OSDev.org

bzt wrote:why does it matter who the original copyright-holder was then?

I asked who it was because, as far as I know, the copyright holder is the only one who can prosecute offenders. I was wondering if the likelihood of prosecution over copyright offenses related to the linux kernel might change. (Sorry for the cumbersome sentence.) I guess not if each contributor retains their own copyright.

I think it is either in legal limbo, or Samsung is technically in copyright violation.

eekee wrote:I asked who it was because, as far as I know, the copyright holder is the only one who can prosecute offenders.

No, that depends. Normally, when no free software license is used, then you're right. But GPL is a very peculiar beast as it mandates that every user must have the same rights, it does not differentiate the original copyright-holder from the other license recipients.

For example, when Cisco violated the GPL terms, it was FSF who sued Cisco, not the authors of the software (the ones you would call copyright-holders and has their names next to the (c) logo in the source comments). It was the license-creator organization who filed a copyright infringement lawsuit (and it is clear that those copyright-holder developers were not employed nor paid by FSF).

nexos wrote:I think it is either in legal limbo, or Samsung is technically in copyright violation.

Why do you think that? MS agreed to provide the patents for free to the Linux code (so Samsung did not violate anything), plus GPL is pretty clear that patents must be free for everyone who creates a derivative work. I think this is clear, isn't it?

Cheers,
bzt

Interesting that the FSF can sue. Thanks.

bzt wrote:

nexos wrote:I think it is either in legal limbo, or Samsung is technically in copyright violation.

Why do you think that? MS agreed to provide the patents for free to the Linux code (so Samsung did not violate anything), plus GPL is pretty clear that patents must be free for everyone who creates a derivative work. I think this is clear, isn't it?

Hmm... I'm not so sure. Microsoft own the patent(s) on exfat. I'm not sure, but I don't think they'd lose their rights to anything if they sued 3rd-party exfat developers. Samsung wouldn't lose anything either, because Samsung wouldn't be trying to stop anyone doing anything. It might be different if Microsoft had written the Linux exfat driver. Perhaps MS deliberately got SS to write the driver for this exact scenario.

Besides, I don't think a patent lawsuit over an independant implementation could have anything to do with the copyright on Linux's exfat driver.

GPL is a licence. A licence is an agreement between the copyright holder and the user on how the software may be used, granting rights to the user. No licence can transfer copyright ownership though, it requires a contract.

In Australian law for example source code immediately becomes copyright of the author, regardless of any other action, but can be transfer if an explicit written agreement exists stating the transfer and signed by both parties. The copyright holder is not necessarily the licensor either, licences like GPL allow (and indeed compel) users to duplicate and redistribute copyrighted material in accordance with the terms of the licence, but the copies are still copyright the copyright holder.

The copyright on Linux source then is distributed, with every individual owning their contribution, unless you could produce a contract explicitly stating transfer. This is why licence selection is so important on open source projects, because the rights holder to every piece of content licenced their content under the old licence and must now consent to their content being licenced under the new licence.

Obligator I'm not a lawyer, this is my understanding from working with copyright at work and a few lectures from when I was at uni.

bzt wrote:No, that depends. Normally, when no free software license is used, then you're right. But GPL is a very peculiar beast as it mandates that every user must have the same rights, it does not differentiate the original copyright-holder from the other license recipients.

For example, when Cisco violated the GPL terms, it was FSF who sued Cisco, not the authors of the software (the ones you would call copyright-holders and has their names next to the (c) logo in the source comments). It was the license-creator organization who filed a copyright infringement lawsuit (and it is clear that those copyright-holder developers were not employed nor paid by FSF).

That's of course not true. The main author, Richard Stallman, is the founder of FSF. Contributors have explicitly signed away their copyright to FSF, meaning that FSF now owns the code and is within their right to sue.

eekee wrote:I don't think they'd lose their rights to anything if they sued 3rd-party exfat developers

Not any 3rd-party developers, but the ones who create derivative work of the GPL'd Linux exFAT driver. And yes, GPL explicitly states that in that case you must stop distributing the Program under GPL.

eekee wrote:Besides, I don't think a patent lawsuit over an independant implementation could have anything to do with the copyright on Linux's exfat driver.

Of course not, but we weren't talking about independent implementations. We were talking about MS suing a derivative work of the GPL'd Linux exFAT driver.

StudyCaps wrote:No licence can transfer copyright ownership though

Gigasoft wrote:Contributors have explicitly signed away their copyright to FSF

Which one is it then? Can they or can they not transfer the copyright? (In my country's law you can't, copyright always belongs to the author and to the author only. A company or organization can only have the copyright if the software was created on a machine owned by them and written by an employee paid by them to write that particular software.) And what does this has to do with patent licensing anyway?

FYI I'm more interested in the patents related to GPL:
Fact1: Linux is GPLv2 licensed.
Fact2: Linux has an exFAT driver, for which MS gave up it patent rights to charge for royalty (GPL mandates this plus MS has announced this).
Fact3: GPL explicitly forbids non-free patents, and states derivative works must also be patent-free (free here means free of royalty, MS of course still owns the patents).

So on what legal base could hypothetically MS sue an exFAT driver which is a derivative of the Linux exFAT driver and adheres to GPL terms? I think there's none.

Cheers,
bzt

So why does it matter who the original copyright-holder was then? As soon as the agreed to GPL, they have exactly the same rights as everybody else.

No! GPL is an usage and redistribution license, not a copyright transfer agreement. GPL also does not mean public domain. The recipients are limited in what they can do with the software, for example, they can not sell it. The copyright holder can. The copyright holder is also the only party that is capable of enforcing the license terms.

