'DITisTV' violating XBMC's GPLv2. Refusing to share source

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j1nx Offline
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Post: #166
You are right Schumi. What I said was; IF and again between bracket mention he is currently not doing it. (Although I doubt he even has the sources himself as he might not even compile his own binary.)

We know "it is just" Kodi, his customers don't and therefor also don't know they should have received a copy of the license with it. For all they know, they just bought the "special Dit is TV-OS". That is why I think the Trademark things makes the GPL thing so much harder to check.

But than again;

- Do you want them to put them on the wall of shame? It doesn't mention XBMC/Kodi somewhere so what is the point.
- Do you want to sue them? Copyright falls under civil rights in most of the EU countries and therefor, the author itself needs to dare him into court. That is very costly as both parties pay their own legal costs and he could just choose not to bring any lawer nor make any cost. And then what is their to gain? You can't really ask for money as you need to prove you any damage. Do you really make all those costs just for the source? Even after you win, you can't check he is really giving it as well to customers who ask for it.

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(This post was last modified: 2015-05-08 15:49 by j1nx.)
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RockerC Offline
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Post: #167
(2015-05-08 13:51)j1nx Wrote:  
(2015-05-08 13:26)Martijn Wrote:  
(2015-05-08 11:29)nickr Wrote:  who does then? Someone[s] does. Does the foundation require contributors to assign their copyright to the foundation? I don't think they do. (Some open source projects do have this requirement)

If not then the individual contributors own the copyright in whatever original code they have contributed. Makes it complex to ever change any term in the licence.

No one needs to sign anything
Since we use github all you can see who contributed the code, hence code attribution is done that way
As such code is owned by all why ever contributed
Each contributes to a GPL2+ code and as such they agree to that license
I think nickr means; If no specifiek entity is owning the code, it will be impossible to pursue any legal action as only the owner of the by copyright protected material can take legal actions. On the other hand, maybe because of all the "owners", anyone of them can take action.
XBMC Foundation is a legal entity which owns the Kodi name and its trademark, so its not impossible for the foundation to take legal actions against someone violating those trademarks.

You have to understand and remember to separate the source source of the application from the trademarked Kodi name and logos. Only the source code is licensed under open source licenses. The Kodi name and the logos are not open sourced licensed. And if you put the Kodi name on your website you should do it in a way that you do not confuse people reading it.

Tip is to checkout this previous discussion where natethomas does a good job at explaining factors that determine likelihood of confusion http://forum.kodi.tv/showthread.php?tid=215856
(2015-01-21 10:08)natethomas Wrote:  There is a clue to the difference in there at the moment, but that clue requires at least a bit of thought and disregarding another clue that confuses the issue.

Here's the thing. it doesn't matter how many times you say on individual twitter posts that you aren't us. The important thing is you make clear that you are you and not us. Which is different. It's possible that maybe you don't understand that, because you don't have a legal background or aren't particularly familiar with trademark law. So to make this easier, I'll list the 8 factors that determine likelihood of confusion, the most important issue in the world of trademark violation according to the courts. And I'll do it publically, both so it can be entirely clear to you and everyone at TV Addons, and it can be clear to anyone else interested in going down this road in the future.

8 Factors
  1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
  2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);
  3. the strength of the plaintiff's mark;
  4. any evidence of actual confusion by consumers;
  5. the intent of the defendant in adopting its mark;
  6. the physical proximity of the goods in the retail marketplace;
  7. the degree of care likely to be exercised by the consumer; and
  8. the likelihood of expansion of the product lines.

There's the list. Now let's analyze it with relation to your site, going through each factor individually.

the similarity in the overall impression
1. This is easily the most important thing, though there are ways to mitigate the problem. Right now, your title is similar to ours and overlaps quite a lot, given that everything in your title suggests you are us except the word "Unofficial." This almost complete overlap is at least a warning sign under #1. Not a great way to start.

