GPL does not ask you to give up rights. [LWN.net]

GPL does not ask you to give up rights.

Posted Mar 1, 2011 20:43 UTC (Tue) by dskoll (subscriber, #1630)
In reply to: It's not so simple by jthill
Parent article: Red Hat's "obfuscated" kernel source

The GPL license terms also ask you to give up rights.

That's completely wrong. The GPL grants you rights. If you don't accept the GPL, you have no right to redistribute software it covers. If you do accept the GPL, then you have some rights.

What rights does the GPL ask you to "give up"?

to post comments

GPL does not ask you to give up rights.

Posted Mar 1, 2011 22:06 UTC (Tue) by jthill (subscriber, #56558) [Link] (22 responses)

You have the right to charge a fee for a license to distribute your copyrighted works, for instance. The GPL asks you to give up that right in exchange for distribution rights on any combined work. So long as value received exceeds value surrendered, that's a win — and it's plainly a huge win, nothing exceptionable about it.

To get excruciatingly correct, the license doesn't actually ask people to surrender those rights, it only offers something on condition that they not exercise them. What the GPL does to people who violate its terms is exactly what Red Hat does to people who violate theirs: it terminates their license.

GPL does not ask you to give up rights.

Posted Mar 1, 2011 22:14 UTC (Tue) by dskoll (subscriber, #1630) [Link] (21 responses)

The GPL asks you to give up that right in exchange for distribution rights on any combined work.

Wrong. You give up that right in exchange for distribution rights on any derived work. There's a huge difference between "derived" and "combined".

To get excruciatingly correct, the license doesn't actually ask people to surrender those rights, it only offers something on condition that they not exercise them.

Wrong again. If a copyrighted work gets dropped into your lap, you have no rights whatsoever to redistribute it. So the GPL cannot offer something on condition you "not exercise certain rights" because you don't have any rights not to exercise in the first place! Again: the GPL grants you rights if you obey certain conditions. It does not remove rights.

Red Hat is removing rights. Their kernel patches are works derived from a GPL'd product and therefore anyone receiving the kernel patch has the rights granted under the GPL. Even Red Hat does not dispute that. However, Red Hat is punishing those customers who exercise rights they have already been granted by terminating their support contracts. While that may or may not be legal, it is certainly unethical.

GPL does not ask you to give up rights.

Posted Mar 1, 2011 23:45 UTC (Tue) by jthill (subscriber, #56558) [Link] (20 responses)

You give up that right [...]

So we agree, then, on the substance: the GPL asks you to give up rights, just as Red Hat does. All that's left is discussing how best to describe the details and whether they're fair offers.

Red Hat asks you not, under particular circumstances, to give away their work. The GPL asks you not, under particular circumstances, to charge for distribution rights on your own. Both offer something valuable in return for your not doing what you have a license or even the right to do.

I think if you check you'll see the GPL v2 does not use "combine" at all, the GPL v3 does not use "derive". Either way, I rejected "derived" because I wanted to highlight the continued existence of your own separate interest in the result.

GPL does not ask you to give up rights.

Posted Mar 2, 2011 4:14 UTC (Wed) by JesseW (subscriber, #41816) [Link] (7 responses)

It is important to clarify something here: If you create, let alone distribute, a derivative work without a license from the copyright holder of the work (or works) it is derived from, that is illegal.

You have no right to sell (or even give away) a license for the derived work unless you already possess a license to do the deriving. What the GPL says is that you can have a license to create a derivative work merely by following certain conditions, which do not include payment or notification to anyone, but do include licensing the derivative work under the GPL.

If the derivative work you want to create has components that are not derivative (i.e. that were written only by you), the GPL has nothing to say about them, and puts no restrictions on what you do with them. You are free to sell licenses for them, or do anything else that is legal.

While you do, in some sense, have a "right to charge a fee for a license to distribute your copyrighted works", you have no right to do so without the consent of all the copyright holders for a work. Derivative works have multiple copyright holders, all of whom need to consent before a license can be granted. All the GPL does is clarify the terms in which the other copyright holders will grant their necessary permissions. It takes nothing away from you.

GPL does not ask you to give up rights.

Posted Mar 2, 2011 8:30 UTC (Wed) by jthill (subscriber, #56558) [Link] (6 responses)

If you create, let alone distribute, a derivative work without a license from the copyright holder of the work (or works) it is derived from, that is illegal

Taken at face value, you've just asserted it's illegal to sing in the shower, and to keep scrapbooks. Perhaps if you clarify your clarification it'll also become clear how it's relevant at all in a discussion of the exercise of distribution licenses.

