conducting a sane and efficient GPLv3, LGPLv3 Review

[Arnoud Engelfriet-2]

Matthew Flaschen wrote:
> Also, if it is a contract (at least under some legal system), which
> means Eben Moglen's interpretation that "Licenses are not contracts: the
> work's user is obliged to remain within the bounds of the license not
> because she voluntarily promised, but because she doesn't have any right
> to act at all except as the license permits."
> (http://emoglen.law.columbia.edu/publications/lu-12.html) is incorrect,
> wouldn't the contract be invalid if the the licensor wasn't getting
> "consideration"?  IANAL, but I think the consideration would probably
> have to be the copyleft provision.

Not all jurisdictions require consideration for the formation of
a valid contract. But yes, I agree the reciprocity can be seen
as consideration.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Matthew Flaschen]

Alexander Terekhov wrote:
> The copyleft provision purports to infect independent, separate works that are
> not derivative of the open source code, and requires
> that such independent works be licensed back to the
> licensor and the entire world under the GPL.

This doesn't seem correct to me.  Only works "that in whole or in part
contains or is derived from the Program or any part thereof" must be
licensed under the GPL.

> The Copyright Act does not give the copyright owner rights to such
> independent nonderivative works.

Entirely independent, non-derivative works can remain proprietary.

Matt Flaschen

[Matthew Flaschen]

Lawrence Rosen wrote:
 > If enforced as a bare license under copyright
> law, I don't believe specific performance is an allowed remedy.

However, there's still the option of a settlement in which they agree to
license the derivative work in exchange for you not forcing an
injunction and damages.

Matt Flaschen

[Alexander Terekhov-3]

On 8/3/07, Matthew Flaschen <matthew.flaschen@...> wrote:
> Alexander Terekhov wrote:
>
> > 3) Pigs will fly before the Free Software Foundation ever files to
> > enforce the mighty "pure" GPL in court.
>
> You are certainly right that the FSF is reluctant to enforce the GPL in
> court; that's because lawsuits are very costly for both parties.  But in
> using the Linux kernel as an example, you've made a big mistake.  The
> FSF is not a copyright holder for any part of the kernel; this means

Eh? Eben says

http://www.fsf.org/licensing/sco/sco-v-ibm.html

"whose copyright the Foundation holds-including all of IBM's
modifications to the kernel for use with IBM's S/390 mainframe
computers, assigned to the Foundation by IBM"

If that's not enough, just let Welte know about the problem - I
suspect he is already fed up with getting funny judgments out of
German district courts and will gladly assign his kernel stuff to the
FSF for U.S. enforcement. :-)

regards,
alexander.

[Alexander Terekhov-3]

On 8/3/07, Matthew Flaschen <matthew.flaschen@...> wrote:
> Alexander Terekhov wrote:
> > The term binding all third parties in future works (in particular GPL
> > "no charge" restriction) creates a "right against the world" which
> > subjects it to preemption. See ProCD Inc. v. Zeidenberg, 86 F.3d 1447,
> > 1454 (7th Cir. 1996).
>
> Are you trying to imply copyright holders don't have the full right to
> license at no charge?

I'm not trying to imply that.

> How does the GPL have anything to do with state law

In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th Cir. 2003)
 ("If a breach of contract (and a copyright license is just a type of
contract) . . . "); see also McCoy v. Mitsuboshi Cutlery, Inc., 67
F.3d 917, 920 (Fed. Cir. 1995) ("Whether express or implied, a license
is a  contract 'governed by ordinary principles of state contract law'
".)

IBM: "the Court need not reach the choice of law issue because Utah
law and New York law are in accord on the issues that must be reached
to address SCO's sole argument on this motion, namely, that SCO did
not breach the GPL. Throughout this brief, IBM cites to both Utah law
and New York law."

regards,
alexander.

[Matthew Flaschen]

Alexander Terekhov wrote:

 > neither the original author, nor any
> creator of a revised or improved version, may charge for the software
> or allow any successor to charge.

I can't see how the GPL could remotely be interpreted as prohibiting the
original author from charging for work they hold copyright on.

