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The kernel and BitKeeper part ways

The kernel and BitKeeper part ways

Posted Apr 7, 2005 6:33 UTC (Thu) by massimiliano (subscriber, #3048)
In reply to: The kernel and BitKeeper part ways by allesfresser
Parent article: The kernel and BitKeeper part ways

Um, excuse me, but I simply refuse to allow good people to be called "bad apples" because they refuse to use closed-source software.

Well, IANLMcV, but IMHO he called "bad apples" those who instead of refusing to use the software, decided to break the license.

Now, I know "bad apple" sounds like name calling, but how would you define a community member that breaks a license?

The history of the BitKeeper "free" license is impressive: from almost OSI approved (source code provided, you must just keep the logging feature), to closed binary, to "don't work against us"... every change was the answer to somebody that didn't respect the previous license version.

So I really think that if nobody had broken the license[s], we would not be at this point now. And the whole community could still benefit from a "mostly free" BitKeeper (remember, the 1st license was almost OSI approved, you really had all the code!).


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The kernel and BitKeeper part ways

Posted Apr 7, 2005 7:09 UTC (Thu) by khim (subscriber, #9252) [Link]

Well, IANLMcV, but IMHO he called "bad apples" those who instead of refusing to use the software, decided to break the license.

Clarification: they decided to ignore illegal and thus meaningless clause in license (this exact part is uneforceable in a lot of countries - and by good reason).

The kernel and BitKeeper part ways

Posted Apr 7, 2005 8:12 UTC (Thu) by Xman (guest, #10620) [Link]

Clarification: they decided to ignore illegal and thus meaningless clause in license (this exact part is uneforceable in a lot of countries - and by good reason).

Take a look at the license, if that clause is illegal then you throw out the baby with the bathwater: you don't have a license for the software.

In general the "it's unenforceable in a lot of countries" angle is silly. First, the relevant bit is what is enforceable in the relevant jurisdiction. Secondly, how would you feel about someone violating the GPL on the same principle?

The kernel and BitKeeper part ways

Posted Apr 7, 2005 10:41 UTC (Thu) by kleptog (subscriber, #1183) [Link]

Actually, a lot of contracts state something like: "if a particular clause is illegal where you are, then it doesn't apply to you". Precisely because of the baby/bathwater effect.

Say you sell a product somewhere in the world and the law changes there to make one of your clauses invalid. Without a clause such as the one above, your *entire* licence has been cancelled and is no longer binding. Most people would prefer to have some form of binding licence that does whatever is legal, than no licence at all.

I mean, would Microsft prefer to have their entire EULA killed because the reverse engineering clause was ruled invalid. No way, they'd like any and all the other clauses enforced to the fullest extent.

The kernel and BitKeeper part ways

Posted Apr 7, 2005 20:15 UTC (Thu) by Xman (guest, #10620) [Link]

Yes, a lot of contracts do state something like that. Some jurisdictions make it impossible to impose a no reverse engineering clause. That's really nice to know, but we're talking about a specific situation here.

I fully support a developer who chooses not to accept the BitKeeper license and therefore doesn't use the software, and frankly I suspect Larry would too. It's another matter entirely to accept the license in bad faith as demonstrated in this case. In pretty much any jurisdiction that would qualify as fraud.

There are ways to fight for freedom that don't involve that kind of behavior, and we ought to encourage them and discourage bad practices.

The kernel and BitKeeper part ways

Posted Apr 7, 2005 21:47 UTC (Thu) by ksmathers (guest, #2353) [Link]

The developer in question didn't accept the BK license or use BK as far as I know. The license violation, as far as it went, was directed at OSDL for employing a developer who, on the side, worked on a source control system. OSDL refused to get rid of the developer, so Larry terminated the license to OSDL.

Should OSDL have complied? Essentially Larry was dictating who OSDL could and could not employ, not on the basis of work actually paid for by OSDL, but on work done on the side. Larry argued that it was a violation of the license, and he has the right to control his own software, so I suppose it was. Still, I think it would cripple OSDL if due to license restrictions they could not employ relevant developers.

The kernel and BitKeeper part ways

Posted Apr 19, 2005 4:31 UTC (Tue) by beoba (guest, #16942) [Link]

"..and he has the right to control his own software.."

His software was not being modified.

If I view the HTML source to this site, am I hurting the HTTP server that sent it?

The kernel and BitKeeper part ways

Posted Apr 8, 2005 10:38 UTC (Fri) by daniel (guest, #3181) [Link]

"I fully support a developer who chooses not to accept the BitKeeper license and therefore doesn't use the software, and frankly I suspect Larry would too. It's another matter entirely to accept the license in bad faith as demonstrated in this case. In pretty much any jurisdiction that would qualify as fraud."

Don't be ridiculous. You are trying to call reverse engineering a) immoral and b) illegal. When you know perfectly well that it is neither, when done for the purpose of interoperability. Which is the case here.

There is a reason why reverse engineering is legal: it helps keep people from gaming the system.

