[LMAO] El Reg: "GPLv2 - copyright code or contract?"
Alexander Terekhov
"GPLv2 - copyright code or contract?
Open source legal minds unravel license
By Austin Modine in San Francisco � Get more from this author
Posted in Software, 15th October 2009 06:02 GMT
Two prominent IP lawyers have warned that the all-pervasive General
Public License version 2 (GPLv2) contains legally ambiguous wording that
may be problematic for licensees.
They claim GPLv3 and AGPLv3 are much better suited for the realities of
modern open source software.
"If you go back in time to when GPLv2 was written, I don't think people
were aware of just how ubiquitous this license would become and how
closely scrutinized it would be," said Mark Radcliffe, partner at the
firm DLA Piper and general counsel for the Open Source Initiative (OSI).
"At that time, open source was not something as broadly used as it is
now."
Radcliffe was joined by Karen Copenhaver, partner at Choate Hall &
Stewart and counsel for the Linux Foundation, for a GPL web conference
hosted by the license-sniffing firm Black Duck software.
According to Radcliffe, the most important issue is defining the scope
of the GPL. "This is a complicated question," he said, "in part because
the GPL itself is not as clear as it could have been and in part because
it has changed over time."
Some of the biggest concerns over using GPLv2 relate to the definitions
of "derivative work" and "distribution," which Radcliffe says are used
in GPLv2 "in a less than precise fashion."
Under US law, a derivative work is based upon one or more preexisting
works. This might include a translation, musical arrangement,
dramatization, or motion picture version.
The challenge, according to the two lawyers, is that US copyright
framework is not well suited to computer software. A term like
"derivative work" may be reasonably easy to understand in the context of
a book or a movie, but there are several levels more difficult in terms
of software.
GPLv2 tosses out this legal terminology in free fashion. Under the terms
and conditions for copying, distribution, and modification for GPLv2:
This License applies to any program or other work which contains a
notice placed by the copyright holder saying it may be distributed under
the terms of this General Public License. The "Program", below, refers
to any such program or work, and 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".)
Also:
You must cause any work that you distribute or publish, that in whole or
in part contains or is derived from the Program or any part thereof, to
be licensed as a whole at no charge to all third parties under the terms
of this License.
And finally the infamous:
Thus, it is not the intent of this section to claim rights or contest
your rights to work written entirely by you; rather, the intent is to
exercise the right to control the distribution of derivative or
collective works based on the Program.
Radcliffe reckons that what we see here is inconsistent uses of the
terms "based on," "derived from," and "collective works" � terms based
on US copyright law. This leads to ambiguity. Is "in whole or in part
contains or is derived from" meant to be the same as "modification"? Are
they are both "derivative works"?
This marks one of the core questions of GPLv2: Is it based on copyright
or is it a contract that, while borrowing some copyright terms,
ultimately stands on its own? Radcliffe adds that the "collective work"
bit in particular makes him nervous because what constitutes
"collective" in a computer program is often difficult to determine.
Adding to potential troubles is that different countries obviously have
different copyright laws and therefore different views on terms like
"derivative works." And even within the United States, there are several
interpretations that may shift over time.
"It's so interesting when you talk to many people that have spent a lot
of time with the GPL and discuss derivative works," said Copenhaver.
"Everybody has their own story, and some of that is based on when they
first read the GPL and when they first began to think about what a
derivative work is."
Copenhaver said the definition of a derivative work has shifted over
time because everything from the way we write software to how software
is protected under copyright to how it's distributed and open source
community itself has changed over time as well.
"It's a little like going to a dance and everybody dances the way they
danced in college," she said. "Everybody has a different understanding
and a lot of it is based on when they first began looking at these
issues."
More recently penned licensing terms like GPLv3 and AGPLv3 avoid this
kind of terminology, including interfering turns of phrase such as "to
'propagate' a work" or "to 'convey' a work."
