license issue: calling a GPLv2 library
Gottfried
I developped the Windows .NET program LiMath_Optimierung. It is
intended to solve Linear Optimization and similar problems (see
http://www.informatikfuchs.de/Software/GLPK/LiMath_Optimierung.htm)
The Linear Programming part is based on GNU GLPK. GNU GLPK is a
function library licensed under GPLv2. The GLPK part is encapsulated
into a dynmic link library (DLL). The GUI program (LiMath_Optimierung)
calls functions of this DLL.
I would like to offer LiMath_Optimierung as a shareware program i.e for
some fee and without the source code. Please only discuss the license
issue, don't tell me whether you like Windows or Bill Gates or
something like that.
The closest statement I found about this issue is the following:
http://www.gnu.org/licenses/gpl-faq.html#NFUseGPLPlugins:
"Can I release a non-free program that's designed to load a GPL-covered
plug-in?
If the program dynamically links plug-ins, but the communication
between them is limited to invoking the `main' function of the plug-in
with some options and waiting for it to return, that is a borderline
case."
The statement that my program calls GLPK functions and waits for them
to return is true but not one main function. GLPK has not one main
function, but several functions.
My first question is
Is this second feature (one main function) essential in this case where
there is no single main function or only an example? What consequences
does it have for me, if it is a borderline case.
During my investigations I also contacted the copyright-owner of GLPK.
Here an excerpt from his answer:
"Nevertheless, I think your case is a borderline case, because there
are many packages having api which is similar to glpk api (cplex, for
examples), so you can say that you call *some* lp/mip solver, not
necessarily glpk. It seems to me that the best way is *not* to include
glpk code in your program; instead that you say to the user that he
needs (optionally) to download glpk from there and there and install it
such and such in order to use your program."
At the first glance this seems to be a very sophisticated argument but
after further thinking about it seems to be the solution:
When I look to the set of functions in GLPK there is a group of special
functions I do not use in my program, a second group are trival
functions like getting or setting the number of rows and columns of a
matrix and a third group are essential functions like reading a model,
solving a model, etc. Such functions must be incorporated in every
library for Linear Programming.
So the following statement would be true: Someone can create a
solver-DLL based on some Linear Programming library and regarding the
interface requirements of my programm. Then my program works with such
a library.
So my program is a general GUI program for solving Linear Programming
problems and in no way coupled to GLPK.
The question would be:
Is it enough to state this in the program description or is it
necessary to separate them into two download archives.
Thank you for your opinion to this issue.
Regards
Gottfried
Alexander Terekhov
linking as such (especially dynamic one) is totally irrelevant
regarding (software) copyright. Ignore that utterly moronic GPL FAQ.
Your options are:
1. Don't distribute the GPL'd stuff and let the users acquire it
separately:
users have all the rights to use and even adapt (create private
derivatives) of lawfully acquired stuff without "accepting" the
GPL per 17 USC 117;
2. include it in your distribution package:
apart from "additional copies" distributed per 17 USC 117 it
even falls under GPL's own "mere aggregation" clause.
regards,
alexander.
David Kastrup
> This is not an issue at all. Except in the GNU Republic. In reality,
> linking as such (especially dynamic one) is totally irrelevant
> regarding (software) copyright. Ignore that utterly moronic GPL FAQ.
>
> Your options are:
>
> 1. Don't distribute the GPL'd stuff and let the users acquire it
> separately:
>
> users have all the rights to use and even adapt (create private
> derivatives) of lawfully acquired stuff without "accepting" the
> GPL per 17 USC 117;
The problem is that if you are selling the user a package that is not
operative without linking to GPL code, the user is actually working as
your agent completing _your_ part of the deal when creating the
combined work.
The user _has_ the right to combine and use (as opposed to distribute)
code from you with GPLed code if he so desires. But if the product is
not operative before linking to the GPLed code, it is pretty clear
that the total product, the stuff for which money has been exchanged,
includes the GPLed software. Whether the final assembly is done by
the seller, or by the user on behalf of the seller as a part of
receiving a usable product, is irrelevant.
> 2. include it in your distribution package:
>
> apart from "additional copies" distributed per 17 USC 117 it
> even falls under GPL's own "mere aggregation" clause.
Linking a library is not "mere aggregation".
Cf. <URL:http://www.fsf.org/licensing/licenses/gpl-faq.html#MereAggregation>
--
David Kastrup, Kriemhildstr. 15, 44793 Bochum
Alfred M. Szmidt
for some fee and without the source code.
Please respect all users rights to run, distribute, study, change and
improve the software.
If you link your program with a GPLed program, then you must license
your program under the GNU GPL
(http://www.gnu.org/licenses/gpl-faq.html#TOCLinkingWithGPL).
Alexander Terekhov
regards,
alexander.
Alexander Terekhov
"Alfred M. Szmidt" wrote:
[...]
> If you link your program with a GPLed program, then you must license
> your program under the GNU GPL
Sez moronic FAQ. True only in the GNU Republic.
regards,
alexander.
David Kastrup
> Yeah, and all Windows programs "include" MS Windows. Piss off, dak.
You can run Windows programs under Wine if you want to. MS Windows is
not required. And the executable of a Windows program never gets
linked with Windows: there is no address resolution done, and Windows
never becomes part of the executable.
Anyway, the Windows development libraries include the call stubs for
the system calls, and consequently are accompanied by an appropriate
license for their use.
Alfred M. Szmidt
They sure do include parts of MS Windows. Namley, calling
conventions, macros and what not.
Piss off, dak.
Can't you atleast be colourful? Same old cruft `piss off', `plonk',
self quoting, etc, it gets boring. Come up with something new
instead.
Alfred M. Szmidt
is not required. And the executable of a Windows program never
gets linked with Windows: there is no address resolution done, and
Windows never becomes part of the executable.
Headers might be included that contain MS Windows code. As for the
linking, didn't know that... Thought it worked in a similar way to
shared ELFs.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > Yeah, and all Windows programs "include" MS Windows. Piss off, dak.
>
> You can run Windows programs under Wine if you want to. MS Windows is
> not required.
Not all Windows programs can run under Wine, idiot. Now tell me how the
copyright law distinguish "system calls" from other calls. Better, piss
off.
regards,
alexander.
Alexander Terekhov
"Alfred M. Szmidt" wrote:
>
> You can run Windows programs under Wine if you want to. MS Windows
> is not required. And the executable of a Windows program never
> gets linked with Windows: there is no address resolution done, and
> Windows never becomes part of the executable.
>
> Headers might be included that contain MS Windows code.
Using whatever interoperabilty stuff doesn't create copyright violation,
stupid. Go study DMCA and all that.
regards,
alexander.
David Kastrup
Address resolution, and a fixed API. This does not cover the library
stubs and headers used for doing the system call, and so the
development tools come with appropriate licenses permitting the
resulting works to be redistributed.
> Better, piss off.
It looks like our legal eagle Terekhov is a bit out of temper.
David Kastrup
> You can run Windows programs under Wine if you want to. MS
> Windows is not required. And the executable of a Windows program
> never gets linked with Windows: there is no address resolution
> done, and Windows never becomes part of the executable.
>
> Headers might be included that contain MS Windows code.
It's not "MS Windows code" but rather the development libraries and
headers. And yes, if you purchase said development tools, they are
accompanied by an explicit license permitting that.
> As for the linking, didn't know that... Thought it worked in a
> similar way to shared ELFs.
Depends on whether one is talking about system calls or library calls.
You are right that on Windows the boundaries are quite more muddled
than on other systems. Anyway, the development tools/stubs/headers
come with explicit permission to license the resulting works.
Alexander Terekhov
David Kastrup wrote:
[...]
> > Not all Windows programs can run under Wine, idiot. Now tell me how the
> > copyright law distinguish "system calls" from other calls.
>
> Address resolution, and a fixed API.
Now try to back your moronity with some statutory and/or case law
authority. Chapter and verse. It's time you piss off, really.
regards,
alexander.
David Kastrup
You are confused. Taking technical measures for interoperability does
not violate the copyright of material licensed to you. It does not
magically create a license to stuff that has not been licensed to you.
If a program does not even work without a particular library, this is
not a case of "interoperability". Interoperability does come into
play when there is _more_ than one possible environment to interface
with. If you get a program that can be linked to a BSD-licensed
library, you are free to take the technical measures required to link
it to a GPLed library instead (though you can't redistribute the
result under anything but GPL), and this is no skin off the nose of
your program provider. But "interoperability" does not come into play
where there is only one possible target to link with.
