Date: 23 Dec 2001 02:11:29 -0800 From: swear@blarg.net (Gary W. Swearingen) To: "Mike Meyer" <mwm-dated-1009499377.cf4de8@mired.org> Cc: chat@FreeBSD.ORG Subject: Re: GPL nonsense: time to stop Message-ID: <eyvgeytfe6.gey@localhost.localdomain> In-Reply-To: <15397.9585.514476.882122@guru.mired.org> References: <local.mail.freebsd-chat/Pine.LNX.4.43.0112181134500.21473-100000@pilchuck.reedmedia.net> <local.mail.freebsd-chat/20011218110645.A2061@tisys.org> <200112182010.fBIKA9739621@prism.flugsvamp.com> <4.3.2.7.2.20011218180720.00d6e520@localhost> <20011219091631.Q377@prism.flugsvamp.com> <0en10ey5jo.10e@localhost.localdomain> <20011219215548.D76354@prism.flugsvamp.com> <lpellpwlhe.llp@localhost.localdomain> <15394.43349.782935.475024@guru.mired.org> <fxlmfxukw9.mfx@localhost.localdomain> <15394.56866.830152.580700@guru.mired.org> <18d718uuw2.718@localhost.localdomain> <15395.43708.816636.295489@guru.mired.org> <mi4rmivlud.rmi@localhost.localdomain> <15397.9585.514476.882122@guru.mired.org>
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"Mike Meyer" <mwm-dated-1009499377.cf4de8@mired.org> writes:
> Gary W. Swearingen <swear@blarg.net> types:
> > "Mike Meyer" <mwm-dated-1009402429.602581@mired.org> writes:
> >
> > > Slight change. Let's make S originally a BSDL source, but what A gets
> > > is a binary under their license, as allowed by the BSDL. Would you
> > > thereby claim that C's actions places a requirement on B to provide
> > > source to S to A if they want it? Or would B no longer be allowed to
> > > distribute a binary built from S without that requirement?
> >
> > This looks very interesting. New stuff. But I need more info before
> > spending more time on it. What is "their license" (of S to A)? Is it a
> > standard BSDL or a private, two-party thing? I infer that S has been
> > licensed to the public under BSDL, but not distributed. Did you mean
> > that?
>
> Actually, this is the situation that people are actually worried
> about. S is BSDL licensed and distributed to the public as such. B
> takes S, and builds a commercial product based on it. They sell it to
> A as a binary with a standard commercial software license (i.e. - we
> own it, you have a license to use it, and we guarantee the media is
> readable and nothing more).
>
> Now C takes S, "combines" it with T which is covered by the GPL and
> distributes the results under the GPL. Back to the questions: Is B now
> required to provide source to their commercial product upon demand
> from A? Or are they simply no longer allowed to distribute said
> product other than under the terms of the GPL.
Note that I am not a lawyer and this is not legal advice. Consult a
lawyer for that. I'm just commenting on a hypothetical situation,
after some Internet reading and thought.
More missing info: Does C own T or not? A assume it doesn't matter
because he insists on distributing his results under the GPL. Also:
Does S get dual-licensed under the GPL & BSDL by it's owner?
I'm going to assume that a single work can be fixed in a medium of
expressioin of the source and binary forms. It might be more
appropriate in some cases to consider an intermediate binary work,
but I think it doesn't matter in this case and would only make this
longer.
Note that we consider parts and collective works because it is easy
to think about, but messy, low-level-modified, comingled derivatives
would have a similer, if much harder to write, analysis and result.
S, K, T = software parts; SK, ST = collective works.
s=source, b=binary
w==work, c==copy
A, B, C, D, and P(public) = persons
-- Initially we have --
SswD = a source work which D owns (ie, on which D owns copyrights) and
has publicly licensed under the BSDL (and published copies).
SscP = a source copy which a member of the public owns. (Eg, B & C)
KswB = a source work which B owns and
wishes to secret-code-license (SCL).