"I think the critical thing to recognize in the differentiation between
GPLv2, GPLv3, and AGPLv3 is that there was a very strong effort to
purposefully distance ourselves from copyright laws," said Radcliffe.
Copyright law is "not stable," he says, and it changes over time.
Equally important is that copyright law varies from country to country.
Copenhaven says we should focus not on whether something is derivative,
but on what is considered a separate and independent work.
From GPLv2:
If identifiable sections of that work are not derived from the Program,
and can be reasonably considered independent and separate works in
themselves, then this License, and its terms, do not apply to those
sections when you distribute them as separate works. But when you
distribute the same sections as part of a whole which is a work based on
the Program, the distribution of the whole must be on the terms of this
License, whose permissions for other licensees extend to the entire
whole, and thus to each and every part regardless of who wrote it.
She says that using this provision is helpful to understanding the scope
of collective and derivative works that pops up in GPLv2.
A web rebroadcast of the seminar, along with earlier talks on open
source licensing, can be found on Black Duck's website. (Note that
registration is required). �
Correction
The lead sentence was modified to better reflect the positions of
Copenhaver and Radcliffe."
regards,
alexander.
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
Hadron
> http://www.theregister.co.uk/2009/10/15/black_duck_gpl_web_conference_copenhaver_radcliffe/
>
> "GPLv2 - copyright code or contract?
>
> Open source legal minds unravel license
>
> By Austin Modine in San Francisco • Get more from this author
>
> Posted in Software, 15th October 2009 06:02 GMT
>
> Two prominent IP lawyers have warned that the all-pervasive General
> Public License version 2 (GPLv2) contains legally ambiguous wording that
> may be problematic for licensees.
Impossible.
Peter Koehlmann told us here in COLA that is was "easy" and only
"windiots" could not understand it. He is, of course, quite insane.
Moshe Goldfarb
> Alexander Terekhov <tere...@web.de> writes:
>
>> http://www.theregister.co.uk/2009/10/15/black_duck_gpl_web_conference_copenhaver_radcliffe/
>>
>> "GPLv2 - copyright code or contract?
>>
>> Open source legal minds unravel license
>>
>> By Austin Modine in San Francisco 嚙瘟 Get more from this author
>>
>> Posted in Software, 15th October 2009 06:02 GMT
>>
>> Two prominent IP lawyers have warned that the all-pervasive General
>> Public License version 2 (GPLv2) contains legally ambiguous wording that
>> may be problematic for licensees.
>
> Impossible.
>
> Peter Koehlmann told us here in COLA that is was "easy" and only
> "windiots" could not understand it. He is, of course, quite insane.
Just about every single one of these "what's the GPL" type
threads goes on for pages.
This pretty much confirms that it is quite complex and in fact
could possibly be dangerous depending upon interpretation.
Alan Mackenzie
> On Sat, 17 Oct 2009 15:30:35 +0200, Hadron wrote:
>> Alexander Terekhov <tere...@web.de> writes:
>>> http://www.theregister.co.uk/2009/10/15/black_duck_gpl_web_conference_copenhaver_radcliffe/
>>> "GPLv2 - copyright code or contract?
>>> Open source legal minds unravel license
>>> By Austin Modine in San Francisco ? Get more from this author
>>> Posted in Software, 15th October 2009 06:02 GMT
>>> Two prominent IP lawyers have warned that the all-pervasive General
>>> Public License version 2 (GPLv2) contains legally ambiguous wording that
>>> may be problematic for licensees.
>> Impossible.
>> Peter Koehlmann told us here in COLA that is was "easy" and only
>> "windiots" could not understand it. He is, of course, quite insane.
> Just about every single one of these "what's the GPL" type
> threads goes on for pages.
Yes. Ghastly, isn't it?
> This pretty much confirms that it is quite complex and in fact
> could possibly be dangerous depending upon interpretation.
Not at all. It's equally likely, in fact more likely, certain personages
wish to sustain the illusion that it's "quite complex", and "possibly
dangerous", for reasons best known to themselves. Simply reading it is
sufficient to see its simplicity. What is complex is the copyright law
under which the GPL must operate.
