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Examining an attack on the GPL
On November 21, a law firm called Wolf, Greenfield & Sacks, P.C saw fit
to issue a
press release on the evils of the GPL. By the reckoning of Steve
Henry, a "senior intellectual property lawyer" with the firm, the GPL is
indeed scary:
This "time bomb" lurks because a popular license for open source,
the GNU General Public License, (GPL) is "viral." The license
attaches to any product with GPL-licensed code, including a
derivative work, he said. The entire software package becomes open
source and the company thus must distribute it freely and let
anyone copy it. A widely used open-source utility, for instance,
could "infect" hundreds of software products and destroy their
commercial value.
We found this reading of the GPL to be interesting, so we asked Mr. Henry to explain his reasoning a bit. We thank him for getting back to us; for the curious, we have put his full response on a separate page. We'll just look at the core of his claims here. What Mr. Henry tells us is:
Those who portray the GPL as an entirely innocent and voluntary
instrument take a simplistic view of the GPL itself as well as of
both copyright law and contract law. They often project onto
others the benevolent behaviors and actions they attribute to
themselves. The problem is that others are not always so benevolent
and if the GPL is an enforceable contract, then it may not only be
enforceable by the licensor, but also by third-party beneficiaries
(under at least some conditions).
So, if you see the GPL as a contract, those who have received GPL-licensed software can enforce that contract's provisions against you. How could that be a problem? According to Mr. Henry:
So, if a company downloads a GPL product, and incorporates it into
the company's product in such a way that the company's product is
considered a "derived" work or a work "containing" the downloaded
code, not only is the company obligated to use the GPL to
distribute its product, but also it is obligated not to charge. And
its licensees automatically receive a license under GPL terms for
the original code. If the company uses a different license (a) it
could be liable for copyright infringement, (b) it could be liable
for breach of contract, and (c) it could be subject to a court
order for "specific enforcement" of the GPL obligation to
distribute the derivative work under the GPL. The licensor of the
downloaded code could enforce the GPL, as might a licensee of the
company (as a third-party beneficiary).
Mr. Henry's point (a) is not controversial; if you use copyrighted work in violation of the license that applies to that work, you are infringing the copyright. There is nothing unique to the GPL there. Point (c) is the crux of the matter: Mr. Henry claims that, if you distribute a product containing GPL-licensed code, anybody receiving that code could sue to have your proprietary code relicensed. The fact that nobody has ever attempted to do this is irrelevant by this analysis; in the future somebody could make a try at it. One could argue that, even if this reasoning holds, there is no real problem here. If a company does not wish to abide by the terms of the GPL, it should simply avoid incorporating GPL-licensed code into its products. Once again, the GPL does not differ from any other software license in this regard: if you do not like the license, nobody forces you to use the code. But the fact is that, by this argument, GPL-licensed code is more actively dangerous than other code. If you get caught using somebody's proprietary code, all you have to do is settle the copyright infringement claims and get on with life. With GPL-licensed code, you still have the infringement issue, but you could also be forced to give your proprietary products away. That would be a heavy price for a company to pay just because one of its employees slips some GPL-licensed code into its product. But does this reasoning hold water? We dropped a note to FSF counsel Eben Moglen to get his opinion on Mr. Henry's argument. His response was:
So far as "specific performance" is concerned, there is *no* legal
support for the claim. "Specific performance" is the name of a
contract remedy; the GPL is not a contract. In the event of
copyright infringement the relevant possible remedies are: (1)
damages, actual or statutory; and (2) an injunction to prohibit
infringing distribution.
If the GPL is not a contract, what is it? If you look at §106 of the U.S. copyright code, it states:
Subject to sections 107 through 121, the owner of copyright under
this title has the exclusive rights to do and to authorize any of
the following: (1) to reproduce the copyrighted work in copies or
phonorecords; (2) to prepare derivative works based upon the
copyrighted work; ...
One of the rights given to copyright holders is to authorize others to create copies and derivative works. The GPL is that authorization: you have the right to create certain kinds of copies and derived products from GPL-licensed code. You have not signed a contract with the copyright holder, and you have not paid any sort of consideration, which is a required part of any legal contract. So you, as the recipient of GPL-licensed code, do not have any contract rights against those who distributed that code to you. Even the copyright holder lacks such rights, though the holder does have the right to claim infringement if the provisions of the GPL are not followed. Mr. Moglen concluded with: "This talk about 'incorporating' GPL'd code in a product leading to forcing the rest of the product open is scare-mongering." We are inclined to agree. Anybody who is truly concerned about such issues, however, should discuss it with their own lawyer rather than taking our word for it. (Log in to post comments)
contracts etc. Posted Nov 24, 2003 20:49 UTC (Mon) by coriordan (guest, #7544) [Link] (thanks for the great article)Just to clarify the GPL-is-a-license-not-a-contract issue: Copyright is a state-granted monopoly, no one is allowed to make a copy of an authors work without being granted permission. When software is released under the GPL, it comes with a license that gives the recipient permission to make copies with certain conditions. A contract has to be agreed to. You don't have to agree to the GPL, it's simply a grant of rights, and you can use them or not. (as a small note, the GPL does not require that a work be distributed for free. If you distribute *only*binaries*, you have to make the source code available for free or for the cost of distributing the source code. Of course, the first recipient of the source code can then make it available for zero-cost. The general zero-cost of GPL'd software is due to the free-as-in-market effect.)
