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Does A Software License Cover Patches?
Sanity asks: "Recently a discussion came up in my company concerning how a modification to a piece of GPL code could be distributed without its authors being forced to place it under the GPL. It seemed to me that if I created a patch to a piece of software (which can be viewed as an algorithm which modifies some source code in a particular way) then I would have the right to put this patch under whatever license I liked. I contacted RMS about this and predictably he claimed that the patch would fall under the GPL -- yet this view implies that software licenses are much more powerful than many people instinctively might think -- and if true, has some frightening implications."
"OK, so I do require the original code to generate this patch, but (assuming the patching software I use is efficient) the patch will not contain any of the original GPL code. The thing is that if this were possible it would render the GPL largely useless. What if I created a patch manually, writing a sophisticated computer program which modified code. Would this program itself fall under the license of the code it modifies? Clearly not -- but where is the line drawn here? Surely this is a Pandora's Box of problems, and it concerns the GPL at a fundamental level."
The big question here is: "How large does a patch need to be before the patched version becomes its own program?" and there really isn't an easy answer to that. It stands to reason that if a program can be patched at the source (not binary) level, then it contains enough of the original code to still be considered a derived work. But would such a definition stand under intense scrutiny?
Frac asks: "I'm thinking about creating a Quake 3 mod. Like LAME, I intend to GPL my patch, so anyone who wants to derive a mod from mine needs to open up their source code. However, the more I think about this, the more I realize that it's not possible to GPL a patch, or license a patch that doesn't agree with the orginal source code in question. In fact, if patches can be GPL'ed, the GPL itself will be open to violation and loopholes.
If someone can creat a GPL'ed patch to a non-GPL'ed source code, why can't someone else creat a, say, artistic license patch that patches the GPL'ed patch? Although GPL virtually prohibits people from adding code that isn't GPL'ed itself, what gives LAME the right to apply GPL to the ISO Dist10 mp3 encoder source code?
I think this is an issue that someone needs to straighten out. If patches can be applied under a license, there's nothing to stop e.g. Sun from coming out with a SCSL patch for the Linux kernel."
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One of the funniest things about those discussions is that when it concerns GPL many /. people want such a license to be enforcable way beyond anything reasonable, while when it concerns a license from for example a big company none of you really feel bound by it... fon't forget that tho such licenses have a very different purpose, their legal vaule is based on the exact same thing: a user supposedly reading it, and by continuing installation/startup/usage, agree to comply with it.
I personally have no problems with it, someone should be able to distribute their own work at least inder any license they want, requiring any reasonable or absurd things they like. We as users don't have to use their stuff if we don't like the license, which should make that companies can't go too far beyond whats reasonable, because someone else is likely to pop up with a better license somtime.
But... many people hee disagree with the whole concept of click wrap licenses. Just realize that the only thing so far that gabe those any ground is exactly the same thing that gives the GPL any ground.
Of course the GPL grants rights instead of limiting them, but the purpose of a license is of little importance for it being legally binding.
On another note, I do think that anything that directly or indirectly conflicts with existing laws can never be enforced by a click wrap license,imho such things, if possible at all should require:
1. A face to face talk between the 2 parties
2. Requirement for consulting a legal expert, choosen by the person about to abaondom rights, while the party that is trying to get someone to agree with the license has to pay for this
3. Signing of a contract after verification by a neutral judge that the person signing the contract is capable of making this decision, in the presense of witnesses from both sides.
Like it or not, but there are situations where is can be important that there is a legal option to do this. It would be very good if laws would clearly describe the minimum requirements for this, and thoise requirements should be entirely aimed at protecting the person about to sign away some rights, ie, protect this person against being bound to a contract signed whiule being mentally incapable of making such a decision, ie, drugged, intoxicated, mentally retarded etc.
This all however has nothing to do with the main issue: how binding are such licenses in general, saying they are not or should not be binding has far reaching consequences for GPL which could effectively make all the GPLed source public domain.
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Hey you moderators... MODERATE THIS PARENT UP.. its at least informative, and much more so then almost all the other posts in this discussion.
It is all about interpretation, intent, "good faith", and so on. If your patch is 10 Lines Of Code or more, then you have a copyright on it -- and yes, lawyers will quibble over what constitutes a "line", but that's the precedent. That doesn't mean that your copyright trumps the license terms, it just means that you have zero standing to challenge a copyright claim on your patch if incorporated into the code if it's less than 10 lines. Then it depends on whether your patch could be seen as a value-add or as part of an "anthology" (which has another wide body of law covering it).
There just aren't any ironclad mechanistic rules here. The legal system is non-deterministic. Of course, IANAL, etc...
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The only reason the lawyer's answer is 'it depends' is because a lawyer is paid to take a side and 'maybe' it to death.. Then a judge decides which lawyer is closer to what side of the gray area.
In the case of the GPL, I find it hard to believe that it would be written in such a way that patches, which are by default one of the most fundamentally important parts of the Open Source structure, would remain in dispute.
Here's my take on the scenario: Code is released by A under the GPL. He owned the copyright, but is suspending some of the rights he holds on it to allow others to use and distribute it. B picks up the source, makes a patch. B owns the copyright on their patch. They are not obliged to GPL it unless it is further distributed. Upon distribution you have created a means (the patch) that allows the creation of a derivative work. That should be enough in court to argue that the patch is a derivative work.
Until the GPL is argued in a court of law though, this is all still conjecture and 'maybe'ing. *sigh*
http://linuxuserforum.cjb.net
i think we should all
start
writing our comments in
free verse.
thank you.
There is no soup.
apply to this post. It should be patched to a -1.
It's questionable because 98% of the people participating in this debate haven't carefully read (or probably even read for that matter) the GPL.
Hey. This is WAY off topic, but, I need help with a Mac problem. /. effect on your website, feel free to email me at slashdotstuff@hotmail.com. :-)
I need a system/utility disk so I can boot my powerbook, and initialize the drive. I know this an unorthodox request, but, with the thousands of geek users out there, I know someone, somewhere, can help me. If you don't want to get the
Go ahead and mod it down if you must, but, c'mon, gimme a small break...
Thanks in advance guys!
Just so you know, I own the copyright on some original code that contains "blank lines", and I am sick and tired of being continually plagarized by people who refuse to give me credit. When I run diff, it clearly shows that there are lines in my code that are identical to lines in other software.
dialup now. 5 moderator points are going to wasted on me, I guarantee it.
I want more stories on censorship from the peseudo-intellectutal college dropouts that run this site, and then they can moderate comments to -2 or even lower. What a pile of crap.
Oh, and how about stories ripping companies for not opening source, yet, where is the CVS of the latest slash code?
Hey, Malda, what are you gonna do when VA goes under before your options mature? You might have to get a real job, and judging by your Perl code, you might want to pursue a career in fast food.
I am getting a little tired of all the source-code licensing discussion that goes on by uninformed people. I think *reading* the GPL and other open-source licenses should be a requirement before spouting off with IANAL-prefixed comments.
I think it is deplorable how few people actually read all the way through the GPL (there is more than the preamble, you know).
Do you know why Stallman changed the LGPL's name? Because the LGPL makes MORE sense than the GPL for MOST code.
Also, get a clue: there is nothing in the GPL that forces ANYONE to release ANY of their changes. It merely states that *if* you decide to distribute it, you must make the source code available upon request for a reasonable time for a reasonable price.
[This is not referring to the parent post, I just picked a message to stick this on to.]
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Click to en-large the anti-linux movement.. erm. ok..
They got something called "geek satire" also..
Hackers suspected as Microsoft 747 explodes in mid-air due to blue screen of death.
Cisco integrates routing, switching and underwear drawer technology.
IBM plans to change the shampoo world.
Microsoft Unveils Plans for X-Brush tooth brushes.
!!New Computer Viruses!!!
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Ok let me disagree. GPL is not poorly written, for a legal document it is very well written and even quite easy to understand. License terms of GPL are rather mild and very free (compare it to any commercial license). The problem is that 90% of the people frequenting ./ have not bothered to actually read GPL and Copyright Law (I bet you haven't either). Unlike Windows crowd who is used to click through license terms without ever reading any of it, Free Software folks have traditionally been very careful about obeying licensing terms. This is why it may seem to some that we are debating about 'how many angels can dance on the head of a pin'.