Alfred M. Szmidt
> Windows is not required. And the executable of a Windows
> program never gets linked with Windows: there is no address
> resolution done, and Windows never becomes part of the
> executable.
>
> Headers might be included that contain MS Windows code.
Using whatever interoperabilty stuff doesn't create copyright
violation, stupid.
If the "interoperabilty stuff" is creative work, yeah it does.
Go study DMCA and all that.
Maybe you should read it.
Alexander Terekhov
David Kastrup wrote:
[...]
> headers. And yes, if you purchase said development tools, they are
> accompanied by an explicit license permitting that.
Said "development tools" may well be result of reverse engineering
and/or interoperability information from public specs, books, etc.
Pretty much as the Wine itself is, idiot.
regards,
alexander.
Alexander Terekhov
David Kastrup wrote:
[...]
> If a program does not even work without a particular library, this is
> not a case of "interoperability".
Sez who? (Besides you and other GNU brainwashed retards?) What you call
a "library" is just another computer program (bundle thereof) under
copyright law.
regards,
alexander.
Alfred M. Szmidt
Not all Windows programs can run on Windows.
Now tell me how the copyright law distinguish "system calls" from
other calls.
By looking at them to see if they are in anyway or form creative.
Alexander Terekhov
"Alfred M. Szmidt" wrote:
>
> Not all Windows programs can run under Wine
>
> Not all Windows programs can run on Windows.
And? Go on, paragon of intellect.
>
> Now tell me how the copyright law distinguish "system calls" from
> other calls.
>
> By looking at them to see if they are in anyway or form creative.
Uh. So how many parameters make a "system call" be treated as "non-
system call" (which means "creative" in the GNU Republic)?
regards,
alexander.
Alfred M. Szmidt
who repeated his song form each day
When asked to be creative
He answered "Plonk, plonk
I can't be creative, I'm just a troll".
Alexander Terekhov
blind GNUish fanatism is way too entertaining.
regards,
alexander.
Gottfried
please concentrate the discussion to the essential issues:
1) The GUI program LiMath_Optimierung calls a class library for solving
LP problems. The interfaces of the contained functions (naming,
parameter list) are not identical to GNU GLPK functions. Developing an
other compatible library based on an other product than GLPK would be
possible.
So LiMath_Optimierung depends on the existance of a LP solver library
but not on GLPK.
Only my implementation of this library does.
2) LiMath_Optimierung deals with solving LP and similiar problems. The
part with similiar problems is not based on a LP solver library.
Regards
Gottfried
Rui Miguel Silva Seabra
> I would like to offer LiMath_Optimierung as a shareware program i.e for
> some fee and without the source code. Please only discuss the license
> issue, don't tell me whether you like Windows or Bill Gates or
> something like that.
Why are you in search of ways around the GPL?
I think that it's better to just release it under the GPL and still ask
the user for a donation if he likes the program.
Rui
Rui Miguel Silva Seabra
> Yeah, and all Windows programs "include" MS Windows. Piss off, dak.
Your verbosity can only give you credit... thanks for helping us.
EOT (as far as you are related)
Wei Mingzhi
flamebaits.
But why do you have to use GNU GLPK? If you don't want to respect users'
freedom, then you always have the "prefect" option to write those part
yourself.
Gottfried
Rui Miguel Silva Seabra schrieb:
> Ter, 2006-06-20 às 00:25 -0700, Gottfried escreveu:
> > I would like to offer LiMath_Optimierung as a shareware program i.e for
> > some fee and without the source code. Please only discuss the license
> > issue, don't tell me whether you like Windows or Bill Gates or
> > something like that.
>
> Why are you in search of ways around the GPL?
I do not principally search of ways around the GPL. I only want to
clarify whether I am obligated in this special case to do so. At the
moment I would like to leave my program documentation and the download
archive as it is and avoid the aditional work to read and implement all
legal formalities associated with GLPK.
> I think that it's better to just release it under the GPL and still ask
> the user for a donation if he likes the program.
As far as I remember in the GPL text is stated that it is not a
question of money but of the freedom of users to get the source code.
First I would like to test whether there are at all users who are
interested in the program or the source code. I don't wont provide all
the overhead and then see that nobody is interested in. In some sense I
insist on the freedom of the author to decide further proceeding.
>
> Rui
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
>
> Ter, 2006-06-20 Ã s 00:25 -0700, Gottfried escreveu:
> > I would like to offer LiMath_Optimierung as a shareware program i.e for
> > some fee and without the source code. Please only discuss the license
> > issue, don't tell me whether you like Windows or Bill Gates or
> > something like that.
>
> Why are you in search of ways around the GPL?
As usual, min-RMS jumps to idiotic conclusions. What "ways around"?
The copyright in Gottfried's LiMath_Optimierung is totally
independent from whatever "libraries" (other computer programs) his
program depends on for running.
Thanks to Wallace, the FSF is on record telling to the federal judge
in court of law that "In fact, the GPL itself rejects any automatic
aggregation of software copyrights under the GPL simply because one
program licensed under the GPL is distributed together with another
program that is not licensed under the GPL".
regards,
alexander.
Alexander Terekhov
Wei Mingzhi wrote:
[... respect freedom ...]
Possession of property is a mark of the free man. And intellectual
property is property. Person's freedom is diminished rather than
enlarged by limiting his right to sell his property in exchange for
money (i.e. at a positive price, not "no charge").
regards,
alexander.
David Kastrup
> Wei Mingzhi wrote:
>
> [... respect freedom ...]
>
> Possession of property is a mark of the free man.
Wrong. It is the mark of a full citizen. Property is defined by
laws. Without the provision of the government, there is no such thing
as "possession" independent from the individual's ability to hold onto
what he considers his property.
> And intellectual property is property. Person's freedom is
> diminished rather than enlarged by limiting his right to sell his
> property in exchange for money (i.e. at a positive price, not "no
> charge").
The GPL does not hinder anybody to "sell his property". It just keeps
him from licensing the property of others under terms and in contexts
that they don't approve.
If you don't want that, don't use the GPLed software. Respect the
property of people that choose to license it under the GPL.
Alfred M. Szmidt
the download archive as it is and avoid the aditional work to read
and implement all legal formalities associated with GLPK.
Release the program under a GPL compatible license, and you have
solved all legal formalities. Very simple solution. :-)
In some sense I insist on the freedom of the author to decide
further proceeding.
The author has no right to restrict a users freedom to use, modify,
improve and distribute software.
Alfred M. Szmidt
judge in court of law that "In fact, the GPL itself rejects any
automatic aggregation of software copyrights under the GPL simply
because one program licensed under the GPL is distributed together
with another program that is not licensed under the GPL".
Of course there isn't any `automatic aggregation', either you accept
the license, or you do not. If you don't, you cannot use the code, if
you do, you can.
David Kastrup
Oh, he certainly has that right in almost every country. That's what
the Berne convention is about. However, he does not have the right to
restrict a user's freedom to use, modify, improve and distribute
software that its respective author chose to license under the GPL.
That's what the GPL is about.
Alexander Terekhov
http://www.hup.harvard.edu/pdf/LANECI_excerpt.pdf and read this entire
book (before exhibiting GNU brainwashing you're so fond of next time).
regards,
alexander.
Alexander Terekhov
David Kastrup wrote:
[...]
> The GPL does not hinder anybody to "sell his property".
Oh really? Now tell me how "we have made it clear that any patent must
be licensed for everyone's free use or not licensed at all" encourages
selling (licensing at profit) patent IP (selling/licensing of
exclusive rights under copyright aside for a moment), retard.
regards,
alexander.
Rui Miguel Silva Seabra
> Hello Rui,
>
> Rui Miguel Silva Seabra schrieb:
>
> > Ter, 2006-06-20 às 00:25 -0700, Gottfried escreveu:
> > > I would like to offer LiMath_Optimierung as a shareware program i.e for
> > > some fee and without the source code. Please only discuss the license
> > > issue, don't tell me whether you like Windows or Bill Gates or
> > > something like that.
> >
> > Why are you in search of ways around the GPL?
> I do not principally search of ways around the GPL. I only want to
> clarify whether I am obligated in this special case to do so. At the
> moment I would like to leave my program documentation and the download
> archive as it is and avoid the aditional work to read and implement all
> legal formalities associated with GLPK.