You missed one thing Posted Nov 24, 2003 20:50 UTC (Mon) by abredon (guest, #2038) [Link] You missed refuting one very important wrong statement.According to Mr. Henry: Nowhere in the GPL does it say that you can't charge for a GPL product (or derivative work). You do have to either:
Examining an attack on the GPL Posted Nov 24, 2003 20:57 UTC (Mon) by jre (guest, #2807) [Link] I respect and trust Prof. Moglen's opinions on the GPL. But I still do not understand how (or if) he has answered Mr. Henry's central point.That point, if I understand it, is that an unwitting licensor would lose his right to sue for infringement, once the code has gone out into the world. So, to make a hypothetical: I'm running a big development project. One of my software engineers incorporates a bunch of GPL'ed code into my product without my knowledge. My QA systems are too pathetically weak to detect the inclusion (not that any real company would ever claim such a thing). I fix the problem as soon as I discover it, but it's too late. Millions of copies have been made, and I am powerless to take action against the copiers, because of the GPL. No one can sue me, since the GPL is not a contract, but that is cold comfort -- since it is a license, I cannot retrieve my now-GPL'ed product. I agree that this is far-fetched, but since that seems to be the nightmare scenario proposed, I'd like to know why it could not happen.
Examining an attack on the GPL Posted Nov 24, 2003 21:03 UTC (Mon) by corbet (editor, #1) [Link] My understanding is this: if you release your product under the "Extra-Nasty Proprietary License" (ENPL), that product is, indeed, licensed under the ENPL. The fact that you used a bunch of GPL-licensed code to create your product does not change the fact that your product is ENPL-licensed. You are guilty of copyright infringement, but that has not changed the licensing of your code.
Examining an attack on the GPL Posted Nov 24, 2003 21:15 UTC (Mon) by jre (guest, #2807) [Link] Yup.After I posted, I thought about it a little more. You're right -- the nightmare scenario could only come about if some court, somewhere, were to hold that mere inclusion of GPL'ed code, with or without intent to license under the GPL, would cause the GPL to apply. That's silly. Now, if some company were to claim that its product, distributed with prominent GPL notices plastered all over it, had been unwittingly released in this manner, that would be even sillier!
Examining an attack on the GPL Posted Nov 25, 2003 8:09 UTC (Tue) by ekj (guest, #1524) [Link] Exactly. If you include GPL code in your application, it does not follow that your application is automatically also under GPL.It *does* follow that either a) You reach some agreement with the copyrigth-holder(s) of the GPL-code in question to license it to you on other terms or b) You release your code also under the GPL or c) You do none of the two above, and are then infringing on the copyrigth of those writing the GPL-code.<p> If you do c, you migth be forced to pay damages to the people owning the code. That's true for all code you illegally include and nothing special for GPL. You will however in such a scenario NOT be forced to relicense your code under GPL.
Examining an attack on the GPL Posted Nov 27, 2003 3:14 UTC (Thu) by bignose (subscriber, #40) [Link] > It *does* follow that either> a) You reach some agreement with the copyrigth-holder(s) of the GPL-code > in question to license it to you on other terms or > b) You release your code also under the GPL or > c) You do none of the two above, and are then infringing on the copyrigth > of those writing the GPL-code. b) ii) You satisfy the GPL by not redistributing the GPL code (i.e. you include it in a modified program that you never distribute) The GPL only affects derived works if you then redistribute them to others. There are plenty of parties modifying GPL works and never redistributing them under any license terms; this is a perfectly valid, if far less visible, use of the work.
Examining an attack on the GPL Posted Nov 27, 2003 6:43 UTC (Thu) by vgough (guest, #2781) [Link] How are damages determined?I've heard people (literally - two anti-GPL people at a coffee shop) throwing out theories that because people were giving their code away for free, that there were little or no damages. But, my choice of releasing code under certain terms (the GPL) should in no way prejudice my ability to license the very same code for money to another licensee. So how are damages figured for copyright work which has not been previously sold or licensed for profit?
