GPL To Be Tested In Court? 380
KevinReichard to plug the interview on his site with Eben Moglen. "The general counsel to the Free Software Foundation tells us that the GPL may be tested as early as this summer, as the FSF debates whether to sue a major software house over violations to the GPL. The lawsuit, if it takes place, would be the first major test of the GPL in court. Obviously the legal status of the GPL is a prime issue to the Open Source and Free Software communities. "
Re:That wasn't the point (Score:2)
Re:GPL, EULA, Shrink Wrap garbage and UCITA??? (Score:2)
Maybe they could. IANAL but maybe it's possible. If it were me calling the shots though I wouldn't do it. I wouldn't use a horrible law to protect even my own interests. It would be too much like PETA's recent idiocy, where they sue somebody for putting up a peta site that mocks them, while at the same time mocking mcdonalds with a similar site. To use the law to help us, and then to turn around and attack it (as I hope people will continue to do) is kinda low.
That wasn't the point (Score:2)
the GPL on a moral basis, which he has no
right to.
It is the original authors choice of license,
which others must respect.
However.. this doesn't mean that I'm saying that
the GPL is enforceable.
I'm arguing the morals behind the license, not
the legality.
Personally I feel it would be a tragedy if
all GPL-software suddenly became public domain,
even though I think that if the GPL doesn't hold
up, it would be illegal to distribute GPL-software at all.
But IANAL, so I won't argue about the legal side,
only the intention.
Re:GPL Does Not Apply To Authors (Score:2)
Nobody disputes the author's right to redistribution under whatever terms he wants, as often as he wants.... but he cannot revoke his initial GPL on his code.
Of course, he can simply take it off his project website.. though nothing would prevent anyone with GPL'd versions from continuing.
Re:Irony... (Score:2)
Really!?! Though I know plenty of people who use Napster, I don't know even one who uses it legally in the sense that they aren't doing anything illegal with it (as opposed to the sense that, since it's free, merely using it is legal).
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Re:3 options (Score:2)
While this doesn't remove the actual rights from the author, it does invalidate some of them for that particular licence.
Basically, who the hell knows what'll happen..
Re:Irony... (Score:2)
No, it's not OK to send Lars' music around the 'Net - but it's OK for Napster to facilitate it. Napster's not the one trading Metallica MP3s, Napster's users are - and without Napster's (official) knowledge or approval. Napster's copyright policy is here [napster.com].
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Re:GPL Does Not Apply To Authors (Score:2)
No, he cannot revoke the original GPL.
He can, however, incorporate in into a private codebase without any concerns, particularly without infecting the rest of the codebase.
--Dan
Touche (Score:2)
An interesting sidenote.. (Score:2)
Where this gets interesting is in the area of DVDs. The movie industry expects consumers to use licensed players to play those movies. However, there is no contract of any sort with the consumer stating that they are required to do so. So, if the worst happens, and the GPL is struck down, we at least know that the DVD industry is way out of line by trying to enforce invisible contracts..
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Ski-U-Mah!
Stop the MPAA [opendvd.org]
Re:Only ironic to the misinformed (Score:2)
And even if it shouldn't, it's too late now.
This seems to sum up the intellectual defense of every would-be Napster defender.
If you distribute electrons AT ALL, they WILL be copied. You might as well change your business model to accomodate that.
Then we could just en-masse trade any software we like Napster style and then just claim that it's too late to do anything about it. There's nothing really wrong with that since information wants to be free. While you're at it come download my extensive collection of OCR scanned books. Remember, there's nothing wrong since it's just information.
You see, music copyrights are about money and control. The GPL is about neither of these.
This has got to be the most ignorant statement I've heard all day. It's still early, though.
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Re:3 options (Score:2)
Why so long? (Score:2)
Does anyone here honestly think the GPL won't stand up in court, though???
Re:Who? (Score:2)
Free Software and the Death of Copyright (Score:2)
First Monday had an excellent article by Eben Moglen, FSF's general counsel who was interviewed in the Linux Planet article mentioned above. It's called " Anarchism Triumphant: Free Software and the Death of Copyright [columbia.edu]". It's written a bit in lawyerese, but it's reassuring to see the guy responsible for litigating all this actually has a clue. It discusses why the some of the arguments for and against IP are invalid -- even describing adherents as "IPdroids" and "Econodwarfs" ;) A quote from the article:
Section 2(b) of the GPL is sometimes called "restrictive," but its intention is liberating. It creates a commons, to which anyone may add but from which no one may subtract. Because of 2(b), each contributor to a GPL'd project is assured that she, and all other users, will be able to run, modify and redistribute the program indefinitely, that source code will always be available, and that, unlike commercial software, its longevity cannot be limited by the contingencies of the marketplace or the decisions of future developers. This "inheritance" of the GPL has sometimes been criticized as an example of the free software movement's anti-commercial bias. Nothing could be further from the truth. The effect of 2(b) is to make commercial distributors of free software better competitors against proprietary software businesses.
He then goes on to quote the Halloween memo! Hilarious.
Re:Test case (Score:2)
Let's not assume that the "major software house" is our enemy. (I can see you didn't) It is not unheard of for the ACLU, for example, to deliberately bring a 'friendly test case' with the cooperation of both plaintiff and defendant when it wants to establish a point of law or strike down an unconstitutional law.
This is often necessary because the ACLU does not have 'standing' (direct involvement) and the courts are set up to administer justice in actual cases, not to pontificate on philosophical issues.
