Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model [LWN.net]

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 9, 2023 13:09 UTC (Sun) by FallenKell (guest, #165983)
In reply to: Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model by pizza
Parent article: Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

> Just because someone provided something to you for free of charge for a time, doesn't mean they are legally (or morally) obligated to continue doing so in perpetuity.

People keep saying this like it is a defense in this situation. Correct, they are not legally (or morally) obligated to continue offering the source code in "perpetuity". However, the GPL requires that it be made as long as that entity is themselves continuing to use the software and/or modify it. And if they can not agree to that, they are in violation of the GPL and not entitled to the software in the first place in order to make the changes that they have made.

Red Hat did not write the many of these packages. They do however, take these packages, contribute to them upstream, but also use them internally as a packaged product that they distribute and provide a support level agreement to end users. This is a great service to many who would not otherwise take the risk of using software that does not have support for bug fixes. But the GPL does not let Red Hat just keep the modifications they make to that software to themselves, but requires that those are also distributed to anyone who requests it, not just a direct paying customer for their support agreements. The GPL doesn't allow that.... The GPL says the following:

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

Now, look closely at the above, especially 3b. Notice the "give ANY third party" (emphasis added to the word "any"). This doesn't mean only those with a support agreement with Red Hat. It means anyone can ask for the source code from Red Hat and they need to provide it (for 3 years). Each modification/version that Red Hat makes or incorporates in the software they provide of the GPL'ed software is subject to this.

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Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 9, 2023 13:40 UTC (Sun) by pizza (subscriber, #46) [Link] (7 responses)

> However, the GPL requires that it be made as long as that entity is themselves continuing to use the software and/or modify it.

No, the GPL's source code clauses only kick in for acts of *distribution*. Actual "use" is effectively unlimited and perpetual, and that includes making your own (non-distributed) derivatives.

> But the GPL does not let Red Hat just keep the modifications they make to that software to themselves, but requires that those are also distributed to anyone who requests it, not just a direct paying customer for their support agreements. The GPL doesn't allow that....

Uh, the GPL allows you to keep all of your changes private. It only attaches requirements upon *distribution* of copies, be they modified or un-modified; source or binary. Additionally, it does not unconditionally require that you distribute your changes to whomever asks -- as your quoting of the GPL text clearly states!

> 3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do *ONE* of the following: [emphasis mine]

Red Hat achieves compliance primarily through clause (a), but also through a written offer (ie clause (b)) that entitles anyone to get a copy of the precise source code that corresponds with the specific binaries in question, for $5.

I'm sorry, but I'm going to take the word of the FSF and the SFC over random internet commentators that what RH is doing complies with the letter (and the spirit!) of the GPL. Indeed, GPLv3's section 6 makes this explicit:

"The requirement to provide Installation Information does not include a requirement to continue to provide support service, warranty, or updates for a work that has been modified or installed by the recipient, or for the User Product in which it has been modified or installed."

In other words, you get source code, RH can drop support/updates, and the GPLv3 (which surely embodies the "spirit" of the GPL) is perfectly fine with that.

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 9, 2023 18:57 UTC (Sun) by Wol (subscriber, #4433) [Link] (6 responses)

> > However, the GPL requires that it be made as long as that entity is themselves continuing to use the software and/or modify it.

> No, the GPL's source code clauses only kick in for acts of *distribution*. Actual "use" is effectively unlimited and perpetual, and that includes making your own (non-distributed) derivatives.

More than that, the GPL itself only kicks in for acts of distribution, iirc.

And, even worse from the GP's pov, the GPL explicitly contradicts him - does not the GPL itself say "Use of the software is outside the scope of the GPL"?

Cheers,
Wol

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 10, 2023 11:05 UTC (Mon) by pizza (subscriber, #46) [Link] (5 responses)

> More than that, the GPL itself only kicks in for acts of distribution, iirc.

FYI, It also kicks in for _modification_ as well. To quote GPLv3 section 9:

"You are not required to accept this License in order to receive or run a copy of the Program. [...] However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so."

So you have to _accept_ the GPL's terms in order to modify something covered by it, but the GPL places no obligations/restritions on you if you never actually distribute a modified (or indeed, an unmodified) copy.

