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07:26
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A: Hypothetical conflict - incorrectly licensed code

planetmakerYou are right in your assessment: Widget Tech has a problem as it will need to replace the illegally-used library with something else. It may not be eligible for damages if you cease to do so immediatly as it was acting in good faith. But they have no recourse to demand a license or release of th...

MadHatter
MadHatter
"Of course it's criminal to release your own code under a "wrong" license to only claim later that you didn't do so" I don't think it is, no. Do you have a particular jurisdiction and statute in mind? +1 from me otherwise, though.
eeucalyptus
eeucalyptus
My research took 10 minutes too long, but you describe different aspects of the problem anyways +1
planetmaker
planetmaker
@Madhatter In Germany such behaviour would be punishable under the fraud clause (§263 StGB): It's illegal to pretend one thing which is not true in order to gain (monetary or other) advantage or cause harm to someone else. That's punishable with up to 10 years of prison in Germany. (Yes, I know it was asked for US... but fraud should be punishable everywhere)
MadHatter
MadHatter
Are you aware of any cases in Germany that reached such a judgement in the circumstances we're considering? In England and Wales the withdrawl of a licence tends to be dealt with under the doctrine of promissory estoppel, which provides only a shield and not a sword (ie, it can be used as the basis of a defence, but not of an action). So it begins to appear unusual for such behaviour to be an offence, or even actionable; I certainly don't think the of course is justified.
eeucalyptus
eeucalyptus
@planetmaker Ugh, I think §263 StGB adds a whole new component to the scenario, but if the evil employee claims to have done it because they wanted to contribute to the open source community, there would be no intention for financial benefits for anyone. Hard to prove if no money is involved for them.
planetmaker
planetmaker
07:26
@eeucalyptus Sure, a crime such as fraud needs to be proven committed in court. Negligence or accidents happen and are not (necessarily) criminally punishable. Then there is no case, or a civil one at most. The fraud paragraph answers the part of the question for doing so 'accidentially' to cause harm
@Madhatter Basically what I say in the 1st sentence of my 3rd paragraph is the equivalent of the estoppel: if something persists long enough that you could reasonably rely on it being legal, you can (sometimes) get by with continuing to do so. The OP asked about this method for both, happen for negligence as well as as means to trip others willfully, too - thus my reference to criminal law (even when I don't have a case at hand right now)
MadHatter
MadHatter
@planetmaker as I tried to say, the bit I have most problem with is the "of course". If you were to change that to "sometimes, in some jurisdictions" I'd be in agreement.
planetmaker
planetmaker
@MadHatter are you telling me to go "someone else put my stuff here under a free license" (while you did so yourself) and then go "now I can sue you for damages" is legal anywhere? (That, and only that is the case where I see a criminal infraction in the direction of fraud) - maybe we can move this to chat. I have somewhat the feeling we mean the same but talk past eachother on grounds of language barrier or so; if that's not the case, I'm happy to learn a finer difference on this case, too :)
MadHatter
MadHatter
@planetmaker good idea on the chat front!
"Am I telling you that "someone else put my stuff here under a free licence, now I can sue you for damages" is legal anywhere?" No, I'm not telling you that. It might well be true, but it wasn't the point I was making.
Here's our hypothetical situation: A releases A's code under a free licence, B takes it and so uses it, then A tries to resile from that position, reclaim their code, and revoke the licensing. I understood you to be saying that "of course" A had committed an offence. I'm saying that in my jurisdiction not only is it not an offence, it doesn't even give rise to grounds for an action (ie, B can't sue A for resiling).,
planetmaker
planetmaker
07:56
There's a difference there. Consider these two cases:
1) A releases the code under a free license. Later it redacts the license and says 'that was an error and should not have happend". There is no criminal offence in this. Mistakes happen. Yet a 3rd party might still be required to remove usage of that software or not - the details depend on circumstance and jurisdiction. This is IMHO the case you mean - and where an "of course it's criminal" does not apply
2) A releases the software as free-software, intentionally and willfully, maybe even in disguise under a different identity with the i…
The 2nd case looks very similar to the 1st, if the release is not made in another entities identiy - and the defence then could always be it was released in error. Yet then the ruling might come that it was released for too long and you are responsible for your own actions as others have received the software under a valid open-source license. But that's then civil law between the companies and possibly also between the company and one/some of its employees - civil law varies much more
MadHatter
MadHatter
08:37
No, I'm going somewhat further. I agree that A commits no offence in case 1 anywhere that I know of. But moreover, A commits no offence even in situation 2, in most jurisdictions. I accept this may be an offence in Germany, and have asked if you know of any relevant cases where prosecutions for fraud have succeeded - but even if you do, the lack of any identifiable offence in most jurisdictions means I don't think the "of course" is justified.
What rights B retains in the various cases, before and after notification by A, is a very complex question and I'm (mostly) trying to avoid commenting on it. However, it's clear to me that, in case 2, B either has no rights and knows it from minute one (no license grant accompanies release) or believes he has rights, and is correct (licence grant accompanies release) - that's what my little extra answer was addressing.
 
2 hours later…
planetmaker
planetmaker
10:19
I see. I find that hard to believe, yet... it's law and many things are possible :) I changed my wording in the posting
MadHatter
MadHatter
11:11
@planetmaker "I find that hard to believe" just for clarity's sake, which bit is the hard-to-believe bit?
planetmaker
planetmaker
11:37
That it will be legal in some places to set a trap of releasing code in the intention of harming others who use it under a (open source) license you then revoke. Of course I realise the intention part will in most cases be very hard to prove and it will go through as negligence, mistake or similar (with the result that the OSS license might be valid after all or not - depends on exact case).
 
1 hour later…
MadHatter
MadHatter
12:47
@planetmaker it's more that A's intention is irrelevant. If A releases the code accompanied by a valid licence declaration, then B may use it regardless of A's desire to trap him/her. If there is no accompanying licence declaration, then B is knowingly committing copyright violation, again regardless of A's intent. B claiming that A released this code intending that B should steal it, as it were, will in no way mitigate B's offence.
I can't conceive of any reason in this situation why a court would enquire into A's motives. They're just not of interest. If you steal a car (ie, TWOC), the court will simply not be interested in what was in the owner's mind at the time he left it outside the house with the keys in it.
 
2 hours later…
planetmaker
planetmaker
14:48
Yes, true, if it is immediate clear that A did release it themselves under an OSS license, and being aware of that (thus not a mistake), I follow your argument.

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