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GPL survives antitrust challenge - againGPL survives antitrust challenge - againPosted Nov 10, 2006 20:17 UTC (Fri) by jstAusr (guest, #27224)In reply to: GPL survives antitrust challenge - again by bojan Parent article: GPL survives antitrust challenge - again
> > 1. The original author can do whatever they want including but not limited to; dual licensing the work or charging whatever they want or assigning their copyright to someone else.
>But the judge's statement refers to the work already licensed under the GPL. For that, original author cannot change the terms later. You can only lose the licence if you breach it.
And that is why the sentence you didn't quote is there:
Without trying to put the statements that you quoted back into the context that they were removed from, the real issue is really, does the court order intend "royalty" as the interpretation of "charge".
Royalty is one of those words that can have many meanings including "charge". So it is necessary to interpret the meaning. If we assume that the court order, which uses "royalty" or any derivative exactly zero times, intends "charge" to refer to "royalty" in the context of the GNU GPL, we should see what the GNU GPL has to say about royalty, which comes up exactly one time:
The software industry, in general, holds the incorrect assumption that the GNU GPL requires software to be distributed at no cost. The correct interpretation of that is something like; if the software can be obtained at no cost, then charging for it is not a viable business model. (I don't think that is true, witness products such as pet rocks.) So, it is entirely possible that the court order holds the incorrect interpretation of the GNU GPL. However the court order could be using the "not a viable business model" interpretation.
In terms of antitrust, the court order is very good for the GNU GPL because even if it required software to be distributed at no cost (which it doesn't) the GNU GPL wouldn't be violating antitrust laws. In a way the court order is saying; even if we take the most negative interpretation of the GNU GPL, in terms of antitrust law there is no problem.
So maybe the Judge and by extension the court order (which the Judge may not have written) is saying, even if the interpretation of the GNU GPL held by Wallace were true, the GNU GPL is still good to go. But, if that is the intention, that is what it should say. No one that has ever lived or ever will live is perfect, not even Judges. The conclusion of the court is right, but maybe not for all the right reasons.
And substituting "charge" with "royalty" doesn't get us very far.
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GPL survives antitrust challenge - again Posted Nov 10, 2006 21:15 UTC (Fri) by bojan (subscriber, #14302) [Link] > In terms of antitrust, the court order is very good for the GNU GPL because even if it required software to be distributed at no cost (which it doesn't) the GNU GPL wouldn't be violating antitrust laws.
Let me understand your position here. Are you saying that if I license a piece of software to you under the GPL, I can demand from you and anyone that recieves the software from you a cut, percentage, fixed amount or anything similar, for every copy that ends up in circulation? Because that is what copyright royalty is.
Are you claiming that charging copyright royalties is permitted per GPL?
GPL survives antitrust challenge - again Posted Nov 11, 2006 3:43 UTC (Sat) by jstAusr (guest, #27224) [Link] No (to both questions), that would be adding restrictions. The GNU GPL wouldn't like that.
GPL survives antitrust challenge - again Posted Nov 11, 2006 8:03 UTC (Sat) by bojan (subscriber, #14302) [Link] Thanks. You had me confused there for a while, so I had to ask :-)
I still think that the judge fully groks the GPL. For instance, he says:
> Red Hat, Inc., sells media (such as DVDs), manuals, and support for the installation and maintenance of Linux. 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.
Quite obviously, he understands that Red Hat is selling a derivative of Linux here on that media. Now, if literal meaning of charging would be taken from here:
> 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.
It would mean that Red Hat would be in trouble with the copyright law, as per the next sentence:
> 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.
Again, quite obviously, the judge is quite comfortable with what Red Hat are doing, WRT the GPL. So, he must understand the difference between selling the licence and collection of royalties for each subsequent copy and selling that particular copy.
I think the confusion comes from the everyday language where selling the software means selling the licence for it. For instance, Microsoft is selling the software to Dell, which then further sells it to customers. When each copy is sold by Dell, a copyright royalty is forwarded to Microsoft. This is what the judge is referring to here, IMHO - your usual, proprietary software sale, which is not something GPL permits.
GPL survives antitrust challenge - again Posted Nov 13, 2006 16:08 UTC (Mon) by jstAusr (guest, #27224) [Link] Your analysis as to the reason why the court order is worded the way it is may well be correct. However, the case is how the GNU GPL stands in relation to antitrust law, NOT about how GNU GPL stands in relation to proprietary software distribution and antitrust law. So, the court order should be addressing antitrust law and the GNU GPL. If the Judges want to include other analysis it should be clearly noted, otherwise it may be a cause for confusion in the future. If the case was: GNU GPL violates antitrust law because it doesn't require the payment of royalties as some software distribution models do, that case could be easily dismissed because antitrust law doesn't require the payment of royalties.
