from the still-needs-more-testing-in-court dept.
https://sfconservancy.org/copyleft-compliance/vizio.html
IRVINE, Calif. (Oct. 19, 2021) Software Freedom Conservancy announced today it has filed a lawsuit against Vizio Inc. for what it calls repeated failures to fulfill even the basic requirements of the General Public License (GPL).
The lawsuit alleges that Vizio’s TV products, built on its SmartCast system, contain software that Vizio unfairly appropriated from a community of developers who intended consumers to have very specific rights to modify, improve, share, and reinstall modified versions of the software.
The GPL is a copyleft license that ensures end users the freedom to run, study, share, and modify the software. Copyleft is a kind of software licensing that leverages the restrictions of copyright, but with the intent to promote sharing (using copyright licensing to freely use and repair software).
Software Freedom Conservancy, a nonprofit organization focused on ethical technology, is filing the lawsuit as the purchaser of a product which has copylefted code. This approach makes it the first legal case that focuses on the rights of individual consumers as third-party beneficiaries of the GPL.
[...] According to Sandler, the organization first raised the issue of non-compliance with the GPL with Vizio in August 2018. After a year of diplomatic attempts to work with the company, it was not only still refusing to comply, but stopped responding to inquiries altogether as of January 2020.
The "and install" clause implies that the infringing software would be GPLv3, rather than GPLv2. LWN carry the story here, including a link to the complaint itself which refers only to GPLv2 and LGPLv2.1 violations. I wonder if they're overstating their case? (Installing being the "tivoisation" issue that caused GPLv3 to be created in the first place.) What really matters is what is said in court, not what's written in their press release. -- Ed.
(Score: 1, Interesting) by Mockingbird on Wednesday October 20 2021, @09:40PM (8 children)
Does the TV present you with a EULA when you first turn it on? And does this EULA require you to consent to the recension of all your rights in order to use the device? I remember having that problem with a Compaq laptop. Booted off a floppy to avoid the EULA, but they still would not refund the Microsoft tax.
(Score: 5, Informative) by Runaway1956 on Wednesday October 20 2021, @10:25PM (2 children)
A EULA is not a legal contract. Never has been, never will be, despite Sillycone Valley's propaganda.
(Score: 3, Interesting) by bzipitidoo on Thursday October 21 2021, @12:04PM
Yeah, the propaganda is pervasive. I've even seen the GPL thrown at me as the EULA. Ridiculous to force users to agree to the GPL before they are allowed use. It's as if the point was to keep users conditioned to the idea that software comes with EULAs, but didn't have a EULA ready and grabbed the GPL to serve as that wall of text.
(Score: 3, Informative) by DannyB on Thursday October 21 2021, @03:46PM
As I recall, most of the EULA-is-a-contract support came from Redmond.
They lobbied to make enforceable EULAs part of the UCC. (uniform commercial code) By clicking, you are legally bound, just like a paper contract.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 4, Interesting) by FatPhil on Wednesday October 20 2021, @10:26PM
I've clicked random buttons in cyrillic after a wall of text in cyrillic just to make a thing go away, there's no way a court of law would support the concept that I agreed to anything. Yes, my laptop's keyboard has caps in cyrillic, but I don't care, I touch type. I presume Lenovo thought I was a russkiy. Their mistake. I ain't gonna apologise for their mistakes.
(Even when I was in the UK I used a US keyboard mapping, I literally have never cared about the ink, only about the issue of whether when each particular finger twitches a specific amount a predictable character appears in my xterm. ... Checks his current desktop keyboard - yup, this one's cyrillic too.)
Great minds discuss ideas; average minds discuss events; small minds discuss people; the smallest discuss themselves
(Score: 1, Insightful) by Anonymous Coward on Thursday October 21 2021, @07:29AM (1 child)
I don't agree that click EULAs are binding, but even giving that a pass, the End User cannot give away the rights of the software writer.
It is the writer who said 'using my code means you agree to release your modifications'. The End User is not a party to that alleged agreement.
(Score: 4, Informative) by bzipitidoo on Thursday October 21 2021, @12:18PM
Yes. One of the worst agreements I saw said that I had to allow them to inspect the systems, enter the premises and scan anything they wished, to make sure no naughty piracy was occurring, you know. But I had no power to commit my large employer (the university) to that, even if I was so inclined, which I definitely wasn't. No consideration whatsoever for the fact that was far too broad, giving them access to all kinds of stuff they had no business seeing. Another unacceptable point was that they would take ownership of any software anyone else had done that was related to their product, never mind that it might have been created before seeing their stuff. Hard pass on that one.
