Hi, all.
Here's an update on the ClearSight situation. Sorry to throw this at
you all at once.
Eben thinks we have a case.
I had a long phone conversation with Eben Moglen on Friday. Much of
what follows is taken from some hurriedly-written notes I took during
the conversation:
- Eben thinks we have a strong case. Since Ethereal is a required
component for a fully-functioning version of ClearSight Analyzer
(CSA), this falls well within the definition of a combined work and
they are therefore in violation of the GPL. Their source
distribution may be in violation as well, which I'll discuss below.
- We have several options available, litigation-wise. We can seek an
injuction against ClearSight which would prevent them from shipping
CSA in its current form. We can seek damages. We can try to have
the source for CSA opened under the GPL or a GPL-compatible license.
- Should we decide to seek an injunction, it would likely cost 25,000
to 30,000 USD.
- He is willing to assist us in the case. However, he can't do pro
bono work in California (CA), which is where it makes the most sense
to file a case.
- There are lawyers in CA that may be willing to represent us pro bono
or on spec.
- An officially registered copyright is apparently a prerequisite for
copyright litigation in the US. I preemptively sent in a
preliminary application to the US Library of Congress (LOC) a couple
of weeks ago in case litigation came sooner rather than later. We
will have to file an amended application at some point since I
didn't have everyone's full name, address, and year of birth.
- He stressed several times the importance of unanimity from
Ethereal's copyright holders. It is much better to have a united
front than to have several (possibly conflicting) claims against
ClearSight.
- It's important to make this case as airtight as possible, in order
to set a precedent for any future litigation.
Questions for copyright holders.
In order to proceed with this, Ethereal's copyright holders need to
agree on a final objective. Do we simply want ClearSight to stop
infringement? Do we want them to open the source of Analyzer? Do we
want damages? Should they be allowed to keep doing what they're
doing, provided they pay a licensing fee?
We must also definitively establish who has a legal claim on
Ethereal's copyright. There are _many_ people (and companies) listed
in copyright notices in all of the files in the source code. There
are many more listed in the AUTHORS file. Anyone who paid these
people to write the code that's in Ethereal may have a copyright claim
on a work-for-hire basis. Getting Ethereal's copyright status
formally established is going to be a chore. I'll dedicate whatever
time is necessary to do this.
I'll try to set up a communication channel for Ethereal's copyright
holders in the meantime. This will probably be in the form of another
mailing list.
ClearSight's source distribution.
ClearSight has a link on their FAQ page that lets you download the
source for their DLL-ized version of Ethereal. This distribution
_must_ contain a copy of the GPL, and it _must_ be possible to build a
DLL that is byte-for-byte identical the one that ships with Analyzer.
This is another violation of the GPL otherwise. I downloaded the
distribution and it appears to be taken from 0.9.15, with the
following differences:
- A complete tar.gz of the 0.9.15 distribution has been added. MD5
sum matches the official release on the main site.
- The "gtk", "debian", and "image" directories have been removed.
- A "Release" directory has been added. This is where object files
appear to be placed during a build.
- A number of changes have been made to the code, commented with the
initials "mpm", such as "mpm-modified" or "mpm-removed". Comments
from "samuell" are also present.
- Andreas Sikkema's H.323 code has been added, which is licensed under
the MPL. Andreas, you and/or Philips may have grounds for a
separate claim against them.
- The files "appdancer.c" and "appdancer.h" have been added to
wiretap, along with the neccessary changes to integrate them. These
files have no copyright.
- The GPL license files are intact. Score one for CS.
- So far I've been unable to rebuild the Ethereal DecodeEngine.dll.
There doesn't appear to be any documentation on how to do this.
Building from "ethereal.dsw" builds "ethereal.lib", but not the DLL.
Building from "DecodeEngine.dll" gives me an error about GLib
missing.
Miscellaneous information.
ClearSight appears to be a fairly small company. They're privately
held by the Toyo Corporation.
The page at http://www.clearsightnet.com/mgmt.jsp lists "Thomas Orr"
as the president and CEO. My correspondence with ClearSight has been
from from William Berkman, president and CEO. This is a pretty odd
discrepancy.
