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Judicial Order in MySQL AB vs. Nusphere Suit
bkuhn writes: "Judge Saris has ruled on the preliminary injunction motion. The Court recognizes in today's order that MySQL AB "seems to have the better argument" on the GNU GPL matter. The Court fully recognized the need for expert testimony at trial about the GNU GPL and the technical facts at hand, particularly as to why static linking of software components into a single, unified, compiled binary forms a derivative work of the original components."
jeez, I would say so. They wrote the program, they hold the trademark. It's theirs. They have every right to say how their name is used.
If you don't like the way someone runs their GPL project you have one choice: fork it, and call it something else. But if NuSphere wants to sell "NuSphere MySQL" I would think it would be in its best interest to respect the trademark and hard work of its owners and inventors.
No, Thursday's out. How about never - is never good for you?
I know this will be an unpopular viewpoint here, but I'm actually hoping for this to go against MySQL. The definitions of linking and derivative in the GPL are vague and confusing. Forcing the FSF to rewrite them or be given specific meaning by a judge would be tremendously helpful. This isn't as dangerous as it sounds because if the license is invalidated, users are granted no additional rights over a traditionally copyrighted work. So, code wouldn't be in danger of "escaping" in the meantime.
why static linking of software components into a single, unified, compiled binary forms a derivative work of the original components
Yes, a lot of us are curious about that too. It is clear that something is derivative if it "contains" the functionality of something else, but is it Just that the licensing agreement of a minor, or even insignificant, part of the derivative work should dominate the remaining portions? For example, if you're writing a program which decodes and formats web pages and you want to include a mechanism for playback of midi files, using a library distributed under the GPL is an impossibility, because even tho it might make up less than 1% of the total code of the product, linking to the library will force the terms of the GPL onto each and every other component. This is what the GPL says - if you dont like it, dont use the software. But is this using copyright to restrict rights beyond the intention of copyright law? And like the claim that Napster made about the RIAA, does the GPL try to "use their copyrights to extend their control to [new markets]?" Guess we have to hold our breath and wait.
How we know is more important than what we know.
As funny as it would be to see RMS trying to explain it to the judge, the FSF has better judgement than that. They're sending their General Counsel, Professor Moglen. Being a lawyer, he's probably better suited to being in a courtroom.
I can't say that I don't give a fuck. I've just run out of fuck to give.
The press release does not have much info on what the suit is actually about. Here are some links to explain the dispute:
I couldn't find any propaganda on the Nusphere site. I guess they're downplaying the story.
Many people complain that the GPL is not truly free.
That is mainly because of a misconception about what 'free' is. Modern theories of democracy are based on the concept of inalienable rights (see Locke or US Declaration of Independence). Inalienable rights are inherent rights that cannot be abandoned or taken away. For men to be free, they must ensure that these rights exist and are protected (hence, the need for government).
The GPL essentially defines the inalienable rights of software. As men have the rights of life, liberty, and the pursuit of happiness (or in their possesions if you are more Lockean), software has the right to be modified, redistributed, and derived from.
To simply grant these rights with no mechanism to preserve them would go against the fundamental principles of democracy. The GPL protects software not only from giving up it's fundamental rights.
But, the original author also has the choice under which license to distribute the work. He may choice to abandon certain rights. The important thing though, is that it is his choice and his choice alone.
I'm sorry, one simply cannot make the argument that the GPL is philosophically less 'free' than the BSD license. It's just not true.
BTW: If you consult the Unix History Tree, you will see that BSD is arguably older than Linux (the NetBSD base surely is).
BSD is not growing exponentially and Linux is surely not fragmenting. BSD's growth is also probably more related to the high quality of their operating system and less because of their license.
The BSD license is scary. If I had any intention of releasing my code so that it could be reused commerically without my permission, I would simply put in under the public domain. Of course, I'm not a communist, so there is little chance that I would ever release code in such a way.
int func(int a);
func((b += 3, b));
...NOT to have people suing the crap out of other people over software? The wording is right, the spirit isn't. However, I wholly agree with MySQL, they should have credit.
Just my $0.02...
--j0shua
I'm curious, how do you argue that something is or isn't a derivative work? Especially software?
Do you say: amount of code? Amount of useful functionality created by the code (ie, the GPL code is used to implement a menu item that is not used in day-to-day usage of the program.) Do you make some kind of "user confusion" argument?
If you have two expert witnesses, wouldn't it just be an argument of "yes it is" vs. "no it isn't"?
I really never thought of this and assumed that there was something in the software copyright laws or some precedent that spelled this out clearly.
As much as I like the GPL I really hope that the writer of the License isn't the one who gets to define "derivative work" (ie, maybe microsoft someday would like to make their license cover any computer yours networks with, or something silly).
Agreed.
Therefore you are "forced" to distribute every other component under the GPL if you want to use the library.
Well, then you must agree that in order to use Windows, I am "forced" to pay Microsoft money. Or that in order to drive a car, I am "forced" to buy gas and therefore support Middle Eastern governments.
Force as defined by Websters dictionary is:
Force \Force\, v. t.
I hate to be a prick about it, but obviously, forced is not the right word for this situation. Choose is a better word to use. Your logic is better written as:
if you choose to use the library then you have to also choose to distribute every other component of your product under the GPL.
It's a mutual decision. It's like if I choose to have sex, I also have to choose to take the responsibility of also getting a woman pregant.