(Score: 2, Interesting) by Anonymous Coward on Thursday October 21 2021, @11:27AM
Which is MEANINGLESS for the purposes of GPL.
The GPL license is not an end-user license. It's a license that allows someone to create derivative works and redistribute them and under what terms the software can be redistributed. Period. You can do whatever you want with your own copy, including linking it with non-free software, but such use-cases become *undistributable* since you no longer can satisfy the terms of the GPL.
https://www.gnu.org/licenses/old-licenses/gpl-2.0.txt [gnu.org]
So the EULA, whatever it is, is actually a case for infringement of the GPL software.
(Score: 2) by DannyB on Thursday October 21 2021, @03:49PM
The EULA for a consumer item might work like this.
Somewhere in microscopic print on the exterior box of the TV (or other consumer product) is a clause something like: By opening this box, you agree to be bound to the terms of the enclosed EULA which is printed in microscopic print on one of the included disposable product inserts.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 5, Informative) by Revek on Wednesday October 20 2021, @09:54PM (1 child)
They lost and third party firmware for small routers became a thing.
This page was generated by a Swarm of Roaming Elephants
(Score: 4, Interesting) by JoeMerchant on Thursday October 21 2021, @01:52AM
Not just vanilla router firmware, either: http://www.broadband-hamnet.org/ [broadband-hamnet.org]
🌻🌻 [google.com]
(Score: -1, Troll) by Anonymous Coward on Thursday October 21 2021, @12:10AM (5 children)
Unless the conservancy has something more specific, this seems a dead end?
You used the kernel!
Yes, the vanilla surce at k.org, we can download it for you, but can't see why this makes sense.
Use used utils and libs!
Same answer
You didn't give us the build scripts you used!
Yes, GPL doesn't appear to require this.
Can we have the source for your special apps?
Sure, if we are obligated to do so, but first could you explain where GPL requires it.
(Score: 3, Informative) by sjames on Thursday October 21 2021, @12:59AM
If any of that code is GPL v3, it is spelled out:
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @02:54AM
In GPLv2 that's specified:
Even if the kernel is, at this very moment, accessible via kernel.org -- is that the only GPL'd package that you're distributing? were any of them small packages, that aren't available elsewhere any longer? Should kernel.org foot 100% of the bill for your distribution requirement? Lets make kernel.org a plaintiff: Vizio's violation of the GPL leads to Kernel.org being abused by users of Vizio's products looking for the source code to those products.
Go ahead. Read b). Read c), too, even. Which of those most gets Vizio out of the red?
(Score: 1, Interesting) by Anonymous Coward on Thursday October 21 2021, @03:39AM (1 child)
If you actually read the license this sentence will appear to you:
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @01:47PM
" plus the scripts used to control compilation and installation of the executable."
My mistake, it's been a while since I've read the license. Given that, there is no way that the vanilla release meets this for specialized hardware. Too bad the complaint is so verbose.
A more focused complaint might be:
You sold us equipment including software licensed under GPL2 which we would like to modify.
GPL2 defines the term 'source code' which was required, by you, to construct this equipment and which we now require to modify it.
GPL2 requires an equipment vendor to provide this source with their equipment if requested.
We requested and to date have not received a complete source code.
We ask the court to require you to provide same for the GPL2 objects on your product. As it is near impossible to know you have a complete source code until you do, we suggest that the delivery should include a demonstration where you load the source code onto a freshly installed Ubuntu system, build the software and install and demonstrate it on the platform.
We note that adherence to the GPL2 license makes possible a great many things, your product included. Given the importance of GPL2 and our belief that you have provided less than a good faith effort to adhere to it, we further ask the court to set a time limit on the above delivery and demonstration. In the event that the time is exceeded we ask that you refrain from shipping further products including GPL2 until compliance is demonstrated on each and every one.
(Score: 2) by linuxrocks123 on Thursday October 21 2021, @05:29AM
I absolutely guarantee you that they did not upstream every single f*ing hardware compatibility and other change they made and then simply build and distribute a completely unmodified, vanilla Linux kernel on their TVs. That's not how embedded works.
