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Softpanorama Copyleft Problems Bulletin, 2001

[Dec 30, 2001] The Law & Economics of Reverse Engineering  by Prof. Pamela Samuelson. -- one of the best legal paper on the subject. Highly recommended.

Court Evaluates Meaning of “Derivative Work” in an Open Source License By Laura A. Majerus

The first court case involving the Gnu Public License (GPL) has been filed in Federal Court in Massachusetts, and all lawyers who counsel clients on open source matters should be aware of its existence, even though the case itself has so far provided little substantive help with open source interpretation issues. The case, Progress Software Corp. v. MySQL AB, Civil Action No. 01-11031 PBS, was filed on June 15, 2001. The plaintiff, Progress, is a U.S. software company that signed an interim agreement with a small Swedish software company, MySQL, to nonexclusively market the MySQL software product. The MySQL software had been originally released by MySQL years earlier under the GPL.

Progress alleged breach of contract, tortious interference with third-party contracts and relationships, unfair competition and several similar business-related torts. Progress also sought declaratory judgment as to its trademark rights and other rights relating to its sale and distribution of the MySQL software. MySQL filed a counterclaim alleging, among other causes of action, trademark infringement, breach of the interim agreement between the parties and breach of the GPL. The interim agreement provided, among other things, that the MySQL software would be released under the GPL. This provision conforms to the language of the GPL itself, which specifies that anyone receiving software under the GPL who then releases it must release it under the GPL.

In an early release, Progress distributed the MySQL software with additional proprietary software (Gemini) but did not include the source code for the Gemini software on its distribution medium. However, Progress did include the Gemini source code in a later release. MySQL alleged that the proprietary Gemini software was derivative of the MySQL software because it linked to the MySQL software. This is a key point because the author of the GPL has stated that linking to GPL’d software turns the linked software into a derivative work and that all derivative works of GPL’d software must also be released under the GPL. Thus, GPL’d software "infects" proprietary software with which it is linked. The result is that the GPL either bars inclusion of GPL’d code in programs that are to be kept as proprietary or forces new programs linking to GPL’d software to be released under the GPL.

On February 28, 2002, the court granted a preliminary injunction enjoining Progress from, among other things, sublicensing or distributing the MySQL program and from using the MySQL trademark. Progress Software Corp. v. MySQL AB, 195 F. Supp. 2d 328, 329 (D. Mass.). The court declined to rule on a request for summary judgment of the breach of contract under the GPL, stating:

MySQL has not demonstrated a substantial likelihood of success on the merits or irreparable harm. Affidavits submitted by the parties’ experts raise a factual dispute concerning whether the Gemini program is a derivative or an independent and separate work under GPL, [paragraph] 2. After hearing, MySQL seems to have the better argument here, but the matter is one of fair dispute. Moreover, I am not persuaded that the release of the Gemini source code in July 2001 didn’t cure the breach.

Thus, the court recognized the important issue that will need to be resolved in a case interpreting the GPL: whether a program linked to GPL’d software can be considered a derivative work of that software. The court also raised the question of whether subsequent shipping of source code can cure a breach of the GPL without permission to continue shipment from either the author or subsequent distributor of the software.

An interesting side note is an affidavit submitted by MySQL of Professor Eben Moglen of Columbia University Law School, who is the lawyer for the Free Software Foundation, the group that originated the GPL license. This affidavit contains some insights into the author’s intent in drafting the GPL. In particular, Professor Moglen lists "three primary conditions" of the GPL, stating that if a company receives software under the GPL and then distributes it:

1) Redistribution must itself occur under GPL and only GPL, with no additional license conditions.

2) Redistribution must include "source code," the human-readable form of computer programs that allows programmers to understand and modify computer programs for themselves, as opposed to "object code," which is the "machine language" version of computer programs that is very difficult for programmers to understand or modify.

3) Redistribution must include a copy of the GPL, so that users are aware of their rights to use, copy, modify and distribute, and so that anyone engaged in redistribution is also aware of the conditions under which redistribution is permitted.

These statements will be useful in future cases where GPL interpretation is at issue.

Professor Moglen further stated that the Free Software Foundation’s position is that failure to comply with the GPL terminates distribution rights of the person failing to comply until the copyright holder takes affirmative action to reinstate the rights. Note that this position requires an affirmative act by the copyright holder to reinstate the right to distribute, not an act of the person who distributed the software to the breaching party. In her order granting partial summary judgment, the judge in the Progress Software litigation seemed to imply that a breach of the GPL by failure to include source code possibly could be "cured" by shipping source code in later versions. This view contradicts that of Professor Moglen.

Professor Moglen’s affidavit also reiterates that the GPL is based on copyright law but reminds us that the GPL requires the author of software to unilaterally give up certain copyright rights. He suggests that the GPL actually subtracts from the usual exclusive rights of the author under copyright law, through the granting of unilateral permissions. Under the GPL, all persons observing its terms are unilaterally permitted all rights to use, copy and modify the software. Users who only use the software themselves or who modify the software only for their own use have no obligations under the GPL. Only persons who distribute have reciprocal obligations under the GPL. These include the obligation to release under the GPL, to include a copy of the GPL and to preserve notices relating to the GPL. Thus, the author of the software gives up his rights to control the actions of people who receive the software and do not distribute it, and these people have a unilateral right to use, copy and modify the software. Once software is released under the GPL, the releasing party cannot get it back or halt its use or modification without distribution.

The Progress Software v. MySQL litigation is not over yet. Although the court refused to grant summary judgment on the issues involving the GPL, it is still possible that the GPL breach of contract issue may play a part in the final decision. If this occurs, practitioners may finally have guidance as to the validity of the GPL under contract law and whether linking software results in a derivative work.

Commercial Law and Contracts

A Matter of Principle RMS at Linux Expo in Amsterdam

Where is the GPL going? Two new versions are planned for the license. The first one is GPL v. 2.2, which should clarify a couple of things about the current version. First of all, what is the relation between GPL and other licenses? 2.2 will deal with incompatible licenses. Also, the use of the "system library exceptions" (an exception for major OS components that will enable the use of other, non-GPL, free licenses) should be clarified. Richard's work in that issue is not yet completed. The last major change is notable in the fight against the restrictive consequences of software patents. If your software refers to a patent license, the license of that patent should not limit the GPL license in any way. If it can't comply, the patent license is simply incompatible. The 2.2 version should be available "soon".

For the somewhat more remote future, sometime next year, Richard expects to issue version 3 of the GPL. The main issue in that will be the way to deal with Application Service Providers or ASPs. When ASPs serve a GPL application, the GPL does not require them to distribute source code as the GPL only says that you have to provide source code, or offer to provide it, when you distribute GPL software. In GPL v.3, this should be changed to require ASPs to make sources publicly available the moment a user chooses the service. The other change will be a simpler one. Currently, the GPL license only states that sources need to be available. If you distribute free software on a CD-ROM, the sources can be on your web site. Richard would like to see this changed so that sources must be distributed on the same type of medium as the binaries.

[Dec 26, 2001] Open Source - Closed License

1. Introduction

At the time of writing (February 2001) there are 18 licenses on the Open Source[1] Initiative[2] Approved Licenses list[3] and on the GNU Projects'[4] / Free Software Foundation's[5] free software[6] licenses page[7] there are 15 GPL-compatible free software licenses, 2 free documentation licenses and in total 42 software licenses plus 4 non-software licenses.

This is a problem!

2. "I am Not A Lawyer"

This is the traditional declaration when any discussion of software licenses starts, usually written by a developer because understanding licensing is hard, and fuzzy - there is plenty of room for interpretion. Many of the licenses have been written by lawyers for lawyers and thus are basically impenetrable by most developers OR by developers and hence may not capture all the subtles of how a well-formed and complete license has to be written in order to be legal. An alternative way of putting that is since The Law uses its own jargon, license subtleties can be lost on coders just used to programming languages. The comparison between law and programming code has been discussed in Lessig[8].

3. License Testing

As far as this author knows, no free software or open source licenses have been tested in any court but that may happen soon [9]. In many places, case law is a large part of the legal process and this part has not been thoroughly dealt with. In some ways this is good, since it has shown over the years that peer-pressure can fix problems with the use of licenses, whether accidental or deliberate.