There is a significant difference between making a choice and being forced into something.
int func(int a);
func((b += 3, b));
and there is another solution...find a piece of closed source code and pay to license it...oh you want your lunch for free?
Once you go looking for proprietary code to pay for and starting reading the license agreements...the simplicy and openness of the GPL gains some context. If you need to write a closed source program and you dont want to write all your own code...BUY a license for another piece of closed source work...pay someone to write it for you...find a BSD licensed code...find public domain code...but don't use the GPL code. You can cry all you want but there is nothing wrong with demanding that GPL works can not be incorporated into nonGPL works as part of the license. If it comes down to an unspecificness of the wording...the GPL will be updated so the legalese fits the intent...but the intent behind what is written in the GPL is perfectly valid as a license agreement as a limit to how one can redistribute it. If you don't like it...don't use GPL code.
You have choices...unlike the music business..the code authoring business there is a viable competitive market. You actually have choices when figuring out how to get code written to do a specific task (unless its a patented process).
-jef
Try to extract the logic here: if you want to use the library then you have to distribute every other component of your product under the GPL. Therefore you are "forced" to distribute every other component under the GPL if you want to use the library. If you dont like the word "forced" then dont use it, but the word "viral" is perfectly accurate to describe this portion of the GPL (hell, even RMS uses it). And no, it's not the same as "the user must pay a certain royality" and that was the entire point of my post.
Not at all different. In neither case do you have the right to redistribute the copyrighted work in whole or part without permission from the copyright holder. The GPL simply forms a contract between the developer of one portion of the code and the developer that wants to include the code.
If the GPL were viral, the second developer would essentially be signing their rights back to the first developer, which is not the case. If you use my code in your project and have to use the GPL to do it, I am unable to use your code in my proprietary project-- you still maintiain the rights to your code.
LedgerSMB: Open source Accounting/ERP
I'm not quite sure what PD has to do with communism, unless you want to equate IP with physical property (which is honestly a kind of dicey proposition, IMO).
Releasing under something like the X/MIT license is probably better than PD, anyway, as PD leaves you legally liable for all sorts of fun things. You'll notice that the bulk of the X/MIT license is a disclaimer of liability.
DNA just wants to be free...
Back in 1996, Judge Saris made a common sense rulingin the case of State Street Bank vs. Signature Financial Group. In sumamry, SFG claimed that they had a patent on "multi-tiered" mutual funds and the software to manage it. Judge Saris ruled that the patent acquired by SGF was so broad, that no mutual fund company could do business without paying a royalty to them.
:-)
Expect a common-sense ruling from her in this case as well.
Where was she when the "1-Click" patent was challenged?
"RMS in court talking about the GPL, that would be funny to see :P"
Nikita Kruschev pounding the podium at the UN with his shoe, shouting "We will bury you!" suddenly comes to mind...
If I dont GPL the other components then the force of the court will come down on me
:)
That just paints an interesting mental picture
You're not forced to use the library, but if you use the library then you are forced to GPL the other components.
The force you speak of is nullified by the 'if' qualification to your argument. You cannot choose to be forced into something. Choosed force is an oxymoron by nature.
It's simply social contract theory. Government is not forced on an individual. An individual chooses to be governed in a state in exchange for protection from the government. The individual foregoes certain rights in exchange for that protection.
Likewise, you choice to obey the laws of a land and endure the punishments when broken. It's absolutely a choice.
Though, to simply argue a single word is utterly pointless given the inherent ambiguity of the English language.
int func(int a);
func((b += 3, b));
Many people say that American beer is watery. This is mainly because of a misperception of what 'watery' is.
Also, the idea of endowing inamimate objects such as software with rights is ridiculous. What next? Rocks? Trees? People for the Ethical Treatement of Dustballs?
Not only is the GPL not free, but because it contaminates every derivative work, it is a perpetual license that causes its restrictions to extend indefinitely.
How is public domain communistic? Does this mean that my math teacher was a communist because she taught me 2+2 and didn't claim any rights to my future use of this knowledge?
When works return to the public domain, they can be recycled and used under any license. When work enters the GPL, it may never return.
We are witnessing the 1st stage of a classical Liberal elitist plot, similar to the introduction of abortion. When the GPL shuts other software out of the market, we will see a general slowdown of progress in the software market. This will be followed by cries for more government funding of GPL'd software, the passage of laws making it illegal to write proprietary software, and repression every bit as extreme as RMS's "right to read fiction". Think "KNOCK KNOCK. We're here to liberate your source for the glorious people's revolution!" and people furtively agreeing to non-disclosure in back rooms when their business needs to get something done but can't wait for the Ministry of Software to do it.
This scenario, as far fetched as it seems, will play out. It may take 50 more years but it will happen.
I expect every true lover of freedom to rise up and violate the GPL when the time is right.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
All our Libertarian friends must be smiling at that. You probably meant "protection by the government".
The Mongrel Dogs Who Teach
That's about the worst possible thing that could happen.. Sort of like letting Bill Gates testify at Microsoft's trial (or during their dispositions anyway). Both of those guys are probably more alike than they are different though neither would admit it and there is obviously at least a couple ideological differences.
yup. protection by the government.
int func(int a);
func((b += 3, b));
More than anything else, I'm looking for a ruling somewhere, somehow that manages to draw nice lines around where a program starts and ends for copyright and patent purposes.
