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GNU is Not Unix

Is UnitedLinux Violating The GPL? 382

Posted by timothy
from the have-they-released-anything dept.
mmayberry writes "NewsForge has posted an article, UnitedLinux might not be very GPL-friendly. With a closed beta that includes an NDA, UL may be on the verge of angering a large part of their target market. You'd think that the likes of Suse, Turbo, SCO, and Conectiva would get the point by now..."
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Is UnitedLinux Violating The GPL?

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  • This is comical... (Score:2, Insightful)

    by meis31337 (574142)
    What is the best way to NOT gain ground and support in the open source community??

    How bout violating the GPL. Duh.
    • by Elbereth (58257)
      So, it's okay for you to ignore the copyright on movies and music, but they can't ignore the copyright on some software?

      I would die laughing if I saw modified, binary-only releases of GNU utilities on a P2P network.
      • Anyone stop to think they might be re-writing from the ground up?

        In that case, they'd own the copyrights. By not releasing the source until they're ready for a full release of an OS(Linux is the kernel, not the OS), they have the ability to, like Microsoft, unveil beatiful rainbows of extraordinary functionality, getting an edge over their competition. (It's hard to write a competitor to a project behind closed doors.)

        It's a perfect example of the way companies will be able to produce excellent Open Source products at a profit. Businesses will grab the products while they're hot, and the simultaneous source code release will be supported by the OSS community.

        At least, I think that's what they're trying to do.

        From the community point of view, that's pretty damn sad...
        • by Misch (158807)
          They would have to be rewriting from the ground up. And they'd have to rewrite everything.

          *******

          GPL FAQ [gnu.org]

          Q: Does the GPL allow me to distribute a modified or beta version under a nondisclosure agreement?

          A: No. The GPL says that anyone who receives a copy of your version from you has the right to redistribute copies (modified or not) of that version. It does not give you permission to distribute the work on any more restrictive basis.

          ********

          Or, they're distributing their version of Linux without any GPL'ed code in it. That would be kinda like giving someone a goldfish in a tank with a shiny plastic castle in it, except that there is no tank, no water, no goldfish, and no shiny castle inside of it.
          • by mmol_6453 (231450)
            I understand what you're saying, but I think the GPL has a gray area:

            The GPL allows you to distribute a closed-source modification of a GPL, as long as the distribution is within the organization making the modification. One could argue that by placing beta testers under an NDA, they're making those testers part of their organization. Who knows? Maybe they're giving them membership cards.

            Of course, UL can't make the entire world a member of its organization, so they'll have to release the source when the product goes public.

            This gray area hasn't been a secret. In fact, the Affero GPL [sourceforge.net] was created for the purpose of closing this loophole. Problem is, nobody's using it because it limits the people who will use the software to corporations with no need to adapt it to their needs(a rare case where a custom-built system would normally be used), and people of the general OSS community.
            • by hayden (9724)
              The GPL allows you to distribute a closed-source modification of a GPL, as long as the distribution is within the organization making the modification. One could argue that by placing beta testers under an NDA, they're making those testers part of their organization. Who knows? Maybe they're giving them membership cards.
              Ummm, no. The reason you can distribute GPL code internally in a corporation is (as far as I understand it) because in the eyes of the law the corporation is a person. Giving binary only GPL'd stuff to yourself isn't a violation so distributing around a corporation isn't either.

              As for this being a loophole, I think closing it would be a bad thing. Getting Free software on the inside of a company is a Good Thing.

      • There is a subtle philosophical difference between protecting the copyright of GNU and that of music and movies:

        The spirit of GNU is to provide freedom to the copyrighted material. As such, protecting software under GNU copyright is protecting freedom, and intrinsicly in the interest of the common person such as you and I.

        The spirit of the copyright of music and movies is protecting ownership for profit. Protecting those copyrights is all too often protecting the interests of transnational conglomerates, and typically the common person has no direct vested interest in that transnational's profits.

        Not to say that violating copyright is right or wrong for any reason. But certainly the interests that we have as free individuals are different depending upon that particular copyright, and as such our perception of "right and wrong" is not founded in a uniform copyright. The spirit of the copyright status is very different, from a moral point of view.

        Not all copyright is created equal in the eyes of the consumer. :)
        • If you take the FSF's definition of freedom as applied to software -- the ability to relatively easily modify a program through access to the original source code (and a license that permits you to make such modifications and distribute them), then your analysis is correct. If you take a more libertarian view of softare freedom -- the ability to do whatever the hell you want to the software -- then requiring one to distribute source code when one prefers not to is actually restricting freedom.
          • Upon some further thought, I'd consider the FSF's position on software freedom a kind of utilitarian compromise position. For the individual, being able to do whatever one wants with software -- modifying it, distributing it with source code, distributing it without source code, etc. -- is the highest level of freedom. However, permitting this can potentially restrict the freedom of others, as if this individual exercises his freedom to distribute modified binaries without source code, he makes it much more difficult for others to exercise their freedom to modify the code (in the absence of legal restraints they can still do so, by disassembling the binary for example, but it makes it significantly more difficult). Thus the individual's freedom is limited by requiring that he distribute source code whenever he distributes a modified binary in order to make it significantly easier for the everyone else to exercise their freedoms. All things considered, I see this as a relatively good trade-off.
            • Ah, now you've got it.

              We each give up a little freedom to ensure that everyone has as much as possible.

              If you only consider the recipient of the GPL code and what he can do, the GPL seems less free. If you consider the recipients of the code the first recipient produces (based off the GPL code received), then the GPL guarantees -more- freedom.

              I take issue with those who consider only the freedom of the first recipient -- who is presumeably themselves -- because it seems they would be happy to be dictators (who can, after all, do whatever they want).
          • I don't think you accurately represent Libertarian thinking on the subject.

            If you did, that would suggest that it being illegal for you to make me your slave is a bad restriction of your freedom, from a Libertarian point of view.