I don't see the value here in insisting that copyright on derived work is on the work as a whole: to the extent that you have copyright on the result, it's due to your contribution. I say po-tay-to, and we're discussing tays.

And when the reason you may not charge for a distribution license on the resulting work is only that the GPL says you may not, claiming that the GPL takes nothing away is at best pure equivocation.

GPL does not ask you to give up rights.

Posted Mar 2, 2011 15:56 UTC (Wed) by JesseW (subscriber, #41816) [Link] (5 responses)

Come on -- you know as well as I what the clarification that makes the examples you listed legal is: Fair use (or fair dealing in other jurisdictions). Leaving aside that little bit of snark, the point is that a derivative work has multiple copyright holders. You don't dispute that.

I'm not sure what "to the extent that you have copyright on the result, it's due to your contribution" even means. What "result" -- the derivative work? What "contribution", exactly? The specific lines of code that were not present before? What about lines that were modified (say by changing a "==" to "!=")? Whose "contribution" are they?

The reason you can't charge for a distribution license on the derivative (not "resulting" -- it's a work derived from the existing work, which you were allowed to derive from (and copy, and distribute, etc.) by following the terms of the GPL) work is that you are not the sole copyright holder for it. If you get the agreement of all the copyright holders, you all can certainly refuse to grant additional licenses without payment.

GPL does not ask you to give up rights.

Posted Mar 2, 2011 23:52 UTC (Wed) by jthill (subscriber, #56558) [Link] (4 responses)

you know as well as I what the clarification that makes the examples you listed legal

If you check back you'll see I didn't ask for a clarification that would explain why those examples are legal. I asked for a clarification that explains how an assertion about requirements on private derivation is relevant in a discussion about exercising licensed public distribution. The rebuke for the gratuitous overreach on private use stands.

I'm not sure what "to the extent that you have copyright on the result, it's due to your contribution" even means.

Well, I kind of took it as read that copyright in GPL'd works is almost entirely due to application of authors' patches, and that reverting an author's changes means that author has no copyright on the resulting work. Patches are contributions in any sense of the word, contributions in other forms are generally also revertible, "contributor" is the word v3 uses, and the exact extent of the changes necessary to excise an author's copyright interest is irrelevant here. That all seemed so obvious it needed no more than acknowledgment.

If you get the agreement of all the copyright holders, you all can certainly refuse to grant additional licenses without payment.

I think you might have missed that that makes my point: with unrestricted copyright authority, one can demand money for a distribution license. Authors employing the GPL ask that you (as they do) not exercise that and other rights in exchange for the GPL's benefits. You have to give up either the rights or the license to get the other.

To finish bringing it back on topic, Red Hat offers timely, warranted service in exchange for your not exercising the GPL the instant you receive it. You have to give up either the right or the service to get the other.

Don't forget that you (as Red Hat does) still get the software courtesy of the GPL, nor that Red Hat also makes sure no one loses what I think most people regard as its main benefit: they also distribute their work freely. They do so after a delay that takes it out of the realm of service, i.e. current work for which it's ethical to charge the people who want it right now, and into the realm of adequately compensated work that can be distributed at no cost. That they do so completes the GPL's positive-feedback loop.

Publishing a repo is on its way to being the standard way to distribute GPL'd and other free software, but it seems in Red Hat's experience it's only possible to distribute their complete set in a way a little more like software was ordinarily distributed when the GPL was written -- mostly tarballs as I recall, but I wasn't tracking then -- if they want to execute their business model. OK. That feedback loop is what I care about.

GPL does not ask you to give up rights.

Posted Mar 3, 2011 3:23 UTC (Thu) by JesseW (subscriber, #41816) [Link] (3 responses)

OK, I think we are coming to more of an understanding here. You are pointing out differences between two situations:

Distributing software while relying on (one or more) GPL grants by other copyright holders (whether or not you also have some copyright interest in the software), and
Distributing software for which you are the sole copyright holder.

You are claiming (correctly) that you can demand payment for permission to further distribute the software only in the 2nd case, not in the 1st. I agree.

