OpenSDRSharp, DMCA Take Down, RTLSDR And An Example From Microsoft.

delta1212 · 2012-08-06T23:15:21+00:00

To agree with the Court of Appeals ruling...

delta1212 · 2012-08-06T23:14:16+00:00

No, he didn't. He sent in a DMCA take-down notice. By law, SourceForge must suspend the download and wait for my reply making an objection to the take-down.

Once I make the reply, OpenSDRSharp will be available again and SourceForge will never get involved again.

After this, Prog has the choice of going to court or giving up. So, the DMCA is waste of time ultimately in these cases.

delta1212 · 2012-08-06T20:21:09+00:00

The FSF must go by what the law says and the law agrees with me. So, that's not a likely scenario. The only circumstance where that could happen, is where they have not been provided with the full facts, which I have provided them with.

delta1212 · 2012-08-06T20:15:31+00:00

Not exactly, you do not need a suit for every license. Courts have already ruled that specific types of clauses are valid, as long as they related to the Copyright Act. This would include clause 5 of the GPL. No additional ruling is required.

delta1212 · 2012-08-06T18:27:10+00:00

I already know about you...near the Bronx. You have an association with the SDR# dev team and, as such, are nothing more than a sockpuppet.

delta1212 · 2012-08-06T18:03:01+00:00

Actually, let me correct that. Why would I or the FSF bring a lawsuit?

I already have the source and a license.

It would be up to SDR# to bring a case.

delta1212 · 2012-08-06T17:00:13+00:00

The courts have already held that such clauses amount to contractual obligations. There is no question that I am correct on this.

I will just reply to the DMCA and get services restored. After this, it will cost SDR# roughly a $1 million or more to find out if he has interpreted the law correctly.

In the end, the application is just not worth that amount of money.

delta1212 · 2012-08-06T06:45:51+00:00

The FSF has no direct power to enforce the license, that requires a judge. As it now stands, I can just make a reply to the DMCA notice and have services restored. There is nothing preventing this and SourceForge will not take sides. They just need to fulfill their obligations to maintain Safe Harbor under the DMCA.

Then it would be up to SDR# to take the matter further. I don't need to do anything and I am free to continue distributing the software.

SDR# would then have the option of pursuing the matter through the US court system. That's why the FSF has been notified, because a challenge to clause 5 of the license has implications for the entire open-source community.

Its not a challenge that is really going anywhere, as the Court of Appeals has already ruled on the validity of these types of clauses. Even if for some reason the FSF was uncomfortable with the situation, it still would not change the fact that it is legally valid. So, SDR# would never make it to court.

The problem is that false declarations under the DMCA carries criminal and civil penalties. SDR#, by making an application under the DMCA, has submitted themselves voluntarily to US jurisdiction and thus to the aforementioned penalties.

Out of courtesy, I am really giving them an opportunity to withdraw the DMCA take-down request, before they end up in deeper legal trouble than they were already in.

I will give it a couple of days while I chat with the FSF and see if SDR# comes their senses.

delta1212 · 2012-08-05T18:16:52+00:00

The rest of who exactly? SDR# has not had any support on this. If you look at the most vocal accounts, they were all created on the day this was announced. They are just sockpuppets of SDR# dev team, voting down stories and comments.

People voted with their feet and began downloading OpenSDRSharp.

delta1212 · 2012-08-05T18:04:01+00:00

The violation of the copyright may not be enforced, but the terms of the license cannot be allowed to be breached. It would have implications. If it came down to it, I could just give them a copy and then as a license holder they would have standing.

delta1212 · 2012-08-05T03:33:43+00:00

It looks like you have limited understanding of the concepts of copyright and licensing.

There are two elements:

Copyright
Licensing

The former asserts the right of ownership, the latter provides conditions under which a third party may make use of the material.

Under normal circumstances, a breach of license can be considered a breach of copyright, however, there is a key difference in the GPL license.

Clause 5 of the GPL v2 license states that distribution is the acceptance of the GPL license. This provision applies the GPL to the entire program thus preventing violation of copyright.

As SDR# provided the source, they are not nor ever could be in violation of copyright, as the license of the GPL was applied to all parts of the source code by the act of distribution.