We have APIs, libraries, modules, remote function calls, socket connections, pipes, shared memory, and a whole host of different ways in which code A communicates with code B. What we really need to define in a legal sense is exactly what constitutes a "program" for the purposes of code use. I definitely want to be able to isolate code which can potentially restrict "my" code's licensing (whether through a patent, restrictive copyright, GPL, or whatever). Until we get a good definition of what is "external" to a program, this will remain a legal quagmire.
Honestly, it's a hard decision. But it needs to be made. And the sooner, the better, for all parties: Free Software, Open Source, and Proprietary.
-Erik
There are always four sides to every story: your side, their side, the truth, and what really happened.
"Modern theories of democracy are based on the concept of inalienable rights"
Ehhh... not entirely true. Modern applications of democracy take into account these "inalienable rights." They do this by making sure that there's a mechanism to protect the rights of the individual from the abuses of the majority (which will happen in a true democracy). I think it was Madison that noted that it was a democracy that decreed the hemlock one day and statues the next.
"Inalienable rights are inherent rights that cannot be abandoned or taken away. For men to be free, they must ensure that these rights exist and are protected."
Either they can be taken away or they can't. Pick one.
"To simply grant these rights with no mechanism to preserve them would go against the fundamental principles of democracy. The GPL protects software not only from giving up it's fundamental rights."
Democracy is a pretty name for "mob rule," where the majority always wins over the minority and the individual. The GPL is democratic in the sense that it requires coders to surrender some of their coding rights as an individual (restricting what they can do with the code, even if they've heavily modified it) as they become a part of the group that works on the program (ie. the majority). The GPL protects the rights of the group over that of the individual by more or less forcing the individual to join the group.
"But, the original author also has the choice under which license to distribute the work. He may choice to abandon certain rights. The important thing though, is that it is his choice and his choice alone."
Ah, but who is the author? Isn't somebody that modifies the code and thereby improving it just as much of an author? By enacting the GPL, the original coder declares himself first among equals in the new group of coders that work on the app. The original author then requires that you join this group as a subordinate before you are allowed to make and distribute any modifications.
This more or less denies the existance of derivative works. It's based on the principle that the "original" author wrote the code ex nihilo while the work of anybody else is nothing more than adding to the original idea. Anybody that came along after the code's genesis (literally) is incapable of actually having an original idea (legally if not philosophically). If fire were released under the GPL, Bob the Caveman would get all the credit of the Industrial Revolution.
I personally have difficulty understanding how people can complain about the abuses of US copyright law by the MPAA and RIAA one day and support the GPL the next.
"I'm sorry, one simply cannot make the argument that the GPL is philosophically less 'free' than the BSD license. It's just not true."
It's untrue only so long as you pretend that a group and the individuals that make up that group are one and the same. Psychology and history tell us otherwise.
"BSD is not growing exponentially and Linux is surely not fragmenting."
Linux is growing exponentially because it requires anybody that does anything with the code to become part of the Linux group. BSD has no restrictions, so coders aren't forced to join the BSD camp. Like it or not, the folks that call the GPL "viral licensing" have a point. In this sense the BSD license is more free as it is not forced to grow at such a rate.
"Of course, I'm not a communist, so there is little chance that I would ever release code in such a way."
No, the GPL is the more communistic choice. It is a "coder's paradise," free from the opression of the bourgeois corporations but subject to another aristocracy just the same. Coders are more or less required to unite into one single group and produce as a whole, and any credit from the accomplishments of any single coder is both given to the group as a whole and the original Lenin figure that started the app in the first place. There is no room for the individual here except for the person that applied the GPL to begin with.
... sometimes you have to go to court.
"Spirit" doesn't enter into it.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
I'm curious, how do you argue that something is or isn't a derivative work? Especially software?
I'm curious whether they might consider the linked object to be a "compilation" in the literary sense - i.e. a collection of separate works published together without significant modification to each, such as an anthology.
As much as I like the GPL I really hope that the writer of the License isn't the one who gets to define "derivative work" (ie, maybe microsoft someday would like to make their license cover any computer yours networks with, or something silly).
Rule of thumb: When one side writes the contract, the courts construe the words as much in favor of the other side as possible. It's up to the author of the contract terms to make them clear, understandable, and legal.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
How does this make original authors into Lenin?
Of course, I'm biased- I'm an original author under the GPL. so... OFF WITH HIS HEAD! :D
*ROFL*
Funny how the whole point of the GPL was to make it literally impossible for anyone to be in such a situation over software code, needing to do something but unable to legally get access to the code...
It's entertaining to watch this sort of talk, but has anyone noticed that some of the anti-GPL crowd are INSANE? furrfu...
I'm nowhere near a socialist, but you've definitely got something there with the ego/greed thing. Not *EVERYONE* is like that - I know some people who've GPL'd projects and they were not motivated by ego/greed - at least not to the point where it was a negative anyway. :)
creation science book
if you want to use the library then you have to distribute every other component of your product under the GPL. Therefore you are "forced" to distribute every other component under the GPL if you want to use the library.
I think this is clearly the point of contention. Does the use of a library make a program a derivative work ?
Remember, functionality is not copyrightable - only the specific expression in the source code is. So, for starters, if multiple libraries provide the same functionality, linking to a library does not make something a derivative work. This is a concept of a fixed boundary in copyright. The API is defined, there are multiple ways to fulfill that API, so whatever does fulfill that API does not turn the linking program into a derivative work (more specifically - it doesn't require any specific expression to work - because multiple expressions exist that allow it to work).
