If Congress passed a law tommorrow that said it was illegal to breath, would you stop?
The DMCA is invalid on its face, just as a law prohibiting respiration would be. It may take some time for the courts to affirm that, but it's still no law, as the courts have ruled many times before that an invalid law is null and void - not from the moment they say it is, but from the moment it was passed. Besides which, I'm currently fortunate enough to live outside that jurisdiction anyway.
You may be correct on the issue you're analysing, but consider that TSG has argued in court that the GPL is illegal. And remember that you don't sue anyone for 'violating the GPL' you sue them for copyright infringement. They then have to come up with a defense, and the GPL would be their defense against the infringement charge - it's not something the copyright holders need to bring up but rather a defense against them. Since TSG has and is arguing in court that the GPL is invalid, they should be therefore under an estoppel preventing them from then arguing that defense in another court. IANAL, and anyone wanting to sue them should definately talk to some folks that are about it, of course.
Both BSD and GPL offer the possibility to fork and create your own branch! Why would the license be an issue for this problem?
Because the BSD license allows you to keep your fork secret, that's why. This allows someone like MS to come along and make a fork that puts the original at a disadvantage, and keep their changes secret (and/or patented) and effectively bar all the Free versions from being compatible. However, under the GPL they would have to publish their source, allowing the Free versions to quickly and relatively easily adapt to any such changes.
I don't think Apache can do it, because their license is different. Samba could and should, but they've decided for the time being not to pursue it. There are a LOT of other software that could too - if they pull everything GPL out of their software they wouldn't have a usable system anymore.
This is burning bridges, but I really can't see SCO coming to their senses, so their users should get a feeling for the kind of situation which SCO is asking for.
It's an incredibly powerful tool, and when someone has taken the time to learn how to do everything with such a tool, they really don't want to learn a few dozen new interfaces just to get the same work done.
Of course, personally I tried XEmacs and threw it back, I like GNU Emacs better and it runs on pretty much every system around, including my Windows box and my Mac.
In the case of the lightbulb, for instance, being the inventor is naturally a substantial advantage, without having monopoly rents enforced via a patent system. You can keep the thing secret until you tool up, ramp production, and start selling the things. Yes, someone would reverse-engineer it at that point, and start competing - that's a good thing. That keeps you from charging too much for too long. You still get a substantial head start, and being the ones that invented the thing is great for reputation, brand-recognition, etc. And yes, if you make a crappy product and charge too much for it you'll still be competed out of the market eventually - that's how the market is supposed to work.
What the patent system does here is, rather than leaving good enough alone with those natural advantages, instead you have a situation where you can legally forbid competition. You can charge outrageous prices, cut corners in manufacturing and deliver a subpar product for decades, and get away with it, because no one is allowed to compete without your permission. This is a bad thing, not a good thing. The argument that patents encourage R&D spending has some truth to it, but that one advantage can hardly make up for the damage done when you create monopolies with immunity to competition.
It also gives them an incentive to shun and FUD remedies which they can't patent - which is a large part of why herbal medicines are generally either ignored or villified. With a patent system it makes sense to spend millions of dollars coming up with a slight variant on one of the active ingredients in an herbal remedy that you can patent, and then sell that, even if it's not actually as useful as the original herbal remedy.
And just to forestall some replies accusing me of saying more than I did - that doesn't mean that all herbal remedies are superior or even good. But some are, and they still tend to be ignored and villified because no one can collect a rent on their use. Although it's complicated by other factors, Cannabis is probably the best known example of this - it's superior to every alternative for certain uses, but it's kept outlawed while drug companies research ways to change the active ingredient enough to make something patentable instead, and push alternatives that are nowhere near as good from the patients point of view.
You said "If I put in a notice that the entire thing is now GPL, I'm simply wrong". I asked if this meant illegal, to which you replied, "I don't know, you'd have to ask a lawyer." So, possibly yes.
In the hypothetical case you posed, which I'd never really thought about before, that seems a reasonable answer. I seriously doubt it would be a problem, really, as there is no intentional deception, no financial damage, only an innocent misstatement. At any rate, I did look over the linux source today, and I don't see anything in it that would qualify as such deception anyway.
