Alexander Terekhov wrote:
I'm shocked by Amici's citation of Nimmer on Copyright talking about
appropriate contractual provisions and appropriate contract
construction... What!? I thought that licenses are not contracts in
free as in free speech world.
Perhaps you would be less shocked if you
Alexander Terekhov wrote:
Got it now?
No. I still fail to understand what you find shocking
about the citation of Nimmer.
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rjack wrote:
Eben Moglen is asking the Court of Appeals for the Federal Circuit
to overturn the clear and unequivocal language of the Supreme Court
in De Forest Radio Tel. Tel. Co. v. United States, 273 U.S. 236,
United States Supreme Court (1927):
Whether this [act] constitutes a
Alexander Terekhov wrote:
However, nothing other than this License grants you
permission to propagate or modify any covered work.
That's NOT true.
You failed to read the Terms and Conditions, where you
would have seen this:
To modify a work means to copy from or adapt all
or part
David Kastrup wrote:
Forget it, Hyman. You've thrown Terekhov into quote mode.
That's OK - I haven't been here in a while, and I'm just
getting my sea legs back, as it were. Anyway, I have to
post - someone is WRONG on the Internet! :-)
___
rjack wrote:
Why should we believe *any* self-serving statements issued by the SFLC?
Because they keep filing suit, and keep reaching satisfactory settlements
for their clients.
The SFLC will NEVER, NEVER, NEVER allow a Federal Court to review the GPL
license on the merits.
It seems odd
Alexander Terekhov wrote:
Hyman Rosen wrote:
I still fail to understand what you find shocking
about the citation of Nimmer.
Go and drop am email to Nimmer et. al. asking whether a copyright
license is a contract or not. Let us know about his response.
No, I don't think I will.
People
Alexander Terekhov wrote:
Consider also the following:
http://bulk.resource.org/courts.gov/c/F3/110/110.F3d.749.96-2636.html
I just did. Did you? Everything about that case acts in support
of the provisions of the GPL, not against it.
Albion's approving conduct--his granting of permission
rjack wrote:
You're confusing *contract terms* with scope of use restrictions
on a copyright *grant of permissions* in a copyright contract.
Nope.
All copyright license are contracts. Within the contract are
limitations on the actual uses of the work (called the scope
of the license).
Alexander Terekhov wrote:
Because of 17 USC 117, and the interpretation of the scope of that in
the case law, most use of AGPL software in a software as a service
environment will NOT involve modifying the software as defined by
AGPL, and you won't be required to make your changes available.
Alexander Terekhov wrote:
Notwithstanding ...
is a contractual covenant and not a limitation of license scope
I guess we'll find out whether or not that's true
once someone tries to enforce the AGPL against an
unwilling licensee.
___
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Alexander Terekhov wrote:
How can you not realize utter moronity of GNUish claims regarding the
legal status of the GPL, Hyman?
Perhaps because of http://www.bitlaw.com/source/cases/copyright/procd.html?
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rjack wrote:
Do you *really* believe that the GPL can bind all those downstream
third-party beneficiaries?
Of course.
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John Hasler wrote:
It doesn't bind them. It grants permission to them.
I believe that the skeptics think that the provisions
of the GPL that require you to do stuff don't apply
while the permission it grants you to do stuff does.
It's like vampires. They can't come into your house
unless you
Alexander Terekhov wrote:
What is your permission good for?
The permission is good for things that copyright prohibits.
Whether the modification restrictions covered by the AGPL
are prohibited by copyright law will be something that
courts will eventually decide, as code grabbers decide to
David Kastrup wrote:
In a jurisdiction without copyright law but with
contract law, the GPL is a meaningless piece of paper.
Not that there is such a place. But the ProCD case has
shown that courts will honor shrinkwrap licenses, and
I believe there are more cases where courts have upheld
David Kastrup wrote:
Terms which you have to agree to before being able to see them?
