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Messages - beagle

The following is not legal advice. It is not to be acted on as such.

RareVision's taking the code first and asking permission later was bad form. It was also misguided arguing the relative value, size or significance of piece of code. If the code was trivial, Mr. Worth could or should have written it himself and the infringement discussion would be moot.

Mr. Worth was quick to highlight his need to recoup his investment, without acknowledging that others need to recoup theirs. In cases of typical open-source development, people like contributor A1ex can be said to recoup their investments through the contributions of other developers. Code is the currency, and the GPL is the rules.

But beyond sour grapes and on to the meat of the matter. Mr. Worth has violated the license by taking code from the project, using it within derivative works, and publishing them as proprietary. This is a presumed matter of fact based on release notes published by RareVision, and the original author's assertion that the code was not trivial. The latter point is subject to argument, but RareVision's admitted dependence on the original GPL code indicates in favor of the original author.

Selling GPL-based products is allowed, but to not compensate the project with the resulting code is a direct violation of the license, and therefore copyright infringement. It is not an ethical matter but a legal one.

Regarding remedy, understand that the horse has already left the barn. The derivative works have already been created and distributed, and are therefore either copyright infringements or licensed under existing terms. Negotiating new terms or re-architecting a new product does not negate that derivatives already exist and were published concurrent to the GPL. All Magic Lantern contributors should be concerned, not just member A1ex.

As a solution, Mr. Worth could publish or make his company's product source code available according to the GPL terms, and continue to sell the product if he chooses. This is the only valid acknowledgement of copyright law and the license, which are the only mechanisms by which RareVision was allowed to incorporate and redistribute the GPL work in the first place.

Barring that, one or more contributors could perform US DMCA takedowns with hosts of the infringing material, most significantly the Apple App Store. Most international jurisdictions honor the procedure for practical if not legal or ethical reasons, as well as to be protected by the safe harbor provisions of the law. Takedowns are simple to perform. Anyone who has contributed materially to the code can assert as an authorized agent and has standing to issue a takedown notice.

Also, although officially registering a copyright is not required to seek relief from infringement, it has advantages. To register the Magic Lantern source code with the US Copyright Office, at least, allows that if RareVision or others are judged via a suit to have infringed, Magic Lantern contributors may be awarded statutory damages. This is important since Magic Lantern is generally an unpaid product(s), and compensatory damages are arguably nil. This has no bearing on the Magic Lantern community's prospects for injunctive relief at least with regard to currently infringing material, and possibly future ones, given RareVision's willingness to continue with apparent impunity in spite of warnings.

Putting legal engagement aside, the simplest solution is of course corrective action on the part of RareVision and, ideally, mutual agreement that the terms of the GPL are satisfied. However, it must be made clear that no one GPL contributor should speak for all others in such a way as to explicitly or effectively waive their rights under the GPL. Therefore, there is likely no legal basis for a "deal" outside the terms of the GPL, which preceded any one's contribution. To compromise on this could be to undermine the present veracity of the GPL.

If contributors choose to initiate takedowns, official and layman's instructions for "DMCA takedown" are readily available on the web, and are best followed carefully. But hopefully this can be resolved amiably and to everyone's mutual benefit.