HOWTO: Pick an open source license (part 1) (ZDNet) [LWN.net]

Here's a ZDNet blog entry with advice on how to choose a license for a project. "Don't take this choice unless you really mean it. Many people use GPL without realizing the implications or understanding the other options, and thus lock the code away from a whole segment of potential users, so please read the rest of the choices first."

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HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 14, 2006 21:05 UTC (Wed) by kornak (guest, #17589) [Link] (4 responses)

quote from article:

"GPL, a restrictive "free (libre) software" license that actively promotes user choice at the expense of direct commercial interests. For the most part, GPL'd code can only be used with other GPL'd code, and in fact if you start using some GPL code in a program you wrote then you either have to release your program under GPL as well or quit using that code. This is why GPL is sometimes described as "viral". Examples: Emacs, Linux kernel."

Seems rather misleading. "Restrictive" and "Free"?! Isn't that a
contradiction? GPL code can only be used with other GPL code?
Never mind the re-hashing of the "viral" rhetoric!

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 15, 2006 0:55 UTC (Thu) by maney (subscriber, #12630) [Link] (3 responses)

Nope, that part's exactly right - the insane greatness of the GPL is that it imposes some restrictions on the use of the code in order to keep it free. The author also seems to have the other end pretty well identified: the BSD type license (at least without the problematical clauses that have sometimes been attached) is about as no-strings as it gets, but doesn't even pretend to preserve the code's freeness down the line.

Given that he's writing, I believe, for an audience that is mostly unfamiliar with free and open-source software and its licenses, his cautions about the GPL are more blunt than prejudicial. That audience is, on the record, likely to get in trouble if they use the GPL without carefully considering what it may oblige them to do down the road. OTOH, you could say that about *any* license they might use without proper consideration (and probably competent legal advice - if there's a serious flaw in this article it's that he didn't beat that drum).

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 15, 2006 13:40 UTC (Thu) by zotz (guest, #26117) [Link]

["GPL, a restrictive "free (libre) software" license that actively promotes user choice at the expense of direct commercial interests.]

GPL, a "free (libre) software" license that actively protects and promotes user freedom.

Not choice, not at the expense of anything. Of course, I could be wrong.

[For the most part, GPL'd code can only be used with other GPL'd code.]

Nope. There are many other licenses that are GPL compatible. GPL code does need to stay GPL code though.

[and in fact if you start using some GPL code in a program you wrote then you either have to release your program under GPL as well or quit using that code.]

Nope, seriously wrong. Use all you want, just don't distribute. How long will it take for this distinction to be stated clearly in discussions?

[This is why GPL is sometimes described as "viral".]

I doubt this. In my opinion, the reason the GPL is sometimes described as "viral" is because "viral" has negative connotations and the persons making the statement want others to think of the GPL in a negative light.

all the best,

drew

response to maney...

Posted Jun 15, 2006 15:25 UTC (Thu) by kornak (guest, #17589) [Link] (1 responses)

"Nope, that part's exactly right - the insane greatness of the GPL is that it imposes some restrictions..."

Strange, I thought I could use GPL code in anything I wanted without
restriction. How am I restricted? I understand that if I use the code
in a commercial product I am rewuired to share the code, but, do you
comsider this restrictive somehow? It seems to me that perpetuates the
freedom rather than restricting it.

response to maney...

Posted Jun 15, 2006 17:09 UTC (Thu) by markhb (guest, #1003) [Link]

What's restricted is your ability as a software author to use the GPL'd code in a program or linked suite of programs that are distributed under a license that isn't the GPL or very similar to the GPL. Contrast with a paid license for a proprietary development library that allows you to distribute the library with your product in compiled binary form under any terms you wish, but that restricts you from distributing the source code (or at least the source code and headers for the proprietary library).

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 14, 2006 22:51 UTC (Wed) by zooko (guest, #2589) [Link]

http://zooko.com/license_quick_ref.html

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 14, 2006 23:19 UTC (Wed) by dmarti (subscriber, #11625) [Link] (4 responses)

Public domain is not actually an option.

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 15, 2006 16:27 UTC (Thu) by lysse (guest, #3190) [Link] (3 responses)

Firstly, Rosen's argument makes no mention of promissory estoppel, which would be the obvious first line of challenge to someone trying to reclaim a piece of work from the public domain.