Matt Flaschen

[Matthew Flaschen]

Alexander Terekhov wrote:
> Eh? Eben says
>
> http://www.fsf.org/licensing/sco/sco-v-ibm.html
>
> "whose copyright the Foundation holds-including all of IBM's
> modifications to the kernel for use with IBM's S/390 mainframe
> computers, assigned to the Foundation by IBM"

My mistake.  However, it is unlikely that this code is linked to by e.g.
  proprietary Nvidia drivers for x86 machines.  It would be difficult
for the FSF to try to enforce the GPL against companies like nVidia
unless they had the support of most of the kernel developers, which they
don't.

> If that's not enough, just let Welte know about the problem - I
> suspect he is already fed up with getting funny judgments

Funnily enough, he got just the judgment he wanted and expected.

Matt Flaschen

[Alexander Terekhov-3]

On 8/3/07, Matthew Flaschen <matthew.flaschen@...> wrote:
> Alexander Terekhov wrote:
>
>  > neither the original author, nor any
> > creator of a revised or improved version, may charge for the software
> > or allow any successor to charge.
>
> I can't see how the GPL could remotely be interpreted as prohibiting the
> original author from charging for work they hold copyright on.

Visit

http://www.law.uchicago.edu/faculty/easterbrook/

and drop him an email.

BTW, ask also who is Williams and what is his (Williams) legal theory.

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=06-2454_008.pdf

"This does not assist Williams, however, because his legal theory is
faulty substantively."

regards,
alexander.

[Matthew Flaschen]

Alexander Terekhov wrote:

> BTW, ask also who is Williams and what is his (Williams) legal theory.
>
> http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=06-2454_008.pdf
>
> "This does not assist Williams, however, because his legal theory is
> faulty substantively."

Unfortunately for you and Williams/Wallace, neither of these errors are
relevant to the core holding, which is that Wallace (repeatedly) failed
to show an antitrust violation.

Matt Flaschen

[Matthew Flaschen]

Alexander Terekhov wrote:
> IBM: "the Court need not reach the choice of law issue because Utah
> law and New York law are in accord on the issues that must be reached
> to address SCO's sole argument on this motion, namely, that SCO did
> not breach the GPL. Throughout this brief, IBM cites to both Utah law
> and New York law."

But even if the FSF is relying on state contract law, I don't see how
they're using it to preempt federal copyright law.  They're simply
forming contracts that take advantage of their existing rights under
copyright law, not giving themselves new rights.

Matt Flaschen

[John Cowan]

Matthew Flaschen scripsit:

> wouldn't the contract be invalid if the the licensor wasn't getting
> "consideration"?  

Consideration is a common-law feature, and is nowadays almost completely
a matter of form.

/me ducks and runs while the lawyers form a howling mob.

--
Eric Raymond is the Margaret Mead               John Cowan
of the Open Source movement.                    cowan@...
        --Bruce Perens,                         http://www.ccil.org/~cowan
          some years ago

[Alexander Terekhov-3]

On 8/3/07, Matthew Flaschen <matthew.flaschen@...> wrote:
> Alexander Terekhov wrote:
> > The copyleft provision purports to infect independent, separate works that are
> > not derivative of the open source code, and requires
> > that such independent works be licensed back to the
> > licensor and the entire world under the GPL.
>
> This doesn't seem correct to me.  Only works "that in whole or in part
> contains or is derived from the Program or any part thereof" must be
> licensed under the GPL.

http://www.linuxrising.org/files/licensingfaq.html

------
Some common questions and answers in regards to licensing and patents

This FAQ is based on a a series of questions we asked the FSF in
regards to understanding how the GPL works and how patents affects the
GPL. These questions and answers are verified by the FSF lawyers,
which makes them the final interpretation on how the GPL and LGPL
interact with patents in our opinion. We paid the FSF to have them
provide us these answers. So these answers are verified correct by
people like FSF lawyer and law professor Eben Moglen.

Question: Can someone for example distribute

1. GStreamer, the LGPL library
2. Totem, a GPL playback application
3. The binary-only Sorenson decoder

together in one distribution/operating system ? If not, what needs to
be changed to make this possible ?

Answer: This would be a problem, because the GStreamer and Totem
licenses would forbid it. In order to link GStreamer to Totem, you
need to use section 3 of the LGPL to convert GStreamer to GPL. ...
------

>
> > The Copyright Act does not give the copyright owner rights to such
> > independent nonderivative works.
>
> Entirely independent, non-derivative works can remain

Since GStreamer apparently can't remain (under LGPL) it must be a
derivative of Totem, right?

regards,
alexander.