But the GPL says that you can't require anything other than what is required by the GPL. If a mix of GPL and BSDL code needs a notice saying that part of the code is available under the BSDL, then this extra requirement means it cannot be released under the GPL.
Actually the BSDL does require that ("Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer."), and the FSF lawyers have certified it as compatible. BSD code in Linux complies with that requirement btw, although there's been at least one case where it didn't for some period of time until the problem was noticed and remedied. The GPL has a very similar clause, so it really doesn't sound like an additional requirement to me, but I would bet if you wrote licensing@gnu.org and asked about it politely you could get someone more qualified than me to explain it.
Also, the GPL states that derivative works can only be distributed under the GPL. Say Alice writes program A and releases it under the BSDL, and Bob takes part of A and puts it in his program B released under the GPL (copyright Alice and Bob). If Carol receives B under the GPL, she can only distribute a derivative work C under the GPL.
Correct.
That is what the GPL says. It doesn't say "unless that code was released under a different license by someone else." She has to get the code from that someone else under that license.
Of course it doesn't. The derivative work is clearly under the GPL. But all the code that originated in source A is still under the BSDL, and should have notice of that fact. She doesn't have to get those portions from someone else at all. However, if she wants to use any of the code that did not come from source A, then she'll have to comply with the GPL.
IANAL and all that, of course, but that's the way I read the licenses and copyright law. It's perhaps a fine point, and you're trying to read what I'm saying more broadly than I wrote it.
If I included a specific quote, in quotation marks, and attributed to you incorrectly then I certainly owe you a apology.
But if you leave out the quote marks and present it as a paraphrase that's fair game, even when it doesn't remotely resemble anything I actually said?
You said "According to you, distributing these kernels was illegal because they claimed that some BSDL code was GPL code." I said nothing even remotely resembling that. You also said "You are saying that Linux kernels that contained some BSD code were distributed illegally, because they were licensed only under the GPL." Again, I said nothing of the sort. I hadn't even mentioned Linux! Nor had I said anything was illegal. You made up your own statements, having nothing to do with anything I'd said, and then attributed them to me with the phrases "you are saying" and "according to you."
I believe that I understand your point of view. I am simply trying to use a concrete example and the GPL to show that your point of view, if correct, has serious consequences regarding the mixing of BSDL and GPL code.
If you think that the kind of consequences you've tried to put in my mouth in any way follow from what I've said, you are definately incorrect in your believe that you understand what I'm saying.
If you won't address the concrete example I proposed or comment on the portion of the GPL that I quoted, no communication is possible.
I believe I have.
The BSD and GPL licenses are compatible. Their terms permit code under each license to be combined and redistributed, as you must surely be aware.
If you seriously think that somehow what I said (that you can't change the license on the code, only use that code as allowed by the license) contradicts that, you're going to have to explain yourself, because I certainly don't see how that follows.
I'm equally amazed at how you dance around actually understanding me, while repeatedly misquoting me and attributing to me statements I never made, then at the end accuse me of waffling. I'm taking nothing back. I don't need to take back the stuff you made up, because I didn't say it. I'm still trying to figure out if you're just having major comprehension problems, or if you're just a troll trying to waste my time.
Is distributing code with technically incorrect licensing information, in a case where there is no harm done and no malice, illegal? I don't know, you'd have to ask a lawyer.
Has the Linux kernel ever been distributed with incorrect licensing information? I don't know. I didn't bring it up, remember, you did.
Is it legal to redistribute code that you got under the BSDL as part of a combined work under the GPL? Yes. That's why we call them compatible licenses.
If you do that, are you relicensing the code you got under the BSDL? No. You're redistributing it, but the license is still the same.
According to you, distributing these kernels was illegal because they claimed that some BSDL code was GPL code.
And for the second time I'm going to have to correct you for putting words in my mouth. I did not say that, or anything vaguely resembling it, you're saying it, and you're wrong.