For the remainder of this discussion, we'll make up another website, which I'm going to call Brazilian Fans of Kodi, to use as a comparison. That title doesn't overlap nearly as much under #1, since It's got both Brazilian and Fans in there, neither of which could be confused as us. It still uses our name, but in a much less confusing way.

the similarities of the goods and services
2. The similarity of the goods and services involved completely overlaps as well. We both provide addons. We both provide binaries that can run those addons. And while you have done a good job in renaming your binary, you still CALL it one of our names on your website, as is pretty obvious in the picture above. So not only are you overlapping on this level, you are naming that overlap wrongly again. If we look at Brazilian Fans of Kodi, they don't provide what we provide, either in addons or in binaries, so they have no problem. That's another strike against you that wouldn't be a strike against them.

the strength of the plaintiff's mark
3. People in this community VERY strongly associate the names XBMC and Kodi with us. So if someone else comes in and uses those names in their titles and to describe their apps that are being downloaded, then the community is much more likely to be confused by that word association. Another mark against you. And a mark against Brazilian Fans, I suppose. Though nobody associates us with Brazilian Fans, so at least there's some clearing there that you haven't really got.

any evidence of actual confusion by consumers
4. I mean, do I need to go into depth on evidence of confusion? Chinese manufacturers are confused. Engadget and Ars Technica was confused. Users are constantly confused and asking us in the forum, in social media, and elsewhere. And I'm still curious to see just how many people will be able to say which of those images above comes from us. I'll grant you that you've reformed some since the Engadget/Ars bungle. But the rest are happening literally right now. I'm going to guess nobody would ever be confused by a site called Brazilian Fans of Kodi.

the intent
5. I don't know your intent. My guess is that you want to use those names because they help you with SEO. Which means you want to get people who are searching for Kodi or XBMC. Which means you are trying to get our users. In itself, there's nothing wrong with that. But if you've already violated the previous 4 factors, that gets a lot less cool, very quickly. The clear intent of a site called Brazilian Fans of Kodi is to say that they are brazilian fans of Kodi. Not that they are Kodi. That one is simple.

the physical proximity of the goods
6. I did some research into what "physical proximity" meant for online, and it basically means do we use similar marketing channels. And I mean, the obvious answer there is yes. We're both online only. We both are heavy social media orgs. We're both working on maintaining our page rank on google. You get the idea. We use the same channels. Here's another area where Brazilian Fans overlaps with us. Though they actually probably might also have physical meetups in Rio and Brazilia, so maybe not quite as much of a match.

the degree of care likely to be exercised by the consumer
7. As pointed out in #4, consumers/users don't care at all. They mostly don't even know there could be a difference, so the chances of them actually paying close enough attention to scroll past the fold to find your disclaimer is roughly 0%. This would definitely not be the case for Brazilian Fans. Brazilian Fans actually looking for other locals to share their love of Kodi aren't going to accidentally end up in British Fans of Kodi or any other site. They know exactly what they're looking for.

the likelihood of expansion of the product lines
8. This question is really only for if our products differ. Beyond the fact that you primarily deal in piracy addons, we deal in basically the exact same things. Apps and addons. I guess the only difference is that we also provide a remote control for iOS. I don't know if you have any plans in that regard, but for now we'll assume we don't need to worry about this one. Needless to say, Brazilian Fans of Kodi are never going to make products, so there's no chance of expanding into our production.

So there you go. At the moment, you are confusing to users on 7 of the 8 factors normally used by courts for deciding such things. And the only reason you aren't confusing on the 8th factor is because there's basically no more room for expansion. And I'm saying you are confusing right now. At this very moment.

Suggestions for Change

The point of that discussion was not to do a witch hunt. The point was to show you exactly what is problematic. The same test can be done on super repo, and he probably also violates many of the same things, though I think he does a better job of actually pushing his name "Super Repo." But just because there are problem areas now doesn't mean we're always going to be at each other's neck.

If you really want to be on our good side, we need to work out the confusion, so you can drop quite a few of those factors. Some of them you can't. For example, you provide addons and apps. I'm not going to ask you to stop. So there's not much to be done with #2. But I'll provide some tips for the rest.

1. Differentiate yourself. For real. Don't call your site "Unofficial XBMC Addons for Kodi." That's not different at all. You have a name. Use it. Call your site "TV Addons." Or "Unofficial TV Addons for Kodi" if you absolutely must use the word Kodi. Your site's name is not XBMC Addons. It is TV Addons. That doesn't wholly fix #1, but it gets closer.

2. When linking to TVMC downloads, don't call it XBMC or Kodi. Don't use the words XBMC or Kodi directly above the link in order to confuse the users as to what the link means. On the page, actually call it TVMC for Windows. And TVMC for OSX. Etc. Use your name. And don't use our name right next to your name.