However, that does not mean that the case will not be vigorously argued by both sides. A test case is of little use if it doesn't
The End of the World as we Know It? (Score:2)
Missing the point (Score:5)
Under copyright law, by default you can NOT redistribute a copyrighted piece of information. And all information is copyrighted for the first hundred years or so after it is created. Those little bloopers on videotapes are totally unnecessary (except possibly that they remove the defense through ignorance): you have no rights to redistribute BY DEFAULT.
However, you can redistribute a copyrighted piece of information if you have a license to do so. The GPL gives you a license to do this. If the GPL is ruled invalid (which I regard as highly improbable) then the situation reverts to normal: that is, no redistribution allowed.
The beauty of the GPL is that, unlike most licenses, it places no restrictions on what you can do except redistribute. And this is where copyright law is most clearly on the side of the GPL. In fact, redistribution is the only thing really covered under copyright law. Standard software licenses try to use copyright's restriction on redistribution to force a lot of other things down your throat (e.g. no reverse engineering) -- as such, they might be challenged on the grounds that they are unreasonable. But the core principle of copyright law is that an author has the right to restrict distribution of his work. As such, I just can't see a successful challenge to the core of the GPL.
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Re:BSD License vs. GPL (Score:2)
While the GPL requires it to remain open and be provided with source. You can charge to distribute it on physical media(CD, DVD, floppy, etc), but it must be available for download.
Aside from the downloading part, this is correct. One example of a company that is affected by this restriction is Apple: they'd love to include gnutar as part of Mac OS X, but if it's released as part of the operating system (as opposed to just being bundled as an extra utility), they'd have to release the whole OS as GPL, which they don't want to do. So, Apple Legal says no GNU code in the main OS, because of the GPL.
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Re:Only ironic to the misinformed (Score:2)
This literally "does not follow" from anything. It is irrelevant even if true.
I don't think you know what a non sequitur is, nor how to spell it.
My "argument" was not ad hominem because it's not an argument.
Your "argument" was that 1. The law shouldn't be respected because it can't protect against illegal use of information, and 2. The law regarding the GPL should be respected by others apparently since it supports your beliefs.
This is not only ad hominem, but could be credibly described as hypocritical by some people.
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notion or privity (Score:2)
Woah. Seems to me that there are a lot of closed software interests that would prefer not to face such an argument, even if it ultimately doesn't hold up.
my $0.02
Jon
Figures... (Score:2)
I don't recall seeing anything about that on my usual news channels, and it warrants a story. And other news readers have offered the exact same functionality for years. Over 5 years ago, a friend gave me a perl script that snarfed uuencoded files off of Usenet (Excellent for snarfing that live goat porn.) Will the RIAA sue Tom Christensen next, because perl can be used to decode Usenet binaries?
Re:Does it mean anything? (Score:2)
Not at all. The 1980 Software Copyright Act specifically says what you can and cannot do with copyrighted software, license or no. Among the things you cannot do are distribute copies or derivative works without a license.
Steven E. Ehrbar
Re:If legal test fails,then can GPL be enforced .. (Score:2)
It's only racketeering if what you are proposing to do is illegal. To voluntarily boycott is perfectly legal. This tactic has been used numerous times against ISPs that for failures of ommission -- to wit failing to take vigorous steps against spammers.
Several times ISPS such as UUNET have engaged in some legal chest thumping, only to crawl back with their tail between their legs once the IDP deadline rolled up.
I see Geeks all over the net picketing outside the head offices of backbone providers, because they've been
thrown off for being anarchistic disruptors.
That would be kind of like firing all the auto mechanics because they tend to get greasy.
Re:Download _not_ required (Score:2)
The GPL is, like, you know, written by some rather intelligent and jaded individuals.
Re:GPL Does Not Apply To Authors (Score:2)
The difference with Ghostscript is that there the author explicitly makes it a condition of accepting patches into the main tree that the patches' authors must sign over the right to use those patches in the closed-source commercial version, an if the patches' authors wanted the patch to only go into a fork of the gpled version, then there's nothing Alladin could do about it. This is not an example of a general doctrine, and others who don't negotiate for such permission cannot unilaterally and retroactively claim it.
Re:Does it mean anything? (Score:2)
Incorrect. The 1980 Software Copyright Act specifically gives you that right.
Steven E. Ehrbar
Dummy offender (Score:2)
* SuperMake, closed derivate of Gnu Make, now released! Get your copy for only 5 bucks! *
Re:GPL Does Not Apply To Authors (Score:2)
What's key, though, is if you GPL'd and released your code(legally) first, and then later your company or some company you started working for wanted to integrate your code in a manner that caused even you to lose your rights over the code, that'd actually be doable. You can renounce your claim over your own code if you like--the GPL doesn't make you, though.
However, even if you have no rights over your code, everyone else who you GPL'd that code to does.
This isn't too complex of a concept, I don't think?
--Dan
Re:Privy to contract (Score:2)
Simple. The GPL Adds to your normal rights by giving you the option to do certain things with the source code, whereas the other agreement seeks to limit the rights you might reasonably expect to have when you buy something.
The word 'option' is important because if you don't like the GPL, you can decide not to exercise your options under the GPL, you just get the software under the law's 'default copyright settings'- ie no rights to make derivative works, etc.
- Andy R.
Re:Irony... (Score:2)
I personally have seen at least one post where it was explicitly said that copyright was immoral because it restricted free speech, but GPL should be upheld as a matter of human rghts.
Personally, I don't buy your claim that they are unrelated. Either you believe that people have the right to some say on what is done with their intellectual work (copyright, GPL, whatever) or you don't and people can do whatever they want, closed source, open source, free, paid, whatever with your work if you release it to even one other person. Personally, I support intellectual property rights, but if you don't, expect to hack and be hacked, don't claim that the limits you want to put on your work are moral, but someone else's aren't.
