Posted Mar 9, 2011 5:05 UTC (Wed) by branden (subscriber, #7029)
Parent article: Red Hat and the GPL
Pretty unimpressive analysis; almost but not quite "completely without merit", as the author might put it.
Mr. Edge omits the case of preprocessed source as a "preferred form for modification", a case Mr. Corbet is well-aware of (having cited it himself), and of which the senior editor should have made him aware when assigning this story.
In the post-preprocessed source scenario, the source is all there. No variable names are obfuscated or rendered into gibberish (macros and preprocessor symbols aren't variables or function names). Nothing is split up in a difficult way; in fact, you tend to get more code at once for a more holistic source code experience.
It's surely far superior to a cuneiform tablet.
Similarly, we can view Red Hat's monolithic kernel source RPMs as an *improvement* over that unwieldy, tedious, split-up pile of rubble called patches to the upstream source.
Ergo, shipping post-preprocessed source as a means of complying with section 3 of the GNU GPL (version 2) is fine and dandy.
Moreover, the fact that the entire community (including those trivial portions not in the employ of Red Hat Software, Inc.) generally hand-waves away strict enforcement of section 2a, usually in favor of exterior changelogs, as acknowledged by GNU GPL version 3, is entirely beside the point. It is within copyright holders' prerogatives to overlook certain strict infringements, either because they were ill-considered in the first place, as I submit is the case with section 2a, or for any other reason.
If the widespread non-enforcement of 2a has any weight at all, then it applies just as well against *all* of the provisions of the GPL, including those contravened in situations Mr. Edge *does* recognize as infringement.
Another point: the facile notion that because "Red Hat has a top-notch legal team with a lot of GPL experience", they are unlikely to "believe it is [in]defensible in the unlikely event of a lawsuit" exposes its own flaw upon close reading.
Companies can and do infringe copyright knowingly and willfully. Why? Because they perform risk and cost-benefit analyses and decide that the business is best served by doing so; the multiplicative product of the likelihood of being challenged with the expected impact on the business if they are falls below a certain threshold of discomfort.
Red Hat's legal team can believe their actions with the kernel SRPM to be a GPL violation and proceed to do it anyway. If they do, no doubt they share Mr. Edge's assessment that facing a lawsuit from any copyright holder in the kernel is "unlikely".
This is particularly true if Red Hat can convince those copyright holders that those whom they are inconveniencing with this move are unsavory and unsympathetic. Hence the emphasis on free-riders, rather than on independent distributors of the Linux kernel who undertake their own development efforts and contributions. Thus, not only does ignoring the Debian Project's efforts fit Red Hat like a comfortable old shoe for distribution and packaging format rivalry reasons, it's tactically important. Red Hat needs to keep the eyes of the community on "parasites", not legitimate Linux distributions (however benighted they may be for not joining the Red Hat monoculture).
That is only one tool in Red Hat's box. If a copyright holder in the Linux kernel does squawk, they can 1) ignore the complaint; 2) settle for cash; or 3) break out patches touching the files in which that person (or other legal entity) has rights in future releases as a means of compliance. The last option does have the consequence of throwing a bone or two to the supposed free-riders, but it has to beat reverting this decision entirely.
In short, it simply does not follow at all that Red Hat has a bunch of smart lawyers who don't feel confident they would prevail in litigation. Perhaps they do; but the proper means for a journalist to determine that is through an interview with a person privy to their deliberations, not conjecture.
Congratulations, Mr. Edge, your analytical acumen has me considering canceling my subscription to LWN for the first time ever. (As it happens, though, there's no interface for doing that...)