3. Don't use our download design. Try to refrain from using our design anywhere. For example, let's see if people can guess which addons list is yours and which is ours.

[Image: yukIlmr.png]

and

[Image: tcx8NNY.png]

They look almost identical and literally use the same icons. Surely there are some CC icons out there that can be used instead.

4. Keep your disclaimer above the fold. And if it's too ugly up there, use some other sort of simple way to make clear to people that we are different groups. We appreciate that you put the warning up for a few months. You don't have to leave something ugly up forever, but you do need to keep something nice looking and clear forever easily visible, if you're going to otherwise use our name and offer competing "products" as us.

5. I still don't know what "Powered by Kodi" means. My suggestion: Just drop the phrase. Or at least tell me what you meant by it.

Conclusion

And I think that's all I've got. I apologize for being so harsh before, but I hadn't visited your site in quite some time, and all the layers of confusion struck me in a pretty negative way upon seeing it. I really would be happy to work with you guys in the effort to clear up confusion, rather than against you. And I hope this walkthrough is a first step in that regard.
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j1nx Offline
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Post: #168
(2015-05-08 16:37)RockerC Wrote:  
(2015-05-08 13:51)j1nx Wrote:  
(2015-05-08 13:26)Martijn Wrote:  No one needs to sign anything
Since we use github all you can see who contributed the code, hence code attribution is done that way
As such code is owned by all why ever contributed
Each contributes to a GPL2+ code and as such they agree to that license
I think nickr means; If no specifiek entity is owning the code, it will be impossible to pursue any legal action as only the owner of the by copyright protected material can take legal actions. On the other hand, maybe because of all the "owners", anyone of them can take action.
XBMC Foundation is a legal entity which owns the Kodi name and its trademark, so its not impossible for the foundation to take legal actions against someone violating those trademarks.

You have to understand and remember to separate the source source of the application from the trademarked Kodi name and logos. Only the source code is licensed under open source licenses. The Kodi name and the logos are not open sourced licensed. And if you put the Kodi name on your website you should do it in a way that you do not confuse people reading it.

[...]

Sorry RockerC, I was talking about legal actions against a GPL violation.

DITisTV is not violating the Trademark, but he does violate the GPL. Theoretically, legal actions can be taken although unsure by whom (code ownership), practically it is impossible imho.

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(This post was last modified: 2015-05-08 16:47 by j1nx.)
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Martijn Offline
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Post: #169
The foundation can take action. Many Team XBMC/Kodi members are developers and have contributed code to XBMC/Kodi. Most team members are also members of the foundation. As such they can collectively choose to let the Foundation represent them to take action against GPL violation.

Do NOT e-mail Team-Kodi members asking for support. Read/follow the forum rules.
For troubleshooting and bug reporting, make sure you read this first
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j1nx Offline
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Post: #170
(2015-05-08 17:25)Martijn Wrote:  The foundation can take action. Many Team XBMC/Kodi members are developers and have contributed code to XBMC/Kodi. Most team members are also members of the foundation. As such they can collectively choose to let the Foundation represent them to take action against GPL violation.

OK, so theoretically the foundation could take legal action.

Still practically it will most likely never going to happen.

- Wall of shame; OK
- Banned from discussion; OK
- Removed from perks; OK
- Legal action; For what purpose?

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Martijn Offline
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Post: #171
(2015-05-08 18:48)j1nx Wrote:  
(2015-05-08 17:25)Martijn Wrote:  The foundation can take action. Many Team XBMC/Kodi members are developers and have contributed code to XBMC/Kodi. Most team members are also members of the foundation. As such they can collectively choose to let the Foundation represent them to take action against GPL violation.

- Legal action; For what purpose?

Forced to stop using the software at all for now and in the future. To what extend this could be achieved is another thing.

Do NOT e-mail Team-Kodi members asking for support. Read/follow the forum rules.
For troubleshooting and bug reporting, make sure you read this first
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j1nx Offline
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Post: #172
Martijn, let me start by saying. This is not trolling, i genuine interested it this GPL and not to do harm.


You can't force to stop using the software as it is against your own license. You can only force to respect the license.