            Live human libertarians I know don't think that way.

            Thus I doubt what you say.
    • by ACNeal (595975) on Thursday September 19, 2002 @02:56PM (#4291354)
      Why have proof or anything like that.

      If they haven't modified anything GPL, then they CAN'T violate the GPL.

      If the basis of the distro is security and configuration scripts slapped around the outside of the normal kernel, then there is nothing to fear.

      And since this was my understanding of what the distro was supposed to be, they can't be violating the GPL. If they give you a piece of GPL'ed software, they can't keep you from distributing it.

      They can keep you, with an NDA from distributing their distribution, with all the proprietary products slapped around it. They can keep you from spilling the beans as to exactly what little tools they have produced.

      This is not to say they havn't, but the simple fact of an NDA and a closed beta doesn't even begin to smell of a GPL violation when you take into account what you already know of the companies involved, and what they have already stated their goals to be.

      But lets accuse 'em anyway, just cause we already hate 'em. We can always apologize later, and claim absence of malice.
    • by Anonymous Coward on Thursday September 19, 2002 @03:02PM (#4291413)
      OK, the usual crowd of ininformed slashdotters has spoken. Let's get some facts in here, and raise the clue level:
      1) I an a UnixWare developer. Obviously, we're not all laid off, but some of our good friends and coworkers were tossed out
      2) Please indicate, concretely, where UL violates the GPL
      3) Newsforge is the only FUD-distributor that uses extortion to get details: "tell, or we'll print misinformation". Really, people. With the same intensitity that you mistrust anything but the One Pure (RedHat|Debian), verify your other sources
      4) Ransom never put down hte GPL; he said it was great for development but had no business case
      5) SCO-formerly-Caldera was formerly SCO, and is well-known in the retail industry. Again, check your facts, and check under the hood of the places you're buying your junk food and brand-label-knockoffs. We just don't advertise. With the hatred of popups, you'd think this was a good thing in this community
      6) for the record, I call it "Linux", not "FNU/Linux" nor "GNU/Apache/X/Linux", since, although all these tools and more are part of Linux, Linux is Linux is Linux. Thanks for the work thus far in what you have contributed to LINUX.

      Of course you're going to frag my comments, go ahead. You might want to include some factual arguments.

      The non-factual FUD shouting here is only one step above "woo hoo! first post!"
  • by leviramsey (248057) on Thursday September 19, 2002 @02:24PM (#4291009) Journal

    ...It's not that surprising.

    SuSE are not exactly huge supporters of the GPL, what with a non-Free installer and configuration tools.

    Wasn't Ransom Love bashing the GPL a few years ago, while at Caldera and saying that the BSD license is better?

    • Yea, I don't know too much about the other 2 companies, but Caldera (er.. SCO) never was a big GPL fan, and Suse... Well, I never bothered to try them out because they don't provide ISOs. Mandrake has made probably 150 bucks off of me over the years because I was able to download and try out their distro. Now I buy official CDs because they're cheap, and I'm familiar with it... But I digress.
    • by fault0 (514452) on Thursday September 19, 2002 @03:24PM (#4291629) Homepage Journal
      > SuSE are not exactly huge supporters of the GPL, what with a non-Free installer and configuration tools.

      But they are heavy contributors in two of the largest free software projects in XFree86 (through Keith Packard, etc) and KDE (Waldo Bastian, Kurt Granroth, etc..) Of course, XFree86 is X11-licensed, and only parts of KDE are GPL, but the point is that SuSE makes many contributions to free software (The GPL doesn't matter here because SuSE doesn't release their installer under a X11 or BSD license either)

      > Wasn't Ransom Love bashing the GPL a few years ago, while at Caldera and saying that the BSD license is better?

      He said that the GPL was bad for buisness, but good for development. I wouldn't doubt that most other CEO's or CFO's would agree with him.
  • Just chill, people (Score:5, Informative)

    by geekd (14774) on Thursday September 19, 2002 @02:24PM (#4291015) Homepage
    Leave your knee-jerk reactions at home for now, people. The FSF is on the case. Don't get all up in arms unless the FSF determines there is an actual problem.

    On the other hand, this [theregister.co.uk] Register story paints the upper brass at UL as clueless retards. But the Register always does that. :-)

    • the article on newsforge did not put the brass in any better light. In fact they made her sound like an absolute moron.

      She didn't have answers to this question or that, she was shielded from answering any technical question about Linux (Line-Ux).
    • by lunenburg (37393) on Thursday September 19, 2002 @02:47PM (#4291268) Homepage
      Leave your knee-jerk reactions at home for now, people. The FSF is on the case. Don't get all up in arms unless the FSF determines there is an actual problem.

      That's right - save the knee-jerk reactions for when Red Hat changes a desktop theme.
    • clueless retards
      Please refrain from referring to the mentally retarded as REE-tards. Especially as clueless ones. It's demeaning. Besides, many of them have more common sense than "normal" folk.

      Also, if El Reg paints upper management types as mentally retarded, I know some mentally retarded people who would be offended. They're much smarter and more sensible than Management.
  • Stupid Question (Score:4, Interesting)

    by cosmosis (221542) on Thursday September 19, 2002 @02:24PM (#4291019) Homepage
    Many of these companies are obviously violating the GPL, but exactly who is going to prosecute them? And if no one can effectively prosecute them, then what strength does the GPL really have? This is something I have never really understood. Anyone care to elaborate?
    • Re:Stupid Question (Score:4, Informative)

      by leviramsey (248057) on Thursday September 19, 2002 @02:29PM (#4291077) Journal

      The GPL is enforced through private enforcement. Basically, someone who holds the copyright on GPL software sues for violation of the license. So Linus could sue in this case. The FSF could sue because, presumably, UL will be shipping gcc, glibc, and/or bash.

    • Re:Stupid Question (Score:5, Informative)

      by geekd (14774) on Thursday September 19, 2002 @02:32PM (#4291116) Homepage
      who is going to prosecute them?