-Kahuna Burger
Re:Problem? (Score:2)
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Best Strategy (Score:3)
Insurance companies and banks have more or less perfected this strategy: go after someone who can't possibly win so that you establish legal precedent. Judges are hesitant to overturn an existing precedent. It is this strategy which has established the lopsided world in which we live, in which the effect of the law is slanted toward those who have money. While the law is meant to be fair; the reality of "money equals power" means that most of the time the law rules in favor of the wealthy.
An example can illustrate how lopsided things are: when was the last time that you heard of an employee writing an employment contract and getting a company to sign it? If both employees and employers were in equal bargaining positions half of all employment contracts would be written by the employees. But in fact, all of the employment contracts of which I am aware are dictated by the employers and are non negotiable; "Sign this or don't work". Such lopsided conditions exist because being in the right in a court of law hardly matters; what counts is who wins and who loses - why they lose doesn't matter.
Lawyers are people who simply don't understand right and wrong: that is why everything has to be written down for them.
If we are out to establish a legal precedent for the GPL the best strategy is crush a cockroach, not punch an elephant.
Re:new GPLs no problem (Score:2)
This is correct in substance (good work!), but I feel I should clarify the details, because they are not all good. First let's look at the relevant section of the license:
8.
9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
Firstly, an 'unspecified' GPL opens up the software to the loopholes in all versions of GPL. Why was this done? Probably as a protection against one or more versions being struck down or interpreted to limit 'openness'. It is not entirely clear whether a free license may be revoked (invalidated for an individual product) by the author, since 'valuable consideration' (value recieved for value granted) is not specified, aside fraom a general intent of helping Free Software. Under general contract law, a contract with no valuable consideration may be later voided at the choice of the granting party - or sometimes either party. 'Goodwill' may or may not be 'valuable consideration' depending on the circumstances (usually, "did the party reasonably expect direct presonal gain as a result of this goodwill" - getting "laid or paid", not warm fuzzies)
Secondly, the license does not say 'the latest version' of GPL, but 'any later version' according to the user's choice - and the most likely reason for creating a v4 or v3.1 is to address loopholes in v3. Let us not forget that a corporation could also be a 'user' of the source.
The general wording in GPL encourages propagation of loopholes. Why? Because copyleft is itself a sort of 'loophole' in current 'normal' copyright use. Open software is best served by granting many rights and secondarily served by invoking a few carefull chosen restrictions. I think the FSF chose wisely in this case, but it was a devil's choice between keeping the primary source open (no matter what happens in court) and keeping all derivatives open forever.
This is just one reason (of several) why little in the GPL is clearly "no problem". Compromises were made. Good ones, but blind ones, in the absense of court rulings. A court ruling could be very specific to the case, or could begin to give us the information we need to start crafting a better license (but no single case will probably suffice, certainly not the first. Judges can be wary of untrodden turf -- if they see it as such -- most judges *don't* want to make precedent.)
Re:Why so long? (Score:2)
If lawyers think that a piece of legal text is invalid, they challenge it. If they think it's valid, they advise their clients to comply with it. The reason the FSF hasn't gone to court yet is because most lawyers think it's probably valid, and those who think otherwise haven't been willing to bet on it.
Re:Does it mean anything? (Score:2)
This isn't as much of a problem as you might think. Most of the software that's released under the GPL includes the clause that the software may be licensed under version whatever of the GPL or, at the licencee's option, any later version. That means that if problems are found in the GPL in a way that makes it invalid, the software should revert to standard copyright (i.e. copying forbidden). Then the FSF only has to release a new version of the GPL that fixes whatever was wrong before and everything is OK again.
Does it mean anything? (Score:2)
Now there's a whole load of courts in the US alone, and what one of them says is not necessarily picked up by others. Plus, for any given loophole discovered by the court, a patch could be developed. If the court declares the whole concept of GPL invalid, it's another matter. But how on earth can it do that?
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Re:If legal test fails,then can GPL be enforced .. (Score:2)
And have you stopped beating your wife? You are begging the question.
The GPL is of course NOT COMPLETELY FREE otherwise it would be public domain. It restricts the freedom of the recipient in so far as necessary to enforce the golden rule -- do unto others as I have done to you, at least as far as this particular piece of software is concerned.
In fact, any software which is "licensed" is by your definition "not completely free". BSD is not completely free. Your freedom is restricted in that you can't use the name of the developers to promote your product and you agree not to sue the author if the software has bugs.
GPL functions in essense as an agreement between the author and people who want to make derivative works. If you take something of value from somebody, under the terms of an agreement, then deliberately fail to fulfill your part of the agreement, then most people would consider that theft.
There is a kind of self referential loop in the logic of GPL. The reasoning I described assumes the existence of proprietary rights in software. However the GNU-ish position is that there should be no proprietary (in the sense of restricted and secret) software. They are essentially using what from their position is a bug in the legal system to prevent future thefts -- not from themselves, but from indirect recipients of software who have a right to source code. This position, while an apprent contradition, is morally consistent because it "takes away" a "right" which the recipient in actuality does not actually have to begin with.
The people who take a strong ideological position favoring BSD style licenses over GPL seem to take a third position, which is that proprietary software is kind of like cheating on your wife -- it's wrong, but its only a matter between the parties directly involved. In this position, GPL, because it takes the freedom to make proprietary forks away, is in itself a form of theft.
