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GNU is Not Unix

Moglen On Enforcing The GPL 309

jdavidb writes: "The GNU Project has a new essay today by Eben Moglen, general legal counsel for GNU, about enforcing the GPL. People ranting about the GPL not holding up in court should read this. Very interesting, but I felt that this paragraph looked bad: 'In such situations we work with organizations to establish GPL-compliance programs within their enterprises, led by senior managers who report to us, and directly to their enterprises' managing boards, regularly.' I'm all for the GPL, but this sounds suspiciously like an Software Publishers' Association audit. On the other hand, circumstances of something like this would be completely different, i.e., illegally taking copyright privileges over software you didn't write, as opposed to illegally copying software." Actually, I also think they sound alike in certain ways, but that it makes sense -- since both are about unauthorized reproduction of software. I like the FSF's terms a lot more. Update: 09/18 19:53 PM GMT by T : As Dr. Nonsense points out, davidb "probably meant the dreaded audits by the Business Software Alliance," rather than the SPA.
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Moglen On Enforcing The GPL

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  • big difference (Score:2, Insightful)

    by brlewis ( 214632 )
    The SPA audits software used internally in an organization. The FSF audits software that is incorporated into derived works that the organization distributes and charges license fees for as if it were their own. It seems the former is a lot easier to do by accident than the latter.

    If the FSF were making deals that required organizations to only use free software internally, then you could draw comparisons with the SPA.
  • I've been bothered by one thing for a while about the GPL, and I think I might have a solution (or, maybe, this is a non-problem).


    It seems that a major concern of the GPL is that if you just USE a program, you do not have to accept the terms of the GPL. By refusing to accept the terms of the GPL, you are also refusing not to hold the authors of the software liable for any failures, leaving the authors open to potential lawsuit.


    Solution? Maybe a particular license, in the same fashion as the closed source houses do, disclaiming liability in the event of failure, which must be accepted before the user may begin using the program. This would be in addition to the GPL, which also does the same thing.


    Of course, I may be talking about a non-issue, but this seemed like as good a time as any to ask the question.

    • By refusing to accept the terms of the GPL, you are also refusing not to hold the authors of the software liable for any failures, leaving the authors open to potential lawsuit.

      I believe it's a non-issue. The warranty terms of the program are not defined by the GPL (except the default no warranty); rather the GPL forces the author and redistributors to explicitly publish your warranty (or lack thereof). Under GPL terms and conditions:

      1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; (...)

      (The copyright notice is separate from the warranty.) And indeed the notice suggested by the GPL is:

      This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation (...) This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE (...)

      (again) You're supposed to separate the warranty notice from the GPL notice.

      Trying to sue based on that would be akin to sueing for banging your knee on the bottom of a swimming pool when all the signs say "no lifeguard, swim at your own risk" .. it'd make for a hard court case. (I hate analogies, but oh well)

      • Yeah, lots of free software comes with this warranty notice prominently displayed. (You even got the wording right). When I see these words I immideately think of Debian -- they put it in motd by default and that's one of the first things I change after I install a new Debian system. Kinda annoying, but neccessary.
  • Eben claims that users of GPL'ed code need
    do "nothing" in order for the license
    to apply.

    I just read an article in a law review newsletter
    on the GPL that disagrees with him, and lists
    several conditions the author believes
    someone would have to have taken in order to
    get a court to agree that he agreed to a license.

    The author continues, and I think that Eben would agree, that under such circumstances, the GPL
    and its provisions are null and void - the case
    becomes a simple matter of copyright infringement.
    Thus, the "license breaker" could not be
    forced to release their own source code.

    The article is not online unfortunately,
    else I would have posted it here.
    • I was wondering about this myself. Usually, for "licensed" software, the license is displayed in front of you in some way -- either as a dialog box before you install or run it the first time, or as a document outside of the physical software distribution medium -- and clicking "OK" or opening the package implies compliance with the license. There's an action implied.

      But what action implies agreement with the GPL? Where do I "sign" before I implement the GPL'ed code in my project?