Yes, as long as you can back out after seeing them and
not be forced to pay. The court said that having terms
that are not visible is routine. For example, appliances
come with limited warranties but don't
Alexander Terekhov wrote:
http://www2.verizon.net/micro/actiontec/actiontec.asp
http://blog.internetnews.com/skerner/2008/06/verizon-ceo-doesnt-know-about.html
http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf
David Kastrup wrote:
People have tried backing out of the shrink-wrap of bundled OEM Windows.
More often than not, it takes considerable hassle and going to court.
That's because they're buying a bundle, which isn't necessarily
separable into parts. They would have much less trouble returning
Alexander Terekhov wrote:
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
http://www.taylorwessing.com/uploads/tx_siruplawyermanagement/Wimmers_Klett_CR.de.pdf
Every interesting court case has people commenting about it
favorably and unfavorably. None of that changes the
David Kastrup wrote:
The software still comes with something like a if you don't accept,
return this for a refund IIRC.
Yes, that's what I meant by inartfully written.
The OEM terms should have been that if you don't
accept any part of the system, you can return the
whole thing for a refund,
rjack wrote:
The Court's comprehensive docket records are starting to appear
as if they have been spammed by a robot server from the the SFLC.
If there are many violators, then there need to be many cases.
It seems to take the filing of a court case to gain the attention
of a violator, and
rjack wrote:
What is manifestly clear from case law is that once a copyright owner
repeatedly brings meritless claims that are not within the jurisdiction
of the court, the court will assume that the purported copyright owner
is filing frivolous, harassing actions subject to F.R.Civ.P. Rule
rjack wrote:
This post on the William Patry copyright blog should strike fear into the
hearts of the Monsoon gang and the SFLC.
When a plaintiff is suing just for money and he has no ground at all for
obtaining a money judgment, the fact that his rights may have been
violated does not save his
rjack wrote:
Section 2(b) of the GPL requires:
b) You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any
part thereof, to be licensed as a whole at no charge to all third
parties under the terms of this
Alexander Terekhov wrote:
See page 28 (2006 990 FORM). Eben is making an extra 2.96% interest on
$157,000 loan (to himself, gaming the system) in addition to salary. All
coming from charitable contributions.
I make tax-deductible charitable contributions to the Institute for
Justice, the
Alexander Terekhov wrote:
Copyright violation just can't seriously come into play regarding
software available under a free software license.
In Germany, courts have ruled that it does. Nowhere has a court ruled
that the GPL terms can be ignored and that the code licensed under it
is free for
rjack wrote:
If the SFLC is actually settling these frivolous actions as their
self-serving blog statements claim, then let them present their
evidence. It's put-up or shut-up time for the SFLC. It is their burden
of proof.
It's pretty simple, actually. Just demonstrate a case where someone
Alexander Terekhov wrote:
Sell? Are you sure?
Yes. From a N.Y. Post article
http://www.nypost.com/seven/10092006/news/regionalnews/dealing_the_cards_regionalnews_jeremy_olshan__transit_reporter.htm:
Reselling a subway ride is a Class B misdemeanor carrying a $60 fine.
But the rules
David Kastrup wrote:
As far as I remember, Daniel Wallace actually tried some all the way
approach in the U.S., and it was thrown out in the end because his
theories did not even amount to a recognizable complaint.
He doesn't count. First of all, he did it pro se, and you can't
expect to
David Kastrup wrote:
I don't see why.
Because any customer could set itself up as a competitor,
for one thing.
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rjack wrote:
the SFLC dimisses its cases immediately after filing
Are there any cases where the SFLC dismissed a case
and then the source code for the GPL-licensed software
in question remained unavailable? Unless you can point
to such a situation, I would have to say that the suits
served
Alexander Terekhov wrote:
That's not a settlement.
In any of the cases filed and then dismissed by the SFLC,
has the source for a program licensed under the GPL remained
unavailable?
In the Verizon case, it may well be that not all the details
required by the GPL are being followed correctly,
rjack wrote:
Apparently a few true GNU believers have been fooled by the SFLC
filings. The rest of the world knows better.
In any of the cases filed and then dismissed by the SFLC,
has the source for a program licensed under the GPL remained
unavailable?
