Use of GPL'd code with proprietary programs

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Haakon Riiser

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Jul 5, 2004, 9:34:55 AM7/5/04
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I work for a company that would like to use a couple of GPL'd
libraries in our embedded system; specifically, in its media
player. Here's a simple ASCII drawing that illustrates our
situation:


Non-decoder apps that use the a/v mixer program
possibly at the same time as one of the decoders
|
|
WMV9 decoder (proprietary) | MPEG-1/2 decoder (GPL)
| | |
+---------+--------------+------------+-----+
| AVD (Audio/Video Daemon) |
|general audio/video sync/mix/output program|
| (developed entirely by us) |
+-------------------+-----------------------+
/ \
/ \
/ \
/dev/fb /dev/dsp


AVD communicates with its clients via shared memory, but according
to the GPL FAQ, shared memory communication is too close for
the program to fall under the aggregate clause, which the FAQ
states only applies when the GPL program communicates with the
non-GPL program via sockets, pipes and command line arguments.
In short, AVD's license has to be GPL compatible so that we can
legally connect with GPL'd clients -- we have no problem with this.

However, we also need to use the WMV9 decoder with AVD and this
WMV9 decoder belongs to Microsoft, so obviously we can't release
/it/ under the GPL. I didn't see this as a problem, because
we wrote AVD from scratch, and are allowed to dual license it:
AVD could operate under the GPL when communicating with the MPEG
decoder, but under a proprietary license when talking with the
WMV9 decoder. Since it will never do WMV9 and MPEG at the same
time, I believed this to be legal. (But I'm a programmer, not
a lawyer, so please correct me if I'm wrong. :-)

Unfortunately, it gets a little more complicated than this: AVD is
also used by other programs that need to play sound. For example,
let's say we have a proprietary Tetris game that wants to output
sound effects. A user might like to listen to MP3s while playing
Tetris, and that means that AVD has to operate under two different
licenses at the same time: GPL to be able to use the MPEG decoder,
and a proprietary license when talking with the Tetris game,
or else our Tetris clone would also have to be GPL.

Can we do this? Can a program written by us operate under two
different licenses at the same time, thus stopping the GPL chain
reaction from spreading to every AVD client?

We contacted an American copyright lawyer, but I'm a bit sceptical
to the advice he gave. He said that we didn't have to worry about
the GPL at all, since the part of the GPL that places restrictions
on the distribution of programs that link against GPL'd code only
applies when the GPL'd code is /modified/, which we haven't done.

If he were right, I don't understand the point of the LGPL.
With the LGPL, you still can't modify the code and distribute
the program as closed source, so the only difference between LGPL
and the GPL is that the LGPL allows dynamic linkage. If the GPL
allows, not only dynamic, but even static linkage (as long as the
library is not modified) then the LGPL (as I have understood it)
is meaningless. I asked our lawyer about this, and he said that I
was probably right in that the GPL was not intended to permit any
use and distribution as long as the GPL'd code is not modified,
but that didn't matter: "a judge would only care about the license
text", he said.

Any help is appreciated.

--
Haakon

Haakon Riiser

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Jul 5, 2004, 9:38:07 AM7/5/04
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Some legal advise left us a little uncertain, and we are a bit
sceptical. As a key rule we are advised: "When using the part of


the GPL that places restrictions on the distribution of programs

that link against GPL'd code, legal restrictions only apply when
the GPL'd code is /modified/. We have not modified the GPL code.

If this is correct, I don't understand the point of the LGPL.


With the LGPL, you still can't modify the code and distribute
the program as closed source, so the only difference between LGPL
and the GPL is that the LGPL allows dynamic linkage. If the GPL
allows, not only dynamic, but even static linkage (as long as the
library is not modified) then the LGPL (as I have understood it)
is meaningless.

Any help is appreciated.

--
Haakon

Alexander Terekhov

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Jul 5, 2004, 10:19:46 AM7/5/04
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Haakon Riiser wrote:
[...]

> If this is correct, I don't understand the point of the LGPL.

It's a bluff.

Copyright protects software as literary works (modulo AFC test). Things
like "in order to operate"/"shared memory"/"whole program" are entirely
irrelevant. Copyright law doesn't establish exclusive right to "combine"
works. Neither static nor dynamic linking constitute creation of a
derivative work. FSF's idiotic theory*** of derivative works is total
crap.

regards,
alexander.

***) http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:7534

Per Abrahamsen

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Jul 5, 2004, 11:09:16 AM7/5/04
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Haakon Riiser <hak...@ulrik.uio.no> writes:

> AVD communicates with its clients via shared memory, but according
> to the GPL FAQ, shared memory communication is too close for
> the program to fall under the aggregate clause, which the FAQ
> states only applies when the GPL program communicates with the
> non-GPL program via sockets, pipes and command line arguments.

I doubt most court would draw such a technical distinction between
shared memory communication and socket communication. It is probably
better to think of that as a "rule of thump" of how to avoid getting
in legal trouble with the FSF.

In court I suspect it would matter more how "generic" the interfaces
between the components are. If the interface is only used to connect
two specific components, I suspect you would be in trouble even if
using command line arguments. On the other hand, if the interface is
an implementation of a popular iso standard, distributing statically
linked binaries may be legal (as long as you distribute source for the
gpl part).

Anywhere, not getting into court in the first place is more useful
than being able to win, so going with the FSF interpretation is a good
idea.

> However, we also need to use the WMV9 decoder with AVD and this
> WMV9 decoder belongs to Microsoft, so obviously we can't release
> /it/ under the GPL.

Some MS licenses even have some specific anti-GPL clauses.

> I didn't see this as a problem, because
> we wrote AVD from scratch, and are allowed to dual license it:

You could also LGPL it, should have the same effect.

> Unfortunately, it gets a little more complicated than this: AVD is
> also used by other programs that need to play sound. For example,
> let's say we have a proprietary Tetris game that wants to output
> sound effects.

I think that would legal in most jurisdictions, but not accepted by
the FSF interpretation. You _may_ be able to get around it if you can
somehow get the "special exception" for "libraries normally bundled..."
into effect.

> As a key rule we are advised: "When using the part of
> the GPL that places restrictions on the distribution of programs
> that link against GPL'd code, legal restrictions only apply when
> the GPL'd code is /modified/.

I never heard that interpretation before.

Haakon Riiser

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Jul 5, 2004, 12:03:00 PM7/5/04
to
[Per Abrahamsen]

>> I didn't see this as a problem, because
>> we wrote AVD from scratch, and are allowed to dual license it:
>
> You could also LGPL it, should have the same effect.

Thanks, I can't believe this didn't occur to me before! It doesn't
_have_ to be GPL; any compatible license would suffice, right?
For example BSD or MIT, which is about as permissive as it gets.
Are all of the things I mentioned in the other post legal if we
use BSD for AVD?

--
Haakon

Arnoud Engelfriet

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Jul 5, 2004, 1:43:12 PM7/5/04
to Haakon Riiser, gnu-misc...@gnu.org
Haakon Riiser wrote:
> WMV9 decoder (proprietary) | MPEG-1/2 decoder (GPL)

You may want to check your WMV9 license. Most versions I've seen
explicitly forbid any kind of bundling with GPL-licensed software
(even merely putting it on the same disc).

> Some legal advise left us a little uncertain, and we are a bit
> sceptical. As a key rule we are advised: "When using the part of
> the GPL that places restrictions on the distribution of programs
> that link against GPL'd code, legal restrictions only apply when
> the GPL'd code is /modified/. We have not modified the GPL code.

That does not seem to be accurate. The GPL explicitly states
that you may only distribute "works based on" the GPL'ed program
if you apply the GPL to that whole "work based on". It says
nothing about "only if the GPL code is modified".

