the IRS has routinely denied open source funds such exemptions. However, this year the OpenStack Foundation successfully achieved a similar tax exemption based on the provisions of Article 501 (c) (6), although for this the Fund had to challenge the initial refusal to receive such exemption, which was disputed in its favor .
The responses from the Office to the Fund demonstrate a significant misunderstanding of how open source funds operate and what role they play. For example, the Office believed that the fund was a direct competitor to Amazon, Google, and Microsoft regarding cloud offerings. Although the foundation ultimately succeeded, such misunderstandings will continue to be a headache for such requests for release under Article 501 (c) (6). To help the community, the foundation will make its statements, IRS responses, and follow-up available this year on the Open Source Initiative (OSI) site.
10. Potential FCC Prohibition of Free Software on Routers
The US Federal Communications Commission (FCC) has shown a similar misunderstanding of free software in its new router policy. The initial draft rules apparently prohibited the use of open source software, as contained a requirement that manufacturers should prevent the use of custom modifications that can activate radio communications in routers, which will go beyond their license or licensing parameters. The Commission noted that the actions are aimed at eliminating interference in the Doppler radars of the US Federal Aviation Agency (FAA) arising from such modified devices and other possible problems.
After massive negative reviews from the free software community, the Commission clarified that its rules are not designed to prohibit the use of free software and that router manufacturers can put these rules into practice using technical means. Many commentators to the Commission from the STR community remain skeptical of the Commission's response. She herself has not yet made a final decision. However, at least one of these reviewers noted that in the past the Commission worked with Linux distributors to enable the deployment of wireless access points based on Linux computers, so we can hope
The original text is licensed under CC BY-SA 4.0.
1. Settlement of court cases of Versata regarding the interpretation of the General Public License of the second version (GPLv2)
As we noted last year, GPLv2 continues to be the most widely used and most important license for free and free software. Black Duck Software believesthat under the GPLv2 license, 16 billion lines of code were licensed. The courts resolved several important issues in Versata's affairs back in 2014, however, all processes were completed in 2015 without further definitions.
The definitions were made solely on the stated issues, and thus, their precedent value is limited, but they suggest how the courts will resolve the main issues related to GPLv2:
(a) the court approved a “one-tier” GPLv2 structure in which violation by an intermediate distributor (in this case, Versata Software, Inc.) does not terminate the rights of its subsequent licensees (companies such as Pacific Life Ins. Co., Metropolitan Life Ins . Co., and Prudential Ins. Co. of America)
(b) determining the type of activity that establishes “distribution” and thereby imposes obligations under the GPLv2 license
(c) the nature of patent rights granted under certain circumstances under the GPLv2 license ( for a more detailed description of facts and solutions, see http: //opensource.c om / law / 14/12 / gplv2-court-decisions-versata )
These cases emphasize the need to manage the use of open source software because a dispute arose when Versata, a proprietary software vendor, included GPLv2 licensed software in its software package from Ximpleware. Versata did not explain how the Ximpleware software appeared in its own software, and thereby violated the provisions of GPLv2. After finding a violation of the provisions of the GPLv2, Ximpleware sued all Versata customers. Given that the cases eventually ended with amicable agreements, we will have to wait for another trial to clarify the interpretation of the provisions of the GPLv2 license.
2. The first decision on the interpretation of the General Public License of the third version (GPLv3)
The Halle Land Court, Germany, in July 2015 issued the first decision to interpret the GPLv3 license. The case concerned the actions of the institute of higher education. The defendant (licensee) did not object to allegations of violation of GPLv3. Instead, the dispute centered on applying the “restorative” provisions of section 8 of the GPLv3 license. Section 8 retains the automatic termination provided for in the GPLv2 license, but provides for the restoration of rights under this license if the licensee eliminated the violation within 30 days.