It is important to realize that people can and do use licenses without endorising the ideologies of the license's creators and/or backers (who themselves don't necessarily have the same position; I doubt the CA board of regents has a moral position against GPL). Companies that can and do release proprietary software also release GPL'd software because GPL provides a safer way to place the software in the public's hands than "public domain". In that case, violation of GPL is a violation of the terms in which they let you use their IP, and is perfectly consistent.
wrong (Score:2)
3 options (Score:2)
2) GPL is upheld. Life returns to normal but with a little added secure feeling about the GPL.
3) GPL is NOT upheld. Then what? Does RMS have a contingency plan? Does all released GPL'd code revert to the public domain? To the BSD license? Does the FSF write a new GPL (GNGPL "GPL2 is Not GPL")?
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Uh oh... (Score:2)
Although i see no reason why the GPL isn't as legal as a click-thru or a shrink wrap license, i believe a fair few EULA's have been laughed out of court in the past. The American legal system has always amazed me, i just hope this time it doesn't do anything daft.
Re:GPL Does Not Apply To Authors (Score:2)
If you write code on your own time and have no silly contracts with your company. You can publish it under GPL and still use it for any close source version as well. Since you own the code you can do what you want. But once you release that code under GPL, you can't go back and tell those that have it, that it is nolonger GPL and to pay a royalty. The contract is already made, and must be abide by you. If you later want to take your code and make it commercial, it is perfectly fine to do so. But what is out in GPL is always in GPL if not neccessarily mantained by you.
If the company you work for releases the code you write under GPL (under company dollars), the company can later release it under their own license.
What can't be done, is if you incorporate someone's patches and then use that update for your non-GPL version. You can't do that unless you get permission from the owner (better word than author) to use it in your closed-source version. So when someone gives a patch, that is like a new contract, and you have to abide by it as well as those that use your code.
This thread makes more sense if you replace the word "Author" with "Owner".
Steven Rostedt
Re:Only ironic to the misinformed (Score:2)
Hey now. You're the one who started that.
No, the law should be not-respected because it is WRONG.
Opinion.
Plus, as an added bonus, it is unenforceable.
Irrelevant.
Example ... pollution futures ... environmentalists ... buy ... permits
How is it that you get from ignoring laws that you don't like to environmentalists doing something which is completely legal in order to stifle activities that they don't like? I don't see the connection at all.
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BSD License vs. GPL (Score:3)
While the GPL requires it to remain open and be provided with source. You can charge to distribute it on physical media(CD, DVD, floppy, etc), but it must be available for download.
As broadband becomes more prevalent the requirement that it be available for download could be the most constraining to most companies. Most people still get their "free" OS via physical media such as a CD. That preserves a revenue stream for those companies. However if you can download and make your own cd in less than an hour, why drive to the store to buy it?
The GPL is a good thing, but whether or not it stands up to court is entirely another. The GPL is a license that you don't have to physically sign. If it loses on that basis, online privacy may still win in the long run, at the expense of "free" software.
I use "free" in brackets to represent free as in freedom
Re:microsoft proprietary linux? (Score:4)
Re:Only ironic to the misinformed (Score:2)
The GPL isn't about control? Hmm. I see more control inherent in the GPL vs. the BSD licence.
On another note...
I would say music copyrights aren't about money, they're about economics. It's a fundamental argument of scarcity: there is a limited amount of skill & talent in the world to produce good music/books/software, so it should be governed by economic means. That implies a marketplace with sound notions of property.
We need to re-think IP law in terms of accepting the reality of easy copying while guaranteeing that the free market can continue to function -- i.e. an artist can receive guaranteed remuneration for their work if he or she so chooses. Encryption is probably the only option here.
As for referring to all intellectual works as "data", yes, that's fundamentally its nature, all music/software is really just bits, but you're removing it from context. Anything removed from its context is inherently worthless or meaningless. It's not just data, it's data arranged in a specific configuration that is valuable to people. It also so happens that not too many people can configure data as well as others, hence we can (and should) pay money for it.
IP law needs to be reformed, not removed.
Test case (Score:3)
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If legal test fails,then can GPL be enforced ... (Score:3)
Here is the most interesting quote:
Even so, copyleft no doubt carries some moral force in the on-line community. It therefore serves as an example of a non-binding, informal norm in cyberspace.
Is it feasible for the online community to self organize in such a way to effectively enforce its norms through extra-legal means? Would the community have enough clout in the software world, using a combination of more suasion, voluntary boycotting (including e-mail and packet filtering), and contracting/recruiting hassles, to outweight the benefits of stealing?
I for one would not work for a company that misused GPL'd code, nor would I contract with them; not because I'm particularly a GPL fanatic, but because it shows bad faith,and a willingness to freeload off the work of others.
Re:GPL? (Score:2)
That's the whole point of the GPL: it says not to do anything bad. You see, if the software is in the public domain, then anyone can use it, modify it, repackage it &c. Were Linux PD, M$ could release change the source in a few places, release M$ Linux and charge $100 for it, all while ensuring that their proprietary changes break ordinary Linux kernels. suits would love this: `M$ Linux--see, it has to be better than that weird RodHut, um RidHot, um RedHat thingy!'
The GPL can be a nuisance sometimes, it's true. But so can anything else. The GPL serves its purpose admirably well: to ensure that ones code remains free and unfettered. It does not exist to make programmer's lives easier. The BSD makes a programmer's life easier, but it does not preserve the freedom of the software-as-a-whole (obviously the original software remains free). One chooses the license which one wants.
Re:microsoft proprietary linux? (Score:2)
Which is why it is important to use the or higher when you specify what version of the GPL you are releasing under. Otherwise you would legally be obligated to seek the permission of all contributors before you could start pedaling it under version 3.0 or whatever.
