Where's the violation? [LWN.net]

Where's the violation?

Posted Jun 24, 2023 17:04 UTC (Sat) by geofft (subscriber, #59789)
In reply to: Where's the violation? by pizza
Parent article: Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

> Bad example. the GPLv2 specifically says that for the corresponding source code, you can't charge more than the incremental cost of duplication/distribution.

Sure but the entire discussion we're having is whether someone can make a "voluntary" agreement with me to let me do things in the course of redistributing GPL'd software to them that the GPL otherwise says I cannot do.

Green Hat, Inc. is of course happy to distribute sources to any of its current or former customers from the last three years for just the cost of media by emailing legal@, as required by the GPL. Any current customers who make such a request will immediately become former customers. If you don't want that, it's twenty bucks a tarball.

But okay, here's a better example: Green Hat simply chooses not to offer source code at all! They're a services provider, they sysadmin your systems and install the binaries onto them. You don't even get sources for your own internal debugging. Lots of customers are fine with this because they specifically don't want to do any debugging, that's why they have Green Hat manage their servers. The same policy applies that you can ask legal@ for sources in exchange for no longer being a customer nor ever becoming a customer again in the future. Is that permissible, or is Green Hat violating the license granted to it by the upstream authors?

> The GPL is a license, not a contract.

I don't think this is quite true (see e.g. this legal case that Conservancy was in and this older discussion covered on LWN), but assuming it is, it doesn't make a difference. Does replacing the word "contract" with "license" change the validity of the rest of what I wrote?

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Where's the violation?

Posted Jun 24, 2023 18:04 UTC (Sat) by Wol (subscriber, #4433) [Link] (4 responses)

> > The GPL is a license, not a contract.

> I don't think this is quite true (see e.g. this legal case that Conservancy was in and this older discussion covered on LWN), but assuming it is, it doesn't make a difference. Does replacing the word "contract" with "license" change the validity of the rest of what I wrote?

A distinction without a difference, as I put it.

A contract is made when one party makes an "offer to treat", a second party accepts the offer, and the first party replies "done".

The only difference between your "normal" contract, and a licence like the GPL, is that the "offer to treat" and the "done" are one and the same.

That's why you get contract negotiations but not (normally) licence negotiations. I've given the example of shops mis-pricing items where they *can* say "sorry, mistake, NOT done". And quite often a contract offer is met with a counter-offer, but the reality licences and contracts are, to all intents and purposes, interchangeable.

Oh - and that's another reason why all this fuss about Red Hat is garbage. Contracts cannot place obligations on unrelated parties. So the GPL (a contract between the distributor and the copyright holder) cannot place obligations on a third party providing support services (and vice versa). The other thing to bear in mind is the law believes in "hats". Never mind that the same physical person can be all three of the copyright holder, the distributor, and the support service - as far as the law is concerned they are three different entities because they have three different "hats".

Cheers,
Wol

Where's the violation?

Posted Jun 24, 2023 19:18 UTC (Sat) by geofft (subscriber, #59789) [Link] (1 responses)

> So the GPL (a contract between the distributor and the copyright holder) cannot place obligations on a third party providing support services (and vice versa).

In this case Red Hat is both the distributor and the provider of support services. If they were not actually distributing GPL'd code, but simply offering support for people who happened to have it, there would be no issue (and there would be no SRPMs to make public or private). Red Hat is (voluntarily) bound by the GPL because that is the only thing that allows them to be a distributor; without it they would just be straight-up violating copyright.

(We should also be clear that "support services" includes providing software! The reason that Rocky is going for "bug-for-bug compatibility" with RHEL is that there are actual third parties who build software to run on top of RHEL and the exact behavior of RHEL is important. The whole commercial point of making it difficult or FUDdy to get the exact behavior of RHEL is that people will pay for the exact behavior of RHEL.)

> The other thing to bear in mind is the law believes in "hats". Never mind that the same physical person can be all three of the copyright holder, the distributor, and the support service - as far as the law is concerned they are three different entities because they have three different "hats".

At least in the US (the jurisdiction of Red Hat/IBM, Conservancy, the authors of the GPL, and many authors of the Linux kernel, which is probably the most interesting Red-Hat-redistributed software where Red Hat doesn't hold the full copyright), this isn't true.

There's a case going through the US courts right now, Davitashvili v. GrubHub, a class-action suit where customers of local restaurants are suing food delivery apps because the app agreements say that in-person takeout and delivery must be set at the same price, and they say that as takeout customers, they're harmed by this and this is illegal under antitrust law. But it turns out that most of the plaintiffs have signed up for these food delivery apps and clicked through binding arbitration agreements, and the defendants are trying to get the case moved into arbitration. The trouble here is that the plaintiffs are clearly acting with different "hats." They're not complaining about the service they got through the app, they're complaining that as takeout customers, the app that they happened to sign up with, long ago, is unfairly raising prices on them. Should they be required to settle this via arbitration? If the law really believed in "hats," the answer would be clearly no: the contract would only bind them as an app user. But that argument isn't being made at all. The argument is over the exact terms of the arbitration clause, what sorts of disputes it covers, and whether "infinite arbitration clauses" are legal under arbitration law. (The judge is saying no; it's being appealed, and the Chamber of Commerce has written an insistent amicus brief that contracts that broadly bind customers are very important to the economy. So they clearly don't believe in "hats" either, and as the representative of companies, they would have very good reason to believe in it!) Neither the plaintiffs nor the judge seem to be under the impression that there's a non-arbitration-specific argument that the app contract/license doesn't bind the plaintiffs when they're not using the app.