      The article you mention may be right, that there is a problem here. Perhaps you could give the volume, issue, and page number of the article?
      • The action of redistributing the software.

        Since you are not the copyright holder, you have no rights to sell, or redistribute, or make copies (other than for personal use) of the software. The software comes with a licence that, if you choose to accept it, allows you to do that with some restrictions (i.e. you must use the GPL). If you do not accept the licence, you must make other arrangements with the copyright holder if you wish to distribute the software.
    • Thus, the "license breaker" could not be
      forced to release their own source code.


      His remedy is better though - go to redistributors and customers and say "why are you paying for this stolen code when you could get it for free?"

      From the article:
      ``Why would you want to pay serious money,'' we have asked, ``for software that infringes our license and will bog you down in complex legal problems, when you can have the real thing for free?'' Customers have never failed to see the pertinence of the question. The stealing of free software is one place where, indeed, crime doesn't pay.


    • Thus, the "license breaker" could not be forced to release their own source code.

      This is true, but I'm guessing that many companies who have infringed the GPL (especially if it was deliberate) would rather settle with the copyright holder and release the derivative code as part of the settlement rather than be dragged to court to face the consequences of their actions. It is also much more attractive than the bad publicity they would receive by openly stealing code from a free software developer. A lawyer friend of mine once told me that the goal of any good lawyer is to avoid court and craft a favorable settlement instead. In this respect, Moglen is doing a superb job.

    • Thus, the "license breaker" could not be forced to release their own source code.

      I don't think anybody implied that the infringer would be forced to release his own code, and I don't really see how that's a problem. The bottom line is that they would be forced to stop infringing. They could choose to release their own code, they could replace the GPL'd code with their own, or they could choose to stop providing the product altogether. Any of these is fine.

    • No, there's no need to agree to the GPL before incorporating the code into your own work: copyright law forbids you from incorporating and copying the code without permission from the author. The GPL grants you that permission.

      If you didn't agree to the GPL (or get permission from the copyright holder in some other way), you're not allowed to make copies. Not because of the GPL itself but because that's how copyright works.

      The reason why shrink-wrap licenses are prevalent for more conventional SW is that they take away rights that you would otherwise have (if you didn't agree to the license). The GPL does none of that -- it only grants you rights that you wouldn't normally have. Sigh.
      • All true, but most people imagine that people who break the GPL will be in violation of the GPL. This other article (I really wish I could post a link) is making the claim that you would not be held to be in violation of the GPL, just of copyright law. That would still have pretty serious consequences (as others have pointed out), but not those often imagined to be the result by people who adopted the GPL for their code. The reason I was interested in this other article is precisely that many people seem to think that people who violate the GPL will end up having to release the source code to their products in some way. This other author was suggesting that this is not likely to be true, since none of the provisions of the GPL will be held to apply, merely copyright law. Since it may be hard to invoke monetary damages with most GPL'ed code, the consequences under this part of US law may end up being very different from what the code authors intended.
    • This is a problem with source distribution: it's more difficult to prove license acceptance. With a binary, it won't run until you click "I agree" or some such. There is no way to force someone to read README or LICENSE.txt

      However... It could be argued (as usual, IANAL) that community norms imply that one reads the README file prior to use.

      Also, most programs that I've looked at have some info in the top of the main.c saying this is released under GPL, must agree before use, etc.

      So what if someone just doesn't look at the source but instead types 'make && make install'? No problem. Have the default target point to something that says "This is released under GPL..."

      I'm in no way disagreeing with you that proving acceptance is difficult, but I believe there are a few ways of proving this that, while not black letter law, are certainly not a giant leap of legalistic faith.

      • Your missing the point. Normal users don't need to accept the GPL. All the things that a user wants to do are allowed by copyright law, so the GPL isn't even an issue.