GNU GPL relies on copyright law as its backup, if someone distributing GNU GPL'd software doesn't accept the terms of GNU GPL then copyright law will prevent them from legally distributing the software at all. The third snippet that you quote in your comment, doesn't seem to recognize that relationship between copyright and GNU GPL. The insertion of the word "even" is probably the most troubling part of the order to me although, stating that GNU GPL requires "no charge" is also wrong, unless antitrust law were to define "no charge" as no royalties.
In my limited experience, courts are usually rather insistent about keeping their rulings on target regarding the law that is being addressed. If you want royalties to be relevant, please show the intersection between the GNU GPL, royalties and antitrust law, without relying on a rather unrelated (to the law being ruled on) software distribution model.
GPL survives antitrust challenge - again Posted Nov 14, 2006 1:04 UTC (Tue) by bojan (subscriber, #14302) [Link] > GNU GPL relies on copyright law as its backup, if someone distributing GNU GPL'd software doesn't accept the terms of GNU GPL then copyright law will prevent them from legally distributing the software at all. The third snippet that you quote in your comment, doesn't seem to recognize that relationship between copyright and GNU GPL. The insertion of the word "even" is probably the most troubling part of the order to me although, Even refers to an activity performed "without a licence". This is bare copyright. It doesn't get any clearer than that. > stating that GNU GPL requires "no charge" is also wrong, unless antitrust law were to define "no charge" as no royalties. See below what the judge has to say about that. He's not afraid to use copyright law to define what the charges may be. And why would he be? The copyright is the law that provides the power for price fixing here. GPL is a copyright licence. > In my limited experience, courts are usually rather insistent about keeping their rulings on target regarding the law that is being addressed. If you want royalties to be relevant, please show the intersection between the GNU GPL, royalties and antitrust law, without relying on a rather unrelated (to the law being ruled on) software distribution model. Well, this is from the ruling: 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. That's the judge talking, not me. He obviously has no qualms about mentioning copyright law in the ruling about antitrust law. And that's because copyright law is the lever that would be used for price fixing - which is the link between copyright law and antitrust law here. It is only through copyright law (because GPL is a copyright licence) that one can fix prices of "software" (i.e. the licence). The price you pay for the software (i.e. the licence) is called "copyright royalty". Without copyright power here, there is no possibility of Red Hat, IBM and others in conspiring to price fix, bar some kind of secret "contract" between them, which is never mentioned anywhere and certainly not in the ruling. And the court is saying that although that is the case with GPL licensed software (zero royalty charge), there is no antitrust problem, because this kind of behaviour does not lead to low prices, followed by the exit of producers who can no longer make a profit, followed by monopoly prices. It would be naive and wrong for the judge to rule on the validity of the GPL in relation to antitrust law without taking into account the effects of the copyright law. After all, GPL without copyright law a meaningless and powerless chunk of text. So, your assumption that it is somehow possible to find intersection between the GNU GPL, royalties and antitrust law, without relying on [copyright] doesn't make any sense to me. That's kind of the point that I'm trying to make - judge groks what GPL does (in the context of copyright) and when this is applied to antitrust, he's OK with it.
GPL survives antitrust challenge - again Posted Nov 14, 2006 1:08 UTC (Tue) by bojan (subscriber, #14302) [Link] Sorry, [copyright] in the last paragraph should be "software distribution model".
GPL survives antitrust challenge - again Posted Nov 14, 2006 22:46 UTC (Tue) by jstAusr (guest, #27224) [Link] Copyright law doesn't require charges to be made in royalties either.
GPL survives antitrust challenge - again Posted Nov 15, 2006 1:43 UTC (Wed) by bojan (subscriber, #14302) [Link] Precisely.
However, Wallace claims the opposite should be true:
> Daniel Wallace would like to compete with Linuxeither by offering a derivative work or by writing an operating system from scratchbut maintains that this is impossible as long as Linux and its derivatives are available for free. He contends that IBM, Red Hat, and Novell have conspired among themselves and with others (including the Free Software Foundation) to eliminate competition in the operating system market by making Linux available at an unbeatable price.
He's saying that because GPL (through copyright) allows requirement of "no charge", he's injured, because his would-be competitors, IBM, Red Hat and Novell have conspired to undersell him. He would like that copyright demands royalties, which would then bring GPL out of antitrust trouble. But judge knows better, of course.