(Score: 2) by JoeMerchant on Thursday October 21 2021, @01:49AM (16 children)
Usually courts think first in terms of damages, then remedy. So, the courts will find that Joe Vizio consumer was damaged by being denied access to the source code in his purchased product, notice of the content of such GPL code, etc. In the case of LinkSys routers, I see how some consumers are being denied the right to modify the router code for sometimes, even often, legitimate purposes. I wonder if the courts will see the Vizio case the same? Even though I'm a consumer, and I have tinkered with ffmpeg source code modifying it for specific uses (Canadian military metadata encoding, anyone?) I'm hard pressed to imagine a valuable to the consumer modification to a Vizio product that doesn't involve bypassing copyright restrictions, region code restrictions, ad blocking, etc. Take those away and what damages has Joe Vizio consumer suffered by the lack of GPL compliance on Vizio's part? Does he need to playback military recon video with metadata overlays?
🌻🌻 [google.com]
(Score: 2, Interesting) by Anonymous Coward on Thursday October 21 2021, @02:41AM (6 children)
Copyright infringement damages aren't damages unto the end user. Further, the damage is also to competitors: vizio is getting the work for free, using it, not contributing back, as all the competitors are required to do. The GPL copyright holders are not being enriched whereas Vizio is being enriched by using the copyrighted materials of the copyright holders -- under the agreement that they mutually enrich the original copyright owners.
Unless you're saying that the GPL is null, void, and entirely unenforceable, which the vast majority of the software world disagrees with.
(Score: 2) by JoeMerchant on Thursday October 21 2021, @10:40AM (5 children)
Can you quantify the GPL copyright holders' loss of enrichment from the infringement? In monetary terms?
🌻🌻 [google.com]
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @03:44PM
Lets turn the question around.
Can we determine that there will be damages due?
(https://www.law.cornell.edu/uscode/text/17/504)
It's not so much as proving they suffered damages as the court gets to decide what the damages are. You've probably seen this a lot with copyright trolls, who sue for X and demand they should receive everything.
So what if it's not everything? Then the damages of infringement are defined as:
The profits achieved by the manufacturer are equal to the manufacturer's gross revenue, less what they can _show_ is spent elsewhere.
So, the damages for the GNU copyright violation at at least 100% of the profit made, OR $150 000 per infringement if they can show the infringement to be willful (which should be easy, with the GPL).
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @03:49PM (3 children)
In the USA it is statutory damages. Currently between $1500 and $75,000 per infringement I believe. I think it might be doubled for registered copyrights, do GPL enthusiasts register their copyrights?
It's the same law they use to hit music pirates with damages for millions of dollars for filling up their ipods.
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @06:08PM (2 children)
In the United States, if the copyright is not registered, the maximum amount of statutory damages is effectively $0 since statutory damages are only an available remedy if the copyright was registered with the US Copyright Office prior to the date of infringement.
Statutory damages for copyright infringement in the United Staets are normally set at a minimum of $750 and maximum of $30,000 per work, unless the plaintiff can show that infringement was intentional, in which case the maximum is $150,000, or unless the defendant can show that they could not reasonably be aware of the infringement, in which case the minimum is $200.
Without registration, a copyright holder is only entitled to actual damages (there is no limits for actual damages, but it is usually difficult to prove).
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @11:58PM (1 child)
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2857&context=lawreview [scu.edu]
It is apparently ambiguous what constitutes "one work", but an argument could be made that each GPL contributor who was infringed had at least one work. Could still be quite the cumulative sum at $30,000 each.
Or they could go actual loss ( which may be $0) plus profits as punitive damages.
(Score: 0) by Anonymous Coward on Friday October 22 2021, @03:00AM
Maybe, but in reality most contributors to a GPL-licensed project will have either (a) not registered their copyright with the US copyright office, or (b) assigned their copyright to someone else, who in all likelihood also has not registered the copyright, or if they have, that probably is because they hold copyright over a significant proportion of the project's contributions.
So I doubt there's really a lot of possibilities for considering a collaborative free software project as a large number of works for the purposes of calculating statutory damages (however, I don't expect there is much if any relevant case law).
(Score: 2) by Runaway1956 on Thursday October 21 2021, @07:29AM (8 children)
You seem to approve of copyright restrictions, and region code restrictions, and advertising. Someone like me who has nothing but contempt for all of those sees things quite differently.
The Vizio that my wife uses for a monitor does not show any advertising. The ad servers are blocked at the router, all of the telemetry crap that I could figure out is also blocked. By default, that Vizio reports all media consumed back to Vizio, no matter the source. In short, the Vizio TV is just another surveillance device, implanted onto my wife's desk.
I haven't dived into the code - I have little desire to do so, worse, I'm not a coder. But I think I have defeated the surveillance device.