      The FSF [gnu.org] asks that authors of GPL software tranfer the copyright to the FSF, so that the FSF can take action against violators.

      From http://www.gnu.org/philosophy/enforcing-gpl.html [gnu.org]

      So what happens when the GPL is violated? With software for which the Free Software Foundation holds the copyright (either because we wrote the programs in the first place, or because free software authors have assigned us the copyright, in order to take advantage of our expertise in protecting their software's freedom), the first step is a report, usually received by email to . We ask the reporters of violations to help us establish necessary facts, and then we conduct whatever further investigation is required.

      • We don't know whether any actual violation has taken place. However ...

        No Linux distribution can do anything without the C library, which is owned by the FSF; they would have grounds to shut down UnitedLinux totally if, in fact, UL has violated the LGPL. All they have to do is invoke the clause saying that a violator permanantly forfeits rights to distribute the work in question. Without the right to distribute glibc, you can't ship a Linux distribution (unless you want to write your own C library from scratch or try to port one of the BSD C libraries).

        • All they have to do is invoke the clause saying that a violator permanantly forfeits rights to distribute the work in question.

          I don't see a clause like that in the GPL [fsf.org]. Could you point it out?

          I do see section 4, which says that "[a]ny attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License." However, that provision does not imply that the violator is attainted against receiving a new license ... which is as simple as downloading a new piece of the covered software.

          (In programmatic terms, you need an instance of permission in order to legally redistribute copyrighted works. If you violate GPL, you destroy your instance of permission (and, more importantly, you break the law in so doing). However, just because you destroyed an object doesn't keep you from getting a new object of the same class later on ... and you get a new GPL license with every copy of the software.

          License * foo; /* pointer to a license instance */
          foo = new License(LGPL, glibc); /* get a license */
          foo->violate(); /* implicitly deletes foo */
          foo = new License(LGPL, glibc); /* can still get a new one */

          To summarize: The GPL does not contain any terms which "taint" violators from re-accepting the license in the future, nor which withdraw the offer of future licensing. The GPL's "teeth", basically, are not license revocation but copyright law.

          • However, that provision does not imply that the violator is attainted against receiving a new license ... which is as simple as downloading a new piece of the covered software.

            I'm so tired of seeing this odd logic. The fact of the matter is very simple. The spirit on the license is very clear. You violate, you no longer have a legal license. Period. That's the spirit. Why is it clear? Well, obviously the intent it to prevent people from violating the terms of the license. It's not much of a deterrent if you can simply do a download per day to receive free reign to violate the law.

            I have no idea why this concept is so hard for people to grasp.

    • Re:Stupid Question (Score:2, Insightful)

      by enjo13 (444114)
      I beleive that the only person with authority to prosecute them is whomever licensed whatever programs that they are violating the GPL with.

      So if I made "Nicks uber cool GPL spreadsheet" and United Linux decided to take it, make a couple of tweaks and not release the changes I would be the one who was harmed and thus have legal standing to go after them.

      I can also appoint a representative authority (with legal restrictions) like the FSF to go after them as well.

      The point being, that whoever is at the top of the GPL pyramid (AKA the original creator) has to be the one to actually take action.
      • So if I made "Nicks uber cool GPL spreadsheet" and United Linux decided to take it, make a couple of tweaks and not release the changes I would be the one who was harmed and thus have legal standing to go after them.

        Actually, under the GPL, I don't have to release any changes I make to a program unless I then distribute the program again. I'm perfectly welcome to download a program, change it, and use it for my personal use.

        Distribution is the point at which I have the responsibility to deliver the source code.
    • Re:Stupid Question (Score:2, Insightful)

      by aero6dof (415422)
      The NDA's might be incompatible with the GPL, but I'm not sure that the GPL is being violated unless one of the receiving companies tries to excercise their GPL rights with the UL distro and is denied. Now if UL was making it difficult for end customers to redistribute or receive source there might be a story here. Until then, it's just an undefined, untested legal situation. (And I doubt any of the NDA companies would will bother trying to redistribute the UL distro because of business reasons - not because they feel limited by an NDA.)
    • IANAL, not even american so take my understanding of US law with a ton of salt, but it sounds like there'd be grounds for a class action suit, the class being all the copyright contributors to the infringed code. If you don't care about the personal benefit you might recieve, I suppose you could give the copyright to FSF or something similar to let them do the job, but they might be willing to take your case on your behalf (as long as you're defending free software) anyway...

      Kjella
    • defending a GPL (Score:3, Insightful)

      by chongo (113839)
      but exactly who is going to prosecute them?

      As the first person who ever took legal action against somebody who wanted to violate a GPL (back in 1989) I can definitively say: The GPL Copyright holder is the one who has standing to seek legal action against the party they suspect is violating the GPL.

      I.e., somewhere in your GPL / LGPL there is a:

      Copyright (C) date
      name

      The name, or somebody to who they have signed over the copyright to, is the one who has standing to bring suit against a potential violator.

  • Yes, but... (Score:2, Insightful)

    by redragon (161901)
    The Linux community is pretty fickle. Seriously, with the number of licenses, distrobutions, holy-wars, does it surprise anyone that people are getting grumpy? There are just a lot of grumpy people, and seems a lot of them have a passion for Linux. :)

    I figured at some point someone's toes would get stepped on.
    • Yeah, according to Slashdot logic, EULAs don't apply when made for Microsft and Apple OSes, but when it's the GPL it's suddenly a super-duper legally binding "let's sic' em' cowboy!" situation.
      • Dear Troll: That's because EULAs reduce rights, the GPL offers more of them. Thanks for playing.
      • Well part of the difference is that the GPL isn't an EULA. You don't have to 'agree' to it and you are not bound by it. However, under copyright law you need the permission of the copyright holder to distribute a work, and that permission is available only under the terms of the GPL (in most cases). An EULA purports to bind you just because you try to run the software, even though running a program is (in most countries) not restricted by copyright.
        • You don't have to 'agree' to it and you are not bound by it.