Copyright (auteursrecht) fall onder civil law (civiel recht). The costs involved to get your right are so high, in comparison to the benefits it would be almost insane.

And if the judge rules into your favor. Then what. I am enforced to give you the code. You will not be able to prove you had any financial damages because of it as you do not sell the software. Bad name? Nope, because of the Trademark nobody actually knows it was Kodi al along.

The code get enforced, the next binary get pushed....... Repeat of process and costs?

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nickr Online
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Post: #173
If you use distribute software in breach of copyright (ie not complying with the licence) then a court can ban you from distributing it. Breach the court order, it's contempt and you risk a fine or jail. At least that would be a sunmary of the procedure and remedies in common law countries (UK, USA, Canada, Australia, NZ etc. Netherlands, I am not sure, but as a country that most of the world 's commercial law stems from, I imagine it'd be pretty strong on copyright and have similar laws.)

Most open source cases have settled with an undertaking to comply in future and a donation/ contribution to costs. An undertaking to a court is enforceable in the same way as an order, contempt=fine or imprisonment.

If I have helped you or increased your knowledge, click the 'thank user' button to give thanks :) (People with less than 20 posts won't see the "Thank you" button.)
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membrane Offline
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Post: #174
(2015-05-08 19:07)j1nx Wrote:  You will not be able to prove you had any financial damages because of it as you do not sell the software.

Yes you can. You have to prove how many lines of code they copied into their product and evaluate how much one line is worth (usually >1$/line). The licence is not important if you look from that direction.
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Ned Scott Offline
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Post: #175
In any case possible and practical are two different things, and what is or isn't practical can be very subjective.

You can make easy links to the Kodi Wiki Manual using double brackets around common Kodi words: [[debug log]] = debug log (wiki), [[Video library]] = Video library (wiki), [[SMB]] = SMB (wiki) , [[userdata]] = userdata (wiki), etc
(This post was last modified: 2015-05-08 22:19 by Ned Scott.)
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j1nx Offline
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Post: #176
(2015-05-08 21:34)nickr Wrote:  If you use distribute software in breach of copyright (ie not complying with the licence) then a court can ban you from distributing it. Breach the court order, it's contempt and you risk a fine or jail. At least that would be a sunmary of the procedure and remedies in common law countries (UK, USA, Canada, Australia, NZ etc. Netherlands, I am not sure, but as a country that most of the world 's commercial law stems from, I imagine it'd be pretty strong on copyright and have similar laws.)

Most open source cases have settled with an undertaking to comply in future and a donation/ contribution to costs. An undertaking to a court is enforceable in the same way as an order, contempt=fine or imprisonment.
Above is indeed valid for any "normal" copyright case as the copyright itself is 99% of the time into place to explicit forbid distribution. So yes, for all those cases the court's verdict would be to ban you from distribution.

In this case, a ban will be again a direct violation of the license itself. So banning from distribution is not possible. The only verdict could be to release the code, OR remove the binary. (Yes in a way this is a sort of ban, but not a hard one) So basically enforce the release of code or withdraw the binary release.

(2015-05-08 22:09)membrane Wrote:  
(2015-05-08 19:07)j1nx Wrote:  You will not be able to prove you had any financial damages because of it as you do not sell the software.

Yes you can. You have to prove how many lines of code they copied into their product and evaluate how much one line is worth (usually >1$/line). The licence is not important if you look from that direction.
Again, in which case does the violation caused financial damages to the foundation. Lines of code and typical >1$/line might again be suitable for commercial prooducts, but in this case; The foundation is non-profit and the code is "free". Correct me if I am wrong,. but I can not come up with any way that a GPL violation would results is things like "loss of income".

You could argue about losses because of damages to the image of the foundation it self, but the Trademark has been implemented to protect against that. And in this case with DITisTV, the trademark policy has not been violated. Without insight information nobody could know the underlying code is Kodi and/or for that matter related to the project/foundation.




Don't know about the USA laws and rules, but as DITisTV is Dutch and the sales are done within the Netherlands, so Dutch laws apply.

People talk about (or think it is about); "Criminal offenses", but a copyright violation is NOT a criminal offense! It falls under "civil rights" (civiele recht), which makes it a "tort" (onrechtmatige daad). That means it is a case between citizens and businesses. Not between citizens and the goverment, hence making the act/violation itself never subject to enprisonment. (the violation, not the contempt that might follow from it).

