Following Plextor's threat of legal action against the developers in May, some mentions of the projects have been removed from DVD community forums, and the developer of PxLinux requested the PxScan project be taken off SourceForge, which it was in May.
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]," said Townsend and Townsend and Crew partner and software legal expert Phil Albert. "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 copy of the letter sent 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 an 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 applied only 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.
Albert also questioned the claims of copyright and reproduction after reviewing interviews of the developers and hearing Plextor's letter.
"With copyright, if their [the developers'] 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."
Despite several attempts on our part to contact the company in the U.S. and abroad, Plextor did not offer any comment.
Bogus and mistaken claims
Alexander Noe, developer of PxScan and PxView, told NewsForge he had not replied to the letter from Plextor's parent company, indicating the company likely did get some replies from the 30,000 or so readers who saw the story on CDFreaks.com, which got a copy of the letter from Shinano Kenshi's lawyers, as did CDRInfo, CDRlabs, and SourceForge, which like NewsForge is a part of OSTG.
"I don't plan to send a response," Noe said. "It's not worth any. So far, they have not 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 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 said. "There is just no reason to talk to them." The open source developer added an attorney had advised him the accusations from Plextor were totally unjustified.
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. "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* was a full replacement). Now how much sense does that make... "
Project in standby, preparing strategy
PxLinux developer Zeb, also known as Eric Fernandez, said he and Noe had contacted FSF Europe, and the group was helpful. While 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 in the U.K. FSF Europe advised him to contact an attorney there. Zeb indicated the PxLinux project was now in "standby" mode, although he is hopeful it will be developed further and vows to fight for its continuation. He said he wants to keep the technical details of his legal strategy private for now.
SourceForge officials said the project could be reinstated. The main issue would be that the project administrator 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," a SourceForge administrator said.
Columbia Law School professor, FSF general counsel, and Software Freedom Law Center founder Eben Moglen said that Plextor's behavior, if not backed 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 noted that both Noe and Zeb are 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.
"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 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."