[Asterisk-biz] Asterisk Ffork - OpenPBX.org

[Paul]

Kenneth Shaw wrote:

>On Sat, 2005-10-08 at 12:25 -0400, Jeremy McNamara wrote:
>  
>
>>smbPBX wrote:
>>
>>    
>>
>>>Any thought from the business comminity?
>>>      
>>>
>>Furthermore, I better not see any H.323, G.729 or OpenSSL support in 
>>this forked version or I will make it personal and sick the legal types 
>>after whomever is responsible.
>>
>>
>>Have a nice day,
>>
>>
>>Jeremy McNamara
>>_______________________________________________
>>Asterisk-Biz mailing list
>>Asterisk-Biz at lists.digium.com
>>http://lists.digium.com/mailman/listinfo/asterisk-biz
>>    
>>
>
>You know, all this talk about something that doesn't even matter.
>Although the GPL has been looked over in court, it has not been held up,
>nor have all conditions of the GPL been systematically tested/upheld in
>the ways that matter here. Not to mention other jurisdictions with their
>own contract laws.
>
>If OpenPBX actually makes headway, and people start using it, do you
>really want this to be the case where the GPL gets tested? Because I
>don't think Digium or OpenPBX would be happy with the results, either
>way.
>
>My comment on this whole matter is this: I have a hard time believing
>that a court would restrict the use of software (or derived software)
>whose source was distributed openly and freely, regardless of any
>"license" attached to it, be it the Mozilla, Apache, GPL, Creative
>Commons, or whatever.
>
>I believe that by putting code on a website, free for all to download,
>you have put your code in the public domain, regardless of attached
>licensing. Once something is in the public domain, you have given up
>copyrights to that object, be it a photo, source code, novel, music, or
>something else. 
>
>I'm sure, as a developer who has worked in the world of corporate
>contracts, that you have gone through the process of signing an NDA with
>a company that jealously gaurds its IP. In the past I have needed to be
>fingerprinted and then _signed_ a contract with multiple witnesses
>present before I was allowed access to the company's source code.
>
>If you expect an ill-read licensing text included in the source tree in
>a _separate_ file to offer the same type of protection that a signed
>contract provides, then I believe you are mistaken. Reading a license
>does not constitute a binding contract between the reader of the license
>and the author, no matter how much one wishes it to be so. The courts
>will decide what constitutes a binding contract in time, but I am
>positive they will not decide that this is a binding methodology.
>
>In the end, should it be taken to court, both Digium and OpenPBX will
>lose financial resources in litigation, and I don't believe it would
>accomplish anything but to strike down certain conditions of the GPL.
>Partly why there are not more cases regarding the GPL is that no one
>wants to be the first to litigate. The potential legal hassle of the GPL
>is enough to scare away companies who do not wish to develop or
>contribute in the public domain. Does it really need to be tested? By
>you?
>
>  
>
I think you are generally right. The courts want to see that something 
substantative is at stake.

I see two areas where the courts might be very willing to get involved:

1) Somebody uses GPL code as part of a closed source product. The 
product will be made GPL or removed from the market by court order. I 
think they would only remove it from the market if other parties rights 
prevented it from becoming open source. That would make the defendant 
liable for damages to all his licensees. I suppose making it GPL could 
result in the company having to refund a lot of money.

2) Somebody uses open source as part of a custom solution without the 
consent of the customer. If it turns out the customer had plans to sell 
business franchises or even sell the software to competitors the courts 
have good reason to get involved. I pity the fool who does not get 
written consent to use open source components in advance.