One of my own monitors is a Vizio TV. It is a much older model, a "dumb" model if you will. It has no WIFI, it never did serve up advertisements, it has no telemetry - or if it does, it's so well hidden that I can't find it.
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @07:50AM (3 children)
why is your wife's monitor connected to the internet? you'd have to either plug in the cable yourself, or input the wifi password.
if it's used as a tv, then please call it a tv (especially in this context it's the tv functionality that you're referring to).
(Score: 2) by Runaway1956 on Thursday October 21 2021, @08:58AM
TBH, I do not understand exactly how the monitor/TV connects so easily. It probably asks Windows on her computer for the WIFI password. Unless, of course, she gave it the password when she brought it home. You've piqued my interest, but I'll probably never dig into it. All I can tell you for sure, is that traffic on the router was going to tracking and advertising sites known to belong to Vizio, and I blocked that at the router. Other traffic strictly concerned with programming is permitted.
I should point out that it is my wife's television and computer under discussion. I don't own it, I can't tell her what she can do with her stuff. I don't monitor her activity on her computer, or on her television. All that I have done, is to block advertising and telemetry, then informed her of the fact. After years of observation, it is pretty clear that she doesn't use the stuff offered to her, but our sons do use it. Most all programming coming through the television can be traced to machines owned by my sons.
(Score: 2) by Fnord666 on Thursday October 21 2021, @02:48PM (1 child)
It's quite likely a "smart" TV, which requires a connection to use any of those features. You just get a large helping of tracking and advertising as part of the bundle!
My question would be whether devices that support HDCP require a periodic update to any encryption keys that are used.
(Score: 1, Informative) by Anonymous Coward on Thursday October 21 2021, @06:48PM
As written the answer to this question is "no, HDCP does not require periodic updates".
The exception is that it is technically possible a receiver's credentials may be revoked, and then newer transmitters which know about the revocation will refuse to authenticate with it. Blu-ray players can get things like updated revocations when you insert newly-made discs into them. Other devices probably get their updates from the internet. None of these updates are good for the end user as the only purpose they serve is to make things stop working.
The silver lining is that for the same reason, HDCP revocations are very rare. HDCP's purpose is to make unlicensed products less desirable to the end-user than licensed ones (that way, you better pay your licensing fees to Intel and the movie studios in order to actually sell your product). Intentionally causing interoperability problems between products that have paid their dues is contrary to this goal.
(Score: 2) by JoeMerchant on Thursday October 21 2021, @10:47AM (2 children)
My personal views have nothing to do with the courts' views. IMO, all copyright, including GPL, is overreaching in current implementation and the monetary losses due to piracy claimed by traditional publishers are absurdly overblown and should be treated as deliberate misinformation campaigning, with penalties wherever they are cited as evidence.
However, there is some monetary loss in copyright infringement, whereas copyleft is difficult, if not impossible, to put a number on.
🌻🌻 [google.com]
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @12:16PM (1 child)
I find myself compelled by the argument that the whole concept of copyright and patents is a mistake. The original idea was presented as a way to protect small independent creators from having their work stolen. But in practice, large businesses use copyright, patents, and frivolous lawsuits to defeat poorer competitors. That is, a system that was - in theory - designed to protect the poor from the rich has been twisted to protect the rich from the poor.
Of course, since I don't have the power to revoke the world's copyright and patent laws, all I can do is use the GPL.
(Score: 3, Informative) by JoeMerchant on Thursday October 21 2021, @01:58PM
There's the fundamental disconnect between the promotional advertising and reality. Even from the beginning, the patent system excluded those who could not afford to file patents, failed to protect those who could not prosecute patent violations effectively in court, and has always ultimately been a battle between the legal teams on each side. Patent law may give David a 10x legal force multiplier against Goliath, but corporate Goliaths' legal armies have been more than 10x the size of anything an individual David could muster since before the founding of the United States. Long before...