"Work based on" is defined as derivative work under copyright law
and so this requirement kicks in for modified GPL code. But it
also applies to the original, unmodified work. And according
to the FSF it also applies to any work that links to the GPL
code.

A typical example is the GNU readline library. You need to link
to this library to use its functionality. According to
http://cnswww.cns.cwru.edu/php/chet/readline/rltop.html
"This means that if you want to use Readline in a program that you release
or distribute to anyone, the program must be free software and have a
GPL-compatible license."

Arnoud

--
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/


Haakon Riiser

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Jul 5, 2004, 3:17:13 PM7/5/04
to
[Arnoud Engelfriet]

> Haakon Riiser wrote:
>
>> WMV9 decoder (proprietary) | MPEG-1/2 decoder (GPL)
>
> You may want to check your WMV9 license. Most versions I've seen
> explicitly forbid any kind of bundling with GPL-licensed software
> (even merely putting it on the same disc).

I haven't personally read it yet, but I'll do so ASAP. If this
is the case for our license, we have to consider if it's even
worth bothering with WMV9. :-( I can't even believe why they
would do such a thing -- are they afraid of getting infected by
the GPL license in some way? Do they mention the GPL specifically?

> That does not seem to be accurate. The GPL explicitly states
> that you may only distribute "works based on" the GPL'ed program
> if you apply the GPL to that whole "work based on". It says
> nothing about "only if the GPL code is modified".

Here's what our lawyer said (more or less):

All restrictions on distribution of the GPL'd program appears under
GPL section 2, which specifically targets modified copies only:
(capitalization of key words were done by me)

2. You may MODIFY your copy or copies of the Program or any
portion of it, THUS FORMING A WORK BASED ON THE PROGRAM, and
copy and distribute such MODIFICATIONS or work under the terms
of Section 1 above, provided that you also meet all of these
conditions:

[...]

Since "a work based on the Program" is defined as "modified GPL
code", all the conditions and requirements that follow do not apply
when all we do is link an unmodified GPL library to our program.
Or so we were told.

> "Work based on" is defined as derivative work under copyright law
> and so this requirement kicks in for modified GPL code. But it
> also applies to the original, unmodified work. And according
> to the FSF it also applies to any work that links to the GPL
> code.

In light of what I said above, would you say that linking binary
code is included in "modify your copy of the Program"?

> A typical example is the GNU readline library. You need to link
> to this library to use its functionality. According to
> http://cnswww.cns.cwru.edu/php/chet/readline/rltop.html
> "This means that if you want to use Readline in a program that you release
> or distribute to anyone, the program must be free software and have a
> GPL-compatible license."

Funny that you should bring up readline, since this was the
very same example I presented to our lawyer when I expressed my
skepticism of his interpretation. I know Stallman convinced
Bruno Haible to release CLISP under the GPL, so that it could
legally use the readline library:

http://cvs.sourceforge.net/viewcvs.py/*checkout*/clisp/clisp/doc/Why-CLISP-is-under-GPL

But again, I was told that none of this matters since the people
who wrote the license apparently had screwed up. Their intention
was to prohibit linking, but that's not what the actual text says,
and that is the only thing a judge would consider.

--
Haakon

Rui Miguel Seabra

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Jul 5, 2004, 3:37:24 PM7/5/04
to gnu-misc...@gnu.org
On Mon, 2004-07-05 at 16:19 +0200, Alexander Terekhov wrote:
> Haakon Riiser wrote:
> [...]
> > If this is correct, I don't understand the point of the LGPL.
>
> It's a bluff.
>
> Copyright protects software as literary works (modulo AFC test). Things
> like "in order to operate"/"shared memory"/"whole program" are entirely
> irrelevant. Copyright law doesn't establish exclusive right to "combine"
> works. Neither static nor dynamic linking constitute creation of a
> derivative work. FSF's idiotic theory*** of derivative works is total
> crap.

Your bullshit doesn't seem to hold up in court.

All cases decided to settle in favour of FSF's take on the matter
because of what? Maybe because they would win so they give up?

Your bullshit isn't backed by real life facts...

Rui

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Alexander Terekhov

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Jul 5, 2004, 3:50:20 PM7/5/04
to

Haakon Riiser wrote:
[...]

> I haven't personally read it yet, but I'll do so ASAP. If this
> is the case for our license, we have to consider if it's even
> worth bothering with WMV9. :-( I can't even believe why they
> would do such a thing -- are they afraid of getting infected by
> the GPL license in some way? Do they mention the GPL specifically?

Potentially viral software. That's all history. MS went CPL (for
at least two projects) recently. And the GPL isn't viral. Your
lawyer is correct (but he should have mentioned that the scope
of the "derivative work" (after modifications/transformations)
doesn't encompass independent works/sections (the GPL just can't
cross API/module boundaries) even if they are "combined" with the
derivative stuff.

regards,
alexander.

Alexander Terekhov

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Jul 5, 2004, 3:51:05 PM7/5/04
to

Rui Miguel Seabra wrote: ...

Boo.

regards,
alexander.

Haakon Riiser

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Jul 5, 2004, 4:50:27 PM7/5/04
to
[Alexander Terekhov]

>> I haven't personally read it yet, but I'll do so ASAP. If this
>> is the case for our license, we have to consider if it's even
>> worth bothering with WMV9. :-( I can't even believe why they
>> would do such a thing -- are they afraid of getting infected by
>> the GPL license in some way? Do they mention the GPL
>> specifically?
>
> Potentially viral software. That's all history. MS went CPL (for
> at least two projects) recently.

Just to be sure: s/CPL/GPL/, right? :-)

> And the GPL isn't viral. Your lawyer is correct (but he should
> have mentioned that the scope of the "derivative work" (after
> modifications/transformations) doesn't encompass independent
> works/sections (the GPL just can't cross API/module boundaries)
> even if they are "combined" with the derivative stuff.

OK, thanks. I will wait a few days to see if more points come up,
and if not, I'll notify the authors of the GPL'd libraries we'd
like to use, and get their opinions as well. I know that many
(perhaps most?) people use the GPL without understanding exactly
what it means. Personally, I wouldn't want to restricting linking,
but I /would/ want to prevent companies from making improvements to
the program without giving it back to the community. Strange that
there's no well-known license for this purpose.

The BSD-style license is a bit /too/ permissive for my taste.
If one builds upon the work of the free software community, I
think it's only fair that those modifications must be released
under a license that is at least as permissive as the original
work, so that the entire community may benefit from it.

GPL has this, but I don't like its intentions to restrict linking,
shared memory, and so on. LGPL is better, but it's not intended
to support static linking, and it's a bit too verbose.

Perhaps I should write such as license for myself, since no-one
else has. Problem is, licenses are for lawyers, and I don't feel
comfortable pretending I am one. :-)

Anyway, many thanks to everyone who has helped so far!

--
Haakon

Alexander Terekhov

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Jul 5, 2004, 4:56:28 PM7/5/04
to

Haakon Riiser wrote:
[...]

> Just to be sure: s/CPL/GPL/, right? :-)

Not quite.

s/GPL/CPL/g-universe (or something like that ;-) ).

http://www.ibm.com/developerworks/library/os-cplfaq.html
http://www.microsoft-watch.com/article2/0,1995,1561861,00.asp
http://www.devsource.ziffdavis.com/print_article/0,2043,a=127636,00.asp

regards,
alexander.