So I'm assuming you mean some other legal system - can you clarify which legal system you're talking about and point to some reference about this concept of "hats" in that system?

Where's the violation?

Posted Jun 24, 2023 21:12 UTC (Sat) by Wol (subscriber, #4433) [Link]

Well, as you could have noticed, I live under the jurisdiction of the courts of England and Wales.

And if you want an example of the law treating different "hats" differently, I suffered from a perfect example where the Government decreed that I had to pay myself compensation! So of course, once everybody had taken their cut I was left worse off. The situation was a mutual insurance company, where to compensate policyholders for *alleged* (and imaginary!!!) harm, the company had to pay compensation from shareholder funds. Except, as a mutual company, the shareholder funds were owned by the policyholders!

UK law (indeed, most law) is riddled with this where - and surely this is the only way you can do it - laws apply to a CLASS of people, not individuals. And it's extremely rare for the law to recognise that if someone belongs to multiple classes - wears different hats - that applying the law proves that the law is an ass.

As for your case, while I don't understand what on earth is going on, it looks to me like at least one of the arguments being made is that, because SOME customers agreed to arbitration, that actually means that ALL customers are subject to arbitration.

Again, in the UK, I would expect a lawyer stupid enough to put that to a Judge to end up in the clink for a few days for being an idiot.

Cheers,
Wol

Where's the violation?

Posted Jun 25, 2023 1:47 UTC (Sun) by comex (subscriber, #71521) [Link] (1 responses)

Even if your hats theory is true (and I very much doubt it is, as applied in this situation), it would not do much for Red Hat’s case. The threat from Red Hat is not just to stop providing support services. If it were, a rebuild distro could just sign up for a single Red Hat license and redistribute the sources it receives; it has no need for support. Actually, the rebuilds *are* going to try that, but the assumption is that it will fail, because of course Red Hat is also threatening to cease further software distribution. Both the distribution that binds Red Hat to the GPL, and the threatened non-distribution that allegedly violates the GPL, are performed under the “distributor” hat.

As for the role of copyright owner, I imagine that anyone attempting to sue Red Hat over the affair would try to find a relevant copyright owner to act as plaintiff. However, you should note that the Software Freedom Conservancy, in its Vizio suit in the US, is currently testing the theory that recipients of GPL software have standing to sue over missing source code, as so-called third-party beneficiaries. If it succeeds, the same principle would presumably apply to Red Hat. I realize you are focused on UK law, but any suit against Red Hat would probably be in the US anyway…

Where's the violation?

Posted Jun 26, 2023 10:52 UTC (Mon) by farnz (subscriber, #17727) [Link]

But where's the violation in RH ceasing further distribution of software (in either binary or source form) to you?

RH will ship you source and binaries as long as you comply with the subscription agreement. If you breach that agreement, then RH will not ship you anything after a 30 day notice period.

What legal theory compels RH to distribute software to you indefinitely, if they're refusing to take your money?

Where's the violation?

Posted Jun 24, 2023 18:28 UTC (Sat) by Wol (subscriber, #4433) [Link]

> Sure but the entire discussion we're having is whether someone can make a "voluntary" agreement with me to let me do things in the course of redistributing GPL'd software to them that the GPL otherwise says I cannot do.

But the point is, Red Hat is not saying "you can't redistribute RHEL", they are saying "There will be consequences if you do".

And as I keep on saying, "don't push YOUR value system on ME!". As a (non-software) company, the right to redistribute software is worth bugger all to me. Why shouldn't I trade it for the far more valuable service contract? I get that to you, the right to redistribute is more valuable than the service contract. So don't sign the service contract!

As an individual, I value the right to give and receive. So I won't sign a service contract, and I don't use RHEL (I can't stand the RHEL ecosystem, likewise I can't stand the debian one. I use Gentoo/SUSE/Slack/KDE). I want to download photos off the web for personal use, so all the photos I upload are CC-BY-SA-NC.

I want to introduce Scarlet to my employer. And any improvements we make to Scarlet I want to contribute back. More than that, since the primary copyright holder of Scarlet is a commerical entity, I'm planning to put a licence grant into Scarlet saying OpenQM can cherrypick any modifications I make. I know it's "pay forward", but it's also "give back".

So if YOU want a copy of Red Hat, what value are you giving back to Red Hat? Because if you are not giving back something THEY WANT, you can't demand anything in return. (ScarletDME/OpenQM is a little different I know, but not much. They *offered* it to me, I feel honour-bound to *offer* my work back to them. Share and share alike, you know?)

Cheers,
Wol