You are claiming that demanding payment for further distribution is a "right" in both cases, which the GPL demands you "give up" in the 1st case. I disagree. I claim that, in the 1st case, you have no right (except for fair use) to distribute the software or permit further distribution (with or without payment). The GPL provides you the ability to distribute the software, but does not provide you the ability to prevent further distribution. You are giving up no right.

As for the Red Hat situation, I don't have a strong opinion one way or another. I tend to agree with the your analysis, since, as you pointed out, a RH subscriber loses nothing if they distribute the materials after their subscription expires.

GPL does not ask you to give up rights.

Posted Mar 3, 2011 6:03 UTC (Thu) by jthill (subscriber, #56558) [Link] (2 responses)

You're presenting a false dichotomy between the GPL and no license at all, and confusing a license to distribute with the right to dictate terms.

The only reason you are constrained at all is that the other copyright holders have the right to dictate license terms. If you create a derived work, you are one of those copyright holders, and you also have the right to dictate terms. If you can't all arrive at a compatible set of terms for a license to distribute, then none of you can distribute — but only because you and they have the right to dictate terms.

Two of the infinite myriad of possible sets of terms you and the other copyright holders may offer are

BSD: you retain, you may exercise, your right to offer any terms at all for a license to your own work, your own copyright interest, in any derived work. You may stipulate any restrictions and charge any fee.

GPL: you give up, you may not exercise, that right: if you distribute at all you must offer specific permissions at no charge.

GPL does not ask you to give up rights.

Posted Mar 4, 2011 23:58 UTC (Fri) by cas (guest, #52554) [Link] (1 responses)

the point you are missing is that in both cases (BSD licensed code and GPL licensed) code, the ability to distribute derived works is *NOT* a right, it is a permission granted by the license of the original work.

without permission being granted, you have no right to distribute works derived from other people's copyrighted works.

i suspect that what is confusing you on this issue is that BSD and GPL have different conditions on that grant of permission, but (in the context of this argument) that is irrelevant.

BSD code is not public domain, any more than GPL code is.

GPL does not ask you to give up rights.

Posted Mar 5, 2011 2:27 UTC (Sat) by jthill (subscriber, #56558) [Link]

Hi, no, please find (at least) all uses of the phrase "the right to" in the history of this conversation. I certainly didn't make that mistake.

GPL does not ask you to give up rights.

Posted Mar 2, 2011 12:41 UTC (Wed) by dskoll (subscriber, #1630) [Link] (11 responses)

So we agree, then, on the substance: the GPL asks you to give up rights

No, we do not. My original phrasing was wrong. Let me spell it out: The GPL only grants you rights. It does not ask you to give up any rights because in the absence of the GPL, you have no rights anyway.

Huh?

Posted Mar 2, 2011 14:42 UTC (Wed) by khim (subscriber, #9252) [Link] (8 responses)

The GPL only grants you rights. It does not ask you to give up any rights because in the absence of the GPL, you have no rights anyway.

Sorry, but this is not true. Just a recent example. GPL asks you to surrender your rights in exchange for a bunch of code. Again: If you want to use said code you must give up the rights copyright gives you. RedHat does the same in reverse: in order to enjoy the support you must give up the rights GPL gives you. In both cases it's up to you to decide if you want to agree to the terms or not.

Huh?

Posted Mar 2, 2011 15:10 UTC (Wed) by dskoll (subscriber, #1630) [Link] (7 responses)

The example you gave with libreadline does not in any way show how the GPL forces you to give up rights. In the absence of the GPL, you would have no right whatsoever to link libreadline against your app, nor could you distribute it. The GPL grants you rights under certain conditions.

RedHat does the same in reverse: in order to enjoy the support you must give up the rights GPL gives you. In both cases it's up to you to decide if you want to agree to the terms or not.

And I think that may be illegal. Red Hat is adding additional restrictions to the GPL. Red Hat's patches that it distributes to paying customers are clearly GPLd and can be distributed under the terms of the GPL. But you can't get the patches unless you agree to the subscription agreement. Therefore, Red Hat is adding restrictions to the GPL.

Heh...

Posted Mar 2, 2011 15:41 UTC (Wed) by khim (subscriber, #9252) [Link] (6 responses)

In the absence of the GPL, you would have no right whatsoever to link libreadline against your app, nor could you distribute it.

Right. But you have the right to demand per-copy royalties, etc. All these privileges given to you by copyright law, you know. For your program, not for readline.