In this case, the user eliminated the violation within the required time period, but refused to sign the statement on termination of the continuation of unlawful actions, which was requested by the plaintiff in order to encourage the defendant to refrain from re-violating the provisions of the GPLv3. The court ruled that the provision of section 8 on the restoration of rights does not deprive the plaintiff of the right to a preliminary injunction to prevent future violations, in particular if the defendant refused to sign the plaintiff's statement to cease the continuation of unlawful actions. For more information, see German Court Explores Section 8 of the GPLv3 Termination License by Richard Fontana.
3. Linux programmer judges VMWare for violating GPLv2 for Linux
The Linux operating system is one of the most widely used software in the world from a number of free software, but still rarely affected by lawsuits. Be that as it may, in March 2015, Christoph Hellwig, a key Linux kernel developer, sued VMware in the Hamburg District Court, Germany. Helvig claimed that VMware violated the terms of GPLv2 by combining its own VMware code, referred to as “vmkernel”, with Linux in such a way that a derivative work was created but the corresponding vmkernel source code was not licensed under the GPLv2 license. VMkernel is the "core" of VMware's ESXi operating system, which manages the hardware and software resources of a physical server.
VMware replied that vmkernel is not a derivative work with respect to Linux, but only interacts with Linux through the VMK API. VMware also noted that drivers working with vmkernel do not need Linux drivers, but VMware offers a "compatible alternative through the downloadable kernel module" vmklinux "associated with any Linux drivers that loads via vmkernel and connects via the VMK API." The facts relevant to the case could not be confirmed, since the lawsuit and other judicial documents are confidential information in accordance with the rules of legal proceedings in Germany. This case is very likely to become very important in determining the scope of GPLv2, since the parties apparently have not reached an agreement in this dispute.
4. GPL Community Compliance
The Software Freedom Conservancy and Free Software Foundation have teamed up this year to develop the GPL-Oriented Community Guidelines (Guidelines), published in September 2015 ( here and here ). The increase in free software litigation has become a source of community concern, and the Guidelines are therefore intended to help the community prepare the basis for a consistent and unified approach to law enforcement. The guidelines follow last year’s publication of the second edition of the GPL Compliance Practical Guide prepared by Software Freedom Law Center and the joint publication of the joint first edition of the SFC and FSF"Copyleft and the GNU General Public License: A Comprehensive Tutorial and Guide . "
5. European Commission antitrust investigation of Google and its Android operating system The
European Commission has launched an informal investigation to determine whether certain provisions of Google’s contracts for distributing the Android operating system violate European Union antitrust laws. The Commission is paying particular attention to the question of whether the provisions of the Android OS agreements that require the use of Google’s own applications and services violate EU legal regulations. The Commission's investigation will focus on the following three statements:
Does Google unduly impede the development and access to the market of competing mobile applications or services by demanding or encouraging smartphone and tablet manufacturers to exclusively preinstall Google mobile applications or services;
Does Google really prevent smartphone and tablet manufacturers who wish to install Google applications and services from developing and marketing modified and potentially competing versions of Android (the so-called Android forks) on other devices, thereby unduly hindering the development and access to the market of competing mobile operating systems and mobile applications or services;
whether Google unduly impedes the development and access to the market of competing applications and services by imposing or providing bundled certain Google applications and services distributed on Android devices, together with other applications, services and / or Google application programming interfaces.
The investigation demonstrates the importance of the Android OS in the smartphone and tablet market, as The Commission is investigating a potential violation by Google regarding its “dominant position” in relation to the Android OS.
6. Android continues to branch
CyanogenMod LLC is a venture capital-backed company that developed CyanogenMod, a specialized after-sales firmware for Android devices. The CyanogenMod firmware is based on the Android Open Source Project. The CyanogenMod firmware is positioned as an important potential competitor for the Android OS due to its substantial funding. Be that as it may, the company's potential business model is now the subject of legal proceedings in India.