Examining an attack on the GPL Posted Nov 27, 2003 8:08 UTC (Thu) by gleef (guest, #1004) [Link] Damages would be hard to determine. If you have an established "dual license" business model (eg. Cygnus, Trolltech), you can make some case at it. You can probably come up with some economic or business value to the code copying, by bringing in expert witnesses. This is further complicated by the fact that you really can't claim significant damages in the US unless you've registered your copyright with the Library of Congress, U.S. Copyright Office, something many Free Software developers don't bother with. The big stick, from what I've seen in terms of FSF enforcement of the GPL, is the threat of an injunction. If you can show that a person is likely distributing your work in violation of your copyrights, it's fairly easy to get an injunction forcing them to stop distribution until all the issues get ironed out (and permanently, if they can be proved to be distributing it and nothing gets ironed out). Since, in most cases the alleged infringer is a commercial entity who is depending on this product for revenue, such an injunction would be very very costly.
Examining an attack on the GPL Posted Dec 4, 2003 11:43 UTC (Thu) by Wol (guest, #4433) [Link] Bearing in mind most Free Software developers are not based in the US, why should they register with the US Copyright Office?I would EXPECT, as a matter of FAIRNESS, that if I sued an American company in America, that the lack of copyright registration would be irrelevant seeing as (a) I wrote my code in the UK and it's covered by UK copyrights, and (b) the Berne Convention applies. I don't know exactly how it works, but under the convention I should have the ability to sue anyone, anywhere, for copyright violation and have my Berne rights enforced. If necessary, I might have to register my copyright with the Copyright Office before suing, but no time limits should be applicable to that registration, seeing as if that American company didn't transact business in the UK I would have no means of redress should I rely on the UK courts. Cheers,
Examining an attack on the GPL Posted Dec 5, 2003 0:28 UTC (Fri) by eread (guest, #1918) [Link] I have studied Australian Copyright Law (though I wouldn't ever consider myself an expert - IANAL) and from my reading of if someone has copyright with respect to a given work, then Australian laws will uphold that.In some provisions, the person must be a "qualified person" for the provision to take effect. But in most general provisions, as far as I can see, Australian courts will respect and uphold your copyright in Australia, even if the copyright comes from an overseas country (probably signaturies to the Berne Convention. I hope this is somewhat accurate.
Examining an attack on the GPL Posted Dec 5, 2003 0:29 UTC (Fri) by eread (guest, #1918) [Link] A Qualified person being one who is an Australian, or who created the work in Australia.I don't think one need be an "expert in the field" like some patent law.
Determining Damages Posted Dec 4, 2003 17:11 UTC (Thu) by HalfMoon (guest, #3211) [Link] How are damages determined? I'll assume you don't mean punitive damages, but just ones based on some rational economic basis. One ceiling would be all the revenue associated with the product which was doing the copyright infringement. That'd need to be fair math, not the kind RIAA companies use with musicians, so if the product integrates hardware and software, the hardware portion of the revenue WOULD be counted. Another ceiling would be the engineering effort needed to re-invent, re-implement, re-stabilize the relevant code. Clean-room. That could easily be much more than the revenue from the particular infringing product ... Whatever number is used would be modified in at least two ways. One would be reducing the number; it may be hard to argue that all the revenue came from unfair competition based on copyright infringement. Another would be increasing it, as in "treble damages" for certain kinds of behavior or as in accounting for some market position acquired by fraud. (OK, that last may expect too much real "justice" out of most of today's "justice systems", sorry!) IANAL, but I certainly know that these numbers can be arrived at in ways that an unbiased third party would agree reflect the "value" of the infringement to the party doing the infringing. Remember, if the original author had wanted nothing back, they'd have used the BSD license. But that's not what they wanted ... they chose a license which limited the scope for proprietary value-add. So clearly, every dollar (or euro, etc) associated with that product which wasn't proprietary value-add, or a going-rate service, came from the infringement. There's a damage valuation.
Examining an attack on the GPL Posted Nov 24, 2003 21:24 UTC (Mon) by vblum (guest, #1151) [Link] But could not the original licensor of the included GPL code force you to open up all the ENPL-licensed code which you published to date under the GPL instead? (since the code "published to date" has caused factual damage to the GPL author)My understanding was that by using GPL'd code, you agree to the license terms, one of which is that you make your additional code available under GPL terms also.
Examining an attack on the GPL Posted Nov 24, 2003 22:00 UTC (Mon) by jamienk (guest, #1144) [Link] This was explained above: I can't "force" you to release your code. If you insist on copying and distributing derivative works of my copyrighted, GPL'd code, I can try to get a court make you 1) pay me damages, and/or 2) stop.Note that this is also what would happen if I started copying and resdistributing derived copies of MS Windows in a way that MS, as copyright holder, didn't allow. On the other hand, some companies might decide "fuck it, his GPL'd code is more valuable to us that our modifications are. Let's release the whole thing as GPL to satisfy his terms." Note that MS doesn't offer such a solution.