Arnoud Engelfriet

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Jul 6, 2004, 5:11:09 AM7/6/04
to Haakon Riiser, gnu-misc...@gnu.org
Haakon Riiser wrote:
> I haven't personally read it yet, but I'll do so ASAP. If this
> is the case for our license, we have to consider if it's even
> worth bothering with WMV9. :-( I can't even believe why they
> would do such a thing -- are they afraid of getting infected by
> the GPL license in some way? Do they mention the GPL specifically?

Microsoft has publicly stated that the purpose of this clause is to
ensure that licensees do not release MS code under GPL or similar
terms. In my opinion, the clause is much too broad for that purpose.
For instance, it forbids the type of bundling that the GPL calls
"mere aggregation". But I also seen instances where the clause is
limited to essentially "you are not allowed to do anything to our
code that would require our code to be released under GPL".

Of course everybody knows that Microsoft does not like Linux
and other free software. So it is to be expected that they would
not do anything to encourage use of GPL software.

They don't specifically single out the GPL but use a definition that
covers the GPL, the LGPL and most other OSI approved licenses.
Sometimes they mention the GPL as an example of a covered license.
The terms to look out for are "Publicly Available Software",
"Potentially Viral Software" and "Identified Software".

> Here's what our lawyer said (more or less):

Of course you should follow your lawyer's advice instead of
the comments of some random stranger on the Internet. :)

> All restrictions on distribution of the GPL'd program appears under
> GPL section 2, which specifically targets modified copies only:

I believe this is not entirely accurate. Section 2b specifically
talks about "any work that you distribute or publish, that in whole
or in part contains or is derived from the Program or any part
thereof". And "Program" is defined as the original (section 0).

If the argument is that section 2b does not apply because the Program
is not modified, then the question is which section does give you the
right to distribute the GPL work. Perhaps section 3 does? It grants
rights to distribute "the Program (or a work based on it, under
Section 2)". But then you must accompany it with the complete
corresponding machine-readable source code (or include an offer). So
you can only distribute a "work based on the Program" if you make
available the source code of the entire "work based on the Program".

> 2. You may MODIFY your copy or copies of the Program or any
> portion of it, THUS FORMING A WORK BASED ON THE PROGRAM, and
> copy and distribute such MODIFICATIONS or work under the terms
> of Section 1 above, provided that you also meet all of these
> conditions:
>
> [...]
>
> Since "a work based on the Program" is defined as "modified GPL
> code", all the conditions and requirements that follow do not apply
> when all we do is link an unmodified GPL library to our program.
> Or so we were told.

GPL section 0:
[A] "work based on the Program" means either the Program or any
derivative work under copyright law: that is to say, a work
containing the Program or a portion of it, either verbatim or with
modifications and/or translated into another language. (Hereinafter,
translation is included without limitation in the term
"modification".)

I believe the first sentence of section 2 is an explanation ("if you
make a modification, which means that you are making a work based on
the Program") rather than a definition of "work based on the
Program". Clearly section 0 provides a definition and it is unusual
for a later section to override such an important definition.

> > "Work based on" is defined as derivative work under copyright law
> > and so this requirement kicks in for modified GPL code. But it
> > also applies to the original, unmodified work. And according
> > to the FSF it also applies to any work that links to the GPL
> > code.
>
> In light of what I said above, would you say that linking binary
> code is included in "modify your copy of the Program"?

As I understand it, the interpretation of the FSF is that linking
creates a "work based on the Program". Therefore, the work linked to
the GPL program can only be distributed in accordance with the terms
of the GPL and full source code must be provided.

This interpretation is based on the assumption that linking creates a
so-called derivative work under copyright law. As far as I know there
is no case law on this point, so it is difficult to be certain about
this. I would expect a prudent lawyer to recommend to his clients to
interpret the license in the 'worst' light, i.e. to assume that
linking does create a derivative work.

> But again, I was told that none of this matters since the people
> who wrote the license apparently had screwed up. Their intention
> was to prohibit linking, but that's not what the actual text says,
> and that is the only thing a judge would consider.

If the license is unclear, a court normally uses the intent of the
parties to interpret what was meant. Furthermore I think that you (or
your lawyer) is focusing only on a very small part of the GPL.

You need permission to distribute the GPL-licensed work linked
against your application. Permission to distribute is granted in
section 2, which you consider inapplicable because the GPL-licensed
work was not modified. Permission to distribute is also granted in
section 3, but this section also requires you to release source code
for something that is called a "work based on the Program." Therefore
we must determine what this is. I believe section 0 provides the
definition, and not section 2 since by your own reasoning section 2
only applies if the original work is modified. A section that does
not always apply cannot provide a definition for other cases (think
of definitions as constants and sections as functions; the definition
of section 2 then is a local constant that is undeclared in section
3).

Therefore the only question is whether a work linked to the
GPL-licensed program qualifies as a "work based on the Program". See
my comments above.

Alexander Terekhov

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Jul 6, 2004, 5:40:37 AM7/6/04
to

Arnoud Engelfriet wrote:
[...]

> This interpretation is based on the assumption that linking creates a
> so-called derivative work under copyright law. As far as I know there
> is no case law on this point, so it is difficult to be certain about
> this. I would expect a prudent lawyer to recommend to his clients to
> interpret the license in the 'worst' light, i.e. to assume that
> linking does create a derivative work.

http://www.linuxdevices.com/files/misc/asay-paper.pdf
(by Matt Asay, written for Professor Larry Lessig)

<quote>

as Jerry Epplin has written, kernel developers have consistently
supported such an open interpretation by accepting the presence of
proprietary hardware drivers. This tolerance of proprietary drivers
has held for a very long time, and numerous hardware manufacturers
currently depend on it.42 This essentially means that the core of
the system is off-limits (for tampering without sharing), but that
the core is open as an acceptable platform to build upon by creating
programs that leverage its functionality without stealing that
functionality and calling it one's own. This reading of the GPL has
become so prevalent in the past year that Stallman’s opinion on the
matter is largely irrelevant. The GPL has effectively merged with
the industry standard reading of derivatives in US software law.

</quote>

http://www.pbwt.com/Attorney/files/ravicher_1.pdf
(Software Derivative Work: A Circuit Dependent Determination)

No judge in his right mind can ever consider linking to be
exclusive privilege of software copyright owner.

http://www.law.cornell.edu/copyright/cases/125_F3d_580.htm
(try to apply the same logic to software copies).

regards,
alexander.

Per Abrahamsen

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Jul 6, 2004, 9:36:59 AM7/6/04
to
Haakon Riiser <hak...@ulrik.uio.no> writes:

> I can't even believe why they
> would do such a thing -- are they afraid of getting infected by
> the GPL license in some way? Do they mention the GPL specifically?

The Visual C++ runtime library license does not mention the GPL
specifically, but does mention "copyleft" licenses in general. As far
as I can see, it hits both GPL, LGPL, QPL, and perhaps even MPL (which
is a very weak copyleft).

I believe the GPL is the main target, because GPL'ed software are the
main competition to Microsoft in some markets. Most notoriously, the
Samba server.

> Here's what our lawyer said (more or less):

As another poster said, listening to your lawyer is a lot smarter than
listening to what I, or any other in this group, may say.

> All restrictions on distribution of the GPL'd program appears under
> GPL section 2, which specifically targets modified copies only:

Please note that the GPL does not *restrict* distribution. It
*allows* distribution. By default (i.e. copyright law), distribution
is not allowed. So you should search for those clauses that
explicitly allows distribution, not a lack of clauses that disallows
distribution.

> 2. You may MODIFY your copy or copies of the Program or any
> portion of it, THUS FORMING A WORK BASED ON THE PROGRAM,

Logically, this sentence (fragment) does not say that modifying the
program is the only way to form a work based on the program. It
implies that *if* you modify the program, you create a work based on
it. Nowhere does it states what happen if you do not modify the
program.