Can you explain the other mechanisms that GPL would use to set the "charge" to zero? I was under the impression that the power of GPL is the power of copyright...
GPL survives antitrust challenge - again Posted Nov 15, 2006 8:17 UTC (Wed) by jstAusr (guest, #27224) [Link] The GNU GPL doesn't "set the "charge" to zero". In fact the GNU GPL doesn't say that royalties can't be asked for:"For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program."
"if a patent license would not permit royalty-free redistribution", that doesn't say that the distributor can't ask for royalties, it says that the distributor can't require anyone to collect royalties. If that restriction doesn't fit the model that the distributor would like, that is OK, the distributor isn't required to distribute GNU GPL'd works and there is nothing else that would allow legal distribution.
The GNU GPL doesn't "allows requirement of "no charge"" that would be an additional restriction, the GNU GPL wouldn't like that.
Saying that GNU GPL requires "no charge" is simply not true.
As I have commented before the court order addresses a common misconception that would be more difficult for the GNU GPL to defend if it were true. However, the court order even finds that misconception acceptable under antitrust law with regards to the GNU GPL.
GPL survives antitrust challenge - again Posted Nov 15, 2006 11:17 UTC (Wed) by bojan (subscriber, #14302) [Link] > In fact the GNU GPL doesn't say that royalties can't be asked for
Well, you are now contradicting yourself. You claimed previously the charging royalties isn't premitted. Unless you're playing some word game here along the lines of "you can ask, but it isn't permitted".
Think about this:
If I sell you a CD with a copy of the Linux kernel for $1,000, is that copyright royalty I'm getting? Well, if it is, it's a very strange royalty indeed, as I have no copyright in that program.
For all intents and purposes, what I did was equivalent of selling you a second-hand copy of a book.
In both cases nobody collected any copyright royalties.
And the reason why I could sell you that CD for a $1,000 is the fact that the licence to make more copies is free. Unless, of course you're willing to claim here that Linus is going to come to my door and ask for $995, because the CD is worth only $1 and my service $4. Please!
> The GNU GPL doesn't "allows requirement of "no charge"" that would be an additional restriction, the GNU GPL wouldn't like that.
Once you physically transfer a copy to someone and charge a fee for transferring a copy, you must give them this free licence. They can then make any number of copies - free of charge. That is absence of copyright royalty. Or, it is a requirement of "no charge for copyright royalties". Same in 2.b).
This is no additional requirement, simply because GPL is a gratuitous promise - a gift. That's built into the licence.
> As I have commented before the court order addresses a common misconception that would be more difficult for the GNU GPL to defend if it were true. However, the court order even finds that misconception acceptable under antitrust law with regards to the GNU GPL.
I think the only misconception here is yours, as you don't see the difference between a price of a copy and a price of a licence to make copies. The judge, fortunately, understood that quite well.
GPL survives antitrust challenge - again Posted Nov 15, 2006 16:45 UTC (Wed) by jstAusr (guest, #27224) [Link] >> In fact the GNU GPL doesn't say that royalties can't be asked for
>Well, you are now contradicting yourself. You claimed previously the charging royalties isn't premitted. Unless you're playing some word game here along the lines of "you can ask, but it isn't permitted".
The first time I was responding to your question, I assumed you were referring to a standard royalty contract or claim. In the case you are quoting from above I was thinking outside the box, however, I quoted the GNU GPL in order that you would be able to see the facts.
I must make a complaint here, I have noticed that in at least a few instances you have quoted while disregarding relevant information. I am not asking you to quote everything, but try to respond to the complete idea. Such as, in this case you seem to be ignoring the word "redistribution" in the GNU GPL license, that means that the distributor cannot place a requirement of collection of royalties on a down stream distributor. It does not place the restriction on the "distribution" itself. That is consistent with the rest of the GNU GPL, the distributor must give the same freedoms that were received. Now, I will agree that a normal royalty contract would not work under the GNU GPL. However that does not stop a distributor from saying "Hey, if you want to give me royalties that is fine, as long as you don't require that anyone give you royalties."
The important parts in this comment are:
And in general you are making an assumption that "no charge" in the court order means "royalties", that is your assumption not an established fact.
GPL survives antitrust challenge - again Posted Nov 15, 2006 19:32 UTC (Wed) by bojan (subscriber, #14302) [Link] This thing with "distribution" (I guess this would be by the copyright holder) and "redistribution" (I guess this would be by all others) is really silly. Linus cannot ask for royalties in Linux any more than I can. Your charity example, where people give him money voluntarily, doesn't count, I'm afraid. I think you don't really understand what a copyright royalty is.