Imagine this slightly different situation for a second: I write a piece of software. I hold the copyright and I can decide what license I put on it. I decide to release it twice: once under GPL and once under FOO, some other less restrictive license. Then, someone goes and modifies the FOO version and distributes a patch. This patch will work on the FOO version, but it will probably also work on the GPL version because it is very close to the FOO version. Thus, whether a patch will work on a piece of GPL source is insufficient to cause the patch to fall under the GPL also. (However, the final patched result will still be GPL'd) This is just one example of how a patch to a GPL'd piece of software isn't itself bound by GPL. (other examples have preceded).
I believe Slashdot has covered this before -- RMS once said (do a search /. or Usenet) that the GPL means anyone can modify GPL'd software without giving away source code as long as the modified software is not distributed outside the modifying person's organisation. So, while anyone may be allowed to modify software whatever the license, at least according the precedent you cited, it does not say anything about distribution. The GPL says GPL'd software and derivative works can be distributed only together with the modified source code, or not at all.
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LET MRBILL EAT THEM!
Have we seen MSBSD yet?
I think not. Why is everyone so paranoid about MS stealing the Linux source?
Your reasoning is based on the false assumption that widgets.c.patch is not a derivative work based on the original GPL'd widgets.c, which it plainly is. A patch is meaningless without the original source code to which it applies. Your widgets.c.patch (BSD licensed) is a patch derived from widgets.c (GPL license). Therefore, you cannot distribute your widgets.c.patch either separately from or together with widgets.c unless you do so using the original GPL as the license.
Except that the GPL is a license governing rights to distribution---not rights to use. If a patch contains no GPL code and has a different license, then the GPL shouldn't stop an individual from applying the patch, so long as they don't distribute the patched work; this sounds like clear fair use to me.
Less clearly, whether or not a patch is a derived work under the law sounds like a tricky question to me. Personally, I'd like to say "no", because I don't want to see copyright law extended to ban distribution of works in which code is not actually copied. It seems to me that such a precedent would open up all sorts of nasty, if somewhat more dubious and and not completely parallel, possibilities; consider microsoft arguing that samba is a derived work because it took aspects of a microsoft system as a starting point. IMO, duplication of code should be the standard for copyright law to kick in. It's a simple, clear standard; it helps keep people from using copyrights like patents (i.e. claiming copyright on functionality and general methods); and it might help prevent copyright violation claims against attempts to reverse engineer.
The way I read the GPL is that you can only distribute GPL code under the terms of the GPL. You can modify and work with the code any way you like, under any terms, so long as you don't redistribute copyrighted GPL code. Just look at the commonly held interpretation that closed in-house modifications of GPL code are OK, so long as they aren't re-distributed.
The last time I read copyright law, I had the impression that a derived work had to include copyrighted material, modified in some way. I think that the arguments for including almost all patches under this definition are fairly reasonable. However, it is not completely clear that the letter of the law will work this way; and I'm personally worried that this would represent a precedent extending copyright to derived works that don't actually copy any copyrighted material. (i.e. books that use information from other books, software based on reverse engineering, etc.) Further, even if the work is derived, interpreting a patch as "fair use" of copyrighted material isn't too far out there either.
This is tricky stuff and it's not as clear-cut legally, ethically, or in terms of the interests of the free software community as some people are suggesting. Pushing a strengthening of software licensing law to strengthen the GPL could end up hurting free software more than it helps.
I don't recall where I gained this info, but 10% is a magic number, after which software is 'new'. Of course, you can't hijack code this way; the original license has to allow patches to be included for you to be allowed to claim this as a part of that code.
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I think if you patch the source then complile it is derived. Therfor GPLed. If you patch the already compiled binary then perhaps PERHAPS not.
I swear, the only intelligent posts around here come from that "anonymous coward" guy.
PS - bacon shit owns you.
i have a big old patch of dried grits on my nutsack from pouring hot bowls of grits down my pants. thank you.
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My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits! My ass needs large patches of hot grits!
The letter of the law says that anything that started with another work as its starting point is a derivative work, whether any of the original code is included or not. Hence, no matter how much you rewrite, you're still bound by the original copyright.
That was a big part of the controversy over Medievia, since the author refused to credit the DikuMUD authors and accepted money in clear violation of the license. Of course, treating the Diku authors that way would have been entirely unethical even if it were legal, but that's a different issue.
Something else this example points out is that violating the license of authors who can't afford to sue you is a good way to generate publicity and success. Other than the licensing issue, there's nothing that would make Medievia stand out among the hundreds of other muds out there, yet I've seen more than 600 people logged in at once.
The thing that makes your program a derivitive product is the intellectual effort that you apply building on the intellectual effort of the original authors.
It is not the physical act of copying characters.
If you download my GPL program, build , study, learn, modify , and then make the product of your intellectual effort available then you work must then also be GPL.
If thats not the way it is legally, it certianly is the way it should be morally.
I think that this position is most consistent with the notion that Free Software == Free Speech as well.
cliff
The alternative to limited government is unlimited government.
[Warning: IANAL]
I think the first question misss that even if the patch is distributed seperately a customer or client or whatever has to apply it. The resulting binary almost definetely falls under the GPL (remeber, the patch had to be applied and compiled - the sources were combined).
If, again *if* it is distributed, then the party at the receiving end is entitled to the complete source code for the resulting, GPL licensed, application since it was integrated with the patch and the program before distributing it.
-Peter
== Just my opinion(s)
There is a reason the GPL speaks in the overly broad language of "Linking" rather than the debatable "Patch".
Basically a Linked program can be anything from a few bytes up to several megs. The rule of thumb is that If you require the source code to produce your patch then the patch must be GPLed too. If you can produce it simply by bending the binary then you haven't used the GPLed source code at all.
However if challenged you will be called upon to prove that. If there are any wealthy suckers on this board I have a bet for you.
--= Isn't it surprising how badly I spell ?
Law is law.
What is legal doesn't always mean what is right.
What is right doesn't always mean it necessarily conform strictly with legal term.
So when will it be okay to GPL something, and when will it be okay to "let go"?
It all boils down to the following criteria:
Will the enforcement be practical?
Will the enforcement be burdensome?
Will the enforcement be too far fetch?
Will the enforcement be flexible?
I am sure there are many other criteria one may have to think over in determining if something should be GPL or not.
But we must always remember - those of us who are writing codes in the open-source communities are writing the codes because WE LOVE TO SHARE WHAT WE HAVE TO THE WORLD, and not because we have to.
If someone start forcing me to do this or that, in order to conform to the "standard", then, the least I can do is to STOP CONTRIBUTING.
While some might say "so what?", for I am only an individual. There must be thousands more who will continue to write codes.
But then, I may be an individuals, the thousands of others _ARE_ individuals too. If something that causes me way too much troubles and ends up making me stop what I love to do, that very same something could have create the same sentiment to others as well - and they very well may stop contributing too.
In all due respect to RMS whomever, we are all human beings, and we can NOT thrive in an environment where EVERYTHING is either black, or white.
There must be SOME flexibility built in. That is, if someone writes a patch, or an extention to a GPLed program, that someone SHOULD have the right to determine if he wants to put his code under GPL or not.
Yes, I do understand that this may create a dangerous precedence - that Microsoft might even take this as their free ticket to produce a closed-source MS-Linux.
Even if Microsoft does that, the REAL open-source Linux will still lives on.
It is in some way comparable to the matter of censorship and freespeech.
In the arena of freespeech, there will be HATE speech. The only RIGHT way to counter the hate speeches is NOT to censor them, but to use your right of FreeSpeech in doing a point-to-point debate and to debunk their hate-speech as purely hateful trash.
Some people like to censor things that they don't like, and I am sure if there is a Microsoft-Linux, most of us will be very pissed.
But to BAN Microsoft from ever producing a closed-source MS-Linux will be the WRONG approach.
The right approach should be making the OPEN-SOURCE Linux even much better than the MS-Linux, and the heat-up competition will only mean that Linux (both open and close sourced) will getting better and better.
If someone wants to GPL his codes, we should thank him/her for his/her effort. But if someone decides that his/her code should NOT be under GPL, let the author be the final judge.
This is NOT the time to throw the whole legal books at people. The open-source movement does not have the luxury to antagonize and or scare off potential contributors. Throwing the book at them will only make them scared of the Open Source, and that is the one thing we should never do.
This is only my $0.02
Muchas Gracias, Señor Edward Snowden !
What if you read the source code of a GPL program
then use the ideas from that code to produce
a NON-GPL program but you were mentaly infected
by the GPL code would that program fall under GPL??