Examining an attack on the GPL Posted Nov 24, 2003 22:46 UTC (Mon) by vblum (guest, #1151) [Link] I respectfully disagree, after reading the license: There is nothing in the GPL that restricts the original licensor of a piece of code to 1) and 2). Yes, paragraph 4 or the GPL says that your rights to someone else's code under the GPL will be automatically terminated if you in non-compliance with the GPL.But, it does not speak about what happens about GPL'd code that you have knowingly incorporated and distributed for some time. One may very well interpret GPL Sect. 2b and Sect. 6 together with the implicit acceptance clause of Sect. 5 of the GPL as your acceptance to make available your already distributed modified product under the terms of the GPL of the original licensor. I hate to side with the writer of the original inflammatory press release on that one - but the language of the GPL could be interpreted that way, and nothing which I see prevents an author of GPL'd code to demand compliance from a licensee with regard to already released code. But, IANAL. And yes, Mr Henry is completely wrong in that anyone could force the opening of the code, IMHO. But the original GPL licensor might. The message is simply, if you do not want to make your code available, don't use GPL'd code. No big deal, and especially nothing viral here.
Examining an attack on the GPL Posted Nov 24, 2003 23:09 UTC (Mon) by BrucePerens (guest, #2510) [Link] Well, placing your infringing code under the GPL is an option. It's one of the ways you can remedy an infringement. The other ways are to cease infringing by ceasing distribution of the GPL code, or to negotiate a separate license with the copyright holder(s).And then, you may have some damages as a result of the infringement. It seems very unlikely that a judge would actually force someone to GPL their code if that someone was willing to take one of the other paths to remedy infringement. Bruce
Examining an attack on the GPL Posted Nov 24, 2003 23:19 UTC (Mon) by vblum (guest, #1151) [Link] I agree with you regarding the likelihood: It's rather unlikely that a GPL author could force Evil Software Company X's infringing code into the open.But, Mr Henry is evidently a lawyer. There is nothing factual in the GPL which _prevents_ a GPL copyright holder (e.g. FSF) from suing for exactly that, instead of other damages. The judge's decision is another matter, but technically it's not predetermined. And, who knows what side circumstances might apply that render the payment of damages, negotiating a separate agreement etc. impractical in a given case. Yet again, just to make sure: There is nothing viral about this anyway. Whoever falls for this virus has to do so maliciously, as for the famous text virus.
Examining an attack on the GPL Posted Nov 25, 2003 2:11 UTC (Tue) by Ross (subscriber, #4065) [Link] There is nothing specific in the GPL about that. People can suefor just about any reason and just about any result is possible. In a lawsuit with two non-free programs it is completely There are lots of ways to settle and there are lots of ways for
Examining an attack on the GPL Posted Nov 25, 2003 6:00 UTC (Tue) by BrucePerens (guest, #2510) [Link] It's also possible that the judge could repeal the law of gravity or legislate Pi equal to 3.0 . But not likely. There are appeals courts to handle much smaller breaches than that.Bruce
Examining an attack on the GPL Posted Nov 25, 2003 14:48 UTC (Tue) by vblum (guest, #1151) [Link] Err ... white flag. I am almost ready to declare defeat, and do so here re: also the remainder of my comments in this thread.I guess what I am trying to say is this: I can perfectly see how a lawyer could read the GPL to be intended to force you to open your infringing code after the fact. Pars 2b, 6, together with 5 allow a lawyer to construe such an argument before a court with great ease. Whether it holds up is another matter, but the wording (esp of par. 5) sounds as if it were preparing the ground for such an outcome. Most legal professionals are not Eben Moglen; most of them probably even believe in the legality/enforceability of "click-to-accept" after-purchase shrink-wrap licenses, after all; and if need be, they would probably even sue on behalf of a GPL client to force someone else to open their code, either; as long as it pays. My conclusion from all this is that if the GPL _does not_ intend to force anyone to open up infringing code after the fact (which it evidently does not, I know!), it should best say so explicitly; that would immediately end confusion such as the above press-release.
Examining an attack on the GPL Posted Dec 4, 2003 11:47 UTC (Thu) by Wol (guest, #4433) [Link] "There is nothing factual in the GPL which _prevents_ a GPL copyright holder (e.g. FSF) from suing for exactly that, instead of other damages."And don't forget. Replace FSF with IBM, and assume that the software in question is OpenServer, and/or UnixWare, and you have EXACTLY that scenario. IBM *HAS* sued for copyright infringement, and HAS asked the judge to place those two programs under the GPL should any infringement be found to have occurred! Cheers,
Please tell me where IBM makes that claim Posted Dec 4, 2003 14:12 UTC (Thu) by brokeninside (guest, #8722) [Link] I am aware that IBM is suing the SCO Group (TSG) for copyright infringement over TSG's continued distribution of the Linux kernel which contains IBM copyrighted code.And I am aware of IBM suing TSG for infringement of IBM owned patents in pretty much the entire product portfolio purchased from SCO. As part of this counterclaim, IBM is asking that TSG be prohibited from distributing OpenServer, UnixWare, etc. I am not aware of any IBM counterclaims that are suing for release of TSG proprietary sofware purchased from SCO under the GPL. As most of the documents for the case can be found at Groklaw and/or IBMSCOWeThey, would you please point me to where in IBM's counterclaims against TSG that IBM is suing for TSG proprietary code to be released under the GPL?