As for "allowing requirement of no charge" - this is Wallace's complaint. He is against a licence that requires people not to charge in perpetuity (which is the GPL). He would like that copyright mandates either a royalty charge or that the distribution rules allow him to introduce one. Unfortunately for him, judge gets what GPL does and is fine with it.
And I'm not assuming anything - I've shown through quotes from the ruling that the judge refers to matters of copyright and that the charge in question is a royalty charge.
But, you chose to believe otherwise - well that's OK with me. I can only do so much convincing...
GPL survives antitrust challenge - again Posted Nov 16, 2006 17:26 UTC (Thu) by jstAusr (guest, #27224) [Link] You are herein offered 1 copy of the wonderfully fascinating GNU operating system, included is Linux, but that is only a kernel. You also get fabulous programs and desktop applications. Some of the software is provided by the GNU project and some also very important software is provided by other projects. I only ask that you collect one very small royalty from two people, however, you and the other two people must recognize that you and they are under no obligation to pay the royalty, the royalty payment is at your and their option. In other words, you can have the software without payment of any kind.
Silly or not, doesn't matter. The question is, is it legal and is the collection of royalties possible.
If it is legal then any statement that GNU GPL "requires no charge" or as you call it "requires no royalties", is not correct.
GPL survives antitrust challenge - again Posted Nov 16, 2006 19:17 UTC (Thu) by bojan (subscriber, #14302) [Link] > the royalty payment is at your and their option
Yep, you're right. Sorry, I was wrong all along.
Now back to copying those darn Windows and optionally sending Bill a payment ;-)
GPL survives antitrust challenge - again Posted Nov 16, 2006 22:35 UTC (Thu) by jstAusr (guest, #27224) [Link] Actually, I think we were all wrong for different reasons, the court order picked up the "no charge" maybe from Wallace or mabye from the GNU GPL but, expanded the meaning too far. I picked up the error in the expanded meaning and labeled it with "no charge" which obviously was a bad choice. You seem to have correctly picked up the inconsistency between the court order and GNU GPL, then tried to reconcile the problem using royalties, which of course was "wrong all along" ;) Actually, that was very creative and almost a workable solution. But we are all right, even if for the wrong reasons. Yeah! GPL.
GPL survives antitrust challenge - again Posted Nov 17, 2006 2:02 UTC (Fri) by bojan (subscriber, #14302) [Link] I was being sarcastic in my post, but I think you missed that. So, I will give it one last try and then I promise to shut up.
Have a look at footnote 80 of this document written by FSF:
http://gplv3.fsf.org/rationale
It is an explanation of the difference between "charging for distribution of copies" (judge addressed this in Red Hat's example, which I quoted) and "collect royalties from third parties" (judge addressed this with "limiting reproduction" comment, which I quoted; to limit reproduction, one needs a licence).
To avoid confusion entirely, GPLv3 draft has this text:
> Therefore, you may not impose a license fee, royalty, or other charge for exercise of rights granted under this License.
Licence is a document used for the purposes of "limiting reproduction". It is an authorisation, as defined in the copyright law. A fee (charge, payment - whatever you want to call it) is a licensing fee there. That is copyright royalty - a *mandatory* fee, that must be paid for reproduction every single time a copy is made - not something you can donate if you feel like it.
And just to be clear, a one-off fee charged for a copy of some work, accompanied by a licence to make as many copies as you like is not a royalty payment. It is quite obviously a payment for that one copy (since you can make as many as you like later for nothing).
From that footnote 80, it is clear what FSF have in mind when addressing GPL covered software and royalties:
> We therefore have added a new explicit prohibition on imposition of licensing fees or royalties in section 10. This section is an appropriate place for such a clause, since it is a specific consequence of the general requirement that no further restrictions be imposed on downstream recipients of GPL-covered code.
The "general requirement that no further restrictions be imposed" applies equally to GPLv2, which was under consideration in the ruling.
Also, footnote 41 is instructive:
> The original wording of this clause was meant to make clear that the GPL permits one to charge for the distribution of software. Despite our eforts to explain this in the license and in other documents, there are evidently some who believe that the GPL allows charging for services but not for selling software, or that the GPL requires downloads to be gratis. We referred to charging a fee; the term fee is generally used in connection with services. Our original wording also referred to the physical act of transferring. The intention was to distinguish charging for transfers from attempts to impose licensing fees on all third parties. Physical might be read, however, as suggesting distribution in a physical medium only. In our revised wording we use price in place of fee, and we remove the term physical.