Software writers of good faith have no difficulty at all with the GPL.
Only to those seeking loopholes in it in order to violate its intentions
is there any "danger" or "complexity".
--
Alan Mackenzie (Nuremberg, Germany).
Moshe Goldfarb
You make an interesting point !
> Software writers of good faith have no difficulty at all with the GPL.
> Only to those seeking loopholes in it in order to violate its intentions
> is there any "danger" or "complexity".
I was thinking more along the lines of the suits in major
corporations being shy of the GPL for those reasons.
Alexander Terekhov
Alan Mackenzie wrote:
[...]
> Software writers of good faith have no difficulty at all with the GPL.
Who appointed you to talk for "software writers of good faith", Alan?
Alan Mackenzie
> Alan Mackenzie wrote:
> [...]
>> Software writers of good faith have no difficulty at all with the GPL.
> Who appointed you to talk for "software writers of good faith", Alan?
Don't be silly. One doesn't need to be elected to state plain facts.
I am myself a software writer of good faith, and I know lots of others,
and none of us has the slightest difficulty with the GPL. You are not
a software writer at all, as far as I can remember, so you're not in a
position to dispute this.
> regards,
> alexander.
Hadron
> In gnu.misc.discuss Alexander Terekhov <tere...@web.de> wrote:
>
>> Alan Mackenzie wrote:
>> [...]
>>> Software writers of good faith have no difficulty at all with the GPL.
>
>> Who appointed you to talk for "software writers of good faith", Alan?
>
> Don't be silly. One doesn't need to be elected to state plain facts.
>
> I am myself a software writer of good faith, and I know lots of others,
> and none of us has the slightest difficulty with the GPL. You are not
> a software writer at all, as far as I can remember, so you're not in a
> position to dispute this.
If "slightest difficulty" means you don't really care the fine. But to
try and maintain it's clear and easy is somewhat disingenuous on your
part. It should be abbundantly apparent to anyone who follows thread
about the GPL that it's not "easy" and "totally clear" at all.
Alexander Terekhov
Alan Mackenzie wrote:
[...]
> You are not a software writer at all, as far as I can remember, so ...
You "remember" that I am "not a software writer at all"... wow,
interesting, care to elaborate, Alan?
regards,
alexander. < http://terekhov.de/DESIGN-futex-CV.cpp >
Alan Mackenzie
I care a very great deal about the GPL, the license I hack under. It is
a model of clear writing. This is not to be conflated with the copyright
law in various jurisdictions, which can be confusing and complicated
indeed.
It isn't difficult to spread FUD about the GPL, particularly to those who
don't trouble themselves to read it. Those who create this FUD in this
mailing list are, with one exception, anonymous, and it is thus impossible
to establish their credentials, motivations, who (if anybody) pays them
to spread the FUD, etc. The exception who isn't anonymous stated some
while ago that attacking the GPL was his "hobby".
Those who maintain the GPL is not clear, and are fluent readers of
English, are either being disingenuous or dishonest themselves, or are of
somewhat limited intellectual capacity.
Alan Mackenzie
> Alan Mackenzie wrote:
> [...]
>> You are not a software writer at all, as far as I can remember, so ...
> You "remember" that I am "not a software writer at all"... wow,
> interesting, care to elaborate, Alan?
Yes. I remember asking you once, and you failed to reply "yes". If I'm
mistaken on you not being a software writer, please accept my apologies
and clarify the position.
> regards,
> alexander. < http://terekhov.de/DESIGN-futex-CV.cpp >
--
Alan Mackenzie (Nuremberg, Germany).
Alexander Terekhov
Alan Mackenzie wrote:
[...]
> Yes. I remember asking you once, and you failed to reply "yes". If I'm
Writing software is how I make money, Alan.
regards,
alexander.