OTOH, that or higher worries me somewhat. Who's to say what GPL 9.3 will say?
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$20 says KDE is involved (Score:2)
It certainly fits with Alan Cox's recent comments on linux-kernel [deja.com].
The GPL itself addresses this question (Score:2)
The GPL states (section 5):
The first sentence seems to be saying that the GPL is not a contract, and the rest says "So what? You still have to follow the rules."
If this argument made by the GPL is found invalid, then it still seems to be true that someone who wants to copy or modify GPLed code does not have the permission of the copyright holder to make such modification. So if the GPL is invalid, that would mean that it's not legal to copy or modify GPL code at all, not (as fantasized by some GPL opponents) that GPLed code would become public domain.
It'll probably lose if it goes to court (Score:2)
Simply for the reason that, as it says in the article, it'll require some kind of changes to the existing laws in place to deal with either copyright or contracts. I can't see that this is going to help the GPL's case any - it's likely that a judge will go for the soft option and rule it invalid.
Of course this all depends on the exact circumstances of the case, which are being kept under wraps at the moment, and what happens if it goes to court. But the FSF will most likely try to avoid court altogether - since at present the GPL's legality is ambiguous a large portion of its effectiveness comes from its "moral" force, something that will mean less if the GPL is ruled invalid.
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Jon E. Erikson
Re:GPL Does Not Apply To Authors (Score:2)
Still, authors can ALWAYS move their own code into private distribution.
--Dan
GPL enforcement (Score:2)
Re:Irony... (Score:2)
Not to be picky but hasn't the RIAA or whoever introduced evidence that Napster's entire business plan was based on people using its software to get music illegally? And that they adjusted some protocols (logins etc) to apeal more to that purpose? If we're talking ethics and not just law here, I consider that more significant than a "wink wink, nudge nudge" copyright policy. Napster isn't just a "tool" its a venture funded company with a plan.
Digression: I once had a catalogue of "everyone is out to get you but our books and tools will help you get them first" kinda urban commando stuff. The bit I will always remember from it is the "executive letter opener" and "executive ice scraper." The ad copy for the "letter opener" drooled over the sharp edge you could put on them and the fact that they wouldn't show up at all on metal detectors. Then for the ice scraper, it talked about how "we don't know of any law against carrying an ice scraper - and this one is made of the same high quality material as the Executive letter opener." And just in case no one got the hint, it goes on to say "WARNING! Do not ever hit anyone with the Executive Ice Scraper! It will cause an extremely nasty gash requiring up to 17 stitches to close!"
Far as I'm concerned, Napster is just an Executive Ice Scraper. Legally they may get off scot free, but if we're talking "bad and good" please don't insult my inteligence by pretending its just a neutral tool that some people have unexpectedly chosen to use for piracy.
-Kahuna Burger
Re:3 options (Score:5)
If seems to me that if some part(s) of the GNU GPL is contradicted on court, that will NOT mean that everyone if suddenly free to do what they like with GPL code. (see the small part of the GNU GPL at the end of my post)
If however the GPL is somehow rejected in whole (I don't see how though) then it might be an entirely different story.
"If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."
Re:Missing the point (Score:2)
Wrong, sorry. I still have permission from the author to redistribute the software.
This case will not be about the right of the author to grant permission to users to redistribute his work. That one's a no brainer. I rather suspect that it will be about some vague or controversial clause. Like linking a GPL library to a non-GPL program, or whether the GPL applies to third parties, or whether the GPL is a contract or a permission statement, etc.
?? (Score:2)
Re:Irony... (Score:2)
IANAL, but a friend of mine is a law student. Now let's get on with it.
I think that the issue is not the direct terms and obligations for you when you accept the GPL and use GPL software that others have written. Those terms are merely additional rights as you say, given under certain circumstances.
What is more troublesome and is the big legal question is the whole relicensing system - when you have made changes to the software and want to give it away to a third party, is that party obliged to accept the GPL because you had to accept the GPL to recieve the code in the first place? The GPL clearly says so, but it may not be so simple in the eyes of the law.
"Contract inheritance" isn't something that is easily taken upon. Remember first sale on books: Although the author always has and always will have the copyright on the book, issuing some sort of contract inside the book cover saying that "by bying this book you agree to never resell it for less than [insert price]" was deemed illegal. Issuing a form of software contract (including the GPL), restricting further transfer in the means of keeping that license applied to the product and it's relicensing for ever may be very, very close to this.
Re:Only ironic to the misinformed (Score:2)
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Re:expectation of zero profits?? (Score:2)
-russ
Re:Why so long? (Score:2)
You can change the GPL all you want. You can then distribute your own software (that you have copyright on) under your MyGPL.
What you cannot do is change it and claim that your version is the license under which the software was distributed.
IANAL.
That "small part" doesn't apply to this case (Score:3)
Company A gives Company B some code C under an NDA. B puts C into software S under the GPL and releases it. A sues B to make them stop releasing the source code. If the court agrees with A, the your snippet says "A can't stop releasing just the source code, they have to stop releasing EVERYTHING".
But if the court rules against some portion of the GPL ITSELF, then the meaning "satisfy...your obligations under this License" will change depending on what part was ruled against. In other words that snippet may not keep GPL'd code safe in the event of a negative court ruling.
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Re:Download _not_ required (Score:2)
Three buts:
1) If the GPL is not a contract, then can a permission be tied to a condition? Or even more esoteric, does one have to agree to a permission?
2) Linking to a library is not derivation under copyright law. Yet the FSF claims that it is.
3) Copyright law gives me a couple of exceptions that allow me to redistribute parts of copyrighted works under special circumstances.
