OWNED! RE: [Asterisk-Users] H.323 support is distrubuted with Asterisk (was Re: [Asterisk-Users] chan_oh323.so: Segmentation Fault)

[Erik Anderson]

> Lastly, I just had my lawyer contact the US Copyright office and they
> have no listing of asterisk-oh323 as being copyrighted.

My friend is a Copyright/patent lawyer.  I work with him all the time on
copyright issues.  I will post some of my original notes in here if anyone
is interested.

Pay attention to the GNU GPL and fair use sections below.  Also note if the
software is not commercial in nature the maximum anyone can be sued for is
$200.  Keep in mind Richard Stallman GPL license (author of GRL license) has
never been proven or disproven in the court of law.  It is not cost
effective to try and fight something that is free.

Lawyer notes below

************************
U.S. Copyright Act
Sec. 107. - Limitations on exclusive rights: Fair use

Nessus = open source, nonprofit work

The philosophy behind GNU is to produce Unix like software that is
non-proprietary.  Anyone can download, modify and redistribute GNU software.
The only restriction is that they cannot limit further redistribution.

It does not matter if you submit a copyright or not.  There is an implied
copyright on all works of art for a period of not less than 7 years.

chan_oh323 work falls within what is called "Contribution to Collective
Work" or "collective work as a whole".  Thus it falls under the
"Contribution to Collective Work" / "collective work as a whole" copyright
laws.  chan_oh323 and GNU are the end licensing body for chan_oh323 work.
is a nonprofit open source project that is using the GPL license.
chan_oh323 is the "Collective work" and distributor of the work regardless
of who wrote it.  The end burden of responsibility falls on the distributor
of the "collective work".

$200 Minimum, in addition to any award of damages under this section, an
additional award of two times the amount of the license fee that the
proprietor of the establishment concerned should have paid the plaintiff for
such use during the preceding period of up to 3 years.

Nonprofit activities were exempt as well as some technology usage because of
"third-wave" information industries by locking the world into the
"second-wave" economic model that fit the age of the printing press.
Basically an economic analysis of technology to social wealth to provide
less protection for authors and more protection for consumers.

Be advised, the fair use doctrine as described here only refers to copyright
laws in the United States. In the United Kingdom, Canada, Australia and New
Zealand, this limited copying privilege is called "fair dealing." Unlike
fair use, the concept of fair dealing does not allow the used material to be
published or redistributed.

Richard Stallman uses GNU GPL as a proxy for a copyright owner's implied
consent as part of a bargain between authors and the public, struck on their
behalf.  GNU GPL is not fully compliant with US "fair Use" nor European
"fair dealing" laws.  GNU has never been challenged in the US nor
International community.  It is not cost effective to prove or disprove GNU
licensing.

Programs can be modified for internal use.  You must be compliant when it is
externally released.

The GPL requires the maker of a version to place his or her name on it, to
distinguish it from other versions and to protect the reputations of other
maintainers.

US is a dualist regime. US Judges must interpret US law and international
law to be consistent with each other. However where there are
inconsistencies the US law shall control within the US unless the
international law is considered "self executing", i.e. contains a provision
for the immediate application of the law upon its adoption. Though the US is
a signatory to the Berne convention, Berne has been declared both by
congress and judges to be a non self-executing treaty. (119) This means that
absent enabling national legislation, any conflict between the international
and domestic law will be resolved according to the US domestic law. (120)
This explains why TRIPs implies panel proceedings under the dispute
settlement understanding (DSU) to correct US breeches of its treaty duties.

"Valid for any third party" means that anyone who has the offer is entitled
to take you up on it.

Section 2 says that modified versions you distribute must be licensed to all
third parties under the GPL. "All third parties" means absolutely
everyone--but this does not require you to *do* anything physically for
them. It only means they have a license from you, under the GPL, for your
version.

they may allow linking two modules together, but not allow merging their
code into one module.

If a library is released under the GPL (not the LGPL), does that mean that
any program which uses it has to be under the GPL?
    - Yes, because the program as it is actually run includes the library.