Why worry about being obligated if you're not trying to find a way
around the GNU GPL?
> > I think that it's better to just release it under the GPL and still ask
> > the user for a donation if he likes the program.
> As far as I remember in the GPL text is stated that it is not a
> question of money but of the freedom of users to get the source code.
> First I would like to test whether there are at all users who are
> interested in the program or the source code. I don't wont provide all
> the overhead and then see that nobody is interested in. In some sense I
> insist on the freedom of the author to decide further proceeding.
Seems, to me, that you'll have a lot less hassles if you just release it
all under the GNU GPL and never have to worry about theses problems
anymore.
You know that it's always best to solve a problem in advance instead of
creating potential problems in the future, and I see that your reasoning
for circunventing is established over lots of IFs.
I strongly suggest you to remove those IFs by simplifying the process.
Either:
a) develop your own set of libraries
b) use another set of liraries that has a license you like better
c) forget virtually all legal problems by making it Free Software
released under the GNU GPL.
Hoping for c)... ;)
Rui
Alexander Terekhov
Uh. I know you're hopelessly brainwashed, but still... I replied to OP:
----
Your options are:
1. Don't distribute the GPL'd stuff and let the users acquire it
separately:
users have all the rights to use and even adapt (create private
derivatives) of lawfully acquired stuff without "accepting" the
GPL per 17 USC 117;
2. include it in your distribution package:
apart from "additional copies" distributed per 17 USC 117 it
even falls under GPL's own "mere aggregation" clause.
----
Go read the statute (and also what the FSF has been telling in court
of law in defense of Wallace's claim of abusing the copyrights and
patents on the antitrust grounds), idiot.
regards,
alexander.
Alexander Terekhov
David Kastrup wrote:
[...]
> the Berne convention is about. However, he does not have the right to
> restrict a user's freedom to use, modify, improve and distribute
> software that its respective author chose to license under the GPL.
> That's what the GPL is about.
Now tell me how Gottfried's LiMath_Optimierung released as shareware
is supposed "to restrict a user's freedom to use, modify, improve and
distribute GPL'd software" (GLPK) "that its respective author chose to
license under the GPL". Better, piss off and go read the book.
regards,
alexander.
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
> Hoping for c)... ;)
Wanna ice cream? His code is not yours (and neither his code is a
derivative literary work modulo the AFC test of the GPL'd code
[software is protected as literary work per Berne Convention and
national copyright laws]) and he has all the right to release his
code under non-GPL terms.
regards,
alexander.
David Kastrup
Seems like your attention span has blanked out again. So here is the
complete quote again:
The GPL does not hinder anybody to "sell his property". It just
keeps him from licensing the property of others under terms and in
contexts that they don't approve.
If you don't want that, don't use the GPLed software. Respect the
property of people that choose to license it under the GPL.
The GPL does not demand _anything_ as long as you are not using
_others'_ property licensed under the GPL. And then _their_ property
rights chip in, and they are perfectly allowed to give you license
under _their_ conditions. Which in that case is the GPL.
Do you get it now, or was this too long for you too grasp again?
David Kastrup
It appears that I am _already_ pissing you off. Anyway: his shareware
contains GPLed parts then, and I don't see how the user can modify,
improve and distribute those parts while retaining a working
executable. Even if shared libraries were used, he can't, for
example, choose to change the call interface in order to get better
performance.
Rui Miguel Silva Seabra
> Wei Mingzhi wrote:
>
> [... respect freedom ...]
>
> Possession of property is a mark of the free man. And intellectual
> property is property.
Your mistake here is assuming that intellect can become property.
I say mistake, because otherwise you would be cooperating with WIPO and
similar entities in trying to subvert knowledge into something that can
be bought and sold like any good.
Main difference:
good) if you share an apple with me, we both eat a part of the
apple
knowledge) if you share an idea with me, we both have the
complete idea (modulo interpretation deviations)
Rui
Alfred M. Szmidt
right to sell his property in exchange for money (i.e. at a
positive price, not "no charge").
Free software does not limit anyones right to sell software that one
has written, it is in fact one of the requirements for something to be
classified as free software. If you cannot use something
commercially, then it is non-free software.
As for your confusion of `inellectual propery' and `property' that is
understandable, many people confuse it. I'd like to suggest that you
read http://www.gnu.org/philosophy/not-ipr.xhtml
Alfred M. Szmidt
> modify, improve and distribute software.
Oh, he certainly has that right in almost every country. That's
what the Berne convention is about.
Laws and conventions do not make rights. There are many laws and
convenctions that stomp our rights, like the DMCA and the EUCD. He
might have the legal laws backing him up, but he does not have any
moral or ethical right to do so.
Alfred M. Szmidt
licensed for everyone's free use or not licensed at all" encourages
words with to many meanings to be useful removed].
Free as in freedom, not as in price. You are also confusing the GNU
GPL, a copyright license, with patents.
Alfred M. Szmidt
modifications' do not apply. Your references to 17 USC 117 are as
usual, erroneous.
5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify
or distribute the Program or its derivative works. These actions
are prohibited by law if you do not accept this License.
Therefore, by modifying or distributing the Program (or any work
based on the Program), you indicate your acceptance of this
License to do so, and all its terms and conditions for copying,
distributing or modifying the Program or works based on it.
Alexander Terekhov
David Kastrup wrote:
[...]
> It appears that I am _already_ pissing you off. Anyway: his shareware
> contains GPLed parts then, and I don't see how the user can modify,
> improve and distribute those parts while retaining a working
> executable.
Uh. And what does "retaining a working executable" have to do with
users ability to modify, improve and distribute the GPL parts? Make
your own executable employing the modified GPL parts.
> Even if shared libraries were used, he can't, for
> example, choose to change the call interface in order to get better
> performance.
He can change the GLPK call interface and write his own program to
get better performance. Or just pay Gottfried for modified version of
*Gottfried's* program (adaptation under 17 USC 117 aside for a
moment) to use the modified GLPK call interface. Stop trying to
expand the scope of rights under the GPL to infect works under
independent copyright (in this case, Gottfried's program). This is
copyright misuse.
regards,
alexander.
Alexander Terekhov
David Kastrup wrote:
[...]
> The GPL does not demand _anything_ as long as you are not using
> _others'_ property licensed under the GPL. And then _their_ property
> rights chip in, and they are perfectly allowed to give you license
Except that the GPL blatantly misstates the scope of property rights
under copyright. It pretends that both 17 USC 109 and 117 are simply
nonexistent (true in the GNU Republic). Then comes the issue of price
fixing at predatory ("no charge") level of pooled IP in derivative
and collective works.
regards,
alexander.
Alexander Terekhov
"Alfred M. Szmidt" wrote:
[...]
> read http://www.gnu.org/philosophy/not-ipr.xhtml
Only morons like you can be bullshited by this GNUish silliness
authored by confused Stallman. I know that it's hopeless, but still
I suggest you try http://www.hup.harvard.edu/pdf/LANECI_excerpt.pdf.
regards,
alexander.
Alfred M. Szmidt
for trolls or flamebaits.
If one ignores all posts from Terekhov, he will get quite alot of help
from the regular posters.
Alexander Terekhov
"Alfred M. Szmidt" wrote:
>
> The OP was distributing copies of a GPL derivtated work, `private
> modifications' do not apply. Your references to 17 USC 117 are as
> usual, erroneous.
>
> 5. You are not required to accept this License, since you have not
> signed it. However, nothing else grants you permission to modify
> or distribute the Program or its derivative works. These actions
> are prohibited by law if you do not accept this License.
that's not true. Go read 17 USC 109 and 117.
regards,
alexander.
David Kastrup
> > The author has no right to restrict a users freedom to use,
> > modify, improve and distribute software.
>
> Oh, he certainly has that right in almost every country. That's
> what the Berne convention is about.
>
> Laws and conventions do not make rights.
I guess we have to differ here. It is _exactly_ laws and conventions
that make rights. If you take away those, you are left with
"everything is right what you can get away with". But that does not
require spelling out, and thus is not worthwhile in itself.
> There are many laws and convenctions that stomp our rights, like the
> DMCA and the EUCD.
They can't stomp rights that have not been guaranteed by other laws
and conventions previously.
