If this goes to trial, I think this might be the cleanest and most straightforward test of the GPL in court we've had up to this point?
German court does care way too much for the "Urheberrecht" -- copyright -- and this is clearly a violation of it.
If they would let this go through, nobody would take the German court serious again, and there is too much interest in not letting that happen.
In any case, they also sell a music software called "Ludwig 3" [1]. I now wouldn't be surprised if it also makes improper use of OSS libraries.
If this company has two products that under the hood seem to rely heavily on open source but they don't mention it, then it sounds this is their business model.
Note that it’s legal to sell stockfish as long as you’re compliant with GPLv3. ChessBase seems to be compliant.
Stockfish argues that ChessBase isn’t compliant because they refuse to release the weights. But this makes no sense; the weights are distributed with every copy of Fat Fritz 2. (Otherwise, how would the program run? It’s not cloud-based, as far as I can tell.)
Stockfish may be trying to say “you must open source any training code used to make the weights.” But this claim falls flat; you could use this same argument to say that any GPLv3 codebase must be fully open source in order to sell it, including all DLLs used by the program.
Stockfish seems to be saying that they have grounds for lawsuit because they have terminated ChessBase’s license. But GPLv3 doesn’t give you the ability to terminate a license arbitrarily; it requires you meet some specific criteria, and it’s unclear that ChessBase meets it.
I think it’s lame that ChessBase sold stockfish for $80. But that’s different than being illegal, and we should worry about the precedents set here.
This reasoning isn’t correct.
The weights may be as object code not as source. Simply saying the program runs doesn’t mean you’ve distributed the weights anymore than it means your distributed the code.
Last time this came up people pointed at the installation information clause
> “Installation Information” for a User Product means any methods, procedures, authorization keys, or other information required to install and execute modified versions of a covered work in that User Product from a modified version of its Corresponding Source. The information must suffice to ensure that the continued functioning of the modified object code is in no case prevented or interfered with solely because modification has been made.
> Corresponding Source conveyed, and Installation Information provided, in accord with this section must be in a format that is publicly documented (and with an implementation available to the public in source code form), and must require no special password or key for unpacking, reading or copying.
https://github.com/official-stockfish/Stockfish/blob/sf_14/C...
No. The first license violation was that ChessBase released FF2 without source code for their modified Stockfish, and without the GPL license. This was later fixed after we reported it. The second license violation was Houdini, which contains Stockfish code, and even today is not a available under the GPL.
> I think it’s lame that ChessBase sold stockfish for $80.
This case is a bit different though: Chessbase (unlike RH and RMS) didn't tell anyone their product was open source, but pretended it was their own proprietary work and that it was better than the leading open source engine that it was stolen from.
But I'm just wading into this subject matter, so others chime in if I'm missing something :)
> which means your customers could give it away for free if they so choose
ChessBase is selling the software, and they aren’t getting undercut because they are not redistributing everything the customer needs to rebuild it from source. It will be interesting to find out what that is (neural net weights, or whatever) and whether the court upholds that this is not copylefted under the GPL.
It's very clear from the story that it's the first one: they're not compliant with the GPL. At least that's what the Stockfish authors are claiming. They're pretty obviously acting in good faith and appear to be correct in their claim. ChessBase haven't laid out their side of the story other than their marketing materials saying "we developed the software in house and it's better than that open source stuff" and I wouldn't expect them to have a defence based on anything other than technicalities. You won't be seeing a blog post from them, because their lawyers have told them to say nothing.
Unless your license has been terminated by the copyright holders, in which case you cannot be compliant with the license because don't have a license to distribute the material at all.
> Stockfish argues that ChessBase isn’t compliant because they refuse to release the weights.
I haven't seen them argue this anywhere. You've linked to their previous statement in which they only say that they "condemn" the fact that the weights are not being released.
The announcement says that they've filed the lawsuit "to enforce the consequences of the license termination" because "ChessBase is ignoring the fact that they no longer have the right to distribute Stockfish, modified or unmodified, as part of their products."
> But GPLv3 doesn’t give you the ability to terminate a license arbitrarily; it requires you meet some specific criteria, and it’s unclear that ChessBase meets it.
You seem to be talking about this paragraph in the GPLv3 (https://github.com/official-stockfish/Stockfish/blob/sf_14/C...) :
"Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice."
However, this is not ChessBase's first violation. They've also tried to pass off Houdini as original work: https://shop.chessbase.com/en/products/houdini_6_pro_multipr...
Houdini 6 is also a stockfish clone. https://chess.stackexchange.com/questions/29181/is-houdini-6...
They are normally from $750-30000 per work infringed.