Something to think about
http://theotherside.com/dvd/
If I had any moderator points.. hmm.. well, ok, if I moderated, cuz I'm sure I do have points, I'd moderate this up to 5, "It's a gorgeous saturday and I'm fucking blasted on 4X Espresso and you replied in a sort of funny way to my post."
everyone go buy all of Modest Mouse's CDs. they kick ass.
--
bloo
i browse at -1 because they're funnier than you are.
This all depends on under what circumstances the patch was created. For example, the GPL states that all patches must also be under the GPL, while under a BSD license you can create patches that are licensed differently (though you have to enclose the original copyright statement if you distribute the entire program with patches).
Assumption #1 is false. Therefore #2, #3, and #4 fail due to #1 not standing.
Patches USUALLY are based on the program they patch, and your perspective may be clouded by an incomplete experience with only such patches. Your logic seems sound for those cases (patches that are derived from the original), but it does not apply to cases where patches are not based on the program.
The RESULT of the patching, taken as a whole, can inherit only those rights derived from BOTH sources (the original the patch applied to, and the patch itself). For example, if the original does not grant a certain right, the patch cannot add on that right.
If the rights granted by the patch are mutually exclusive from the rights granted by the original (suppose the patch requires distribution in binary without source and the original requires distribution of source) then the result grants no rights whatsoever (null set).
GPL is safe in that a patch cannot add new rights (GPL is a license that essentialy denies a lot of rights, including denying the right to DISTRIBUTE with any rights changed). It can take some away, but that's just a deadend branch of the tree of distribution for said rights since distributing such a derived work isn't granted by GPL. However, a patch that is NOT derived from the original (and I have written such patches before) does not have to be licensed under GPL.
Therefore a patch with a license in conflict with GPL, and not derived from the original, can be distributed, and even applied, but the result most likely cannot be further distributed.
now we need to go OSS in diesel cars
Is a patch derived from the original?
That has to be answered on a case by case basis. Most patches are because the usual way in the UNIX and OSS world is to edit a copy of the original, and generate the patch from a difference between original and the new work. That kind of patch is definitely derived from the original, and definitely must adhere to the rights granted by the original. GPL is clear on how derived works must be covered by the same license.
It is possible to generate a kind of patch that is not derived from the original. The singular case is a patch which deletes the entire original and replaces it with entirely new code. As long as that deletion is done in a way that has no prior knowledge of the original, then the license of the original clearly does not apply. The license of the patch would prevail.
If a patch is not derived from the original, but is written with the knowledge of the original, then this might be questionable (consider some of the reverse engineering cases). Context patches would have bits of the original so those don't fall under a non-derived patch. But would a patch that only identifies line or byte offsets, or file names, and provides replacement code, be a derived work? IMHO, the answer to that is no.
Given my previous opinion standing, if you took an original work, and a patch, and applied the patch, the rights you have in the result would be the set of rights that is in common in both sources. Since GPL gives no right to distribute with any rights other exactly the set granted by GPL, the resultant rights would be the null set unless the patch also was GPL.
now we need to go OSS in diesel cars
Sure, if you make the patch using the method most common in the UNIX/OSS world, which I assume is the only way you know how to do it, then, yes, that is a derived work.
A handwritten patch that doesn't include any context or other bits of the original is not derived from that work. It can modify it, and that result is derived from both, but this doesn't mean the patch must be derived from that work.
now we need to go OSS in diesel cars
I guess we disagree in the gray fuzzy area between dervied and original work. The definition in USC 17 doesn't apply in my mind because I don't considering it to be "based upon" in the way the law is using it.
A compiler takes a work in the form of a source code program file, and produces an object code output file that can be (with maybe some other stuff added) executed in some way. The object code output is a derived work, but the compiler itself would not be considered derived from the input file just because it can do something with it, since it can also do stuff with anything else in the range of the language it compiles. Not all patch types are so simple as to have to be applied to one and only one. Indeed, a "patch" that totally deletes all the original code and inserts its own could be applied to just about any code and perform its intended function correctly. Why would this patch be any more a derived work than the compiler? At what point to you consider a patch to be a derived work? Where do you draw the line?
now we need to go OSS in diesel cars
So if you can create a handwritten patch without ever looking at the original source, that would probably be a separate work. Anything else IMHO is a derivative work.
Moderators, do your duty.
The rest of your post I agree with.
I think I see where you're going with this. I don't consider a patch to be a derivative work of the source that it is patching simply because it modifies the source. I consider it to be a derivative work because whoever authored the patch put time, energy, and thought into creating something that is obviously a derivative work of the original source code, and then created the patch by extracting their changes from that derivative work.
No offense, but I think in the process of trying to maintain your point you have completely changed the definition of a patch. The equivalent ofrm -rf originalstuff/*
cp -a myunrelatedstuff/* originalstuff/
Is not a patch in the usual sense of the word, and I do not consider any code that does the equivalent of the above to be a derivative work of whatever code it is replacing.
I get the feeling your trying to catch me on certain extreme cases, most notably a 'patch' that can be applied to just about any source code. I would argue that such a patch would not be copyrightable anyway because it would have to remain extremely simple in order to successfully patch unrelated works. For example, something that replaced
void main()
with
int main()
is not copyrightable because it is so simple, so it can't have a copyright license anyway.
Of course, if someone created a patch that was supposed to be applied to 5 specific works (just as an example, and this is assuming that such a patch could exist), and in the process of creating the patch they put time, energy and effort into modifying each of the 5 works, I would argue that the patch is based on all 5 and the creator of the patch has some pretty severe legal problems if he's distributing it, unless all 5 works used the same copyright license and the patch used that license also.
I think it's clear now that there is no simple answer to this question. Each case has to be considered individually, using a common sense definition of "based upon".A generic rubric that applies to all cases does not exist. There is no solid, distinct line to be drawn.
RIGHT ON! Of all the innumerable posts on the GPL I've seen on Slashdot, this is probably the one I agree with the most. Moderate this up, please.
I've personally been very turned off to the GPL by all this navel-gazing, and debates that make about as much sense as: how many angels can dance on the head of a pin? All this negativity about how you can't do this, or that - or what license is compatible with what other license is nuts, and very off-putting.
The fact that there's so much controversy and debate as to what the GPL does or doesn't allow kind of tells me that it's a poorly written license. Why people would be so hell-bent on cramming such an unclear and confusing piece of crap down other people's throats is beyond me.
It's sort of turned into some kind of weird religion, the stupid thing could just as well start of with: "I am the GPL, thy license..thou shalt have no other licenses before me!"
That sort of absolute, mind-warping, conform or else, everything I touch belongs to me attitide the GPL is putting out is going to be really drive people away.
As far as I can see, you should be able to release a patch under almost any license you want (the excerpts from the original source that a patch needs should be covered under fair use for any reasonable patch). However, any binary you produce is a derivitive of both the original (GPL) code, and your patch. In this case, the resulting binary would be subject to the copyright restrictions of both the original GPL code, and whatever you put on your own patch, so all the freedoms and restrictions of the GPL apply to the binary.
The only reason I can see to not distribute a patch under the same license as the original code is if you wanted people to be able to do anything with your patch itself, in which case a BSD style license on the patch might make sense. Of course if the licenses contradict each other, then you couldn't distribute the binary at all, so that isn't very useful, so in practical terms the licensce on the patch must be GPL compatible (ie allow modification, redistribution etc).
First.. Your patch can include less of the original code than is required for the copyright laws(etc.) to kick in to apply the patch in to the right place.
Which is how many? Sorry, but I think the idea that there is a particular number of lines of code that will trigger copyright laws is something you just imagined.
At the end of the day, whether something is derivative is a judgment to be made first by the people involved and if necessary by a court, either way taking into account all the facts of the case, it's not an exercise in mathematics.
Okay, I posted too fast and you do go on to say that it may be derivative anyway. But seriously, the question of whether it is derivative is the important issue, and the inlusion of code from the original is just one indication that it is.
There are fundamental differences between the GPL and a shrinkwrap commercial license, and they can be found in clause 5 of the GPL:
First, the GPL does not attempt to restrict your use of the program. Second, when you buy a commercial package, First Sale doctrine grants you certain rights including the right to use the program. If you download a GPL'd program, nothing automaticaly grants you the right to change it--copyright law restricts you from doing so without the permission of the author. The GPL describes the conditions under which the author grants you the rights to create and distribute derivative works. A shrinkwrap license (until UCITA passes) is an attempt by the company to convince you that by installing the software you are giving up rights which you gained when you and the software company agreed to exchange a product for money in the absence of any overriding contract at the point of sale.