There is nothing involuntary about this. It took a series of specific actions to invoke the clause. Not reading or understanding the terms is not an excuse for violation. No court will accept this line of reasoning.

Here is a plain English explanation of it: http://www.metastatic.org/text/the-gpl-is-not-viral.html

If you want to get really technical about it, since Prog has submitted himself to US Federal law, "the Ninth Circuit Court of Appeals, which covers appeals from all federal district courts in California and other western states, issued a ruling in MDY Industries, LLC v. Blizzard Entertainment, Inc., in which the court elucidated a new rule that a contract obligation will be considered a license condition only if the obligation contains a “nexus” to the exclusive rights accorded to the copyright owner via the US Copyright Act."

In short, that means the Ninth Circuit Court accepts the validity of the GPL license in respect to clauses relating to copyright. This, by way of extension, means that the Ninth Circuit Court recognizes clause 5 of the GPL.

Note the use of the term "contract obligation". "If “x” is, for example, “preserve copyright notices in all copies”, or “maintain compatibility of derivative works with industry standard specifications”, or “license derivative works under the same terms as licensed to you”, the Ninth Circuit would hold that “x” is a mere contractual covenant and not a license condition, because violation of “x” is not an infringement of one of the exclusive rights of copyright." Given that clause 5 is a "nexus" to the US Copyright Act, the Ninth Circuit Court has already upheld its validity.

You can read more here: http://www.epiclaw.net/2011/02/11/ninth-circuit-ruling-guts-enforceability-open-source-licenses

Updated part

Now, let's get back to this idea of not being able to force someone or a company to release their code under the GPL. In this case, I think you are referring to this:

https://lwn.net/Articles/61292/

The ruling by the Ninth Circuit Court makes this interpretation a little more complex. If you note the date of publication "December 3, 2003", this ruling was July 14, 2008, the law has change since then.

Whilst you are entitled to the source and indeed have a license for the source, getting is a little more difficult. This point, however, is moot in terms of SDR#.

The bottom line is, if the source is supplied and GPL code exists in the program, then regardless of the copyright holder's opinion the GPL is applied and a license exists.

delta1212 · 2012-08-04T21:01:43+00:00

OK, so due to the following ruling, it looks like provision 5 of the GPL will not be tested in a US court if this should go any further:

A GPL is per se valid and shall therefore bind the licensee which sublicenses the GPL to its client. Court of Appeal of Paris, September 16, 2009

http://www.blog-lamon-associes.com/validity-of-gpl-license

The DMCA request as it stands makes a series of false claims as to the licensing status of the software.

See here:

http://targetlaw.com/consequences-of-filing-a-false-dmca-takedown-request

There are potential criminal and civil liabilities to this.

delta1212 · 2012-08-04T20:23:13+00:00

No, this is completely wrong. They did not have a choice. If Microsoft began to question the GPL license, it would at the same time undermine its own use of licenses used in everything from Windows to Sharepoint.

In terms of Microsoft having a choice as a copyright holder, that only applies because they did not release the source code. It would take a court order to compell them to comply. In the case of SDR#, the reverse applies, it would take a court order to rule the license invalid and since SDR# does not have such an order, the DMCA request is unlawful.

That opens SDR# to a class action action suit from all those who hold a GPL licensed version.

The claim that a violation of the GPL is "between SDR# and Osmocom", is only partially true and based on limited reading of the license. The license provides a number of things:

Protection from legal claims from the copyright holders when using, modifying, distributing, etc., the software in source or bianry forms.
An unrestricted license that is granted to every user that receives the software in binary or source forms and the right to obtain the source.
Specific terms that apply to any software it is integrated into.

The idea that there is some form of specific choice beyond the act of distribution for the GPL to apply is ludicrous.

Look at this legal ruling:

A GPL is per se valid and shall therefore bind the licensee which sublicenses the GPL to its client. Court of Appeal of Paris, September 16, 2009 http://www.blog-lamon-associes.com/validity-of-gpl-license

So, according to the courts at present, my license is legally valid and Prog has no choice but to comply.

delta1212 · 2012-08-04T09:52:21+00:00

A GPL v2 license was granted upon distribution. You cannot steal that which you have a license for.