Alexander Terekhov wrote:
Why don't you post the final order (or link to it) resulting in closure
of that case?
http://www.terekhov.de/GPLvVerizon/DISMISSAL.pdf
The source code for the GPLed software in question
is available here: http://opensource.actiontec.com/
Whether or not Verizon is
Alexander Terekhov wrote:
Do you mean the busybox source code? It is available. But there's also a
whole bunch of closed source modules in router software not available in
source code.
Actiontec makes the source code available from its own website,
for the versions of firmware that are on its
Alexander Terekhov wrote:
As if that matters. You're being an utter idiot, Hyman. The busybox
source code was available on Actiontec's web site before the complaint
against Verizon was filed.
Perhaps the plaintiffs had a change of heart after they
filed, then. Or perhaps Actiontec enhanced its
Alexander Terekhov wrote:
Verizon is a vendor to end users...
The routers are made by Actiontec and Verizon sends them to
its customers, and has a website where people can download
firmware upgrades. Actiontec has a website from which the
source for the GPLed router software can be downloaded.
Alexander Terekhov wrote:
And what are those non-technical violations successfully
litigated in court by SFLC?
The purpose of the enforcement activities is so that when
a binary GPL-licensed program is distributed, the vendor
distributes the sources as well. The purpose of the SFLC
actions
Alexander Terekhov wrote:
Why don't you quote ratio decidendi of some case where defendant
lost on option b?
Do you know of instances where after the SFLC dismissed a case,
the source code of the GPLed software in question was not made
available? If the software was always made available,
rjack wrote:
Methinks confusion reigns in the land of the
brave GNU world.
If the distributor of GPL-licensed code does not believe
that the GPL is a valid license, then on what basis is
the distribution happening? Copyright forbids it. Thus,
distribution is evidence that the distributor has
Alexander Terekhov wrote:
Hyman Rosen wrote:
Germany - the GPL is legal and enforceable there.
Not true.
Appellate Judge Hoeren (Court of Appeal of Dusseldorf, Copyright
Senate):
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
That paper is a link to a critique
Alexander Terekhov wrote:
Suppose ...
We have a court ruling. It is what it is, regardless
of whether you, or others, like it. It may be that
another case will be decided differently, or that an
appeals court will overturn the ruling, but until then,
you're out of luck proclaiming that the GPL
Alexander Terekhov wrote:
You have a non precedential laughable bullshit produced by a bunch of
drunken district court judges (with folks at higher level in German
court system politely calling them idiots, sua sponte).
Come back when the ruling is overturned and we'll talk.
Alexander Terekhov wrote:
That bullshit doesn't affect neither me nor you. I don't live under
district court Munich I jurisdiction. Do you?
I am not a copyright holder of free software, so none
of this affects me. I just like to argue.
___
Alexander Terekhov wrote:
Said Hyman the GNU user (not a copyright holder... arguing about alleged
copyright power (not a contract) of the GNU GPL). The GNU makes you
stupid.
Any clod can have the facts, but having opinions is an art.
-- Charles
Alexander Terekhov wrote:
I don't need standing, ueber GNUtian ams. I'm not on demanding side
(you must ... You must ... you must ... you must ... You must ... you
must ... you must ... http://www.gnu.org/licenses/gpl.html), you
idiot.
No one gets to copy and distribute other people's
rjack wrote:
A court would agree to that because of a doctrine under U.S. common
law known as promissory estoppal:
What in the world are you talking about? Promissory estoppel
applies when someone is induced to action because of a promise
made, and then the one who made the promise refuses to
rjack wrote:
Regardless of the legal reasons for contract failure, the donated
copyright permissions will be enforced by the courts.
In your dreams, perhaps. Do you know of any instance where after a
case was brought on the basis of the GPL, that the source was not
made available afterwards?
Alexander Terekhov wrote:
Futile goal.
Right from the mouth of German GPL enforcer extraordinaire Harald Welte:
http://laforge.gnumonks.org/weblog/2006/10/30/
(Some more thoughts on the results of GPL enforcement)
You conveniently left out:
I don't want to write about the legal results,
Fred Phillips wrote:
We propose to release as soon as possible,
version 4 of the General Public License.