Secondly, he argues "there is no mechanism by which the renunciation of copyright is permitted". But there is also no mechanism by which such a renunciation is prohibited - whereas I suspect that his comparison (not dumping personal property on a public highway) does have such an explicit counter-decree. The silence raises a key point - is the law of the United States one in which everything not explicitly permitted is prohibited, or one in which everything not explicitly prohibited is permitted? The Constitution would suggest that it is the latter, in which case the lack of an existing prohibition on the renunciation of copyright would be strong grounds for its allowability - and, if correctly witnessed, its enforceability.

Thirdly, he is in the employ of the Open Source Institute; as such, he has, perhaps, a vested interest in discouraging the use of the public domain. However, I'd rather see a little bit of legal backup for his argument; has there been a case where a reclamation of renounced copyright has been either upheld or defeated by the courts?

(Of course, I'm not a lawyer - I'm only a law student, and then only in the UK; and none of this in any way constitutes advice, or anything more than my personal, underinformed opinion.)

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 15, 2006 22:35 UTC (Thu) by man_ls (guest, #15091) [Link] (2 responses)

If you study law you will know that the principle of legality (in Latin: Nulla poena sine lege, or "No penalty without law") is a basic pillar in all modern democratic penal codes. Something cannot be forbidden if there is no law saying it is; and the law must be specific about it.

That is why sometimes people get out of jail after doing some novel stuff (say, creating a zombie cyborg to murder people) because there is still no law condemning it, as bad as it may seem. And the principle affects civil law too: it is why in legal papers you often see a lot of boring enumerations, for instance in this copyright notice:

you may not copy (except to the extent required in order to use this website in accordance with the Legal Notices), store in any medium (including in any other website), distribute, transmit, re-transmit, broadcast, modify, or otherwise make available or communicate to the public any part of this website or systematically extract material from this website or any document available through it or in any other way exploit commercially all or any part of this website or any document available through it without our prior written permission.

Lawyers normally want to cover all the bases, and do so explicitly, because what is not in, is out. If tomorrow we learn to beam web pages to each other using just our brain waves, these guys want to charge you for it.

Therefore, in the United States as everywhere else, what is not explicitly prohibited is permitted.

Stupid disclaimer: MFIAL (my father is a lawyer). Free legal advice over the internet sucks.

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 16, 2006 3:57 UTC (Fri) by nlucas (subscriber, #33793) [Link] (1 responses)

At least in my country (Portugal), there is a thing called "the spirit of the law" that can be used to cover cases not explicitly in the paper.
It's up to the courts to judge if it applies or not, off course.

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 17, 2006 11:18 UTC (Sat) by lysse (guest, #3190) [Link]

That applies in the UK too; the judiciary have the power to take a reasonably broad approach to the interpretation of legislation, and may depart from strict literalism if they feel it necessary to do so, which can have the effect of creating a "penalty without [explicit] law".

Moreover, the UK has evolved more or less continuously from a dictatorial monarchy; we're still all subjects of the Crown, and hence our rights are (even post-HRA) only those which have been granted to us by the Crown (ie by her government). One might argue about the extent of the UK's democracy, but it would appear that man_ls's contention (that all modern democratic societies are inherently permissive) is sadly not as true as any of us would wish it to be.

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 15, 2006 0:14 UTC (Thu) by JoeF (guest, #4486) [Link]

Hmm, the author doesn't seem to know all that much about copyright...
In the US at least, copyright is automatic, and a statement like "Copyright the code (paste copyright notices all over it)" is meaningless. Pretty much any written expression, be it code, or a post like this one, is copyrighted by the author, if there is a copyright notice on it or not.
http://en.wikipedia.org/wiki/Public_domain

uninformed fuddy article

Posted Jun 15, 2006 8:52 UTC (Thu) by ekj (guest, #1524) [Link] (4 responses)

Unfortunately, this article is both uninformed and fuddy. A few examples:

Nobody but you can say how your code can be used

Untrue. Copyrigth deals with the rigth to make copies. (and have public performances) It puts no restrictions on use whatsoever. If you sell me a copy of a copyrigthed program, I can do whatever I want with it. Thus most proprietary companies don't do that, they try to sell you a license to use the program on certain terms instead. If this actually sticks, especially for shrink-wrap or if the courts would rule that in actual fact it's a sale, is anybodys guess.

nobody but you can even use your code unless you explicitly give them permission.

Untrue. Anyone who legally obtains a copy of your program can use that code, without any sort of explicit permission from you for it.