The GPL grants you rights under certain conditions.

Yes. But these conditions are quite interesting: surrender the privileges you usually have - then enjoy the benefits. That's the point of copyleft.

Red Hat's patches that it distributes to paying customers are clearly GPLd and can be distributed under the terms of the GPL.

Sure.

But you can't get the patches unless you agree to the subscription agreement.

Exactly: service agreement gives you rights under certain conditions. Without service agreement you can not even look on patches, let alone distribute them.

Therefore, Red Hat is adding restrictions to the GPL.

How come? You can distribute patches using the GPL - noone disputes this right. Just like nobody disputes your privilege for per-copy royalties. But if you want to enjoy benefits of service agreement (access to the patchlist, for example) you must agree not to exercise your privileges. Actually it's even more generous then GPL: GPL forces you to give up your privileges forever, while service agreement will only bind you temporarily.

Heh...

Posted Mar 2, 2011 16:41 UTC (Wed) by dskoll (subscriber, #1630) [Link] (5 responses)

The difference between the GPL's granting of rights and Red Hat's subscription service is this: The GPL is a license, not a contract. Red Hat's subscription agreement is a contract. You pay Red Hat for support, and in return they give you support. But they also include a landmine in the contract: You are forced to give up rights you'd normally have even in the absence of the support contract. (For example, if Red Hat's segregated kernel patches magically landed in my mailbox, it would be perfectly legal for me to redistribute them under the GPL even though I'm not a Red Hat customer.)

Red Hat's contract adds additional restrictions to the GPL which IMO is a GPL violation. Try this thought experiment:

If Red Hat's contract said: "If you take advantage of the rights under the GPL to redistribute our patches, you agree to pay Red Hat software one billion dollars", then that would clearly be a severe restriction on redistribution.

All that's in dispute is the degree of restriction (which is basically the money you've spent on the support contract.) The existence of an additional restriction cannot be disputed and this violates the GPL.

What rights?

Posted Mar 2, 2011 19:54 UTC (Wed) by khim (subscriber, #9252) [Link] (4 responses)

You are forced to give up rights you'd normally have even in the absence of the support contract.

In the absence of the support contract you have no access to patches in question so you can not distribute them.

For example, if Red Hat's segregated kernel patches magically landed in my mailbox, it would be perfectly legal for me to redistribute them under the GPL even though I'm not a Red Hat customer.

If you can prove that patches arrived in your mailbox from source other then RedHat's site (for example from kernel.org site) you are still free to distribute them.

If Red Hat's contract said: "If you take advantage of the rights under the GPL to redistribute our patches, you agree to pay Red Hat software one billion dollars", then that would clearly be a severe restriction on redistribution.

Sure. This will be like patent license: no matter how you've gotten the patches you are forbidden to excercise your rights. RedHat's agreement only restricts distribution of meta-information. You are free to strip meta-information and distribute raw source/patches. In fact if the meta-information comes from third-party source and not from RedHat you are free to distribute that too - but you must prove that it indeed come from different source.

The existence of an additional restriction cannot be disputed and this violates the GPL.

Sorry, but no. It's said quite explicitly: this Appendix is not intended to interfere with your rights under those individual licenses. If you can prove that you had the right to distribute something under terms of GPL then you are in the free. Just remember that while software included in patches is GPL-licensed different commit messages, ACKs and NAKs are not. And they may even be peceived as trade secrets.

You will need pretty good lawer to properly cleanup the patches from RedHat's web site, but you can distribute the source code itself - RedHat does not interfere with that.

What rights?

Posted Mar 2, 2011 20:18 UTC (Wed) by dskoll (subscriber, #1630) [Link] (3 responses)

In the absence of the support contract you have no access to patches in question so you can not distribute them.

No, that's untrue. Someone with a support contract could (legally) mail me the patches, and I could redistribute them in the absence of a support contract with Red Hat. The person who sent me the patches might be in hot water with Red Hat, but I wouldn't be.

If you can prove that patches arrived in your mailbox from source other then RedHat's site (for example from kernel.org site) you are still free to distribute them.

Nope. Even if I obtained the patches from Red Hat, I can still distribute them because they are GPL'd (being derived products created from a GPL'd work.)

RedHat's agreement only restricts distribution of meta-information.

Are you claiming that Red Hat's patches are not derived from a GPL'd work? I don't think even Red Hat claims that.