There have been some cases of parts of the Linux kernel being used contra to the GPL license but they have mostly been amicably settled. There are still some ongoing issues at this time such as the RTLinux patent and the GPL as reported in[10]. Similar things have happened with use of the GPLed Doom and Quake sources and an attempt to make a clickthrough license for users to disclaim their rights under the GPL.

Advice on choosing a license is available from SourceForge where all the projects there must be under it[11], from Rosenberg in [12] (1998)

Bruce Perens (co-author of the Open Source Definition) said:

The GPL has actually had a good deal of evaluation. Richard Stallman has an MIT law professor who helps him, and there has been a law school thesis and some private analysis.There are definitely holes, but there's also evidence that it could be enforced. Ironicaly, the UCITA, a proposed U.S. "uniform state law" that poses us problems because places a ban on reverse-engineering, also has provisions that make the GPL and other free software licenses much eaiser to enforce.
Bruce Perens Answers Open Source License Questions, [13]

An analysis by Lee[14] in 1999 concludes that Open Source Licenses are legally enforcable in the US (including restrictions). Lee looks at the GPL, BSD, Apache and NPL/MPl licenses but the analysis was done before the US passed some significant new laws such as UCITA and changes to the US Uniform Commercial Code (UCC).

Welsh gives some thoughts on the GPL and (at that time) proposed changes to the US UCC Code in [15]

4. License Bugs

There are some ambiguities in the GPL such as the words "release", "publish" and "distribute" as discussed in [16]. The march of technology has allowed software components to be more lightly 'linked' than previously available or using component technologies, web services[17], so the concept of distribution is rather different from that commonly defined when the GPLv2 was written.

[Oct 14, 2001] Pharmaceuticals, BSD, and GPL  by Albert Yang

I've been meaning to address quite the BSD License bashing that I've read, but never got quite the chance until now. I won't begin to get into a flame war between the BSD camp and the GPL camp, but I will site some examples and how the BSD model benefits. (No, I'm not going to talk about taking drugs…)

I asked a pharmacist friend of mine what was the difference between "generic" drugs vs. commercial. Am I getting a better drug if I buy commercial? Nope, there is absolutely no difference he tells me. Then why the price difference? That was the part I couldn't understand, if two things were the same, why would one charge more? It's simple he tells me, it's a matter of recuperating your R+D costs he tells me. It goes something like this:

A large pharmaceutical company, such as Merck, spends millions if not billions on R+D. They produce 1 drug, and they sell it to recoup their R+D costs and of course, to make a profit. Now profit is not an evil word, it's the reason anybody is in business, it's true, ask your Econ 101 professor. When the company's patent runs out, then the formula is available for people to duplicate and sell as a "generic". That seems perfectly fair to me, after all, why should other companies benefit when they didn't spend a single thin dime on the R+D, which is usually the biggest of the costs involve?

So this is, with the BSD licensing model. You paid 100+ people to dump high quality code into a product, why should you just freely give it away? Do you not have the right to, recoup your costs for R+D? Or is this only the right of a pharmaceutical company? Do you not have a right to try to make a profit? After all, isn't that what starting a corporation is about? After all, isn't that what America is about, capitalism?

This model has worked great for one of my favorite firewall companies, gnatbox. They use a BSD base and have made a great firewall out of it. They have programmers that have spend time and money to write code for it, and as a result, they should have the right to make a profit off their hard work. If they were under GPL, who would buy their product? Or would most of us buy it from a CD for $1.99 from cheapbytes or even worse, just download it since it's only 1.44 megs in size? Yes, it would be great if they released the source, but then none of us would buy from them. Would you like to be the one that tells everybody in that company that they are all fired and without a job because you want the source code and want it for free?

There seems to be a general thought in the GPL world that having Open Source is the equivalent of dating a German supermodel. It's not. While Open Source is great, it doesn't always solve problems. Let me give an example. Say I'm running PostGreSQL, and I run into an error. What do I do? Well, the Open Source movement says that this is the opt-tune time that Open Source shines. I can, according to them, go into the code myself, trap the bugs, create a patch, and contribute back to the community. If everybody did that, then bugs would be trapped at an accelerated rate, and the iterative cycle of products would be at a blitzkrieg speed. Like Communism, this all sounds great in theory, but is difficult in practice. First off, how many people do you know that understands how relational databases really work, let alone can program them, or read the code it was based on? I know of none, and I am sure that there are very few that do. Second, do I actually know enough to debug a database? I doubt it. What about a kernel panic? Can I trap it and write a patch? Again, I doubt it. The best I can do is email attach a core dump to Alan Cox or Bill Joy or someone like that. Also, the lack of control in an "I found a bug, I wrote a workaround and now I posted it" is great in the turnaround time for bugs squashing, but it makes for a network management nightmare. Your system is not up to date on the latest of patches after about 5 minutes.

Before you fire up the flaming engine, let me reiterate myself. I like GPL, there are times that GPL works great, and there are shining examples of Open Source at it's best; gcc, Apache to name two of the most famous. But there are companies who have employees, and those companies needs to generate revenue in order to sustain and grow a business, not just give their intellectual property away, so others can benefit without first recouping their overhead and making a profit.

The counter argument mounted is that if this is the case, then nobody will release their source under BSD. That again is a misnomer. I'll give examples here as well. Do you think that the source code for Apple IIe is worth hiding? Probably not. Do you think source code of API's for module extensions is hidden? No. Do you think a company who no longer has the manpower to maintain a certain portion of code or is looking for development help from the community is going to open up that source code? Yes. Why? Because of the one driving force for all of business, it makes good financial sense. I have a product and I no longer want to maintain it. What can I do about it? I can open it up. The bottom line is, GPL has its purposes and situations. BSD also has its purposes and situations. When you are talking about a business model, where the business intends to make a profit and sustain a revenue, then BSD seems to be the more logical choice.

[Oct 12, 2001] GNU GPL vs. the BSD license - theory vs. practice

So in short conclusion, both the GNU GPL and the BSD license have problems, none are perfect, and no license can be perfect, it can only strive to get as close as it can. As thus, I can't be described as a "GPL fanatic", because I do not believe the GNU GPL is perfect, and I recognize its problem. But I would like the problems with the BSD license to be also recognized by people, not to make them stop arguing in favor of the BSD license, but to remove some of the common arguments that come from not recognizing the problems of the BSD license.

[Sept 25, 2001]  Copyright is wrong by JOOST SMIERS

Huge cultural and news conglomerates cover our planet with their satellite and cable systems. But it only makes sense to own the world's information channels if you also hold the key to their content, and the copyright of content constitutes property, legally speaking. There has been a free-for-all in mergers, including those of AOL and Time Warner. The risk is that soon a few companies will control all the intellectual property rights to almost all artistic creations, past and present. Bill Gates, and the digital archives of his Corbis Corporation, hold the rights to 65m images, including 2.1m images on line  (1).

The once approved-of concept of copyright has developed into a system under which a few industries control intellectual and creative properties that belong in the realm of public interest. Abuses happen and are easily identified, but the problems are wider and more subtle. Rosemary Coombe, a Canadian anthropologist and copyright specialist, says: "In consumer cultures, most pictures, texts, motifs, labels, logos, trade names, designs, tunes, and even some colours and scents are governed, if not controlled, by … intellectual property"  (2).

The consequences of such monopoly are frightening. Groups dominating the cultural industry disseminate only the artistic works and entertainments to which they hold copyright. They invest in and promote heavily only a few star items, and earn income from the spin-offs. Because of high risk levels and return-on-investment requirements, worldwide marketing campaigns are so aggressive that all other artistic creations bypass many people's cultural awareness. This jeopardises the diversity of artistic expression, which is essential to democracy.

All aspects of artistic creation have been handed over to the lawyers. The companies that buy copyrights protect them through comprehensive regulatory mechanisms, and employ the best legal advisers to protect their interests. Artists have to prevent companies from taking over their works, and therefore artists also have to employ lawyers to defend their interests, even though their resources are far more limited.

Companies are making a fortune from copyright, although they are threatened by piracy, which democratises the private, home use of music and other materials, and may perhaps cost the companies $200bn every year (3). Efforts to combat it seemed futile given the invention of MP3s and the arrival of Napster, which allowed for the rapid downloading of enormous quantities of music, images, films and software from the virtual data in the world.

[Sept 10, 2001] Computer News Fair Use and the Fallacy of GNU -- an interesting stance on GPL and fair use doctrine.