Oddly enough, I was just about to release the next version
of the Microsoft End User License. It's very similar to the
previous version, only the license and purchase fees are to
be sent
Alexander Terekhov wrote:
Hyman Rosen wrote:
What part in as Defendant argues don't you understand?
Oh, OK, I guess you're right. It's probably the lawyers
tossing in every theory to get something to stick. But
they lost.
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Alexander Terekhov wrote:
Another postponement requested by SFLC. I gather that SFLC will move to
dismiss against own clients no later than August 20, 2008.
Probably because they are in negotiations to bring the
defendants into compliance with the GPL, after which
dismissal will be
Alexander Terekhov wrote:
So plaintiffs want to settle (having fruitless negotiations thus far)
and are asking delay of a conference meant to encourage defendants to
settle?
The affidavit of service wasn't even filed until July 14.
I expect that in this case as in so many others, court
Alexander Terekhov wrote:
Judge: (To SFLC) *^$%%#$$%$##^%$*^(^% Case dismissed.
Do you know of an instance where the SFLC ended a case and
the GPLed sources were not made available?
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Alexander Terekhov wrote:
And before you mention Actiontec: sources were
available from Actiontec prior to SFLC sued Verizon.
The complaint against Verizon is dated December 6, 2007:
http://www.softwarefreedom.org/news/2007/dec/07/busybox/verizon.pdf
This article says that the Actiontec FIOS
rjack wrote:
The term “pro bono” is used to describe professional work undertaken
voluntarily and without payment as a public service.
Wikipedia http://en.wikipedia.org/wiki/Pro_bono says
A judge may occasionally determine that the loser should
compensate a winning pro bono counsel.
rjack wrote:
Each time the SFLC has filed a suit, GPL'd source code has appeared.
This correlation proves your hypothesis
Every day an SFLC suit was filed, little children died in the Sudan.
This correlation proves the SFLC is killing little children.
It is reasonable to believe that when
Alexander Terekhov wrote:
Man oh man. Hyman Rosen managed to find out that SFLC wants scripts...
yet PRAYER FOR RELIEF doesn't mention scripts.
Of course not. The prayer for relief is simply asking the
defendant to stop illegally distributing the plaintiff's
software, and to compensate
Alexander Terekhov wrote:
Release Date Filename
11/27/2007 actiontec_opensrc_mi424wr.tar.gz
Hmmm... looks like Actiontec is at least attempting to honor the
license. I haven't researched what's in the tarball, but at least it's
there.
So, again, why is SFLC suing Verizon?
Actiontec and
rjack wrote:
U. What settlements. The imaginary ones?
The settlements it reaches in its cases.
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rjack wrote:
That's right. I'm gonna' let *you* provide the *verifiable evidence*
for *your* claims of settlements.
I'm not going to do that. It's enough for me to provide reasonable
inferences to counter the absurd claims that you and Terekhov make.
There's no chance that either of you will
Alexander Terekhov wrote:
SFLC complaints are to be dismissed automatically (due to lack of
jurisdiction).
SFLC does dismiss complaints automatically before defendants file any
response to the complaint and any ruling from judge (actually before
having him a chance to even read the GPL and
Alexander Terekhov wrote:
It's up to the FSF/SFLC to proof their belief. Thus far, all that
we've seen is just a bunch of moronic complaints warranting automatic
dismissal AND which were dismissed automatically by the SFLC.
The plaintiffs have to prove their beliefs only to the extent that
Alexander Terekhov wrote:
How come that Verizon still doesn't make GPLed software available as
required Hyman?
I guess that the plaintiffs decided that having the manufacturer
of the routers comply with the GPL was good enough for them, because
it would be difficult to explain in court that
Alexander Terekhov wrote:
It's up to the FSF/SFLC to proof their belief.
Hyman Rosen wrote:
The plaintiffs have to prove their beliefs only to the extent that
the defendants challenge them.
According to Hyman if I sue him and shortly dismiss the
complaint prior ... then I'm surely has
Rahul Dhesi wrote:
Somebody wants to hide something. Who -- the defendants or the SFLC?
