The PowerPlay III PDA is cheap: $89. It runs on an embedded version of Linux called LinuxDA, by a company called Empower Technologies. Empower's version of Linux isn't free like beer, but there has also been a question as to whether it's free like speech. Paul Leung, the CEO of Empower, isn't interested in hashing out the details with NewsForge. Back in late July, several people noticed that Empower Technologies had OS demos up for download that did not include any kernel source. Although the company has since put up a source tarball that, according to one downloader, consists mostly of a Netscape core file along with 4mb or so of kernel source, the Web site's legal page still has some dicey language concerning LinuxDA that definitely doesn't sound compatible with the GPL:
You may download one copy of the
information or software ("Materials") found on Empower sites on a single computer for your personal,
non-commercial internal use only unless specifically licensed to do otherwise by Empower
Technologies Inc. in writing or as allowed by any license terms which accompany or are provided with
individual Materials. This is a license, not a transfer of title, and is subject to the following restrictions:
you may not (a) modify the Materials or use them for any commercial purpose or for any public
display, performance, sale, or rental; (b) decompile, reverse engineer, or disassemble software
Materials except and only to the extent permitted by applicable law; (c) remove any copyright or other
proprietary notices from the Materials; (d) transfer the Materials to another person. You agree to
prevent any unauthorized use or copying of the Materials.
In defense of Empower, there is a clause in another section of the legal information that excuses any open source software from these draconian limitations:
Open source software made available on this web site is distributed subject to the
terms of the applicable open source software license. Empower Technologies Inc. makes no
additional representations or warranties with respect to such open source software.
"We see this increasingly with embedded and other software," says Eben Moglen, Free Software Foundation advocate and Columbia Law School professor. "There should be no restrictions added to any GPL software." It is a technical noncompliance with the terms of the GPL when software aggregations that include both GPL and non-GPL code do not specify clearly enough to the consumer that there is Free Software included on the CD. "In these cases we usually ask them to change the packaging to something more compatible," Moglen says.
Moglen could not immediately confirm whether LinuxDA actually falls under the Free Software banner, but was studying the legal information at the LinuxDA Web site in order to make a determination.
To make the water muddier, the demo downloads are compressed into self-extracting .exe files -- purportedly to make it easier for Palm PDA users who want to replace the Palm OS with the LinuxDA OS. NewsForge opened one of the demo files with a Windows installer program and was presented with what could only be called a EULA, not the GPL as one would expect when installing Linux, demo or not. This EULA had many of the same restrictive terms as the legal language on the LinuxDA Web site.
A quick check of the Free Software Foundation site turned up a "what to do if you suspect a GPL violation" checklist, reproduced below with Newsforge's answers included:
- Does the distribution contain a copy of the License? (no)
- Does it clearly state which software is covered by the License? (n/a)
- Does it say anything misleading, perhaps giving the impression that something is covered by the License when in fact it is not? (n/a)
- Is source code included in the distribution? (no)
- Is a written offer for source code included with a distribution of just binaries? (by all appearances, no, although the download link for the source code tarball is prominently displayed under the demos)
- Is the available source code complete, or is it designed for linking in other non-free modules? (not known)
The Free Software Foundation Web site then instructs questioners to contact the copyright holders of the GPLed software and ask them to pursue protection of their rights under the GPL. Rik van Riel is one of the copyright holders. He's a kernel hacker who's contributed numerous patches to the Linux kernel. He sent Empower Technologies a letter back in July pointing out the decidedly non-free wording of the legal page and the lack of availability of source code, yet van Riel told NewsForge that he never received more than what he calls the "standard reply" from Empower.
I spoke to Paul Leung, the president and CEO of Empower Technologies, about the license concerns. He acknowledged he had received written communication from van Riel, but would not divulge the details of that exchange. Leung also refused to comment when asked to explain exactly where the GPL agreement for the LinuxDA demo could be found. "The source code for the kernel is available on the site," said Leung, who also refused to divulge whether or not the full version of LinuxDA, available on CD for $19.99 to $39.99 plus $10 for shipping, contains the full, unaltered text of the GPL.
Moglen says that the user should be notified when an interactive program is first run that the software is Free. "We see this problem when an aggregator is unaware of the terms of the GPL." He adds that the FSF also has seen instances of companies intentionally trying to release proprietary software that should legally be GPLed.
During the course of my conversation with Leung, I explained to him that when the demo, which he confirmed is based on the Linux kernel, was extracted, the license agreement I was presented with was not the GPL. "You're getting into legal issues now," he said. "This is not a matter for your article, and if you persist I'll have to turn it over to the legal team."
"Great, can I talk to your lawyer?" I asked. He refused. I pointed out that the GPL states that you must provide a copy of the license along with the software.
"That's not the way we interpret it," he said. "These are legal matters and I'll have to refer you to ... uh... I suggest you get with your legal department."
"This is not a legal matter," I insisted. "Don't you want to set the record straight for our readers? Just tell me where the GPL is."
"I'm done talking. If anyone has any questions please tell them to write us a letter," said Leung.
"So you're not going to answer my question?"
He hung up. Too bad. I have other questions. Maybe I'll write a letter -- or just let Eben Moglen handle it.