> He might have the legal laws backing him up, but he does not have
> any moral or ethical right to do so.
Morals are most certainly based rather directly on conventions. And
ethics, while usually derived more indirectly, still depend on
conventional thought models.
David Kastrup
> David Kastrup wrote:
> [...]
>> It appears that I am _already_ pissing you off. Anyway: his
>> shareware contains GPLed parts then, and I don't see how the user
>> can modify, improve and distribute those parts while retaining a
>> working executable.
>
> Uh. And what does "retaining a working executable" have to do with
> users ability to modify, improve and distribute the GPL parts? Make
> your own executable employing the modified GPL parts.
So you agree that the GPLed parts of the executable can't be modified,
improved and distributed? Fine, you get it.
>> Even if shared libraries were used, he can't, for example, choose
>> to change the call interface in order to get better performance.
>
> He can change the GLPK call interface and write his own program to
> get better performance. Or just pay Gottfried for modified version
> of *Gottfried's* program (adaptation under 17 USC 117 aside for a
> moment) to use the modified GLPK call interface.
Well, the GPL does not sanctify use of the GPLed program that might
require extra payment or license in order to modify, improve and
distribute GPLed parts _in_ _the_ _context_ they are being used.
That's what it is about.
> Stop trying to expand the scope of rights under the GPL to infect
> works under independent copyright (in this case, Gottfried's
> program). This is copyright misuse.
As long as Gottfried's program is independent from GPLed works, he
won't be affected by the GPL. If it isn't, he needs to heed the
license.
This is not different with any other license, and is not particular to
the GPL.
David Kastrup
You are babbling. This sort of babbling constitutes so little in way
of a coherent argument that it has already been thrown out of court
(remember Wallace?) in spite of your gleeful appreciation of it.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > David Kastrup wrote:
> > [...]
> >> It appears that I am _already_ pissing you off. Anyway: his
> >> shareware contains GPLed parts then, and I don't see how the user
> >> can modify, improve and distribute those parts while retaining a
> >> working executable.
> >
> > Uh. And what does "retaining a working executable" have to do with
> > users ability to modify, improve and distribute the GPL parts? Make
> > your own executable employing the modified GPL parts.
>
> So you agree that the GPLed parts of the executable can't be modified,
> improved and distributed? Fine, you get it.
Uh. Another GNUtian jumping to idiotic conclusions. How typical.
Of course GPL'd parts of whatever can be modified improved and
distributed.
regards,
alexander.
Alexander Terekhov
I'm in good company. http://digital-law-online.info/lpdi1.0/treatise2.html
http://groups.google.com/group/gnu.misc.discuss/msg/a3f76440df6b36c1
http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803
And as for Wallace (his other case is under appeal now), to quote
Hollaar:
(http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803)
------
There has been some mention in this newsgroup in the past about the
antitrust suit in Indiana regarding the GPL (Daniel Wallace v. Free
Software Foundation, Inc.).
On November 28, 2005, Judge Tinder of the United States District
Court for the Southern District of Indiana dismissed the suit,
because Wallace did not show a recognized antitrust injury.
Wallace has twenty days from the entry of the order to file an
amended complaint alleging an antitrust injury, or the dismissal
will be with prejudice. (That means it can't be filed again.)
But the judge rejected a number of the arguments of the Free Software
Foundation, including that the nature of the GPL providing free
access to software programs, subject to some limitations, necessarily
aids competition.
The decision is at:
http://www.internetcases.com/library/cases/2005-11-28_wallace_v_fsf.pdf
-------
The judge recognized that "Plaintiff’s Third Amended Complaint States
a Claim Upon Which Relief can be Granted" and that "Plaintiff’s
Allegations Sufficiently Set Forth a Violation of the Rule of Reason",
but was fooled to believe that "Plaintiff Has Not Alleged Antitrust
Injury".
The district court's error in failure to recognize that allegation
of predatory pricing does establish antitrust injury (and hence
gives standing to sue***) will be corrected on appeal. I'm sure.
Wallace didn't appeal the FSF case. He waited for Judge Young.
***) The FSF argued:
"... absence of an allegation of harm to consumers is fatal to the
Complaint. Moreover, even if it were possible for Plaintiff to allege
some harm to competition in the abstract, Plaintiff has not alleged
antitrust injury to himself, and thus lacks standing."
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf
And Judge Tinder was simply fooled by that "Moreover" part.
But given the governing law re standing and res judicata, I'd expect
Wallace to either amend his complaint after appeal and include the
FSF as new defendant or sue the FSF once again in a separate action.
http://www.ll.georgetown.edu/FEDERAL/judicial/fed/opinions/02opinions/02-1555.html
-------
Media’s principal argument on appeal is that, in entering summary
judgment on the basis of claim preclusion, the district court erred
in concluding that the dismissal of Telepresence’s prior action was
a final adjudication on the merits. It contends that a dismissal
for lack of standing is equivalent to a dismissal for lack of
subject matter jurisdiction, and that a court cannot reach the
merits of a case if a plaintiff does not have standing to invoke
the court’s jurisdiction over the matter. Upper Deck, on the
other hand, places great weight on the district court’s conclusion
that the dismissal of Telepresence’s action with prejudice for lack
of standing was a final adjudication on the merits because a
dismissal with prejudice creates not only the right to appeal, but
also the obligation to succeed on appeal to preserve the cause of
action. It also contends that Media’s appeal is an improper
collateral attack on the judgment of the Telepresence action
because Telepresence did not appeal the earlier judgment.
To be given preclusive effect, a judgment must be a final
adjudication of the rights of the parties and must dispose of the
litigation on the merits. See 18A C. Wright, A. Miller & E. Cooper,
Federal Practice & Procedure § 4427, at 4-5 (2d ed. 2002). The
Ninth Circuit, in common with other federal courts, recognizes that
standing is a threshold question that must be resolved before
proceeding to the merits of a case. L. A. County Bar Ass’n v. Eu,
979 F.2d 697, 700 (9th Cir. 1992); see also Warth v. Seldin, 422
U.S. 490, 517-18 (1975) ( “The rules of standing, . . . are
threshold determinants of the propriety of judicial intervention.”).
The doctrine of standing limits federal judicial power and has both
constitutional and prudential components. See United Food &
Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S.
544, 551 (1996). Article III standing, like other bases of
jurisdiction, must be present at the inception of the lawsuit.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992)
(plurality opinion) (“[S]tanding is to be determined as of the
commencement of suit.”); see also Arizonans for Official English v.
Arizona, 520 U.S. 43, 64, 67 (1997) (holding that standing is an
aspect of the case or controversy requirement, which must be
satisfied “at all stages of review”); Keene Corp. v. United States,
508 U.S. 200, 207 (1993) (“[T]he jurisdiction of the Court depends
upon the state of things at the time of the action brought.”).
Pursuant to Article III, “standing . . . is jurisdictional and not
subject to waiver.” Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996).
Because standing is jurisdictional, lack of standing precludes a
ruling on the merits. Thus, the district court erred in giving
preclusive effect to the Telepresence judgment because its dismissal
of Telepresence’s complaint for lack of standing was not a final
adjudication of the merits. Scott v. Pasadena Unified Sch. Dist.,
306 F.3d 646, 653-54 (9th Cir. 2002) (stating that “[w]e must
establish jurisdiction before proceeding to the merits of the case”);
Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1019 (9th Cir. 2002)
(recognizing that before reaching the merits of the case, the court
must determine the threshold issue of standing); accord H.R. Techs.
v. Astechnologies, Inc., 275 F.3d 1378, 1384 (Fed. Cir. 2002)
(“Because lack of standing is not an issue that goes to the merits
of the underlying patent issues, a dismissal of a complaint for
lack of standing would not normally be expected to be made with
prejudice.”).
-------
regards,
alexander.
David Kastrup
[...]
Get your attributions right. The above message by Hollaar contains
nothing from what you pretend to quote.
Alfred M. Szmidt
works under independent copyright (in this case, Gottfried's
program).
If it uses parts of a GPLed program, then it isn't independant. And
since linking casues parts of a progarm to be used in another program
in Gottfried's case, it cannot be considered an independant work.
Simple.
Alfred M. Szmidt
rights under copyright.
The GPL doesn't say anything about property rights, it is a copyright
license. And has nothing to do with property laws, which are a
completely different beast.
Alexander Terekhov
Sez who? (Besides you and other GNU brainwashed retards?). Mister
>
> Simple.