Haakon Riiser

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Jul 6, 2004, 10:12:37 AM7/6/04
to
[Arnoud Engelfriet]

> [...]


> Therefore the only question is whether a work linked to the
> GPL-licensed program qualifies as a "work based on the Program". See
> my comments above.

Again, thanks for your comments. Apparently, there isn't yet
a definitive answer to the legalities of GPL/non-GPL linking,
so I'll leave it at that. But there is one question I'd like to
have answered: Would it be OK for a BSD licensed server to have
both proprietary and GPL'd clients connected via shared memory?
(Disregard the fact that some proprietary licenses may forbid
even aggregation with GPL.) The BSD-style license is compatible
with the GPL, but is not viral, so hopefully this should be legal.

--
Haakon

Haakon Riiser

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Jul 6, 2004, 10:19:37 AM7/6/04
to
[Per Abrahamsen]

>> Here's what our lawyer said (more or less):
>
> As another poster said, listening to your lawyer is a lot smarter
> than listening to what I, or any other in this group, may say.

Don't worry, I posted the questions to get a feel for the general
consensus on the interpretation of the GPL; we will not make a
decision without consulting with out lawyer. :-)

--
Haakon

Alexander Terekhov

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Jul 6, 2004, 10:31:59 AM7/6/04
to
Arnoud Engelfriet wrote:

>
> Alexander Terekhov wrote:
> > No judge in his right mind can ever consider linking to be
> > exclusive privilege of software copyright owner.
>
> I'm not sure that the Linux license status is comparable to other
> GPL-licensed works. But in any case, without binding case law
> a prudent lawyer must prepare for the worst. It may be unlikely,
> but if the unlikely interpretation hurts your client, your
> client should prepare for it.

Yes. The only problem is that such "prudence" means tremendous loss
of world-wide productivity, it puts a barrier for many would-be-
contributors, etc. Many companies, as a matter of "prudent policy",
simply do NOT distribute and do NOT collaborate on the development
of the [L]GPL'ed works. It does NOT "protect" those works from
stealing (I mean "clean room"-like process but with the use of the
same algorithms, methods, nice ideas, etc. -- just get rid of the
original protected expressions). All those closed-source clones
would simply not exist.

regards,
alexander.

David Kastrup

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Jul 6, 2004, 10:34:03 AM7/6/04
to
Alexander Terekhov <tere...@web.de> writes:

> Arnoud Engelfriet wrote:
> >
> > Alexander Terekhov wrote:
> > > No judge in his right mind can ever consider linking to be
> > > exclusive privilege of software copyright owner.
> >
> > I'm not sure that the Linux license status is comparable to other
> > GPL-licensed works. But in any case, without binding case law
> > a prudent lawyer must prepare for the worst. It may be unlikely,
> > but if the unlikely interpretation hurts your client, your
> > client should prepare for it.
>
> Yes. The only problem is that such "prudence" means tremendous loss
> of world-wide productivity, it puts a barrier for many would-be-
> contributors, etc.

So you prefer falling over backwards and recommending recklessness.

--
David Kastrup, Kriemhildstr. 15, 44793 Bochum

Alexander Terekhov

unread,
Jul 6, 2004, 10:48:07 AM7/6/04
to

David Kastrup wrote:
[...]

> So you prefer falling over backwards and recommending recklessness.

I truly believe that "my" interpretation should prevail in court of
law. All the counter arguments I've seen over the years are neither
economically nor morally sound.

regards,
alexander.

David Kastrup

unread,
Jul 6, 2004, 10:55:00 AM7/6/04
to
Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]
> > So you prefer falling over backwards and recommending recklessness.
>
> I truly believe that "my" interpretation should prevail in court of
> law.

"should" and "is likely to" are two different things. It is foolish
to do things according to what one feel "should" happen in court, and
reckless to suggest to others to do so.

> All the counter arguments I've seen over the years are neither
> economically nor morally sound.

Tough. What counts is what the judges and juries will decide on. Not
that people are too fond of being battered with expensive injunctions
and being dragged before court in the first place (what is what you
are recommending by promulgating interpretations of the law that are
clearly not shared by the copyright holders), but they are also likely
to lose there when following your advice. Which is the reason that
most licence violations are settled out of court.

Alexander Terekhov

unread,
Jul 6, 2004, 11:12:43 AM7/6/04
to

David Kastrup wrote:
[...]

> and being dragged before court in the first place (what is what you
> are recommending by promulgating interpretations of the law that are
> clearly not shared by the copyright holders), but they are also likely
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

You mean the FSF? Bunch of zealots with a lawyer that mostly teach
history and spreads anarchistic propaganda. Not a serious opponent.

> to lose there when following your advice. Which is the reason that
> most licence violations are settled out of court.

Stop bluffing.

regards,
alexander.

Rui Miguel Seabra

unread,
Jul 6, 2004, 1:43:50 PM7/6/04
to gnu-misc...@gnu.org
On Tue, 2004-07-06 at 16:31 +0200, Alexander Terekhov wrote:
> contributors, etc. Many companies, as a matter of "prudent policy",
> simply do NOT distribute and do NOT collaborate on the development
> of the [L]GPL'ed works.

*sigh* I love the 'Many' number. The inverse is also true. Manu
companies, as a matter of "prudent policy" not only distribute but also
collaborate on the development of [L]GPL'ed works.


> It does NOT "protect" those works from
> stealing (I mean "clean room"-like process but with the use of the
> same algorithms, methods, nice ideas, etc. -- just get rid of the
> original protected expressions). All those closed-source clones
> would simply not exist.

No law "protects" any work. All laws protect are the artificial monopoly
rights granted by copyright law.

Software licenses merely sustain what you can or not do with the
software beyond copyright law. A copyright law violation is as severely
pursued be it Free Software as proprietary software, all it takes is the
rights' holder to take action.

You should stop a blind crusade (like yours) against the GPL. You're
sounding like a religious fanatic fighting something he considers a
filthy sin!

Rui

signature.asc

David Kastrup

unread,
Jul 6, 2004, 1:51:18 PM7/6/04
to
Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]

> > and being dragged before court in the first place (what is what
> > you are recommending by promulgating interpretations of the law
> > that are clearly not shared by the copyright holders), but they
> > are also likely ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>
> You mean the FSF? Bunch of zealots with a lawyer that mostly teach
> history and spreads anarchistic propaganda. Not a serious opponent.

Which must be why they were able to force NeXT computers to open their
Objective C compiler, Motorola to open their signal processor specific
variant of gcc and why they are seeing quite a bit of income from
out-of-court settlements. BTW, you don't get to be a law professor
if you are talking nonsense, or you would be one.

> > to lose there when following your advice. Which is the reason
> > that most licence violations are settled out of court.
>
> Stop bluffing.

It is fine if you want to live in your fairy world. But you should
not try to make others base their business decisions on your pipe
dreams.

Barak Zalstein

unread,
Jul 6, 2004, 2:13:28 PM7/6/04
to
David Kastrup wrote:

> It is fine if you want to live in your fairy world. But you should
> not try to make others base their business decisions on your pipe
> dreams.
>

And those others will probably be the only casualties from the little
license wars on this list.
While it is nice to know that CPL is reaching places where GPL never
would, innocent and naive programmers are going to be stuck with
software components that they cannot link together unless they want to
be persued by the FSF, IBM and Microsoft. (no matter whether FSF
derivative theory is crap or not).

Barak.

Alexander Terekhov

unread,
Jul 6, 2004, 2:29:36 PM7/6/04
to

David Kastrup wrote:
[...]