To use GPL in a commercial product make them communicate at arms length (not
combining them but using exec, pipes, rpc, sockets, function calls within a
shared address space, etc)

Freeware: Freeware also is covered by copyright and subject to the
conditions defined by the holder of the copyright. The conditions for
freeware are in direct opposition to normal copyright restrictions. In
general, freeware software licenses stipulate that
1) the software is covered by copyright,
2) copies of the software can be made for both archival and distribution
purposes but that distribution cannot be for profit,
3) modifications to the software is allowed and encouraged
4) decompiling (i.e. reverse engineering) of the program code is allowed
without the explicit permission of the copyright holder, and
5) development of new works built upon the package (derivative works) is
allowed and encouraged with the condition that derivative works must also be
designated as freeware. That means that you cannot take freeware, modify or
extend it, and then sell it as commercial or shareware software.

The copyright laws include the doctrine of "fair use," which overcomes the
exclusivity rights and other restrictions placed on copyrighted material and
gives people the right to use copyrighted works without permission, even
when permission is explicitly denied. See Campbell v. Acuff-Rose Music,
Inc., 114 S.Ct. 1164 (1994).

First, since copyright laws are designed to "advance the progress of
knowledge," the courts give greater leeway and consideration to uses that
serve such purposes as criticism and comment, news reporting, research,
scholarship and other educational uses. Despite special consideration for
nonprofit uses, however, people can still profit from fair use. See
Rosemount Enters. v. Random House, Inc., 336 F.2d 303 (2d Cir. 1996).

fair use and first sale doctrine
Single or multiple copies of excerpts of works may be made, provided that
the excerpts do not comprise a part of the whole which would constitute a
complete program or support library, but in no case more than 10 percent of
the work.

In addition to the fair use, not all software is protected by copyright.
Some software is in the public domain. For example, any non-classified
software created by the United States government is in the public domain.
Public domain software can be in turn used or copyrighted by everyone.

Fair use guidelines:
1) The purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes
2) The nature of the copyrighted work
3) Amount and substantiality of the portion used in relation to the
copyrighted work as a whole
4) The effect of the use upon the potential market for or value of the
copyrighted work

GNU GPL really shoots itself in the proverbial foot on the fourth point.
Lastly, the courts consider the effect of the use on the potential market.
Since GNU GPL protected software must be freely redistributed, any use of
GNU GPL protected code would have no harm to the potential market for the
original work.

Freely released source is has not been a case in the court systems.  Use of
proprietary product work in similar products is the majority.

Making copies of a small section of code from a program in order to
illustrate a programming technique is not a violation.

Court systems are allowed more leniencies for works intended for educational
purposes and the advancement of technology.  Advancement of technology is a
case-by-case issue.
****************************