Very Simple.
regards,
alexander.
Alexander Terekhov
I meant
http://groups.google.com/group/misc.int-property/msg/53225114939815b8
I've referred to
http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803
twice. This one shows Moglens ignorance. And Stallmans obsession with
redefinition of things.
------
The convenient redefinition of things in the GPL reminds me of a
quote from Abraham Lincoln:
How many legs does a dog have if you call the tail a leg?
Four. Calling a tail a leg doesn't make it a leg.
------
regards,
alexander.
John Hasler
> At the moment I would like to leave my program documentation and the
> download archive as it is and avoid the aditional work to read and
> implement all legal formalities associated with GLPK.
What "work, formalities and overhead"? You've already put more effort into
this discussion than it would have cost you to just apply the GPL and
release the thing.
BTW you need not rely on "donations". You can sell copies of GPL software
for whatever the market will bear.
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA
Alexander Terekhov
"Alfred M. Szmidt" wrote:
[...]
> license. And has nothing to do with property laws, which are a
> completely different beast.
Go on, brainwashed retard. Better, stop and go read
for example. After all, Red Hat and/or Novell may well go bankrupt at
some point.
regards,
alexander.
David Kastrup
Which contains only a small fraction of what you pretended to quote.
Namely that the judge rejected some of the FSF's arguments according
to Hollaar. Those arguments, however, pertained to _necessary_ aided
competition by free access. So the judge rejected the notion that
_every_ free access to source code will aid competition regardless of
circumstances.
Which has nothing whatsoever to do with "copyright misuse" and
"linking" and similar.
In short: because you ran out of arguments, you tried pulling out
something which bears no relation whatsoever to the current
discussion, and then you did not get your attribution right, and then
you "quoted" and attributed lots of additional stuff out of thin air
that _also_ has not been written in the referenced posting.
You are really making a royal fool out of yourself. Not that this is
anything new, but there were times when you did so in a more coherent
way.
Alexander Terekhov
David Kastrup wrote:
[...]
> >> > ------
> >> > There has been some mention in this newsgroup in the past about the
> >> > antitrust suit in Indiana regarding the GPL (Daniel Wallace v. Free
> >> > Software Foundation, Inc.).
> >>
> >> [...]
> >>
> >> Get your attributions right. The above message by Hollaar contains
> >> nothing from what you pretend to quote.
> >
> > I meant
> >
> > http://groups.google.com/group/misc.int-property/msg/53225114939815b8
>
> Which contains only a small fraction of what you pretended to quote.
And for which bigger fraction of what I "pretended to quote" do you need
a link, dak? Quote it, I'll post a link.
regards,
alexander.
Alexander Terekhov
-----
The judge recognized that "Plaintiff’s Third Amended Complaint States
a Claim Upon Which Relief can be Granted" and that "Plaintiff’s
Allegations Sufficiently Set Forth a Violation of the Rule of Reason",
but was fooled to believe that "Plaintiff Has Not Alleged Antitrust
Injury".
-----
It's in his ruling available at
http://www.internetcases.com/library/cases/2005-11-28_wallace_v_fsf.p
Here's more:
-----
The GPL allows free access to software programs, subject to some
limitations. This does not mean that the GPL necessarily aids
competition as contemplated by the Sherman Act, as FSF contends.
Instead, it could be argued that by making software available to
consumers free of charge through a licensing agreement, the GPL
results in “reduction in output . . . [and] deterioration in
quality,” United States v. Brown Univ., 5 F.3d 658, 668 (3d Cir.
1993), which could be harmful to consumers. By making certain
software programs available to users at no charge, the GPL may
be discouraging developers from creating new and better programs
because they will not receive compensation for their work,
thereby reducing the number of quality programs available to
users. This may be considered anticompetitive effect, and it
certainly can be inferred from what Mr. Wallace alleges in his
Third Amended Complaint. Therefore, this court finds that the
Third Amended Complaint states a claim for violation of Section
1 of theSherman Act, under the rule of reason doctrine.
-----
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
>
> Oh, I gather that GNUtian dak has problems to believe that
>
> -----
> The judge recognized that "Plaintiff’s Third Amended Complaint States
> a Claim Upon Which Relief can be Granted" and that "Plaintiff’s
> Allegations Sufficiently Set Forth a Violation of the Rule of Reason",
> but was fooled to believe that "Plaintiff Has Not Alleged Antitrust
> Injury".
> -----
>
> It's in his ruling available at
>
> http://www.internetcases.com/library/cases/2005-11-28_wallace_v_fsf.p
http://www.internetcases.com/library/cases/2005-11-28_wallace_v_fsf.pdf
>
> Here's more:
>
> -----
> The GPL allows free access to software programs, subject to some
> limitations. This does not mean that the GPL necessarily aids
> competition as contemplated by the Sherman Act, as FSF contends.
> Instead, it could be argued that by making software available to
> consumers free of charge through a licensing agreement, the GPL
> results in “reduction in output . . . [and] deterioration in
> quality,” United States v. Brown Univ., 5 F.3d 658, 668 (3d Cir.
> 1993), which could be harmful to consumers. By making certain
> software programs available to users at no charge, the GPL may
> be discouraging developers from creating new and better programs
> because they will not receive compensation for their work,
> thereby reducing the number of quality programs available to
> users. This may be considered anticompetitive effect, and it
> certainly can be inferred from what Mr. Wallace alleges in his
> Third Amended Complaint. Therefore, this court finds that the
> Third Amended Complaint states a claim for violation of Section
> 1 of theSherman Act, under the rule of reason doctrine.
> -----
Note also Wallace's own (in the other case currently under appeal):
-----
Not only competitors are harmed by the GPL scheme. Consumers lose
because a lack of competition removes not just product choice but
without competitive reward the incentive to improve product quality
disappears.
-----
http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf
regards,
alexander.
Alfred M. Szmidt
The definition of independant.
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
[...]
> Your mistake here is assuming that intellect can become property.
>
> I say mistake, because otherwise you would be cooperating with WIPO and
> similar entities in trying to subvert knowledge into something that can
> be bought and sold like any good.
What "subvertion" are you talking about? That's the state of affairs
on this planet (apart from North Korea... the GNU Republic instilled
in your mind by Stallman & Co. aside for a moment) already. You're
trying to subvert, not me.
http://www.ipaustralia.gov.au/ip/index.shtml
------
Intellectual property represents the property of your mind or
intellect. It can be an invention, trade mark, original design or
the practical application of a good idea. In business terms, this
means your proprietary knowledge - a key component of success in
business today. It is often the edge which sets successful
companies apart and as world markets become increasingly
competitive, protecting your intellectual property becomes
essential.
Confidential information (also referred to as trade secrets),
patents, registered designs, trade marks, copyright, circuit
layout rights and plant breeder's rights are all legally
classified as IP rights.
This section of the IP Australia web site will give you a brief
overview of all the different forms of IP. To begin the
introduction, start here.
------
I suggest you relocate to North Korea and enjoy "freedom" first
hand.
regards,
alexander.
Rui Miguel Silva Seabra
> Note also Wallace's own (in the other case currently under appeal):
>
> -----
> Not only competitors are harmed by the GPL scheme. Consumers lose
> because a lack of competition removes not just product choice but
> without competitive reward the incentive to improve product quality
> disappears.
> -----
>
> http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf
That's the same Wallace whose single case was dismissed for futility,
right?
Also the same Wallace whose single case included a quote from the judge
saying the exact opposite of that, right?
Or do you think the judge was drunk (as you so famously insulted the
juridic system so often)?
Rui
Alexander Terekhov
"Alfred M. Szmidt" wrote:
>
> Sez who?
>
> The definition of independant.
Uh. Listen, brainwashed fanatic. A computer program work is a literary
work with expression being a set of statements or instructions to be
used directly or indirectly in a computer. Doctrine of independent
creation aside for a moment, that set of statements or instructions is
said to be under "independent" copyright if the AFC test shows that it
doesn't contain any protected elements copied from other work(s).
References to other computer program works are not protected elements.
Stop trying to expand the scope of rights under the GPL to infect
works under independent copyright (in this case, Gottfried's program).
This is copyright misuse. The penalty for copyright misuse is
copyright impotence (it gives impunity to real infringes in court of
law).
regards,
alexander.