Section Five of the GNU GPL says, "You are not required to accept this License ... However, nothing else grants you permission to modify or distribute the Program or its derivative works." Well, not quite, Rich.

The copyright laws include the doctrine of "fair use," which overcomes the exclusivity rights and other restrictions placed on copyrighted material and gives people the right to use copyrighted works without permission, even when permission is explicitly denied. See Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994).

Fair use may not seem fair to the author whose work is taken, but it is fair to society as a whole.

[Sept 4, 2001] Copyright in a Frictionless World: Toward a Rhetoric of Responsibility by Brendan Scott
First Monday, volume 6, number 9 (September 2001)

... The key features of the Statute of Anne were:

(a) books in publication before the Statue were protected from "printing or disposal" for 21 years from 10 April 1710;

(b) other works were protected for 14 years from first publication;

(c) if the author was alive at the end of the first 14 year period the protection extended for a further 14 years;

(d) the price of books was subject to review and price capping;

(e) nine copies of each book printed upon the best paper were to be sent to the Company of Stationers for the use of the Royal Library, the libraries of Oxford and Cambridge and a number of other libraries;

(f) the Statute did not apply to books in Greek, Latin or any other foreign language.

In the mid-1700s, copyright granted under the Statute began to expire. It is not surprising therefore that this period was witness to a rash of private suits bought in relation to books arguing that there existed a common law copyright in relation to works [39]. Perhaps the most famous of these was the 1760 case of Tonson v Collins [40]. In this suit, the Stationers Company manufactured a set of facts to put before the Law Lords and, indeed, paid for counsel for both the defence and for the plaintiff. The judge at first instance referred the matter to a hearing of the full bench. After it had considered the facts, (and was literally on the verge of handing down its judgment) it was informed of the collusion behind the suit and of the fact that the Stationers Company was financing the whole of the litigation. In the circumstances it declined to give any judgment in the matter.

... ... ...

In 1707 Scotland and England joined in a union [37]. At the time of this union the printing of works within England was strongly under the de facto control of the Stationers Company in that their members owned all of the printing presses and were colluding by not publishing a work if it was claimed by another of the members of the Company. As a result, some individuals would travel to Edinburgh, have their material printed by a Scottish printer and return to England in order to sell those copies at a profit greater than that afforded to them had they approached an English printer. The English printers, not being too keen on their Scottish rivals, sought to have the Scottish printers removed from competition. Such was the birth of the Statute of Anne in 1709 [38]. The opening words to the Statute of Anne read as follows:

"Whereas printers, book sellers, and other persons have of late frequently taken the liberty of printing ... or causing to be printed ... , books and other writings without the consent of the authors or proprietors of such books and writings, to the very great detriment, and too often to the ruin of them and their families; for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty ... ".

While mentioned here, the encouragement of "learned men to compose and write useful books" does seem to be something of an afterthought.

... ... ...

In 1878 the International Literary Association was created [53]. Its 1883 meeting in Berne produced a draft International Copyright Agreement. That meeting was followed by a convention in Berne in 1886 (the 1886 Berne Convention for the Protection of Literary and Artistic Works). Under the Berne Convention, member countries were required to provide the same protection to authors from other member countries as it provided to its own authors and also put in place certain minimum levels of copyright protection, including setting the period of copyright protection at the life of the author plus 50 years. Soon after, the U.K. passed the second International Copyright Act in 1886 unifying copyright throughout the colonies and ratifying the Berne convention. In 1893 the Bureau for Protection of Intellectual Property (BIRPI) was established [54]. BIRPI was later succeeded by the World Intellectual Property Organisation (WIPO) in 1967.

The rules of the Berne convention were quite simple - each country was accorded one vote without taking account of the relative economic power of that country or of the works produced by that country nor whether the country was a net consumer or net producer of works. As a result, over time, as more developing nations became members to the Berne convention they formed voting blocks which were able to outvote the developed countries on resolutions. One consequence of this was the Stockholm Protocol in 1967 which gave developing countries broad access rights to copyright materials. Ultimately it was actions such as this which prompted the United States to shift copyright and similar negotiations out of the WIPO forum into other forums such as the GATT talks. Sensing the opportunity for U.S. firms to secure profits from its lead in the computer revolution, the United States, in 1981, during the chairmanship of the then head of Pfizer Corporation on the Advisory Committee for Trade Negotiations the committee created its Task Force on Intellectual Property [55]. The long term goal of that task force was the placing of copyright and similar negotiations within the GATT. At about this time, the United States began to use its GSP (Generalised System of Preferences) mechanism to apply economic pressure to nations with "inadequate" intellectual property protection. In 1984 the United States amended its Trade Act to include Intellectual Property for 301 Trade Processes. This was later supplemented in 1988 with Regular, Special and Super 301 Processes. In essence, under these arrangements, the United States identifies countries which have regulatory regimes which the United States considers to be inappropriate and enters negotiations with those countries to modify those regulatory regimes. Where those negotiations do not meet with a sufficient level of "success" over a given period, the U.S. then applies economic sanctions to that country [56].

By targeting the individual countries beforehand, the U.S. was able to remove developing country resistance to the TRIPS initiative in the 1994 Uraguay Round of GATT. On 15 April 1994 the Marrakesh agreement establishing the World Trade Organisation was signed. The TRIPS agreement (Trade Related aspects of Intellectual Property Rights) formed Annex 1C to the Marrakesh Agreement. As at 1986 the GATT had very little coverage for legislative monopolies such as copyright.

Slashdot Moglen On Enforcing The GPL -- the essay itself  is pretty weak, even funny ("Despite the FUD, as a copyright license the GPL is absolutely solid.(I thought that GPL is copyleft, not copyright -- BNN ;-)  That's why I've been able to enforce it dozens of times over nearly ten years, without ever going to court.  ;-). At the same time some critical Slashdot comments are pretty interesting:

Enforcability (Score:1)
by SanLouBlues on Tuesday September 18, @02:36PM (#2316793)
(User #245548 Info | http://mason.gmu.edu/~mburke6)
". . . in the cases I have in mind, legal technicalities prevented actual criminal prosecution of the violators"

So convincing other people not to use software which continues to be published is enforcement? What are these technicalities? Specifics man, I need the facts!
"accepting the license" (Score:2)
by paulbd (
p b d a t o p d o t n e t) on Tuesday September 18, @02:13PM (#2316654)
(User #118132 Info | http://www.op.net/~pbd/)
Eben claims that users of GPL'ed code need do "nothing" in order for the license to apply.

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

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

The article is not online unfortunately, else I would have posted it here.
 

This only reinforces...
by ChaoticCoyote on Tuesday September 18, @02:16PM (#2316674)
(User #195677 Info | http://www.coyotegulch.com)
...my decision to stop using the GPL for any of my own code; I've relicensed everything under a libpng/zlib-style agreement, thus distancing myself from the extreme opinions of GPL's adherents.

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

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

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

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

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

This has to be done, people. (Score:2)
by Kasreyn (
kasreyn with underlines between letters@hotmail) on Tuesday September 18, @04:01PM (#2317290)
(User #233624 Info)

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



hypothetical situation:

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

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

Comments, suggestions?

-Kasreyn

[Sept 1, 2001] Linux Today - XFree Developer Clarifies Trident Issues

From: Egbert Eich
Date: Fri, 31 Aug 2001 12:02:18 +0200 (MEST)
Subject: [Xpert]Trident changes policy providing documentation to open source

We have recieved word from the Product Manager at Trident Mircosystems stating that Trident Microsystems has not changed their policy of providing chipset documentation to Open Source projects:
Le Nguyen, Assistant Vice President of Trident Microsystems, Inc wrote:

On behalf of Trident Microsystems, I would like to state on the record that we have not changed our policy of providing chipset documentation to open source projects. Trident however continues to require an NDA to be signed in order to gain access to such confidential technical information."

Please let me clarify my previous posting.

The background:

  1. XFree86 has in the past received technical documentation from Trident Microsystems, Inc. Is has developed drivers for all current  Trident graphics chipsets which would have been impossible otherwise.
  2. Alan Hourihane has tried to obtain documentation for the latest Trident chipsest (CyberBladeXP and CyberBladeXPm) without success. He offered to sign an NDA with a 'source code exception clause' a clause which allowed distribution of unobfuscated source developed with the help of documentation otherwise covered by the NDA. Trident apparently didn't accept a 'source code exception clause'.