These are two vastly different situations.
I'm curious about your definition of "libertarian" as applied to free software licenses. I assume you intend to group (at least) the non-advertising BSD and X11 licenses as "libertarian free software" and the GPL as "non-libertarian free software." I see the distinction you want to draw--the X11 and GPL licenses have different aims, and try to protect different freedoms.
You seem to be classifying as "libertarian" only those licenses in which the author has given up his rights under modern copyright law to exclude others' use (the basis of property in general, and copyright in particular). Does your definition of libertarianism not include the right of author to control his work?
I ask, because the (modern) definitions I've seen generally do (although here's The Libertarian Case Against Intellectual Property Rights)
I had to ask myself, did I really care?
The result of this mini-poll, a resounding NO!
For it to be a derived work, it needs to contain part of the original work. As long as a patch to a GPLed code does not contain parts of the original code, it needs not be under GPL.
See, for instance, BSD's ports.
(8-DCS)
The GPL covers both distribution and modification. Patching a source file is modifying it. You may not patch a GPL source file with a non-GPL patch.
-- The act of censorship is always worse than whatever is being censored. Always.
This is a bad argument. The judge wasn't asked if the patches were derivative works, just if customers were allowed to apply the patches and create their own derivative work. I would expect that the right to apply the patch comes under the "fair-use" clauses. The right to create and distribute the patch is an entirely seperate issue.
Anyone know more about the case? All I saw from reading the WWW page was that the author took a narrowly specified decision about fair use and said it also applied to the distribution of the patch. If this is really what was said in the ruling is the crux of the question being asked today.
As I think about the problem, console games are never patched themselves, so everyone has the same version. Therefore, there is no need to include any original source in the patch, and the patch can be developed using clean room methods. Since reverse engineering is still legal (barely), Galoob gets away with the development and distribution. So, Nintendo tries to stop them by attempting to get a ruling saying that it was illegal to use, so it shouldn't be shipped.
However, Galoob's methods wouldn't work for GPL source patches, since they would include portions of the original source code, becoming derivative works, unless the patch was re-done in clean room fashion for each new release.
Jason PollockBasically, I understand BTK to be saying that because your are patching an original work (you had to start somewhere) like Apache, or in someone elses example the linux kernel, it doesn't matter whos writing what patch code. Because the original work was GPL'd, the language of the GPL in conjunction with US copyright law dictates that all subsquent "derivitave work" must be GPL'd in order to be released. The idea BTK is getting at, whether he realizes it or not (I cant tell because he's bantering with you now), is this: the _original_ program was released under the GPL. Any modification of the original is (DUH!!!) being _performed_ upon the _original_. Therefore, according to RSM's GPL, the modification must be GPL'd. I think this is kinda obvious, when you look at the arguements provided by BTK. Now we aren't even looking yet at a patch of a patch, but personally I think it's retarded to consider this. Consider this, if a lawyer pushed the definition of "derivative work" so that a modification of a modification could be released under a different license, it would create such a legal precedent that everyone would jump on the bandwagon to modify modifications of various software. Just think, i could patch a patch of windows and publish the new derivitave work under the GPL!
At least thats my angle on BTK's statement.
mrbob
Sorry dude for the typos... whats my excuse at 11:30 in the morning :-) I must have just woken up! It looked to me as if whatszizface got you off on a tangent and i wanted to explain what I understood you to mean so that others might see the angle.
mrBoB
So you make a patch under a closed source license. (With NONE of the GPL code) Now, you want to distrubate a binary. Oh, whoops, you have to apply the patch and compile. Then it's all under the GPL again. Remember, people, even even _linking_ to a GPL library (unelse it's LGPL) makes that program GPL.
It strikes me that a key idea is being missed over and over again. Let us assume 1) a GPL'ed program for which you have source, and 2) a 'patch', which is not GPL'ed.
.o, under a non-GPL compatible license. A second person could then link the object in with a GPL program. Personally, I think it is beyond the scope of the GPL (or any license) to dictate that the object patch is now GPL'ed. It was through no fault of the patch author that it would seem to violate GPL, if the second person were to then distribute the program. The same applies in the opposite direction.
Is there anything to say that a patch must be compiled into the same object code as the main program, pre-link? If not, then one could distribute a patch as a
>MS has a history of embracing *new* technologies.
Yea, that is why the calls in MS-DOS look like CP/M and Dave Cutler says that "NT is the chance to do VMS right".
Or Microsoft said "NT 3.1 will be a better Unix than Unix"
Or how Microsoft admitted that they took the Windows idea from Apple, but because Apple was sloppy with the contract to M$, they ended up loosing in court/settling out of court for the $150 million dollar payment in 1997.
Right, all that NEW technology.
If it was said on slashdot, it MUST be true!
There'll have to be some kind of a limit that eventually will be determined in court. Maybe it should be related to the function of the lines in question or something else. All code is very similiar and comparing two programs would result in rather large amount of matches. Programmers have a tendency to use similiar variable names(h,i,j,k,l, etc.. for loops) and same structures (hey, it's the programming language imposing these restrictions). Would these (even though unintentional) similiarities qualify as a violation of copyright laws?
What I had in mind originally when posting the comment were the copyright laws concerning the music industry. You can "borrow" a sequence of up to 10 seconds(or something like this, correct me if I'm wrong) without having to worry about lawsuits. Same (sometimes long) sequences of notes or chords do occur in a rather large amount of songs(they just sound better). It would only be logical that same kind of guidelines would apply to source code.
So suppose you make a mod to Quake. Include less code in your patch than it takes for copyright laws to be effective(or just use line numbers) and license the work using whatever license you want - as such it is not a derivative work. Distributing the patch should be allowed without a question with whatever license. You're merely distributing a way to modify something else. You're not violating the license of the original code in anyway as there is no original code involved.
Now, note that I didn't say anything about applying the patch or the end result - these should be different issues. If someone distributed the original work with the applied patch then there would be trouble. Incompatible licenses etc. would surely take someone to court but this need not be. As long as you distribute the original and the patch separately and let the end users do the patching and keep the result to themselves there shouldn't be issues.
There is one small issue that I'm aware of that could be a problem with the previous reasoning. If the original work is required in order to make the patch in the first case then should the patch be considered a derivative work. Even if the patch doesn't have anything from the original code and the original code is used more as a reference.
In my opinion no. Consider school books, for instance. Those are surely copyrighted and you are not even allowed to make copies of them but when you use the knowledge gained from them to create something it surely isn't considered a derivative work. Why should it be different for source code(essentially a cookbook for the resulting program)?
This makes the patch supplier a co-author of the program as well, no matter the size of the patch. If you accept patches for your GPL/LGPL program, you must get permission from everyone who provided patches in order to release the program under another license.
It may be that in court they would rule a particular patch too small and inconsequential to consider the person a co-author, but do you really want to risk that and possibly end up in court in the first place?
If you manage a GPL project that accepts patches, be sure to keep track and provide credit to all contributors. If you wish to change the license, make sure you speak to everyone who modified the code first.
Providing a program under the GPL with the intent of leeching off of the friendly help of other open source developers, with a future intent of screwing them over by making the program proprietary, is very selfish in the first place.
-- Twivel
You CAN however, distribute a patch under the GPL seperately from a program under another license. Then the end-user must patch the software before they use it. But that user cannot turn around and redistribute the consolidated(patched) code as a single package.
The GPL was very carefully designed to force code to stay GPL. That means GPL code cannot be included in non-GPL code and then redistributed.
Now, to reply to your question, for a non-GPL patch to work within the GPL, it must be compatible with the GPL. It cannot put other restrictions on the patch beyond those within the GPL.
-- Twivel
Say I write a program called widgets.c and release it under the GPL.
Someone else can release a widgets.c.patch and distribute it under the BSD licenses.
BUT! They must be distributed seperately. A user can download both widgets.c and widgets.c.patch, then combine them for his/her uses. But no-one can combine them and then REDISTRIBUTE them.
The GPL mostly covers distributing code, not using it.
This is important to note, because a "company" is considered by law to be the same as an indivitual (or end user). Microsoft could take Linux, modify it to their hearts desire, and use it internally without releasing their code changes. Richard Stallman has affirmed this and said it is not a concern.