> Which must be why they were able to force NeXT computers to open their
> Objective C compiler,

You mean Objective-C front-end? They should have simply used plain
old C and the GCC (or whatever) as back-end, like Comeau C++. Well,

http://tinyurl.com/2f96c

<quote>

* I am not distributing "one program", so GPL doesn't apply to me either.

The FSF position would be that this is still one program, which has
only been disguised as two. The reason it is still one program is
that the one part clearly shows the intention for incorporation of the
other part.

I say this based on discussions I had with our lawyer long ago. The
issue first arose when NeXT proposed to distribute a modified GCC in
two parts and let the user link them. Jobs asked me whether this was
lawful. It seemed to me at the time that it was, following reasoning
like what you are using; but since the result was very undesirable for
free software, I said I would have to ask the lawyer.

What the lawyer said surprised me; he said that judges would consider
such schemes to be "subterfuges" and would be very harsh toward
them. He said a judge would ask whether it is "really" one program,
rather than how it is labeled.

So I went back to Jobs and said we believed his plan was not allowed
by the GPL.

</quote>

He and his lawyer (Moglen, I guess) would have been laughed out of
court with such silly "subterfuge" and "one part clearly shows the
intention for incorporation of the other part" arguments.

> Motorola to open their signal processor specific
> variant of gcc

Details?

regards,
alexander.

Alexander Terekhov

unread,
Jul 6, 2004, 2:41:49 PM7/6/04
to

Barak Zalstein wrote:
[...]

> While it is nice to know that CPL is reaching places where GPL never
> would, innocent and naive programmers are going to be stuck with
> software components that they cannot link together unless they want to
> be persued by the FSF, IBM and Microsoft.

The CPL is fully "compatible" with the GPL. You can link them
together as much as you want.

> (no matter whether FSF derivative theory is crap or not).

It is crap.

regards,
alexander.

David Kastrup

unread,
Jul 6, 2004, 2:50:44 PM7/6/04
to
Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]
> > Which must be why they were able to force NeXT computers to open their
> > Objective C compiler,
>
> You mean Objective-C front-end? They should have simply used plain
> old C and the GCC (or whatever) as back-end, like Comeau C++.

Sure, but they didn't, and thus had to open the sources after the FSF
went after them. And your point was?

> <quote>
>
> * I am not distributing "one program", so GPL doesn't apply to me either.
>
> The FSF position would be that this is still one program, which has
> only been disguised as two. The reason it is still one program is
> that the one part clearly shows the intention for incorporation of the
> other part.
>
> I say this based on discussions I had with our lawyer long ago. The
> issue first arose when NeXT proposed to distribute a modified GCC in
> two parts and let the user link them. Jobs asked me whether this was
> lawful. It seemed to me at the time that it was, following reasoning
> like what you are using; but since the result was very undesirable for
> free software, I said I would have to ask the lawyer.
>
> What the lawyer said surprised me; he said that judges would consider
> such schemes to be "subterfuges" and would be very harsh toward
> them. He said a judge would ask whether it is "really" one program,
> rather than how it is labeled.
>
> So I went back to Jobs and said we believed his plan was not allowed
> by the GPL.
>
> </quote>
>
> He and his lawyer (Moglen, I guess) would have been laughed out of
> court with such silly "subterfuge" and "one part clearly shows the
> intention for incorporation of the other part" arguments.

Which must be why NeXT bowed to the pressure.

> > Motorola to open their signal processor
> > specific variant of gcc
>
> Details?

What for? Google for it if you want to. Since facts don't get you
out of denial, where is the point in bothering to dig up more facts?

Alexander Terekhov

unread,
Jul 6, 2004, 3:01:19 PM7/6/04
to

Rui Miguel Seabra wrote:

> A copyright law violation is as severely pursued be it
> Free Software as proprietary software

"The church of GNU denounce copyright as a evil plot... unless this is
connected with the direct attacks of the legality of GPL. ;-)"

-- Bezroukov
regards,
alexander.

Alexander Terekhov

unread,
Jul 6, 2004, 3:36:37 PM7/6/04
to

David Kastrup wrote:
[...]

> Which must be why NeXT bowed to the pressure.

I'm sure that FSF's/RMS's power of "negative marketing/PR" was the
reason, not legal challenges. This power is in severe decline because
of proliferation of open source ala OSI: apache, eclipse, etc.

regards,
alexander.

Rui Miguel Seabra

unread,
Jul 6, 2004, 3:47:09 PM7/6/04
to gnu-misc...@gnu.org
On Tue, 2004-07-06 at 21:01 +0200, Alexander Terekhov wrote:
> Rui Miguel Seabra wrote:
>
> > A copyright law violation is as severely pursued be it
> > Free Software as proprietary software
>
> "The church of GNU denounce copyright as a evil plot... unless this is
> connected with the direct attacks of the legality of GPL. ;-)"

Why do you keep a religious fanatic tone in your emails? I don't
understand your point.

Without copyright law we'd only have contract law, which could be worse
than the former.

That doesn't mean that there aren't evil changes to copyright law:

Namely DMCA (with EUCD in Europe), endless retroactive extensions,
etc...

Rui

signature.asc

David Kastrup

unread,
Jul 6, 2004, 4:13:08 PM7/6/04
to
Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]
> > Which must be why NeXT bowed to the pressure.
>
> I'm sure that FSF's/RMS's power of "negative marketing/PR" was the
> reason, not legal challenges.

Sure, since large companies are known to be cuddling up to FSF/RMS.
You _are_ aware that at that time there was actually already a boycott
on Apple-related companies and products in effect by the FSF for
several years because of Apple's touch-and-feel lawsuits?

That has not impressed Apple at all, or other companies with similar
attitudes.

"negative marketing/PR" by the FSF has failed to impress large
companies all the time. Look how much Microsoft worries about
negative marketing. They do worry about the GPL, though. Their "UNIX
Services for Windows" product comes with source availability for its
GPL components AFAIK.

Go figure.

> This power is in severe decline because of proliferation of open
> source ala OSI: apache, eclipse, etc.

Which must be why the incoming payments from GPL violation settlings
have been on the rise continually.

Again: fine if you want to stay in your fairy world, but it is
irresponsible to try getting others hooked on your pipe dreams.

Alexander Terekhov

unread,
Jul 6, 2004, 4:20:20 PM7/6/04
to

David Kastrup wrote:
[...]

> Which must be why the incoming payments from GPL violation settlings
> have been on the rise continually.

Details? (absurdity of the underlying argument aside for a moment)

regards,
alexander.

David Kastrup

unread,
Jul 6, 2004, 4:38:35 PM7/6/04
to
Alexander Terekhov <tere...@web.de> writes:

As if you ever were impressed by facts.

<URL:http://www.linuxbusinessweek.com/story/34553.htm>
<URL:http://lwn.net/Articles/73848/>

<URL:http://lwn.net/Articles/71418/>
[...]

As part of the aggreement, Allnet will make a significant donation
to two tax-exempt non-for-profit organizations established under
german law: The Free Software Foundation Europe
(http://www.fsfeurope.org/), and the Foundation of a Free
Information Infrastructure (http://www.ffii.org/).

<URL:http://www.netfilter.org/news/2004-03-02-fsc-gpl.html>
[...]
As part of the aggreement, FSC will show their support for the
free software community by offering significant sponsorship to an
international Linux conference known as 'Linux Kongress'
(http://www.linux-kongress.org/), as well as a donation to the
Free Software Foundation Europe (http://www.fsf-europe.org/).