So, it is 100% possible to link to a GPL'd program and not be open source and not violate the GPL. There are other issues though.
If a library is unique, then it becomes a murky area as to whether a calling program is a derivative.
If a library is staticly linked, another gray area.
These are some of the things the court will sort out. However, I would not be surprised if the court finds in general that any linking to GPLd libraries does not make something a derivative.
After all, the intended purpose of a library is to have something link to it using a public API. Therefore, it seems silly to make anything that does that a derivative. However, you could argue that any program can be turned into a library, so that using the intent of making something a library may not be good either.
In any case, it should get interesting.
Communication between GPL and non-GPL code via pipes and sockets is generally O.K. so long as it isn't a sham for what would otherwise be a function call to an integral part of the larger work. In the case of emacs and a shell, it isn't emacs that needs the shell, but rather the user of emacs.
You could've hired me.
Consider that simply aggregating the right components in the right way, so they "self-assemble" at run-time to form a greater whole might very well involve "abuse" of GPL code. Just look at Linux-based distributions with a great deal of non-free code and how much they benefit from a free kernel, network code, graphical system, etc. 80% free and 20% non-free. Is that fair? I'm sure that some GPL proponents would say no, even thought the GPL was not violated.
One way to deal with this is to add a clause that prohibits redistribution "if intended for the purpose of causing a computing apparatus to provide functionality essential to a larger work, and that larger work is not distributed under the same license".
Now, "intended" and "essential" might be subject to debate, and possibly interpretation by a court, but simple aggregation without creating a specific greater functional work, would still be permitted.
You could've hired me.
The GPL is democratic in the sense that it requires coders to surrender some of their coding rights as an individual (restricting what they can do with the code, even if they've heavily modified it) as they become a part of the group that works on the program (ie. the majority). The GPL protects the rights of the group over that of the individual by more or less forcing the individual to join the group.
Your argument is faulty, to say the least. The GPL requires nothing nor does it force any individual to certain action. If you refuse to comply with the GPL you can simply not use GPL'd code. It's that simple. Write your own if you don't like the GPL.
Your choice, completely free and completely up to you.
As has been pointed out time and again, normal copyright gives you no right to use someone else's code. None. Nada. Zip. If it belongs to someone else you're out of luck unless you can contact the author and negotiate a license. If the author says no then you are out of luck. You have no recourse.
The GPL extends your rights in that it allows you to use the code without specific permission of the author so long as you abide by the terms of the GPL. You are granted additional rights which normal copyright doesn't encompass.
But again, if you find the GPL not to your liking you have every right not to use GPL'd code. You can simply write your own and be done with it.
Whining about the GPL, saying that it 'forces' you into something, is deceptive at best. People who insist that the GPL injures them in some fashion are those that want to use GPL'd code rather than write their own, but don't wish to abide by the license. Either they're too lazy or too stupid to do the job themselves, or they too cheap to pay royalties for non-GPL'd code which would fit the bill.
No one has the right to complain about the licensing terms of the GPL when they are never under any obligation to incorporate GPL'd code into their own product. What these morons need to do is either improve their work incentive and write their own code, or admit that they're idiots incapable of coding whatever it is they wish to steal for their own product.
Max
My god carries a hammer. Your god died nailed to a tree. Any questions?
What good is an 'individual' capable only of ripping off someone else's work and expanding on it?
I suppose you wrote your own compiler, used no libraries and built your own hardware (not just assembled it), while happily reinventing all computer science, physics and other scientific discoveries that you would need.
We all built on the work of others, that is called progress. The idea behind copyright and patents is to give creators a _temporary_ solitary grant to 'own' the IP they come up with as an incentive to create things, while the inventions are released into the open after a certain period, leading to a large base of truly free stuff. If the grants would be eternal, we would become encumbered by them and ultimately be unable to progress futher. Big IP owners would just stifle all innovation and keep making us pay for the same recycled 'innovations'. This is already happening unfortunately.
It is clear that the current laws stifle innovation because the 'temporary' grant lasts far too long. But the GPL is no solution to this, it just prevents people from making a profit when they build on the work of others. The only problem it solves is to force the open sourcing of software, while ignoring the true battle: to fight for progress. Something that will not happen when people can't earn a paycheck with their inventions.
The BSD-license (and public domain) releases the source into the open immediatly, making it a stepstone for everyone, including commercial and BSD programmers. I've argued that this will probably mean more contributions to your code as well. I believe that open source software will never be able to fill every void (I can give plenty of examples), BSD is perfect for allowing open source and commercial software to coexist.
Time advances: facts accumulate; doubts arise. Faint glimpses of truth begin to appear, and shine more and more unto the perfect day. The highest intellects, like the tops of mountains, are the first to catch and to reflect the dawn. They are bright, while the level below is still in darkness. But soon the light, which at first illuminated only the loftiest eminences, descends on the plain, and penetrates to the deepest valley. First come hints, then fragments of systems, then defective systems, then complete and harmonious systems. The sound opinion, held for a time by one bold speculator, becomes the opinion of a small minority, of a strong minority, of a majority of mankind. Thus, the great progress goes on.
Thomas Babington Macaulay (1800-1859), English historian.
The Drowned and the Saved - Primo Levi
The same can be said of any copyright.