          So if these people didn't 'agree' to the GPL, they are not bound to it, and can do whatever they want with the Linux source? Right.
          • They can't do whatever they want, because they would then be in breach of copyright. It is copyright law, and not any kind of 'agreement' or contract, that gives the GPL its force.

            As long as UnitedLinux is based in a country that applies copyright to software, they cannot distribute any code without the permission of its copyright holder (either the author or the FSF, in the case of most Linux stuff). So the copyright holder could sue them if they distributed code without permission - in other words, outside what is specifically permitted by the GPL licence they received.
  • GPL Death Penalty (Score:4, Insightful)

    by bwt (68845) on Thursday September 19, 2002 @02:27PM (#4291056) Homepage
    I'm amazed that they would pull this. Their competitors have undoubtably contributed to some of the GPL software that is covered by the NDA.

    What incentive does a company like say Red Hat have to not enforce the GPL death penalty, which says if you violate the GPL, your licence is revoked (GPL, section 4 sentance 2).
  • On a side note... (Score:3, Flamebait)

    by chill (34294) on Thursday September 19, 2002 @02:28PM (#4291070) Journal
    Ransom Love, the once head of Caldera, claimed he was stepping down from Caldera to head up UL.

    However, he has since disappeared from the scene. UL claims he never worked for them and has hired someone from "outside" for the position he was after.

    While heading Caldera, now the SCO Group, he had a great deal of input on the direction of UL.

    Maybe, with his non-involvement, this can get sorted out properly.

    UL also stated they will be using SuSE as a base distro and YAST2 as the installer, with contributions from the others adding on.

    Also, both RedHat and Mandrake are set to release new versions any day now. And RedHat's Advanced Server is selling better than expected, with a reported 8,000 units sold so far.
  • Well then (Score:2, Insightful)

    by sulli (195030)
    Don't use it.
  • Poor GPL (Score:3, Interesting)

    by SirSlud (67381) on Thursday September 19, 2002 @02:31PM (#4291104) Homepage
    Without big money behind it, it really seems like folks will only follow it when its convenient or serves their interests. :(

    Seriously tho, if they're violating the GPL by distributing GPL'd software nobody is allowed to redistribute, what chance in hell does the final distro have in terms of having the support of coders who are GPL proponants? And wont GPLd software represent a significant chunk of what United Linux is going to base its worth upon?

    And how can MS possibly state the GPL is so evil and viral if they get away with this? Seems to me like MS would have to about-face: "We love the GPL .. its like the BSD licence, but you can ignore any point you don't like!"

    I don't mean to sound like a license nazi, but in the interest of the copyright of the original author, I really have to say it again .. if you don't like the GPL, don't use GPL'd software. MS seems to have gotten along fine without it ..
  • and were here to save you from Redhat/Mandrake..
  • by The J Kid (266953) on Thursday September 19, 2002 @02:32PM (#4291114) Homepage Journal
    Not meaning too troll or anything, but...

    The GPL states that you must make the Source Code freely avilible to your customers...

    So if it's a closed beta only the people who recieve that beta have right to that source... and anyway, all the programmes are available on the internet (freshmeat) and as part of other distro's...!

    Speellling is mi graetest good ting!
    • The GPL also states that if you distribute the source, you must give the same rights to that person as you had.

      So you can't attach an NDA wtih GPL'd software/source saying, "BTW, you know the part in the GPL where it says now that you have the source, you can distribute it too, so long as you adhere to these conditions? Well forget it. You can't distribute it. We're ignoring that point of the GPL and you'd better not exercise that right."

      At least, thats my understanding. Please correct me if I'm off base.
      • So you can't attach an NDA wtih GPL'd software/source saying, "BTW, you know the part in the GPL where it says now that you have the source, you can distribute it too, so long as you adhere to these conditions?

        Just to speculate, I suppose one could make the argument that the NDA is a separate contract not associated with the GPL. IOW, it's not that they've modified the GPL so that you can't distribute the work. Instead, you've entered into a separate agreement that says you won't distribute the work.

        Unlike the GPL, which is a license concerning copyright laws, the NDA could be an ordinary contract covering an exchange of commitments between two parties. Unlike a shrinkwrapped EULA, it would be actually signed by both parties.

        I have no idea if that argument would fly, but it might be what they are thinking.

        • But if they are not the original copyright holders on the code (ie te Linux kernel) then they can not modify the license that code is under.

          Sure...they can say that they are giving the testers the code under the NDA, but that does not change the license that the kernel, gcc, etc... comes under in anyway. Since UL is using the GPL'd code, they MUST pass those rights on to whoever they distribute it to - with not further restrictions - or not use the code.

          So if they sign the NDA, that can't invalidate the GPL clauses.
        • the NDA is a separate contract not associated with the GPL.

          Yes, you could, however the net effect would be you are distributing the software and denying others the right to further distribute it .
          This clearly conflicts with the GPL requireing no further restriction.
          Since UL can't distribute under the GPL they cannot distribute at all.

          I hope the FSF gets them.
    • The GPL states that you must make the Source Code freely avilible [sic] to your customers...

      It also says you musn't interfere with their rights granted by the GPL:

      6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

      Seems pretty clear to me: "You may make copies and give them away provided you give the recipients all the rights which I gave you."

      So if it's a closed beta only the people who recieve [sic] that beta have right to that source... and anyway, all the programmes are available on the internet (freshmeat) and as part of other distro's [sic]...!