Because as desribed above, penelties are slim and far from the limit of EUR25k, this case would have to go to subdistrict (kantonrechter). In that case, the violator does not have to make any costs for lawyers (That is a right, not a duty)

Dragging any guy's ass into court is a rather expensive procedure. So despite it is "the right thing" todo, it is basically like Ned Scott says;
(2015-05-08 22:18)Ned Scott Wrote:  In any case possible and practical are two different things, and what is or isn't practical can be very subjective.
For a non-profit organisation that is been driven by donations and a few sponsors, legal actions would soon empty the pockets.


Don't get me wrong, I do believe in opensource, but to me it's license can only be enforced by commercial businesses, but than again, those guys are not using opensource for the exact same reasons.

(Same applies for the Trademark btw. Registering and enforcing it is a rather costly business. Problem there is that where at the GPL you still have the option to look the other way. The trademark has to be enforced by the holder otherwise they loose it again)

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nickr Online
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Post: #177
(2015-05-11 11:20)j1nx Wrote:  
(2015-05-08 21:34)nickr Wrote:  If you use distribute software in breach of copyright (ie not complying with the licence) then a court can ban you from distributing it. Breach the court order, it's contempt and you risk a fine or jail. At least that would be a sunmary of the procedure and remedies in common law countries (UK, USA, Canada, Australia, NZ etc. Netherlands, I am not sure, but as a country that most of the world 's commercial law stems from, I imagine it'd be pretty strong on copyright and have similar laws.)

Most open source cases have settled with an undertaking to comply in future and a donation/ contribution to costs. An undertaking to a court is enforceable in the same way as an order, contempt=fine or imprisonment.
Above is indeed valid for any "normal" copyright case as the copyright itself is 99% of the time into place to explicit forbid distribution. So yes, for all those cases the court's verdict would be to ban you from distribution.

In this case, a ban will be again a direct violation of the license itself. So banning from distribution is not possible. The only verdict could be to release the code, OR remove the binary. (Yes in a way this is a sort of ban, but not a hard one) So basically enforce the release of code or withdraw the binary release.

Clearly you are being deliberately obtuse. Any ban would be on distributing offending binaries. Very clearly the ban would not be against distributing the source. The whole fucking idea of the GPL is to insist that the modified source is distributed, at the same time as the binary based on the modified source. What ever made you think I was suggesting a ban on distributing the modified source? I can only think your post is a deliberate troll.

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j1nx Offline
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Post: #178
OK apologies then as apparently we meant the same. Blame it on the language barrier. I honestly interpretated it as; banning the individual of ever distributing kodi related stuff again.

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membrane Offline
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Post: #179
(2015-05-11 11:20)j1nx Wrote:  Again, in which case does the violation caused financial damages to the foundation. Lines of code and typical >1$/line might again be suitable for commercial prooducts, but in this case; The foundation is non-profit and the code is "free". Correct me if I am wrong,. but I can not come up with any way that a GPL violation would results is things like "loss of income".
There is no financial damage for the foundation or a loss of income (in most cases). But the code is only free in layman terms. $COMPANY is allowed to do whatever it likes with the software, as long it respects the licence (this may be the GPL or a custom one). If it uses the software without (!) a licence, the rights of the original copyright holders are violated (the GPL would be out of the picture).

Copyright holders (developers, sometimes other companies) could file a lawsuit because $COMPANY has no licence for the code (of the holder). The foundation could do the same, but only on behalf of the dev(s).

The amount of damage done is a bit tricky to calculate (and surely subjected to local laws), but $COMPANY took something of value (1) and generated money from it (2). At least one of those points could be incorporated into a lawsuit.
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j1nx Offline
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Post: #180
I 100% agree with you membrane. The point I am trying to make is; "The amount of damage done", ussually is used to assess if a lawsuit is suitable/doable/worthwhile/etc. (Other than the principle of itself, because out of priciple it is always worthwhile).

Lawsuits are expensive and I highly doubt if all the costs can be passed onto the violator. A good lawyer might get it as far as 50/50, screwing the violator (good), however commonly the violator is commercial based and the opensource project(s) developers non-profit / donation driven.

But basically only either the foudation or the developers could say if they find it worthwhile to initiate a lawsuit, so I will leave it like this.

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