Message-ID: <4252A65A.9030109@almg.gov.br>
Date: Tue, 05 Apr 2005 11:53:14 -0300
From: Humberto Massa <humberto.massa@almg.gov.br>
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To: debian-legal@lists.debian.org, debian-kernel@lists.debian.org,
       linux-kernel@vger.kernel.org
Subject: Re: non-free firmware in kernel modules, aggregation and unclear
 copyright notice.
References: <20050405135701.GA24361@pegasos>
In-Reply-To: <20050405135701.GA24361@pegasos>
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Sven Luther wrote:

 >On Tue, Apr 05, 2005 at 09:03:21AM -0300, Humberto Massa wrote:
 >
 >>Theodore Ts'o wrote:
 >>
 >>>You know, the fact that Red Hat, SuSE, Ubuntu, and pretty much all
 >>>other commercial distributions have not been worried about getting
 >>>sued for this alleged GPL'ed violation makes it a lot harder for me
 >>>(and others, I'm sure) take Debian's concerns seriously.
 >>
 >>I said in other e-mail, and I will repeat: it's not their (Debian's)
 >>fault. Their responsibility is greater. Why? Because when RedHat puts
 >>something it shouldn't in their distro it's *their* assets that will
 >>answer for some copyright violation damages. In Debian's case, it's
 >>the assets of: some DDs, the mirror network, derived-distro
 >>distributors, CD vendors, etc... This is just a case of Debian being
 >>"fiscally responsible", i.e., not treating other people's money as
 >>trash.
 >
 >
 >This is where you are wrong, and i believe this is caused because you
 >don't understand how debian works on this.

I was not commenting on Debian works; I was commenting on civil and
criminal liabilities. If Debian, knowingly or not, distributes a
copyrights-infringing work, the work's package(s) maintainer(s) are
civil and criminally liable, and so are: CD distributors where said work
is distributed in the CD, derived-distro distributors, and the mirror
network members. Why? Because they are all distributing infringing
works.

Let me explain how this works. In 1999, the police went into a
videostore in the city where I worked as a paralegal in the DA's office.
There were a lot of pirated VHS tapes there (without the "not pirated"
holographic seal that our MPAA-equivalent gives to the members to glue
on their tapes/DVDs). The guy from the videostore did not make the
copies, but he distributed (renting is a form of distribution, yes) the
infringing works, so... unless he proves that he had all the good
reasons to think that the works he bought were non-infringing (for
instance, if they all had seals like the "official" one,
undistinguishable by the naked eye), he is liable for the infringement.
And so, the guy got some years of jailtime, plus some hefty fines.

 >The ftp-master are the ones reviewing the licencing problems, and they
 >are the ones handling the infrastructure, and putting their
 >responsability on the stake. If they feel that some piece of software
 >has dubious legal issues which come at a risk of having them personally
 >come on the receiving end of a legal case, then they will say, no, we
 >don't distribute this software, and that is the end of it.

This is not the only thing that is at stake, as I demonstrated /
illustrated by my anecdote above. But yes, probably ftp-master guys are
liable, too.

 >The other point is that other entities, like redhat, or suse (which is
 >now novel and thus ibm) and so have stronger backbones, and can more
 >easily muster the ressources to fight of a legal case, even one which
 >is a dubious one, especially given the particularities of the US
 >judicial system, where it is less important to be right, and more
 >important to have lot of money to throw at your legal machine. Debian
 >has nothing such, and SPI which would stand for this, is not really
 >upto it either, so in this case, apart from all ideology and fanatism,
 >it is for purely pragmatic reasons that they don't distribute
 >undistributable files from the non-free part of our archive. You would
 >do the same in their case.
 >
 >Also, you have to ask yourself what the above mentioned companies where
 >to do if they where to be made aware of the issue, and ask their
 >lawyers to attend this. Also you have to consider the case of some of
 >those companies ending in the arms of a legally predative company and
 >pulling another SCO at us.

Yes and yes. But their lawyers have an option Debian does not, also:
they can negotiate ($$$) an exclusive license to redistribute. As in:
"Novell can redistribute this work in their Linux distro, at will". This
would not be DFSG-free.

 >
 >Friendly,
 >
 >Sven Luther

Friendly, HTH,
Massa


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