      Yes, this is true. However, you miss a couple of important points:

      1. While it's correct that "only the people who recieve [sic] that beta have right to that source," the people who receive the source have certain rights which are granted by the license. To restrict those rights means that the license has been violated and any prior rights granted to the distributor have been revoked.
      2. Although "all the programmes are available on the internet (freshmeat) and as part of other distro's [sic]," that doesn't mean that they're the ones doing the distributing in this case. All that means is that when someone distributes an app through Freshmeat, that person must offer the source code and full GPL rights to it. When UnitedLinux distributes GPL-covered programs, they must do the same thing. It doesn't matter that other people already do it; "other people" cannot fulfill your obligations under this particular distribution license.
      In case you haven't read it, I strongly urge a reading of the GPL itself [gnu.org]; it is certainly one of the most lay-accessible legal documents out there.
  • Hardly unusual (Score:4, Informative)

    by leastsquares (39359) on Thursday September 19, 2002 @02:35PM (#4291140) Homepage
    Many Linux distributions first see light of day as closed betas. For example, the Xandros betas have been available to only a small number of people, all of whom have signed NDAs.

    As I see it, a closed beta is not a public release, and therefore not violating the GPL in any way.

    In these situations, making the full source available would not help anybody (1. slower development due to extra hassle, 2. most code is available from original sources anyway, 3. modified code will be in a state of unstable flux). At the point of full release, well, that's a different matter.
    • by nuggz (69912) on Thursday September 19, 2002 @02:40PM (#4291188) Homepage
      Being a public release or not is irrelevant.

      If it is distributed, it MUST be distributed under the terms of the GPL.

      • Ahem, bollocks. I can release a GPL program to a select few individuals who have signed agreements with me with no problems, as they can be deemed part of my company now. It has already been stated before that a company releasing software to its employees or affiliates is basically the company distributing to the company, ie itself. Thus the GPL doesnt stand.

        Do you give the source code for GPL programs to everyone who works for you? Doubt it.
        • by bwt (68845) on Thursday September 19, 2002 @03:05PM (#4291439) Homepage
          You actually have to actually be a company and they have to actually be employees. You can't just pretend you are a company. That is a sham and trying to pull that in front of a judge would not be wise.

          They can't even be "contractors", because the GPL forbids you to distribute to people with additional conditions, which your contract would impose.
        • by MrResistor (120588) <peterahoff@nOSpaM.gmail.com> on Thursday September 19, 2002 @03:06PM (#4291444) Homepage
          It is you who are incorrect.

          The only way you can release GPL code under an NDA is if you are the origional author of every single line of the code. Otherwise the origional author can invoke the GPL death penalty, removing all your rights to whatever code they wrote, and thus invalidating your NDA.

          Since UL obviously isn't the origional author of all, most, or likely even a significant amount, of the code in their distro, their NDA can probably be shot down quite easily.

          Do you give the source code for GPL programs to everyone who works for you? Doubt it.

          If you have the employees install the software themselves you are legally required to provide them with source if they request it. If you are installing it and they are merely using it, then you aren't distributing it and there is no requirement for you to provide source.

          • by Fastolfe (1470) on Thursday September 19, 2002 @04:10PM (#4292120)
            So long as a piece of code remains within a company or organization, it's not redistribution. It is a company that takes posession of GPL'd code, not individuals that happen to have a business relationship with one another. As far as contracts or licenses are concerned, a corporation is a single distinct entity, and employees of that corporation operating as employees or agents of that corporation are not "individuals" that can extend license agreements to apply to themselves individually.

            I cannot buy software on behalf of the company and interpret the terms of the agreement to mean that I can take it home and start using it for my personal purposes.

            By participating in a closed beta, you are acting as an agent of the company. The software is not being redistributed here.

            This issue has come up time and time again on Slashdot, and every time, we hash out these same arguments.
        • No you can't. You would be restricting further distribution.

          6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
          • A "recipient" is not explicitly defined to be a human being. Corporations enjoy status as individuals just as people do. You can license software to corporations, and the corporation is what ends up taking possession of the software. People acting as agents or employees of a company do not receive individual rights to software licensed to the company (which is what's happened here).

            You are *perfectly* free, however, to go download the same GPL'd software on your own time and do whatever the hell you want with it. But don't expect to be able to include your company's copyrighted code in your derivative until your company has released that code.
    • I wholehartedly agree. If they are trying to keep some form of order and control over their development cycle, then I say go for it! But if they don't make these sources available at the very instant that UL goes public, then nail their collective asses to the wall!

      I think that the FSF should just hold off for a bit, but be ready to do a full code audit on everything that is released. It's a big job, but hey, they're our big lawyer buddies, aren't they?
    • Re:Hardly unusual (Score:4, Insightful)

      by rjw57 (532004) <richwareham.users@sourceforge@net> on Thursday September 19, 2002 @02:56PM (#4291345) Homepage Journal
      The problem is that any NDA which restricts the right of the beta testers to distribute the distribution is in violation of the GPL. If the NDA mentioned doesn't remove the rights of the GPL and the beta-testers just don't re-distribute voluntarily, then the GPL isn't violated.

      The GPL only protects distribution rights for the people you distribute to, it doesn't require that you personally release it publically, only that you can't stop the people you do give it to from doing so.

    • Re:Hardly unusual (Score:3, Interesting)

      by Gleef (86)
      leastsquares writes:

      Many Linux distributions first see light of day as closed betas.

      The fact that it's a "closed beta" is not the issue here.

      For example, the Xandros betas have been available to only a small number of people,

      What Xandros has or hasn't done also isn't the issue here. I don't know any details about what Xandros did, but I remember hearing that they talked to key Debian and FSF people. I would be surprised if they released GPL software under additional restrictions (particularly since an earlier version of their distribution got slammed [lwn.net] for doing the exact same thing back when it was first beta tested by Corel).

      all of whom have signed NDAs.

      That is the issue. It is perfectly legal to release your own code under an NDA, or your distribution of BSD-licensed code. However, the GPL does not permit you to redistribute the software with additional restrictions, so wrapping a distribution of GPL software in an NDA is solidly illegal.

