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Re: [ossig] What's your take on this.



Charles F. Moreira wrote:

>Hi everyone,
>
>What's your take on this?
>
>On August 26, the Selangor state enforcement unit of the Domestic Trade 
>and Consumer
>Affairs Ministry conducted a raid on two premises selling mainly 
>computer
>game and software CDs at the Summit shopping centre in USJ-Subang Jaya
>around midday, August 25 (yesterday) and in the process netted some 
>copies
>of Red Hat Enterprise Linux V3.0 and FreeBSD 5.0 open source operating
>systems in a haul of 4,400 CDs containing mainly pirated proprietary 
>computer games
>and pirated proprietary software.
>
>I asked the ministry's Assistant State director, Enforcement Division, 
>En.
>Othman Ahmad how they could prosecute someone for selling CDs of the 
>above
>open source software since the GNU General Public Licence allows people 
>to
>use, copy, modify and re-distribute the program as long as they include 
>the
>source code and give others exactly the same rights to use, copy, 
>modify and
>re-distribute the software uunder the same terms.
>
>Well, I could have well been speaking to him in Greek as the ministry
>official didn't quite understand the concept of the GNU-GPL and said 
>that
>users can download the software for free and use it as long as it's for
>their personal use but if they resell it, then they can be
>charged and prosecuted.
>  
>
I do not know much about the BSD licence, therefore I am refering to the 
GPL only.

The short answer is that the "CD sellers" most probably can be 
prosecuted for selling "Red Hat Enterprise Linux V3.0"
(from now on "RHEL3"), through the standard ways the ministry official 
described.

The freedom, with regards to the GPL licence, refers to the source code 
of the software. When you market
open-source software, you need to provide somehow the source code. It 
does not mean that anyone can
ask for your binaries (compiled software, ready to be installed) or 
resell them. *You* can set the rules for the binaries.
In these cases of illegal copies we have to do with binaries, possibly 
copied
from commercially available packages.

Therefore, once these commercial packages are identified (for example, 
RHEL3),
one can see what are the conditions to make copies of the CD and 
reselling it. I do not have such a package handy
to see what their conditions for copying is. I suppose some people from 
the list can help out with the exact wording.
In this part, the "CD copying people" opened a shrink-wrapped box of  
RHEL3 and violated the license agreement with
regards to the copying of the binary CDs and reselling them. I think 
this is point (1) of the ministry official.

The source code for RHEL3 is available online at
ftp://ftp.redhat.com/pub/redhat/linux/enterprise/3/en/os/i386/SRPMS/
and in Malaysia at
http://mymirror.asiaosc.org/redhat/linux/enterprise/3/en/os/i386/SRPMS/
If these "pirates" downloaded the source code and compiled it on their 
own, they would have been at least half-legal. Because...

you are not entitled to use the same product name
if you  infringe on a registered trademark ("Red Hat Linux" in this 
case). I think this is point (2) from below.

The "CD sellers" could have called their compiled "RHEL3" something else 
and they would have been probably quite legal.

Point (3) looks also perfectly valid in this case.

To recoup, if someone wants to enter the bussiness of open-source 
software and specifically GPL-licenced software,
they have the right to access to the source code which they can 
configure/compile at wish to create their product.However,
they have to respect any registered trademarks and also follow other 
standard bussiness practices.

Sidenotes:

Progeny Linux system: Progeny (http://www.progeny.com/) is one company 
that offers software based on "RHEL3",
working directly on the source code.

Fedora Core Project: Up until version Red Hat Linux 9 one could download 
freely from the Internet binaries (bootable
CD images) of the flagship product of Red Hat Inc. This was very 
convenient for the users, however, Red Hat Inc
decided to stop this practice as it negative on the image of the company 
(The registered trademark "Red Hat Linux"
was used abused). Therefore, they started the Fedora Project based on 
Red Hat 9 as their test bed but also a public
binary distribution.Fedora is "designed" so that it is used by as many 
people possible. Of course, Colin can clarify here.

Linux ISOs: In general it is easy to produce the so-called "ISO image 
files" (that can be directly copied to CDs
and are fully usable). In fact such a central location is available at
http://www.linuxiso.org/
and it only contains legally distributed ISO images. You may notice Red 
Hat Linux (that's version 9, the last public binary edition),
and personal editions for other distributions.

Simos Xenitellis
http://simos.info/
(location: UK, eventually)

>Othman said there are three laws under which the ministry can
>prosecute sellers of CDs containing Linux or other open source software.
>
>1.    Under the Copyright Act 1987. They will call the copyright owner 
>and
>ask them if they want to prosecute and go ahead if they say yes.
>
>Failing 1. the ministry can go ahead and prosecute under.
>
>2.    Under the Trade Description Act 1972, Original Label (Label Tulen)
>order 2002 where all software CDs sold must carry an original label or
>certificate.
>
>3.    Under the Price Control Act (Akta Kawalan Harga) 1946 whereby the
>packaging must bear the full name and address of either the 
>manufacturer,
>authorsied distributor or dealer.
>
>Also what chance of success will the minsitry have in prosecuting 
>vendors of
>CDs containing open source software, since it's unlikely they can get 
>any
>copyright owner to prosecute under 1. above but they certainly could
>prosecute under 2. amd 3. if they were so determined.
>
>The implications of this as I'm sure you all realise is that selling 
>packaged, shrink-wrapped  Red Hat Linux, Linspire, Mandrake, etc 
>costinga  couple of hundred ringgit or more is fine but selling the 
>same as crudely bundled CDs costing RM15 in Low Yat Plaza, Imbi Plaza, 
>Summit, etc risks prosecution, while most communication have-nots in 
>Malaysia don't have the wired or wireless broadband links to download 
>ISO images at will.
>
>It also means that if you're one of the luckier ones with broadband 
>access and want to do the community a favour by burning a few Linux, 
>FreeBSD, etc CDs and sell it to anyone who wants them at prices 
>covering your costs, you'd be risking prosecution.
>
>Of course, all this is academic and the Ministry would find it easier 
>to overlook a handful of CDs containing open source software when they 
>have an overwhelming number of pirated proprietary software and games 
>to prosecute the vendors for.
>
>However, I'm interested in your views which I may mention in the 
>article I'm writing.
> 
>
>Thanks and Regards
>
>Charles F. Moreira
>In.Tech, Star Publications
>
>
>
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>  
>


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