2015-01-24 GPL Enforcement

Introduction

This article was inspired by a talk by Mr. Bradley Kuhn at Scale10x on 2012-01-21, and was last substantially modified on 2012-02-19.

Consider a hypothetical world where we write software and release it under the GPL; where large corporations routinely take that software for their benefit; where they fail to live up to the terms of the GPL license; and where no one is ever punished for such violations.

To me, that looks much like a different hypothetical world where we just release our code under the Apache license. Is that really what we want to do? I don't think so. I think that most developers care about the license that they use, and that they make that choice with full (or at least reasonable) knowledge of the alternative licenses that they could have picked.

Trolls?

The term patent troll came about with the rise NPEs or non practicing entities, which buy patents for the purpose of enforcing them, but which don't make or sell any product using any patents. Such an NPE is immune from a patent counter-suit. In my view there is nothing particularly wrong with this business model, other than almost all of these are with regards to software or business method patents which I think should not exist.

Consider another human endeavor that uses copyright - the business of writing and publishing books. That business long ago fragmented into specialized pieces. Authors write the text, printers make physical copies, and publishers coordinate the parts and hold the copyrights. In this model, authors are in the business of selling copyrights, printers are in the business of selling physical books to publishers, and publishers are in the business of selling physical books to distributers or the general public.

But we don't call those publishers copyright trolls, even though they are enforcing copyright over works that they did not write, and even though they write essentially nothing. In the book business, the sale of copyrights by authors to publishers is the primary means by which those authors earn a living. Those publishers are providing a public benefit by supporting authors and providing the rest of us with reading material.

Pricing

The price that an author can demand for the copyright to her manuscript is largely determined by the perceptions of the publisher as to the market for that work. In the case of mass market authors such as JK Rowling, the publisher will place a high value on the copyright, because that publisher can use the exclusive rights granted by copyright to print and sell many copies of her books at prices substantially greater than the cost of printing those books.

Specialized copyright enforcement

So how does this apply to software development and the GPL, and in particular how does it prevent the occurence of the hypothetical world above? I propose we adopt a modified publishing model, where some software authors sell their copyrights to an intermediary, which will then use the GPL to enforce their copyrights.

I believe this approach is useful in that it allows specialization. It allows software developers to concentrate on writing software, rather than worrying about legal entanglements and court appearances. It allows the intermediary to specialize in GPL enforcement, and to become familiar with the process of developing and pursuing legal cases against those individuals and corporations that would deny others the freedoms that our choosen license is supposed to guarantee. And most importantly, it will significantly raise the risk to corporations of violating the GPL.

Note that in our software development world, we have already split the business into some specialized parts. The printing and distribution functions are handled by distributions like Fedora or Ubuntu. This proposal simply splits the authorship and copyright enforcement functions.

The price for such copyrights to GPL code will necessarily be less than the cost of copyrights for books by lesser known authors. How does my hypothetical intermediary make money by buying copyrights to GPL licensed code? The only thing you can functionally do with such a copyright is to sue a GPL violator, and there is not much money to be made in that.

If you believe that there is a significant amount of money to be made by sueing GPL violators, there are two subcases. If you also own the copyrights to GPL code that is being used in violation of that license, you should then contact a lawyer and start legal actions. If you don't own such copyrights, you should start an intermediary business as described above, purchase such copyrights, contact a lawyer and start legal actions.

Even though I think there is not much money to be made by anyone following this approach, there may be enough money to support the model. By that I mean enough money to pay the lawyers, with a bit left over to pay some non-zero amount to the developers.

Non-profit or for profit?

I come from a rather hard core libertarian position, where making a profit is a commendable and socially useful good. The profit produced by such an enforcement corporation should be used like all corporate profits - to increase the size and scope of the business in which the company is involved; in this case, to purchase yet more GPL copyrights, and to expand the scope of products over which they might sue GPL infringers.

The question is how to handcuff or tie up such a corporation in ways that don't interfere with its purpose of making life difficult for GPL infringers, but to prevent this corporation from itself violating the spirit of the GPL. I think the easiest mechanism is to use corporate stock as part of the purchase price of the GPL copyrights. That way, the actual authors end up controlling this corporation, and they have the ultimate control over the actions of the company.

Enforcement Stratagies

Suppose we have identified a specific GPL infringer, and we know we can prove a copyright violation in court. There are many ways of doing enforcement, but broadly speaking they are either soft or hard. The soft mechanisms involve talking to the infringer, asking for compliance, waiting for their possibly delayed response, and only eventually filing a legal action. But is that what Sony did when they sued Hotz?

The soft approach might have been appropriate many years ago, when large corporations could claim they did not know better, or they could claim they were making a good faith effort to do better. Today, those arguments just sound silly. These are corporations that know full well what they are doing - they are taking the calculated risk that no one will actually stand up to them in court.

Then we have the hard approach, which I think is appropriate in this case. I propose that this company simply file legal actions first, with any settlement discussion starting and ending with "you will plead guilty to copyright infringement, and the judgement will be public". Why? Why take such a hard line, especially when as Mr. Kuhn points out, the court will only give you a small amount of money and possibly an injunction prohibiting the sale of what is by now an obsolete product that may not even be on the market anymore?

Serial Violators

Consider a comany that is violating the GPL and therefore infringing on your copyrights. Like many consumer companies, they build a series of products or models A, B, C... Each model has some feature that the previous one did not support. The typical life cycle for these products may be a short as six months or so. By the time this enforcement company analyzes the firmware in Model C to the point where we can go to court, the violator is already selling Model D. So why go thru the effort to sue them for copyright infringement on Model C? To get a court judgement that they in fact did violate your copyright with Model C. And then we repeat it with Model D, E, F etc. At some point, you are now in the position to tell the judge - we have a serial copyright infringer here; we have judgements against them for Models C, D, and E; we want an injunction against any future product containing our work.

Consider what would happen if someone got an injunction prohibiting a large company from importing any device based on Linux into the US. That would affect their bottom line, and it would serve as a wakup call for other such large corporations that are also serial violators.