"As has been pointed out time and again, normal copyright gives you no right to use someone else's code."
Just because copyright holders have been working to infringe upon those rights doesn't mean those rights don't exist. A normal copyright gives the purchaser several rights that fall under "fair use," such as being able to make an archival copy or to quote passages of it in your own derivative work. Anybody that's ever had to write a paper for class has exercised these rights.
However, the GPL does not allow such fair uses and it essentially declares any derivative works the IP of the original's author. If a book were GPLed, then any paper I write after reading that book becomes the IP of the book's author and by not including a copy of the book with my paper I'd be comitting plagiarism, no matter how accurate my bibliography may be.
"But again, if you find the GPL not to your liking you have every right not to use GPL'd code. You can simply write your own and be done with it."
Upon looking at the GPL it's not clear that any such choice exists if I even glance at some GPL code."Derivative works" is a very broad title.
"Whining about the GPL, saying that it 'forces' you into something, is deceptive at best. People who insist that the GPL injures them in some fashion are those that want to use GPL'd code rather than write their own, but don't wish to abide by the license."
Thank you for agreeing with my point that the GPL assumes ex nihilo programming on the part of the original author. After all, the original author doesn't need to include references and copies of any and every programming book, course, website, FAQ, howto, etc. that they may have glanced at before writing this code.
No, they can't.Derivative works must also be GPLed, thereby essentially making them the IP of the original author.
"If they don't like this restriction, they can either start from scratch with their own gall darn code,"
So you agree that all programming takes place in a vacuum?
"If the group does not like the original author's license, they can rewrite the original author's code and license the new product under any license they choose."
I refer back to my previous blockquote of the GPL.
Ehhh... not entirely true. Modern applications of democracy take into account these "inalienable rights." They do this by making sure that there's a mechanism to protect the rights of the individual from the abuses of the majority (which will happen in a true democracy). I think it was Madison that noted that it was a democracy that decreed the hemlock one day and statues the next.
If one examines Athenian democracy over Lockean democracy, the biggest difference is in the provision for 'inalienable rights' made possible by natural law. This is what protects the minority from the multi-headed snake of democracy that Plato was so scared of.
Democracy is a pretty name for "mob rule," where the majority always wins over the minority and the individual.
This is not true. That's why 'inalienable rights' are so important. The majoritian makes a decision but that decision must be guided by the natural law. It's also not really 'mob rule' because the minority consents to be ruled. As I believe Rosseau said, A vote in democracy is a vote for the will of the majority.
Ah, but who is the author? Isn't somebody that modifies the code and thereby improving it just as much of an author?
If you build a car, and then I come along and put a sticker on the car, can I then claim that I own the car? Absolutely not. I may own the stick (or the derivation), but I surely do not own the car and do not have any specific rights to the car.
This more or less denies the existance of derivative works.
In a derivative work, the author only has rights to the derivation of that work. With the GPL, an individual can release a patch to a GPL'd piece of software under any license he chooses. To integrate that patch with the original work though, the patch must be Free Software.
In this sense the BSD license is more free as it is not forced to grow at such a rate.
If I write a piece of software, and release it under the GPL. Then for the rest of time, I know that software will be free.
If I write a piece of software, and release it under the BSD license, then another company can come by and rerelease the software with absolutely no freedom for the user to modify the software.
It would really suck if I wrote a piece of software, saw it being used by some company, and then asked to have the source for it and they said no. That is why Linux is growing. It's about preserving individual freedom; my freedom as a programmer to use my own source code.
Simply giving code away to become property of society is communistic. If I write code, it should be my property. The nice thing about the GPL is that even though it allows me to own a piece of software, it stops me from being able to remove freedoms already bestowed on the software.
int func(int a);
func((b += 3, b));
And what about people who abstain from voting?
"If you build a car, and then I come along and put a sticker on the car, can I then claim that I own the car? Absolutely not. I may own the stick (or the derivation), but I surely do not own the car and do not have any specific rights to the car."
Under the GPL, the car manufacturer owns the sticker.
Let's say you build a car and I buy it. I then modify the engine or replace it outright. Under the GPL, that modification would then be your modification and I would not be free to make a profit from modifying such cars.
"In a derivative work, the author only has rights to the derivation of that work. With the GPL, an individual can release a patch to a GPL'd piece of software under any license he chooses." You can't release a patch without some knowledge of what your patching. I can't see how a patch isn't "derived from the Program or any part thereof."
"If I write a piece of software, and release it under the BSD license, then another company can come by and rerelease the software with absolutely no freedom for the user to modify the software."
But under the BSD license the end user must be made aware of any BSD code used in the product. If you're using IE, click on "About Internet Explorer" and notice what it says about Mosaic. And since the end user must be informed of what the for-profit work is derived from, they are able to get the original BSDed work and make their own derivations.
If Mosaic were GPLed instead of BSDed, just about every browser out there today would be forced to comply with Mosaic's license, no matter how far removed modern browsers may be. The software is free only by your definition of "free" and you require that all future users of that code to comply with your definition. The end user is not free to decided how free they want to be.
"It would really suck if I wrote a piece of software, saw it being used by some company, and then asked to have the source for it and they said no."
Why should you have a "right" to see what they've done with your code and to dictate the licensing terms their modifications can be released under?
