Israeli Waze hit with GPL class action lawsuit: plaintiff requests source code.

Written By: Jonathan under Categories: copyleft and Tags: Tags: , , ,   , It has 3 Comments and It was posted on Mar 27, 2014

An interesting class action lawsuit has been brought in Israel against Waze, the Israeli navigation company who were acquired by Google last year. The class action raises an interesting question: according to the class action plaintiff, Mr. Roey Gorodish, Waze was first released as GPLv2 licensed software (which require to provide end-users with the original source code), and the data which Waze uses is based on a warranty to the Waze community to maintain it free. Such warranty was provided via freemap’s data (which Waze used), who selected to license it under the GPL, as well as under a proprietary license. Therefore, the plaintiff requests statutory damages and the release of Waze’s source code and map data.

[my assumptions here are based on the news article, not the claim itself, which has yet to be published]

The problem here is that the class action lawsuit stands on problematic pillars. The first is the request for statutory damages for copyright infringement, and the second is the request to avail all data through a class action suit.

The first pillar, for statutory damages, is quite problematic: Article 20 to the Israeli Class Action Suit Act states that no statutory damages shall be granted in a class action lawsuit. This was upheld by several court rulings (CA 1379-09 Peled v. All You Need, for example), and is quite consistent with the principle that class action lawsuits come to cure a specific action which will be unactionable otherwise. If each software developer is entitled to statutory damages, it would be quite efficient for him to sue. So, my prima-facia assumption is that this part of the claim will be quashed in the preliminary stage.

The plaintiff’s other request is for a declaratory remedy, which states that he is entitled for both the source code and the map data. At first glance, it might be something nice to have (assuming that his claim that the GPL license applies here). However, Waze actually claim that when moving from version 2.0 to 3.0 they completely re-wrote the code. This was actually done mostly due to Apple’s App Store licensing requirements, and is well documented (unless Waze deceived the community).

In order to prove that Waze still uses GPL licensed code, which require the release of source code to the public, the plaintiff will have to first review the source code and find the appropriate equivalent in the GPL branch of the code. However, in order to get access to the code, he’ll have to first prove that there’s a reason for his suspicion.

Currently, I don’t think that there’s a shred of evidence showing this, so most likely that this prong will also be rejected. Israeli courts have yet to allow full source code reviews in the discovery stage with no hard evidence. The closest case was in a copyright infringement case where the look and feel of the software were similar (RCA 1068/12 Dan-El v. Snapir).

Therefore, I believe that this will be one hard case to snap.

Open Source Misconceptions and Walled Gardens: The Microsoft Case

Written By: Jonathan under Categories: copyleft, copyright and Tags: Tags: , , , , , ,   , It has 1 Comments and It was posted on Feb 20, 2011

0.Why are everyone afraid of open source?
One of the most amazing things is that in a material portion of the Share Purchase Agreements (or investment agreements) I’ve reviewed in my life, the invested company was prohibited from using Open Sourced software as a material condition for the investment. The “No-Open-Source” clause was added in companies which a major part of their business model was open source or cloud services, so that in fact there were clauses that excluded the specific Open-Source applications used from the warranty and prohibited the company to utilise any other Open Source application. This prohibition, in my humble opinion, represents and archaic misconception that investment in start-ups is in liquidatable property such as patents or copyrights, and not in the persons behind the company.

1. Why is the cellular market afraid of open source?
Both Apple and Microsoft are afraid of Open-Source. Apple recently banned the open sourced VLC player to attend its cellular festivities as it was released under the popular GPL (and a funny story with XPilot) and so does the Windows Phone 7 developer agreement which states that open sourced software may not be distributed by the WP7 marketplace (which caused several developers to change their licensing models). But Microsoft and Apple’s prohibition comes from ignorance in regarding to the licenses more than anything.

2. About Microsoft’s misconception?
Microsoft prohibits inclusion of what they refer to as “Excluded Licenses”, which are “any license requiring, as a condition of use, modification and/or distribution of the software subject to the license, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge” (clause 1.l) but, open source licenses apply only when there is distribution of the software, and not when there’s use, therefore, many cloud services use open sourced software (as they don’t distribute the code, only use it). A clause prohibiting excluded licenses in any software reigns over applications developed for WM6.x and WP7. In some portions of the application are server side or server dependant, some interesting questions raised.

3. Open source prohibition and cloud computing?
This next case is purely theoretical: Facebook, which bases most of its activity on open source infrastructure, develops a Windows Phone 7 application which interacts with the Facebook servers which are under open source licenses. While these open source components are used, they are definitely not distributed and therefore the draconian clauses of Microsoft’s license are terrible. A better example would be more feasible; imagine that some person grabs Wikipedia and creates a mobile application; Wikipedia’s content is released under a Creative Commons license which allows free distribution as long as any amendment or contribution is distributed under the same license. Now, Microsoft may come to the developer in questions and claim that clause 5.e to the developer agreement was in breach and remove Wikipedia from its marketplace.

4. Why Microsoft was afraid of Open Source??
Microsoft’s scare from open source licenses is clear. Microsoft is terrified from the misconception of the GPL’s viral nature which was perceived as turning all proprietary code which interacts with open-source code turns open-source and is afraid of defending itself against he who comes and asks it to open it’s code. However, this fear is disproportional: like the VCs who heard, somewhere, that there’s a risk in open source and decided to ban it completely, Microsoft detaches itself from a world that can do it only good: Microsoft could have started its marketplace with thousands of free applications from day one and giving it a competitive edge over Apple. Microsoft, however, is afraid of not being able to limit its users, and that’s what it does.