        Where it kicks in is if somebody want to redistribute the original works or a derivative. Since distributing copies of copyrighted work is illegal, a license is needed from the copyright holder. Normally, you would have to contact the copyright holder and negotiate terms. In the case of GPL'd software, a license is provided with the software. If you agree to that license, then you can distribute the software. Without agreeing to the license, you are breaking the law by distributing the software.

        That's why the GPL has never been to court, and most likely never will. If you argue that you didn't accept the terms of the GPL, you would be confessing to breaking copyright law! If you claimed that you didn't accept the license, I'm sure the FSF would be happy to let that assertion stand in court.

        "Counsel, didn't your client agree to the terms of the GPL?"
        "No sir, your honor. My client never accepted the license, and in fact never even read the included LICENSE file. Instead, he commited criminal and civil copyright violations by distributing copyrighted software without a license!".

        Not a good way to get repeat business.

        • defense: "Your Honor, we have an excerpt from the author's web site where my client found the software in question:"
          This program is Free Software, you can download it from...


          judge: "Very well, I find that permission was given by the author to download and make any use whatsoever of the offered materials, including modifications and creations of derivative works, without any further agreement being needed."

          plaintiff: "I object! When my client said 'Free Software' he meant free as in free speech! In other places it is made clear that the software is only offered under the terms of the GPL."

          defense: "The meaning of 'free' as applied to a downloadable product is well established as meaning without cost or restriction."

          judge: "I agree. The author gave permission for unrestricted use, essentially releasing it into the public domain, by referring to it as 'free' and suggesting that people download it in that sentence. Any other offer of more restrictive license terms is irrelevant."

          Think about it. What permissions are implicitly offered by the author, without reference to the GPL? I think that there are a great many circumstances in which a judge can find that GPL'd software has effectively been released into the public domain.
          • Does that mean if I go to microsoft.com and download a free demo, I'm allow to redistribute it freely? I don't think so. The same with the GPL. "Free" would mean gratis and the fact that you don't pay for a piece of software doesn't allow you to redistribute it. So it still ends up being copyright infringement.
          • Plaintiff: Internet Explorer 6 is available as a free download. ICQ is advertised as free software on the official Web site. Is the court saying that anyone who downloads them may then alter, reverse-engineer, sell and otherwise use and distribute them without any restrictions?

            • defense: "Your Honor, we have an excerpt from the author's web site where my client found the software in question:" This program is Free Software, you can download it from

            Yup. I caught one of our developers trying to sneak GPL code into our (closed source) commercial product. He claimed that it was OK because it was "free". Honestly.

            Also, we're just about to ship with a pile of uncredited Mozilla licensed stuff in there. I've told legal and I've told my boss that this is theft. I await their response.

            Based on this, think "free" software is probably used uncredited and unlicensed all over the place, both through ignorance and through obstinance.

    • Reread what he said. He very clearly stated that:

      • Users of GPL'd code need do nothing to use GPL'd code. The license doesn't apply to them.
      • Users who have taken the affirmative action of redistributing the GPL'd code either do so in violation of Copyright Law, or must accept the GPL. There is no general right to redistribute code that is copyrighted, so without accepting the GPL redistributors are in violation of Copyrights.

      You have completely misread Eben's argument. It is Copyright law that applies, not the license. The License is just something which allows you to comply with the law.

  • by ChaoticCoyote ( 195677 ) on Tuesday September 18, 2001 @03:16PM (#2316674) Homepage

    ...my decision to stop using the GPL for any of my own code; I've relicensed everything under a libpng/zlib-style agreement, thus distancing myself from the extreme opinions of GPL's adherents.

    Knowledge doesn't want to be free -- knowledge has no desires of any kind. It is certain people who want knowledge to be free. I'm one of those people; where I differ from the GPL is in my definition of "freedom".

    Freedom is a lack of obligation; the GPL does not define "freedom", it forces obligations on people, and uses the very Copyright they despise as a tool for control. Mod me down if you will, but I have just as much right to my opinion as they do to theirs.

    I have respect for Mr. Stallman's goals, but not his tactics. He and I share many beliefs when it comes to freedom -- on the issue of GPL, though, I beg to differ.