The kernel and BitKeeper part ways

Posted Apr 8, 2005 21:22 UTC (Fri) by Xman (guest, #10620) [Link]

You are trying to call reverse engineering a) immoral and b) illegal.

Please try not to put words into my mouth. You got this from a quote which didn't mention reverse engineering. Indeed, the implication of what I was saying (and which I've stated more explicitly in other comments on this thread) was that I had no problem with a developer reverse engineering BitKeeper if they didn't accept the license.

I did suggest that accepting a license in bad faith is fraud, and I guess that's where you got the immoral and illegal from. I'm guessing you are throwing in with those who feel anti-reverse engineering license clauses shouldn't be valid, which is how that got in to it. Check the case history. You'll find that reverse engineering is not legal when it involved the breach of an implicit or explicit agreement between the parties involved or if improper means such as deceit are used to obtain the secret. The legal debate is about whether EULA's should be enforceable (UCITA clarifies that they are, but it still needs to be tested more in court), but if you like the GPL, you don't want to go down that path.

Now, if the developer in question accepted the license in bad faith and lied when explicitly asked to comply with the license, then that very strongly qualifies as illegal, and I'd be okay with throwing in immoral. If they didn't, then they aren't the "bad apple" Larry is suggesting they are. If you think it is legal and moral, then it follows that someone who accepted the GPL in bad faith, and lied when explicitly asked to comply with the GPL is also acting legally and morally. I for one, can't abide by that, and I'd be shocked if I was alone on that.

The kernel and BitKeeper part ways

Posted Apr 14, 2005 11:49 UTC (Thu) by forthy (guest, #1525) [Link]

I did suggest that accepting a license in bad faith is fraud, and I guess that's where you got the immoral and illegal from.

On the other hand, making a license which contains stuff that's not enforcible, is also immoral and illegal. That's why contracts that contain such stuff are not enforcible, and any good contract contains a clause that makes the contract valid even though (removing the "bad apples" in the contract).

Further note that when you get a legal copy of a software without contract/license, you still can legally use, reverse engineer, patch, and resell that software (given that you don't keep a copy - that's basic copyright stuff). If you obtain the software from the copyright holder, it is a "legal copy". That's why any EULA or other license absolutely should contain the phrase that no matter what rubbish there's written in it, the valid clauses still stay valid, because otherwise, the customer has a much better position.

In the end, I'm very happy that this BitKeeper stuff happend as it did. I didn't understand why Linus didn't use any source management at all for a long time (even though in the beginning, CVS would have been completely sufficient), and any free tool he had used long enough would have scaled into what he needs now. Now, we've just 10 years lost (for the first 5 years of Linux), and have to play fast catch-up. The result will probably be two or three free distributed source repository systems which are all capable to do more than we ordinary users ever want. And no one ever again will depend important free software work on a non-free software.

Note: I usually tell people about contract clauses I'm going to ignore (if there's a general "ignore the rubbish" clause), or that signing the contract is a waste of time (when there's not). In the latter case, my response to such a contract will be rather rude.

The kernel and BitKeeper part ways

Posted Apr 9, 2005 9:37 UTC (Sat) by daniel (guest, #3181) [Link]

if the developer in question accepted the license in bad faith and lied when explicitly asked to comply with the license, then that very strongly qualifies as illegal, and I'd be okay with throwing in immoral. If they didn't, then they aren't the "bad apple" Larry is suggesting they are. If you think it is legal and moral, then it follows that someone who accepted the GPL in bad faith, and lied when explicitly asked to comply with the GPL is also acting legally and morally. I for one, can't abide by that, and I'd be shocked if I was alone on that.

Your screed is peppered with big fat ifs that turn it into meaningless speculation and innuendo.

The kernel and BitKeeper part ways

Posted Apr 17, 2005 13:58 UTC (Sun) by Ross (guest, #4065) [Link]

But was the license actually accepted by this individual or is this just
one of the "you can't work for a company which has SCM products" and "you
can't employ people who work on SCM products" parts of the license?

It's hard to hold third parties to terms in an agreement made without them,
and employment is a very tricky area. You can't just fire people because of
a EULA.

The kernel and BitKeeper part ways

Posted Apr 7, 2005 10:43 UTC (Thu) by rjw (guest, #10415) [Link]

If you have received software legally, you do not need a licence to use it, including reverse engineering. There is no requirement to accept an EULA. Please learn what copyright law is.

The kernel and BitKeeper part ways

Posted Apr 7, 2005 12:43 UTC (Thu) by xanni (subscriber, #361) [Link]

Unfortunately this is no longer the case in Australia. After signing the so-called "Free Trade Agreement" with the USA, courts in Australia now interpret copying into RAM as "fixing in a tangible medium", which means that loading a program or data into memory is subject to copyright law and must be authorised by the copyright holder.