One hears more about these kinds of settlements lately. Unless one
happens to be "lalala, I can't hear you" Terekhov, of course,

Rui Miguel Seabra

unread,
Jul 6, 2004, 4:35:12 PM7/6/04
to gnu-misc...@gnu.org

Like:
http://netfilter.org/news/2004-02-17-allnet-gpl.html
Allnet has now agreed to adhere to all clauses of the license and
inform its customers about their respective rights and obligations
of the GPL. It will further refrain from offering any new
netfilter/iptables based products without adhering to the GPL.

As part of the aggreement, Allnet will make a significant donation
to two tax-exempt non-for-profit organizations established under
german law: The Free Software Foundation Europe

http://www.fsfeurope.org/), and the Foundation of a Free Information
Infrastructure (http://www.ffii.org/).

If you visit the News section, you'll find a few other cases the
Netfilter project has pursued...

Rui

signature.asc

Barak Zalstein

unread,
Jul 6, 2004, 11:45:21 PM7/6/04
to
Alexander Terekhov wrote:
> The CPL is fully "compatible" with the GPL. You can link them
> together as much as you want.

Oh, I must have been looking in the wrong place for approval.
http://www.gnu.org/philosophy/license-list.html
"
Common Public License Version 1.0
This is a free software license but it is incompatible with the GPL.

The Common Public License is incompatible with the GPL because it
has various specific requirements that are not in the GPL.

For example, it requires certain patent licenses be given that the
GPL does not require. (We don't think those patent license requirements
are inherently a bad idea, but nonetheless they are incompatible with
the GNU GPL.)

"

http://www-106.ibm.com/developerworks/library/os-cplfaq.html
"

12 Does the CPL allow me to take the Source Code for a Program licensed
under it and include all or part of it in another program licensed under
the GNU General Public License (GPL), Berkeley Software Distribution
(BSD) license or other Open Source license?
No. Only the owner of software can decide whether and how to license it
to others. Contributors to a Program licensed under the CPL understand
that source code for the Program will be made available under the terms
of the CPL. Unless you are the owner of the software or have received
permission from the owner, you are not authorized to apply the terms of
another license to the Program by including it in a program licensed
under another Open Source license. By the way, the same answer applies
if you want to include source code licensed under another Open Source
license in a program licensed under the CPL.
"

Alexander Terekhov

unread,
Jul 6, 2004, 5:12:45 PM7/6/04
to

Barak Zalstein wrote:

[... snip unfounded FSF's claims ...]

> 12 Does the CPL allow me to take the Source Code ...

What don't you understand? Linking != taking code. You're not applying
the terms of other license(s) when you just link something together.

"9. If I write a module to add to a Program licensed under the CPL and
distribute the object code of the module along with the rest of the
Program, must I make the source code to my module available in
accordance with the terms of the CPL?

No, as long as the module is not a derivative work of the Program."

1. DEFINITIONS

"Contribution" means:

a) in the case of the initial Contributor, the initial code and
documentation distributed under this Agreement, and

b) in the case of each subsequent Contributor:

i) changes to the Program, and

ii) additions to the Program;

where such changes and/or additions to the Program originate
from and are distributed by that particular Contributor. A
Contribution 'originates' from a Contributor if it was added to
the Program by such Contributor itself or anyone acting on such
Contributor's behalf. <LENSES ON> Contributions do not include
additions to the Program which: (i) are separate modules of
software distributed in conjunction with the Program under
their own license agreement, and (ii) are not derivative works
of the Program. <LENSES OFF>

"Program" means the Contributions distributed in accordance with
this Agreement.

regards,
alexander.

Alexander Terekhov

unread,
Jul 6, 2004, 5:32:18 PM7/6/04
to

David Kastrup wrote:
[...]

> As if you ever were impressed by facts.
>
> <URL:http://www.linuxbusinessweek.com/story/34553.htm>

Oh boy. Go and do some research. The open sourcing of Gemini was
a "non-issue" for NuSphere and it was acctually "almost done" before
the clash. I'll give you a sort of hint for the search...

<quote>

Johnston says at the heart of the issue is a pending lawsuit in
which the two companies are suing each other over their changing
relationship and trademark issues.

Neither side would talk in great detail about the pending lawsuits,
but Johnston says NuSphere hasn't been allowed to participate
in the existing community at MySQL AB's MySQL.com.

"We tried to submit changes [to the MySQL code] under the GPL to
that site, and they were refused on a commercial basis, not on a
technical basis," Johnston adds. "The code works fine, and we
ship it as part of our GPL version of MySQL ... but they are not
available from MySQL.com, because they won't accept anything they
don't own the copyright to."

[...]

MySQL AB's Mickos, on the phone from Finland, says the MySQL code,
while being Open Source, has always been created almost entirely by
project founders Michael "Monty" Widenius and David Axmark.

"It has never been a 'bazaar' product like in The Cathedral and
the Bazaar," Mickos says. "It's not a product everybody has
contributed to, and that never was the intention.

"Monty has never accepted code contributions from other people,"
Mickos adds. "If he has gotten something [from someone else], they
have been donations to him, and he rewrites them, but that's minor.
There never has been a situation where anybody could freely
contribute code."

[...]

Johnston says the two companies worked together on a press release
about Gemini being part of version 4 of MySQL, but NuSphere is still
waiting for that code to be released. "We checked the Gemini code
into that source tree, but that source tree hasn't left the gate
yet," he says. "Now they've refused our ability to contribute Gemini
at all. So that's an interesting claim."

</quote>

Heck, the entire article can be found here:

http://www.newsforge.com/article.pl?sid=01/07/12/2142237
(NuSphere: MySQL.org needed because MySQL AB won't accept code)

Kinda ironically,

<quote>

Johnston says the relationship between the two companies has changed
over the past couple of months, as MySQL AB has accepted venture
capital and brought in a new CEO.

</quote>

See the parallels? ;-)

regards,
alexander.

P.S.

http://www.politechbot.com/p-03194.html
http://www.nusphere.com/releases/2002/022702_malert.htm

Rui Miguel Seabra

unread,
Jul 6, 2004, 5:31:49 PM7/6/04
to gnu-misc...@gnu.org
On Tue, 2004-07-06 at 23:12 +0200, Alexander Terekhov wrote:
> Barak Zalstein wrote:
>
> [... snip unfounded FSF's claims ...]
>
> > 12 Does the CPL allow me to take the Source Code ...
>
> What don't you understand? Linking != taking code. You're not applying
> the terms of other license(s) when you just link something together.

Do you know anything about computers?

Does the work actually works just the same without the linked part?

If it doesn't, then it's no longer one work but two works combined into
a work which is the direct derivate of both works.

So you have to respect both licenses. So if one has restrictions the
like of the GNU GPL (to assure freedom for all users) you have to give
those same freedoms to all users on the derivate work.

If the licenses are incompatible, IE if the derivate work can't provide
GPL's conditions, then they can't be combined in that way since it will
be a copyright violation of the original GPL'ed work.

Rui

signature.asc

Alexander Terekhov

unread,
Jul 6, 2004, 5:42:25 PM7/6/04
to

Rui Miguel Seabra wrote:

[... netfiler's racketing ...]

http://groups.google.com/groups?selm=40A2027B.DDA419DC%40web.de

regards,
alexander.

Alexander Terekhov

unread,
Jul 6, 2004, 5:49:18 PM7/6/04
to

Rui Miguel Seabra wrote:
[...]

> Do you know anything about computers?

Not much.

>
> Does the work actually works just the same without the linked part?

Whether it "actually works" is irrelevant. Software is protected as
literary works.

>
> If it doesn't, then it's no longer one work but two works combined into
> a work which is the direct derivate of both works.

And your car is a derivative works of its gas pedal. Go take some
medicine.