Examining an attack on the GPL Posted Nov 24, 2003 23:13 UTC (Mon) by jamienk (guest, #1144) [Link] Again, Eben Moglen explained this above. The GPL is a license (not a contract). When it comes to violating a license that allows copying or distributing a copyrighted work, the copyright holder has legal recourse to ask a judge for damages or to stop the infringement. (If the violator abides by the GPL -- by, in this case, releasing the code in their derived work -- then there is no longer any license violation.)This isn't in the GPL itself. This is how license violations of copyrighted materials are handled by US courts.
Examining an attack on the GPL Posted Nov 24, 2003 23:24 UTC (Mon) by vblum (guest, #1151) [Link] Hm. I see that point more clearly now.Still paragraph 5 is rather threatening in combination with 2a and 6 (and rightfully so). Why the appropriate "damages" should not be the forced opening of infringing code in a given case escapes me. But, I've posted too much already! Thanks for the answers!
Examining an attack on the GPL Posted Nov 25, 2003 0:18 UTC (Tue) by josh_stern (guest, #4868) [Link] Is there some reason why a company that (perhaps unknowingly) steals GPL code for use in its proprietary product is more likely to have to lose a proprietary interest in their own contribution than a company that (perhaps unknowingly) steals code with some other license? For concreteness, say Rogue Wave code is somehow found in their product and they never bought a Rogue Wave license. Is the worry that "some judge" is likely to be much more punitive in the GPL stealing case?If the point here is that GPL should actually be treated like a real license then I'm sure the FSF and others are in favor of that concern.
Examining an attack on the GPL Posted Nov 25, 2003 1:22 UTC (Tue) by vblum (guest, #1151) [Link] No 100 % compelling reason. BUT, one might argue that the nature of GPL makes theargument much much easier to force code opening as a way of remedying damages. No need to motivate it first ... it's already right there.
Examining an attack on the GPL Posted Nov 26, 2003 16:29 UTC (Wed) by josh_stern (guest, #4868) [Link] What the company with proprietary code and a court would care about is the overall monetary value of any awarded damages. Courts don't work like interior decorators and just award damages willy-nilly based on a coordinating "theme".
Examining an attack on the GPL Posted Nov 30, 2003 12:04 UTC (Sun) by IkeTo (subscriber, #2122) [Link] Is there some reason why a company that (perhaps unknowingly) steals GPL code for use in its proprietary product is more likely to have to lose a proprietary interest in their own contribution than a company that (perhaps unknowingly) steals code with some other license? No. But that's an inappropriate comparison. You won't normally see the proprietary code lying there in web sites waiting for you to download without you signing an agreement, contract, whatever. There are reasons why proprietary software writers would object GPL, and it is perfectly legitimate: GPL is written to crush them. While I'm perfectly for GPL and 100% against proprietary software, I think GPL software writers still have an obligation to remind people from falling into the trap and become forced to abandon their projects (or GPL their code). I mean, while the language of GPL is as clear as crystal, and while all the rules for using the software is clearly written there, we still shouldn't try misleading proprietary writers to believe that GPL is very safe to use for their project--and only after their projects started, tell them that they are violating the license and force them to stop. It's better to get them warned at the beginning. If GPL wins over proprietary software, I'd much rather it win by a fair competition, rather than by misinformation by software writers.
Examining an attack on the GPL Posted Nov 25, 2003 11:05 UTC (Tue) by dmantione (guest, #4640) [Link] > The GPL is a license (not a contract).Is there a difference between a license and a contract in US laws? In my own country, the Netherlands, the law doesn't speaks about licenses and contracts. Instead, it speaks about agreements between two parties and a license or contract is just a proof of an agreement, not the agreement itself. (I.e. an oral agreement can has the same legal status as a written contract, if you can prove it). Because of that, a license which you find inside packaged software and you have automatically agreed to by opening the package is void; there is no proof the one who opened the package agreed to it. On the other hand, someone who copies GPL software must have clearly read the license, because otherwise he is not allowed to copy. In this case, the license is a proof of an agreement between two parties.