Also, the special warning against GPL, claiming that many use it without understanding it, and that it is a 'restrictive' license is unsubstantiated and FUDDY. Furthermore it mentions not at all the *benefits* of selecting the GPL or a compatible license. The benefit of gaining compatibility with the large body of existing gpl-licensed code is large.

Overall, a unbalanced, uninformed article. GPL ain't the rigth choise all of the time. But this article will not help you make an informed choice.

uninformed fuddy article

Posted Jun 15, 2006 13:40 UTC (Thu) by jhardin (guest, #3297) [Link] (3 responses)

> Copyrigth
> rigth
> copyrigthed

I'm getting a queasy feeling trying to figure out how you developed *that* particular finger-macro... :)

>> nobody but you can even use your code unless you explicitly give them
>> permission.
>
> Untrue. Anyone who legally obtains a copy of your program can use that
> code, without any sort of explicit permission from you for it.

I think you're negating your own argument here. The terms of the license determine how you may legally obtain and possess a copy of the program. If you don't want someone to use your code to, for example, run a website that promotes Nazism, you could put a clause in the license that says a license is not granted for that use, and you would have a legal argument to use against anyone who is using it for that. Witness the terms I have seen in several MS application licenses about license being granted for use only on genuine and properly-licensed Microsoft Operating Systems, which legally excludes running it on WINE.

Granted, actually *preventing* someone from doing something against the license is a different kettle of fish than just putting in a restriction.

uninformed fuddy article

Posted Jun 15, 2006 13:54 UTC (Thu) by arcticwolf (guest, #8341) [Link] (2 responses)

IANAL, but I think you're wrong. Here's my take on it:

The GPL (like any license) is not a contract. The only thing that the license deals with (and *can* deal with in a binding fashion) is copyright-related questions.

Now, copyright has a "default deny" policy where (with some narrow exceptions) you are not allowed to do certain things (like copying the work in question) without permission from the copyright holder. The GPL, like any other license, thus does not restrict what you can do; rather, it gives you additional freedoms not automatically granted by copyright. You're free to accept the license or not, but if you don't, you only have the rights given to you by default by copyright law, which usually means you have no rights at all.

It's important to keep this in mind: a license can not put *additional* restrictions on what you can and cannot do, and this goes both for copyright-related questions and ones that are not. A license cannot take away your fair use rights, for example, and it also cannot dictate things that are wholly outside of the realm of copyright, such as what you use the software for.

That, BTW, is why EULAs are called "license *agreements*" - they pretend to be contracts, as opposed to licenses, as contracts are of course not subject to these restrictions.

(Personally, I believe that the doctrine of first sale means that such contracts are meaningless, BTW; if I buy Photoshop for a thousand bucks, I have paid for the right to use the software as I see fit, and I do not need any further blessing from Adobe to do so. As such, an EULA, whether it's shrink-wrap or not, is automatically meaningless; and what's more, it *cannot* even be a contract (so I also cannot agree to it), simply because a contract has to be a quid-pro-quo kind of thing. I already have the right to use Photoshop when I buy it, though, due to my existing contract with the store where I bought it, so Adobe is not offering me anything.)

But again, IANAL, so please disregard everything I just said.

uninformed fuddy article

Posted Jun 15, 2006 21:58 UTC (Thu) by zotz (guest, #26117) [Link] (1 responses)

I think the theory under which EULAs try to work is that in order to USE the software which you bought, you must COPY it. Under the theory, you are not allowed to make those copies without the copyright holder's permission. Hence, your need to agree to their terms to be allowed to make the copies necessary to actually use what you own.

I think that is the theory.

What copies? Well, from the CD to the hard disk when installing for one. And from the hard disk to RAM when running for another.

Does someone else have more detailed and /or accurate information along these lines?

all the best,

drew

uninformed fuddy article

Posted Jun 18, 2006 0:23 UTC (Sun) by khim (subscriber, #9252) [Link]

Under the theory, you are not allowed to make those copies without the copyright holder's permission.

If the contract you've signed with store before opening the box is not enough for it to work - then store had no right to sell you this box at all. It's defective and must be replaced. Plain and simple.

Hence, your need to agree to their terms to be allowed to make the copies necessary to actually use what you own.

You can consider it non-critical defect in bought software. "Sure, when I first run it it showed some gibberish and I was forced to click it in different places on the screen to make it work - but since in the end it worked I decided it's not critical defect". Of course if EULA is presented on site before you actually paying money or download something - it's different story. But if you signed contract in the store - it's too late to add to it.