JEDIDIAH
>
>
> In gnu.misc.discuss Hadron <hadro...@gmail.com> wrote:
>> Alan Mackenzie <a...@muc.de> writes:
>
>>> In gnu.misc.discuss Alexander Terekhov <tere...@web.de> wrote:
>
>>>> Alan Mackenzie wrote:
>>>> [...]
>>>>> Software writers of good faith have no difficulty at all with the GPL.
>
>>>> Who appointed you to talk for "software writers of good faith", Alan?
>
>>> Don't be silly. One doesn't need to be elected to state plain facts.
>
>>> I am myself a software writer of good faith, and I know lots of others,
>>> and none of us has the slightest difficulty with the GPL. You are not
>>> a software writer at all, as far as I can remember, so you're not in a
>>> position to dispute this.
>
>> If "slightest difficulty" means you don't really care the fine. But to
>> try and maintain it's clear and easy is somewhat disingenuous on your
>> part. It should be abbundantly apparent to anyone who follows thread
>> about the GPL that it's not "easy" and "totally clear" at all.
The GPL is very plain and clear.
The problem is that it represents something that many people would like
to "pirate". They want to make excuses to justify their "freeloading". They
are the very definition of "freetards". They want to take advantage of the
work of others while ignoring the terms under which it is provided.
Now this is the height of hypocrisy.
This is the perfect example of Hadron proving himself the faithful Lemming.
>
> I care a very great deal about the GPL, the license I hack under. It is
> a model of clear writing. This is not to be conflated with the copyright
> law in various jurisdictions, which can be confusing and complicated
> indeed.
>
> It isn't difficult to spread FUD about the GPL, particularly to those who
> don't trouble themselves to read it. Those who create this FUD in this
> mailing list are, with one exception, anonymous, and it is thus impossible
> to establish their credentials, motivations, who (if anybody) pays them
> to spread the FUD, etc. The exception who isn't anonymous stated some
> while ago that attacking the GPL was his "hobby".
>
> Those who maintain the GPL is not clear, and are fluent readers of
> English, are either being disingenuous or dishonest themselves, or are of
> somewhat limited intellectual capacity.
>
--
Nothing quite gives you an understanding of Oracle's |||
continued popularity as does an attempt to do some / | \
simple date manipulations in postgres.
Alan Mackenzie
> Alan Mackenzie wrote:
> [...]
>> Yes. I remember asking you once, and you failed to reply "yes". If I'm
> Writing software is how I make money, Alan.
Sorry, I misremembered. When I asked you "Are you a programmer, in any
sense of that word?", your answer (in Message-ID:
<43EBE494...@web.de>) was "sort of". That was more than a little
equivocal. Can I now take it that you've since become a full-bloodied
programmer?
> regards,
> alexander.
Rjack
> If "slightest difficulty" means you don't really care the fine. But
> to try and maintain it's clear and easy is somewhat disingenuous
> on your part. It should be abbundantly apparent to anyone who
> follows thread about the GPL that it's not "easy" and "totally
> clear" at all.
What is "easy" and "totally clear" is that we have an author and "Two
prominent IP lawyers" who are actually ignorant enough to pose
questions like: "GPLv2 - copyright code or contract?" and "This marks
one of the core questions of GPLv2: Is it based on copyright or is it
a contract that, while borrowing some copyright terms, ultimately
stands on its own?".
"Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995).
"Normal rules of contract construction are generally applied in
construing copyright agreements. Nimmer on Copyright sec. 10.08. Under
Wisconsin law, contracts are to be construed as they are written."
Amcast Indus. Corp. v. Affiliated FM Ins. Co., 584 N.W.2d 218, 226
(Wis. App. 1998). 187 F.3d 690 (United States Court of Appeals for the
Seventh Circuit 1999).
"Although the United States Copyright Act, 17 U.S.C. 101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006).
For God's sake where do GPL proponents dredge up these incompetent
Shysters? Where'd they graduate fron law school? Groklaw?