To repeat what I actually have said; distributing a work that contains code under both the GPL and the BSDL mixed is perfectly legal, because the licenses are compatible - that is, both of them give permission to do that.
You may feel that this makes the GPL an illegal license.
Clearly I said nothing of the sort. Why do you feel the need to make crap up out of thin air like that? You're just being silly, at best.
Maybe it's because I haven't been sheltered in an open source-oriented enviroment my entire computing life,
Who has? I grew up with Sinclairs, Trash-80s, Commodores, then went to work with DOS, Apple, NT, Novell, and HP-UX - none of if open let alone Free.
but MS's products just don't seem that expensive compared to some of the other stuff out there. They're in BUSINESS to make money.
Of course they are. So's Red-Hat, and everyone else. The question is who can offer the customer what he needs for the best price?
Also, it depends on the software what kind of support you get. With Windows XP you get (as stated on the support website) 2 'incident' calls and unlimited installation support. Take that as you will.
Just ask anyone that's done phone support for them, or tried to use it. If you're halfway clued and tried google you already know more than the guys answering the phone know (or are allowed to tell you.)
You made some good calls in the first two paragraphs, but...
Something too many people here fail to comprehend is that quite a lot of the cost of MS's products goes towards customer service. Try calling up Debian and getting them to answer some questions.
Umm no. Their support contracts are extra. And I can tell you from experience, they're pretty worthless. I've gotten a lot better help on irc than I've gotten calling MS with a fully paid-up support contract.
Laugh all you want, it's a fact, economics is about value and while that usually works back to money, money is only important as a convenient medium of exchange, not as a value in and of itself. Particularly obvious in these days of fiat money. Barter is no less economic an activity than trading with currency, and the GPL is a form of barter - my code for yours.
You are saying that Linux kernels that contained some BSD code were distributed illegally, because they were licensed only under the GPL.
No I'm not. It's perfectly legal for them to contain that code - it's allowed by the license the copyright holders chose in this case. But it's not under the GPL - it's still under the BSDL.
A license is permission to do something.
True.
Saying code is under the GPL means that people have permission to do certain things with it that they otherwise would not have under copyright law.
True.
If I release a program under the GPL, that says you have all the permissions listed in the GPL.
True.
It does not say that those are the only permissions you have. It does not say that no portions of the code are available under other licenses.
True again!
All the code in a GPLed program is, by definition, under the GPL.
But this is not true. It's either available under the GPL, or a GPL-compatible license.
You're confusing, as another poster has pointed out, sub-licensing and re-licensing. They are not the same thing. The BSD code is always BSD. It's other things combined with it which can be under different licenses, because the BSDL allows that.
The BSD license is free: Anyone can use any code under the BSD license, wrap it, mofify it, etc... There is one constraint: The BSD license text must appear in the derived works.
That's pretty much accurate.
The GPL license is less free: Anyone can use any code under the GPL license, wrap it, mofify it, etc... There is one constraint: All derived works MUST BE GPL if they are to be redistributed
This is not exactly correct - although I see where you get it. The GPL requires that if you use the code, you must allow anyone you distribute to to have the same freedoms you were given.
As to the slavery analogy, I think it's quite accurate. Some folk argue that if you can't sell yourself into slavery, you're not really free. This makes a very close analogy to the argument that says that if you can't close the code, it's not really free.
If you define economic strictly in terms of money, then no Free Software license exactly offers economic incentives. But the GPL offers far less disincentive than the BSD license in that case - because the terms of the GPL mean that your competitors are not allowed to leverage your work to compete with you without divulging their own work for you to leverage in turn. Therefore, from the economic standpoint as defined above, the GPL does offer economic incentives strictly in comparison with licenses like the BSDL.
Once you realise that economics isn't just about money per se, you see that there is indeed an economic incentive involved - other peoples work and code. If you have software you want to exist - where control of that software isn't so important to you but it's existence, maturity, and performance are, then the GPL offers great incentives. This is the case if, for a single example, you are a hardware manufacturer. You need software to run on your hardware, otherwise no one will buy it. Control of the software isn't critical - your business plan is built on hardware sales, not software licensing fees. In that case, and many others, it makes great sense economically to use the GPL.
