GPL and private contracts

Posted Mar 23, 2007 22:48 UTC (Fri) by giraffedata (guest, #1954)
In reply to: The Torvalds Transcript (InformationWeek) by mmarq
Parent article: The Torvalds Transcript (InformationWeek)

Private contracts are private, and if a customer trusts a vendor with a DRM implementation, that is ok...

No, it's a violation of the license conditions under which the vendor acquired the code. The original author's copyright is violated.

If you have an enforceable promise from your licensee not to avail himself of the "license," then you haven't actually given a license. A condition of GPL is that you give an actual GPL license when you redistribute the code.

That's the weird and rather unique thing about GPL: it interferes with private transactions that don't even involve the copyright owner. It's meant to be a social engineering device, not a commerce tool.

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GPL and private contracts

Posted Mar 23, 2007 22:52 UTC (Fri) by malor (guest, #2973) [Link] (12 responses)

... "it interferes with private transactions that don't even involve the copyright owner." ...

If you're using my code, it involves me. If you want to give my code to someone by loading into a device, that's fine, but the price for doing so is that they get the same rights that you have. You can't lock them out of their hardware, because the hardware is a necessary component to running the software that you licensed from me.

If you don't like that price, you can pay for other code with money.

GPL and private contracts

Posted Mar 23, 2007 23:49 UTC (Fri) by giraffedata (guest, #1954) [Link] (11 responses)

My statement is (for the sake of simplicity) over-broad. One could write pages on what it means for a transaction to "involve" someone else. John Donne said (The Tolling Bell) even the death of a stranger damages you, because you're both part of Mankind.

But the fact remains that the level of involvement you have in a transaction between two people using your code somewhere down the chain is fundamentally different from the kind of involvement most private legal acts (licenses, contracts, deeds, etc.) care about.

How many copyright licenses other than GPL seek to give value to some total stranger down the chain who will give the copyright owner nothing in return for it except the warm feeling of knowing Right has prevailed?

Missing this special quality of GPL is what leads people like the poster above to believe that GPL couldn't possibly stop a recipient from voluntarily giving up his rights (in return for something of value from his distributor).

GPL and private contracts

Posted Mar 24, 2007 1:12 UTC (Sat) by malor (guest, #2973) [Link] (10 responses)

The purpose of the GPL is to keep the code free and open for everyone. No matter where you are in the chain of transfer, you have the same rights and responsibilities that everyone else does. GPLv3 just shuts down some methods of removing rights from downstream recipients.

Anytime you're transferring a copyrighted work, the original creator is 'involved'. You have the right to transfer your only copy of something. You do NOT have the right to copy it and keep a copy for yourself.

With ordinary copyrighted code, you have to pay money for copies; Microsoft is just as 'involved' as a GPL author in that case. Or, you can opt to pay with freedom; you give up some of yours, and you increase the freedom of the transferee. But it's the same fundamental transaction; you are buying the right to use the code.

You do NOT have the right to give someone a copy of Windows without paying for it. By your assertion, Microsoft is 'involving itself' in a 'private transaction' between you and a customer. You can't legally steal Microsoft's code. Why should GPL code be any different?

GPL and private contracts

Posted Mar 24, 2007 2:51 UTC (Sat) by giraffedata (guest, #1954) [Link] (9 responses)

I wouldn't say Microsoft is involved in the transaction per se, but rather that it is involved in the copying that is part of it. And in contrast to the GPL publisher, Microsoft wouldn't care about the details of the transaction -- who paid whom for what. Unlike a sale of Windows from Microsoft to a Microsoft customer, where Microsoft is involved in a whole different way and is deeply interested in the terms of the deal.

I really don't know what battle you're fighting; it sounds like you're defending the use of GPL, but nobody has attacked it.

We agree the copyright owner is always involved. We agree the purpose of offering code under GPL isn't to selfishly protect the author's wealth, but rather to bring about a social goal. We agree that it's perfectly legitimate for a person to offer, and accept, code with GPL restrictions.

The only thing I'm saying, which I don't see how you can disagree with, is that GPL is special (I also used the term "fairly unique") in its effect on downstream copiers.

Maybe I could say, "unlike conventional copyright licenses, GPL interferes in transactions in ways in which the copyright owner doesn't have a material interest."

GPL and private contracts

Posted Mar 24, 2007 13:59 UTC (Sat) by vmole (guest, #111) [Link] (2 responses)

The GPL is special in its effect on downstream copiers because it's very rare for licenses to *allow* downstream copiers.

GPL and private contracts

Posted Mar 24, 2007 17:29 UTC (Sat) by giraffedata (guest, #1954) [Link] (1 responses)

The GPL is special in its effect on downstream copiers because it's very rare for licenses to *allow* downstream copiers.

The license doesn't allow downstream copiers, but the copyright owner does, by issuing additional licenses to them. Same for GPL and non-GPL.

But look at what the "stream" is: The stream is the modification of the software. A writes code; B adds stuff to it and passes it on to C, C does the same to D. With non-GPL, A insists on royalties for the C-D copy, but otherwise A usually doesn't care what the deal between C and D is.

GPL and private contracts

Posted Mar 24, 2007 18:09 UTC (Sat) by malor (guest, #2973) [Link]

> With non-GPL, A insists on royalties for the C-D copy, but otherwise A usually doesn't care what the deal between C and D is.