And yes, GPL explicitly states that in that case you must stop distributing the Program under GPL.

Which is Samsung's responsibility. Not Microsoft's. You are assuming that you have permission to violate Microsoft's patent based on what Samsung did. Microsoft is simply promising that they won't claim royalties from Samsung over the patent. It is also fine for Samsung to release their source code under a GPL license. However, this does not constitute a promise that Samsung in doing so will successfully have upheld their part of the Linux license terms. To be free from patent troubles, you'd need to have proof of a patent agreement between you and Microsoft, and no such thing exists. There is also no hold harmless clause in the GPL.

Which one is it then? Can they or can they not transfer the copyright? (In my country's law you can't, copyright always belongs to the author and to the author only. A company or organization can only have the copyright if the software was created on a machine owned by them and written by an employee paid by them to write that particular software.)

They can. Agreeing to license something under the GPL, however, does not constitute a copyright transfer. One needs to explicitly state that one wishes to transfer one's copyright. Does your country's law explicitly forbid copyright transfers? If not, it is probably possible, unless the courts have determined it otherwise.

According to the Berne convention, "The works mentioned in this Article shall enjoy protection in
all countries of the Union. This protection shall operate for the
benefit of the author and his successors in title" - where "successors in title" means anyone who was given the copyright by contract, inheritance or otherwise.

Why do I have the feeling that people don't read?

Gigasoft wrote:You are assuming that you have permission to violate Microsoft's patent based on what Samsung did.

I don't assume. If a derivative work could violate MS patents, then that code cannot be licensed under GPL in the first place.
It is in the GPL, I've quoted that several times already. Read previous posts.

Gigasoft wrote:To be free from patent troubles, you'd need to have proof of a patent agreement between you and Microsoft, and no such thing exists.

It is in the GPL, I've quoted that several times already. Read previous posts.

Look, here I quote GPL's preambule again:

GPL wrote:we have made it clear that any patent must be licensed for everyone's free use or not licensed [under GPL] at all.

Gigasoft wrote:Does your country's law explicitly forbid copyright transfers?

Yes, it does explicitly forbid (more precisely it states that copyright ownership of the author is unalienable). It also specifies that a company can only own the copyright if the software was created using only the company's own equipment, and only by employees paid by the company during their workhours. Read previous posts.

Cheers,
bzt

Gigasoft wrote:Does your country's law explicitly forbid copyright transfers?

Perhaps most prominently, German copyright law forbids this (§ 29 UrhG (1)). The author and his/her heirs always will have the copyright. All you can do is giving license. (Exceptions being made for contract work, which covers nine-to-five programming, where the copyright is your employer's.)

That's why I did not actually declare PDCLib to be "public domain", but explicitly licensed it as CC0, because by law I (like any German author) cannot waive copyright on my work in perpetuity.

The point is: MS granted Samsung the rights. Not you and I. Patent law supersedes a license by some philosopher who thinks the worlds biggest problem is that fact that people are using proprietary software. Nobody cares if they have some non-free drivers and firmware! Anyway, bzt, you have tried very hard to argue, when you asked the question. That is my last comment on the topic.

It is in the GPL, I've quoted that several times already. Read previous posts.

Look, here I quote GPL's preambule again:

And this proves exactly nothing. It's an invalid form of argument. You're saying that Samsung couldn't have licensed their software to you under the GPL unless Microsoft had given up their patent rights, therefore Microsoft does not have a valid claim. Of course, there is nothing to physically stop anyone from entering into invalid contracts or breaking contracts they've made. The premise is also wrong: the section you quoted does not support the notion that "the code cannot be licensed under GPL". It merely states that the recipient may not redistribute the program if he can't do so in a way that satisfies his obligations toward third parties. The license remains valid, and the recipient may, for example, run the program.

It's like saying that if I am seen driving around in someone else's car, and haven't got arrested, and then I let you drive the car, then it constitutes proof of ownership and the real owner can't legally take the car back.

Gigasoft wrote:The ExFAT issue isn't tricky at all. All it means is that Samsung doesn't have a copyright claim against you, if you should incorporate their driver. Microsoft still has a valid patent claim. Your Samsung license does not free you from your duties towards other rights holders, as they are not parties to the contract.

Doesn't that mean samsung didn't have the right to license the driver as GPL2 in the first place?

Doesn't that mean samsung didn't have the right to license the driver as GPL2 in the first place?

No, but it could mean that they have failed to uphold their Linux license terms and do not have the right to redistribute Linux. However, this is hard to prove as long as Microsoft does not take any action. Even if they do, it might happen that the Linux developers do not care, as it does not affect Linux.

moonchild wrote:

Gigasoft wrote:The ExFAT issue isn't tricky at all. All it means is that Samsung doesn't have a copyright claim against you, if you should incorporate their driver. Microsoft still has a valid patent claim. Your Samsung license does not free you from your duties towards other rights holders, as they are not parties to the contract.

Doesn't that mean samsung didn't have the right to license the driver as GPL2 in the first place?

Perhaps it is these exact sorts of questions and arguments that prompted GPL3? It could simply be that everyone's argument is in fact correct, and results in contradictory requirements in GPL2 licensed software that would require a court to arbitrate.

In the end, it doesn't matter whether Samsung has the right to license the driver as GPL2, if MS comes after YOU for patent infringement, you're on the hook to defend your use and can't rely on the GPL2 and Samsung's obligations to protect you.

In my non-legal advice opinion (not a lawyer, etc. etc.) I'd steer clear of GPL2 exFAT drivers if you're not prepared to risk patent infringement suits, especially as MS licensed the patent royalty free to OIN members for use with the Linux kernel only (as I understand it.)