It's hard to tell.
Why do you think anyone is hiding anything? For example,
http://www.softwarefreedom.org/news/2008/mar/17/busybox-verizon/
says
As a result of the plaintiffs agreeing to dismiss the
rjack wrote:
Although no independently verifiable evidence of record, plaintiffs
face-saving blog posts prove their claims after case is voluntarily
dismissed with prejudice!
It is independently verifiable through the WaybackMachine and
other websites that Verizon was distributing the
Rahul Dhesi wrote:
I'm inclined to think that at least one of the parties would be harmed
or embarrassed if the settlement became public -- otherwise they would
have just posted it, on or near the same web page where the complaint
was posted.
Alexander Terekhov wrote:
Extreme Networks' offer regarding GPL'd stuff:
http://www.extremenetworks.com/services/osl-exos.aspx
So when did this page appear? And do they actually honor
requests for the source? If they do, I would once again
assume that a grabber has come around to meeting the
rjack wrote:
The S.F.L.C. attorneys are *consistent* and we may *always*
count on them. They have filed six consecutive incompetent
pleadings in the Southern District of New York.
In any of these cases, is there an instance where the
source code of the GPLed software was not available
once
Alexander Terekhov wrote:
May 28th, 2008
Today I was admitted to practice
And your point is what, exactly? Public interest groups often
hire interns and people just starting out in the profession.
The group gets relatively cheap labor, and the employee gets
experience.
For all your wailing
Rjack wrote:
Hyman Rosen wrote:
defeat and everyone else will regard as a victory.
Uhh! Everyone is plural. Contrast with I.
I don't understand what you mean. Do you believe that
We will thus soon see another dismissal,
which you will proclaim as a defeat and
everyone
Alexander Terekhov wrote:
None of those mirrors of out-dated busybox and other GPL'd source code
that nobody really cares about comply with the FSF/SFLC view on
complete corresponding source code regarding Infringing Products
being made available by defendants.
It is false that nobody really
John Hasler wrote:
Sure, you could buy Debian CD sets from CheapBytes, throw away the source
CDs, and sell the binary ones. So what? Are suggesting that company B
contract with company A to do this? If so company A is company B's agent
and the GPL is violated, not circumvented.
I don't see
rjack wrote:
I was objecting to your use of the pronoun everyone. On what day was
the election held that empowered you to speak for everyone?
It's the isolating we :-)
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David Kastrup wrote:
Where is the point in throwing away valuable material? Where is the
point in paying A for copying source and binaries _AND_ then make you
unable to do copies yourself?
That way Company A gets to have its cake and eat it to.
It leverages available GPLed software so that
David Kastrup wrote:
You mean if I pay somebody to drop a brick from a window
when I signal him, I am not accountable for murder?
If I hire a company to develop a program for me, that
company is not me. I pay money, I provide a specification,
they deliver the software to me, and that's that.
David Kastrup wrote:
I was asking where the point was for B.
B gets handsomely paid by A.
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David Kastrup wrote:
That's the same if I pay somebody to drop a brick when I signal him.
It's not illegal to hire a company to develop software
to your specifications, allow them to retain all rights
to that software, and just buy copies from them.
Any software vendor who accepts suggestions
David Kastrup wrote:
B gets _paid_ by A and yet receives the disks by first _sale_ rather
than acting as an agent of A? You'll have a _really_ hard time selling
that to a judge.
A gives specifications to B. B develops the software.
A buys a bunch of copies of the software from B and
resells
David Kastrup wrote:
I recommend that you reread the thread and decide on who you call A and
who B. It will make it easier for the judge to figure out things.
Oops, I did mix them up. But in any case, there is
no law of copyright that says that if I ask someone
to develop software, even if I
David Kastrup wrote:
You don't need to become the owner.
It is enough if you become _responsible_.
Enough for what? I just don't understand what you're
saying. Remember, the GPL is just a copyright license.
It has no notion of responsibility. It states only
whether and how covered software
Alexander Terekhov wrote:
The courts should simply not enforce invalid contracts. LAW 101. To
date, the courts did NOT enforce the GPL. And violations flourish.