We therefore assumed that Trident Microsystems has modified its policy of providing technical documentation. This assumption may have been incorrect.

The policy of XFree86:

XFree86 respects the the right of hardware manufacturers to treat certain technical information confidential.

XFree86 is ready to accept NDAs signed by itself or individual developers requiring:

  1. To pass no technical documentation, parts thereof or information contained therein to individuals or companies not being under this NDA.
  2. To make no quotes of any part of technical information obtained under the NDA within the source code.
  3. Not to implement functionalities in Open Source projects which can not be legally published in source code due to contracts the manufacturer has signed with third parties if these functionalities are identified by the manufacturer. (I would like to point out, however that if this covers large parts of main chipset functionalities it will make the agreement practically worthless for XFree86.)

Due to the Open Source nature of the XFree86 Project, Inc. it is unable to accept:

  1. The requirement to distribute drivers developed from technical documentation obtained by the manufacturer in binary-only form.
  2. To distribute obfuscated source code.

In the past most of the leading graphics hardware manufacturers have agreed to release documentation to XFree86 or individual developers under these terms. Few manufacturers have chosen to develop their own binary only chipset driver modules or sub-modules - which extend the functionality of an Open Source driver.

If Trident Microsystems is able to accept terms as stated above XFree86 will be happy to continue to develop and extend drivers for future generation of Trident chipsets.

Regards, Egbert

[Sept 1, 2001] FEED Digital Culture - Give It Away Now!

... ... ...

ARE THE FAILED business models of Kozmo or Pseudo truly analogous to those of Red Hat or VALinux? Not necessarily. For one, most software companies in the open source world do charge a clearly defined, upfront fee to their customers. Red Hat isn't exactly handing out its shrink-wrapped flavors of Linux on street corners, after all. They're charging forty dollars for the package, even though they took on almost none of the overhead involved in creating an industrial-strength OS. Technically, they're charging for distribution, packaging, and support, not the actual software, but the end result is someone buying an OS from a vendor who didn't pay the programmers who created it. In a funny way, you can think of the commercial open source world doing precisely the opposite of the revenue "strategy" that Mundie attributes to the dot-coms. They ask you to pay for something that they themselves didn't pay anything to create.

Then there's the thornier question of the GPL. It is certainly true that the GPL presents serious challenges to anyone who wants to "rent" software to another party, à la Microsoft, without handing over the ownership rights in the transaction. "The GPL mandates that any software that incorporates source code already licensed under the GPL will itself become subject to the GPL," Mundie explains. "When the resulting software product is distributed, its creator must make the entire source code base freely available to everyone, at no additional charge. This viral aspect of the GPL poses a threat to the intellectual property of any organization making use of it." "Viral," of course, is the expected meme here, but the analogy might be better drawn to modern genetics -- putting a given piece of code under the GPL is like tinkering with the stem cells of an organism: The choice you make gets passed down to all the descendants, no matter how the environment changes from generation to generation. For software developers, this has significant implications. Let's say you build the digital equivalent of a better mousetrap -- a grammar checker that actually works -- and then decide that it's best served by the GPL. With that single decision, you've effectively eliminated the possibility that any of your program's descendants will get integrated into Microsoft Office at any point in the foreseeable future, assuming the foreseeable future doesn't include a forced collectivization of the entire Redmond campus and all of its intellectual property.

Now consider the implications of the GPL from a consumer perspective. What should attract an end-user to a piece of GPL'd software? Here we get to the heart of Mundie's critique, and the heart of its Microsoft-centrism. The grammar checker that doesn't get integrated into MS Office is only an evolutionary dead end if it also fails to survive and evolve on its own. Given that only a finite number of software tools will eventually make their way into the MS toolbox, any software buyer interested in long-term viability has to look very seriously at tools that belong to the open source community, and not a proprietary vendor -- because open standards tend to have a longer life than proprietary ones. Eric Raymond refers to this attribute of the open source model as "risk-spreading": By widening the pool of people who are free to develop the code base, you narrow the chances of the code's disappearing because a single company stopped supporting it. In his essay "The Magic Cauldron," Raymond describes "a model in which open source functions not so much to lower costs as to spread risk. All parties find that the openness of the source, and the presence of a collaborative community funded by multiple independent revenue streams, provides a fail-safe that is itself economically valuable -- sufficiently valuable to drive funding for it." The companies that package the code base may come and go, but the software lives on.

Once again, the course followed by the dot-com bubble companies turn out to be the exact opposite of the one pursued by the open source world. You can think of Kozmo as a kind of proprietary data delivery platform. (The platform is partially built out of guys on bicycles, of course, which is why it was always a little weird to think of Kozmo as a pure Internet company in the first place, but that's another story.) When I decided to build a consumer relationship with Kozmo -- giving them my credit card, letting them cookie my browser, building a purchase history with them -- that commitment was predicated on their future ability to stay solvent, just as it would be if I took the time to enter my medical history on WebMD or my golf scores on Golfweb. When Kozmo failed, the service that I had grown so accustomed to disappeared overnight, the same way my data disappears if Golfweb or WebMD shuts down. While most dot-com pricing was certainly competitive -- nothing's more competitive than free -- the consumer proposition was a risk-narrowing model, rather than a risk-spreading one. You build a complicated and long-term relationship with a single provider, and hope they can keep the bank balance flush. If they can't, tough luck.

This is the ultimate flaw in Mundie's argument. If creative destruction is a hallmark of the new new economy, if we're fated to live through increasingly turbulent economic times, then open source software isn't one of the causes behind that volatility. It's an antidote.

THERE'S ANOTHER POTENTIAL antidote, of course -- you can always choose to buy from a giant, semi-monopolistic, closed source software company like Microsoft, and feel confident that your code will continue to be supported for decades. Obviously, this is a model that has worked extremely well for Mundie and his colleagues, and so it's only natural that he should encourage the rest of the software world to follow it. The problem is there's a finite amount of room for giant, semi-monopolistic, closed source software companies -- in fact, there may only be room for one, and Microsoft doesn't look like it's going anywhere soon. What the commercial open source sector has decided is that it's worth it to trade the high margins of proprietary code for the dramatically reduced development and marketing costs of GPL'd software. You make your money by being an expert packager, and let the entire development community do the heavy lifting of actually building the code base. (Raymond calls it "Give Away the Recipe, Open a Restaurant.")

Will any of those software restauranteurs become the next Microsoft? Probably not. But they could very well become sustainable business that turn a tidy profit, and in the process help create a more open and diverse software ecosystem. And that's the final irony of Mundie's analogy between open source and the bubble economy: The insane late-nineties valuations of the dot-coms were based partially on the hope that some of those companies were in fact "the next Microsoft" -- a juggernaut in embryo, a company that might some day sport a $100 billion market cap, and thus be a bargain at $10 billion. (No doubt some of the Linux companies benefited from those hopes as well.) The crash happened because a lot of investors woke up one day and realized that they were holding shares in the next Pets.com, not the next Microsoft. Most of those companies have dealt with that cruel realization by going out of business. But the open source companies have another option, one that is true to the values of the movement, and in synch with these more modest times. They can position themselves as the anti-Microsoft, not in the sense of another proprietary wannabe world conquerer, but in the sense of presenting a challenge to the entire model that Microsoft's success is based on -- including the company's epic profit margins.

[Aug 31, 2001] IDG.net Is open source closing doors?

... ... ...

P.J.: First of all, Kevin, open-source licensing isn't inherently evil; but it's certainly not for everybody -- and definitely not for a company that wants to keep control of its intellectual property. Although I would be the last person to shill for Microsoft, I have to say that its attempts to explain disparaging comments, made earlier this year by some of its executives, display a better understanding of what drives technological advances than anything I've heard coming out of the open-source camp.

Here's the problem: Under a pure open-source licensing environment such as the GPL, it's bloody difficult to accomplish much without relying on the work others have already completed. If you develop a tool that uses code covered by GPL, you've effectively lost the rights to your work. You have to make the source for your project available to anyone who asks. If I wanted to code for a living, the biggest disincentive I can think of is being forced to give away my hard work for free.