David Kastrup
> Qua, 2006-06-21 às 17:09 +0200, Alexander Terekhov escreveu:
>> Note also Wallace's own (in the other case currently under appeal):
>>
>> -----
>> Not only competitors are harmed by the GPL scheme. Consumers lose
>> because a lack of competition removes not just product choice but
>> without competitive reward the incentive to improve product quality
>> disappears.
>> -----
>>
>> http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf
>
> That's the same Wallace whose single case was dismissed for
> futility, right? Also the same Wallace whose single case included a
> quote from the judge saying the exact opposite of that, right?
Not in Terekhov Lalaland. Every quote supports his views. It is just
that the actual verdicts are all in error, as they don't quite jibe
with Terekhov's interpretations of what has been said before.
David Kastrup
There is no expansion of rights.
5. You are not required to accept this License, since you have
not signed it.
Clear? Accepting the license is _optional_. So there is no expansion
of copyright. You have all the rights given to you by law, _plus_
additional ones.
However, nothing else grants you permission to
modify or distribute the Program or its derivative works. These
actions are prohibited by law if you do not accept this License.
Therefore, by modifying or distributing the Program (or any work
based on the Program), you indicate your acceptance of this
License to do so, and all its terms and conditions for copying,
distributing or modifying the Program or works based on it.
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
>
> > Note also Wallace's own (in the other case currently under appeal):
> >
> > -----
> > Not only competitors are harmed by the GPL scheme. Consumers lose
> > because a lack of competition removes not just product choice but
> > without competitive reward the incentive to improve product quality
> > disappears.
> > -----
> >
> > http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf
>
> That's the same Wallace whose single case was dismissed for futility,
> right?
Wrong. See below. Wallace filed two cases. This case is currently under
appeal.
> Also the same Wallace whose single case included a quote from the judge
> saying the exact opposite of that, right?
Exact opposite of what?
>
> Or do you think the judge was drunk (as you so famously insulted the
> juridic system so often)?
Uhmm. Let's see. Judge Young dismissed because according to him,
Wallace "has not identified an anticompetitive effect". And yet his
colleague Judge Tinder had no problems with Wallace's identification
of anticompetitive effect ("By making certain software programs
available to users at no charge, the GPL may be discouraging
developers from creating new and better programs because they will
not receive compensation for their work, thereby reducing the number
of quality programs available to users. This may be considered
anticompetitive effect, and it certainly can be inferred from what
Mr. Wallace alleges in his Third Amended Complaint. Therefore, this
court finds that the Third Amended Complaint states a claim for
violation of Section 1 of the Sherman Act, under the rule of reason
doctrine").
So one of them must have been drunk (in the sense of having somewhat
distorted view of reality). No?
regards,
alexander.
Alfred M. Szmidt
Linking is not mearly just referencing another program. It is using
parts of a program, parts that are protected by copyright.
Alexander Terekhov
That sort of use is explicitly excluded from control of copyright
owners. 17 USC 117. Stupid.
regards,
alexander.
David Kastrup
No. It's been explained to you a few times, but you might have been
drunk. Judge Tinder tried reading a sensible interpretation into
Wallace's ramblings (if you don't have a lawyer representing you,
turning your gibberish into something comprehensible is largely the
duty of the judge) and constructed something which was most likely to
be the _legal_ essence of Wallace's complaint. The result described
in more appropriate terms what Wallace was supposed to be complaining
about _if_ one did not want to assume that he was babbling nonsense in
the first place. This refined wording of Wallace's alleged complaint
was then matched to the respective laws and it was found that even
when a judge tried making the best case from the mess Wallace
presented, the results simply were not sufficient for making enough of
a complaint that pursuing the case would have made any sense.
That is pretty unexciting when the court is responsible for making
Wallace's case. The court tried to make his case as good as a lawyer
would have made it, sort of "if there is any angle to the case, it
must have been this". Then it took a look at the results, and guess
what: they still did not meet the requirements for proceeding, even
when interpreted in the most favorable way.
That's all.
Rui Miguel Silva Seabra
> Rui Miguel Silva Seabra wrote:
> [...]
> > Your mistake here is assuming that intellect can become property.
> >
> > I say mistake, because otherwise you would be cooperating with WIPO and
> > similar entities in trying to subvert knowledge into something that can
> > be bought and sold like any good.
>
> What "subvertion" are you talking about? That's the state of affairs
> on this planet (apart from North Korea... the GNU Republic instilled
> in your mind by Stallman & Co. aside for a moment) already. You're
> trying to subvert, not me.
>
> http://www.ipaustralia.gov.au/ip/index.shtml
Yeah, right. You're trying to prove me that "ip" isn't a subversion by
taking quotes from an entity who has all to gain by promoting the
subversion? That's rich...
> ------
> Intellectual property represents the property of your mind or
> intellect. It can be an invention, trade mark, original design or
> the practical application of a good idea.
Unfourtunately this isn't "property" but temporary monopolies.
This makes this...
> Confidential information (also referred to as trade secrets),
> patents, registered designs, trade marks, copyright, circuit
> layout rights and plant breeder's rights are all legally
> classified as IP rights.
... a blatant lie.
> I suggest you relocate to North Korea and enjoy "freedom" first
> hand.
Hey Therekov, 1984 called, they want your shirt back. It reads:
"WAR IS PEACE, FREEDOM IS SLAVERY, IGNORANCE IS STRENGTH."
And in the back it reads:
"INTELLECTUAL PROPERTY EXISTS AND MUST BE PROTECTED AGAINST EVIL
PIRATES"
Rui
Rui Miguel Silva Seabra
> of anticompetitive effect ("By making certain software programs
> available to users at no charge, the GPL may be discouraging
The GPL does no such thing. Some individual authors (and some people who
distribute copies) do.
Or are you _also_ against the concept of software that's available
gratis?
Rui
Alexander Terekhov
tons of literature on IP. And employing caricature of copyright [as
it's misrepresented by the GPL and its FAQ moronity] in an attempt
to subvert it.
Go read http://www.hup.harvard.edu/pdf/LANECI_excerpt.pdf.
regards,
alexander.
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
> Or are you _also_ against the concept of software that's available
> gratis?
Depends. Gratis in violation of the Sherman Act (Section 1 and/or 2)
is bad for (global) economy. I'm of opinion that the GPL is very bad
for worldwide economic output and prosperity through productivity
gains. And that it clearly violates anti-price-fixing laws.
regards,
alexander.
David Kastrup
Nonsense. Price-fixing is a voluntary agreement between parties to
the detriment of other parties. But heeding an existing license is
not a bilateral agreement, and everybody else is free to use and
extend the software under the same license as everybody else.
Agreement and compliance are different things.
Alexander Terekhov
David Kastrup wrote:
[...]
> Nonsense. Price-fixing is a voluntary agreement between parties to
> the detriment of other parties. But heeding an existing license is
> not a bilateral agreement,
IP licenses are bilateral agreements/executary contracts.
> and everybody else is free to use and
> extend the software under the same license as everybody else.
Making illegal price-fixing conspiracy in violation of Sherman Act
by employing unlawful licensing agreement (i.e. contract) open for
everybody to join the combination doesn't make it any less illegal.
"Standard antitrust analysis applies to intellectual property
The Agencies apply the same general antitrust principles to
conduct involving intellectual property that they apply to conduct
involving any other form of tangible or intangible property. That is
not to say that intellectual property is in all respects the same as
any other form of property. Intellectual property has important
characteristics, such as ease of misappropriation, that distinguish
it from many other forms of property. These characteristics can be
taken into account by standard antitrust analysis, however, and do
not require the application of fundamentally different principles.(9)
Although there are clear and important differences in the
purpose, extent, and duration of protection provided under the
intellectual property regimes of patent, copyright, and trade secret,
the governing antitrust principles are the same. Antitrust analysis
takes differences among these forms of intellectual property into
account in evaluating the specific market circumstances in which
transactions occur, just as it does with other particular market
circumstances.
Intellectual property law bestows on the owners of intellectual
property certain rights to exclude others. These rights help the
owners to profit from the use of their property. An intellectual
property owner's rights to exclude are similar to the rights enjoyed
by owners of other forms of private property. As with other forms of
private property, certain types of conduct with respect to
intellectual property may have anticompetitive effects against which
the antitrust laws can and do protect. Intellectual property is thus
neither particularly free from scrutiny under the antitrust laws, nor
particularly suspect under them."