Recent-ish example: small US company patents a product worldwide in the 1970s and launches it into the market. In the 1980s makes substantial improvements in the software dramatically increasing the product's capabilities, but never really does much marketing so sales languish around 50 units a year, maybe $400K gross income. In the 1990s, two years before the initial patents expire in Australia, an Australian company launches infringing products and even promotes and sells it at a US trade show IN A BOOTH RIGHT ACROSS FROM THE PATENT HOLDERS - they give "educational seminars" where they spout their opinion that the basic device is "all you need" and all that other automatic calibration stuff is un-necessary, come buy the Aussie-made product instead. Legal analysis: yes, they are infringing. Small US company can sue them for infringement of the Australian patent, and win, in an Australian court. Potential damage award is likely limited to the courts interpretation of sales lost due to infringement (maybe $30K, tops) or, if the US company suing an Australian company in an Australian court gets lucky, they might collect all of the Australian company's income from the infringing devices up until the date of expiration of the patent - maybe $100K, but of course the Australian company has separated the infringing device as a separately sold component - boosting the sales of their larger systems, but exposed income strictly limited to their loss-leader build up market share by selling the device at cost component income. Market penetration being what it is, sales in the third year, after patent expiration, are likely to exceed the sales of years 1 and 2 combined. US company is almost assuredly going to spend more pursuing the case than they will ever recover. Business is business, Bob's your uncle.
Another example from the 1990s - a small publicly traded pacemaker company in Texas patented a truly innovative electrode anchor design, and a large pacemaker company blatantly infringed and duplicated the design. Small company sued the large company and won a judgement in excess of the small company's value. So, rather than pay, the large company bought a controlling interest in the small company and then shut it down so they didn't have to pay anything. On the books, the remaining shareholders of the small company got their "fair share" fraction of the judgement, rather dramatically diluted by the destruction of the future value of the company they used to own shares in. Couple of hundred people out of work. Business is business.
🌻🌻 [google.com]
(Score: 2) by JoeMerchant on Thursday October 21 2021, @10:55AM
I think I defeated "smart TV" surveillance much more effectively by not buying one in the first place. Our screens are all "dumb" monitors driven by computers running open source OS.
Unfortunately, that option is not practically available for handsets or tablets. (No, I don't consider Android a true open source OS, not as it is sold on consumer devices, particularly those with cellular network access.)
🌻🌻 [google.com]
(Score: 2) by srobert on Thursday October 21 2021, @03:20AM (2 children)
Seems like this would give anyone selecting a platform to build proprietary products an incentive to choose something covered by the BSD license.
(Score: 1, Insightful) by Anonymous Coward on Thursday October 21 2021, @04:23AM
Yet somehow GNU/Linux has become a very popular platform for manufacturers of all kinds of devices to use.
It's quite simple actually. If smart tv manufacturers all use a BSD licensed platform they get a lot for free, but there is no guarantee modifications needed for the type of product they make will be shared, so they have to be prepared to do all the heavy lifting for that themselves. If they use a GPL licensed platform they know they have to share the improvements that they make with their competitors (who just have to buy a tv to be entitled to receive the source code), but they also know they will receive the improvements those competitors make. With several manufacturers each recieves far more from their competitors than they give away to them. It's not a zero sum game, the benefits outweigh the costs. That gives them an incentive to prefer the GPL.
It doesn't force them to all use the same user interface and functionality, they can still compete with proprietary applications that run on the GPL'ed platform, and they can use LGPL'ed libraries in those applications (that's what the LGPL is for).
(Score: 2) by Runaway1956 on Thursday October 21 2021, @07:33AM
True. It makes you wonder why they didn't choose BSD licensed software. I don't think there is anything in Gnu land, or Linux land, that hasn't been made to work in BSD land as well. There seems to be a crossflow between them, really. If BSD comes up with something cool, Linux has something very similar next year. If Linux does something better, it makes it's way back to BSD the following year. There may be some holes here and there, but for the most part, it's all duplicated.
(Score: 0) by Anonymous Coward on Thursday October 21 2021, @07:45AM (1 child)
it's a company that actively disables features so that you pay extra for them.
tv speakers had no bass.
so I put in headphones. half a second of full sound, then bass cut off. obviously a software thing.
I wrote to them.
a couple of months later, tv announced that it was updating.
after that, the half a second of bass was gone.
amazon kept suggesting that I buy a sound bar.
I bought a refurbished DVD player that included a surround system. cheap and basically new. it had an optical in, the tv had an optical out, problem solved without paying for their fucking sound bar.
complete assholes.
reminds of Tesla, enabling and disabling features with their software.
they seem to be making money, but they're not doing things right.
in the end, it will cost them even more than the "it's a self-driving car!" bold-faced lie.
(Score: 1, Insightful) by Anonymous Coward on Thursday October 21 2021, @12:47PM
That's when you return it.
I have a cheap cheap TV, Dyon. Cost me 100€. It has recording. It has shit sound but I plugged in my soundbar and I have sound that's decent -- sound is always shit thanks to crap speakers. But if you plug in headset and hear shit like that, return it. Return it with prejudice and write some nice reviews.