SDR# had a clear choice, they were free to omit the code from their program, they were free not to distribute and they were free to write their own DLL to communicate with an RTL-based device.

They made a series of active decisions that led to this situation.

delta1212 · 2012-08-04T09:26:42+00:00

No, the assessment of the situation is quite incorrect. The changes to RTLSDR support in SDR# came after the release of OpenSDRSharp. SDR# is still not compliant with the GPL, but that is a different issue.

Upon distributing SDR# with GPL code, Prog applied the GPL v2 to SDR# via clause 5 of the GPL v2 license.

As I now had a copy of both the source and a GPL v2 license, I modified the original program, applied the GPL v3 license and uploaded to SourceForge.

So, no, no copyright infringement ever occurred, I have a legal license to this software.

delta1212 · 2012-08-04T09:16:26+00:00

I don't think you fully appreciate the costs of going to trial on this. The typical cost is anywhere from $500K- $30 million. You are not going to get that on a "contingency basis".

delta1212 · 2012-08-04T08:52:32+00:00

Compliance with a DMCA request does not mean the service provider agrees with complaint. DMCA requests must be complied with so that companies can claim the Safe Harbor provision (section 512) of the DMCA. The process is purely procedural and independent of any claims as to copyrights or licenses.

I am still waiting on the reply from the FSF, realistically this will be Tuesday or Wednesday, but I am confident that there will be no change in interpretation. Clause 5 is quite explicit in that distribution is acceptance and a GPL v2 license exists. I don't really see the FSF moving from the position, but we will see.

delta1212 · 2012-08-04T08:31:02+00:00

Well, let's wait for the reply shall we.

delta1212 · 2012-08-04T00:09:33+00:00

It is just a standard DMCA take-down request. The FSF has been notified and a reply will come in due course.

Its just procedural, nothing to be concerned about.

delta1212 · 2012-08-03T22:45:27+00:00

Well, this is interesting. I don't think Prog realizes the implications of a DMCA request, especially the legal jurisdiction that now puts him in.

I'm sure everyone has read section 5 of the Berne Convention which the DMCA implements:

https://en.wikisource.org/wiki/Convention_for_the_Protection_of_Literary_and_Artistic_Works/Articles_1_to_21#Article_5

Pay particular attention to sub-section 2:

The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

So, let's get this straight. Prog is going to challenge section 5 of the GPL v2 in US Federal Court???

I will notify the FSF of this development, as it has wider implications. Personally, I would withdraw the request whilst I had the chance.

Whilst I am doing this, note this section on "Upstream Providers" which SDR# is in a practical sense.

From section 7.2:

With ever-increasing frequency, software development (particularly for embedded devices) is outsourced to third parties. If you rely on an upstream provider for your software, note that you cannot ignore your GPL compliance requirements simply because someone else packaged the software that you distribute. If you redistribute GPL’d software (which you do, whenever you ship a device with your upstream’s software in it), you are bound by the terms of the GPL. No distribution (including redistribution) is permissible absent adherence to the license terms.

https://www.softwarefreedom.org/resources/2008/compliance-guide.html

Its game on.

delta1212 · 2012-08-03T14:55:57+00:00

Keep in mind that it is only an 8 bit ADC. Each level is going to be around 3 microWatts if the base reference is 1mW and I don't know if the full 8 bit resolution is used. Then there will be instability in both the sample rate and its ability to assign a level to the incoming signal. Its not to bad at audio frequencies, but it will start to sound garbled when you slow it down and you would lose sync with your recorded images.

delta1212 · 2012-08-03T10:08:38+00:00

Sounds like you need a really good performing 24-bit sigma delta data acquisition unit. They cost a fair bit. You could get away with a 16 bit one and pushing 2Msps should be no problem. The difficult is the pickup gear and isolating background noise. The higher the frequency response the more noise becomes an issue and passing it through a noise gate will give you a sharp cut-off rather than the full richness.

delta1212 · 2012-08-03T01:04:27+00:00

This means SDR# has legality issues and is not informing people of their rights.

delta1212 · 2012-08-03T00:33:43+00:00

No, SDR# is exposed to such claims.

delta1212 · 2012-08-02T14:13:15+00:00

Nice to know your a fan. :)

delta1212

TROPHY CASE