Only in the sense that folks that live in a country where slavery is illegal are thereby less free than those who don't.
This sort of twisting of the word 'free' really bothers me. The GPL is designed to protect freedom - to ensure that the code is always free, that it doesn't get subverted. If you think the fact that the license forbids you from making programmers who contribute code under the GPL your slaves means that the license is 'less free' then I don't think you understand freedom at all.
BSDL allows redistribution under more restrictive terms, but it does not allow you to actually change the license. No one but the copyright holder could do that, and even the copyright holder couldn't do it retroactively.
Look, for an example - if I took some code available under the BSDL, some under the GPL, and combined them, I could distribute them under the GPL - but the portions of code which I got under the BSDL are still under the BSDL, even if the combined work as a whole is under the GPL. The license on the portion of code that I got under the BSDL hasn't changed. I can only use it in my combined work because the BSDL allows that. If I put in a notice that the entire thing is now GPL, I'm simply wrong - only the portions that came to me under the GPL, and the portions I wrote, would be under the GPL - the remainder would still be under the BSDL regardless of what I thought or said.
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If Congress passed a law tommorrow that said it was illegal to breath, would you stop?
The DMCA is invalid on its face, just as a law prohibiting respiration would be. It may take some time for the courts to affirm that, but it's still no law, as the courts have ruled many times before that an invalid law is null and void - not from the moment they say it is, but from the moment it was passed. Besides which, I'm currently fortunate enough to live outside that jurisdiction anyway.
If I'm making a backup copy of a DVD I bought I certainly do need something like that though.
You may be correct on the issue you're analysing, but consider that TSG has argued in court that the GPL is illegal. And remember that you don't sue anyone for 'violating the GPL' you sue them for copyright infringement. They then have to come up with a defense, and the GPL would be their defense against the infringement charge - it's not something the copyright holders need to bring up but rather a defense against them. Since TSG has and is arguing in court that the GPL is invalid, they should be therefore under an estoppel preventing them from then arguing that defense in another court. IANAL, and anyone wanting to sue them should definately talk to some folks that are about it, of course.
Because the BSD license allows you to keep your fork secret, that's why. This allows someone like MS to come along and make a fork that puts the original at a disadvantage, and keep their changes secret (and/or patented) and effectively bar all the Free versions from being compatible. However, under the GPL they would have to publish their source, allowing the Free versions to quickly and relatively easily adapt to any such changes.
I think the next step should be for Fyodor to send a DMCA removal notice to TSGs ISP. ;)
Oh, as to the compiler, of course it's GCC.
I don't think Apache can do it, because their license is different. Samba could and should, but they've decided for the time being not to pursue it. There are a LOT of other software that could too - if they pull everything GPL out of their software they wouldn't have a usable system anymore.
Users? They still have users? Naaaahh.
It's an incredibly powerful tool, and when someone has taken the time to learn how to do everything with such a tool, they really don't want to learn a few dozen new interfaces just to get the same work done. Of course, personally I tried XEmacs and threw it back, I like GNU Emacs better and it runs on pretty much every system around, including my Windows box and my Mac.
In the case of the lightbulb, for instance, being the inventor is naturally a substantial advantage, without having monopoly rents enforced via a patent system. You can keep the thing secret until you tool up, ramp production, and start selling the things. Yes, someone would reverse-engineer it at that point, and start competing - that's a good thing. That keeps you from charging too much for too long. You still get a substantial head start, and being the ones that invented the thing is great for reputation, brand-recognition, etc. And yes, if you make a crappy product and charge too much for it you'll still be competed out of the market eventually - that's how the market is supposed to work.
What the patent system does here is, rather than leaving good enough alone with those natural advantages, instead you have a situation where you can legally forbid competition. You can charge outrageous prices, cut corners in manufacturing and deliver a subpar product for decades, and get away with it, because no one is allowed to compete without your permission. This is a bad thing, not a good thing. The argument that patents encourage R&D spending has some truth to it, but that one advantage can hardly make up for the damage done when you create monopolies with immunity to competition.
