mainframe exception
mainframe exception
Posted Mar 29, 2007 5:59 UTC (Thu) by dlang (guest, #313)In reply to: mainframe exception by rfunk
Parent article: The third GPLv3 draft
so how long before people start requireing you to waive your rights to arbatrary sections of the GPL as a condition of selling the product to you?
Posted Mar 30, 2007 16:38 UTC (Fri)
by sbergman27 (guest, #10767)
[Link] (5 responses)
The user's right to use the code comes from the same source.
The end user has no right to waive anything in the copyright holder's license.
Posted Mar 30, 2007 21:14 UTC (Fri)
by giraffedata (guest, #1954)
[Link] (4 responses)
The end user has no right to waive anything in the copyright holder's license.
We're talking about the license from the copyright holder hypothetically saying, "unless the recipient waives those rights."
And giving that sort of freedom to the recipient means stating the rights at all is a waste of paper and there is no GPL.
Posted Mar 31, 2007 14:38 UTC (Sat)
by sepreece (guest, #19270)
[Link] (3 responses)
Now, the GPL has additional clauses that attempt to make it harder for the distributer to offer you such a deal. I think it's a wide-open question whether that aspect of the GPL would hold up in court. I'm not even sure how it would get to court, unless a distributor penalized a customer for exercising GPL rights after agreeing not to do so. Courts tend to give people a lot of scope to make contracts. [IANAL]
Posted Mar 31, 2007 17:25 UTC (Sat)
by giraffedata (guest, #1954)
[Link] (2 responses)
Yes, but once she does, the license no longer exists, so the distributor can't give her the code, so the right effectively doesn't exist.
That isn't just a minor aspect of GPL -- it's the essence of GPL. If such a license condition is not enforceable, there is no GPL; everyone can just use BSD.
Though I'm not a copyright lawyer, I remember when GPL was new some people arguing that such conditions are not enforceable, much like many contract terms are not (e.g. an employee can't agree not to work for anyone else in the field for the rest of his life). I have not heard that argument in years, and of all the open source copyright disputes with all the IP attorneys involved, I can't think of one where the distributor argued that his recipient traded away his GPL rights.
So I'm going with the idea that GPL works.
Yeah, that's one way, and perfectly expectable. A more direct way would be where rather than penalize the customer, the distributor just refused to cooperate. E.g. customer asks for the key to make his router run his modifications, and Linksys says, "you agreed when you bought the router you couldn't have one," and the customer asks a court to compel Linksys to give up the key anyhow. (And assuming Linksys wins, Harald Welte points out that he gave Linksys permission to distribute his code in the router on the condition that Linksys make the keys available to every customer, and therefore asks a court to award him damages from Linksys for copyright infringement).
Posted Mar 31, 2007 20:41 UTC (Sat)
by sepreece (guest, #19270)
[Link] (1 responses)
No, the license is granted to the distributor, not the end user (though the end user gets it, too). The end user's behavior cannot affect the distributor's right to distribute and once the software has been conveyed under that license, the end user has a right to use the software as long as she does not violate the terms of the license, which yielding her rights would not do.
Again, imagine the case where the consumer buys the phone, with GPLed software and then, *after* the conveying of the software in the phone, the user separately contracts with a third party for cellular service on the phone tied to a particular version of the software. The GPL cannot affect whether such a contract is possible or enforceable.
I don't think the example you present would occur. The customer could have the keys needed to modify the software, but as soon as she installed a new version the service contract would terminate service under the terms of the service contract.
Posted Mar 31, 2007 22:49 UTC (Sat)
by giraffedata (guest, #1954)
[Link]
Ah, but it's not the end user's behavior after the software has been conveyed (technically, after the copy has been made). It's the distributor's behavior as he makes the copy: He fails to make an irrevocable promise to the end user to make keys available.
That the distributor didn't make the promise because the end user asked him not to is irrelevant.
I believe we were talking about what's legally possible and what GPL proponents want to prevent, so it's about what could occur, not what would. If no distributor would do that, there's no need for any key language in GPL, and probably not much need for keys.
OK, then, aside from the legal question, would a distributor do
what I proposed (sell a router without keys needed to modify the software),
when he could do just what you say instead?
I see great interest among distributors in doing it my way. Tivo could simply say if you modify the box, your warranty and any service contract is void. It could even put some kind of seal on it to keep you from cheating. But it doesn't. It engineers the box to make it impossible for you to modify it. Many other embedded device manufactures do that too.
I can think of several reasons a manufacturer might not to want the user to modify the box at all. But that's straying too far from this "can a recipient waive his GPL rights?" topic.
Wouldn't work. The license to distribute the code comes from the copyright holder.mainframe exception
waiving of GPL rights
The user's right to use the code comes from the same source.
The user arguably has a right under contract law to waive any right granted to her by the license. The license doesn't require you to exercise your rights, it simply offers them to you.waiving of GPL rights
waiving of GPL rights
The user arguably has a right under contract law to waive any right granted to her by the license.
the GPL has additional clauses that attempt to make it harder for the distributer to offer you such a deal. I think it's a wide-open question whether that aspect of the GPL would hold up in court.
I'm not even sure how it would get to court, unless a distributor penalized a customer for exercising GPL rights after agreeing not to do so.
"but once she does, the license no longer exists,"waiving of GPL rights
waiving of GPL rights
The end user's behavior cannot affect the distributor's right to distribute and once the software has been conveyed under that license,
I don't think the example you present would occur.
The customer could have the keys needed to modify the software, but as soon as she
installed a new version the service contract would terminate service
under the terms of the service contract.