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Re: How long is it acceptable to leave *undistributable* files in the kernel package?

Andrew Suffield writes:

>> Estoppel would bar a claim if the plaintiff first
>> contributed code to a kernel that already had binary blob components.
>> A merely decent lawyer may be able to invoke laches depending on how
>> long an author was silent after the first binary blob was added to the
>> kernel, but merely decent lawyers are not much cheaper than good
>> lawyers.
> These are stock defenses that are invoked as a matter of course, in
> case something useful turns up during discovery, and which are
> notoriously difficult to prove. You need to prove *malicious*
> *intent*, not incompetence, for these defences to work. Not a good
> idea to bet on them.

Incompetence (or laziness) on the part of the plaintiff is a perfectly
adequate reason to invoke either of those defenses.  Until you cite
specific case law, I will disbelieve your claim that proof of intent
is necessary, since Google finds dismissals on those grounds that
never mention malicious intent.

> We have not always been paying such close attention as we currently
> do. Anybody on -legal can tell you that much. This is partially
> because we're getting better at it, and partially because SCO has
> demonstrated that it's important we be good at it.

As of the last filings and rulings I saw, SCO has only demonstrated
that someone with more money than sense can cost other people a lot in
legal fees.  This is not really news, and as a stock manipulation
scheme, it is proving to not have legs.  If someone else down the road
wants to involve free software in another frivolous lawsuit, no amount
of diligence on Debian's part will prevent it.

Yes, Debian should make sure it will not end up on the wrong end of a
valid lawsuit, but that can be satisfied by other means than claiming
that widely used packages violate the GPL.


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