It also gives them an incentive to shun and FUD remedies which they can't patent - which is a large part of why herbal medicines are generally either ignored or villified. With a patent system it makes sense to spend millions of dollars coming up with a slight variant on one of the active ingredients in an herbal remedy that you can patent, and then sell that, even if it's not actually as useful as the original herbal remedy.
And just to forestall some replies accusing me of saying more than I did - that doesn't mean that all herbal remedies are superior or even good. But some are, and they still tend to be ignored and villified because no one can collect a rent on their use. Although it's complicated by other factors, Cannabis is probably the best known example of this - it's superior to every alternative for certain uses, but it's kept outlawed while drug companies research ways to change the active ingredient enough to make something patentable instead, and push alternatives that are nowhere near as good from the patients point of view.
One of the times this has come up on the kernel list. You can see this in thread view search the page for BSD and read the entire thread if you want.
In the hypothetical case you posed, which I'd never really thought about before, that seems a reasonable answer. I seriously doubt it would be a problem, really, as there is no intentional deception, no financial damage, only an innocent misstatement. At any rate, I did look over the linux source today, and I don't see anything in it that would qualify as such deception anyway.
Actually the BSDL does require that ("Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer."), and the FSF lawyers have certified it as compatible. BSD code in Linux complies with that requirement btw, although there's been at least one case where it didn't for some period of time until the problem was noticed and remedied. The GPL has a very similar clause, so it really doesn't sound like an additional requirement to me, but I would bet if you wrote licensing@gnu.org and asked about it politely you could get someone more qualified than me to explain it.
Correct.
Of course it doesn't. The derivative work is clearly under the GPL. But all the code that originated in source A is still under the BSDL, and should have notice of that fact. She doesn't have to get those portions from someone else at all. However, if she wants to use any of the code that did not come from source A, then she'll have to comply with the GPL.
IANAL and all that, of course, but that's the way I read the licenses and copyright law. It's perhaps a fine point, and you're trying to read what I'm saying more broadly than I wrote it.
But if you leave out the quote marks and present it as a paraphrase that's fair game, even when it doesn't remotely resemble anything I actually said?
You said "According to you, distributing these kernels was illegal because they claimed that some BSDL code was GPL code." I said nothing even remotely resembling that. You also said "You are saying that Linux kernels that contained some BSD code were distributed illegally, because they were licensed only under the GPL." Again, I said nothing of the sort. I hadn't even mentioned Linux! Nor had I said anything was illegal. You made up your own statements, having nothing to do with anything I'd said, and then attributed them to me with the phrases "you are saying" and "according to you."
If you think that the kind of consequences you've tried to put in my mouth in any way follow from what I've said, you are definately incorrect in your believe that you understand what I'm saying.
I believe I have.
The BSD and GPL licenses are compatible. Their terms permit code under each license to be combined and redistributed, as you must surely be aware.
If you seriously think that somehow what I said (that you can't change the license on the code, only use that code as allowed by the license) contradicts that, you're going to have to explain yourself, because I certainly don't see how that follows.
I'm equally amazed at how you dance around actually understanding me, while repeatedly misquoting me and attributing to me statements I never made, then at the end accuse me of waffling. I'm taking nothing back. I don't need to take back the stuff you made up, because I didn't say it. I'm still trying to figure out if you're just having major comprehension problems, or if you're just a troll trying to waste my time.
Those same guys have, after many moons of hard work, managed to pull the same sort of trick with 2000 and XP.
Is distributing code with technically incorrect licensing information, in a case where there is no harm done and no malice, illegal? I don't know, you'd have to ask a lawyer.
Has the Linux kernel ever been distributed with incorrect licensing information? I don't know. I didn't bring it up, remember, you did.
Is it legal to redistribute code that you got under the BSDL as part of a combined work under the GPL? Yes. That's why we call them compatible licenses.
If you do that, are you relicensing the code you got under the BSDL? No. You're redistributing it, but the license is still the same.
Hope that helps.
