EU antitrust and the GPL
Alexander Terekhov
-----
On 2/15/06, Ville Oksanen <ville....@hut.fi> wrote:
> <clip>
>
> Dr. Mikko Välimäki has a quite nice article on the topic:
>
> Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming
> in European Competition Law Review 3/2006
> http://www.valimaki.com/org/open_source_competition.pdf
Thanks.
"So far, there is no evidence that open source licensors would use
these obligations with malicious intention trying to turn all software
into open source."
Oh really?
http://groups.google.com/group/misc.int-property/msg/ea7b34ddbe4f175a
-----
GPL Hollaaring
by: walter_oak_night 01/27/06 03:04 pm
ICE on automatic aggregation of software copyrights
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: "In addition, mere aggregation of another work not based
on the Program with the Program (or with a work based on the Program) on
a volume of a storage or distribution medium does not bring the other
work under the scope of this License."
Linux kernel v. application
And as the copyright notice in the kernel sources says, user
applications are not subject to the GPL.
Supported by Hollaar:
With dynamically-linked libraries, the application program being
distributed is no longer a compilation that includes the library.
Because the library is not being distributed with the application
program, no permission is needed from the copyright owner of the library
for the distribution to users. Users must, of course, be authorized to
use the library, but if they are owners of a copy of the library, under
Section 117 they can make any adaptations of the library necessary to
use it with the application program.
FSF GPL FAQ
I'd like to modify GPL-covered programs and link them with the
portability libraries from Money Guzzler Inc. I cannot distribute the
source code for these libraries, so any user who wanted to change these
versions would have to obtained those libraries separately. Why doesn't
the GPL permit this? ….
http://www.gnu.org/licenses/gpl-faq.html#MoneyGuzzlerInc
FAQ as Fact
In 2002, a company named Global Technologies Ltd (now defunct) had
ported some 4.5M lines of GPL/BSD and other open source code to Windows
using AT&T Uwin. They claimed less than 500 lines had to be changed and
all changes went back to original authors. The binaries were distributed
from their web site, but one day disappeared. My $50.00 check for a CD
distribution of the binaries and source, which indicated $25 gift to
FSF, was returned with a letter explaining Moglan threatened legal
action for violating the GPL because the code was linked with AT&T
uwin's proprietary posix.dll that provided the POSIX interface on
windows.
Hollaar disagress
Some have claimed that an application program that needs a library for
its operation is a derivative work of that library. They take that
position because the application program is "based on" the library
because it was written to use the subroutines and other aspects of the
library. Such a position is misplaced....
No other conclusion makes sense. If it were not the case, then any
program using the applications program interfaces (APIs) of an operating
system could be considered a derivative work of that operating system.
And, under the exclusive right to prepare derivative works, the
copyright owner of an operating system such as Microsoft Windows could
control who was allowed to write programs for that operating system.
What was that automatic rejection again?
-----
-----
Re: GPL Hollaaring FAQ or Fiction
by: walter_oak_night 01/27/06 03:56 pm
Moglen got on the phone, resulting in both of the attorneys backing out
of publicly discussing a moot court argument involving a scenario
wherein a company used GPL software with a dynamically linked library,
and wherein an issue would have been whether the DLL was then subsumed
under the GPL.
Darn. Would have been interesting.
Beyond the Basics: Advanced Legal Topics in Open Source and
Collaborative Development in the Global Marketplace
When: Tuesday, March 21, 2006, 8:30 a.m. - 5:30 p.m.
http://www.law.washington.edu/lct/Events/FOSS/
Appellate Argument Moot: The Scope of Derivative Works under an Open
Source Software License
Respected FOSS experts will argue the proper scope of a "derivative
work" under U.S. copyright law, as applied to reuse of software source
code, before a distinguished panel of federal appeals court judges:
* Honorable William C. Bryson, U.S. Court of Appeals for the Federal
Circuit
* Honorable Haldane Robert Mayer, U.S. Court of Appeals for the Federal
Circuit
* Honorable Margaret McKeown, U.S. Court of Appeals for the Ninth
Circuit
This simulated appellate argument will permit some of the most difficult
issues facing practitioners to be debated fully and vigorously. The oral
argument will be preceded by an optional one-hour analysis of the legal
and technical issues raised in the hypothetical fact pattern.