>
> So you have to respect both licenses. So if one has restrictions the
> like of the GNU GPL (to assure freedom for all users) you have to give
> those same freedoms to all users on the derivate work.

Right. But your car is not a derivative works of its gas pedal.

>
> If the licenses are incompatible, ...

Now, this*** is kinda relevant, I think. ;-)

----
A recent press conference of the Free Software Foundation confirmed
the rumors that the GNU General Public License was found to be
incompatible with itself. This newly discovered fact may actually
cause a lot of disorder in the free software world in which most
programs and libraries are licensed under this license.

Richard Stallman, chairman of the FSF, called upon developers to
immediately exempt GPL-licensed software from the GPL, as far as
linking them with GPL programs is concerned. "We have already made
sure all GNU software and every other software that is licensed to
the Free Software Foundation would be ad-hoc compatible with itself.
However we need other developers to do the same for their software",
Stallman said.

Eben Moglen, the FSF's attorney outlined the subsequent steps that
his organization will take to overcome this crisis. The first step
would be releasing a Modified General Public License (or MGPL for
short) that will be compatible with the GPL and with itself as well
as with all other licenses that the GPL is already compatible with.
It will be labeled the GPL version 2.1, thus allowing developers to
convert their software to it. He noted that care would be taken to
make sure the upcoming GPL version 3.0 will be compatible with
itself, as well as the MGPL.

For the time being, though, there is an explosion of commentary,
confusion and otherwise bad temper about the newly formed situation.
Eric S. Raymond, the famous Open Source Guru notes: "This is one of
the greatest blows to the Open Source world, I have yet encountered.
I have already exempted all of my own software from the GPL in this
regard, but there is a lot of other software out there, and many of
its authors are not very communicative.

Bill Gates, Microsoft's co-founder, on the other hand, seems to
find the situation very amusing: "I said times and again, that
viral licenses such as the GPL are a bad idea, and many open-source
advocates disagreed. Now they see that even making sure one's
license is compatible with itself, is hard to do when you open that
can of worms."

The integrity of many software projects whose license is the GPL and
yet contain works licensed by several developers is in jeopardy. The
Linux kernel is a prominent example of such a case. In a post to its
mailing list, Linus Torvalds commented that, in their case, it was
not an issue. "My interpretation of the GPL is already quite unusual,
so I'll simply rule that I also interpret the GPL as compatible with
itself."
----

regards,
alexander.

***) Posted by Shlomi Fish on Monday April 01

David Kastrup

unread,
Jul 6, 2004, 5:56:49 PM7/6/04
to
Alexander Terekhov <tere...@web.de> writes:

> Rui Miguel Seabra wrote:
>
> [... netfiler's racketing ...]
>
> http://groups.google.com/groups?selm=40A2027B.DDA419DC%40web.de

Bravo. Some reference to a post of yours without original content
where you refer to an obscure article of somebody that does not even
understand the difference between a contract and a licence.

Of course, the GPL "does not establish a governing law" since the
scope is the copyright law of the country where the software is being
used, "the scope of "derivative works" that are governed by the GPL is
unclear" is nonsense since it is not the GPL that can even define the
scope, as it is not a contract but a licence and so can only apply to
things otherwise prohibited by copyright law, and of course it is
nonsense to claim "and the legal effect of the FAQ (which are not part
of the license itself) is uncertain" since the legal effect of the
FAQ, not being part of the licence itself, is obviously non-existent.

It is only there to point the FSF's view on the implications of the
GPL. Which is somewhat helpful for figuring out when they will sue
you, but obviously not for figuring out what the court will then
decide upon.

And you consider this nonsensical comment to somehow negate the fact
that several companies have been forced, sometimes after being
pressured by the courts, to settle into GPL compliance, usually
connected with a payment to free software foundations.

Rui Miguel Seabra

unread,
Jul 6, 2004, 5:58:26 PM7/6/04
to gnu-misc...@gnu.org
On Tue, 2004-07-06 at 23:42 +0200, Alexander Terekhov wrote:
> Rui Miguel Seabra wrote:
>
> [... netfiler's racketing ...]
>
> http://groups.google.com/groups?selm=40A2027B.DDA419DC%40web.de

*sigh*

How clear can the Cornell site be? Do you understand English at all?


[3] "Derivative work" is a defined term:

A "derivative work" is a work based upon one or more preexisting
works, such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any
^^^^^^
other form in which a work may be recast, transformed, or
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
adapted.
^^^^^^^
A work consisting of editorial revisions, annotations,
elaborations, or other modifications which, as a whole,
represent an original work of authorship, is a "derivative
work".

To use a a library, you recast the work (the library) with your program.
So you've got to have permission to recast the work.

Now, a GPL'ed library gives explicit permission to recast the work IF
and ONLY IF you respect the conditions therein expressed.

Nothing else allows you to recast the work but the license.

Repeat after me:

Nothing else allows you to recast the work but the license.

Go eat my dust 'lex.

Rui

signature.asc

Alexander Terekhov

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Jul 6, 2004, 6:09:00 PM7/6/04
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David Kastrup wrote:
[...]
> obscure article of somebody that does not even understand ...
^^^^^^^^

Representative Clients:

· R&D Pipeline, Inc.
· Neuros Corporation
· Sony Corporation
· MobileWay, Inc.
· PortalPlayer, Inc.
· E.I. Du Pont de Nemours & Co.
· Eastman Chemical Company
· NEC

Prior Professional Experience

· Associate, Brobeck Phleger & Harrison, San Francisco, California, 1982-1986
· Law Clerk, Chief Judge of Southern District of California, 1981-1982

Community and Professional Organizations

· Listed in the 2004 “America’s Leading Lawyers for Business”
· Listed in the 2003 "Expert Guide – The World's Leading Trademark Lawyers"
· Listed in the 2002 Who’s Who Legal publication, “The International Who’ Who of Business Lawyers”
· Listed in the 1999 Law Business publication, “ An International Who’s Who of Internet and e-Commerce Lawyers”
· Listed on “The Best Lawyers in America” website
· Named as one of America’s 100 most influential lawyers, National Law Journal, 1997
· Computer Law Association; Board of Directors
· Journal of Internet Law; Editor in Chief
· BNA Electronic Commerce & Law Report, Advisory Board
· Computer Lawyer; Editorial Board
· Cyberspace Lawyer; Editorial Board
· Electronic Commerce and Law Report Advisory Board
· European Intellectual Property Review; Country Correspondent
· Global Intellectual Property Asset Management Report, Advisory Board
· International Trademark Association
· South Bay Trademark Lawyer’s Association; Founder
· Bar Association of San Francisco; former Chairman of the Computer Law Section

Education

J.D. - Harvard Law School (1981) (1998 Distinguished Alumni Award)
B.S. - University of Michigan (Chemistry, magna cum laude, 1974)
University of Paris, Sorbonne (Certificate of Completion, 1972)

regards,
alexander.

Rui Miguel Seabra

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Jul 6, 2004, 6:00:08 PM7/6/04
to gnu-misc...@gnu.org
On Tue, 2004-07-06 at 23:49 +0200, Alexander Terekhov wrote:
> Rui Miguel Seabra wrote:
> [...]
> > Do you know anything about computers?
>
> Not much.
>
> >
> > Does the work actually works just the same without the linked part?
>
> Whether it "actually works" is irrelevant. Software is protected as
> literary works.

No it is not. The Berne Convention _actually_ says that it covers also
the compiled binary version and execution.

Rui

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David Kastrup

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Jul 6, 2004, 6:14:42 PM7/6/04
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Alexander Terekhov <tere...@web.de> writes:

> David Kastrup wrote:
> [...]
> > obscure article of somebody that does not even understand ...
> ^^^^^^^^

[The usual irrelevant references]

When somebody is obviously talking nonsense, it is quite sufficient to
point out the mistakes he commits. His past experience does not
change them.