I'll refer to this footnote later on.
Now, back to the Linux kernel example. Say Linus distributes a copy of Linux to me for $1,000. The royalty payment I need to make to him is exactly $0 - that's because he's giving me (free of charge) a licence to make as many copies as I like (i.e. he's *not* "limiting reproduction in order to collect a fee" - exactly what the judge is referring to; if he was, I wouldn't get a free of charge, unlimited licence, now would I?). However, that particular copy (obtained either as a download, on CD etc.) cost $1,000.
If I then make a copy of this kernel, I need to pay Linus $0 in royalties. If I patch the kernel and then make a copy, I still need to pay $0 to Linus.
If I sell a copy that I made to you for $10,000, you also pay $0 royalty. In other words, I also cannot be "limiting reproduction in order to collect a fee", because the GPL explicitly prohibits that.
So, let me explain judges words once more:
> 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.
- "Copyright law": the lever used for conspiracy by IBM and others, through the copyright licence that GPL is
- "usually the basis of limiting reproduction in order to collect a fee": this is what most copyright holders do - charge licensing fees (royalties) for each reproduction; mentioned to contrast that behaviour with what GPL requires - no limited reproduction, no collection of a fee for each reproduction
- "ensures that open-source software remains free": open-source means GPL licensed software here - just one example of liberal use of language by the judge; also means, clever hack boys
- "any attempt to sell a derivative work": meaning, if you think you can charge licensing fees for your bits, think again, you are distributing parts of the original work too and GPL doesn't allow charging fees for each reproduction, so you either license the lot free of charge or see below
- "will violate the copyright laws": GPL is a copyright licence and its power comes from the copyright law; it comes into effect when acts from copyright law are performed (copying, distribution, creation of derivatives etc.)
- "even if the improver has not accepted the GPL": if you think you can outsmart the GPL by saying you haven't accepted it, you will face the harsh reality of bare copyright law
As for terminology used by the judge, he knows that "selling software" for most people and lawyers means "charging licensing fees", not "selling one copy for a fee, accompanied by free of charge licence to make as many copies as you like". If you examine carefully his statement, "limiting reproduction in order to collect a fee" is the definition of "sell" in that sentence, as this is the very reason "any attempt to sell a derivative work" is not possible - since GPL doesn't allow "limiting reproduction in order to collect a fee".
He even gets away with calling GPL licensed software open source software, although we all know that there are many other examples of open source software licences which don't facilitate copyleft. But, he's the judge - he gets to do those things.
To put things in context of terminology used in this ruling, Microsoft is in the busines of selling software. Linus is not. Neither is Red Hat. That's because Microsoft is "limiting reproduction in order to collect a fee" and Linus and Red Hat are not. Microsoft is collecting royalties, Linus and Red Hat are not.
Now, I'm pretty sure that if I want a boxed copy or RHEL, I have to pay the money to Red Hat. And the judge explicitly says that. However, Red Hat are not "selling software", because they are not charging licensing fees by "limiting reproduction in order to collect a fee". The judge quite clearly contrasted that in his statement. Otherwise, they would be violating the copyright law, according to his statement, since they "attempt to sell a derivative work". And yet, he never said they are violating the law.
So, what FSF calls "selling software" in footnote 41 when they refer to selling copies, is not what judge had in mind in the ruling, as Red Hat would clearly fall prey to the GPL and the copyright law. So, it is not possible that the judge thinks that "no charge" refers to "selling copies of GPL licensed software". Therefore, he must understand that charging for copies of GPL licensed software is OK.
The only other possible interpretation left is as I described - he means that charging royalties for GPL licensed software is not permitted.
But, as I said before, you can believe what you like. Free country and all that :-)
GPL survives antitrust challenge - again Posted Nov 16, 2006 1:58 UTC (Thu) by bojan (subscriber, #14302) [Link] > 2. The fact that there is no "allows requirement of "no charge"" in the GNU GPL. (The keyword there being "requirement".)
Just for your reference:
http://www.fsf.org/licensing/licenses/gpl-faq.html#DoesTh...
That's copyright royalty, right there - not permitted per GPL - not even for "distribution", not just "redistribution".
Of course, feel free to believe otherwise. ;-)
GPL survives antitrust challenge - again Posted Nov 16, 2006 17:33 UTC (Thu) by jstAusr (guest, #27224) [Link] That says:a fee can not be required *not* requires no fee.
GPL survives antitrust challenge - again Posted Nov 16, 2006 19:21 UTC (Thu) by bojan (subscriber, #14302) [Link] "Charity royalty" strikes again ;-)
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