-- Twivel
However, because MSLINUX is opensource, we can modify it so that it works on its own without having MSOFFICE accompanying it. If on the other hand it is impossible to use MSLINUX without MSOFFICE, then one could say that MSLINUX is nothing but vapourware...
IANAL, but it would stand to reason that a patch is merely a "derived work" based on the original, and that it would fall under the derived works category in the GPL. We shouldn't be concerned about patches, though. It is entirely within the scope of the GPL for a company like Microsoft to distribute free software (LINUX?!) with its proprietary software (Say OFFICE), and charge a fee for both. Sure, you could copy MSLINUX to your heart's content, but MS could very well engineer it so that MSLINUX won't run without the proprietary accompanying MSOFFICE software, which, of course, is copyrighted and falls unders a restrictive license. Voila! Free software can be exploited by the industry in spite of the GPL. Sure, you could run a "free" version of LINUX, but MS could very well engineer its software to run only on "their" distro...
The society for a thought-free internet welcomes you.
There is one problem with GPLing a patch. To make any use of the patch the user has to take the extra step of getting the GPLed program. This *might* be anoying enough to reduce the usage of such tricks if they are found to be a legal way of getting past the GPL.
Then aren't FSF GPL'd things like 'cat' and 'tar',
etc. derived works? I don't think anyone is going to steal GPL'd code until its quality improves and its coders become innovative.
... see - no text ...
If you start with libertarian (non-copyleft) free software, its seems you can use any license you want for a patch. These licenses don't restrict what you can do with derivative works, and patches are surely an embodiment of derivation. But the GPL gets into what you can do with derivative works, for better and for worse.
the patched code once applied to
the gpl app would have to be under the gpl.
but the app doing the patch wouldnt
likely have to be.
If i patch the origianl gpl code and distribute
binaries i would be required to distribute
the patched code but could keep
the patch itself to myself.
This could get really wierd...
lets say i patch a gpled app and distibute
binaries anyone that has the binaries
has a right to the source code as i compiled
it and has all the gpled rights and
responcibilities that go with it.
but i could keep the patch to myself or release
the patch under a different licence but once
its part of a gpled work its gpled.
lets say that my patch is actualy a
program in
itself it can either be ran as a seperate app
or as a patch to a gpl app.
I can release it stand alone under whatever
licence i want but the patch code put into a
gpled app is gpled.
So it seems i would have to duel licence it gpl and
other to allow it to be used to patch gpl code.
note: this might be totaly wrong but
from looking into licence issues this
is the conclusion I came too
and might get my butt
sued off if i tried it.
This posting looks remarkably familiar. I'm struggling through with my slow modem connection to find the posting in a previous Slashdot discussion. I seem to recall an argument where the GPL was being enforced on a renegade trying to release binary patches to the Quake code NOT under the GPL. Help, someone with a faster connection?
Ron Gaw
I'm sure John Carmack will say something about it :)
:)
As you said, it's never been tested in court, so it should be interesting to see how this goes over.
My opinion, since I know you all want to hear it, is that any time you do something to a program that directly affects the binaries, it becomes a part of that program, and is therefore under the same liscense as the original code. Besides, it's just common decency. After all, where would your code be without the original author's efforts?
Program with respect, decency, and regard for the original authors creative intentions. This is, after all, his/her baby.
If you are the original author, you can do whatever you like with the code, but treat mine as if it were my child. You wouldn't spank my child would you?
When, and I do mean when, we opensource Natalie Portman (along with other hot young actresses), how will patches affect the liscense we release her under? And what liscence will we release her under? These are both good questions.
I propose the GRITS (Generally Redistributable Information and Technology Software) Liscense. Despite the name, anything from actresses to boats can be released under this liscense.
This liscense clearly states that all derivatives of GRITS protected software will be released under a seperate liscense, the HOT (Honor Open Territory) liscense. The HOT liscense was divised specifically for this purpose, as a way of keeping people within the boundaries of the original liscense, while allowing them to creativly alter the opened source (hence, honoring the open territory). Hopefully, a second liscense will clear up any questions anyone has about additions/patches/mods to our hot young actresses.
We urge more developers to adopt the HOT/GRITS liscense as a way of clearing up confusion.
--
i know im gonna get moderated down for this
--
I think that the essence of this topic is not the question "is a commercial patch illegal".
*This* is our topic: <i>we should probably modify GPL because the legality of a commercial patch is questionable</i>.
Otherwise we'd get the same discussions in court. See OpenDVD. See any court session. As long as something is questionable, the people who can pay the best lawyers have a good chance to win without being backed by any law whatsoever. Justice is nothing more than psychology. If we don't put this black on white, and that famous first GPL court test starts, and it is about patches, this might be overly dramatic.
Fill up this hole in the GPL!
It's... It's...
"We can confirm that Debian does *not* ship the version with the trojan horse. Our version predates it." [CA-2002-28]
If the person manages to write the patch without referring to the code, then I assume the patch wouldn't be covered by the original software's license. Of course, this would be a bit tricky. Also, the burden of proof would be on the side of the original software's owners if they chose to sue - try proving that someone didn't compose the patch out of thin air, using pure luck or pixie dust! :o)
Game dev and music blog
A patch is always derivate, it's in its nature. Even if the patch itself contain 100% original code, what would the patch be if it wasnt for a program (derived from it)...? It wouldn't be a patch. The line is pretty clear. Anything that patches a GPLed program is a derivate work from that GPLed program and thus falls under the GPL itself. If the patch doesn't patch a GPLed program, and isn't derivate from one, then it isn't a patch anyway.
Tomorrow will be cancelled due to lack of interest
If there is a hole, GPL should be "fixed" to plug it. If there isn't a hole, perhaps the GPL should explicitly mention this -- i.e., to list how patches work.
The Mongrel Dogs Who Teach
If you use (in any way) the source of the original program while creating the patch it is to be considered derivative work. AFAIK it is nigh on impossible to create a patch for a program without using the source code in any way. Note I'm using the word "use" not "include". By reading the source of the original to figure out how to create you patch you are using the source, and you patch must be released under GPL. If you read a document explaining the interface between various objects in the source to create a patch without reading the source you are still using the source. If you in any way gather information about the program that wouldn't be available to you without the program being under the GPL and using that information to create a patch you are obligated under law to distribute the patch under the GPL. Are we all clear on this now? Can I go home?
"If you in any way gather information about the program that wouldn't be available to you without the program being under the GPL and using that information to create a patch you are obligated under law to distribute the patch under the GPL" I meant: "If you in any way gather information about the program that wouldn't be available to you if the source wasn't available to anyone but the original developer and using that information to create a patch you are obligated under law to distribute the patch under the GPL"
As for getting over multiple occasions of the same line - all these problems have isomorphic problems in the original patch, so we just have to do whatever patch does, only using hashes instead of explicit text. I'm not sure how it's solved there, but you can probably ask Larry Wall :)
A more interesting problem that has occured to me is that even the actual patch text of a line gives it explicitly - so we might actually have to use a sort of 'character-based patching' (i.e. something like "add the word 'i' after character 5") to avoid giving away anything that was in the original text.
Anyway, I think it has all become irrelevant because according to someone else's post, even this sort of patch is considered "derivative work" under the GPL. Ah well.
It's boils down to something like replacing "put '++i;' after 'if (p)'" to "put '++i;' after the line whose hash is 06A204EF". A proper hashing algorithm, like MD5, can give you both a very high certainty (as in, one in 2^128 or so) that you're patching the right line, but give away nothing about the original text (which could still be one of 2^infinity possibilities, any of which would be computantially impratical to find).
The interesting question is whether an MD5 of a portion of GPL code is considered itself GPL...
It's the kind of question that makes me want to just forget the whole issue and go to sleep.
This question is actually very simple. Each piece of separately copyrighted code is subject to its own license (altho the question of derivatives makes it a bit more complicated). However, these licenses _must_ be compatible or you cannot combine the two separate pieces. For GPL code you can probably place a patch under BSD (without ad clause) license, but the work in whole will still be subject to the GPL (unless the patch code again is extracted and distributed under its own license).
If the license is not compatible with the GPL combining the works will result in an undistributable source, an undistributable binary, etc. Even placing the patch and original source in the same directory or related to eachother on an ftp site may constitute an infringement depending on the interpretation of packaging.
Of course, ianal, etc.