-----
http://groups.google.com/group/misc.int-property/msg/7716840a9d359206
FSF's brief #37 in Wallace v FSF:
> 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: "In addition, mere aggregation of another work not based
> on the Program with the Program (or with a work based on the Program) on
> a volume of a storage or distribution medium does not bring the other
> work under the scope of this License."
[... walter_oak_night's FSF GPL FAQ ... FAQ as Fact ...]
Here's more. FSF's director and legal counsel Moglen speaks.
http://news.com.com/Defender+of+the+GPL+-+page+2/2008-1082_3-6028495-...
<quote>
One of the questions with the GPL is about how tightly you may link
GPL code with non-GPL code, for example, when you compile a GPL program
and it uses other code in a software library. Have you done anything
to define how tightly GPL code may be linked with non-GPL code? Under
what circumstances is that permitted and not permitted?
Moglen: We have made one clarification, as we see it, of what we
believe was always the rule. We reasserted that code dynamically linked
to GPL code--which the GPL code is intended to require, not merely
optionally incorporate--is part of the source code of the work under
the GPL and must be released.
</quote>
So much about "the GPL rejects any automatic aggregation of software
copyrights". To quote day5done,
<quote>
The GPLv3 states:
"2. Basic Permissions.
All rights granted under this License are granted for the term of
copyright on the Program, and are irrevocable provided the stated
conditions are met. This License explicitly affirms your unlimited
permission to run the Program. The output from running it is
covered by this License only if the output, given its content,
constitutes a work based on the Program. This License
acknowledges your rights of "fair use" or other equivalent, as
provided by copyright law."
Anyone see the words "This License explicitly affirms your
*unlimited permission* to run the Program"?
When you link dynamically to GPL'd code you are "running"
(executing) the GPL'd Program in every sense of the word. The
linked code is object code that is executed in memory.
Moglen states: "We reasserted that code dynamically linked to
GPL code--which the GPL code is intended to require, not merely
optionally incorporate--is part of the source code of the work
under the GPL and must be released."
Since when does "unlimited permission" mean "--is part of the
source code of the work under the GPL and must be released."?
I thought "unlimited permission" meant "unlimited permission".
Hmmmmm.
Perhaps Eben Moglen is drooling down his Gerber bib again...
Somehow your proprietary object code being executed in memory
is magically transformed into GPL'd source code. -- Sounds somewhat
like SCO claiming "all your code is mine".
Do you suppose the wife and kids also get GPL'd?
</quote>
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
>
> http://groups.google.com/group/linux.debian.legal/browse_frm/thread/6480c64e71ebb4fa
>
> -----
> On 2/15/06, Ville Oksanen <ville....@hut.fi> wrote:
> > <clip>
> >
> > Dr. Mikko Välimäki has a quite nice article on the topic:
> >
> > Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming
> > in European Competition Law Review 3/2006
> > http://www.valimaki.com/org/open_source_competition.pdf
day5done (some folks believe that he is Wallace) commented:
------
It appears Dr. Välimäki is as objective and unbiased in Europe as Eben
Moglen is in the United States. Ever see anyone author and sell a book
on open source licensing that didn't fervently believe in the
self-promoting assumptions surrounding open source software?
"Order a print copy from Amazon or directly from us by filling in an
order form or emailing your name, address and the number of copies
wanted. We will process the order within 48 hrs and send the book with
payment instructions. Direct order is preferred for European
customers. The price of one copy is 39 EUR plus shipping charges (5
EUR for one copy to Europe)."
bio:
"Mikko Välimäki, LL.M., Ph.D, is a research fellow at Swedish School
of Economics and Business Administration, Helsinki. He also teaches
technology and intellectual property law at the Helsinki University of
Technology. Mr. Välimäki has consulted especially software companies
and is the author of a book on open source licensing (available at
http://pub.turre.com/). Previously, Mr. Välimäki has been a visiting
scholar at the University of California, Berkeley. He is a co-founder
and former chairman of Electronic Frontier Finland."
The "open source community" and its proponents are one giant,
homogeneous, self-promoting hairball.