What a strange notion! The courts vigorously enforce copyright
on songs and movies. And violations flourish.
Rjack wrote:
The seller of the router, when he distributes it to a buyer purportedly
promises to license the code to all third parties. The irony is that
the GPL specifically excludes the *parties* to the contract (the
distributors) since the class all third parties does not include the
Rahul Dhesi wrote:
I think you folks are assuming that the GPL somehow gives you, the buyer of the
router, the right to get source code from somewhere.
It does, unless the chain of GPL licensing is somehow broken,
perhaps through the use of the First Sale Doctrine.
John Hasler wrote:
It also means that B is free to sell or give the software, source
and all, to anyone, including A's customers.
But A and B can enter into an arrangement where B will
agree not to do this, perhaps with A paying B for this.
___
rjack wrote:
The trouble is you can't write a copyright license that controls all
third parties as long as they follow the GPL. Congress specifically
forbid this situation with 17 USC sec. 301.
That's the federal preemption clause. What does that
have to do with anything? Who says anything
John Hasler wrote:
The sale is then no longer an arms-length transaction.
A US Federal judge will see right through the subterfuge
and tell A that it is a distributor.
Why does it have to be arms-length? Where is the subterfuge?
A software developer is perfectly free to enter an arrangement
David Kastrup wrote:
But the courts have.
What the courts have done is to uphold first sale,
despite the vehement objections of the software
developers who argued that EULAs disallowed it.
This was recently decided in Softman v. Adobe.
See http://www.linuxjournal.com/article/5628.
Alexander Terekhov wrote:
That PDF is dated May 14, 2008.
Interestingly enough it predates June 25, 2008:
Legal time is the very opposite of internet time.
Delays and postponements of months at a time are
routine. It should come as no surprise that actions
by plaintiffs and defendants can
rjack wrote:
The S.F.L.C. lawyers are filing repetitive, frivolous,
cookie-cutter complaints in the S.D.N.Y. where they would
never meet the requirements for federal jurisdiction.
Subsequently they voluntarily dismiss the suits prior to
the court ever reviewing the complaint.
In every case
Alexander Terekhov wrote:
And I pointed out that at least in Germany of late violations of
copyright in songs and movies by sharers are on decline without any
court enforcement.
Alexander Terekhov wrote:
Or go to court and lose even more.
Umm, right.
Alexander Terekhov wrote:
Contract breach (let's assume a valid contract)/not fulfilling
contractual obligations is not illegal.
http://www.copyright.gov/title17/92chap5.html
Copyright Law of the United States of America and Related
Laws Contained in Title 17 of the United States Code
rjack wrote:
First you dis Microsoft
You must be thinking of someone else.
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Alexander Terekhov wrote:
[I]mplicit in a nonexclusive license
These court decisions about nonexclusive licenses have been
about implied licenses, not written ones, except for the
recent Jacobsen v. Katzer case. (Which is therefore being
appealed and criticized, but I will take my own advice
rjack wrote:
all they have to to do is refrain from voluntarily dismissing
one of their silly lawsuits and let a judge review their claims
on the merits.
Judges are not in the business of reviewing claims.
If the parties to a dispute have agreed on a settlement
then there is no case to
Alexander Terekhov wrote:
That's verifiably not true.
It's certainly verifiable. Go to each SFLC filing, find
the website of the company they sued, and see if there
is a place from which to obtain sources (substituting
ActionTec for Verizon, before you say anything).
I don't have a burning
Alexander Terekhov wrote:
Hyman Rosen wrote:
[... substituting ...]
3.14159 = 299792458
Hyman science.
For most of 2007, Actiontec FIOS routers were being shipped
with GPLed software and without complying with the GPL.
After the lawsuit ended, Actiontec FIOS routers are being
shipped
Alexander Terekhov wrote:
Now imagine that Actiontec ships Verizon's FiOS router
boxes to Verizon and only Verizon (fully fulfilling the GPL obligations
by providing the source code to its customer Verizon)... not end users.
Who is supposed to provide the source code to you?
No one. This is
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