The kernel and BitKeeper part ways

Posted Apr 7, 2005 15:27 UTC (Thu) by massimiliano (subscriber, #3048) [Link]

OK, but my main point was that the first license was almost OSI approved. It didn't even mention reverse engineering, you had all the source code! You were only required to make it pass all regression tests after modifocations, including sending the changelog to the public server.

It has been when somebody abused of this license that we took the slippery slope that in the end brought us here...

The kernel and BitKeeper part ways

Posted Apr 7, 2005 20:04 UTC (Thu) by Xman (guest, #10620) [Link]

Keep in mind open source software is frequently licensed through EULA's as well. The "legal" way that this particular person received BitKeeper, was through a EULA which included some restrictions on the use of the product. If the EULA is illegal, then this particular person had no legal means to obtain BitKeeper, which means they violated BitMover's copyrights in order to get the software. This is the same principle which protects the GPL.

licenses, contracts, and copyrights

Posted Apr 7, 2005 21:45 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

I'd like to clarify some of the legal issues that have been misstated in this thread.

First, there are two entirely separate issues here: licensing under copyright law and contracts. You can't "break" a license, but you can break a contract. A license is never "binding" on a licensee, but a contract is binding on both parties.

You need a license from the copyright owner to copy something. You don't need to execute a contract with him. You don't need a license to use a copy the copyright owner gave you.

I'll take Xman's word for it that the mystery developer who spoiled it all got his copy from BitMover under a EULA (which is a contract) and assume that in the contract he promised not to reverse engineer. So copyright law and licenses have nothing to do with the controversy.

As for severability, if there's a law making the reverse engineering clause unenforceable, that law could easily also nullify any severability or backup clause, so we just don't know. Example: California has a law that says a loan contract of a certain type that states an interest rate of >10% is enforced as if it says 0%. The rest of the contract still applies. But if there's a clause that says if the interest rate is found illegal, then the loan must be repaid immediately, that clause gets wiped out by the same law. When people write laws to forbid people from agreeing to certain things, they don't mess around.

licenses, contracts, and copyrights

Posted Apr 8, 2005 0:18 UTC (Fri) by hppnq (guest, #14462) [Link]

Thanks, giraffedata! Some people should have this tattooed on their foreheads.

Reversed, of course.

The kernel and BitKeeper part ways

Posted Apr 13, 2005 8:24 UTC (Wed) by njhurst (guest, #6022) [Link]

As far as I can see, Tridge hasn't touched bitkeeper, so even the tenuous shrinkthrough licence laws don't apply. I don't understand why people keep missing this: Tridge never accepted the bk licence, so nothing in it has any relevance to him. The only issue is whether he should have reverse engineered something that was gifted to the community, knowing LM's propensity for dummy spitting. Considering the usefulness of samba, I think Tridge made a reasonable choice.

The kernel and BitKeeper part ways

Posted Apr 7, 2005 8:08 UTC (Thu) by ronaldcole (subscriber, #1462) [Link]

> how would you define a community member that breaks a license?

Oh, I don't know... defendant?

The kernel and BitKeeper part ways

Posted Apr 7, 2005 9:34 UTC (Thu) by dan_b (guest, #22105) [Link]

every change was the answer to somebody that didn't respect the previous license version
And has the GPL changed to become more restrictive every time someone didn't respect the previous version? I think it's up to version 2 now, so if so I guess that means only one person has ever violated its terms.

Regardless of who was "at fault" for the licence changes, this does highlight the desirability of using software with licences that don't change. Whether it's fair or not, I would choose to avoid relying on software if my ability to use it can be withdrawn because of the action of some third party unrelated either to me or to the vendor.

"If one of you doesn't own up, you're all staying behind after class". Is that a good situation to be placed in?

Almost is not enough

Posted Apr 7, 2005 19:00 UTC (Thu) by GreyWizard (guest, #1026) [Link]

The difference between almost free and free is an important one, and the community is much better off without an almost free BitKeeper. The kernel development team will soon be providing feedback, patches and attention to one of the completely free source control systems, which will benefit everyone -- even people BitMover views as a competitive threat. We'll never know what would have happened had Torvalds chosen one of these technically inferior projects in the first place, but I find it hard to believe that a thousand or so sharp minds and ample funding from OSDL member organizations would have been unable to produce a kernel of similar quality to the one we have today. Either the kernel hackers would have worked around the limitations of the chosen tool, improved the tool or written their own from scratch -- there are examples of each approach in response to other problems in this process.

Assuming that the free BitKeeper product is being withdrawn because someone violated the terms of the license (and that isn't entirely clear) BitMover is within its rights to do this and it even seems like the best business decision they could make under the circumstances. Still, many people who have respected the license are now losing something they have come to depend on due to the actions of "bad apples" they cannot control. This is the return on their investment in a "mostly free" tool.

The kernel and BitKeeper part ways

Posted Apr 7, 2005 22:36 UTC (Thu) by mbp (guest, #2737) [Link]

The question is whether any did actually accept the licence and then break it. From what has been written to date that doesn't seem to be true.


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