Re:Does it mean anything? (Score:2)
Unless of course the court decides that provisions of GPL that allow you to make copies remain intact, while nullifying your obligations. I however don't believe it can be done.
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Re:Problem? (Score:2)
This is actually my only real gripe about the GPL; it screws with the end user by not allowing all the software on his system to use common libraries if the user chooses to use non-GPL software. But if that's not an issue, cheers.
claim that the very action of running software is actually 'copying' it into RAM
Of course that's just silly. If they want to get picky about that then it's easy enough to credibly claim that it's the kernel that does the copying when client software requests a library service. Besides, the GPL specifically disclaims the issue of running software.
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Re:The End of the World as we Know It? (Score:2)
This is conceptually identical to "Anarchy is the most free of all forms of government." While it is superficially true, in practice, anarchy almost always leads to totalitarianism as the strongest and most ruthless take control of the situation. Putting all your source code into the public domain means that corporations will, effectively, take it away from you.
expectation of zero profits?? (Score:2)
Oh, Redhat has an expectation of zero profits? Not at all. They expect that externalities of the freedom of the GPL will result in large profits. If someone attacks the freedom of GPL'ed software, they attack Redhat's profits directly.
-russ
Does the GPL constitute a contract? (Score:2)
I think the important issue is that the author of the GPL'ed software always owns the copyright to her work (unless she gives the copyright away or dies). The GPL is a means by which the author of the software effectively relaxes the copyright on her code and gives up some of her statutory rights to the software. So although redistributing GPL'ed code under a non-GPL license doesn't seem to constitute a breach of contract, it is more than likely a breach of copyright.
Legally speaking, what I have said (or what anyone else has said with regard to the GPL) may be wrong - the legal position of the GPL will only be clarified if and when a case gets to court.
Re:Perhaps now... (Score:2)
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What IP is good for. (Score:2)
Sure, intellectual property law is all about economics, but I don't think it addresses skill and talent in a meaningful way. It's all about the product: encouraging production of intellectual property.
The principle is that you will produce far more copyrightable works and patentable inventions if you allow them to be copyrighted and patented. In addition, without such protection, there's a lot more secret, proprietary, and contractually limited ideas and inventions out there. I believe this turns out to be a good thing, especially in the long run. It promotes the progress of science and useful arts, etc.
However, the law has become increasingly more oriented toward protecting financial interests at the expense of the broader public interest, and so I agree with your call for IP reform.
However, I note that the strong IP protection that the US has afforded is a major reason that we lead the world in scientific, creative, and information endeavors. It's simply so much more profitable to produce and own intellectual property which can be sold around the world than to manufacture widgets. I would even say that the business interests behind modern national and international IP law have delivered not just huge profits for themselves, but have in fact enabled the new information economy.
Re:no (Score:2)
In order for a contract to be a valid contract, both parties must accept the specific contract. Usually this acceptance is made by each party signing on the dotted line, or shaking hands, or saying "Yes, I Agree".
But in the case of the GPL we have a case where the user does not need to indicate any acceptance, and indeed, is not asked to. Merely saying "if you distribute then you indicate agreement" is just not good enough.
Furthermore, there is no specific contract. There is only a general contract. Even if I agree to the GPL "contract", the original author sure as hell hasn't, because he has no idea I even have his software! Contracts are always two-sided. That's why there must be consideration. In the case of the GPL-as-contract, we have only one side unilaterally setting terms to parties unknown, unnamed and unnumbered. If you go to a business of some kind and ask "does John Smith have a contract with you?", they will be able to definitively answer yes or no. But if you ask that of Richard Stallman, he will have no clue who John Smith is, let alone if he has agreed to the terms of the GPL.
Re:BSD License vs. GPL (Score:3)
I drove to the store to buy Red Hat Linux. Here's why (and here's their business model):
- Even though I have a burner, some drives won't read a burned disc. I like having the CD's instead of having to install over FTP for those computers.
- I like the access to their priority.redhat.com address.
- If anything goes wrong, and I can't fix it (unlikely) there's always tech support.
- I like the bumper sticker and "Powered by Red Hat" sticker.
And what's this about "online privacy"? Does that excuse not following the agreed restrictions of the GPL? You have a right to use the software without agreeing to the GPL (IANAL) but not to redistribute, modify, etc. without agreeing to it. That's how it's set up. They're saying that if you want to redistribute, modify, etc. then you must agree to this license - because nothing else gives you a right to do that.Download _not_ required (Score:2)
This, I believe, is incorrect. I am pretty sure your obligation is to make the source available for a nominal fee, eg, the cost of the media involved. You do not have to make the source available for download, just available to whoever wants it (especially those that have binaries of the code - and your obligation might stop here).
The only way I could see the GPL being threatened is if someone argues that it infringes on the rights of the user / developer of derivative works (although, that would be a stretch, for sure, but American courts have thrown away common sense in the past, reference discussions on drug laws..)
Kudos!
Re:BSD License vs. GPL (Score:3)
Actually... (Score:2)
As for the rest of your argument, yes, that is correct.
I ANAL.
Brought to you buy non-lawyers in search of better acronyms.
GPL, EULA, Shrink Wrap garbage and UCITA??? (Score:3)
I am not a lawyer, however I cannot find any reason why we cannot use a bad law to our advantage (I know this is slightly off topic, but it makes some sense to me)
Jason
Re:Actually... (Score:2)
MS sold me the box. I own the box (although I do not own the copyright to the software). I also own the media the software is on. The EULA is saying "By executing rights that you have regardless of this license, you agree to the license."
