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How would a permanent injunction work? | 197 comments | Create New Account
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How would a permanent injunction work?
Authored by: Anonymous on Friday, September 14 2012 @ 11:39 AM EDT

If the judge says it's illegal for you to drive a car, that doesn't affect anyone else's right to drive a car.

I suspect the same principle would apply here.

[ Reply to This | Parent | # ]

How would a permanent injunction work?
Authored by: Mark Webbink on Friday, September 14 2012 @ 11:45 AM EDT
Red Hat has released the code under the GPL only for use in compliance with
GPL. According to Red Hat, Twin Peaks is not in compliance and has
refused to
release its source code as required by the GPL. If the Court
agrees, that
constitutes copyright infringement (exercising a right under
copyright without
permission). Red Hat will seek a permanent injunction
against Twin Peaks with
respect to the infringing products that would
prevent Twin Peaks from
continuing to sell those products in their present
form. Twin Peaks would have
a choice: either remove the GPL code or
comply with the GPL. If they were to
do either of those, they could seek a
lifting of the injunction. None of this
would impact Twin Peaks customers
who are already using Twin Peaks products so
long as those customers don't
redistribute the GPL code in a manner that is not
in compliance with the GPL.

[ Reply to This | Parent | # ]

A permanent injunction seems inescapable
Authored by: Ian Al on Friday, September 14 2012 @ 12:48 PM EDT
I got the following from the article:
52. On its website, Twin Peaks represents that the “TPS Replication Plus” and “TPS My Mirror” software packages are covered by the same patent it accuses Red Hat of infringing in this action (the ’439 Patent).

53. Twin Peaks’ proprietary replication software products, namely, “TPS Replication Plus” and “TPS My Mirror,” include, inter alia, a program called “mount.mfs.” This program is essential to make Twin Peaks’ “replication solution” software usable.

54. On information and belief, rather than develop its own source code to create its proprietary software replication products, Twin Peaks copied substantial portions of open source code into those products, including source code originally authored by Red Hat. Among the code Twin Peaks improperly copied was that embodied in the “mount” program released in util-linux version 2.12a, which Twin Peaks copied into the source code for its own “mount.mfs” tool. Twin Peaks’ verbatim and near-verbatim copying of open source and Red Hat source code into its “mount.mfs” tool is pervasive and extensive.
I got the following from GPL V2 which is the version cited by Red Hat:
2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.

b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.)...

These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
I now speculate about what all this means. Red Hat seem to be saying that the entire Twin Peaks product incorporates the Red Hat software and is not a stand alone program that can be kept apart from Red Hat's GPL software. Further, Twin Peaks, by taking Red Hat to court over the patents incorporated into the product are insisting on making royalty charges on the patent. The loss of royalties would be the basis for the damages sought.

Twin Peaks Prayer for Relief:
c. For an accounting of all damages caused by Defendants' acts of infringement;

d. For a judgment and order requiring each Defendant to pay Twin Peaks' damages, costs, expenses, and pre- and post-judgment interest for its infringement of the '439 patent as provided under 35 U.S.C. §284;
Since the Red Hat software is part of the whole program then the whole program must be released under GPL V2. This is because Red Hat are saying that the Twin Peaks software cannot 'be reasonably considered independent and separate works in themselves' (as required by GPL V2). Otherwise the copyright continues to be infringed without a licence. That is both the free version and the paid-for version. I don't see Twin Peaks being likely to do that.

Twin Peaks would have to give a free patent licence to have their GPL licence unterminated. GPL V3 is very helpful in the area of termination:
8. Termination.

You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License (including any patent licenses granted under the third paragraph of section 11).

However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.

Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice.

Termination of your rights under this section does not terminate the licenses of parties who have received copies or rights from you under this License. If your rights have been terminated and not permanently reinstated, you do not qualify to receive new licenses for the same material under section 10.
None of these licence reinstatement terms are given in GPL V2. Thus the GPL V2 licence was not used during the alleged copying by Twin Peaks. Under GPL V2, there is no licence terminated and thus it cannot be reinstated. It is straight copyright infringement without any licence.

Red Hat might, in the instance of a free patent licence, be prepared to licence their software for future sales, but Twin Peaks can never unilaterally 'reinstate' a licence that was never employed for this software. Unlike Busy Box, Red Hat have no reason to agree a copyright licence for Twin Peaks unless Twin Peaks are prepared to make the whole program GPL open source together with the required royalty free patent licence.

Red Hat's preparedness to agree to the use of its software under a special licence can be seen by their Prayer for Relief:
8. Granting a permanent injunction preventing Twin Peaks Software Inc. from copying, modifying, distributing, or making any other infringing use of Red Hat’s software;

9. Ordering Twin Peaks to pay Red Hat’s damages for Twin Peaks’ infringement of Red Hat’s copyright in its software;

10. Ordering Twin Peaks to pay Red Hat’s damages for Twin Peaks’ violation of the GPL;

11. Ordering Twin Peaks to account for and disgorge to Red Hat all profits derived from its unlawful acts; and

12. Awarding any other such relief as is just and proper.
I'm not qualified to assert all this, but it does all seem to hang together with what we have learnt from Groklaw.

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

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