And if you wrote some code after reading a book on programming, should the author of that book have the same right to demand your sourcecode and require that a copy of their book be distributed with "your" code? Since you are using what you learned in the author's book, should the author have the ability to dictate the terms of your license? Under GPL's philosophy the answer is "yes."
"Simply giving code away to become property of society is communistic."
Public domain is not the same as public property. If it were, private individuals wouldn't be able to use it however they wish for their own profit. Especially not in a communistic system.
"If I write code, it should be my property."
And the GPL dictates that anything done with your property is again your property. If you GPLed a do-while loop, you would then have the ability to dictate licensing terms to anybody who uses that loop.
Just because copyright holders have been working to infringe upon those rights doesn't mean those rights don't exist. A normal copyright gives the purchaser several rights that fall under "fair use," such as being able to make an archival copy or to quote passages of it in your own derivative work. Anybody that's ever had to write a paper for class has exercised these rights.
Oh come on! I'm not even a GPL fanatic, but even I see the fallacy in your argument. GPL is a license to copy.
The GPL on GPL-ed software doesn't apply to any use of the software at all. Archival copy? No Problem. Quoting passages? Go ahead, there are plenty of Non-GPL books which quote from GPL-ed Software. As long as your use truly falls under fair use, the GPL doesn't even come into effect.
Once More: The GPL is a license to copy the software beyond that which is allowed by law. It is not a click-through license, because it isn't even close to restricting your use (or fair use). It is just a pre-approved license which saves you the trouble of contacting the author for permission to copy his work in those cases where you are willing to make your derivative work GPL. Don't forget: If the GPL isn't there. You have to contact him. If you did, and he said "no, you can't use it" would you be up in arms? Then why is even noteworthy when it's more like:
Author: "Well, what do want to use it for?"
You: "I want to sell my program with a restrictive license and make gobs of money!" Him: "No, you can't copy my work."
or
You: "I want to make my program GPL"
Author: "Well that sounds okay, send your lawyer over so we can write up a contract which allows you to copy my work into that program, as long as it's availabe under GPL"
...
only without the lawyer and the wait.
San Francisco values: compassion, tolerance, respect, intelligence
Yes, Judge Saris' summary judgement on State Street Bank vs. Signature Financial Group applied common sense. Unfortunately, that didn't help, because her judgement was overturned on appeal, and the final disposition of the case is what established the patentability of software business methods.
To make any difference in our legal system, common sense must be allied with and supported by solid legal argument. Otherwise, we can easily end up with legal conclusions that are absolutely nonsensical. Yeah, that's often frustrating...
Both of these points are false. Anyone is free to make archival copies of a GPLed work, or quote relevant passages of the source code for commentary purposes. The limited permissions of the GPL only apply to the distribution of the work.
Furthermore, if someone creates a derivative work from a GPLed work, then the original author can't claim the entire derivative work as their own IP. The work becomes the communal IP of ALL of the authors who have contributed something to the work.
Incorrect. They become the communal IP of all the authors.
> So, it is 100% possible to link to a GPL'd program and not be open source and not violate the GPL
No, not if you distribute the binary. If you are linking to MY library routines for which I hold the copyright, you have ABSOLUTELY NO RIGHTS WHATSOEVER to redistribute my copyrighted work, unless you follow the conditions in the GPL.
Actually, the distribution pretty much hinges on whether the work I do is a copyright derivative of your GPL'd library. I am arguing that it is not, at least if we make one assumption. That assumption is that Silent Bob wrote another library that provides the exact same function as your library.
Now my program foo is closed source and proprietary, and dynamically calls your GPLd library. Is my program a copyright derivative of your library ?
If you say yes, run my program again after setting LD_PRELOAD to load Silent Bob's library instead. Now my program doesn't even dynamically link to yours. Is it still a derivative of your GPLd library in the copyright sense ?
If multiple forms of expression exist that provide the exact same functionality, then a new copyrighted work that depends on that functionality is no longer a derivative work. In copyright law this is called something like a fixed boundary (or brick wall, or something). You have multiple options for providing functionality that exist on one side of the wall - therefore things on the other side are not derivative works. Copyright law doesn't protect functionality - only expression. Once multiple expressions exist that provide the same functionality, use of that functionality doesn't make something a derivative work.
This point is not really what the case is about - I merely wanted to point out that dynamic linking to a GPL'd library doesn't make something a derivative work always.
"Incorrect. They become the communal IP of all the authors."
Let me pick my jaw up off the floor...
First off, my point here is that those that come after the original author have no other option but to release their work as "communal property." It doesn't matter how small a part the original work plays in the derivative, there is no other legal option but this "communal property.
Secondly, the whole idea of "intellectual property" is that whoever has the legal right to control distribution "owns" the IP in question. Under the GPL the original author is the only person that can have any say in both the original work and whatever the original work is used in. Call it "communal property" or whatever other pretty name you can think of, the original author is the de facto IP owner in all cases.
"GPL is a license to copy."
No, it's a license to use and distribute. It spells out what you must and mustn't do if you want to use or distribute the code in any way, shape or form.
"Quoting passages? Go ahead, there are plenty of Non-GPL books which quote from GPL-ed Software."
First off, just because the example you used hasn't been tested to see if it complies with the GPL doesn't mean the GPL allows it. "Any work" is vague enough to cover books.
Secondly, many people have made the argument that code is speech. What if I copied a block of code from a GPL program (however short) and used it in my own program? Is it different because that's an actual program? What if don't actually compile it but instead publish it in a paper book? Or take a photograph of the code? Haiku? What if I start listing off all the examples that have been used in the DeCSS argument?