Alexander Terekhov

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Jul 6, 2004, 6:15:42 PM7/6/04
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Rui Miguel Seabra wrote:
[...]

> Go eat my dust 'lex.

You go first.

http://digital-law-online.info/lpdi1.0/treatise27.html

<quote>

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.

[... explanation ...]

It could be argued that the component program really does include
portions of the library that it uses – data structures that are
passed as parameters, or even the parameter lists themselves. But
elements dictated by external considerations are filtered out when
trying to determine whether there is copyright infringement.

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.

</quote>

regards,
alexander.

Alexander Terekhov

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Jul 6, 2004, 6:19:37 PM7/6/04
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Rui Miguel Seabra wrote:
[...]
> No it is not. The Berne Convention _actually_ says that it covers also
> the compiled binary version and execution.

"Binary version" is just a copy in another form. It's also not a
derivative. What do you mean by "execution"? Which article is that?

regards,
alexander.

Alexander Terekhov

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Jul 6, 2004, 6:24:03 PM7/6/04
to

David Kastrup wrote:
[...]

> When somebody is obviously talking nonsense, it is quite sufficient to
> point out the mistakes he commits.

http://groups.google.com/groups?selm=cauv72%249nu%241%40vegh.ks.cc.utah.edu
http://groups.google.com/groups?selm=cauvfk%249sc%241%40vegh.ks.cc.utah.edu

Sufficient?

regards,
alexander.

Rui Miguel Seabra

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Jul 6, 2004, 6:23:33 PM7/6/04
to gnu-misc...@gnu.org
On Wed, 2004-07-07 at 00:15 +0200, Alexander Terekhov wrote:
> 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.

Yes, that's right. That's why the glibc is LGPL and not GPL.

> 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.

More and more. Right now Microsoft is trying to prevent creation of
GPL'ed software on Windows toolkits...

Rui

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Alexander Terekhov

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Jul 6, 2004, 6:41:35 PM7/6/04
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Rui Miguel Seabra wrote:
>
> On Wed, 2004-07-07 at 00:15 +0200, Alexander Terekhov wrote:
> > 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.
>
> Yes, that's right. That's why the glibc is LGPL and not GPL.

http://groups.google.de/groups?selm=40239163.78134B8B%40web.de
http://groups.google.de/groups?selm=x5d68stcln.fsf%40lola.goethe.zz
http://groups.google.de/groups?selm=4023C5D4.522B4B7F%40web.de

>
> > 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.
>
> More and more. Right now Microsoft is trying to prevent creation of
> GPL'ed software on Windows toolkits...

http://groups.google.com/groups?selm=40D7E7C0.64F74067%40web.de

regards,
alexander.

Rui Miguel Seabra

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Jul 6, 2004, 6:44:35 PM7/6/04
to gnu-misc...@gnu.org

About TRIPS:
http://en.wikipedia.org/wiki/Agreement_on_Trade-
Related_Aspects_of_Intellectual_Property_Rights

http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm


TRIPS Article 10.1 says programs for computers "whether in source or
object code, shall be protected as literary works under the Berne
Convention", so let's look at the Berne Convention:

http://www.wipo.int/clea/docs/en/wo/wo001en.htm

Later on reaffirmed and updated:

http://www.wipo.int/clea/docs/en/wo/wo033en.htm


WIPO Copyright Treaty
and
Agreed statements Concerning the WIPO Copyright Treaty

WIPO Copyright Treaty*
(adopted in Geneva on December 20, 1996)


Where we find the _directly_relevant_ part:

Article 4
Computer Programs

Computer programs are protected as literary works within the meaning of
Article 2 of the Berne Convention. Such protection applies to computer
programs, whatever may be the mode or form of their expression[3]


[3] Agreed statements concerning Article 4: The scope of protection for
computer programs under Article 4 of this Treaty, read with Article 2,
is consistent with Article 2 of the Berne Convention and on a par with
the relevant provisions of the TRIPS Agreement.

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Alexander Terekhov

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Jul 6, 2004, 7:04:28 PM7/6/04
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Rui Miguel Seabra wrote:
[...]
> Where we find the _directly_relevant_ part:
>
> Article 4
> Computer Programs
>
> Computer programs are protected as literary works within the meaning of
> Article 2 of the Berne Convention. Such protection applies to computer
> programs, whatever may be the mode or form of their expression[3]
>
> [3] Agreed statements concerning Article 4: The scope of protection for
> computer programs under Article 4 of this Treaty, read with Article 2,
> is consistent with Article 2 of the Berne Convention and on a par with
> the relevant provisions of the TRIPS Agreement.

Yes. And neither of these documents say anything about execution.

regards,
alexander.

Rui Miguel Seabra

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Jul 6, 2004, 6:59:48 PM7/6/04
to gnu-misc...@gnu.org
On Wed, 2004-07-07 at 00:41 +0200, Alexander Terekhov wrote:
> Rui Miguel Seabra wrote:
> > On Wed, 2004-07-07 at 00:15 +0200, Alexander Terekhov wrote:
> > > 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.
> >
> > Yes, that's right. That's why the glibc is LGPL and not GPL.

LOL, you're like a robot, continuously posting the same gibberish and
self references...

> http://groups.google.de/groups?selm=40239163.78134B8B%40web.de

Posted by yourself, no external references

> http://groups.google.de/groups?selm=x5d68stcln.fsf%40lola.goethe.zz

Baffled by this link. You poit to something that challenges your POV.

> http://groups.google.de/groups?selm=4023C5D4.522B4B7F%40web.de

Ah external references (some), let's see:

Previously Kastrup said:
The whole CD is a derivative work in the form of an agglomeration.

Then you reply (standing high on the chair):
You can't have it both ways. It's either a derivative work or
a compilation (collective work)

Of course, what Kastrup meant was collective work (but used a confusing
choice of words).

Of course, the technical term is not derivative. But it's easy to get
confused trying to put it in ways 3 year olds would understand and you
still don't.

As to usage of Linux, Linus himself adds an explicit permission to link,
just before the GPL v2:

NOTE! This copyright does *not* cover user programs that use kernel
services by normal system calls - this is merely considered normal use
of the kernel, and does *not* fall under the heading of "derived work".

So it was _his_ call to declare it outside the scope. Don't confuse an
explicit permission from the author with the default.

> > > 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.
> >
> > More and more. Right now Microsoft is trying to prevent creation of
> > GPL'ed software on Windows toolkits...
>
> http://groups.google.com/groups?selm=40D7E7C0.64F74067%40web.de

DJB would be right, if he was right. But he isn't. A brilliant coder,
though I just appreciated style and not content.


Rui

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Rui Miguel Seabra

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Jul 6, 2004, 7:11:20 PM7/6/04
to gnu-misc...@gnu.org

They do, but not explicitly:

whatever may be the mode or form of their expression

Rui

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Rui Miguel Seabra

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Jul 6, 2004, 7:15:41 PM7/6/04
to gnu-misc...@gnu.org
On Wed, 2004-07-07 at 00:11 +0100, Rui Miguel Seabra wrote:
> On Wed, 2004-07-07 at 01:04 +0200, Alexander Terekhov wrote:
> > Yes. And neither of these documents say anything about execution.
>
> They do, but not explicitly:
>
> whatever may be the mode or form of their expression

This doesn't mean that execution is covered by Copyright.

It means that running the program doesn't exempt coverage!

Rui

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Alexander Terekhov

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Jul 6, 2004, 7:27:12 PM7/6/04