Sorry, but no. It's said quite explicitly: this Appendix is not intended to interfere with your rights under those individual licenses.

But it absolutely does interfere with those rights. How can you claim it does not?

You will need pretty good lawer to properly cleanup the patches from RedHat's web site

Why do you think that? Are you claiming that the patches Red Hat distributes to its customers are not derived from a GPL'd work?

Just remember that while software included in patches is GPL-licensed different commit messages, ACKs and NAKs are not. And they may even be peceived as trade secrets.

I am not talking about commit messages. I am referring to the individual kernel patches that Red Hat does make available (only) to its customers (supposedly) under the GPL.

Once again...

Posted Mar 3, 2011 10:39 UTC (Thu) by khim (subscriber, #9252) [Link] (2 responses)

But it absolutely does interfere with those rights. How can you claim it does not?

I'm not claiming that. RedHat does.

I don't think you've read the whole thing. Basically RedHat says the following:
1. You have no right to distribute anything you are downloading from our servers.
2. But if you know that some open-source license gives you such right and can prove that then you are in the clear.
3. Our lawyers are always ready to discuss your proof in the court of law.

See? It does not interfere with your GPL rights - but it shifts the separation issue on your side. You must prove that you have the right to distribute anything - and if you'll do a single error... well, your support contract is no longer valid and that's that.

Why do you think that? Are you claiming that the patches Red Hat distributes to its customers are not derived from a GPL'd work?

They contain mix of the GPLed code and non-GPLed code. For example a lot of files in Documentation subdirectory are not derived works of kernel (even if they are distributed in the same tarball - see "mere aggregation" clause). This means that the fact that patch applies to Linux kernel is not enough to clear you: you must review each and every patch and decide what parts of it are GPL-derived and what parts are not GPL-derived. This is quite non-trivial amount of work.

Once again...

Posted Mar 3, 2011 12:02 UTC (Thu) by dskoll (subscriber, #1630) [Link] (1 responses)

I'm not claiming that. RedHat does.

Red Hat is full of crap if it claims that.

If you think Red Hat is using the threat of lawyers to stop people from distributing the patches ("Our lawyers are always ready to discuss your proof in the court of law."), then that's even worse. That throws a huge chill over collaborative kernel development. Even I don't think Red Hat is that bad; I believe they won't actually sue anyone for distributing the patches.

This means that the fact that patch applies to Linux kernel is not enough to clear you: you must review each and every patch and decide what parts of it are GPL-derived and what parts are not GPL-derived.

If you believe that's what Red Hat is doing, then it's even worse that what I'm claiming it's doing. If what you say is true, then Red Hat is deliberately blocking collaborative kernel development and adding legal threats to its arsenal against anyone using its patches. Do you think that's in the spirit of the GPL?

RedHat had not invented anything

Posted Mar 4, 2011 17:52 UTC (Fri) by khim (subscriber, #9252) [Link]

If you think Red Hat is using the threat of lawyers to stop people from distributing the patches ("Our lawyers are always ready to discuss your proof in the court of law."), then that's even worse. That throws a huge chill over collaborative kernel development. Even I don't think Red Hat is that bad; I believe they won't actually sue anyone for distributing the patches.

If they'll sue or not remains to be seen. But they reserve the right to do so - like Microsoft reserves the right to do so (WRT Mono).

If you believe that's what Red Hat is doing, then it's even worse that what I'm claiming it's doing. If what you say is true, then Red Hat is deliberately blocking collaborative kernel development and adding legal threats to its arsenal against anyone using its patches. Do you think that's in the spirit of the GPL?

Well, it's good question. Probably not. But... FSF itself developed GNU programs (like emacs or gcc) behind the closed doors for years. When the programs were released they were released as tarballs only - access to the VCS was restricted even fater that. Of course they have not threatened you with lawers and when EGCS project decided to fork GCC they they allowed them to take patches from private tree, but it happened when developers convinced RMS to conduct this experiment, not when they decided that they have unalienable right to publish them...

GPL does not ask you to give up rights.

Posted Mar 2, 2011 16:15 UTC (Wed) by jthill (subscriber, #56558) [Link]

I think if you consider the right to relicense you'll find a misstep in your reasoning.

GPL does not ask you to give up rights.

Posted Mar 3, 2011 9:26 UTC (Thu) by jthill (subscriber, #56558) [Link]

http://lwn.net/Articles/430809/