Elastic promises "open"—delivers proprietary

Posted Jan 27, 2021 22:42 UTC (Wed) by himi (subscriber, #340)
In reply to: Elastic promises "open"—delivers proprietary by NYKevin
Parent article: Elastic promises "open"—delivers proprietary

I'm actually curious about exactly how the SSPL can be in any way enforceable given the constraints imposed by copyright law (particularly the fact that it only "infects" through copying or derivation, and simply communicating with a service seems like a pretty solid boundary). Wouldn't any unenforceable clauses in the license simply be made null, and only the enforceable clauses would remain? Leaving the whole thing potentially even more open than a plain GPL license would . . .

Elastic promises "open"—delivers proprietary

Posted Jan 27, 2021 23:52 UTC (Wed) by Wol (subscriber, #4433) [Link] (7 responses)

> I'm actually curious about exactly how the SSPL can be in any way enforceable given the constraints imposed by copyright law (particularly the fact that it only "infects" through copying or derivation, and simply communicating with a service seems like a pretty solid boundary)

You are missing a very crucial point, which is that in order to run software YOU HAVE TO COPY IT. At which point, COPYRIGHT BITES.

The GPL quite explicitly grants unrestricted rights to copy and use. Because they are needed!

So if you want to put SSPL software onto your server to provide a service, you need to copy it. And if the SSPL does not give you unconditional rights to copy and run, then you have to agree to the licence.

Cheers,
Wol

Elastic promises "open"—delivers proprietary

Posted Jan 28, 2021 0:02 UTC (Thu) by pizza (subscriber, #46) [Link] (5 responses)

> You are missing a very crucial point, which is that in order to run software YOU HAVE TO COPY IT. At which point, COPYRIGHT BITES.

In the US at least, this has explicitly not been a copyright violation for about 40 years.

If you legally acquired a copy of the software (ie the person who gave it to you did so legally) then you are free to *use* it to your heart's content, at least as far as copyright is concerned. Copyright can only restrict the creation of further copies or derivative works.

(This is why the AGPL's terms only kick in if the software is modified)

Elastic promises "open"—delivers proprietary

Posted Jan 28, 2021 0:08 UTC (Thu) by himi (subscriber, #340) [Link] (2 responses)

I thought this was still an issue at least up to the DMCA and some way beyond it - I recall it being a significant matter for discussion during the various flame wars that happened when the idea of "open source" as a distinct concept was being developed, as well as later on during the discussions around tivoisation which happened after the DMCA came into effect. Do you know what the case law or legislation was that explicitly carved out that exception?

Elastic promises "open"—delivers proprietary

Posted Jan 28, 2021 1:53 UTC (Thu) by pizza (subscriber, #46) [Link] (1 responses)

> Do you know what the case law or legislation was that explicitly carved out that exception?

https://itlaw.wikia.org/wiki/Computer_Software_Copyright_...

(I'm sure there's plenty of nuance involved in the case law that followed, and the DMCA's anti-cirvumvention stuff threw a big monkey wrench into everything, but the original intent does seem clear...)

Elastic promises "open"—delivers proprietary

Posted Jan 28, 2021 23:27 UTC (Thu) by himi (subscriber, #340) [Link]

Okay, reading through other parts of this discussion I've realised what my niggling issue/misunderstanding is here: if the /use/ of the code doesn't provide an avenue for copyright law to bite, how does a person running a service using this SSPL licensed code, assuming they acquired it entirely legally (i.e. they received all the necessary source and so forth), become in any way bound by the terms of the license? They're providing a service, not distributing the code, so how can they end up bound by the terms of a copyright license?

Unless there's some other kind of contract involved, in which case how would that kind of contract obligation be created?

I'm sorry to be asking what are probably dumb questions here, but this really is something that's hard to understand just by trying to read up on it in your spare time . . .

Elastic promises "open"—delivers proprietary

Posted Jan 31, 2021 19:14 UTC (Sun) by Wol (subscriber, #4433) [Link] (1 responses)

> In the US at least, this has explicitly not been a copyright violation for about 40 years.

Then how does trial-ware (aka "if you like it pay for it") work? You can freely copy and share it, but in order to actually use it "for real" you're expected to pay for it. The licence is quite clear ...

Cheers,
Wol

Elastic promises "open"—delivers proprietary

Posted Jan 31, 2021 20:48 UTC (Sun) by pizza (subscriber, #46) [Link]

That has always "worked" via the honor system.

Elastic promises "open"—delivers proprietary

Posted Jan 28, 2021 0:02 UTC (Thu) by himi (subscriber, #340) [Link]

Okay, yeah, you're right. This isn't any kind of "infection" of other code by SSPL covered code, it's an outright "you can only use this code if..." which means there are no constraints beyond whatever limitations are imposed on contracts or similar.