Home opinion-and-analysis Open Sauce LCA 2011: How to catch FOSS infringers out

The phenomenal growth in the use of Linux in the embedded market means that many people use and sell the kernel without knowing they are doing so. Others are aware, but choose to stay quiet, knowing that they are, in one way or another, not keeping to the terms of the licence under which Linux is published.


Individuals who want to obtain the source code for the embedded device that they have bought are not able to sue because they are not the primary copyright holder.

But they can resort to other means to get the code. Brendan Scott (pic below) , a Sydney-based lawyer, yesterday told an audience at the 12th Australian national Linux conference how to deal with the problem, in a talk titled "Issues of infringing open source software".

"If you sell an item that violates FOSS licences then you are violating the Trade Practices Act," Scoot said; the Act has, of January 1, been renamed as the Competition and Consumer Act.

Scott last year completed a research paper, funded by a grant from Linux Australia, on the same subject as his talk. The paper is available on his website; his talk was, in large part, derived from this research.

He outlined a sample scenario; a person might buy an embedded device, realise that it was running FOSS software and then go back to the seller and ask for the source code, build scripts etc only to be told that the vendor did not have them.
Brendan Scott
The vendor had no obligation to the buyer, because the buyer was not the copyright holder for the code that had been used, according to this imaginary scenario.

Under contract law, if A and B have a contract then C cannot sue either of them for violation of the terms of the contract. Similarly, under tort law, if A assaults B, C cannot sue - unless C was injured in the assault, Scott said.

But under Australian Consumer Law (as it is now known), misleading or deceptive conduct in trade and commerce could attract damages. The same went for false or misleading conduct or behaviour that was likely to mislead in the matter of trade and commerce.

The latter would attract greater penalties, he said. The ACL was designed to protect consumers and prevent harm before it happened.



Scott cited two cases, one of a firm called Embo Holdings, which sold personal computers that were loaded with infringing copies of Microsoft Office and Windows.

The court held that the fact they were doing so, meant they were conveying the impression that they had the permission to do so; there were Microsoft trademarks on the cases.

He pointed to another case called the Tyn case where CDs with the word "Back-up" on them were sold; this offer to sell indicated that the store was representing itself as having the right to sell the software on the CDs.

The consequences of violating Australian Consumer Law could include damages and corrective advertising (a mandatory injunction). Breach of section 29 of the ACL would also incur damages of up to $1.1 million for companies and up to $220,000 for individuals.

Scott said he had sought a further grant from Linux Australia for a second stage of research during which he intended to liaise with fair trading authorities to make them aware of the issues surrounding FOSS licensing.

He also wanted to draft HOWTO documents on identifying infringements and approaching infringing companies. Unfortunately, Linux Australia has not granted him the funds to proceed.

 

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Sam Varghese

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A professional journalist with decades of experience, Sam for nine years used DOS and then Windows, which led him to start experimenting with GNU/Linux in 1998. Since then he has written widely about the use of both free and open source software, and the people behind the code. His personal blog is titled Irregular Expression.

 

 

 

 

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