    In many ways, GPL's adherents remind me of an obnoxious slogan I once saw on a hat: "If you love something, set it free; if it doesn't come back, hunt it down and kill it." Sorry, RMS, I just don't hold with that kind of thinking.

    The GPL is about power, not freedom; buy into the GPL myth, and you're just exchanging one master (Mr. Gates) for another (Mr. Stallman).

    • Well, I suppose if you want people to have absolute freedom to do whatever they want with your code, you should just release your stuff in the public domain.

      On the other hand, if you want people to be able to modify and redistribute your code, but don't want someone to use it as a basis for a proprietary product, then the GPL is quite useful.

      -Karl
      • I can't agree with that.

        Public Domain, contrary to popular belief, is not a copyright, not a license, not a anything. It is basically saying that "This code no longer belongs to me. I am relinquishing all rights to call it my own. It now belongs to the public".

        So I could take any public domain software and call it my own without modifying it. Because public domain is the "giving up any rights to the work".

        Basically what I want in a license is credit where credit is due. I want the world to know that I wrote my code, but at the same time alow them to use it for whatever the hell they want. So basically my thinking is "Since I don't make money off the code I write on my spare time I don't care if anyone else makes money off of it. But I at least want credit for doing the work".

        So the public domain is not a good idea for a "licence". That's why most public domain software is generally just an implementation of a popular algorithm, or a proof of concept etc.

        --
        Garett
        • So I could take any public domain software and call it my own without modifying it. Because public domain is the "giving up any rights to the work".

          No, public domain is "giving up copyright on the work." The fact of who is the author remains, so any rights which derive solely from that fact remain.

          Do you really think that you could take Alice In Wonderland and put your name on it as the author? It's in the public domain, so why not?

          Because it would be fraud against those you distributed the books to. In such a business fraud, everyone that's hurt gets to sue you. You're impersonating the author, and that's going to have consequences.
        • So I could take any public domain software and call it my own without modifying it. Because public domain is the "giving up any rights to the work".

          Basically what I want in a license is credit where credit is due. I want the world to know that I wrote my code, but at the same time alow them to use it for whatever the hell they want. So basically my thinking is "Since I don't make money off the code I write on my spare time I don't care if anyone else makes money off of it. But I at least want credit for doing the work".

          Aha! So you want people to use it for 'whatever the hell they want' except that they can't claim credit for code you wrote.

          Aside from technicalities, how is that different from allowing people to use it for 'whatever the hell they want' except that they can't take the code, improve it, redistribute it and refuse to share their improvements.

          Neither of these seems inherently more morally defensible than the other. If you really want people to do whatever they want full stop then put it in the public domain and be done with it; but don't get all high and mighty because you only want fame, while I want to grow an open source community. I happen to prefer my values over yours.

    • I beg to differ (Score:2, Insightful)

      by epsalon ( 518482 )
      In my opinion, a world with only free GNU software ("A brave GNU world") is, in fact, a better place to be. There is a big difference a Gates world and the Stallman world, and that's where the conrol is.
      In the GNU world, nobody can tell me not to use a piece of software, and noone can tell me what to do with a piece of code I wrote. Stallman does not control my software any more than the next guy. If Stallman goes crazy and decides to destroy all software in the world, even he can't do it. He is also obliged to the GPL and does not own copyright on any code except his own.
      In the Gates world, all software copyrights are assigned to a single company (which owns all developers) and that company can decide what to do with it's developers' code.
      I, for one, don't want to see some commerical company using my software to make the next version of windows. That's why I release all my code under the GPL. I hope you will as well.
      • In the GNU world, nobody can tell me not to use a piece of software, and noone can tell me what to do with a piece of code I wrote.

        Except that it is not true. If you are talking about an application, you would be correct. But if you are talking about a library, then you are in error. If the library is released under the GPL, then you may not *use* that library except to link to other GPLd code. This is why the LGPL is much, much better for libraries.