Kevin: I think you're reading a bit more into the GPL than is really there, P.J. It's true that if you base your project on a GPL package then your work will have to be GPL as well. This is not true if you simply use GPL libraries or if some subset of your package uses GPL software. For example, if I build an appliance that uses Linux as its OS with other GPL packages installed on it and then create my own binary packages for the applications running on the appliance, there is no reason that I would be forced to release the code for my project.

When the GPL refers to derivative works, its intention is that, if you take an existing package and modify it for your needs, you must release the changes you made. If you don't want to do that, then you shouldn't modify an already existent GPL package. Instead you should do the work yourself. Of course, the GPL is not the only open-source license available. The BSD license is often much more attractive to businesses that want to keep their modifications proprietary.

P.J.: I didn't say that all open-source licenses were bad. I heartily approve of the BSD license scheme because the developer retains control of the source. That's where my beef really lies; I was brought up to believe that you can't create wealth without an understanding of property rights, or who owns what. The GPL is creeping Marxism at best.

I know a lot of companies are talking about their interest in open source. But for many shops, that's not going to go much further than setting up some Linux boxes. Many businesses view their customized software as being so mission-critical that feature lists are considered trade secrets; it's crazy to think that many organizations will want to open up their code as called for under the GPL. That's giving away the secrets behind your trade secrets -- absolute insanity for any company.

Kevin: Well, the source door swings both ways. For example, Microsoft used a TCP/IP implementation that was covered by the BSD license when they needed to add TCP/IP capabilities to Windows back in the 3.x days. That was a great deal for Microsoft; they didn't have to do much work and basically got a free patch to help them catch up with the rest of the world as far as Internet connectivity goes.

The BSD license is much more attractive in such cases, but the problem is that many open-source developers don't like the idea of someone building products on top of the work they've done without giving them credit or recognition. The BSD license is not the best solution, in my opinion, but it does give businesses a way to embrace open-source computing without threatening their existing development work.

P.J.: Well, I'm all for giving credit where credit is due. Most developers feel like they cover that with a splash screen or startup banner. Nevertheless, it doesn't pay for the T1 line. Even "King" Gillette realized that he had to sell something to make money; in his case, he gave away the razor handles but sold the blades. Open-source licenses have to work the same way as the rest of the economy, or they won't work at all.
... ... ...

[Aug 15, 2001]linux.oreillynet.com Freedom or Power [Aug. 15, 2001] 

Editor's note: On July 28, 2001, Tim O'Reilly published a weblog titled, My Definition of Freedom Zero, that was inspired by a discussion that had followed the debate between Craig Mundie and Michael Tiemann at the O'Reilly Open Source Convention. In that article Tim explained his preferences for BSD-style licenses over the GPL. This article is a response by the Free Software Movement to Tim's statements.

Freedom is being able to make decisions that affect mainly you. Power is being able to make decisions that affect others more than you. If we confuse power with freedom, we will fail to uphold real freedom. That is what Tim O'Reilly did in his essay, My Definition of Freedom Zero. He advocated a "basic freedom" which is really a form of power.

Tim O'Reilly says the most fundamental software freedom is: "The freedom to choose any license you want for software you write." Unstated, but clearly implied, is that one person or corporation chooses the rules to impose on everyone else. In the world that O'Reilly proposes, a few make the basic software decisions for everyone. That is power, not freedom. He should call it "powerplay zero" in contrast with our "freedom zero".

O'Reilly Network My Definition of Freedom Zero [August 18, 2001]

Craig Burton captured my off-the-cuff redefinition of Freedom Zero in the Q&A period following the debate between Craig Mundie and Michael Tiemann at the O'Reilly Open Source Convention. I was responding to Brett Glass's comments on why BSD-style licenses are preferable to the GPL. After an initial statement of agreement that BSD-style licenses are my personal preference for many of the same reasons that Brett has given, here's what I went on to say:

"Freedom Zero for me is to offer the fruit of your work on the terms that work for you. I think that is what is absolutely critical here. Let there be competition in the marketplace; that is the answer. Let people use whatever license they choose and if their customers don't like it they will have other choices. Because of the technological changes, we are entering an era of greater choice. The fact is, Microsoft's past history is past. We are entering a new era, not of just open source but of profound technological changes. The future is open and we can make that future be what we want it to be."

Some people might not recognize the reference to "Freedom Zero" as a takeoff on the first of Richard Stallman's four freedoms from the Free Software Definition:

  1. "The freedom to run the program, for any purpose. (freedom 0)"
  2. "The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this."
  3. "The freedom to redistribute copies so you can help your neighbor (freedom 2)."
  4. "The freedom to improve the program, and release your improvements to the public, so that the whole community benefits. (freedom 3). Access to the source code is a precondition for this."

I love the concept of "Freedom Zero", which sounds to me like it ought to be the absolute foundation on which all the other freedoms are based. But at the risk of sounding like "warmed over Ayn Rand", I don't think Richard got Freedom 0 right. There's an even more fundamental freedom that underlies the work of both free software advocates and the most proprietary of software developers, as well as anyone else engaged in creative work. And that is the freedom to offer your work to the world on the terms that you choose, and for the recipients to accept or reject those terms.

It is this fundamental right--and the desire for others to respect this right--that is the real backbone of the GPL. Those who wish their work to be distributed with the protections of the GPL are exercising this freedom, as are developers who use university or public domain licenses, and even those who choose strict proprietary licenses.

My biggest beef with Microsoft is not that it offers proprietary software, but that it uses anticompetitive tactics and its monopoly position to take away my right to use non-Microsoft software through the introduction of deliberate incompatibilities and other roadblocks. If Freedom Zero for developers is the freedom to offer software on whatever terms the developer sets and a user will accept; Freedom Zero for users is the right to choose whatever software they like, without interference from platform vendors who try to deny that choice.

Linux Today - GNU libc 2.2.4 Release Notes Include Hard Words for Richard Stallman

Alan Truesdale - Subject: Re: Try the BSD license ( Aug 17, 2001, 04:18:26 )
The GPL protects you the developer it assures you that you will have access to what ever is derived from your code. The BSD license allows your code to be hijacked it does not make the user responsible to the community. While the BSD license is simple it does nothing to prevent defection and protect the author of the code. Obviously a company like Microsoft or even Apple perfer the BSD license they are laughing all the way to the bank.

I have seen Mr Stallman speak and understand that he has a problematic personality but it is that total unwillingness to compromise the started GNU. I personal think its important that we separate the GPL from the person, and are very carefull we don't through the baby out with the bath water.
David Johnson - Subject: Re: Re: Try the BSD license ( Aug 17, 2001, 04:22:44 )
Microsoft did not "embrace and extend" the Kerberos software. Instead they embraced and extended the Kerberos *standard*. A very different thing. Placing Kerberos under the GPL would not have changed anything.

No license is perfect for every situation. But every license is perfect for some situations. The BSD license is very useful in a lot of circumstances.

Oh, and by the way, Microsoft extended Kerberos according to the Kerberos standards of extending Kerberos.
renoX - Subject: Linus had the same problem ( Aug 17, 2001, 08:27:28 )
I remember reading in one of the KC write-up that Linus had also rejected the "or any later version" part of its own copyright.

So apparently Drepper is not the only one having problem with the "control freak" RMS..

Ars Technica Intellectual Property and the Good Society - Page 1 - (8-2001)  -- a pretty interesting paper about the importance of "middle ground" approach in IP law.

Lessons from Open Source- Intellectual Property and Courseware

In the same way that universities gain research reputations based on the quality of their peer-assessed research, so can universities gain teaching reputations based on the quality of their peer-assessed teaching. I do not know of any university that is making any sensible use of these measures. Many universities advertise that they have flexible delivery Web-based systems. If all are doing it, then this amounts to the typical level of advertising with no substantive content.

Linux Today - Yahoo!-eWeek Truce or dare (BSA audits chasing businesses to open source)

The Business Software Alliance, aka "the license compliance people," takes a hard hit in this article, which maintains that the company is indiscriminate in its letter campaigns and may, after a typical brief period of compliance, be pushing customers to open source software:

"If you're a small or medium-size company, there's a good chance you've heard from the Business Software Alliance about getting your software compliant with its licenses. If not, you probably will. The group is well into a nationwide letter and radio campaign to do just that.

But what you probably don't know is that, like so many of the companies that stuff your mailboxes with junk mail, the BSA, which represents such software giants as Microsoft Corp. (NASDAQ:MSFT), Adobe Systems Inc. (NASDAQ:ADBE) and Apple Computer Inc. (NASDAQ:AAPL), has no intention of following up on its letters-regardless of how threatening and personal they may seem. It won't phone. And it won't pop in for a surprise audit.

