July 5, 2005

Open source DVD burning software hit by legal threats

Author: Jay Lyman

The threat of legal action has stifled several open source efforts that allowed interoperability between Linux-based computers and Plextor DVD burners. Plextor parent company Shinano Kenshi accused two open source developers working on the PxScan, PxView, and PxLinux software projects of infringing their rights and committing unfair commercial practices in the developers' mention of the projects on various discussion forums.

Following Plextor's threat of legal action against the developers in May, several mentions of the projects have been removed from DVD community forums and Zeb, the developer of PxLinux, requested that the PxScan project be taken off SourceForge, which it was. While the legal threats may have been strong enough to impact the projects, which were all GPL software, they were not enough to convince legal experts, who indicated the biggest question for Plextor was the supposed jurisdiction for its claims.

"The interesting question is, under which country's laws are they going after (the developers)," Townsend and Townsend and Crew partner and software legal expert Phil Albert told NewsForge. "The interesting part is can some company, even if it has no right to preclude software to work, have this pattern of discouraging people from doing what the law would normally allow them to do?"

Legal claims addressed

In a letter to the open source developers, attorneys for Plextor parent company Shinano Kenshi state the company confirmed with developers and had seen on the Internet that they had "reverse-engineered cq. copied some features of PlexTools," which is Plextor's own software for its DVD recorders with Windows. The company, which warns it may seek full damages as well as injunction and judicial proceedings "before the competent courts," alleges the developers: infringed "rights of reproduction, translation, adaptation and arrangement and any other alteration of a computer program and the reproduction of the results thereof as well as their right to control all and any form of distribution and dissemination;" infringed "author rights" and "where applicable, copyright, in relation with the protected interfaces;" and infringed Plextor's trademark rights.

Albert said while it can be unlawful to make a commercial comparison in some nations, such as France, unless it is totally accurate, such a comparison -- as alleged by Plextor -- would be perfectly legal in the U.S.

"You can say we're the leading business [in the U.S.]," he said as an example.

Albert said Plextor's trademark claim would have only applied if the PxScan/PxView and PxLinux developers were saying they had created their software from or with Plextor, which they were not.

"They're not saying we got this software from Plextor, so the trademark issue is not really a trademark issue," he said.

As for the claims of copyright and reproduction, Albert also questioned those after reviewing interviews of the developers and reading Plextor's letter.

"With copyright, if their [Noe's and Zeb's] software is derivative from Plextor's, then Plextor is entitled to complain," he said. "Is it derivative? It sounds like it isn't, except the drive has a standard interface, but that standard interface didn't come from Plextor. It doesn't sound like there was really any reverse engineering."

Bogus claims, mistaken claims

Alexander Noe, developer of PxScan and PxView, told NewsForge in an email he had not replied to the letter to cease-and-desist from Plextor's parent company, indicating the company likely did get some replies from the 30,000 or so tuned to the story on CDFreaks.com, which also got a copy of the letter from Shinano Kenshi's lawyers along with CDRInfo, CDRlabs, and SourceForge, which like NewsForge is part of OSTG.

"And I don't plan to send a response," Noe said. "It's not worth any. So far, they have not even sent a second letter, 15 days after their 'deadline.' "

Noe -- who said there were no changes in support for PxScan and PxView with a resource for questions, problems or bugs -- added that he had no plans to talk with Plextor or its parent company regarding his Linux software, which is not offered anywhere else.

"I'm not even looking for a compromise of any kind in this matter," he wrote. "There is just no reason to talk to them."

The open source developer added that an attorney had advised him the accusations from Plextor were totally unjustified.

"Those claims are bogus," Noe said.

While some have speculated Plextor may be avoiding confrontation with major movie studios that could have pressed the issue, Noe said he was unsure why the company was moving against projects that gain them more customers from a platform on which they do not compete.

"I have no idea [why]," he said. "Rumors are that PlexTools Professional XL didn't sell as well as they expected, but those are rumors and opinions stated by other members of forums like cdfreaks."

Noe added the threatening letter was delivered in a somewhat unprofessional manner and was inaccurate as to the facts.

"They sent a letter via email, announced that a copy would arrive via registered mail (which it didn't), accuse a student who offers GPL software on his homepage (which must not be used for commercial purposes of any kind according to the conditions of the university it is hosted at) of unfair commercial practices, and they can't even understand simple English sentences (Zeb announced on SourceForge that the goal of PxLinux is to become a full replacement for PlexTools one day, and those lawyers accuse *me* of having announced that *PxScan* were a full replacement). Now how much sense does that make... "

Project in standby, preparing strategy

In his email response to NewsForge, PxLinux developer Zeb, also known as Eric Fernandez, said he and Noe had contacted FSF Europe, and that the group was very helpful. The organization had a lawyer specializing in German copyright law, and told Noe, who is in Germany, to ignore the legal threats. The situation was not as simple for Zeb, who is located in the UK. He was advised to contact an attorney there, but found it difficult in light of time and resources. Zeb indicated the PxLinux project was now in "stand-by" mode, although he was hopeful it would be further developed and vowed to fight for its continuation. He said he wanted to keep the technical details of his legal strategy private, but indicated things may change.

SourceForge officials said the project could be reinstated -- the main issue being that the project admin would have to be ready and willing to respond to "the almost assured subsequent DMCA request for take down."

"There is a specific process within the DMCA for dealing with issues like this, and we would be more than willing to move along that path -- basically, the project admin would have to file a counterclaim to their original group's DMCA request, and then it begins to wend its way through our justice system," said a SourceForge administrator via email.

Nasty behavior, reason for being

Despite several different attempts to contact the company in the U.S. and abroad, Plextor did not return any comment. Columbia Law School professor, FSF general counsel and Software Freedom Law Center founder Eben Moglen told NewsForge in an interview that Plextor's behavior, if not backed up by more extensive detail in terms of claimed infringement, was shameful.

"In terms of what's been stated, Plextor's behavior is unconscionable," Moglen said. "If they have something relevant to say, they ought to say it. If they stand silent, they stand convicted of some pretty nasty behavior."

Moglen argued that both Noe and Zeb originated from Europe, where a European Commission directive and national legislation grant software developers the right to interoperability and programming for interoperability.

"It's not unfair competition to secure the interoperability of hardware, which is running free software, and the drive," he said, adding his advice to the developers would be to throw the letter in the trash, though Plextor only sent email.

"To say that it violates one of the European unfair competition laws is more than pushing it," Moglen continued. "To say it violates copyright is completely untenable."

Moglen, who said the situation highlights the need for the Software Freedom Law Center, indicated it was a simple legal matter and that as things stood, Plextor was at the least being hypocritical in light of its stated commitment to Linux and the open source community.

"Plextor behaves badly when it claims to be among the supporters of the open source community and then interferes with a programmer's freedom to create," Moglen said. "It is far too easy for people to run over developers who may not have the money or access to a lawyer. The work my colleagues and I do at the Software Freedom Law Center and the work to come is absolutely essential. [The developers Plextor threatened] ought to be able to say, 'Call my lawyer.' That's what we're setting out to do."

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