        Go use the GPL for any application you wish, and I won't have any problems with it. But when it comes to libraries then use the LGPL, or dual GPL/QPL, or dual MPL/GPL, or BSD, or at the very minimum use the GPL with an linking exception.
        • If the library is released under the GPL, then you may not *use* that library except to link to other GPLd code.


          You can *use* the library all you want, you just can't create a derivitive work of the library.

    • People keep saying the GPL takes away freedom. It doesn't. It guarantees that everyone who comes after you has the same freedoms you had. The only thing it stops you from doing is taking part or all of your information and making it proprietary; that is, not sharing it with anyone for personal gain. This is not extreme. This is not even fair. This is basic decency. I personally think it's awful that a license even needs to be written to convince people of this, but our society doesn't glorify sharing so much as it glorifies the individual accumulation of wealth.

      Freedom is a lack of obligation;

      That's an interesting definition of freedom. I think of freedom as being more about maximizing the quantity and quality of options available to individuals. The GPL *is* about freedom- what you refuse to see is that it's not just about *your* freedom to be a dick and take someone's free software proprietary, but everyone's freedom to build on other people's accumulated knowledge.

      the GPL does not define "freedom", it forces obligations on people, and uses the very Copyright they despise as a tool for control.

      This is a rather infantile interpretation of the goals of the GPL. Two points here: 1. in a world without copyright the GPL would be meaningless, so it's consistent to use the copyright system against itself and at the same time clamor for its abolition (incidentally you imply here that all GPLsters believe in the abolition of copyright aaaaand... that's a canard), and secondly, the GPL doesn't use copyright to control information, but to be sure that everyone can use it in any way that doesn't keep others from using it.

      The GPL is about power, not freedom; buy into the GPL myth, and you're just exchanging one master (Mr. Gates) for another (Mr. Stallman).

      Come on dude, what is this, a Craig Mundie press release? How does Stallman become your "master"? Gates will embrace you then add proprietary extensions to your software so that you become incompatible and must upgrade whether you like it or not and by the way, copy his software and go to jail or at least pay ridiculous BSA fines. Stallman makes sure you have source to all your software and you can modify it for any purpose, and only asks one little thing in return: that you not be a dick and take free information and make it proprietary.

      To sum up, only a very selfish person would not see that the GPL creates freedom for everyone by taking away your right to take other people's freedoms away. My right to swing my fist ends at the tip of your nose, and there's a good reason for that.

      Bryguy
    • The GPL is about power, not freedom; buy into the GPL myth, and you're just exchanging one master (Mr. Gates) for another (Mr. Stallman).

      That's not really true. You can retain the copyright in your name (or your company's name, or your group's name). By using the GPL/LGPL you are not inherently giving over control to RMS (or even the FSF)... plus, as was mentionned elsewhere [linuxprogramming.com], by removing the words ""any
      later version" from the GPL on your code, you can further ensure that changes to the GPL/LGPL in the future do not affect your software (unless you want them to).

      But what it really comes down to when choosing a license (and this was the thrust of your post) is your own personal definitions of "freedom" and what you want allowed (or disallowed) with respect to your code.

      Many people who use the GPL, and may or may not agree with RMS (such as myself), do not want derivative works to be placed under licenses which cause the work to become property of another entity. People using other licenses, may or may not have strong convictions about this.

      For example, one thing that many people don't realize is that the networking code in Windows (I think it was just NT at one point, but now may be in all Windows variants) is actually based upon BSD networking code. The BSD licenses in place allowed Microsoft to legally do this. Some people may not have much of a problem with something like this, but those that typically use the GPL do so to prevent this sort of thing.

      Personally, while I use the GPL/LGPL for all my projects, I am not about to try and force others to do the same. Part of my definition of freedom is "freedom of choice". And for any project you personally start or are responsable for, you are (and should be) free to choose whatever license you like.

    • The GPL basically says "if you use other peoples code then you must let others use your code" ... thats not unreasonable in the least. You are *ALWAYS* free to not use other peoples code, then you can do what you damn well please ... you just can't do what you damn well please with other peoples work.

