Ikarus Security Software violating LGPL (Bochs, WINE and ReactOS)

[Neil Brown]

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Peter

**This is not legal advice**

This looks to be an even more complex situation than usual, to my mind-

a.) You appear to have had a past (employment/contracting) relationship
with Ikarus;
b.) You are engaged in litigation with Ikarus; and
c.) There is an alleged infringement of open source licences.

However, each of these could impact the situation differently, and, for
this reason, I would strongly advise that you seek independent legal
advice in advance of your court appearance.

It is rather unclear to me quite what you are looking to achieve here,
too - are you looking to report, and have rectified, a GPL violation, or
are you looking for support in defence of Ikarus' claim against you, and
looking to use evidence of a GPL violation as part of your defence?

Some further thoughts inline below.

- ----

Peter Kleissner wrote:


>  There is a trial Ikarus against
> me on January 25 2010, because they accuse me of selling their source.

Have you sought legal advice from a lawyer qualified in your
jurisdiction in respect of this? If not, I would suggest that you do so.

There is no claim of "selling their source" as such - is the claim one
of copyright infringement? Or is it some form of contractual dispute? To
be able to formulate a defence, one would need to understand the nature
of the claim against you.

> When I came to Ikarus, there was already the simulator, part of the scanning
> engine, that simulates viruses until they are unpacked. My work at Ikarus
> was to improve that simulator, making it faster and better. 

Was there a contract between yourself and Ikarus for the work which you
did, which could be relevant here?


> Can someone ask Ikarus for the modified source code? If, then please put me
> in CC, then I can also show the court that they do not publish their
> modified open source upon request (if they don't give you the source).

I am not sure exactly what you are trying to prove with this,
unfortunately - demonstrating that Ikarus is infringing copyright, if
indeed it is, is unlikely to be a defence to a claim of copyright
infringement against you.

However, if you were looking to demonstrate that, under the terms of the
licences which cover the code comprising your distribution, you have the
right to make the distribution, then, if it is indeed a claim of
copyright infringement, you might have some success - but, in
litigation, nothing is guaranteed.

Because of the lack of detail in your email as to exactly what the
situation is (an observation, rather than a criticism), I've made a
number of assumptions in my thoughts below - and, as is oft-stated,
assumptions can make ass of you and me, so my thoughts may be entirely
off-base and irrelevant.


Some of my assumptions:

a.) In the code which you are distributing, there is nothing which is
the property of Ikarus, and which falls outside the scope of any open
source licensing obligations - in other words, any Ikarus proprietary code.

b.) There is no contract term in force between Ikarus and yourself which
would be relevant here.

c.) You have received the code which you are distributing in a manner
which would oblige Ikarus to grant you the right to re-distribute it.

d.) You are compliant with any upstream licensing terms in your
distribution - i.e. Ikarus is not claiming that it has granted you a
licence as required by the open source licensing terms affecting Ikarus'
modified code, but that you are failing to comply with the licensing
terms yourself.


Taking the above assumptions into account, is your argument that:

a.) Ikarus is claiming that, in distributing whatever code it is that
you are distributing, you are infringing Ikarus' copyright in respect of
that code;

b.) The code is made up of a number of modules of open source code, some
of which Ikarus has modified;

c.) The licensing of the open source modules requires that, in respect
of the modifications made by Ikarus, Ikarus grants you certain rights;

d.) The rights which Ikarus is obliged to grant to you permit you to do
what you are/were doing;

e.) Ikarus has failed to grant you those rights;

f.) Ikarus' claim is that you do not have the rights to distribute
Ikarus' modifications, but that Ikarus is obliged to grant you those rights;

- --and here it gets more complicated--

that either

g#1.) Because your infringement only arises because Ikarus has failed to
grant you a licence which Ikarus is required to grant to you, Ikarus'
claim against you should be estopped; and/or

g#2.) Because Ikarus is required to grant you a licence, even though it
has failed to do so, you should be treated as having a valid licence -
and, since you have a licence, you are not infringing copyright.

?

These are subtly different- whether Ikarus' alleged failure means that
you have a licence, or that you have no valid licence, but that Ikarus
should be prevented, in equity, from bringing a claim of copyright
against you. (Not all legal systems have a concept of estoppel / laws of
equity.)

The distinction here is between a licence term which says "You
license..." and "You must license..." - clause 2, LGPL 2.1, for example,
requires that a distributor of a modified work "must cause ... the
work... to be licensed" - it's not clear to me that there is an inherent
licence grant if the distributor decides to breach the licence terms.

This really is something which you should discuss, in respect of your
particular situation, with a lawyer qualified in your jurisdiction, to
find out if your defence, if my (many) assumptions above are correct, is
one based on you having a valid licence, or else )


Or am I off-base completely?




- --




Neil


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