      It should be fairly simple for them to write the NDA containing appropriate holes for the GPL to peek through, something along the lines of "This NDA does not cover the software in this distribution licensed under the GPL, LGPL or any other license that explicitly precludes additional restrictions". This way, you still get a "closed beta", since nobody can redistribute the whole thing, but if people feel the need to redistribute a GPL'ed bit from inside the distribution, they retain the legal right to, as required by the GPL.

      As I understand it, the FSF is merely asking to see the text of the NDA, to ensure that it is worded so as not to violate the GPL.

      As I see it, a closed beta is not a public release, and therefore not violating the GPL in any way.

      The GPL [gnu.org] does not say anything about "public release", it is a license for distribution, and a beta distribution, even a "closed" beta distribution, is still a distribution.

      In these situations, making the full source available would not help anybody

      I disagree, I have found source code helpful in many unexpected situations.

      Your comment here makes me wonder if you understand the situation, the question isn't "is source code helpful", the question is "is UnitedLinux violating the GPL". I'll do a simplified rundown: take Alice, Bob, Carol and Doug. Alice writes a piece of software, and releases it under the GPL. Bob creates a software distribution containing precompiled binaries of many different programs under many different licenses, and sells a copy to Carol. Neither Bob, Carol nor Doug have any interaction with Alice or her legal representatives.

      In order to legally distribute his package to Carol, Bob has accepted the GPL, and must abide by its terms (this is called a contract of adhesion). One of the terms is that he is legally obligated to make the source available to Carol (Section 3). Another is that along with the distribution, he must pass on a copy of the license to Carol, with no additional restrictions (Section 6). This ensures that, if Carol wishes, she can also accept the GPL and give a copy of Alice's software to her friend, Doug.

      If Bob distributes his collection under an NDA, that doesn't change his legal obligations to Alice. It doesn't matter that Carol can get the source from SourceForge, Bob is obligated to make it available to her himself. It doesn't matter that Bob wants to keep the details of his collection under wraps, he is required to give Carol a GPL, unencumbered by the NDA or any other additional restrictions. He can legally use the NDA to cover other parts of his collection, but not Alice's GPLed software.

      If Bob violates these terms, Alice has the legal right to sue, seek injunctions against Bob's distribution of her software, and so forth.

      The current Bob (UnitedLinux) is not necessarily violating the GPL, the FSF is trying to determine if they are or aren't. I assume, given past history, if the FSF determines that UnitedLinux is in violation, they will offer advice on how to do what they want to do without violating the GPL, and not go farther unless UL makes no attempt to fix the situation.

      (1. slower development due to extra hassle,

      Cost of doing business.

      2. most code is available from original sources anyway,

      As described above, it doesn't matter. UnitedLinux has the legal obligation to make all the source code used to produce the GPL software they distribute available to the people they distribute to.

      3. modified code will be in a state of unstable flux

      That's an easy one, the source code to make available is the source used to create the binaries being distributed. If your code is in such "unstable flux" that you don't know what you compiled in order to make the binaries, then you certainly shouldn't be doing a commercial beta distribution.

      At the point of full release, well, that's a different matter.

      No, it isn't. The GPL makes no distinction between distribution to one person, and distribution to the general public.

      Disclaimer: I am not a lawyer, the above should not be construed as legal advice. If you have an NDA to write, I strongly recommend you consult a real lawyer for advice on how to appropriately word it.
  • by stubear (130454) on Thursday September 19, 2002 @02:38PM (#4291167)
    ...I saw all the torches and hayforks. Is this the Frankenstein lynching party or is that one two villages over?
  • Amazing! (Score:5, Insightful)

    by Jason Earl (1894) on Thursday September 19, 2002 @02:42PM (#4291208) Homepage Journal

    RedHat has been handing these guys their hats for years now, and they still don't get it. It's the developers and the systems administrators that get Linux in the door, and likewise it is the developers and systems administrators that end up picking the distribution that gets deployed when the suits finally get the go-ahead. This is actually good news for distributions like SuSE, or Connectivain that if management makes the decision you can bet that they are going with RedHat, because they are perceived as the front-runner.

    SuSE, SCO, Turbo, and Connectiva have to have made this connection by this point. After all, SuSE and SCO have had distributions that were as good or better than RedHat since the earliest days of RedHat's existence. Yet RedHat consistently has grown their market share and nabbed the big customers while the rest have struggled. The reason for RedHat's success is simple, they release their code under the GPL, and they actively court developers and systems administrators. Not that RedHat is neglecting CIOs. I am sure they are schmoozing the heck out of those guys too, but they realize that Freedom is an important selling point for Linux.

    Think about it for a moment. As a developer or systems administrator which distribution would you rather deploy? Would you deply the distribution with FTP access to their emerging beta version or the distribution that requires you to sign an NDA before they will send you the binary-only CD? The choice for anyone that has ever banged his head against some piece of black-box software is obvious. Even CIOs are starting to get this.

  • I find this interesting, because it seems like this is just a temporary violation. They distributed their beta with an NDA, but it is assumed that once they go GA with it, there will be no NDA and the source will be available.

    Yes, releasing a closed-beta seems to be in violation of the GPL, but how else would you do it? If you created some software, and you wanted to just give it to a few select people for evaluation, you couldn't do it under the GPL. Distribution is distribution, and you must allow them to re-distribute it. This seems like a flaw to me. This assumes, of course, that you are planning to "officially" release it at a later date under full compliance of the GPL. Hmm, anyone have an answer to this?

  • Has anyone been able to find a user who has this distribution.
    Perhaps the FSF can get the terms from them
  • by sfraggle (212671) on Thursday September 19, 2002 @02:44PM (#4291227)
    Deep inside the Free Software Foundation's secret underground headquarters:

    BMK: RMS! The GPL software alarm! Someone somewhere is releasing GPL'ed software under a non-GPL compatible NDA!