------
The book is also available as a pdf download.
http://pub.turre.com/openbook_valimaki.pdf
regards,
alexander.
Rui Miguel Silva Seabra
> http://groups.google.com/group/linux.debian.legal/browse_frm/thread/6480c64e71ebb4fa
>
> -----
> On 2/15/06, Ville Oksanen <ville....@hut.fi> wrote:
> > <clip>
> >
> > Dr. Mikko Välimäki has a quite nice article on the topic:
> >
> > Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming
> > in European Competition Law Review 3/2006
> > http://www.valimaki.com/org/open_source_competition.pdf
>
> Thanks.
>
> "So far, there is no evidence that open source licensors would use
> these obligations with malicious intention trying to turn all software
> into open source."
Other interesting quote from Mikko:
Does the zero-royalty requirement in copyleft clause qualify as
restricted price fixing (or the setting of a maximum price) in
terms of the block exemption? The following observations speak
against such a conclusion:
- A royalty-free requirement does not imply that the price of
the software must be zero. Software can be priced through other
means than copyright royalties as well.
- Copyleft clause does not affect all further “production of
goods and services”. It does not cover services at all and only
covers goods, which are “derivative works” of the licensed
software as further defined in copyright law.
> Oh really?
>
> http://groups.google.com/group/misc.int-property/msg/ea7b34ddbe4f175a
(... loads of useless self-quoting ...)
> </quote>
Alexander Terekhov
Rui Miguel Silva Seabra wrote:
[...]
> > "So far, there is no evidence that open source licensors would use
> > these obligations with malicious intention trying to turn all software
> > into open source."
>
> Other interesting quote from Mikko:
>
> Does the zero-royalty requirement in copyleft clause qualify as
> restricted price fixing (or the setting of a maximum price) in
> terms of the block exemption? The following observations speak
> against such a conclusion:
> - A royalty-free requirement does not imply that the price of
> the software must be zero.
Then what does it imply?
> Software can be priced through other
> means than copyright royalties as well.
But other means would not price software, they would price
something else.
> - Copyleft clause does not affect all further “production of
> goods and services”.
But the regulation doesn't say that ALL further "production of
goods and services" must be affected for a license to be in
violation.
Software is a good on its own.
> It does not cover services at all and only
Nobody says that it does.
> covers goods, which are “derivative works” of the licensed
> software as further defined in copyright law.
That's not what the FSF/RMS says.
http://www.xfree86.org/pipermail/forum/2004-March/004297.html
-----
Richard Stallman r...@gnu.org
Sat, 27 Mar 2004 23:25:45 -0500
[quoting me]
I say that XFree86 1.1 license is fully compatible with the GNU
GPL. A compilation is NOT a derivative work.
[/quoting me]
You are right about the distinction. However, the GNU GPL conditions
apply to creation of combined works, as well as to making derivatives
of the GPL-covered program.
-----
The intent to cover collective works (in addition to derivative works)
can be witnessed in black and white from the text of the GPL itself.
Furthermore, the GPL document, as published by the FSF, and as used
by almost 100% of licensors, refers to the LGPL which clearly
abuses the term "derivative work" and provides its own "definition"
(misstated "that is to say" definition in the GPL itself aside for a
moment).
regards,
alexander.
Rui Miguel Silva Seabra
> > - A royalty-free requirement does not imply that the price of
> > the software must be zero.
>
> Then what does it imply?
>
> > Software can be priced through other
> > means than copyright royalties as well.
>
> But other means would not price software, they would price
> something else.
No. They price software too. Ever heard of Total Cost of Ownership? The
price of the license is usually a very small percent and usually not the
deciding factor.
Today I heard at the company I work at about betting on Nagios(tm),
which they "bought". They didn't buy it in the sense of licensing but in
the sense of the man-hours spent deploying and developing know-how.
> > - Copyleft clause does not affect all further “production of
> > goods and servicesâ€.
>
> But the regulation doesn't say that ALL further "production of
> goods and services" must be affected for a license to be in
> violation.
>
> Software is a good on its own.
But the cost of licensing is (usually) not _THE_ factor. And that's the
point.
Rui