      I'll admit the duality of using restrictions to give freedoms seems paradoxical ... BUT, the GPL gives you more rights then an EULA i've ever seen.

      If you don't like it, use the BSD lic ... M$ will love you for it.

      It sounds to me like you want the "freedom" to use GPL'd material without the "obligation" of releasing your own source ...

    • I've relicensed everything under a libpng/zlib-style agreement, thus distancing myself from the extreme opinions of GPL's adherents.

      Does that mean you'll stop using your "libpng/zlib-style agreement" if RMS starts using it. That point is simply non-sense.

      The GPL is about power, not freedom; buy into the GPL myth, and you're just exchanging one master (Mr. Gates) for another (Mr. Stallman).

      You can agree or disagree with RMS. However, there's a big difference here: On any piece of GPL'd code (unless is copyrighted by the FSF, but most is not) I have as much rights as RMS. I can't say that about Bill (what's my right on Windows? None).

      At last, as many have pointed out. GPL means "I help you it you do the same to others" ie. "if you want my code, let others do the same with what you derive from my code". In most cases that's fair.

      As for people saying GPL is bad for buisnesses, BSD is good. Well, it's not even always true. Just look at Qt. Troll Tech can make money with Qt even though it's GPL'd. If Qt were BSD, Troll couldn't sell any Qt license (there's also FFTW that's like that and probably others). What it comes down to is: GPL is better that BSR for companies that originally wrote the code, while BSD is better for companies that want to grab the code written by others. In most cases, I'd choose the first one.
    • Every few months I get email from someone complaining about the commercial product that uses their code, while the commercial party offers no cooperation and often doesn't even acknowledge their contribution. And the letter invariably ends "and I guess it's our own fault for not using the GPL".

      BSD licensing and all of its work-alikes are fine as long as you want to consciously make a gift of your code rather than exchange in sharing. But so many folks seem to just hear "GPL is bad" messages like yours without getting to the "GPL's there to protect your own goals" part.

      Bruce

    • Knowledge doesn't want to be free -- knowledge has no desires of any kind.

      Stop being so literal. If I said "Water wants to run downhill," would you complain that water doesn't have any desires? It's a quotable way of summarizing a more complex situation.

      If it bothers you so much, change "wants" to the more accurate "tends." "Water tends to run downhill," and "Knowledge tends to be free." And since free is a potentially confusing word, perhaps a further tweak, "Knowledge tends to spread out of control." (Not a perfect tweak, but I don't see an improvement right now.)

      No one will contest that water tends to run downhill (I hope). Knowledge certainly spreads out of control. If I share with you a secret, say my recipe for cookies, I'd be hard pressed to stop you from sharing that knowledge further. If you've got a good memory, I can't take it away from you, and you are physically able to reproduce it and share it at will. As a race, we've continuously worked to make it easier to share knowledge. Writing. Printing. Photocopying. Faxing. Web pages. Email.

      Sure, we've passed laws on copyright and trade secrets to try and restrict the flow of information. But in the absence of such laws I can't really stop you (short of physically detaining you) from spreading knowledge I've given you. Even with the laws, it's quite easy for someone willing to make an unauthorized copy to do so.

      We're tried technical measures. Macrovision, copy protections. But ultimately you show the movie, book, or music to a person. A person with a video camera can reproduce the work. For text a person with a pad of paper and a pencil can slowly copy it down. All it takes is one person to acquire a non-technically restricted copy before the it can be widely and easy copied using modern technology.

      People like to spread knowledge. It's hard wired into humanity. Knowledge wants to be free because people want to spread it.

    • Freedom is a lack of obligation; the GPL does not define "freedom", it forces obligations on people, and uses the very Copyright they despise as a tool for control.

      The GPL gives you everything that copyright does and more. If you're willing to yield copyright fundamentally restricts freedom, then yes, the GPL also restricts freedom.