The GPL, on the other hand, says, "By executing rights that you do not have without agreeing to this licence, you agree to the license." If a person distributes GPLed software without agreeing to the GPL, then nothing has granted them the right to distribute. And by default under copyright law, this is illegal. So, if you 'violate' the GPL, you are guilty of one of two things:
1) You broke a contract (the GPL) which you agreed to. You are busted.
or
2) You broke copyright law by distributing/modifying copyrighted material without the permission of the copyright holder (you don't have permission since you didn't agree to the GPL). You are busted.
Also, (IANAL) if you break a contract, then the other side has the option of denying you all of you rights under the contract and nullifying the contract, after collecting damages resulting from the violation. So, if you do #1 (which could be hard to prove that you did somewhere agree to it), the FSF could screw you under contract law, and then have another go under copyright law.
The GPL is really quite well written. There are a few things that are a bit vague, but all of the important stuff is clearly spelt out, with all of the bases covered.
Irony... (Score:5)
Of course, I expect that most GPL programmers wouldn't copy Lars' music in this way because they know how it'd feel. I know I wouldn't.
That being said, I am not a lawyer (but I play one on TV) but I find it difficult to believe that the GPL wouldn't be solid. As it only grants you rights you don't have under current law, if you don't agree to the obligations set forth in the GPL, you are still morally bound by the more restrictive requirements of Copyright law. You can still use the code for your own use, but if you distribute your changes, you're opening yourself up for a copyright lawsuit. The GPL is just a nice convention for saying "Play nice and we won't sue you for distributing derivative works." My idea of how copyright works may be too simplistic though (As I said, IANALBIPOOTV.)
Spirit of the Law (Score:2)
It's a case of everyone really understanding what is meant by the agreement. Nobody's really in any doubt.
The only way that it can be overturned is by someone actively trying to cause disruption and break "A Good Thing".
People who, historically, have been trying to break "Good Things" have often been called "Evil".
This includes the Brit Empire forcing it's new colonies into restrictive taxations etc. (Don't knock that one, I'm a Brit..
It always perplexes me when people refer to the Law system as a system of Justice, when, Justice is something that arises from the spirit of an agreement being upheld, and that so rarely happens in these circles these days..
Would be so nice to have this current system of Legalities and Legislation where the word is constantly debated return more to an environment where the spirit is sought and upheld.
Now, that truly would be a free country.
I hope someone wises up,and pushes the spirit of the GPL. We all know why it's there, and it's a "Good Thing". Breaking it would be a crying shame, and would be tothe detriment of a good many people.
Public performance and display: Section 0: (Score:2)
Section 0 of the GNU GPL [fsf.org] states:
(Emphasis added).
I would argue that the GPL doesn't explicitly grant public display and performance rights, but implicitly grants these rights through the highlighted language above.
A question is whether or not the GPL grants rights unless otherwise denied (subject to compliance requirements), or only grants specific rights. My reading of the license, including the Section 0: language above, is that all rights required to run a program are granted unless otherwise restricted, and that only copying, distribution, and modification are specifically restricted.
One of the issues which many would like to have addressed in GPL v3 is a linkage of distribution triggers to web-based, embedded, and CORBA-linked applications. These constitute a significantly different copyright environment than the one in which the GNU GPL was originally written.
What part of "Gestalt" don't you understand?
Scope out Kuro5hin [kuro5hin.org]
Re:The End of the World as we Know It? (Score:3)
This is a huge distortion. I've never heard any of the people who are really serious about the GPL complain about making a profit off GPLed code. Hell, RMS made money for a long time by selling tapes of GPL programs. On the FSF web site [fsf.org], in fact, they say [fsf.org]:
That hardly sounds like people who don't want anyone to be able to make a profit from their code!
What people like the FSF do have a problem with is the idea of taking free/open source software and making it non-free/closed source. The GPL doesn't exist to prevent people from making a profit. The existence of companies that market GPLed software is proof that it doesn't accomplish that, even incidentally. The goal is to prevent people from taking software that is available in source form and releasing it without source.
Seems dubious to me (Score:4)
At least that is the way I read it.
In support of that view look at the terms [gnu.org]:
Term 0: The license only applies if the Copyright Holder gives permission. By aquiring the code you do not become copyright holder.
Term 1: Permission is granted to redistribute verbatim copies. No copyright is transferred.
Term 2: You are granted the right to make modifications if you meet specific conditions. These modifications would leave the copyright intertwined. I would guess that at this point for the original copyright owner to give away control of the copyright would be a contract conflict.
Term 3: Distribution rights. Again no transfer of copyright here.
Term 4: You may not request any other distribution terms. (Question relevant to Perl. If foo accepts Perl under the GPL, are they *bar*ed from distributing under the original terms? Looks like it!)
Term 5: A reminder that copyright law prevents you from redistributing if you do not negotiate a license with the copyright holder.
Term 6: A note that you have no obligations for the actions of the people that you distribute to. Obviously true since your contract is with the copyright holder(s). They must likewise seek a license with the copyright holder(s) and that is then a matter between the copyright holder and them.
Term 7: Basically outlines in detail the consequences of term 4. If you have no right to distribute except as the license allows, and you are unable to meet the license, then you cannot distribute.
Term 8: Affirms that the copyright holder may add terms regarding geography if there are likely to be enforcement problems of the license in those countries.
Term 9: Outlines FSF policy, and outlines out the consequence of accepting the statement that the FSF asks people to use.
Term 10: An explicit reminder of the rights of the copyright holder to negotiate different distribution terms at their will.
Terms 11, 12: The usual disclaimer in lieu of warranty that we know and love in software.