ROFL
Sincerely,
Rjack
Tim Smith
wrote:
> Not at all. It's equally likely, in fact more likely, certain personages
> wish to sustain the illusion that it's "quite complex", and "possibly
> dangerous", for reasons best known to themselves. Simply reading it is
> sufficient to see its simplicity. What is complex is the copyright law
> under which the GPL must operate.
>
> Software writers of good faith have no difficulty at all with the GPL.
> Only to those seeking loopholes in it in order to violate its intentions
> is there any "danger" or "complexity".
The KDE developers were operating in good faith when they dynamically
linked to non-GPL Qt. This is allowed under GPLv2, because Qt was
something normally distributed with the components of the operating
system on which KDE ran.
But the FSF threw a fit over this, until the makers of Qt changed the
license.
--
--Tim Smith
David Kastrup
Huh? Qt was not merely licensed "non-GPL" but non-free. KDE relied on
the non-free Qt as a crucial infrastructure, so the FSF strongly
recommended not using KDE. In a similar vein, the FSF strongly advised
against using Java as long as it was licensed non-free. And other
software.
That has nothing whatsoever to do with "loopholes" or "complexity" in
the GPL. It has to do with non-free software.
The FSF stuck to its principles, and the makers of Qt decided to release
it under a free license after all.
Where is your problem with that?
--
David Kastrup
Hadron
he didn't say he had a problem. He said its not as clear cut as you make
it out. As even you must realise by now because of the size of the
threads and the fact you need to keep explaining things.
David Kastrup
> David Kastrup <d...@gnu.org> writes:
>
>> That has nothing whatsoever to do with "loopholes" or "complexity" in
>> the GPL. It has to do with non-free software.
>>
>> The FSF stuck to its principles, and the makers of Qt decided to release
>> it under a free license after all.
>>
>> Where is your problem with that?
>
> he didn't say he had a problem. He said its not as clear cut as you
> make it out.
He only says that to annoy, because he knows it teases.
> As even you must realise by now because of the size of the threads and
> the fact you need to keep explaining things.
Where is the point in letting the deliberate liars run the show?
--
David Kastrup
Tim Smith
wrote:
> >
> > The KDE developers were operating in good faith when they dynamically
> > linked to non-GPL Qt. This is allowed under GPLv2, because Qt was
> > something normally distributed with the components of the operating
> > system on which KDE ran.
> >
> > But the FSF threw a fit over this, until the makers of Qt changed the
> > license.
>
> Huh? Qt was not merely licensed "non-GPL" but non-free. KDE relied on
It was not non-free.
--
--Tim Smith
David Kastrup
The license, among other things, prohibited porting to Windows. There
were quite a number of terms that put Trolltech into a special position
with regard to changes and redistribution.
The license went through several iterations. I think there was a final
time span of about a year where it was indeed meeting the criteria for
free software, but was still GPL-incompatible. And thus not worthwhile
for GNU.
--
David Kastrup
Tim Smith
wrote:
> Hadron <hadro...@gmail.com> writes:
>
> > David Kastrup <d...@gnu.org> writes:
> >
> >> That has nothing whatsoever to do with "loopholes" or "complexity" in
> >> the GPL. It has to do with non-free software.
> >>
> >> The FSF stuck to its principles, and the makers of Qt decided to release
> >> it under a free license after all.
> >>
> >> Where is your problem with that?
> >
> > he didn't say he had a problem. He said its not as clear cut as you
> > make it out.
>
> He only says that to annoy, because he knows it teases.
No, I say it because the license is not as clear cut as you think it is.
For most users of KDE, Qt was shipped as a component of the OS. It
should qualify for the system component exception of GPL. The FSF
thought that it didn't.
Can you point out where the GPLv2 clearly defines what exactly qualifies
for the system component exception?