      The GPL doesn't "force" any obligations. If you don't redistribute the resulting software, you have no obligations. Is this less than completely free? Sure, but copyright normally doesn't allow you to redistribute it at all.

    • Disclaimer: I don't plan to release any code under GPL either (I don't agree w/ its philosophy); if/when I do it will probably be LGPL w/ X-licensed main modules. I have contributed to GPL projects.

      1) A lot of your post seems to be just flaming the GPL, with arguments we've heard before. I might even agree with some of them. Congratulations on starting another flame fest.

      2) I am interested in one thing you do say,

      (This only reinforces)...my decision to stop using the GPL for any of my own code; I've relicensed everything under a libpng/zlib-style agreement, thus distancing myself from the extreme opinions of GPL's adherents.

      So, how does it reinforce your decision? Does his spelling and grammar make you cringe? Are you criticizing some bit of his legal strategy? Or are you just upset at him for enforcing the GPL?

    • I really hate it when people do that. The above post irritates me not because it criticises GPL, but because it contains NO INFORMATION. Read it carefully. Everything in the post is pure conjecture with a couple of clever frases thrown in just to make it look important. Mr ChaoticCoyote, if you want to criticise anything, I challenge you to provide FACTS and argue your position with logic, not thinly disguised rhetoric designed to entice a knee-jerk reaction. For instance, how does your slogan relate to GPL? How do you justify your last statement? Sigh... Sadly, rhetoric still works better than logic in motivating the croud...
  • The GPL derives it's legal power from copyright law. No copyright law, no GPL. Copyright law, rightly, gives the original author of a work exclusive rights to publish, sell, or distribute that work as he or she sees fit, for a limited time. Unfortunately, our congresscritters convieniently ignore that last clause when drafting new laws.



    Under copyright law, only the copyright holder may create derivitive works. By publishing under the GPL, the copyright holder conditionally relinquishes this exclusive right, under the restriction that any derivitive work must also be released under the GPL. If you don't abide by this restriction, you don't have permission to release the derivitive work. The GPL may be a more socially responsible and less restrictive application of copyright law than a traditional EULA, but both derive their authority from the same source.



    Keeping this in mind, is it really that suprising that the mechanism for enforcing the GPL compliance is very similar to the process used to enforce more restrictive EULA's? Any legal processes can be used for good or evil: the court that issued the Miranda ruling is the same court that came out with Dred Scot decision. Regardless of the application or the outcome, the process of applying the law is the same.

    • EULAs are not really related to copyright. They are more like a contract that you don't sign but are still bound by.
      • EULAs are definately related to copyright. A long time ago, in a courtroom far, far away, a judge ruled that loading a computer program into memory is making a copy of it. Since the law says that you can't make a copy of a copyrighted work without the explicit permission of the copyright holder. Therefore, the EULA came into being, to explicitly spell out the conditions whereby you can make an authorized copy. After the practice became intrenched, publishers started putting additional restrictions into their EULAs -- prohibitions against reverse engineering, restrictions on publishing unfavorable reviews or benchmarks, etc. Whether or not the additional restrictions will stand up in court remains to be seen, and has to be addressed on a case-by-case basis until some clear precedents emerge.



        In a rational world, loading a program into memory (or any other incedental copy, such as installing it on a hard drive) should be considered fair use. However, the law is not rational. One stupid decision by one bonehead judge can set a precedent that can take many years to overturn.

  • Enforcability (Score:2, Interesting)

    by SanLouBlues ( 245548 )
    ". . . in the cases I have in mind, legal technicalities prevented actual criminal prosecution of the violators"

    So convincing other people not to use software which continues to be published is enforcement? What are these technicalities? Specifics man, I need the facts!
    • This is a really important question. Were these problems with evidence, problems with fair use exceptions (not really a GPL violation), or problems with jurisdiction?

      Perhaps the circumstances indicated that the damages would have been trivial, and hence the prosecution would be pointless, but again, in that case surely the license violation would not have been so problematic?