Instead, an eWeek investigation reveals, the BSA's campaign is primarily a marketing effort essentially designed to scare people into buying more software. But for many enterprise customers who are quickly becoming fed up with the group's hardball tactics, the campaign is having the reverse effect: compliance, then departure to alternative products, like open source."

Complete Story

A Senior Microsoft Attorney Looks at Open-Source Licensing

When you play down your principles, you make lots ot new friends--including some you don't like.

The Open Source movement has yet another fan: Robert W. Gomulkiewicz, a senior corporate attorney for Microsoft Corporation and, not coincidentally, the Business Software Alliance's top gun for the proposed UCITA reforms to commercial software licensing law.

Writing in the Houston Law Review, Gomulkiewicz (1999) argues that open-source licenses typically contain precisely the UCITA provisions that are giving fits to consumer advocates, such as the denial of any legal recourse should a consumer suffer loss, harm, or injury through use of the software. What's more, he argues, the Open Source movement's history and recent success show why the UCITA's protections are needed. When somebody like Gomulkiewicz expresses admiration for what you're doing, it's time to stop for some serious reflection. After all, this is tantamount to Darth Vader publishing an essay that praises the way the Rebellion is headed.

I'll fill in the background of what follows, but here's the main point. As Gomulkiewicz himself observes, the open-source initiative finds it expedient to downplay the "anti-commercial baggage" and "confrontational attitude" of the Free Software Foundation in general (and Richard Stallman in particular). But there's a risk. As Gomulkiewicz's work shows, this strategy can backfire by playing right into the hands of people and corporations who oppose everything our community stands for. In the end, open-source software isn't going to make sense to outsiders unless our principles are made clear from the get-go. If you're skeptical, read on; I hope you'll see why.

... ... ...

Reference

Gomulkiewicz, Robert W. "How Copyleft Uses License Rights to Succeed in the Open Source Software Revolution and the Implications for Article 2B", Houston Law Review, 1999, 36 (Spring 1999). Note that Gomulkiewicz expressly states that the views expressed in his article are his own, and not those of Microsoft Corporation or the Business Software Alliance.

Public Software Licenses Evaluated ... The Open Source Software Licensing Page Evaluation of Public Software Licenses Donald K. Rosenberg, Stromian Technologies [Atlanta Linux Showcase, October 1998 ...
http://www.stromian.com/Public_Licenses.html

AN OVERVIEW OF “OPEN SOURCEВ” SOFTWARE LICENSES  A REPORT OF THE SOFTWARE LICENSING
COMMITTEE OF THE AMERICAN BAR ASSOCIATIONВ’S INTELLECTUAL PROPERTY SECTION. ...

http://www.abanet.org/intelprop/opensource.html

Enforceability of software licenses
Enforceability of software licenses. The issue of enforceability can be approached
on two alternative footings: by application of contract law alone and by ...
jurfak.spb.ru/document/diplom/2000/1/ip-2.htm - 4k - Cached

Stanford University: Software Licensing - Software Licenses ...

IEEE Software Software Engineering and the Law By John Cosgrove, P.E.

Most engineered systems start with comprehensive plans and specifications. Few software-intensive systems do!

This simple fact sets the stage for most of the issues leading to litigation. In fact, it is usually impossible to completely define most practical software systems. Watts Humphrey stated the dilemma: "With software the challenge is to balance the unknowable nature of the requirements with the business need for a firm contractual relationship."2 Thus, there is no clear answer to the inevitable legal ambiguities. Both parties must learn to live with these ambiguities and cooperatively resolve each issue in a timely manner. When this understanding breaks down, litigation results, and the ultimate resolution is costly for both parties. DeMarco and Lister titled their article "Both Sides Always Lose: Litigation of Software-Intensive Contracts." The challenge as a software professional is to steer the parties away from this disastrous state.

As the wit said of computer-intensive technical claims: "All the parties are lying, but none of them knows it." That's doubly true of legal discourse involving computers. People have become so accustomed to asserting the most unsupportable conclusions from computer "facts" that they come to believe that almost anything can be true sometimes, so they might as well claim it. Because the complexity is usually very high, it is exceedingly difficult to "prove" any assertion false in a typical legal proceeding.

[Jun 17, 2001] Version 0.72 of the draft of my "Dynamic licensing and BSD vs. GPL debate"  paper was released

Linux Today - A Few of Microsoft's Questions at RMS' NYU Speech & A New GPL FAQ on the Shared Source Page  -- RMS (extremely weak) reply to Microsoft questions...

The best way to see through the trickery of the questions is to turn each one around and ask the same question about a Microsoft proprietary package. You will find either that the same "problem" exists, or that some other problem would have blocked you before you could even reach the situation.

For instance, one question complains that they can't copy 1000 lines of GPL-covered source code into a million-line proprietary program. Could you copy 1000 lines of Windows or Word source code into your million-line program? The usual license for Windows or Word won't let you do this; in fact, it won't let you see the source code at all. Their "shared source" NDA license won't let you do it either.

Another question complains that if a free software package has many contributors, it is unclear who to approach to clarify the license or ask for an exception. At least free software licenses permit many people to contribute and produce such a combination. Starting from a proprietary Microsoft program, the combination could not have been made in the first place. Meanwhile, if you follow the FSF's practice and ask for copyright assignments for changes you install, then it is entirely clear who people should ask about the license--they ask you.

The uncertainty referred to by question 2 actually comes from copyright law, not from the GPL. As judge Learned Hand put it, decisions about the scope of copyright are inevitably ad-hoc. (That is close to an exact quote, but I have no way to look it up.) The question doesn't arise for Microsoft programs, because their restrictive licenses don't let you come anywhere near these borderline cases. They stop you miles away.

Linux Today - A Few of Microsoft's Questions at RMS' NYU Speech & A New GPL FAQ on the Shared Source Page --  a question sheet Microsoft had prepared  for reporters attending Richard Stallman's speech at New York University on May 29, 2001, to counterbalance the speech made on May 3, 2001 at NYU by Craig Mundie of Microsoft.(Transcript of RMS at NYU, Free Software Freedom and Cooperation). Original is in MS Word DOC format. See also local copy in HTML...

From Microsoft's press sheet, handed out before the speech:

As you are probably aware, on Tuesday May 29, Richard Stallman of the Free Software Foundation is going to speak at New York University on how the General Public License facilitates sharing, cooperation and freedom. Microsoft is pleased to see NYU continue to examine the source licensing issue. We encourage you as journalists to take a moment prior to the speech to read through these questions and to look at the GNU GPL FAQ located at <<http://www.gnu.org/copyleft/gpl-faq.html>>

The Free Software Foundation's General Public License is the license that covers the Linux operating system. Microsoft has publicly stated concerns with the license and its implications at <<http://www.microsoft.com/sharedsource>>

Having reviewed the new GNU GPL FAQ, and in anticipation of Mr. Stallman's speech, we wish to raise several additional questions: 1. Lack of proportionality and profit-making business models. Does the all-or-nothing viral approach of the GPL severely limit business flexibility?

Proportionality: If a proprietary program uses a GPL library (as described in the GNU FAQ #29) or combines with a GPL plug-in or module (as described in the GNU FAQ #31 and #37), the combined program is subject to the GPL. In this case, a proprietary program of 1,000,000 lines of code that uses a small GPL library or links to a GPL plug-in as described above, will then be subject to the GPL and its terms. This is not a proportional relationship.

Conflict with profit-making business models: Companies that have made significant investments in building proprietary value in their code are in an untenable competitive position if they include GPL technology in their solution. The situation can be made significantly worse if the principals of a company are unaware of the inclusion of GPL code in their product due to the actions of their developers or of individuals who have licensed the source code of their technology.

2. Uncertainty about interacting with GPL code. How does a firm know with certainty whether its developers' interaction with GPL code subjects the firm's proprietary code to the GPL?

The new "GNU General Public License FAQ" addresses a number of complex scenarios involving the combination of proprietary software with programs, modules, or libraries covered by the GPL or the LGPL. Not only is the license itself vague about these complex scenarios, but the FAQ uses ambiguous language in describing them--for example:

#33: "If the program dynamically links plug-ins, but the communication between them is limited to invoking the `main' function of the plug-in with some options and waiting for it to return, that is a borderline case."