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 10, 2023 12:29 UTC (Mon) by anselm (subscriber, #2796) [Link] (4 responses)

The problem here is that modifying somebody else's copyrighted code is not something you get to do, under the defaults of copyright law. You need separate permission to do this, which the GPL provides, independently of whether you plan to distribute your modifications. There is nothing in the GPL, however, which forces you to make the source to your modifications available to anyone as long as you never distribute modified binaries to a third party.

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 10, 2023 12:54 UTC (Mon) by Wol (subscriber, #4433) [Link] (3 responses)

Debatable ...

You can modify / deface a book, and pass it on without needing the copyright holder's permission, provided you haven't actually copied the original text.

To what extent that covers running a "defaced" copy of the original program is open to argument.

But as soon as you distribute it, all that is irrelevant. Either (a) you're distributing the one (defaced) copy you received, or (b) you're making copies. In case (a) the recipient gets all the rights and responsibilities you originally had and you're left with nothing, or case (b) the GPL bites.

Cheers,
Wol

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 10, 2023 13:59 UTC (Mon) by anselm (subscriber, #2796) [Link] (2 responses)

The rules are different for physical objects (like books or CDs) vs. “digital content”, such as software you download. If you obtain a copy of a copyrighted work as a physical object (book, CD, USB thumb drive, …), you get to dispose of that particular object as you please (including defacing it, selling it on, etc.), but your ownership of the copy doesn't let you make copyright decisions concerning the original work (such as making and selling more copies, or commissioning a movie based on (the content of) a book). The legal doctrine is called “copyright exhaustion”.

OTOH, whether copyright exhaustion applies to digital copies of a work is unclear. For example, if you download a musical recording as an MP3 file, according to copyright law you don't get to sell that recording to someone else, because that sale would result in the creation of an extra copy (even if you later remove your own copy of the file), and the creation of extra copies remains the copyright holder's prerogative. The same reasoning would apply to “defacing” an MP3 file – this would usually result in unauthorised copies being produced, and hence not be allowed, modulo the “fair use”-type provisions that exist in certain jurisdictions. (It has been long established that, e.g., the fact that a piece of software must be copied from secondary storage into RAM in order to execute it is irrelevant as far as copyright is concerned, but that of course doesn't give you blanket permission to make extra copies in order to “deface” it.)

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 10, 2023 15:07 UTC (Mon) by Wol (subscriber, #4433) [Link] (1 responses)

> if you download a musical recording as an MP3 file, according to copyright law you don't get to sell that recording to someone else,

I think copyright law has changed ... which is how you can buy eg OEM copies of Windows and stuff.

European law now explicitly lets you sell on digital copies, on condition you destroy your original copy. I don't know the details, but I do remember something of the sort a good few years ago.

I know MS is unhappy, but if they discover you are selling on OEM copies, all they can do is refuse to do any further business with you (that's how I've obtained most of my recent copies of Windows).

Cheers,
Wol

Kuhn: A Comprehensive Analysis of the GPL Issues With the Red Hat Enterprise Linux (RHEL) Business Model

Posted Jul 11, 2023 11:03 UTC (Tue) by kleptog (subscriber, #1183) [Link]

> European law now explicitly lets you sell on digital copies, on condition you destroy your original copy. I don't know the details, but I do remember something of the sort a good few years ago.

So I was thinking of writing something similar yesterday but figured I'd add sources for this claim... and came up blank. In fact, I found the opposite, namely the Tom Kabinet case before the ECJ which ruled that if you offer a site that allows people to download a copy of an e-book that that counts as distribution, even if you claim you're deleting your copy directly after the download. It doesn't help that in the EU software copyright and other copyrights are not handled the same way, see [1]

At a national level, similar cases where people selling an ebook to someone else by physically handing over media containing the ebook however have ruled the other way. Software copyright is regulated under the Software directive, and e-books under the InfoSoc directive. If you buy an MS Windows installation CD secondhand, MS cannot deny you downloading updates just because you weren't the first owner.

I think this is the reason why so many software businesses are moving over to subscription models because by offering a time-limited service, resale can simply by prohibited by contract law rather than relying on copyright law. Just like with Netflix & Spotify, since you never buy it, it can't be resold either.

[1] https://academic.oup.com/grurint/article/69/5/489/5854748