Examining an attack on the GPL Posted Nov 25, 2003 16:28 UTC (Tue) by kay (subscriber, #1362) [Link] > Because of that, a license which you find inside packaged software and you have> automatically agreed to by opening the package is void; there is no proof the one > who opened the package agreed to it. this void only the "accept by open", so you can return the software if you dont agree with the licence inside. if you use the software, the licence is accepted.
Examining an attack on the GPL Posted Nov 26, 2003 9:13 UTC (Wed) by dmantione (guest, #4640) [Link] You do not need a license to use software, just like you do not need a license to read abook. You do need a license to install it, because that is copying, which you are only allowed to do with permission from the author.
license vs contract Posted Nov 28, 2003 17:22 UTC (Fri) by giraffedata (subscriber, #1954) [Link] In my own country, the Netherlands, the law doesn't speaks about licenses and contracts. Instead, it speaks about agreements between two parties and a license or contract is just a proof of an agreement, not the agreement itself.Then you're just translating to English wrong. In English, "license" isn't a document or evidence of something -- it's a synonym for "permission." It is, by the way, very common to contract with someone to give you a license in exchange for something else (e.g. money). It's hard for me to believe that Dutch copyright, patent, and other law doesn't have some word that means "license" in this way. FYI, in American law, "contract" and "agreement" are synonyms and there is no good word for the proof of the contract. It's just called "documentation of the contract," or "evidence of the contract," or something like that.
Examining an attack on the GPL Posted Nov 25, 2003 8:19 UTC (Tue) by iabervon (subscriber, #722) [Link] It is not at all significant to read the GPL to deal with this situation.In this situation, you've infringed on the original owner's copyright by virtue of using it without a license (since you didn't accept the GPL, and may not have actually realized you were offered the GPL). At this point, the original owner can offer you any license (assuming the original owner isn't under any particular obligations); this doesn't mean you have to accept the license. Furthermore, there's no reason the owner couldn't offer you the GPL at this point, having never done anything with the GPL previously. If you refuse any license, it falls to the court to determine a penalty, based on copyright law and not on the terms of any license you might be offered, before or after the infringement. In fact, there's no particular reason that, if Microsoft found that you had violated the commercial licensing terms of some commercial code that they no longer cared much about, they couldn't at that point offer you the GPL, putting you in exactly the situation of having incorporated GPLed code (and, if you didn't accept the GPL, there's no reason they'd have to offer it to anyone else, either).
Examining an attack on the GPL Posted Nov 24, 2003 23:45 UTC (Mon) by titousensei (guest, #4144) [Link] There're a few things that are generally interpreted the wrong way regarding GPLed code inclusion.1) It's actually *not* different from the inclusion of code licensed differently. Say one of my coders managed to get the source code of the product from another company and includes it in our product. The rest of your scenario is the same. If the other company finds out, we're all in big trouble, and that's called copyright infringement too, like for the GPL. Generally the case is settled by paying a lot of money to whomever owns the rights. The fact that GPLed code is easier to come by than, most of the time just by downloading it, doesn't change the fact that somebody *owns* the rights for this code. Again, if you already distributed the product to a bunch of people and the copyright owner doesn't want to settle the case, you're in trouble. 2) as somebody else pointed out, releasing an application with any license when GPLed code is included doesn't mean the application becomes GPLed, nor that the GPLed code changes license. It only means the license for the whole product is invalid and it cannot be distributed until the issue is fixed: either by removing the GPLed code, or by re-licensing the product to GPL-compatible license, or by having the copyright-owners of the GPLed relicense their code to something else (I'm sure a lot of money can convince them to do so in this case too, but sometimes you'll need to talk to many different persons). But the application you released under an invalid license by itself: you have to explicitly release it under the GPL for it to become GPLed entirely. (NB: one thing you cannot do is explicitly release under the GPL, then change your mind) 3) Just because you GLP your code doesn't mean you must let anybody download it. It means that the people *buying* the application must be given the source code too for free, and only them. Example: Sony did a release of the gcc for their PS2 development kit (with PS2 chips specific stuff in it) that's only distributed to official developers. Those developers have the source code, but they won't distribute it (I'm pretty sure that by contract they will loose their right to produce PS2 games if they distribute it). That's allowed. So, the GPL is just another license that protects the copyrights like other licenses, with one additionnal way to do the right thing, that is GPL your own code. But it's not mandatory. So, to summarize, the GPL "looks" problematic because: Actually it's not more problematic than other proprietary licenses. In GPL, money is not the only way to settle things, and that's probably why people are freaking out. Best, PS: if people get your GPLed code, they can release your own product and compete against you, right?. But you can do that too, right? Because they must do their release under GPL too! Right!