With commercial code, I've never seen that kind of chain relationship, where B had full rights to become a competitor to A. If it's a value-add chain, where each step adds more stuff, A's not giving up any rights. They insist on being paid at each step of the way, and remain involved and active throughout the chain. If I buy a custom database written on Oracle, Oracle gets paid (a lot!) for the database instance I'm running, and that's above and beyond whatever I pay for the custom database code.

With GPL, A insists on being paid by making sure that all downstream users have the same rights to all code that was added... including, likely, him or herself. The payment terms are "freedom and code" instead of money. B through D voluntarily give up rights in either GPL or non-GPL scenarios. With non-GPL code, they cannot freely make copies and must, generally, pay per running instance. With GPL code, they don't have to pay, but have to give away any improvements they make along with their improved binaries. In general, B through D give up fewer rights under the GPL than they do with regular copyright, but they always give some up.

Commercial A, as recompense, gets money. GPL A probably gets access to downstream code improvements. That's not a GPL requirement, but in practice, that's usually what happens.

Ultimately, there's little difference. Both As are still getting paid. As B through D, you're buying either codebase, you're just paying differently.

As GPL B through D, you're getting a great deal; you can set yourself up as a full competitor to anyone else in the chain. You're not hostage to anyone's code, and in exchange, you can't hold anyone else hostage. It's a pretty sweet deal, overall. It's why the GPL prospers.

TANSTAAFL. If you want good code, you usually have to pay for it. Fortunately, the GPL is not particularly onerous.... unless you intend to enslave your customers instead of serving them.

GPL and private contracts

Posted Mar 24, 2007 16:10 UTC (Sat) by malor (guest, #2973) [Link] (5 responses)

> "Maybe I could say, "unlike conventional copyright licenses, GPL interferes in transactions in ways in which the copyright owner doesn't have a material interest."

No, you can't say that either. As the other poster points out, the copyright owner most emphatically DOES have a material interest in all reproductions of the copyrighted work.

You get the unique ability to reproduce *and modify* the work freely, in exchange for ensuring that everyone downstream from you has the exact same rights that you do.

Again: yes, the GPL changes the nature of the relationship you can have with a customer. If you don't like that, you can pay for code with money, or you can use BSD licensed programs instead. You don't have to accept the GPL if the unique privileges and powerful utilities it offers aren't worth the price. v3 makes the price a little steeper, but I think only irrational people can argue that v2 wouldn't have said exactly the same thing if DRM had existed twenty years ago.

GPL and private contracts

Posted Mar 24, 2007 18:16 UTC (Sat) by giraffedata (guest, #1954) [Link] (4 responses)

Maybe I could say, "unlike conventional copyright licenses, GPL interferes in transactions in ways in which the copyright owner doesn't have a material interest.
No, you can't say that either. As the other poster points out, the copyright owner most emphatically DOES have a material interest in all reproductions of the copyrighted work.

Irrelevant; the quote above doesn't say anything about material interest in the reproduction. It talks about material interest in ways of interfering with a transaction.

You don't have a material interest in whether some stranger gets the source code for some code written by someone else. Through the magic of GPL, you may control it anyway.

And don't try to define "material interest" so that all interests are material. There's a separate term for a reason.

GPL and private contracts

Posted Mar 25, 2007 0:38 UTC (Sun) by malor (guest, #2973) [Link] (3 responses)

> You don't have a material interest in whether some stranger gets the source code for some code written by someone else. Through the magic of GPL, you may control it anyway.

If you are commercial, you have an interest in making sure you get paid for all copies of your code. If you are GPL, you have an interest in making sure anyone that adds to your program honors the license.

Both types of code have a price. One is money, but allows the freedom to keep your code closed. The other is usually low- or no-cost, but denies you freedom to hide your code.

Pay one or the other, your choice.

(or go BSD code, if you prefer.)

GPL and private contracts

Posted Mar 25, 2007 0:53 UTC (Sun) by vonbrand (subscriber, #4458) [Link] (2 responses)

Both types of code have a price. One is money, but allows the freedom to keep your code closed. The other is usually low- or no-cost, but denies you freedom to hide your code.

This is wrong. You can certainly keep your modifications to GPL code secret. If you distribute the modified code, you have to share the source to the changes.

Note that in the case of closed source you don't have the right to distribute anything, not the original version nor your modified one.

GPL and private contracts

Posted Mar 25, 2007 0:57 UTC (Sun) by malor (guest, #2973) [Link] (1 responses)

Yes, this is true, but this particular thread is talking about a chain of people, from A to B to C to D. giraffe seems to be asserting that the GPL is somehow unethical or something in that it 'interferes with' other business relationships, and I'm trying to point that this is the PRICE of using the code, and that it's entirely optional. If you don't like the price, buy commercial code instead.

You give up rights in either case, it's just a matter of which rights fit your particular situation the best.

GPL and private contracts

Posted Mar 25, 2007 1:15 UTC (Sun) by giraffedata (guest, #1954) [Link]

giraffe seems to be asserting that the GPL is somehow unethical or something in that it 'interferes with'

It's "or something," and in particular I'm asserting that GPL is unusual among copyright licensing schemes. Nothing more. I jumped into this thread when someone made an incorrect statement about what one can do with GPL code, based on reasoning that would be sound for any conventional licensing scheme. I went beyond correcting the particular misstatement to explain you have to use a whole different mindset when looking at what's allowed with GPL code.

The misstatement, IIRC, was that a downstream distributor could make a private deal with his distribuee in which the latter doesn't avail himself of GPL freedoms, and the copyright owner wouldn't have anything to say about it.