5. So now?
The solution is quite obvious, if Microsoft restricts open source from its playground, it will restrict popular browsers, media players and other software from playing the game and it will fail. There’s no comfort in locking the garden, just another step towards the separation between the proprietary world and the open source one.

[Originally in Hebrew]

Bonus for my English readers, my Open Source Presentation:

GPL, plug-ins, themes and derivative works, the case of ‘Free as in Pizza’

Written By: Jonathan under Categories: copyleft, copyright, wordpress and Tags: Tags: , , , , , , , , ,   , It has 5 Comments and It was posted on Jul 4, 2009

When Richard Stallman first thought of Free Software he had the four basic freedoms of the GPL in mind: the freedom to run the program, the freedom to modify the source code, the freedom to redistribute the program and the freedom to allow improvement and evolution of software. Stallman’s case was quite simple: He worked as a programmer at MIT’s AI labs and wanted to fix the Xerox printer  drivers. When Xerox moved to proprietary drivers and prevented Stallman to access the printer’s source code, he first thought of free software in order to help himself and others share knowledge and tinker with software. (Read more here)

Since the evolution of GPL began, there were many debates (and I’ve had the pleasure to take part in at least one of them) about the virtues of free software. However, this week’s events and announcements show that the basic freedoms of the GPL are not what the Free Software  Movement has in mind when they interpret the GPL, when sometimes their interpretation may be the one that might harm the community instead of helping it.

Two popular content management systems (CMS) who are quite popular decided to implement a strict interpretation of the GPL. the two popular open source systems are server based and released under the popular GPL licence. Both WordPress and Joomla decided that in order to appear in their add-on database, you must release your theme or plug-in under the terms of the GPL. WordPress’ decision that WordPress themes must be GPL to be listed and Joomla’s decision that all extensions need to be released under the GPL both rely on the same strict interpretation of the GPL by the SFLC: “it is our opinion that the themes presented, and any that are substantially similar, contain elements that are derivative works of the WordPress software as well as elements that are potentially separate works”.

In order to understand this, one must understand the GPL and its terms. The GPL requires that  all derivative works (meaning works based on the original program) will be released under the GPL as well (clause 2 of the GPLv2): “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…”; the user is granted the freedom to modify the work without any concern as long as he  does not distribute the modification in any form of license but the GPL. This is the viral nature of the GPL: all improvements in the software have to be released under GPL (if they are released).

However, freedom 1, as defined by Stallman himself, means the freedom to tinker with the software, without having to share your tinkers. When I patch a computer software to fit my system, or when I design a blog theme, I do not have to release it to the public (that’s what the aGPL is for, and if wordpress wasn’t so heavily based on other’s GPL code, it could have been released under aGPL to assert those freedoms). What Joomla and WordPress are doing is quite the opposite, they are taking away freedoms instead of using the freedoms of free software.

Take, for example, Omry Yadan’s popular software, Firestats. Omry wrote a php application to provide simple and efficient web analytics. This software runs on virtually any server and with any CMS, and is provided for free. Moreover, Firestats is definitely not a derivative work of WordPress or Joomla, it is a “separate and independent work” (GPLv3 clause 5, GPLv2 clause 2) which means that they are in the safe zone for GPL, as it states that ” 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.”

Meaning that even were Firestats was distributed with one of the GPL’d CMSs, it would still be considered ok to distribute without licensing it under the GPL. However, in order to be included in the Plug-in directory it has to comply with the GPL for no legal reason.

Now, this absurdity comes to mind when GPL-laundrying occurs. Think of the following situation: I used several pieces of code in my design, including CC-licensed code from a manual, and designed a template. In order to run my template, I used both WordPress commands and PHP commands:

<title><?php if (is_home () ) { bloginfo('name'); } elseif ( is_category() ) {
single_cat_title(); echo " - "; bloginfo('name');
} elseif (is_single() || is_page() ) {
single_post_title();
} elseif (is_search() ) {
bloginfo('name'); echo " search results: "; echo wp_specialchars($s);
} else { wp_title('',true); }
?></title>

This example demonstrates the use of PHP, MySQL and WordPress libraries, all use in the same script. However, this is not a derivative work of PHP or MySQL; this is obvious. Therefore, why is this considered a derivative work from WordPress? Would things be considered different if WordPress had an API for posts and information, and the Theme itself was running separately? Right, a theme (most of the time) can’t be considered Independent, but only Separate. However, a plug-in might be considered both.

This problem even goes beyond that, as the themes and plug-ins are not distributed with WordPress, but separately, therefore need not to comply: freedom 1 (as well as fair use) grants me the freedom to tinker the software on my server for my personal use; I need not to worry about it as long as I don’t distribute. Should I wish to distribute WordPress with several plug-ins (or themes) pre-installed, then I would have to  get the right permission from all the developers to package it as one software.

The latest interpretation of the GPL as restricting use of non-GPL’d code in GPL’d software only restricts the freedoms in free software, and might provide others incentives to package their code differently and use it under a different name.

[Title originated here]