      Actually, if the copyright holders were not willing to co-operate, then the license would not have been enforceable- for example, if the author was deceased and their estate was not willing to become involved.

      Enough wild speculation :). I can't really think of any sensible reason which might have made prosecution impossible.

  • The Boy Scouts of America; man, they're nasty when they want to be...

    ...I know, I was one of those little military wannabes. Heh, heh, I have fond memories of camp fires and indendiary devices... ;)

  • The restriction on decompiling software contained in end user licences would make it illegal to decompile a program to check its simillarity with a GPL'd program. I wonder how much of a problem this is?

    From a technical perspective, you can't just do an "ungcc badprogram; diff badprogram.c goodprogram.c", and from a legal perspective, even if you could would this information be admissable in court as it was obtained in violation of the EULA?

  • I felt that this paragraph looked bad: 'In such situations we work with organizations to establish GPL-compliance programs within their enterprises, led by senior managers who report to us, and directly to their enterprises' managing boards, regularly.' I'm all for the GPL, but this sounds suspiciously like an Software Publishers' Association audit.


    hypothetical situation:

    Company X downloads GPL'd code Y which would be really useful as part of the new commercial product they're writing. Company X uses code Y and locks it into the binary of the program and breaks the GPL, releasing it as closed source payware and not giving any credit either. Hacker Z suspects his GPL'd code was used in the software but can do nothing because company X can use the DMCA to stop anyone from reverse engineering the program.

    With this is mind, the only way it seems possible to stop someone from stealing GPL'd code is to watch them AS they write code that may contain it.

    Comments, suggestions?

    -Kasreyn
    • Hacker Z can still argue that he was looking for an infringement of his copyright. Sure, Company X can still threaten him with the DMCA but the GPL violation still stands and still can be enforced separately.

      Hacker Z doesn't have to tell anybody that he reverse engineered anything until he talks to his lawyer. His lawyer can then hopefully negotiate the legal thickets. Company X will look like they're taking candy from little kids regardless.

      If the purpose of reverse engineering is copyright enforcement then reverse engineer away. It may even be settled immediately. I think a case like that would be more of a weapon against the DMCA itself then against Hacker Z. That would be as good a way any to invalidate at least part of the DMCA.
      • Company X downloads GPL'd code Y which would be really useful as part of the new commercial product they're writing. Company X uses code Y and locks it into the binary of the program and breaks the GPL, releasing it as closed source payware and not giving any credit either. Hacker Z suspects his GPL'd code was used in the software but can do nothing because company X can use the DMCA to stop anyone from reverse engineering the program

      Not hypothetical at all: it very nearly just happened here. Company X's Employee A tried to use GPL code because it was "free" (I kid you not), and tried to keep it in even after being caught by Employee B and having the GPL explained to him in very short words. Employee B had to point out that this was theft, and that if it got back to Hacker Z, then Company X would fry Employee A on the spot. Employee B had to make it very clear that he considered that he would have a moral duty to inform Hacker Z of the theft before Employee A eventually relented.

      I agree though, if we'd shipped this (in an embedded product) there's no way that the auther would ever have found out. I guess we just have to rely on there being an Employee B at every company.

      As an aside, we're just about to ship with uncredited Mozilla code. I've told my boss and Legal that this is theft. I really hope that they don't force me to find out if I've actually got the balls to see my own company burn.

  • While this sounds like a "Nazi" [SPA] approach to some, to me it sounds like GPL leaders are simply extending their hands to help avoid a potentially costly legal battle. In my opinion, it's a sane, friendly and mature approach. By GPL supporters saying, "Here, let me help you comply and make this work with your business goals..." they are improving the "feel-good" effect of using GPL as well as the cold business aspects of the GPL.

    Let's face it, by giving companies a difficult time where the GPL is concerned, we are stiffening the arguments against "free software" that are currently preventing companies from using it.
    • I'm still trying to figure out how a reader could confuse a company having an internal self-audit procedure for compliance with an external group showing up impromptu and demanding counts of licenses.

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