#37: "If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.

By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs. But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program."

#47: "However, in many cases you can distribute the GPL-covered software alongside your proprietary system. To do this validly, you must make sure that the free and non-free programs communicate at arms length, that that they are not combined in a way that would make them effectively a single program."

3. Lack of any definitive method for resolving questions about GPL coverage. If a firm has a question about whether the use of a GPL program in a proprietary software project, or the interaction between a proprietary program and a GPL program, module or library, subjects the proprietary software to the GPL, how does it resolve this question? Does it contact FSF? What if the GPL program is not copyrighted by FSF? Does the firm contact all of the individuals who contributed to the GPL program? How does it know if it has identified all of them or whether each contributor holds a copyright to the portion of the program to which he or she contributed? What if there is conflict among the contributors or between the contributors and FSF? Who resolves such conflicts?

Gpl_analisys_faq (Some Questions Every Business Should Ask About the GNU General Public License (GPL) Original is in MS Word DOC format. See also local copy in HTML...

ZDNet Enterprise Is BSD getting lost amid the open source salvos A weak paper by By Evan Leibovitch . At the same time opinions letters contain a very nice sample of naive pro-GPL arguments.

FreeBSD Mail Archives Interesting pro-BSD argumentation

Date:      Thu, 17 May 2001 21:56:29 -0700
From:      "Ted Mittelstaedt" <tedm@toybox.placo.com>
To:        "Greg Lehey" <grog@lemis.com>, "Don Wilde" <Don@Silver-Lynx.com>
Cc:        "Anders Nordby" <anders@fix.no>, <freebsd-advocacy@FreeBSD.ORG>, <core@daemonnews.org>
Subject:   RE: [dn-core] Re: Perens' "Free Software Leaders Stand Together"
Message-ID:  <002101c0df56$e6c62260$1401a8c0@tedm.placo.com>
In-Reply-To: <20010518112834.I55915@wantadilla.lemis.com>
>-----Original Message-----
>From: owner-freebsd-advocacy@FreeBSD.ORG
>[mailto:owner-freebsd-advocacy@FreeBSD.ORG]On Behalf Of Greg Lehey
>Sent: Thursday, May 17, 2001 6:59 PM
>To: Don Wilde
>Cc: Anders Nordby; freebsd-advocacy@FreeBSD.ORG; core@daemonnews.org
>Subject: Re: [dn-core] Re: Perens' "Free Software Leaders Stand
>Together"
>
>
>On Thursday, 17 May 2001 at  8:29:51 -0600, Don Wilde wrote:
>>
>>
>> Anders Nordby wrote:
>>>
>>> Hi,
>>>
>>> I'm a little dissatisfied with the fact that it seems Bruce Perens
>>> doesn't seem to want to include any BSD persons on a list of "free
>>> software leaders". Is he really that much of a zealot, and does he lack
>>> history knowledge? Or is it just me that got this all wrong? Did he
>>> actually ask any BSD persons?
>>>
>> He says quite clearly that he is focusing on GPL. That's his right.
>> There's nothing stopping us from doing likewise. He obviously believes
>> the GPL is a "better" license. Perhaps we can ask Chris Coleman to add a
>> page to DaemonNews.org with a simple PHP/MySQL sign-up so that we can
>> _all_ add our signatures and e-mails to such a letter. Come to think of
>> it, this would probably be a great way to tell how many users *BSD
>> actually has...
>
>*sigh* Bruce seems to be apprehensive about our reaction.  In his
>words, we should "stand together", not set up our own reaction.  I've
>replied to the thread in this vein.
>

As well he should be. Remember, Bruce is the person who explicitly recommended _against_ developers using the BSD license, when he originally copyrighted the term "Open Source". It wasn't until the Regents of the University of California explictly stated that the UCB copyright didn't need to be displayed that Bruce couldn't find any more excuses to recommend against the BSD license, and changed the recommendations to be more neutral.

The real issues go a lot deeper and if you go back several years in history you can see what is going on. Simply put, the so-called "leaders of the GPL" movement are engaged in a war of words and in media manipulation in an attempt to equate "Free Software" and "Open Source" directly with the GPL.

They do NOT like the BSD license, and particularly don't like FreeBSD, (both because FreeBSD is the flagship of the BSD license, and because FreeBSD uses the term "Free" in it's name thus causing problems for their little doublespeak game of attempting to equate GPL and Open Source)

Basically, what has happened is that Bruce and his friends (the signatories on the list of that article are a who's who of them) have literally made millions of dollars out of in effect convincing a bunch of developers to GPL their code, then those Open Source people have set themselves up in the only point in the GPL code distributon scheme (the nexus points) where it's possible to make a lot of money.

VA Linux, Red Hat, and all of those distributors, all of their business models are the same - at one end they suck in GPL code and at the other end spit out finished UNIX-like distributions, and make money doing it. Notice that I said they suck in GPL code - they don't really have interest in pointing their suckers at BSD code.

For their business models to continue to work, they must continue to convince an ever-larger number of Open Source developers to write GPL code.

In the BSD arena, the money-making is a lot different. The people in BSD making millions are doing it by including BSD code in finished products. In our world, the things that matter are finished products like Whistler Interjet, and the embedded stuff that Wind River is doing, because those projects untimately spew code back into the BSD distribution. In BSD-land, you don't have people making millions of dollars primariarly off of repackaging the BSD distribution.

The GPL people see folks like Microsoft rightly as their antithesis - but the fact that Microsoft themselves uses a fair bit of BSD code _themselves_ in their own products isn't lost on the Linux people. Now, the GPL camp sees Apple using BSD code as a base, and they have forseen the future and are scared of what is coming.

What _is_ coming is eventually things will reach a head where most of the commercial software developers will realize that to continue to be successful, that they MUST make allowance for Open Source. Either by interfacing with it, or using parts of it, or producing modules that enhance it. Simply put the body of good Open Source is getting so large and representing such a major human knowledge database in software, that if you as a commercial software developer set yourself out to compete directly with Open Source, your competition will be so far ahead that you will never catch up.

So, if your a commercial software house in this situation, you end up with a choice: either you can choose to go the GPL route, or you can choose to go the BSD route.

If you go the BSD route then your on your own. The great thing about this is that nobody will tell you what to do, so you really do have complete freedom to do what you want. Of course the downside is that the BSD community isn't going to patiently hold your hand while you negotiate the rocks in the stream.

If, however, you go the GPL route, then there will be a crew of people, like Bruce, Raymond, and Tim O'Reilly and Linus and all the rest of them that are going to be guiding you down the path that they want you to go, and of course making money off of doing this. The "great" thing about this, I suppose, is that they will always be there to hold you hand while you negotiate the rocks in the stream. Of course the downside is that you really have no control once you start mixing GPL into your stuff, then the GPL community ends up dictating to you what your going to be doing. But, the GPL people all figure that commercial software houses that go the Microsoft route give up the same control and don't seem to have a problem doing it, so why shouldn't they give up the same control to GPL that they are giving up to Microsoft?

So, you can see why GPL is very uneasy with BSD. They see the GPL as in direct opposition to commercial software license. They see the BSD license as not being in direct opposition to commercial software, and in fact they see that there is a symbiosis between BSD and commercial software, even between BSD and Microsoft, if you can believe it. Take the Hotmail situation for example - where do you think that Microsoft got all THE IDEAS to stuff into Windows 2K to enable it to REPLACE FreeBSD? Certainly NOT by studying Linux, I can tell you that. Instead, Microsoft spent years studying the BSD way of doing things, looked at the new web technologies like PHP and so on that were coming down the pike, and emulated those in Win2K.

So, it's kind of a "friend of my enemy is my enemy" What I see in the future, is I see Microsoft porting MS Office to MacOS X - which is a hell of a lot closer to BSD then it is to Linux. I also see that as Microsoft continues to build the case against GPL and propgandize against it, that they are increasingly going to be holding up BSD as the "right" way to do Open Source. No wonder that the Linux GPL people are drawing the line in the sand now between BSD and GPL. They see the future and they know that ultimately, the GPL is just as "un-free" as a closed source license like Microsoft's. Increasingly, their aims and goals are going to be different than ours.