-- Antitrust Guidelines for the Licensing of Intellectual Property
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf
"courts recognized that the unique attributes of intellectual property
licenses made per se treatment of vertical price restraints in software
licenses inappropriate. See LucasArts Entertainment Company vs. Humongous
Entertainment Company, 870 F. Supp. 285 (N.D.Cal. 1993) (granting summary
judgment against licensee who claimed that license provision regulating
resale prices for derivative works violated the Sherman Act)."
Note that it was a summary summary judgment (not Rule 12(b)(6)
dismissal) and it didn't involve predatory pricing.
Now, here's more on that case cited by the FSF.
----
In the intellectual property context, however, one federal court held
that the Cartwright Act did not prohibit, under the per se rule or
otherwise, a provision in a software licensing agreement which
prohibited the licensee from selling the licensed program at less than
a certain price to anyone other than the licensor. LucasArts
Entertainment Co. v. Humongous Entertainment Co., 870 F. Supp. 285
(N.D. Cal. 1993). The court relied on a federal decision, United
States v. General Electric, 272 U.S. 476 (1926), which held that
patent owners had the power to restrict prices at which licensees
sold. Although the General Electric case has not been overruled, its
continuing validity is questionable, as the United States Supreme
Court has twice split four to four on whether to overrule it and the
federal enforcement authorities decline to follow it.
----
And
----
The GE ruling on price-fixing has been heavily qualified but never
overruled. Any deviation from the GE-Westinghouse single-
manufacturing-licensee paradigm is virtually certain to be held
an antitrust violation (and therefore misuse as well). Thus, cross-
licenses with price restrictions are illegal. So, too, are licenses to
more than one licensee, which, in effect, put together a price-fixing
combination among licensees. The Supreme Court has twice divided 4-4
on whether to overrule GE. United States v. Line Material Co., 333
U.S. 287 (1948); United States v. Huck Mfg. Co., 382 U.S. 197 (1965).
The Antitrust Division has for years searched for a vehicle to
overturn GE but has never succeeded in getting a candidate to hold
still long enough to grab it. See ABA, Antitrust Law Developments
3d 822 & nn. 167-68.
----
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> Nonsense. Price-fixing is a voluntary agreement between parties to
>> the detriment of other parties. But heeding an existing license is
>> not a bilateral agreement,
>
> IP licenses are bilateral agreements/executary contracts.
The GPL is not bilateral since the recipient is not required to accept
it.
>> and everybody else is free to use and
>> extend the software under the same license as everybody else.
>
> Making illegal price-fixing conspiracy in violation of Sherman Act
> by employing unlawful licensing agreement (i.e. contract) open for
> everybody to join the combination doesn't make it any less illegal.
A "conspiracy" which is in the open, free for anybody and does not
require signing a contract, is not much of a conspiracy. Look it up
in a dictionary, preferably one with legal focus.
[And another quotation barrage utterly irrelevant to the case]
Alexander Terekhov
One accepts the GPL contract by exercising exclusive right(s) granted
under it.
regards,
alexander.
P.S. And google also the term "antitrust conspiracy".
Rui Miguel Silva Seabra
> Many contracts don't require signing. Google "manifestation of assent".
> One accepts the GPL contract by exercising exclusive right(s) granted
> under it.
But the GNU GPL is a Copyright *license* not a contract.
*licenses* are bound by copyright law.
*contracts* are bound by contract law.
Rui
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
>
> > Many contracts don't require signing. Google "manifestation of assent".
> > One accepts the GPL contract by exercising exclusive right(s) granted
> > under it.
>
> But the GNU GPL is a Copyright *license* not a contract.
Sez who? (Besides you and other brainwashed GNUtians, that is.)
-----
While a party that owns copyright rights is ordinarily entitled to pursue
infringement claims against any third party who violates them, the courts
have recognized that the rights and remedies available to copyright
holders change significantly when the owner elects to give others a
nonexclusive license to use such property. In that situation, the
owner/user relationship is fundamentally different. Absent a license, the
rights of the copyright holder are governed by statutory and common
law rules applicable to such rights. With a license, however, the terms
and covenants of the license establish the applicable rules. See
Effects Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990)
(in granting a copyright license, the licensor gives up its right to sue
the licensee for infringement).
Recognizing that the existence of consensual licensing arrangements
significantly changes the applicable rules and the expectations of the
parties, federal courts have held that a party cannot normally pursue a
copyright infringement action based upon the licensees breach of
covenants in the license agreement. As a general rule, " if the
[licensees] improper conduct constitutes a breach of a covenant
undertaken by the licensee . . . and if such covenant constitutes an
enforceable contractual obligation, then the licensor will have the
cause of action for contract," not for copyright infringement. Graham
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. Caldewey,
698 F.2d 991, 993 (9th Cir. 1983):
[A] case does not arise under the federal copyright laws . . . merely
because the subject matter of the action involves or affects a copyright.
-----
regards,
alexander.
David Kastrup
> Rui Miguel Silva Seabra wrote:
>>
>> Qui, 2006-06-22 Ã s 01:26 +0200, Alexander Terekhov escreveu:
>> > Many contracts don't require signing. Google "manifestation of assent".
>> > One accepts the GPL contract by exercising exclusive right(s) granted
>> > under it.
>>
>> But the GNU GPL is a Copyright *license* not a contract.
>
> Sez who? (Besides you and other brainwashed GNUtians, that is.)
The GPL:
5. You are not required to accept this License, since you have
not signed it. However, nothing else grants you permission to
modify or distribute the Program or its derivative works. These
actions are prohibited by law if you do not accept this License.
Therefore, by modifying or distributing the Program (or any work
based on the Program), you indicate your acceptance of this
License to do so, and all its terms and conditions for copying,
distributing or modifying the Program or works based on it.
Since you are not required to accept the license, it is purely
optional.
> Recognizing that the existence of consensual licensing arrangements
> significantly changes the applicable rules and the expectations of the
> parties, federal courts have held that a party cannot normally pursue a
> copyright infringement action based upon the licensees breach of
> covenants in the license agreement. As a general rule, " if the
> [licensees] improper conduct constitutes a breach of a covenant
> undertaken by the licensee . . . and if such covenant constitutes an
> enforceable contractual obligation, then the licensor will have the
> cause of action for contract," not for copyright infringement.
We are talking about a "license agreement" here, like when somebody
clicks "I agree". There is no such process for the GPL. As such, it
remains the recipient's option to choose whether he wants to get sued
for breach of copyright or breach of contract in case that he does not
heed the licensing conditions.
This option is not available in cases where the agreement can be
assumed as given by a process of registration or click-through or
similar. "You are not required to accept this license" is not a part
of the usual software offerings.
Rui Miguel Silva Seabra
> Rui Miguel Silva Seabra wrote:
> >
> > Qui, 2006-06-22 Ã s 01:26 +0200, Alexander Terekhov escreveu:
> > > Many contracts don't require signing. Google "manifestation of assent".
> > > One accepts the GPL contract by exercising exclusive right(s) granted
> > > under it.
> >
> > But the GNU GPL is a Copyright *license* not a contract.
>
> Sez who? (Besides you and other brainwashed GNUtians, that is.)
Copyright law.
Rui
Alfred M. Szmidt
Sez who?
Copyright law.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > Rui Miguel Silva Seabra wrote:
> >>
> >> Qui, 2006-06-22 Ã s 01:26 +0200, Alexander Terekhov escreveu:
> >> > Many contracts don't require signing. Google "manifestation of assent".
> >> > One accepts the GPL contract by exercising exclusive right(s) granted
> >> > under it.
> >>
> >> But the GNU GPL is a Copyright *license* not a contract.
> >
> > Sez who? (Besides you and other brainwashed GNUtians, that is.)
>
> The GPL:
>
> 5. You are not required to accept this License, since you have
> not signed it. However, nothing else grants you permission to
> modify or distribute the Program or its derivative works. These
> actions are prohibited by law if you do not accept this License.
> Therefore, by modifying or distributing the Program (or any work
> based on the Program), you indicate your acceptance of this
> License to do so, and all its terms and conditions for copying,
> distributing or modifying the Program or works based on it.
>
To quote Hollaar (http://digital-law-online.info/lpdi1.0/treatise2.html)
http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b
-----
Just because the GPL states something doesn't make it so. In particular,
there are a couple of mistatements of the law there.