Examining an attack on the GPL Posted Nov 25, 2003 0:05 UTC (Tue) by jamienk (guest, #1144) [Link] ===Sony did a release of the gcc for their PS2 development kit (with PS2 chips specific stuff in it) that's only distributed to official developers. Those developers have the source code, but they won't distribute it (I'm pretty sure that by contract they will loose their right to produce PS2 games if they distribute it). That's allowed.===I'm pretty sure that what you've just described is not allowed...? Once you have GPL'd code, you can copy and redistribute it under the GPL, and no additional requirments may be placed on you for it to be GPL. That means that I could redistribute Sony's code.
Examining an attack on the GPL Posted Nov 25, 2003 2:15 UTC (Tue) by Ross (subscriber, #4065) [Link] I think you are correct. Any additional restrictions, even if theyaren't in the text of the license, are not allowed. Ask the FSF if you want to know for sure. They have a GPL compliance address which I used recently: license-violation at gnu dot org.
Grey Areas Posted Nov 25, 2003 3:57 UTC (Tue) by emk (guest, #1128) [Link] There's a few grey areas here; consult the original author and the FSF for details on what Sony could or couldn't do in a case like this.Stallman himself--if I recall correctly--used to give people private GCC betas with the understanding that anybody who released an private beta probably wasn't going to be on the list next time around. Although the core of the GPL is rooted deep in traditional copyright law, the edges are sometimes a little fuzzy. When in doubt, talk to the original maintainer and your lawyers. Saying "please" is good policy.
Examining an attack on the GPL Posted Nov 25, 2003 7:55 UTC (Tue) by iabervon (subscriber, #722) [Link] At a guess, PS2 developers are probably dealing with multiple thingshere. The GPL gives them the right to distribute the gcc extension. But the GPL has nothing to say about trademarks, and PS2 developers, by and large, are hoping to continue to be licensed to release "games for the PS2(tm)", and so they have to keep Sony happy. The thing in this case is that you're not just a user of the software, but you're also getting other rights from Sony which are important not for your use of the software, but for your end goal.
Examining an attack on the GPL Posted Nov 25, 2003 13:24 UTC (Tue) by Liefting (subscriber, #8466) [Link] Sue your developer. He's the one who got paid for *programming* something, but instead *copied* the works of somebody else, pretending it was his own.Where I work the policy is clear: you have to go through a one-day seminar on OSS and Licensing to make sure you understand the issues and consequences if you want to work with OSS in general. And there is a rigorous review process (including lawyers) if you decide to either use OSS for/with/in/bundled with/linked to a proprietary product, or if you decide to make a proprietary product open source.
Examining an attack on the GPL Posted Nov 24, 2003 21:43 UTC (Mon) by virtex (subscriber, #3019) [Link] So, if a company downloads a GPL product, and incorporates it into the company's product in such a way that the company's product is considered a "derived" work or a work "containing" the downloaded code, not only is the company obligated to use the GPL to distribute its product ...This is a common mistake I see people make all the time -- assuming that if a proprietary program acquires some GPL code, then the entire program must be relicensed under the GPL. This implies that the GPL supercedes all other licenses, and this is simply not true. The GPL is quite clear about what happens in a case like this. Paragraph 7 of the GPL reads as follows: 7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. 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.In other words, if you have included GPL code in your proprietary program, you are not allowed to distribute your program until the conflict is resolved, most likely by removing the offending code. Relicensing the entire codebase under the GPL is also an option, but it's certainly not the only one, and I doubt many corporations would agree to do this. If you have already distibuted your program, you have violated the terms of the GPL; however, there is still nothing that says you are required to GPL your codebase.
Examining an attack on the GPL Posted Nov 24, 2003 21:53 UTC (Mon) by vblum (guest, #1151) [Link] Hm. The way I understood it: If you are the GPL distributor, _then_ you cannot distribute code to which anyone else has "proprietary" claims, such as a patent, or the purchase of the Unix source code - cough.However, it does not excuse you from distributing your code under the GPL if it is derived from the GPL'd code of another party - simply because there is no external condition imposed on you that prevents you from distributing under the GPL. Maybe I am wrong, but the language always seemed clear to me there ...
Just a quick comment. Posted Nov 25, 2003 0:28 UTC (Tue) by flewellyn (subscriber, #5047) [Link] I agree with most of what you said here, but there's one part I want to comment on."In other words, if you have included GPL code in your proprietary program, you are not allowed to distribute your program until the conflict is resolved, most likely by removing the offending code. Relicensing the entire codebase under the GPL is also an option, but it's certainly not the only one, and I doubt many corporations would agree to do this." Actually, this has been done. NeXT, for example, released the source for their Objective-C frontend for GCC precisely because of this. There's also the Linksys business, which LWN has covered before; there's still some issues there, but apparently Linksys is trying to do the right thing. I could name more examples, but that would require me to Google for them, and I'm too lazy. :-)
Linksys in a bind Posted Nov 25, 2003 4:01 UTC (Tue) by emk (guest, #1128) [Link] Yeah, Linksys appears to be trying fairly hard to do the right thing, but they're caught between the GPL and some federal laws mandating that software radios are closed source (so nobody can tamper with them and cause radio interference, which can be dangerous). The last message from the FSF suggested that everybody's trying to find a reasonable solution.