The lower limit can be lowered to $200 if the defendant can prove that they were an innocent infringer (they were not aware and had no reason to believe they were infringing). The defendant has the burden of proof for this.
The upper limit can be raised to $150000 if the infringement is "willful". The statute does not define "willful". Courts have taken it to mean reckless disregard. The defendant knew they were infringing and did it anyway.
The jury decides where in the range you end up, and they certainly might take into account the magnitude of your infringement so 10000 downloads might cost you more than 1000 by convincing the jury to choose somewhere high from the range, but the cap on the total will be $30k (or $150k if it was willful).
Note that this means that willfully distributing 10000000 copies of one movies is going to be a lot better for the defendant than distributing a single copy each of 300 different movies, if the plaintiff elects to ask for statutory damages.
The 10000000 copies of one movie is just one work infringed, so you are looking at $150000 worst case.
The single copy each of 300 movies is 300 works infringed, so best case (assuming you are not an innocent infringer) is the minimal amount of statutory damages per work, $750, times 300 works = $225000.
(But remember that the plaintiff gets to choose between statutory damages and actual damages. If you've distribute 10000000 copies of their movie, they'll probably go for actual damages which could be considerably more than $150000!)
Too late to delete, but thanks for the tuneup.
(in German) https://www.cmshs-bloggt.de/gewerblicher-rechtsschutz/urhebe...
1. Lost profits due to the infringement.
2. The profits the infringer made from the infringement.
3. The amount the infringer would have had to pay to license the work to use the way they did it if they had requested such a license from the copyright owner.
The first one would likely not apply to something that is solely licensed under GPL, but the other two might, especially #2.
I'm curious how #3 is determined.
There is something similar in the US for patent infringement damages. That involves the court trying to determine what would have happened in a hypothetical negotiation if the patent owner had been willing to license the patent and the infringer had wanted to license the patent.
That can work because usually with patents you can compare to other patent in the same or related field that are about as valuable and have been licensed out. I don't think that there are a lot of open source world class chess engines that are dual licensed for proprietary use that a court could use for comparison.
[1] https://www.lexology.com/library/detail.aspx?g=cef58d76-21a2...
On the other hand, if ChessBase is found (and ruled) to have distributed software illegally, the company and its executives might have another problem. I don't know the specifics of German law, but I believe that distributing software (or any product) illegally is actually a criminal offense (no longer a civil dispute). That could (theoretically/eventually) lead to criminal prosecution and who knows .. jail time?
(Part of the point of having a legal fee schedule is, I suppose, to put a damper on the prices of legal help, because, like in medicine, the demand is otherwise extremely inelastic: when you need it, you really need it. That does not appear to work. I wonder if there is an approach that would work.)
Secondly, there is a morality clause with regards to attorney fees, so usurious rates like some US attorneys charge are harder to achieve.
This doesn't mean German attorneys are cheap. It's just not quite as out of control as the US legal system. (Though attorney's professional bodies are obviously lobbying to make it easier to charge more)
The legal fee schedule does put a damper on attorney work, and more importantly, makes it somewhat easier to predict costs should you need an attorney. If it's enough of a damper is open to interpretation. I
Of course, if there's one thing that lawyers are less likely to do than cap the earnings of their profession, it's to devalue it entirely.
You could also increase supply by reducing the level of qualification needed to become a lawyer. Increased competition would drive prices down. That too is highly unlikely.
Also, in Australia, you'll only recover a portion in accordance with scale limits (party-party costs). Indemnity costs (100% recovery) is rarely awarded. What's the case in the US?
Presumably it's important to establish damages (at least in a US jurisdiction) because otherwise they wouldn't have standing to bring a lawsuit.
https://en.wikipedia.org/wiki/Damages#Punitive_damages_(non-...
There was only one legal way for ChessBase to do what it did (rebrand stockfish without attribution), and that was to acquire a (non-gpl) license from all the stockfish developers. That was almost certainly possible, for enough money. Stockfish developers could arguably sue for those lost licensing fees.
In the US there are statutory damages for copyright infringement ($50k per act of infringement, tripled if wilful) so you're entitled to that much without having to prove any actual damages.
* I don't know what the opposite of a plain-tiff is
Complainant and Respondent
This case however brings two new (as far as I'm aware) questions to the table:
- Whether the permanent license revocation clause holds up
- Whether the neural networks is considered a part of the covered work (and must therefore be provided in "source" form, rather than just a trained network)
The second one is especially interesting, since the court will likely have to go into how far the GPLs coverage extends into other parts of a covered work.
The losers probably thought the license terms were just some of Stallman's psychodrama and not actual enforceable obligations.