[ILUG] SuSE redistribution

[Michael Conry]

Hi Rick, Rory.
I've been following this discussion and can see some merit in both sides.

First, Rick, I can see that you are absolutely correct that if the DVD
image contains RealPlayer (i'll use this just as an example) and even
though SuSE extends to you a right to copy/distribute the disk
non-commercially, if Real has not given you a matching right (either
directly or through SuSE) to redistribute *their* software then
duplicating and distributing the disk infringes Real's copyright.  All
SuSE can do is pass on rights that they've been authorised by others
to delegate (e.g. Real), and give you the right to redistribute the
"compilation" part of the work (the work created simply by putting the
DVD together).

But I have some sympathy with Rory's points too regarding the
reasonableness of accepting SuSE's licence at face value, and in good
faith.

Clearly, if (imagine) there was an appropriate leopard-guarded licence
somewhere within SuSE that authorised them to allow you to
redistribute RealPlayer (and the other contested packages), then that
would be sufficient to allow redistribution of the compilation, even
if the rpms contained a licence that did not extend this right.  In
fact, one might (reasonably, I think) take the licence from the rpm to
apply to the copy of Real you install on your computer (i.e. you
cannot install to PC, then redistribute those installed files) since
you have to actually open the rpm to see it, while one could
reasonably take the compilation-copyright on the disk to apply to the
compilation and constituent parts.

Now, Rick might be getting cross at this point because I appear to be
ignoring (at least) two important (and correct) points that he has
made before:
* We have no concrete evidence on which to base a belief that SuSE has
the right to extend to us such redistribution rights on Real's
software (e.g. quotes from actual text of the appropriate licence
agreement, or an appropriate statement from Real).
* Even though SuSE tells us we have the right to do something (copy
the disk), if they don't have the authorisation of Real to extend to
us redistribution rights on RealPlayer, then we still aren't allowed
to redistribute RealPlayer (somebody has got to go talk to Real if we
want to get those rights).

Where I would love to hear the advice of a lawyer is in relation to
the question of how much certainty is required in these matters.  As
I've said above, it is *possible* for there to be appropriate
permission for SuSE to issue the licence they put on the CD
compilation.  I know it may be unlikely, Rick, but it is at least
possible.  And clearly, if I believe SuSE's statements and
redistribute the disks, i will be party to a copyright infringement if
such a permission has not in fact been granted.  However, is there a
point at which I am protected from (most/severe) legal-action in
relation to this copyright by dint of SuSE's assurances?  Note, I'm
not saying that the copyright infringement will be eliminated.  I'm
just asking is it possible for the blame/responsibility to shift to
SuSE?

Personally, it seems to me there must be some point at which if you
take reasonable actions in good-faith to avoid infringing copyright,
then if you eventually end up infringing it inadvertently you will not
be vulnerable to major retaliatory action (though you will naturally
have to cease infringing) and may even be able to take action against
others. A hypothetical: Say SuSE ships a disk with the disputed
compilation-redistribution licence.  Imagine (just hypothetically)
that they actually _have_ a suitable redistribution licence from Real
for the RealPlayer component, and this licence was also included on
disk, and I telephone Real to check it's for real (get it? never mind
:-), and they say "sure is".  So, no problem in that regard, one might
think.  But, what if it turned out that Real had (inadvertently or
deliberately) included some code in their product without getting
permission from the copyright holder?  Real's (hypothetical) licence
would then be as invalid as SuSE's (actual) licence may be. Then Real,
SuSE, and myself would all be party to copyright infringement, but I
find it hard to believe (not a lawyer!, so who knows) that any party
other than Real would be vulnerable to significant legal action  from
the copyright holder.

Now, clearly SuSE (and of course the users) would have to cease
redistribution of their CDs, but I would expect SuSE to have the
possibility to sue Real for the damage caused, after all they would
have a contract with Real that would now seems to have been negotiated
under false pretences.  Selling a licence, apparently giving rights
that you do not in fact have the power to grant, appears fraudulent to
me, notwithstanding the fact that SuSE presumeably do have the
authority to include acrobat on the copies of the disk they duplicate
and distribute.

So, my point in discussing this hypothetical case is to say that there
must be a point at which it is reasonable to simply take a licence at
face value.  When I buy a book of short stories, I assume the
publisher has obtained permission from the authors to reproduce their
work.  I don't personally contact them or their agents to verify this,
even though the fact that the book _says_ copyright is being honoured
is no guarantee that this is true.   Moving a level deeper, maybe the
author plagiarised the work, this is almost impossible to check, but
yet if he/she had done this then everyone involved in the book would
be infringing copyright.

Now, should the licence on the SuSE CD/DVD should be taken at face
value?  I think that for most people it is reasonable to say yes. 
Most regular users will see it as a black box (pop it in drive,
install, enjoy).  If you weren't clued in to the issues here, you
wouldn't even know that adobe/real/etc., were the ones most likely to
have copyright issues, so you'd have to (in theory) examine every
package by hand to check it had appropriate licences (granted
adobe/acrobat start with "A" which is helpful in this search!).  I
don't want to put words in Rory's mouth on this, but perhaps this is
what he meant when he referred to the difference between taking the
disk as a whole and separating out components for redistribution.  If
SuSE's licence is invalid, then the copyright infringement is the
same, but while redistributing the disk may reasonably be done in good
faith, doing so with a component (e.g the RealPlayer rpm) cannot.

Once again, I'm not saying that there is any licence that SuSE can
issue that will remove the copyright-infringement, at least not
without authorisation from Real, Adobe, etc.,.

For personal use, I think (non-legal advice! beware!) that the SuSE
licence is sufficient to protect regular home-users, since it appears
reasonable to take it at face value.  Now that we've been discussing
this, such a recommendation might not apply to us though!  For a
company, the issue might be more complex.  If it all blows up, then
even though Adobe might not be likely to take action against a company
for infringement, the infringement must  cease, and this could cause
disruption to work and productivity.  Even if possible, obtaining
compensation from SuSE for the disruption caused by their invalid
licence (if it is in fact invalid) would be difficult and would likely
not fully cover the damage caused.

Regards,
Michael