--
--Tim Smith
David Kastrup
> In article <87ws2sy...@lola.goethe.zz>, David Kastrup <d...@gnu.org>
> wrote:
>
>> Hadron <hadro...@gmail.com> writes:
>>
>> > David Kastrup <d...@gnu.org> writes:
>> >
>> >> That has nothing whatsoever to do with "loopholes" or "complexity" in
>> >> the GPL. It has to do with non-free software.
>> >>
>> >> The FSF stuck to its principles, and the makers of Qt decided to release
>> >> it under a free license after all.
>> >>
>> >> Where is your problem with that?
>> >
>> > he didn't say he had a problem. He said its not as clear cut as you
>> > make it out.
>>
>> He only says that to annoy, because he knows it teases.
>
> No, I say it because the license is not as clear cut as you think it
> is. For most users of KDE, Qt was shipped as a component of the
> OS. It should qualify for the system component exception of GPL. The
> FSF thought that it didn't.
Oh get real. On Windows, Qt had to be separately licensed for money.
Certainly not shipped as "component of the OS". On all Linux systems I
used, it was optional (and if some utility caused it to be installed, I
removed that) and not part of the installed base. There was basically
no KDE developer who would (or could) have worked with the development
libraries provided by his system -- not suitable for ongoing
development. Debian refused to carry Qt for a long time because of its
unfree license. Most other providers with a freely redistributable
Linux system had to do the same (unless they made special deals).
The situation was quite clear in spite of the KDE developer's denial.
Qt went DFSG free only about a year before they decided that they might
as well GPL the stuff and get it over with.
> Can you point out where the GPLv2 clearly defines what exactly
> qualifies for the system component exception?
Huh? Section 3 is quite clear on that:
However, as a special exception, the source code distributed need
not include anything that is normally distributed (in either source
or binary form) with the major components (compiler, kernel, and so
on) of the operating system on which the executable runs, unless
that component itself accompanies the executable.
--
David Kastrup
Chris Ahlstrom
That would work for "Hadron". The bastard won't even use his real name.
One problem with the deliberate liars, though. No amount of explaining will
make them change their lies.
--
You will lose your present job and have to become a door to door mayonnaise
salesman.
Alan Mackenzie
> In article <87ws2sy...@lola.goethe.zz>, David Kastrup <d...@gnu.org>
> wrote:
>> Hadron <hadro...@gmail.com> writes:
>> > David Kastrup <d...@gnu.org> writes:
>> >> That has nothing whatsoever to do with "loopholes" or "complexity" in
>> >> the GPL. It has to do with non-free software.
>> >> The FSF stuck to its principles, and the makers of Qt decided to release
>> >> it under a free license after all.
>> >> Where is your problem with that?
>> > he didn't say he had a problem. He said its not as clear cut as you
>> > make it out.
>> He only says that to annoy, because he knows it teases.
> No, I say it because the license [GPL] is not as clear cut as you think
> it is.
The license is perfectly clear. It's reality which is foggy.
> For most users of KDE, Qt was shipped as a component of the OS. It
> should qualify for the system component exception of GPL. The FSF
> thought that it didn't.
> Can you point out where the GPLv2 clearly defines what exactly qualifies
> for the system component exception?
No, it can't and it shouldn't. Just as the laws against murder and rape are
perfectly clear, but there are borderline cases which might or might not
actually be murder or rape, there are borderline cases as to what exactly
counts as a "system component". They can't be formulated exactly in the
license, they must be determined as a matter of fact in each case. Such
cases of doubt are fairly rare, though.
In the case of Qt, it seems the parties in dispute reached a satisfactory
resolution.
David Kastrup
> In the case of Qt, it seems the parties in dispute reached a
> satisfactory resolution.
I think that is a somewhat unfair characterization. That the end result
is quite satisfactory for KDE/Qt users may be partly attributed to the
FSF not moving an inch, but "the parties reached" is really suggesting a
kind of bilateral process that was not involved here.
The credit for the current state certainly belongs to Trolltech. Any
credit to RMS is not for changing but rather for declaring his position.
--
David Kastrup