One of the first licensees of CyanogenMod was Oppo Electronics, which is part of the BBK Electronics Group, a huge company from China. CyanogenMod granted Oppo a non-exclusive, worldwide valid license, and Oppo founded a new company, OnePlus, to distribute its phone based on CyanogenMod firmware. However, CyanogenMod has also granted exclusive rights to Micromax Informatics, Ltd. in India. An Indian court found that Micromax had exclusive rights to the CyanogenMod firmware and trademark in India. Later, OnePlus decided to develop its own version of the Android OS and stop using the CyanogenMod firmware. Such a version will, like CyanogenMod firmware, be based on the Android Open Source Project.
7. Promotion policies
All open source projects need reasons to obtain intellectual property rights (IP) from contributors to the extent that they can be sure that projects can license their software developed within the framework of projects. Many projects use either “project licenses” or counter-licensing agreements (projects that instead require the alienation of the exclusive right to counter-credits are very few). Be that as it may, the use of “contributor license agreements” is very controversial in certain communities, and in particular in the Linux community. On the other hand, my review of emails during the development of the Apache Software License of the second version (ASLv2) and discussion with the people involved in the preparation of this document makes it clear
The various views of the free software communities were very clear in the debate with the OpenStack community regarding the use of standard Apache contributor license agreements. Many experienced Linux community developers strongly objected to the continued use of Apache Contributor License Agreements and wanted to use the Developers Certificate of Origin, abbreviated DCO, used in the Linux community. After significant debate, the Board of Directors [1] decided to continue to use the Apache Standard Contributor License Agreement for company-provided counter-promotions, but to apply the DCO procedure to individuals-based contributions.
8. Companies publish projects under free licenses
As we noted last year, many large companies used open source software as an explicit strategy for the development of their software, and this trend continues to grow and gain momentum this year. Jim Zemlin, executive director of the Linux Foundation, described the strategic use of open source software as external “research and development.” Last year, Microsoft published under a free license the .NET software framework (software used by millions of developers to create functional sites and other large online applications). This year, Apple announced the disclosure of Swift programming language code. This event continues the trend when large companies use open source software development methods to manage projects originally created within companies,
9. Successful exemption under Section 501 (c) (6)
Several years ago, STR funds in accordance with federal tax laws were regularly exempted by the United States Internal Revenue Service (IRS) from taxes under Section 501 (c) (6). [2] This exemption made it possible to exclude contributions from their participants from the tax base of STR funds. However, in the last 3-4 years, the IRS has routinely denied open source funds such exemptions. However, this year the OpenStack Foundation successfully achieved a similar tax exemption based on the provisions of Article 501 (c) (6), although for this the Fund had to challenge the initial refusal to receive such exemption, which was disputed in its favor .
The responses from the Office to the Fund demonstrate a significant misunderstanding of how open source funds operate and what role they play. For example, the Office believed that the fund was a direct competitor to Amazon, Google, and Microsoft regarding cloud offerings. Although the foundation ultimately succeeded, such misunderstandings will continue to be a headache for such requests for release under Article 501 (c) (6). To help the community, the foundation will make its statements, IRS responses, and follow-up available this year on the Open Source Initiative (OSI) site.
10. Potential FCC Prohibition of Free Software on Routers
The US Federal Communications Commission (FCC) has shown a similar misunderstanding of free software in its new router policy. The initial draft rules apparently prohibited the use of open source software, as contained a requirement that manufacturers should prevent the use of custom modifications that can activate radio communications in routers, which will go beyond their license or licensing parameters. The Commission noted that the actions are aimed at eliminating interference in the Doppler radars of the US Federal Aviation Agency (FAA) arising from such modified devices and other possible problems.
After massive negative reviews from the free software community, the Commission clarified that its rules are not designed to prohibit the use of free software and that router manufacturers can put these rules into practice using technical means. Many commentators to the Commission from the STR community remain skeptical of the Commission's response. She herself has not yet made a final decision. However, at least one of these reviewers noted that in the past the Commission worked with Linux distributors to enable the deployment of wireless access points based on Linux computers, so we can hope
The original text is licensed under CC BY-SA 4.0.
- ↑ This refers to the Board of Directors of The OpenStack Foundation .
- ↑ This refers to Section 501 © (6) of the US Internal Revenue Code .