Ted Mittelstaedt                      tedm@toybox.placo.com
Author of:          The FreeBSD Corporate Networker's Guide
Book website:         http://www.freebsd-corp-net-guide.com

CNET.com - News - Investor - News - Story -- Allchin's controversy. Jim Allchin was probably the first influential software company official that openly linked GPL license with Anarchism and pointed out that like some other equality-based social schemes GPL might negatively influence innovation:

 Jim Allchin, says that freely distributed software code such as rival Linux could stifle innovation and that legislators need to understand the threat.

The result will be the demise of both intellectual property rights and the incentive to spend on research and development, he said yesterday, after the company previewed its latest version of Windows. Microsoft has told U.S. lawmakers of its concern while discussing protection of intellectual property rights.

...''Open source is an intellectual-property destroyer,'' Allchin said. ''I can't imagine something that could be worse than this for the software business and the intellectual-property business.''

Microsoft clarifies exec's open-source concerns

Allchin's concerns, eWEEK was told, stem from GPL paragraph (2B), which states, "You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

In other words, Microsoft representatives warned, "anyone who adds or innovates under the GPL agrees to make the resulting code, in its entirety, available for all to use ... [which] might constrain innovating stemming from taxpayer-funded software development."

Allchin, according to the company, does not have the same concerns about all open-source approaches in general. "There are other kinds of open-source licenses that encourage third-party development but without the same constraints, including the BSD license," Microsoft representatives said.

See also:

A Response to Jim Allchin's Comments by Tim O'Reilly. Although pretty weak (he essentially avoided the key question "Is Anarchism un-American ?"; also he failed to distinguish between BSD License and GPL where BSD license IMHO more represents an academic part of the movement and GPL -- it's anarchist part) and apologetic (O'Reilly is the major beneficially of the open source movement -- the quality of O'Reilly book about important open source products are vastly superior to the quality of the documentation written by volunteers but he ignored this fact and praise CatB that claims quite an opposite ;-) it contains a couple important observations (in one linking FSF to a cult :-) :

To be sure, Richard Stallman is evangelical in attempting to convince others that free software is a moral issue, and not just a pragmatic choice, but he is hardly alone in asserting a forceful moral position about issues for which there is no wide cultural consensus.

...The greater part of Microsoft's revenue in the late 90's came from the incorporation of internet functionality (mostly developed on an open source model) into its products. The upgrade stream came not just from innovation inside Microsoft, but in large part from innovation by the very community Allchin now seems to portray as the "worst thing that could happen to the software business."

Some Slashdot comments:

Re:GPL is not the problem... (Score:5, Insightful)
by TheCarp (sjc-slashdot@carpanet.net) on Wednesday February 21, @12:53AM EST (#83)
(User #96830 Info) https://www.carpanet.net/
Read some FSF philosophy ;)

The entire point of the GPL is to make the concept of "IP" obsolete. To, literally, squash the idea from the public mind.

The GPL depends on copyright, its is, at its very heart, an attempt to hack the copyright system to serve the ends of those who wish to eliminate "IP".

Don't take my word for it! Get it right from the fsf website. http://www.fsf.org/philosophy

For once, Microsoft was right. The GPL *IS* indeed designed to eliminate IP. That is its stated goal. I, for one, certainly am hopeful that it will be achieved.

-Steve
-- "I opened my eyes, and everything went dark again"
Makes sense to me (Score:5, Insightful)
by cperciva (cperciva@sfu.ca) on Wednesday February 21, @12:30AM EST (#25)
(User #102828 Info)
If the government is going to be paying people to produce software, the software should be open for all taxpayers to use. Including closed-source software companies.

Remember how anyone who did government-funded research in the US had to put in place provisions allowing the US government to use their research for free? The same should apply, only more broadly, for government-funded software projects: Anyone who is paid by the government to produce software, should be obliged to make the software available, for free, to everyone, with no strings attached.

Oh, and WTF is a retroactive clarification? Is it supposed to be in contrast to a proactive clarification of the form "I am about to say something confusing, but what I will really mean is..."?
This is a no brainer. (Score:2)
by Rahga (richardh@rahga.com) on Wednesday February 21, @12:38AM EST (#47)
(User #13479 Info) http://www.rahga.com
First point, sure the GPL forces derivatives and modifications to be released also under GPL and this IS more restrictive than the BSD and other licenses. I'm not that fond of it all the time either..... But Microsoft? Isn't that like the wolf calling the greyhound a threat to the lives of sheep everywhere? How open source software of any breed can possibly be seen a threat to innovation by Microsoft, land of NDAs and open-source rip-offs, is beyond me.

Secondly, the "intellectual property" that the GPL restricts ripping off of is NOT the same as restricted innovation. Do you see a cool and innovative idea that you want to use in your product? THEN WRITE THE SOURCE FOR IT FROM SCRATCH! Original works that are based on a premise or idea that isn't patented was fair game under US Code last I checked.

How GPL software can ever be more of a threat than closed source software in government work, software that always come with plenty of potential for sabotage and bugs and little peer review.... I'll never understand that argument.

Bill, fire this idiot.
You know, it's entirely possible... (Score:3, Interesting)
by TheDullBlade on Wednesday February 21, @12:42AM EST (#60)
(User #28998 Info)
...that courts will rule that GPL'd software is in the public domain, especially GPL'd software that doesn't properly specify contact information to negotiate other terms or even who actually owns the copyright.

I mean, shrink-wrap licenses are weak enough when they explicitly state who you're forming a contract with.

I think the viral licensing clause puts it on very shaky legal ground.

I also think that it could well be argued that the license is prejudicial against commercial software developers with malicious intent. The FSF propaganda supports this ("It's exhilarating standing up to an evil empire." anyone?). This might be enough to break the GPL legally.

I just don't think the GPL will stand up in court against a serious attack by a large commercial interest. It really stretches the bounds of contract law, and was, after all, designed to attack proprietary software developers.

Then there's the question of whether a lawsuit against a GPL violator could actually be awarded damages. The copyright holder is not using his copyright to secure a profit for himself, and it's damage to just such a profit that's supposed to be reimbursed in a copyright suit; you're not supposed to be awarded damages just because you don't like the way the violator makes his living. The courts might very well toss out all cases as frivolous.
---
IANAT
Re:they are giving something away... (Score:4, Interesting)
by anticypher (cypherpunks(at)anti(dot)co(dot)uk) on Wednesday February 21, @07:27AM EST (#370)
(User #48312 Info) http://127.195.154.0/index.html
Spot on. Moderators, up the parent of this thread!

Allchin is a thug. An intelligent thug, but a thug nonetheless. He plays the heavy in negotiations where M$ are trying to bully a smaller company into giving away their only asset for a pittance. Are there any /. readers with first hand experience with Allchin? (most people who survive a double-barreled "negotiation" with an experienced M$ hit-team tend to take the cash and move to a tropical beach or teach kindergarten and never touch a computer again).

Allchin is a top-level M$ exec, and as such he must sit in high-level strategy meetings. Certainly the topic of these meetings is how to ensure their glorious leader can sleep better at night. So when a strategy committee punted around ideas on what is causing the holy emporer to lose sleep, the GPL came out as a major cause. The solution, obviously, is to attack the GPL by changing the laws it is based upon. If Disney can change copyright laws through the Bono act, M$ can tweak laws to eliminate the viral effects of the GPL.

So there is quite clearly a cleverly hidden M$ agenda to influence lawmakers in the US, and probably in the EU as well. Allchin just shot his mouth off to make himself seem smarter to some reporter, and tipped M$'s hand. Now they are in spin control.

If M$ follows their usual course of manipulation, there is already a "Political Interest Campaign" underway in Washington DC to "educate" senators on the evils of free software to the american way of life. There is a group of M$ lawyers creating some new laws which can be given to a senator's aides, and subsequently passed off as an original work by the "All-American Hero" senator. Those laws will change copyright slightly so the GPL loses its protections, and will cause the whole body of work to become public domain, or the copyright will be handed over to a "controlling IP body" similar to the MPAA/RIAA.

Others (TheDullBlade) are touching on these ideas in various threads, but missing the point on how the courts will be given new laws in which to invalidate the GPL.

Expect this to be a long and drawn out fight. I'll be keeping an eye on DG-13 activities for signs of changes to copyright law in the EU. Whatever influence M$ attempts in the US, they also tend to attempt in the EU.

the AC

 


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