[Matthew Garrett]

On Fri, Aug 03, 2007 at 08:20:47PM +0200, Alexander Terekhov wrote:

> Since GStreamer apparently can't remain (under LGPL) it must be a
> derivative of Totem, right?

The FSF argument is that Totem is a derivative of gstreamer. The LGPL
would then require Totem to be under restrictions that are not present
in the GPL. This presents a conflict, so instead gstreamer is treated as
if it's GPLed. I don't think anyone would claim that the library is a
derivative work of the application that uses it.

--
Matthew Garrett | mjg59@...

[Ben Tilly]

On 8/3/07, Alexander Terekhov <alexander.terekhov@...> wrote:

> On 8/2/07, Ben Tilly <btilly@...> wrote:
> > On 8/2/07, Alexander Terekhov <alexander.terekhov@...> wrote:
> > > On 8/2/07, Zak Greant <zak@...> wrote:
> > [...]
> > > Hey Zak, are you still at MySQL?
> > >
> > > I'm asking because MySQL must be truly excited regarding Seventh
> > > Circuit's interpretation of the GPL...
> > >
> > > ------
> > > Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
> > >
> > > EASTERBROOK, Circuit Judge. Does the provision of copyrighted software
> > > under the GNU General Public License ("GPL") violate the federal
> > > antitrust laws? Authors who distribute their works under this license,
> > > devised by the Free Software Foundation, Inc., authorize not only
> > > copying but also the creation of derivative works—and the license
> > > prohibits charging for the derivative work. People may make and
> >
> > Easterbrook is wrong on a basic point of fact.  The license does not
> > prohibit charging for the derivative work, and many people have
> > charged for such derivative works.  Not the least of these being the
> > Free Software Foundation itself.
>
> You misunderstand.

Really?

> "The GPL covers only the software; people are free to charge for the
> physical media on
> which it comes and for assistance in making it work. Paper manuals,
> and the time of knowledgeable people who service and support an
> installation, thus are the most expensive part of using Linux."
>
> Got it now?

Yes.  I got it.  You're confusing common practice with legal requirements.

I am allowed to charge as much as I like for GPLed software.  Nowhere
does it say that I can't charge.  It does say that if I've distributed
a copy to you, then I have to give you a written offer, valid for
anyone, to deliver source at no more than my physical cost of doing
so.  But nobody says that I have to distribute that initial copy to
you, and I'm allowed to charge anything I want for that.

See http://www.gnu.org/licenses/gpl-faq.html#DoesTheGPLAllowMoney for
verification of this.

With consumer products this tends to limit retail prices because there
are no barriers to entry for competitors.  (Red Hat tried to create
one with trademarks, however that didn't work out too well for them.)
However that does not hold true in many business markets where you can
expect custom development to be needed for every sale.  There people
can, and do, charge up front for the effort it takes to develop
software.  Until they were purchased by Red Hat, the best-known
example was probably Cygnus.

> But this part
>
> "Thus the GPL propagates from user to user and revision to revision:
> neither the original author, nor any creator of a revised or improved
> version, may charge for the software or allow any successor to
> charge."
>
> is not quite correct. Just ask MySQL or SUN. :-)

Yup, dual-licensing changes the rules.

Cheers,
Ben

[Matthew Flaschen]

Alexander Terekhov wrote:

>>> The Copyright Act does not give the copyright owner rights to such
>>> independent nonderivative works.
>> Entirely independent, non-derivative works can remain
>
> Since GStreamer apparently can't remain (under LGPL) it must be a
> derivative of Totem, right?

The combination of Totem and GStreamer as a whole is derivative of
Totem, in the opinion of the FSF.

Matt Flaschen

[Alexander Terekhov-3]

On 8/3/07, Matthew Flaschen <matthew.flaschen@...> wrote:
[...]
> > If that's not enough, just let Welte know about the problem - I
> > suspect he is already fed up with getting funny judgments
>
> Funnily enough, he got just the judgment he wanted and expected.

Really? <Googling...> Ha! Can't wait to enjoy reading the judgment.