KscB = a source copy which B owns.
TswC = a source work which C keeps under GPL,
so it doesn't matter for this whether he owns it.
TscC = a source copy which C keeps under GPL.
-- Then we have (after some compilation/derivation) --
SKswDB = a source work which B created but B and D own.
(derived from SswD and KswB)
SKbcA = a binary copy which B licenses (or sells) to A.
STwsDC = a source work which C created but C and D own.
(derived from SswD and TswC)
STsbcP = a source and binary copy which C wishes to license
to members of the public for no cash (but possibly some
cross-licensing in derivatives) under the GPL.
-- Comments --
B is allowed by the BSDL to distribute SKbcA as he pleases except that
since it is derived from SswD and that part of the work is still owned
by D, some BSDL conditions still apply and SKbcA must be accompanied by
D's copyright notice and a copy of most of the BSDL.
(Note that as long as A doesn't distribute copies of SKbcA, A need not
agree to the BSDL and has thus not waived D's liability. Maybe the
disclaimer is good enough, but I doubt it. Not good. There's a good
reason license are usually long. A likely alternative is for B to get a
special private license from D so A need not know about D or the BSDL,
with D indemnifying D against liability claims by A, etc. Ask a lawyer.)
C is allowed by the BSDL to distribute STsbcP as he pleases except that
since it is derived from SswD and that part of the work is still owned
by D, some BSDL conditions still apply and SKbcA must be accompanied by
D's copyright notice and a copy of most of the BSDL.
Except there is a problem in this case too. The GPL forbids such
distribution unless the entire work is placed under the GPL. So it
either isn't going to happen legally, or D is going to have to dual
license the SswD under the GPL in addition to the current BSDL.
If it's done illegally, C has infringed on D. B and A have nothing
to worry about.
If D decides to offer to license SswD to the public under the GPL in
addition to the existing BSDL offer, then we are at the crux of the
question asked. (I'm beginning to wonder if I should have replaced most
of the above with a couple of lines. The binary-only feature of this
scenario wasn't as problematical as I thought it might be.) The answer
seems clear: if SswD was licensed to B and A under just the BSDL
(whethor or not SswD was begin offered under just BSDL or both BSDL and
GPL at the time), then SKbcA is not infected and B and A have nothing
to worry about. The license for SswD is now offerred under BSDL and
GPL, but any person may choose to accept either one or both.
I think that this discussion sheds a new light on some of the talk of "a
GPL'd kernel" being the result of GPL infection. Either an infringment
has occurred and the kernel is not infected at all (not legaly; it might
be practically), or the formerly pure-BSDL parts have been offered under
the GPL too. In which case the talk is valid, even in a kernel which
contains no pure-GPL work, but the statement is incomplete as the kernel
is really "a BSDL and/or GPL, your option, kernel".
(If I seem to be arguing for dual-licensing, I'm not. I'm glad to see
the GPL remain self-inoculating, even though it sort of goes against
the "very free to use" philosophy. The problem could be fixed in the
GPL and not require "very free" licensors to offer the restrictive GPL.)
A final issue for now: The GPL's crucial, "the distribution of the whole
must be on the terms of this License" COULD be construed (by me, anyway)
to mean "on the terms of the GPL ONLY", removing the option of dual
licensing. It's not clear that a work which is under both BSDL and GPL
to a particular person may be said to be licensed to him on the terms of
the GPL. Much of the GPL is rendered null and void by the combination
and the effect of the license on pressuring people to not use BSDL is
very different, depending on the meaning. What effect does the licensor
intend? What will he insist upon? RMS sometimes recommends dual-
licensing, but it's another risk factor with him or other licensors.
P.S. Something that occurred to me that I've taken note of: When
we say "X has licensed software Y under the GPL", we usually mean "X has
offered to license software Y under the GPL to members of the public".
There's no licensing until the offer is accepted.
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