    RMS: I might have guessed.. my arch nemesis the greedy capitalist Ransom Love, now using the power of his UnitedLinux alliance. Quick, Bradley, to the GNU-mobile!

    ....... several minutes later, outside the UnitedLinux building ....

    RMS: So, Ransom Love, still up to your old tricks eh? And still using names for products that dont properly reflect the GNU project's contribution as well!

    RL: Theres nothing you can do this time, Stallman! I'm releasing this beta and theres nothing you can do to stop me!!

    RMS: Not so fast, Love. You didnt reckon with my MAGIC BEARD!

    RL: OH NO!!!!

    **** ZAP ****

    ....... later, back at the FSF headquarters ....

    BK: Well, RMS, we certainly stopped that evil Ransom Love.

    RMS: Yes Bradley, for the time being the world is safe again from the evil of Proprietory Software. But who knows when software hoarders will attack next?

    Meanwhile, in the ruins of the UnitedLinux HQ..

    RL: It's not over yet! I'll get you next time Stallman, next time!!!!

  • NDAs generally prevent you from talking to people OUTSIDE a beta group about the product. Little prevents you from talking to others in the group about it.

    The GPL guarantees copyleft to the "community" and availability of source to customers. As long as the beta members can get the source are free to share their changes to the source with other members of the beta group, they've maintained these rights, NDA or no. And UL doesn't have to worry about supporting a thousand different takes on a hundred different betas -- or about unfair reviews based on "stolen," partially working prereleases of their distro.

    I've read the GPL a couple times, and have never gotten the perception that it prevented a company from preserving its right to sell a product and not offer Joe Q. Hacker full rights to recompile the source. As long as actual customers have rights to source, and a forum for sharing updates, I think there can be "closed" projects that maintain the GPL.
    • by nuggz (69912) on Thursday September 19, 2002 @02:53PM (#4291321) Homepage
      The GPL gives you the right to distribute the source and binary to anyone YOU choose, and does not allow anyone to restrict you from doing so.

      If the NDA does not permit them to use the GPL redistribution clause, then they were not provided with the software under the terms of the GPL and hence UnitedLinux was distributed illegally, in violation of copyright law.
    • I've read the GPL a couple times, and have never gotten the perception that it prevented a company from preserving its right to sell a product and not offer Joe Q. Hacker full rights to recompile the source.

      If a company reuses GPLed software written by others, there is no such right in the first place, so it cannot be preserved. The GPL is very clear on this:

      "To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights.
      These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.

      For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights."
    • if the NDA force them not to distribute some GPLed software, then it is a violation.

      If the NDA is only related to some proprietary add-on software (like SuSE Yast2), or more generally to the way in which the distribution is assembled, it is not (IMO) a violation. It may be a stupid move, but not illegal.

      This is, I think, why FSF asked UL to disclose the terms of the NDA.

  • by minkeyboodle (217651) on Thursday September 19, 2002 @02:45PM (#4291245)
    I'm amazed at the jump-to-conclusion-ness of the croud here. Read the article, folks! It doesn't say a violation was found (which is what many are assuming in their replies); it mentions that there is a possible violation with the closed-beta NDA. Without seeing the actual NDA, nobody knows if there is a GPL violation.

    I'm not saying there is or isn't a problem here, I'm just saying, "Don't count your chickens before they hatch."
  • Call me a cynic... (Score:4, Insightful)

    by perrin5 (38802) on Thursday September 19, 2002 @02:49PM (#4291286) Homepage
    Look,

    Anyone commenting "Those bastards shouldn't violate the GPL!!!!" need to read the article, and if they have, they need to get their critical thinking caps on and RE-read the article. For all of you who just skim over the comments before making your own (I know you're out there), Here's a brief synopsis:
    our "heroes" (the writers of this rather elitist sounding article) were concerned about the closed beta testing that went on, and asked how they "got away" with it w/o violating the GPL. UL said something non-commital, which the article attempted to paint as evil, and included a letter from the FSF asking to SEE the NDA that beta testers had to sign.

    THAT'S IT!! There is NO PROOF OF ANYTHING. TO my mind, this is just a giant FUD (yep, I said it) to drum up anti-UL sentiment. The UL people didn't say anything bad during the conference call, as far as I can tell, but the tone of the article is set up to riducle and shame the UL project for anything it said out of line. (see the crack about "line-ux"...

    So maybe I'm over-reacting - but on the other hand, just cause you're paranoid, doesn't mean they're not out to get you.

    just my $.02
  • by ebuck (585470)

    Since this is a pre-beta, can the software be considered released?

    If you can consider it released, clearly they are in the wrong, but if the company wants some extra eyes to overlook their bug-laden code, what do they do?

    Can they not release it, yet distribute it to developers they can trust as to not spill the beans to their competition?

    What sort of arrangement must be made to be considered an "inside" developer?

    Perhaps I'm simply not ready to burn UL since I haven't heard any FSF / GNU statements demonizing this action.

    The intro to the article sets the tone for big business bashing, and the allusions to removed executives and emphasis on mis-pronunciation only create a literary atmosphere of distrust.

    Which brings me to my only useful question. Why are we reporting about a "May be" on NewsForge? If we can get a "They violated X" that's real news!
  • You'd think that the likes of Suse, Turbo, SCO, and Conectiva would get the point by now...

    The others, maybe, but SCO is probably hopeless. They're also the ones who introduced per-seat licensing. Also, the fact that, given a chance to choose the Caldera name or the SCO name, they went with SCO, was a very bad sign.

    I thought that UnitedLinux was an interesting concept until I saw SCO was involved - my interest level went way down at that point.
  • So...what actually could fall under the NDA that is not GPLed?

    File locations? Config files? Any code that UL has added on.

    So what if the beta people get gcc, the kernel and bash and redistribute that or get the source code - probably the same from the gnu site.

    Nothing lost to UL. But one should not assume that EVERYTHING on the system is GPL'ed. Perhaps UL has written some uber-cool init scripts that aren't GPL'ed.

