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GPL survives antitrust challenge - againGPL survives antitrust challenge - againPosted Nov 10, 2006 1:48 UTC (Fri) by bojan (subscriber, #14302)In reply to: GPL survives antitrust challenge - again by louie Parent article: GPL survives antitrust challenge - again
> If it was written by FSF, it wouldn't say in the first (second? I don't recall) paragraph that the GPL prevents selling the software for money ;)
Here is that paragraph:
> 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.
The judge is clearly referring to copyright issues here ("license prohibits charging for the derivative work" - see section 2b of the GPL - royalty-free distribution), not charging for for the physical copy of the software.
Further clarification is the text of the ruling right below:
> Copyright law, usually the basis of limiting reproduction in order to collect a fee, ensures that open-source software remains free: any attempt to sell a derivative work will violate the copyright laws, even if the improver has not accepted the GPL.
Clearly, he means "sale of licence for the derivative work", as it is mentioned in the context of copyright law. Not a physical copy of the software. The "limiting reproduction in order to collect a fee" is copyright royalty here, which GPL doesn't allow.
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GPL survives antitrust challenge - again Posted Nov 10, 2006 2:41 UTC (Fri) by louie (subscriber, #3285) [Link] No, what I was referring to was this, in the first paragraph: "Authors who distribute their works under this license... authorize not only copying but also the creation of derivative works—and the license prohibits charging for the derivative work." Emphasis mine; GPL analysis Easterbrook's and clearly not FSF's :)
GPL survives antitrust challenge - again Posted Nov 10, 2006 2:59 UTC (Fri) by bojan (subscriber, #14302) [Link] Yeah, that's what I quoted as well.
When the judge says "the license prohibits charging for the derivative work", he isn't referring to charging for a physical copy of the work - he's referring to charging for royalties. The whole section is in the context of copyright, where physical objects have almost no meaning. That's why I quoted that additional paragraph, which further clarifies that the meaning of "collect[ing] a fee" is in the context of "limiting reproduction", which is a matter of copyright.
So, he's right on the money (excuse the pun :-), as GPL requires distribution of software on royalty-free basis. That's exactly the FSF interpretation as well. You can charge for physical copies of the work, but you cannot collect royalties for the copyright licence you're giving with the work.
GPL survives antitrust challenge - again Posted Nov 10, 2006 3:01 UTC (Fri) by louie (subscriber, #3285) [Link] Ah, you're right; my fault for not reading your post more carefully. Long day today.
GPL survives antitrust challenge - again Posted Nov 10, 2006 12:36 UTC (Fri) by zotz (guest, #26117) [Link] I see this discussion goes back and forth for a while... Let me see if I can words things in a different way that, if correct, might clear up things for people. (If they are unclear in the first place.)
I am not commenting on the ruling itself by the way.
"The judge is clearly referring to copyright issues here ("license prohibits charging for the derivative work" - see section 2b of the GPL - royalty-free distribution), not charging for for the physical copy of the software."
So, under the gpl you can charge someone whatever you want, everytime they want you to pass a copy of the program from you to them.
"You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee."
Note that this not for the physical copy, but for the physical act of transferring a copy. This could be over the net from your computer to theirs.
BUT, you can't sell them a license which kicks in on all copies they make from the one they get from you.
Once they pay you to transfer them one copy, they can make as many copies for themselves, or others, as they wish without owing you anything further. There are no terms you can add to your deal with them to get around this. (At least in spirit, some, I am sure, are looking to get around it.)
Now, if they come back to you once a day for a single copy for a hundred days, you can charge them one hundred times. If they come one day and want you to transfer the same program to them one hundred seperate times, you can charge them one hundred times again.
The only gotcha is if you originall supply a binary only and no source with your original transfer.
(I thought I might be able to word things differently and simply. I think I got the differently at least.)
all the best,
drew
GPL survives antitrust challenge - again Posted Nov 11, 2006 2:51 UTC (Sat) by bojan (subscriber, #14302) [Link] > BUT, you can't sell them a license which kicks in on all copies they make from the one they get from you.
> Once they pay you to transfer them one copy, they can make as many copies for themselves, or others, as they wish without owing you anything further.
Exactly! Thanks for this clear wording. I think you captured exactly what I was trying to say, but much better.
And this is what the judge said:
> Copyright law, usually the basis of limiting reproduction in order to collect a fee, ensures that open-source software remains free: any attempt to sell a derivative work will violate the copyright laws, even if the improver has not accepted the GPL.
So, he's saying that usually copyright holders do exactly the opposite of the GPL - they "collect a fee" every time you reproduce the work ("limited reproduction"). They do this by licensing their work like this: "If you make a copy, I get $5. If you create a derivative and publish it, I get $5 for every copy."
So, when he says next that "any attempt to sell a derivative work will violate the copyright laws", I'm pretty sure he means sell a licence (permission, authorisation) for it. How could he not mean that, when GPL itself explicitly says exactly that:
> 2. b) 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.
I'm reasonably sure he didn't miss "licensed as a whole at no charge".
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