Examining an attack on the GPL Posted Nov 24, 2003 21:44 UTC (Mon) by fergal (subscriber, #602) [Link] I don't think the license vs contract argument is needed to dispute this and I think even if contracts were involved it's still nonesense. The imaginary buyer never received any code from the imaginary seller under a GPL license and so they couldn't possibly have any GPL rights. The fact that one possible way to distribute the code legitimately is to provide such a license is irrelevant. Figuring out which way to distribute the code is a matter between the original author and the seller and is none of the buyer's business. Yes it may impact the buyer in the future at which point they may be able to sue the seller for something but depending on how the dispute is resolved, it may never impact them at all. If this doesn't make sense yet, consider the following: Nastysoft takes GPL code written by uberhacker RNB, includes it in their software and sells it to the general public with a clickwrap license. RNB finds out what happened and fights it out with Nastysoft who finally agree to buy a license from RNB for his code for a hefty fee. They continue to seel it to the general public as before. That's it, the general public don't get to say "hey when we bought your software you didn't have that agreement with RNB so give us your source code". They never had a right to the source code because they never received the product with a GPL license.
Examining an attack on the GPL Posted Nov 25, 2003 10:08 UTC (Tue) by james (subscriber, #1325) [Link] Well... They still get RNB's code under the GPL (from somewhere else, if necessary). It's just that the NastySoft-owned code was never GPLed.
James.
Lawyers Posted Nov 24, 2003 22:09 UTC (Mon) by jamienk (guest, #1144) [Link] This article makes it seem like Eben Moglen is a better lawyer than Steve Henry. Steve Henry, you need to learn how to read more thoroughly and analyze things more clearly. You reflect poorly on Wolf, Greenfield & Sacks, P.C.
Lawyers Posted Nov 25, 2003 3:45 UTC (Tue) by emk (guest, #1128) [Link] Again, Moglen is a rather above-average lawyer in these matters--a former Supreme Clerk, a respected law profressor, and the guy doing the bulk of the work on GPLv3. He's a good egg, but not somebody to screw with.
Aha! Posted Nov 25, 2003 0:28 UTC (Tue) by jre (guest, #2807) [Link] After circling this issue a few times, I did find the definitive comment, thanks to Groklaw's quote database:"The GPL requires the intentional act of the legal copyright holder to affirmatively and knowingly donate the source code to the GPL . . . You can't inadvertently GPL your code." Guess who actually seems to have understood one thing about the GPL?
Examining an attack on the GPL Posted Nov 25, 2003 1:54 UTC (Tue) by fozzy (guest, #7022) [Link] In all the discussion so far one issue has been overlooked. Why has Steve Henry felt the need issue this press release? Debates on the minutae of the GPL are good to know, but the bit I find curious is what motivates a Law Firm to decide to put out such a release.Follow the money?
Why the release? Posted Nov 25, 2003 14:11 UTC (Tue) by corbet (editor, #1) [Link] "Why has Steve Henry felt the need issue this press release?"I did ask him that, actually, his response was:
"Firstly, the press release went out only because the topic is timely and our agent thought there would be interest in it." They put it out because they thought it might scare up some business.
Examining an attack on the GPL <-- Payed only Content?? Posted Nov 25, 2003 14:26 UTC (Tue) by stock (guest, #5849) [Link] such a important issue to put only under Payed For Content?
Say I use some GPL code... Posted Nov 25, 2003 16:06 UTC (Tue) by melevittfl (subscriber, #5409) [Link] You know, I'm so sick of anti-GPL lawyers, journalists, and business types all starting their arguments with that phrase.If you force them to clarify with the words "So, you're saying, if you commit a crime by infringing the copyright work you don't own..." I wonder how many would really want to hold that position. Yes. You commit a crime, you have to pay the price. Why is that so hard for these people to understand. They must be soft of crime.
Say I use some GPL code... Posted Nov 25, 2003 17:03 UTC (Tue) by andrel (subscriber, #5166) [Link] Henry is saying <<look, don't include GPLed source in your app if you want to release it under a proprietary license>>. This is something the free software community agrees with! How does a lawyer saying <<don't do something illegal>> make him anti-GPL and soft on crime?
Examining an attack on the GPL Posted Dec 10, 2003 6:52 UTC (Wed) by jariep (guest, #17711) [Link] The following is excerpted from an article and a postArticle Title:SCO to Expand It's Lawsuit Beyond Linux Post Title: SCO: GPL threatens $229B software market
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