    It doesn't sound like UL is even giving them that much leeway though, but it does make for an easy out for UL.
  • Can anybody here tell me what the difference is between the GPL and a EULA? It seems to me that both are very similar. In fact I find it somewhat amusing how people on /. claim EULAs are null and void yet do not realize that if EULAs are null and void that most likely means that the GPL license distributed with an OpenSource app is likely null and void.

    1) You download app and uncompress
    2) The app has an agreement which nobody ever reads (at least the EULA makes you click through it)

    Really what is the difference between the two? It seems to me that they are one and the same. This of course means that neither will stand up in a court of law. AFAIK the GPL has never actually been tested in court, since I believe all cases involving GPL violations have been settled out of court. Can anybody provide any examples of the GPL and/or EULAs being tested and determined to be legally binding in a court of law?

    J
  • by deego (587575) on Thursday September 19, 2002 @03:44PM (#4291829)
    From the FAQ [gnu.org] --->

    Does the GPL allow me to distribute a modified or beta version under a nondisclosure agreement?

    No. The GPL says that anyone who receives a copy of your version from you has the right to redistribute copies (modified or not) of that version. It does not give you permission to distribute the work on any more restrictive basis.

  • by erat (2665) on Thursday September 19, 2002 @04:14PM (#4292166)
    Without seeing UL, without seeing the NDA, without having any evidence whatsoever other than the dent in your chin from your knee jerking upward unexpectedly, most of you already seem to have tried and convicted the UL folks for GPL violations.

    Tell me, what are you going to do if the UL closed beta NDA stated that only the proprietary components of UL are not distributable but the open sourced and GPL'd components are? Pull the usual trick: sit back and pretend you never said anything, then wait a month and start bashing UL as Satan's distro again?

    That's just plain creepy... You let your senseless rage get in the way of reason. You probably don't even know why you hate UL so much other than the fact that you simply WANT to hate it.

    If the UL team violated the GPL, fry 'em. Until I see damning evidence, though, they're innocent until proven guilty.
  • by shren (134692) on Thursday September 19, 2002 @04:15PM (#4292174) Homepage Journal
    United Linux has a GPL piece of software. United Linux offers you that GPLed piece of software. You accept. United Linux says, "Wait. If we give this to you, you can't give it to anybody else." You sign the NDA and accept the copy of United Linux.

    The GPL just says that if you do give it away, then you must give the source too. I don't see anything in the GPL saying that you can't forbid redistribution - it just governs what you must do if you distribute.

    If UL gives you the software with source and binaries, then they have obeyed the GPL. If you sign the NDA, you waive your redistribution rights.

    If you gave out the source after signing the NDA, you're breaking the NDA. If you give out the binaries alone after signing the NDA, you're breaking the NDA and the GPL at the same time.

    Unless I'm reading the GPL wrong, you could GPL photoshop and sell customers both the source and the binaries, then require that they not redistribute the source. If you waive your distribution rights, then it doesn't matter if it's GPLed or not - you're forbidden to redistribute it.

    It'd be interesting to see a license that combined aspects of the GPL - in that you must distribute the source - and some kind of micropayment screme, where your software or any software based on it requires n cents per day to run. Like, you can give it away all you want, but you can't use it without paying all of the authors of the software.

    I write, say, a graphics library, and license it under this model. I give out the code of my graphics library, and in addition my graphic library requires a payment of one cent per day, which is managed by a central micropayment program running on each machine.

    You can base code off of my library. You can charge a cent per day for your new version of the library. However, you can't take away my cent. Alternatively, you can write code and not charge anything - but I'll still get my cent, as you accept my license when using the code which says I get a cent.

    That variant would be interesting. The source is open and free, but running the source costs money. Developers would be paid, but you'd get the advantages of seeing the inside and even the ability to redistribute different versions.

    I'm sure the open-source commies are ready to cruicify me, but you could have a lot of pull to get people who sell software to open thier source under this model. They'd be releasing open code and making money at the same time. It's no more or less circumventable than normal software distribution, but it has open code.

  • The Real Question (Score:3, Insightful)

    by Quixadhal (45024) on Thursday September 19, 2002 @05:22PM (#4292794) Homepage Journal
    Ok, let's see. "United" Linux wants to make a single unified base for linux distributions, what once upon a time was called a "standard". Good for them!

    Since too many people have different ideas about what the "right" way is, and many of them have the technical ability to say "Fine! I'll go build my own linux distro, with blackjack, and hookers!"... they decided to make a corporate entity and just say "I am the law!" instead of continuing to argue with everyone else. Ummm, ok.

    Now, they decide that all that GPL stuff, which each of the members has -- at one time or another -- spoken lots of pretty poetic phrases of support, and did much clapping of hands for... is not really as important as making their new business model/standards base work. Sooo, they ignore the SPIRIT of the GPL, even if they might or might not be violating the letter of the law. Ewwwww.

    Let me ask this question of the United Linux folks... what are you afraid of? The traditional reason people DON'T embrace the GPL is fear that if their code (and thus algorithms) became public knowledge, others might do it better than they have, and thus steal away their market share. The assumption there is that service means nothing, and that the original developers would rather sit back and drink beer than continue to advance and evolve their product.

    Why should I buy into the "United Linux" front? What do they do for me? It sounds to me like they want to be RedHat, but NONE of them individually have the talent, ability, or balls to make a better Redhat than RedHat. Don't get me wrong, I don't like RedHat... I actually like SuSE -- but that's why I don't want UL. I don't want SuSE, SCO, and all the others to become the next RedHat. We don't need it. We need cooperation, not more "our way or the highway" attitude.

    Grow up people. If you don't like the GPL, then go rewrite things for yourself and call it something other than linux... call it ulix, call it moneyix, but play nice or go away.

A penny saved is a penny to squander. -- Ambrose Bierce

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