The first is that "nothing else grants you permission to modify ...
the Program."
17 USC 117(a) DOES grant that permission in a special, but important
instance:
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to
make or authorize the making of another copy or adaptation of
that computer program provided:
(1) that such a new copy or adaptation is created as an essential
step in the utilization of the computer program in conjunction
with a machine and that it is used in no other manner ...
There is nothing in the GPL that says that a person is not the "owner
of a copy" of the program. So, as long as the adaptation (modification)
is "an essential step in the utilization of the computer program in
conjunction with a machine" it is permitted without the GPL.
The second is that "nothing else grants you permission to ...
distribute the program."
17 USC 109(a) states that:
Notwithstanding the provisions of section 106(3), the owner
of a particular copy or phonorecord lawfully made under this
title, or any person authorized by such owner, is entitled,
without the authority of the copyright owner, to sell or otherwise
dispose of the possession of that copy or phonorecord.
However, you can't dispose of the possession of a computer program by
rental or lending. See 17 USC 109(b).
So, a more accurate statement would be:
However, nothing else grants you permission to modify AND
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License.
(The stuff about signing the license is a little wierd, too. It's not
really clear the point that is being made. Perhaps it's trying to say
that since you haven't signed the license, you haven't accepted its
terms yet, but will have to if you are going to perform an act that
requires a permission giving in the license.)
------
regards,
alexander.
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
>
Chapter and verse, please.
regards,
alexander.
Alexander Terekhov
Chapter and verse, please.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > Rui Miguel Silva Seabra wrote:
>> >>
>> >> Qui, 2006-06-22 Ã s 01:26 +0200, Alexander Terekhov escreveu:
>> >> > Many contracts don't require signing. Google "manifestation of assent".
>> >> > One accepts the GPL contract by exercising exclusive right(s) granted
>> >> > under it.
>> >>
>> >> But the GNU GPL is a Copyright *license* not a contract.
>> >
>> > Sez who? (Besides you and other brainwashed GNUtians, that is.)
>>
>> The GPL:
>>
>> 5. You are not required to accept this License, since you have
>> not signed it. However, nothing else grants you permission to
>> modify or distribute the Program or its derivative works. These
>> actions are prohibited by law if you do not accept this License.
>> Therefore, by modifying or distributing the Program (or any work
>> based on the Program), you indicate your acceptance of this
>> License to do so, and all its terms and conditions for copying,
>> distributing or modifying the Program or works based on it.
>>
>
> To quote Hollaar (http://digital-law-online.info/lpdi1.0/treatise2.html)
>
> http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b
A quote which does nothing to establish the difference between license
and contract.
Alexander Terekhov
David Kastrup wrote:
[...]
> > To quote Hollaar (http://digital-law-online.info/lpdi1.0/treatise2.html)
> >
> > http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b
>
> A quote which does nothing to establish the difference between license
> and contract.
Intelectual property licenses are contracts. There's no "difference",
stupid.
Hollaar wrote:
-----
(The stuff about signing the license is a little wierd, too. It's not
really clear the point that is being made. Perhaps it's trying to say
that since you haven't signed the license, you haven't accepted its
terms yet, but will have to if you are going to perform an act that
requires a permission giving in the license.)
-----
I wrote:
-----
Many contracts don't require signing. Google "manifestation of assent".
One accepts the GPL contract by exercising exclusive right(s) granted
under it.
-----
http://groups.google.com/group/gnu.misc.discuss/msg/24adcd1ce9ede27d
regards,
alexander.
Rui Miguel Silva Seabra
> David Kastrup wrote:
> [...]
> > > To quote Hollaar (http://digital-law-online.info/lpdi1.0/treatise2.html)
> > >
> > > http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b
> >
> > A quote which does nothing to establish the difference between license
> > and contract.
>
> Intelectual property licenses are contracts. There's no "difference",
> stupid.
>
> Hollaar wrote:
Whatever. Where's the law saying that:
a) copyright licenses are contracts?
b) patent licenses are contracts?
c) trademark licenses are contracts?
d) ...
No quotes from your usual "opinious experts" subject to your "LSD-based"
interpretations. Just law....
Rui
David Kastrup
> David Kastrup wrote:
> [...]
>> > To quote Hollaar (http://digital-law-online.info/lpdi1.0/treatise2.html)
>> >
>> > http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b
>>
>> A quote which does nothing to establish the difference between license
>> and contract.
>
> Intelectual property licenses are contracts.
The customary "click-through" or "shrink-wrap" licenses trying to
imagine your agreement to a restriction of rights are.
> There's no "difference", stupid.
Ah, back against the wall. Sorry to be giving you such a battering.
> Hollaar wrote:
>
> -----
> (The stuff about signing the license is a little wierd, too. It's not
> really clear the point that is being made. Perhaps it's trying to say
> that since you haven't signed the license, you haven't accepted its
> terms yet, but will have to if you are going to perform an act that
> requires a permission giving in the license.)
> -----
More or less.
> I wrote:
>
> -----
> Many contracts don't require signing. Google "manifestation of
> assent".
That's for the case where I buy some goods at a shop. The transfer of
the goods and money will be sufficient to establish a contractual
connection under normal terms (Germany has "AGBs" that usually define
contractual obligations closer and are assumed to underly the
transaction if there has been sufficient opportunity for checking them
and they don't differ in invalid ways from permitted terms).
> One accepts the GPL contract by exercising exclusive right(s)
> granted under it.
There is no automatic acceptance, and there is no contract. One
_signifies_ acceptance with the license by exercising exclusive rights
granted under the GPL. But signifying acceptance and accepting are
two different things.
It does not make a difference whether you had started out initially in
compliance or directly in violation for judging the state of the
affair: previous compliance does not establish a stronger indication
of principal acceptance of the license.
There is sort of a point though: compliance with the terms of a
license is legally held to similar standards as compliance with
contractual terms. But that's about it.
Rui Miguel Silva Seabra
> There is sort of a point though: compliance with the terms of a
> license is legally held to similar standards as compliance with
> contractual terms. But that's about it.
One of the main differences is that you can't do away with individual
clauses. Either...
a) the license is valid
or
b) the license is invalid, and as such only the author/copyright holder
can have a copy
So it's a loose, loose situation when you try to invalidade a license.
A bit like shooting yourself in the foot.
Rui
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
>
> > David Kastrup wrote:
> > [...]
> > > > To quote Hollaar (http://digital-law-online.info/lpdi1.0/treatise2.html)
> > > >
> > > > http://groups.google.com/group/misc.legal.computing/msg/3cf3e9ee08d2837b
> > >
> > > A quote which does nothing to establish the difference between license
> > > and contract.
> >
> > Intelectual property licenses are contracts. There's no "difference",
> > stupid.
> >
> > Hollaar wrote:
>
> Whatever. Where's the law saying that:
> a) copyright licenses are contracts?
> b) patent licenses are contracts?
> c) trademark licenses are contracts?
> d) ...
In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th Cir. 2003)
(“If a breach of contract (and a copyright license is just a type of
contract) . . . ”); see also McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d
917, 920 (Fed. Cir. 1995) (“Whether express or implied, a license is a
contract ‘governed by ordinary principles of state contract law’ ”.)
"This implied license does not offend the protection afforded patent
and trademark rights by federal law. Instead, licenses, like other
federal property and contract rights, conform to the applicable state
laws. See Power Lift, 871 F.2d at 1085; see also Mallinckrodt, 976
F.2d at 703. As this court observed in Power Lift, the Supreme Court
has held that federal patent law does not preempt enforcement of
contracts under state law. Id. (discussing Aronson v. Quick Point
Pencil Co., 440 U.S. 257, 261-64, 201 USPQ 1, 4-6 (1979)). By the
same reasoning, federal trademark law does not preempt contract
enforcement either. Intellectual property owners "may contract as
they choose," Mallinckrodt, 976 F.2d at 703, but their intellectual
property rights do not entitle them to escape the consequences of
dishonoring state contractual obligations"
That's the law. Go read the cases.
regards,
alexander.
Alexander Terekhov
David Kastrup wrote:
[... fantasies a la "signifying acceptance and accepting are two
different things" and "compliance with the terms of a license is
legally held to similar standards as compliance with contractual
terms. But that's about it." in support of FSF's utterly false
and baseless claim that IP "licenses are not contracts" ...]
Go to doctor, dak.
regards,
alexander.