For some extremely stange reason hacker who can understand most convoluted perl or C code can't understand simple wording of GPL and Copyright Law. For that reason these topics are rehashed again and again.
Sanity, none is forcing you to do anything. Don't you think you would be bound by honor to respect the wishes of the original author no matter what the law says? That said, you do not have to license the patch with GPL, XFree style license or any other GPL compatible license can be used. Whole work (patch+original) would still be covered by GPL.
Frac, you can simply add a clause in your program stating that it is permissible to link with QuakeIII or whatever non free code you need to use in your project. However be careful! You can't use any other GPL code by other authors in your program if you do this. If you use plain GPL, licensing terms will be nonsensical and no one will be able to satisfy them and rebistribute your program.
I mean, seriously, if there's a potential hole in the license, why doesn't the license change to plug the hole? It won't grandfather, but it will prevent this debate from being carried mercilessly into the future.
Change the GPL, effective a certain date.
According to the CONTU Final Report, which is generally interpreted by the courts as legislative history, ``the right to add features to the program that were not present at the time of rightful acquisition'' falls within the owner's rights of modification under section 117.
Note that, since it's not copyright infringement for you to apply a patch, it's also not copyright infringement for someone to give you a patch. For example, Galoob's Game Genie, which patches the software in Nintendo cartridges, does not infringe Nintendo's copyrights. ``Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work.'' Galoob v. Nintendo, 780 F. Supp 1283 (N.D. Cal. 1991), affirmed, 22 U.S.P.Q.2d 1587 (9th Cir. 1992). See also Foresight v. Pfortmiller, 719 F. Supp 1006 (D. Kan. 1989).
I guess you could do a binary patch -- but I think you'd have a pretty hard time claiming that /nothing/ in the resulting binary was from the original code.
In other words, this is pretty much a mute point.
--
-- Slashdot sucks.
Assuming you could interpret the GPL so that you could release the patch under a different license, how would you distribute the resulting binary?
The original code is still GPL'ed, and that requires that you make available the sources that were used to build the binary. So anyone who wanted to distribute the program you build would *have* to be able to redistribute either your patch or the patched code. Maybe you could give the patch to people, but you'd have to tell them that they can't redistribute the binary they build unless you give permission to distribute the patch too.
My point is that even if you can distribute a non-GPL patch to GPL code (and I don't think you can), it isn't much use. Your new licensing conditions would have to say that the licensees can't redistribute, and you'd have to enforce that, or you and the licensee are both in violation of the GPL.
Sounds like you're tilting at windmills here.
--Jim
1) GPL covers DISTRIBUTION not modification. You are free to modify your own copy AT WILL
.sig: Join AMSAT
2) You are not free to distribute the MODIFIED FORM of a GPL'ed work, except under GPL.
3) The question of whether you use DIFF or PATCH to generate changes is irrelevant. A GPL'ed program may be used to generate non-GPL'ed works, like The Great American Novel (or Great Asian OS). In the case of DIFF, the 'source code' is just data, just another textfile.
4) Unlike GPL, many licenses contain language to forbid the processes (e.g. reverse engineering) required to create your own patches, or forbid unauthorized alteration. (This is a gray area. The interpretation and enforceability of such language is subject to the time, place, laws, and other details.)
5) IF you have the right to modify your own copy, you may use a program to automate the process. It can even ship on the same CD. (There is no code apartheid! GPL and non-GPL'ed source/binary often exist on the same media.)
6) A court may look askew at "mix your own" boot CD's that say "Do you agree to our license?" and then automatically install/modify in one apparent step. Then again, it may not. That's for a judge to decide. Whether something legal is 'effectively' something illegal is one of the slipperiest issues in law. Often judges allow obvious circumventions (going around a one-way street to get to the other end is allowed; while training your parrot to shoot your wife isn't)
7) "clean room" code writing *does* exist, whether you can 'imagine' it or not. Given that, the actual code that is patched into the original may owe nothing to GPL code, outside of the general art of programming. If diligent 'clean room' can be documented, even identical code can be deemed to be 'coincidence' not infringement. So don't rely on commonality of code (or your imaginings) to protect your license.
8) Most users don't care. They don't read licenses. They certainly don't base their purchase decisions on that stuff.
9) It's awfully easy for a lot of people to insist on their right to do something, and fume at others for doing it, in the same sentence. Being a hacker doesn't entitle you to drawback-free solutions. In fact, hackers need to understand the need and ubiquity of compromises. If you don't get that, I hope I never see your code, much less install it on my machine.
10) AFAIK, GPL has not been proofed in the courts. Even if it was, licenses get broken (it happens), and when they are provebly broken, the result is usually a settlement, not eternal damnation. After all, licenses exist for commercial purposes, not theological ones.
My new
If you can go to bed, knowing you did a valuable thing today, you're very lucky. If you can't... it's not bedtime
But a patch is NOT derivative! It doesn't matter one bit how dependent is upon the original. It is the equivalent of marginalia.
:-)
However, the *USE* of the patch in its intended manner will create a derivation of the original.
Like references, I think that this is something overlooked by copyright law. In my non-legal opinion, it would make sense to me to treat patches as separate and distinct works, but that the result of applying the patch would be a derivative. Thus one could have an MPL patch for a GPL program, whose result would be a GPL derivative, but one could also have a GPL patch for a MPL program that would be unusable unless the patch's author granted you a waiver to apply it
A Government Is a Body of People, Usually Notably Ungoverned
US Code, Title 17:
GPL, Section 0: GPL, Section 2:- a patch to a GPLed program is based on the program
- therefore the patch is a derivative work of the program
- the GPL requires that derivative works that are distributed be licensed under the GPL
- the patch must be GPLed if distributed
QE FUCKING DThe only reason the lawyer's answer is 'it depends' is because a lawyer is paid to take a side and 'maybe' it to death.. Then a judge decides which lawyer is closer to what side of the gray area.
You cannot imagine how mistaken this is. The lawyer answers the question posed to him, and very, very rarely is any interesting legal question clear. This derives from the very nature of law (and the limitations of language), and not from any commercial desire of the attorney.
----
I tell a joke, probably more humerous to lawyers who have lived it:
I went to law school, and being a quick study, discovered that our professors weren't at all concerned with the answers we derived -- they wanted our analysis (issue spotting). Accordingly, they didn't give a damn about the answers, it was the questions!!!
I clerked for a firm the summer after my second year, and being a quick study, discovered that clients didn't give a damn about the questions we raised, but merely wanted the answers.
And then, being a good clerk, I went to the library, only then to discover the great truth of the law: there are no answers.
-----
I stated that this question was gray not because of any passion for one result over another, and certainly not because anyone was paying me to "maybe it to death." Trust me, subject to my prior qualifications, this is a maybe.
As I understand it, the way the GPL works is that the author first copyrights their work, making it illegal for anyone else to distribute or modify it. Then the author offers a licence (the GPL) which, if the user accepts it, allows the user to distribute and modify the software under the terms of the licence.
The licence is somewhat restrictive as to what types of modification are allowed. Specifically, you may not modifiy a GPLed program *AT ALL*, unless the resultant work would be covered under the GPL.
Assuming that it would be possible to create a patch that was not derived work of GPLed code, it would still be illegal to apply the patch if the resultant work was not GPL covered.
So, creating a non-GPLed patch for GPLed code would be legal but completely useless.
-- The act of censorship is always worse than whatever is being censored. Always.
It seemed to me that if I created a patch to a piece of software (which can be viewed as an algorithm which modifies some source code in a particular way) then I would have the right to put this patch under whatever license I liked.
What hogwash. A "patch" is not "an algorithm for changing code." A patch is derived work.
Derived work comes from the fact that you had access to the original code, and you changed the original code to do something new, or to fix something that was a problem. The "patch" itself is derived work because you derived how the patch worked from examining and mulling over the existing code--that's what is ment by a "derivitive" work.
Now if you built a tool like diff or patch--that's a new algorithm. But you didn't build diff or patch, did you?
I contacted RMS about this and predictably he claimed that the patch would fall under the GPL -- yet this view implies that software licenses are much more powerful than many people instinctively might think -- and if true, has some frightening implications."
Frightening to who? Someone who wants to steal someone else's hard work and misappropriate it?
As much as I disagree with rms on a number of basic issues, on this it's pretty clear that the intellectual property behind a particular piece of code often represents months or years of work--and is a very valuable thing. The author has the right to see that his code and hard work is used in a way which is consistant with his goals--be it to give back to the community through the GPL or to make money.