Erik

> -----Original Message-----
> From: asterisk-users-admin at lists.digium.com
> [mailto:asterisk-users-admin at lists.digium.com]On Behalf Of Jamie Carl
> Sent: Friday, May 23, 2003 9:30 PM
> To: asterisk-users at lists.digium.com
> Subject: OWNED! RE: [Asterisk-Users] H.323 support is distrubuted with
> Asterisk (was Re: [Asterisk-Users] chan_oh323.so: Segmentation Fault)
>
>
> *This message was transferred with a trial version of CommuniGate(tm) Pro*
>
> Guyz,
>
> I've just been reading all this crap that's been going on and I jave to
> say, grow up guys.  This isn't kindergarden and we're all suppose to be
> sharing information here, not bickering over who owns what and wants
> credit for that.  If you want credit and/or money for your work  them GO
> WORK FOR MICROSOFT!!! and move as far away from the open source movement
> as you can.
>
> Jeremey has done the right thing here and I have to stand by him.  As he
> stated, chan_oh323 has no legal copyright and was released as open
> source.  GNU GPL states that you must give credit to the creators of any
> source that you use or reference, which Jeremy has done.
>
> So what's the problem???   If you don't want people using your code, or
> trying to make it better, don't friggen release it as open source!!!!
> Simple as that!
>
> As for the technical side of things, Michael mentioned that Jeremy never
> submitted any patches or fixes and that he had merely 'refaced' the
> code.  What utter bullshit. Sorry, but I remember Jeremy assisting me
> with getting chan_h323 working on my system using a 3rd party gateway
> and some Vison Video Phones.  I was pretty much getting changes made on
> the fly and he ended up making it work great.  Better than chan_oh323,
> which didn't compile properly.  So why should Jeremy push his H323
> driver over chan_oh323?  It's clearly better.
>
> Well, that's my 2 cents.  Jezz, don't let them get ya down, there are
> those of us out here that love ya work.  And Michael, you might want to
> look up 'Open' in the dictionary.
>
> Peace.
>
> Regards,
>
> Jamie Carl
> Email:	me at jazz-inc.net
> PH:		+61-414-365-466
>
> -----Original Message-----
> From: Jeremy McNamara [mailto:jj at indie.org]
> Sent: Friday, 23 May 2003 4:11 AM
> To: asterisk-users at lists.digium.com
> Subject: Re: [Asterisk-Users] H.323 support is distrubuted with Asterisk
> (was Re: [Asterisk-Users] chan_oh323.so: Segmentation Fault)
>
>
> *This message was transferred with a trial version of CommuniGate(tm)
> Pro*
>
> This is futile.. I used asterisk-oh323 as a roadmap, I did not FORK your
>
> channel driver. The process we went through changed the entire logic and
>
> implementation, thus in my lawyer's mind chan_h23 is a totally separate
> work not requiring any such copyright notices. I gave you credit where I
>
> felt credit was due.  Remember, I tried to work with you in the beaning,
>
> but it was YOU that were unwilling to let others better your driver, so
> by the request of MANY people in this community, I decided to create my
> own H.323 channel driver.
>
>
> Also, I wast just informed by another Asterisk user (who wanted to be
> left nameless) that asterisk-oh323 mysteriously added new 'features' and
>
> many little things got better AFTER chan_h323 came out.  Granted this is
>
> just one persons private comment to me, but why would this person make
> these comments if they weren't true, when he just wants to terminate
> H.323 calls the best way he can?
>
>
> Lastly, I just had my lawyer contact the US Copyright office and they
> have no listing of asterisk-oh323 as being copyrighted.
>
>
> 'nuff said.. I will not respond to any further discussion on this topic.
>
>
> Jeremy McNamara
>
>
>
>
>
>
> Michael Manousos wrote:
>
> > Jeremy McNamara wrote:
> >
> >> Michael Manousos wrote:
> >>
> >>>
> >>> As a "thanks" to the authors of the *original* asterisk H.323
> channel
> >>> driver, McNamara removed all the copyright notices from the source
> >>> files.
> >>>
> >>> Well done! Great job!
> >>>
> >>> Michael.
> >>>
> >>
> >> You need to verify your facts before spouting ABSOLUTE PURE GARBAGE:
> >>
> >> *
> >> * h323wrap.h
> >> *
> >> * OpenH323 Channel Driver for ASTERISK PBX.
> >> *            By Jeremy McNamara
> >> *                      For The NuFone Network
> >> *
> >> * This code has been derived from code created by
> >> *        Michael Manousos and Mark Spencer
> >>             ^^^^^^^^^^^  WTF IS THAT?
> >
> >
> > First of all, this is more than obvious, that
> > THIS IS NOT A COPYRIGHT NOTICE.
> >
> > Your code is clearly derived from our copyrighted BUT free (GPL)
> > code. We don't have any objections regarding changing, improving
> > or even forking our code, but you should have maintained the
> > original copyright.
> >
> > Furthermore, you cannot discourage people from using
> > asterisk-oh323 while promoting your derived and misappropriated
> > version, based only on the fact that yours is included
> > in the main Asterisk source tree.
> >
> >>
> >> Then goto  http://asterisk.nufone.net/  and read that page, then go
> >> read the google cache for that page, so you cannot say I just changed
>
> >> it.
> >>
> >>
> >> Jeremy McNamara
> >>
> >>
> >
> > Michael.
> >
> >
> >>
> >>
> >>
> >> _______________________________________________
> >> Asterisk-Users mailing list
> >> Asterisk-Users at lists.digium.com
> >> http://lists.digium.com/mailman/listinfo/asterisk-users
> >
> >
> >
> > _______________________________________________
> > Asterisk-Users mailing list
> > Asterisk-Users at lists.digium.com
> > http://lists.digium.com/mailman/listinfo/asterisk-users
>
>
>
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