"Skype is surprised by the recent decision and believes that it has
not acted improperly. At this time, we cannot comment further because
Skype is considering its options in relation to appealing this
regional judgment."

(Oddly, http://www.gpl-violations.org/ says nothing about event, nor
does http://gnumonks.org/~laforge/weblog/).

regards,
alexander.

[Lawrence Rosen]

> The FSF argument is that Totem is a derivative of gstreamer. The LGPL
> would then require Totem to be under restrictions that are not present
> in the GPL. This presents a conflict, so instead gstreamer is treated as
> if it's GPLed. I don't think anyone would claim that the library is a
> derivative work of the application that uses it.

Isn't this allowed because the LGPL expressly permits recipients to
distribute the library under the GPL? See LGPL § 4. It has nothing to do
with any derivative work argument.

/Larry

> -----Original Message-----
> From: Matthew Garrett [mailto:mjg59@...]
> Sent: Friday, August 03, 2007 11:27 AM
> To: license-discuss@...
> Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> On Fri, Aug 03, 2007 at 08:20:47PM +0200, Alexander Terekhov wrote:
>
> > Since GStreamer apparently can't remain (under LGPL) it must be a
> > derivative of Totem, right?
>
> The FSF argument is that Totem is a derivative of gstreamer. The LGPL
> would then require Totem to be under restrictions that are not present
> in the GPL. This presents a conflict, so instead gstreamer is treated as
> if it's GPLed. I don't think anyone would claim that the library is a
> derivative work of the application that uses it.
>
> --
> Matthew Garrett | mjg59@...

[Alexander Terekhov-3]

On 8/3/07, Matthew Garrett <mjg59@...> wrote:
> On Fri, Aug 03, 2007 at 08:20:47PM +0200, Alexander Terekhov wrote:
>
> > Since GStreamer apparently can't remain (under LGPL) it must be a
> > derivative of Totem, right?
>
> The FSF argument is that Totem is a derivative of gstreamer. The LGPL
> would then require Totem to be under restrictions that are not present
> in the GPL.

Eh? I thought that *Lesser* GPL is about "additional permissions"
(needed in the GNU Republic for linking) not restrictions...

regards,
alexander.

[Matthew Garrett]

On Fri, Aug 03, 2007 at 11:54:39AM -0700, Lawrence Rosen wrote:
> > The FSF argument is that Totem is a derivative of gstreamer. The LGPL
> > would then require Totem to be under restrictions that are not present
> > in the GPL. This presents a conflict, so instead gstreamer is treated as
> > if it's GPLed. I don't think anyone would claim that the library is a
> > derivative work of the application that uses it.
>
> Isn't this allowed because the LGPL expressly permits recipients to
> distribute the library under the GPL? See LGPL § 4. It has nothing to do
> with any derivative work argument.

Yes, but if the work weren't a derivative of gstreamer there'd be no
need to invoke section 4 (since the LGPL wouldn't apply to the work)
--
Matthew Garrett | mjg59@...

[Lawrence Rosen]

> But even if the FSF is relying on state contract law, I don't see how
> they're using it to preempt federal copyright law.  They're simply
> forming contracts that take advantage of their existing rights under
> copyright law, not giving themselves new rights.

This is a side-show on this list. I agree with those who are trying to stop
it.

The issue of federal preemption under U.S. copyright law is far too complex
to be discussed with any understanding in this forum. I suggest you leave it
and similar topics to other lists.

At the very least, if you're seriously interested in such topics, please do
a thorough Google or Yahoo! search first to find out what the law really
says before you make statements like that.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: [phone]
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: Matthew Flaschen [mailto:matthew.flaschen@...]
> Sent: Friday, August 03, 2007 10:59 AM
> To: License Discuss
> Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> Alexander Terekhov wrote:
> > IBM: "the Court need not reach the choice of law issue because Utah
> > law and New York law are in accord on the issues that must be reached
> > to address SCO's sole argument on this motion, namely, that SCO did
> > not breach the GPL. Throughout this brief, IBM cites to both Utah law
> > and New York law."
>
> But even if the FSF is relying on state contract law, I don't see how
> they're using it to preempt federal copyright law.  They're simply
> forming contracts that take advantage of their existing rights under
> copyright law, not giving themselves new rights.
>
> Matt Flaschen