So it seems pretty clear to me. The license is an offered contract with the copyright holder. Should the copyright holder give up copyright then they are in serious danger of breaching their end of the offered contract. But that doesn't give you any rights to the software.
Regards,
Ben
PS Again, IANAL but I am pretty convinced of this line of reasoning.
Re:no (Score:2)
Of course, in the US, and especially with DMCA and UCITA, the act of tearing of shrink-wrap is considered more binding than a notarized signature. But so what. If Congress passed a law that said night was day and the blue was green, it still won't make it so.
Re:Kernel? Huh? That's just the start (Score:2)
And MOST of what is a FreeBSD distribution isn't GPL. Most of it is BSD.
Sorta like, a meteor may strike (Score:2)
Re:How's this for a solution to IP problems? (Score:2)
Just my $0.02:
k.
--
"In spite of everything, I still believe that people
are really good at heart." - Anne Frank
Re:That "small part" doesn't apply to this case (Score:2)
"If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances."
GPL and physical media (Score:2)
Why would you buy any software at all? I mean by this that you can get almost every single piece of software "for free" on warez sites or CDs. That's illegal, ok, but does that prevent a lot of people from getting the stuff?
Furthermore, under the GPL, nothing prevents you from copying the data from a friend/colleage/whatever's CD, then why bother going to the store?
I personally buy software (be it free or not) to encourage people to keep doing the stuff I like. As simple as that.
The GPL is a license that you don't have to physically sign. If it loses on that basis[snip]Then a lot of things would need to be modified, have you thought about all those "click if you agree" type of agreements? Or maybe are they unrelated? I don't know...
PS: Excuse my english
Re:Only ironic to the misinformed (Score:2)
Does no-licence grant a permission ? (Score:4)
The big question then is this: With the licence gone, but surely not the author's copyright, how can anybody legally distribute the software ?
It looks like that if you don't have a licence at all, then you can't do squat with the software. And that includes any and all "violators".
From The GPL" [fsf.org]
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
--
Why pay for drugs when you can get Linux for free ?
Re:Only ironic to the misinformed (Score:2)
No. The original claim was that there is a certain irony in the fact that people who are detractors of copyright law are also staunch defenders of the GPL. This is true. The original poster did not anywhere use the word 'hypocrite'.
You responded that the original poster and those who think similarly are 'misinformed'. This is not true. Many poeple who see this irony know what they believe and why they believe it. You called them misinformed because they disagreed with you.
But you couldn't silence your opponents by calling them ignorant, so you had to bring in the big guns: "non-sequitors" [sic.] and "ad hominems". I suppose that big words such as this must occasionally win arguments. At least they allow you to feel superior.
But I called you bluff on that one too. You wisely decide that it's a good time to "leave aside the confusion of who is using what fallacy and get to the point." Your point: "The law ... is WRONG." (All capitals should strengthen your argument.) But you need to use the law in order to convince everyone that the law deserves no respect. And as an example, there are some people who are obeying all relevant laws in order to accomplish their political goals.
Since that failed to convince, it's time to say that further disagreement about the clarity of your message will be ignored.
Frankly, it might be a good time to go over the notes from your debate class again.
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Legal precedent (Score:3)
Some legal precedent for ya:
Mellon v. Delaware L & WR Co. [findlaw.com]
Tiverton Bd. of License Comm'rs v. Pastore [findlaw.com]
From the latter:
When a development after this Court grants certiorari or notes probable jurisdiction could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay. See this Court's Rules 34.1(g) (petitioner's statement of the case shall contain all that is material to the issues); 34.2 (respondent's brief may correct any omission from petitioner's statement); and 35.5 (parties may file supplemental briefs after briefs on the merits to point out intervening matters not contained in the merits briefs).
The writ of certiorari is dismissed as moot.
I would say the GPL stands a good chance of holding up in court.
Re:Figures... (Score:2)
Please don't give them any ideas...
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Zardoz has spoken!
Re:Does it mean anything? (Score:2)
GPL might one day become invalid, but it doesn't mean all software released under it will suddenly become public domain. It will become available under a BSD-like license (GPL with your obligations struck down), or not available under any reasonable license at all. Or so I understand it.
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Re:Seems dubious to me (Score:2)
IANAL also.
Quibbles on Ben's analysis, areas of agreement ignored:
What part of "Gestalt" don't you understand?
Scope out Kuro5hin [kuro5hin.org]
GPL Does Not Apply To Authors (Score:5)
This is wrong, wrong, wrong.
An author can reuse code all they want. They can license the code into the GPL common pool, and then turn around and do whatever they like with it--make their own secret derivations without deriving the source, most obviously.
This actually starts to get a bit sticky when core developers take patches from the outside world on GPL terms and then, since they're the copyright owner, incorporate those into closed source releases. But it's generally accepted that primary authors who do the initial work of coding the app, as well as all the request handling and patch integration, do have the legitimate right(as long as the patches are not too extensive) to relicense privately. Alladin, with Ghostscript, does this commonly to give printer manufacturers customized Postscript capabilities.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
Re:Does it mean anything? (Score:5)
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Re:And another phrase: (Score:4)
I'm quite libertarian myself, but I've noticed a disturbing anarchist streak among some. One must have some structure in order for us to preserve our rights. If there were no copyright and copyleft were the rule of the day, then software would merely be released under licenses agreeing to certain terms. At least copyright expires 70 years after the owner's death; those licenses would prob. never expire.
We need to learn to use the tools with which we are provided. The court system can be an effective weapon against proprietary software houses which steal our code. Let them release their proprietary software; over time we will exceed their capabilities and in the long run they will go out of business. But if they infringe on our territory, we should be merciless. Can you say punitive damages?