Either speech and code have the same legal status or they don't. Period. The GPL just says "any work."
"As long as your use truly falls under fair use, the GPL doesn't even come into effect."
The purpose of a software license (any license) is to restrict use and distribution more than copyright law alone. This includes even the BSD license.
"The GPL is a license to copy the software beyond that which is allowed by law."
No, it is a restriction beyond that of copyright law.
I can copy short passages of a non-licensed copyrighted work and distribute it however I wish so long as credit for the work is given to the copyright's owner (I can't plagiarise). I can sell my work however I wish and not have to pay any royalties.
However, as soon as I put any part of a GPLed work into mine, the GPL comes into effect and restricts my ability to decide distribution to only those allowed by the original author. In fact, the GPL is broad enough that even if I don't use the code but simply become inspired after looking at it my work must then be GPLed (far and away beyond what the original author can dictate under plain old copyright).
"Don't forget: If the GPL isn't there. You have to contact him."
Not if what you're doing falls into the category of "fair use" it doesn't. And derivative works are allowed under fair use.
"or quote relevant passages of the source code for commentary purposes."
It says "any derivative work." I see no exceptions spelled out for commentary.
"The limited permissions of the GPL only apply to the distribution of the work."
Or of "any derivative work."
"The work becomes the communal IP of ALL of the authors who have contributed something to the work."
Intellectual property is considered property because only the owner can control the use and distribution. If anybody could use and distribute the information at whim, it wouldn't be property at all.
The only person that can dictate the terms of use and distribution of both the original GPLed work as well as any derivative work is the original author. By exercising their choice to release the original code under the GPL, the author is not only controlling the use and distribution of the original code but also any code that might be derived from it in the future. Because the control of distribution and use rests with the original author, the original author becomes the de facto IP owner of everything you call "communal property."
The fallacy of "communal property" comes into it becuase later coders can decide either to code under the GPL or don't code at all, and people pretend this somehow an example of the community deciding how the work is distributed.
"If the person disagrees with the will of the majority, then they are free to leave and are not bound by the will any longer."
"Love it or leave it?" And what if the majority's will is to follow this individual and make sure that their rules apply? Arguably this is what happened to British colonists in America, and they ended up choosing option C.
"If I write a piece of code, release it under the GPL, and then someone modifies it, I have no more rights to the derived product than anyone else does."
You have the right to dictate the terms of use and distribution of the derivative and exercised this right when you originally applied the GPL to the work. If you're the one that controls the use and distribution of a work, you are the owner of that IP. That's the definition of intellectual property. What you decide are the terms of use and distribution isn't as important as the fact that you were the one that decided it and could decide it.
OK, I'm having trouble understanding this paragraph:
"You can not distribute part of the derived product no matter how small unless you are in total ownership of it. This is precisely how companies are able to release binary kernel modules for Linux under whatever license they choose. They simply can not distribute a version of the kernel with those binary modules already included."
The GPL says that "any derivative work" of a GPLed work must itself be GPLed. I still don't see how a patch doesn't fit into the category of "any derivative work," even if the patch's authors treated the kernel as a black box. And if it fits into that category, the patch's author is legally required to distribute the patch under the terms of the GPL. Whether actual companies do this or not is something else entirely...
"The end-user is free to use the software in anyway they wish as long as they do not infringe on the inherent freedoms of the software (see 'inalienable rights')."
So being able to decide how your work is used and distributed isn't an "inalienable right?" Or is it only an inalienable right if you somehow wrote your program in a vacuum?
"All individuals have equal rights to the copyright of a work in public domain."
A copyright gives the IP owner the ability to restrict a work's use and distribution. Public domain has no restrictions on its use or distribution at all. If nobody can control a work's use or distribution (requirements for the defintion of IP), then nobody can be said to actually own it.
"In communism, all individuals have equal rights to the items produced by society. Public domain == communism."
Public property means that it is the public that dictates the use of that property. Generally, everybody can access it and use it so long as it doesn't infringe upon the ability of anybody else to use it. The usual example of public property is a park. The public will not allow you to run a slash-and-burn logging operation in a public park.
Public domain on the other hand is something that nobody can restrict the use of, not even the public. It's as if everybody had their own private copy of that something to do with as they please. Instead of public parks everybody has their own back yard. The only really "tangible" example I can think of here is sunlight; not even the public can dictate what can and can't be done with it.
Public domain isn't public property because public domain isn't property. If anything it's one of those inalienable rights you mention.
"If this were true, then Linus Trovalds would own the entire Linux kernel. The fact of the matter is, Linux has as much rights to the Linux kernel as I do."
But he does own the entire kernel. He is the only one that has any say in the kernel's use and distribution. Only he had the ability to GPL the work or not. Not you, not I, not Stallman.
Going back to the car analogy, just because I let you borrow my car every time you ask for as long as you want doesn't also somehow make it your property as well.
The failure of GNU to catch on with the Hurd as a micro-kernel has more to do with the slow development of the Hurd than the FSF political agenda: Debian GNU/Linux is a fairly succesful example.
The arguable greater popularity of other Linux-based operating systems with non-free code is a testament to the fact that people are willing to give up software freedom for convenience. Fair enough. However, I wonder how many understand the true nature of what they are giving up. What if they need support? How can they audit for spyware?