To think that you "instinctively" believe that the restrictions of the GPL is counter to how you believe you should be able to rip off someone else's IP (and hard work) is to instinctively believe that there is no intrinsic value in the software you received under the GPL license. That is, it's to instinctively believe the hard work the other programmers put into this product are worthless.
Just because you get the source code does not immediately mean you get to "disrespect" the programmer who, through his good graces, allowed you to see his/her code on his/her terms.
Clearly not -- but where is the line drawn here? Surely this is a Pandora's Box of problems, and it concerns the GPL at a fundamental level."
It's only a "pandora's box" to someone who doesn't have a clear grasp of IP issues, or to someone who doesn't have any respect for the hundreds or thousands of man-hours that went into a piece of code.
If you examine someone else's code and make changes to it, the patches make a derived work. And unless you are a friggen' psychic, the patches themselves were derived by comparing the derived work you built against the original GPL'ed code, so are themselves inherently GPL'ed. (I have never seen a patch that wasn't derived by running 'diff' against the modified (GPLed) and unmodified (GPLed) code.)
A program that automatically makes changes to a program does not have to be GPLed. However, it's results against a GPLed program is GPLed. And unless your program is psychic and able to create diffs without even receiving a GPLed program as input, the patches are again GPLed as the patches were undoubtedly created by running 'diff' (or the equivalent) against the program's input (GPLed) and output (GPLed), and thus is also GPLed as well.
I think the confusion comes when some twit thinks that he has the inherent god-given right to look at anyone's source code. That ain't true. You receive permission to examine the code through the GPL license. And according to the GPL, in exchange for permission, you must keep all derived works to the original work GPLed as well.
Once you understand that, and understand as well that just because you have someone's source code doesn't mean you inherently have the right to disrespect him by doing whatever you feel like to the code (in essense, ripping off the original programmers), then perhaps you'll grasp the fact that it's intellectually dishonest to claim that your patch is not GPLed because you ran 'diff' against your (necessarly GPLed) derived work.
Again, unless you happen to be bloody psychic and are able to create a derived work of the original work without ever examining the original.
If someone can creat a GPL'ed patch to a non-GPL'ed source code, why can't someone else creat a, say, artistic license patch that patches the GPL'ed patch? Although GPL virtually prohibits people from adding code that isn't GPL'ed itself, what gives LAME the right to apply GPL to the ISO Dist10 mp3 encoder source code?
If the GPL says it can, and if the other license permits it, there is no reason why a derived work of an opensourced work cannot be "closed" into a GPL lock.
For example, if someone releases a piece of code under the BSD license, there is nothing in the BSD license that prevents you from placing the derived code under a different license, so long as you continue to give Berkeley it's due on all your printed matter. (I think Berkeley has changed their license, but I haven't looked it up lately.) That's what allows people to take BSD licensed code and close it up as a proprietary system: they're free to relicense their derivitive works any way they see fit.
The BSD license (and other, similar licenses) permit you to relicense derivitive works under any system you wish, including the GPL.
The GPL is different, however: it's designed to keep the software open by forcing all derived works to be licensed under the GPL as one of the terms of the license itself. That is, in exchange for the right to review GPLed code, you must GPL your changes as well. That's why you cannot release a patch of GPLed code under BSD.
Some people may whine about how the GPL prevents them from doing this or that. I also wouldn't trust those people to house-sit as they may steal your china and silverware.
Consider this:
/first/ for a relicensing of the codebase, and /then/ they could redistribute the patch (since then it would be for a codebse (their codebase) that had the correct license).
/force/ them to go and ask for a relicensing of the codebase to distribute a patch that was under a license differing from the original codebase.
If [distributed] patches to any source base, were by definition required to be under the same license as the source base they apply to, that would force people who wanted to "hijack" the system to actually go and negotiate with the owners/maintainers of the codebase,
For example, some company could not then take the Linux codebase, write a humongous whomping patch under a proprietary license, and then sell a proprietary, closed Linux with the patch under their closed license. They would first have to go to Linus and say "Hey, we would like to RELICENSE your codebase". If that was OK, then they could actually distribute the patch because now the patch would conform to the codebase they had relicensed. It would
There is probably leeway here in terms of compatible licensees. Probably it would be fine to distribute a patch under any official Open Source license for code bases under other official Open Source licenses.
It's 10 PM. Do you know if you're un-American?
Since you wrote your code, you can distribute your patch under any license you wish, including multiple licenses simultanously.
So if you were to write patches for the gcc, you could distribute them under any license you wished.. If you wanted to distribute them with GCC, you would have to offer to distribute them under the GPL. But you still retain copyright for your patches and you could license them as-is under any number of licenses you wished... (Say, you create a big patch to GCC that lets one super-optimize a program. You distribute those patches with GCC so you have to offer them under the terms of the GPL. BUT, if a commercial compiler vendor also wants to use them, you can license your patches and code to them TOO with whatever terms you wish. Or you can incrementally reimplement the rest of GCC until you have a functioning version that contains no GPL-licensed code in it. If you do this, then since you own the copyright for the entire program, the GPL doesn't apply. (Example: Berkely reimplementing those last pieces of BSD to get it out from under AT&T's thumb.)
So overall, the GPL is not unfair. You always posess your patch and your own code. Copyright prohibits you from distributing THEIR code with your patchs/code.... unless you you satisfy the terms of the license. (the GPL/NPL/MPL/QPL...).
This is false.. You always posess your own code. See my other posts for details..
The GPL is not a software license. By copyright law, you have no permission to distribute the origional program or any derivative/patched work. The GPL is the only thing which gives you that right. You can distribute your patches any way you see fit with whatever license. You cannot distribute a patched program unless you are allowed to.. Which means satisfying the GPL.
You can license the patch under any license you wish. IANAL
What the GPL says is that you cannot distribute the origional program unless you supply source code. Nor can you distribute modified copies of the program unless you supply source code.
So if you have a patch, you could distribute a patch under whatever license you want. Proprietary for example.. But you cannot distribute the origional program which the patch applies to unless you also license the patch under the GPL.
I could make a patch to gcc and distribute it under the terms that if you use it you must give me your firstborn son. What I cannot do is distribute the patched version of gcc.
[Minor subtle point about the GPL] Copyright law gives me no rights to distribute gcc in any case (patched or unpatched). The GPL is the only thing that gives me the right to distribute it. By satisfying the clauses from the GPL, I gain permission to distribute it. So thus the GPL is actually MORE free than standard copyright. Because if the software is under normal copyright you'd have no rights to distribute the software or any modified copies at all. This is also why its different from a shrinkwrap software license. A shrinkwrap software license covers the USE of the software, not the distribution, which is what the GPL covers. (Though the software companies would like to claim that they are the same; you have to COPY a software into memory in order to use it. Therefore the license gives you the right to COPY it into memory. Or you can look at a shrinkwrapped license as contract.) This is also why the GPL is fairly safe under copyright law.
To get back on topic... You can make a patch and distribute it under any license.. But you cannot distribute that patch with GCC as a derivative work without permission from the copyright holder, or satisfying the terms of the GPL. Because the only way you can get permission to distribute GCC is by being willing to give full source code.
Of course, a patch alone is useless without the software which it is to patch.
So my opinion is that you would be subject to the terms of the GPL if you distributed patched binaries, if you distributed the stock GCC (and source code) and a binary-patcher. Or if you put the patch (with source code, but no rights to redistribute) and GCC on the same CD.
But one could reasonably claim that ANY patched program is a derivative work of the origional, no matter by what means its patched. (As the patch is useless without the program.. And the program is a seperate work before being patched.)
Because of this reason, I'd also say that distributing your patch and a script to download GCC off of the web might be in violation of the letter of the license.
I also note that all of these restrictions apply if you distribute a patched version publically. The GPL explicitly allows you to keep modified copies in-house. (So I could patch GCC and compile propreitary software all year, sell that software, and not have to give the source to my modified version.. But I cannot distribute the modified GCC binary or source code publically without satisfying the GPL.)
This all is IANAL, but that subtle point about how the GPL applies is important. The GPL is not a shrinkwrap license, it is a license giving you more permission than copyright. You have no permission to distribute the origional software unless you satisfy the terms of the GPL, and for a patch to be useful, it must be distributed with the program itself.
Good patches need to include some of the original code to be able to apply with context.