And for the second time I'm going to have to correct you for putting words in my mouth. I did not say that, or anything vaguely resembling it, you're saying it, and you're wrong.
To repeat what I actually have said; distributing a work that contains code under both the GPL and the BSDL mixed is perfectly legal, because the licenses are compatible - that is, both of them give permission to do that.
Clearly I said nothing of the sort. Why do you feel the need to make crap up out of thin air like that? You're just being silly, at best.
Who has? I grew up with Sinclairs, Trash-80s, Commodores, then went to work with DOS, Apple, NT, Novell, and HP-UX - none of if open let alone Free.
Of course they are. So's Red-Hat, and everyone else. The question is who can offer the customer what he needs for the best price?
Just ask anyone that's done phone support for them, or tried to use it. If you're halfway clued and tried google you already know more than the guys answering the phone know (or are allowed to tell you.)
You made some good calls in the first two paragraphs, but...
Umm no. Their support contracts are extra. And I can tell you from experience, they're pretty worthless. I've gotten a lot better help on irc than I've gotten calling MS with a fully paid-up support contract.
Laugh all you want, it's a fact, economics is about value and while that usually works back to money, money is only important as a convenient medium of exchange, not as a value in and of itself. Particularly obvious in these days of fiat money. Barter is no less economic an activity than trading with currency, and the GPL is a form of barter - my code for yours.
No I'm not. It's perfectly legal for them to contain that code - it's allowed by the license the copyright holders chose in this case. But it's not under the GPL - it's still under the BSDL.
True.
True.
True.
True again!
But this is not true. It's either available under the GPL, or a GPL-compatible license.
You're confusing, as another poster has pointed out, sub-licensing and re-licensing. They are not the same thing. The BSD code is always BSD. It's other things combined with it which can be under different licenses, because the BSDL allows that.
That's pretty much accurate.
This is not exactly correct - although I see where you get it. The GPL requires that if you use the code, you must allow anyone you distribute to to have the same freedoms you were given.
As to the slavery analogy, I think it's quite accurate. Some folk argue that if you can't sell yourself into slavery, you're not really free. This makes a very close analogy to the argument that says that if you can't close the code, it's not really free.
If you define economic strictly in terms of money, then no Free Software license exactly offers economic incentives. But the GPL offers far less disincentive than the BSD license in that case - because the terms of the GPL mean that your competitors are not allowed to leverage your work to compete with you without divulging their own work for you to leverage in turn. Therefore, from the economic standpoint as defined above, the GPL does offer economic incentives strictly in comparison with licenses like the BSDL.
Once you realise that economics isn't just about money per se, you see that there is indeed an economic incentive involved - other peoples work and code. If you have software you want to exist - where control of that software isn't so important to you but it's existence, maturity, and performance are, then the GPL offers great incentives. This is the case if, for a single example, you are a hardware manufacturer. You need software to run on your hardware, otherwise no one will buy it. Control of the software isn't critical - your business plan is built on hardware sales, not software licensing fees. In that case, and many others, it makes great sense economically to use the GPL.
Only in the sense that folks that live in a country where slavery is illegal are thereby less free than those who don't.
This sort of twisting of the word 'free' really bothers me. The GPL is designed to protect freedom - to ensure that the code is always free, that it doesn't get subverted. If you think the fact that the license forbids you from making programmers who contribute code under the GPL your slaves means that the license is 'less free' then I don't think you understand freedom at all.
BSDL allows redistribution under more restrictive terms, but it does not allow you to actually change the license. No one but the copyright holder could do that, and even the copyright holder couldn't do it retroactively.
Look, for an example - if I took some code available under the BSDL, some under the GPL, and combined them, I could distribute them under the GPL - but the portions of code which I got under the BSDL are still under the BSDL, even if the combined work as a whole is under the GPL. The license on the portion of code that I got under the BSDL hasn't changed. I can only use it in my combined work because the BSDL allows that. If I put in a notice that the entire thing is now GPL, I'm simply wrong - only the portions that came to me under the GPL, and the portions I wrote, would be under the GPL - the remainder would still be under the BSDL regardless of what I thought or said.