As computers become more ubiquitious, and essential parts of our lives, the need for transparancy in what they do will become ever more important.
My point is simply this: as computer systems become more complex, the boundary between simple aggregation and losely coupled linking becomes more blurred. Many GPL proponents like the GPL because it severely limits the ways in which GPL code can be coopted to help providers of non-free code, so yes, this is political. However, this desire is going to be increasingly not met by more tenuous ways to "get around" the spirit of what these people want. I suggest only a way that they can have their cake and eat it to, without necessarly completely buying into the political viewpoint.
You could've hired me.
The only person I've talked to who uses this interpretation of the GPL is _you_; one would think that you decided to interpret it to bolster your own argument.
I doubt you'll ever admit to believing that the GPL says anything different than what you've said, but you should read the GPL FAQ at http://www.gnu.org/licenses/gpl-faq.html to see what the people responsible for AUTHORING the license think it means. In particular, the section at http://www.gnu.org/licenses/gpl-faq.html#Consider covers the situation you've been talking about.
As are you. Or anybody else in this discussion. Instead of trying to belittle my interpretation based on my minority standpoint you should try finding actual flaws in my interpretation. Being part of the majority doens't make you right by default.
"In particular, the section at http://www.gnu.org/licenses/gpl-faq.html#Consider covers the situation you've been talking about."
Here's what it says:First off, note that there still isn't mention of Y's ability to change license, with or without X's permission. Of course, Y has no right to change the license since the GPL is essentially a "no" response to everybody.
Secondly, X was the only person who had the option of unilaterally applying the GPL (or any other license) to the project to begin with. Y had only two options: GPL or don't code.
And elsewhere from the FAQ you sent me to:
"So many people have contributed so much to Linux that Linus only holds the copyright to a portion of the overall codebase"
The GPL is more restrictive than copyright so the copyrights are moot.
"If he tried to ship a proprietary Linux kernel binary, he'd have to request a special license to do so from every contributor or remove their code lest he violate hundreds of copyright holders' right to the code in "his" kernel."
Linus was the only person who had the ability to choose what kind of license (if any) to release his code under. Everybody else afterward had their options limited to "GPL or don't code" by Linus' decision.
And while Linus may have to ask permission to release the kernel under a different license, only Linus has the right to change his mind in the first place. The act of choosing the GPL over some other license is telling everybody else afterwards that they cannot release the code under a different license.
Political or practical? Just like Bill Gates doesn't like people using his code for free, some people like to be able to profit (in an non-financial sense) from their code. By releasing code in a GPL manner, one gets the advantage of both their own code, and of other peoples' code and work.
When someone takes such free code and closes it, the original author now has to pay to use the results of his/her work.
Some people just hate the idea of being forced to pay to use their own code.
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
This is practical only in the sense that it is a reasonable belief to hold. However, it is political in that it is based on the philosophy of a particular ethical view, hence political (politics: philosophy of ethics).
There are other ethical views, for example, the view that I can claim my work, but not derivatives. The BSD license reflects this, and enjoys some success.
Some people just hate the idea of being forced to pay to use their own code.
Whether derivative works are still "their own" is debatable, but if you believe that they are, then yes, the GPL is the license for you.
This gets into a whole grey area of what constitutes a derivative work. While copyright law is fairly clear, it breaks down when it comes to code binaries, because correct aggregation can create derived "functionality" that is greater than that of the individual component parts -- i.e. put the right code in the right place and it will find it's parts.
The same ethos which suggests that source derivatives of GPL code should remain free would also suggest that functional derivatives should remain free, no?
Again, some might say yes, and others no, but to those that would say yes, the GPL is not "strong enough" -- probably because of its rootings in copyright law.
You could've hired me.
"You can make fair use of the code without complying with the GPL."
Fair use includes such things as making a derived work. The GPL restricts derived works. The GPL is more restrictive than copyright law.
"he lost the right to unilaterally change his mind, and he'll have to rip out everyone else's code to get that right back."
He has the ability to both ask permission from others to change the license and/or rip out all that other code. However, he still has the ability to change his mind. Nobody else has that ability. They can't rip out Linus' code because it will always be a derived work. They can't ask for Linus' permission because he already said "no" by applying the GPL in the first place.
" Note that anyone else could do the same by ripping Linus' code out of their fork--he really has no special legal standing"
They can fork it all they want, but it must always be GPLed. Even if they do rip out all of Linus' work, the fork is still a derived work from the original. Again, GPL is more restrictive than copyright.
I have been. You've just been consistently ignoring anything I say, fact or opinion.
That quote from the FAQ covers the reverse application of the GPL - how the GPL exerts control over the original author when somebody besides the original author contributes changes, counter to your original argument that the original author had complete control over the all derivate works. Whether Y can change the license or not is a normal "forward" application of the GPL - Y can change the license if he/she gets the permission of the other authors of the work, just like the original author X.
What's your point? That's what the GPL is _supposed_ to do; if the original author doesn't want people to use his/her work without returning those contributions to the community, then she/he uses the GPL. If the original author doesn't really care about it, then they can use some other license.
Incorrect. 4 choices: don't code, code everything themselves & release under a license of their choice, or use the GPL code and release under the GPL, or get permission of all of the authors of the GPLed work to let the license be changed. The last choice, of course becomes more difficult as many different authors start contributing to a particular project (essentially forcing that derivative to become community property).