...To me they sound like they are a dirivitive work. You get the original source and produce a work, in this case your patch, that was dirived from the original program. The patch may not contain *any* code that was from the original program but it was dirived from that GPLed source.
That's why it's called a patch - no?
and that's the crux of the matter. The very concept of patch should preclude it from being licensed in any other way than that which the program is itself licensed. Look at it from the perspective of " what is a patch?".
We are all willing to accept that a patch is a forced change in an application for the purpose of correcting software defects (ie: Bugs) or for the purpose of enhancing the functionality. This means that what a patch really does is move the program to a point that would have been the original release in the first place- had the information prompting the patch been known ahead of time.
In other words, when an application is written the developer(s) writing it obviously didn't/don't know everything and do the best job possible to make the application solid/stable and fit for it's purpose. If it was known about *insert some condition causing problems* they would have put the code in to deal with it originally beforehand and never needed a patch.
Since a patch replaces components (in some form or another) it is really a direct replacement. Thus the only conclusion is that a patch needs be released under the same license as the original application; or (if possible, which it doesn't seem to be under GPL) the entire application is relicensed under the "new" license used by the patch.
IMHO (and IANAPatentL) it would have to be large enough to work outside of the parent body.
Without the original code, the patch is meaningless: you can't run it by itself, whereas you can run the parent program. Of course there's the situation where the patch exists to repair the parent program, but I assert that that "flavor" of patches are the least likely to have any claim to their own license.
Modules/plug-ins are a different story. They are not necessary, per se, but enhance an existing program. I could see users agreeing to licensing terms for a plug-in (although I might opt out most of the time, but that's just me).
Look - so you come up with some way to
apply a patch that doesn't contain any of the
original source code. (Get's around that
particular arguement.) But - what is the
end result after a patch is applied. It is
without arguement a derivative work covered by
the original codes' license. Further - I choose
to distribute this NEW derivative work under the
original terms of the original code. We're back
to GPL'd code.
If you have some silly license that doesn't allow
the result to be distributed under GPL - no-one will apply said patch. So then the arguement becomes irrelevant!
Have you compiled your kernel today??
/* Put on Aspestos Suit */
/* Begin Gripe */
I hate to nitpick (especially on a casual discussion forum such as slashdot), but why must so many users on slashdot, such as yourself, frequently insist on using the adjective 'said' out of proper context? Granted this particular discussion has some legal orientation, but, in general, outside of legal documents and business contracts, the adjective 'said' is simply unnecessary. Worse yet, such language needlessly detracts from clarity and coherance. While I can understand typos, gramatical errors, and the like as a result of inattention and/or less than perfect education, the use of 'said' is obviously an intentional act, and I think most people should know better.
/* End Gripe */
/* Remove Aspestos Suit */
That being said, I basically agree with your statements, even though i'm far from a GPL/RMS cheerleader. If someone wants to design/build/code something, they're free to dictate its terms of use. You simply have a choice to use it or not use it. So long as that licensing/agreement/patent/copyright doesn't restrict you from indepedently developing something on your own (e.g., not conceptual patents, like the "one click" stuff), there isn't a defensible argument against it. This goes for both propietary and Open Source'ish licenses. Sure, you can bitch to the owners and try to get them to change it; baring that, create your own, make your own license, and shutup!
In other words, I'll defend GPL's right to preserve its integrity, just as I'll defend propietary products that don't want to Open Source, and I needn't agree with either specific application of it. So while "bitching" and attacking RMS's reasoning may be appropriate, forcibly breaking or weasiling around the license is not.
The better world is one where each license and school of thought is allowed to play itself out, rather than allowing either school (read: propietary or "open") to dictate to the other.
Most licenses cover derivative works, and patches are usually derivative.
License is not copyright, however, so just because your work falls under a shared license does not mean you give up copyright to it. You may be asked to share that copyright, however. (See Apache Project)
A better question would have included the topic of binary plug-ins, which are sort of special case patches. In that case, you usually keep both license and copyright exclusive to the author.
There's plenty of info about this on the web, and it varies from project to project. There is no single answer for all licenses.
--
blue
i browse at -1 because they're funnier than you are.
The truth is always far more interesting. At first, the question must be more carefully fleshed out. If put too broadly, such as, "if I distribute this patch without licensing it under GPL, could I lose a lawsuit," the answer could go either way, depending upon the particular facts, the particular patch, how it is distributed and what the end-users do with it?
At the end of the day, a mere patch to existing code is probably more likely than not going to constitute a derivative work, subject to a claim of copyright infringement for its creation or distribution unless authorized by the author. From where can that authority be found? Probably not in the GPL, which limits distribution of derivative works unless they are narrowly licensed. That frames some of the issues.
There are others. The end-user will put the entire package together in some way, thereby creating a new derivative work. Was this authorized, even if the former was not? Here, the argument is stronger for the prospective defendant, but still unclear. If it is unauthorized, then the distributor of the patch will likely be subject to a claim of contributory infringement, raising a plethora of new issues.
The long and the short of it is that the practice would be highly suspect, and subject to a host of claims, the analysis of which requires ALL the facts, ALL the code and ALL the circumstances of its distrubtion, even to begin to list the legal issues.
I don't see patches (as such) to be a loophole through which GPL can be avoided, and tend to agree with RMS on this point. (Mark this -- this is an unusual confluence). On the other hand, I could not begin to suggest that a bright line rule that "no patches are free of GPL's heredity rules" either.
My general concerns are that GPL's hereditary principles are "too much and not enough," embracing content that makes it very difficult to have open source communities built around some kinds of works (such as monolithic images, qua Smalltalk), but leaves hypertechnical tricks such as those suggested here in some cases in the gray.
But if you think more deeply about it, that's probably just fine. Those who dig around in the penumbra will never have a clear answer to their questions, and it is more often the problem of the derivative-work-maker than the original author that the DWM's rights to the derivative work are suspect. Someday it may be worth litigating, but this is not a problem in practice, at least not for the free software community at large.
So, I conclude that its in the gray, probably the dark gray, that its probably a losing argument depending on the facts.
I also conclude that the doubt created by these circumstances is adequate -- someone who wants to live on the interstices of the SPIRIT of the GPL should have at most marginal "hope" that their conduct is legal. In practice, their ability to do harm thereby is limited by risk-averse users and shunning by the community at large. Let them whine about how they are "technically" in compliance, knowing that they probably haven't a legal prayer, and let them wonder whether they are right or wrong when they have to shave themselves the following day.
Sorry, its the lawyer's answer, but it is at least the truth: it depends.
IAAL, and my take on this, without deep analysis, would be that patches perform either or both of two primary functions: 1) software maintenance and bug fixing, 2) enhancements to code functionality. Therefore from a legal perspective the patched code is not a seperate code but in copyright terms it is a derivative work and as such subject to the terms of the primary licence - GPL, community Licence, whatever, and it is that that will almost always govern the patched code, not any separate or modified licence, assuming the primary licence handles derivative works properly. This will particularly apply if the primary licence makes reference to maintenance releases. To be capable of licence on its own terms, separate from the initial code, it would have to provide separate functionality as well, and in this case it would be a derived program not a patch. If the patch amounts to a new program, there may be a clash in copyright claims if a new licence is used. The bottom line is that a patch *may* be capable of being separately licenced *if* there is no clash with the primary licence but it will not affect either the use of the pre-patched program, it *may* not be applicable to the patched program either, and it will definately apply to the patch alone but that would probablt useless in practical terms. The premise of this article is an misunderstanding of copyright law. If you believe that you can take someone elses work, change it with a few patches and re-release under a new licence, open or closed source, you are mistaken - big time. And, as for a patch licence, what use is a separate licence for a bug fix?
"OK, so I do require the original code to generate this patch, but (assuming the patching software I use is efficient) the patch will not contain any of the original GPL code.
Good patches need to include some of the original code to be able to apply with context. If you don't include the original code the patch will not be able to apply on anything but the exact same version of the program.
As for the legality of those patches. To me they sound like they are a dirivitive work. You get the original source and produce a work, in this case your patch, that was dirived from the original program. The patch may not contain *any* code that was from the original program but it was dirived from that GPLed source.
OTOH This means that if you get a GPLed program and make a new program dirived from the original source you still have to use the GPL licence even if you have completely replaced every single part of the program, right?
For this we will probably need a court case to figure it out. And the GPL hasn't been tested in court anyway AFAIK. Perhaps that mod to Quake will go to court...