• Nate

    *sigh*

    Oh well, I guess the FT wants to push the old proprietary model and all, but c’mon, the old “viral” myth again?

    Mostly it’s humorous to hear yet another writer claim that FOSS will not scale, while writing it on a platform built on FOSS. Yeah, I guess the Net won’t scale. I guess OSes aren’t complicated enough. I suppose the worldwide (and leaping forward) success of Linux is a mirage. I figure the desperation moves of Microsoft toward Linux are a sign of Linux’s impotence.

    Ah, who cares? They can blather on as much as they like. History will pass them by.

  • http://oknarb.web-log.nl Branko Collin

    “Open Source”, as defined by Eric Raymond, is a business model. As such, it should be evaluated on its merits as a business model, which is what Richard Epstein seems to do, and which he does well. So what are in your opinion the mistakes?

    (Now, if he were talking about Free Software, that would have been a different matter.)

  • lessig

    The core of his “criticism” attacks the GNU/GPL. That is free software, not open source software. And if he were really discussing the “business model” then why didn’t he actually talk about ANY facts — as opposed to the arm chair theorizing? Apache can’t be the #1 web server, on Epstein’s reasoning. And bumble bees can’t fly.

  • http://www.gamerswithjobs.com Allen Cook

    Actually Branko, if you read the article he is talking about free software. His definition of open source includes

    “Second, once someone incorporates open source software in his own programs, then any license that he issues cannot charge others for its use or restrict them from making further modifications of the program. Third, each licensee agrees that all subsequent licensees may use or modify on the same terms as the original licensee.”

    Which aren’t present in BSD-style licenses. He specifically is talking about the GPL, and he says as such.

    “The apparent intention of the provision is to �infect� that new program so that all of its content becomes open source software subject to the GPL. In principle, the entire Microsoft operating system could count as �the work� that becomes open source because a few lines of open source code have been incorporated into it by inadvertence. I doubt very much whether courts will tolerate that extreme remedy, if they enforce the clause at all. Just imagine if Microsoft insisted that it had exclusive rights to any derivative work that incorporated its code! In both cases, it is much more likely that courts would allow the incorporator to remove the offending lines of code, or to pay some damages for the improper inclusion.”

    This shows a fundamental misunderstanding of the situation, as I’m not anything close to a lawyer, merely a software developer, and I know how dervitive works applies to code. Anyone who works in the software industry should. Yes, if you incorporate Microsoft code into your code without a specific license allowing you to, that’s copyright infringement. The author of the article seems to think enforcing this would be laughable for some reason. If it were songs and not code, the implication would be clear.

    “Second, the clause might only bind those people who know that they are using open source code. Suppose, for example, that A uses some open source code in his program, which is in turn used by B. If B has no knowledge of how A cobbled together his program, then the GPL may be read not to apply at all. Indeed, even if B knew of the provision, the GPL might not apply on the ground that it constituted an illegal restraint on alienation that everyone is free to ignore. One way or another, courts are likely to counteract the creeping imperialism of the GPL license. Once the contract protection lapses, then the open source movement is left only to its copyright remedies, which are likely to prove far weaker.”

    Again, I think the “the GPL could be considered an illegal restraint” shows a complete misunderstanding of the situation. Is the fact that Microsoft won’t let you use the leaked Windows code in your commercial product an illegal restraint? How is the GPL any different? The GPL spells out a license under which you can use the code, otherwise you can’t. I believe commercial copyright infringement on the scale of a commercial software package would be a federal offense. I don’t see how jail time is a “far weaker” remedy than a software use license.

    “To see the long-term difficulty, imagine a commune entirely owned by its original workers who share pro rata in its increases in value. The system might work well in the early days when the workforce remains fixed. But what happens when a given worker wants to quit? Does that worker receive in cash or kind his share of the gain in value during the period of his employment? If not, then the run-up in value during his period of employment will be gobbled up by his successor – a recipe for immense resentment. Yet that danger can be ducked only by creating a capital structure that gives present employees separable interests in either debt or equity in exchange for their contributions to the company. But once that is done, then the worker commune is converted into a traditional company whose shareholders and creditors contain a large fraction of its present and former employers.”

    This is a bit of a flawed analogy. Tthe GPL allows all the workers to take the value of the program, it’s utility, with them when they “leave”. Since code is easily copyable, the successor can also retain the value. He’s applying a rivalrous analogy to a non-rivalrous good.

    “The bottom line is that idealistic communes cannot last for the long haul. The open source movement may avoid these difficulties for outside contributors who work for credit and glory. But how do the insiders, such as Linus Torvalds, cash out of the business that they built? And in the interim, how do they attract capital and personnel needed to expand the business? Traditional companies have evolved their capital structures for good reason.”

    He seems to ignore the point that Linux Torvalds has had no trouble at all cashing in on his Linux insider status. Nor that Linux has had no problem attracting funds from successful companies who want to add value to their product through Linux. It’s the fundamental flaw of the article, he’s treating Linux like a business, instead of a tool. IBM is a business, Red Hat is a business. Linux is a tool to get work done.

  • http://www.lawhacker.com Andrew Greenberg

    And yet such communes exist and prosper, even outside the venerable environs of open source, and free software projects. Immediately coming to mind is the highly successful Moosewood Restaurants and their progeny. The key to avoiding undoing of bad companies and bad communes is, of course, sound governance and carefully managed expectations of the parties. But this is not a circumstance unique to communal ownership — how many public companies have we seen dissolve into oblivion, or succeed only because of dumb luck or fortune, after the inevitable schisms between money-people and creator-people makes it impossible to continue?

    Even so, Professor L is most correct, Professor Epstein’s speculations are belied by myriad counterexamples.

  • http://rbpark.ath.cx feztaa

    apologies in advance if somebody already pointed this out (I don’t feel like reading all the comments), but the news.ft.com site is running on apache on solaris. Not totally open source, but they’ve at least got apache in there.

    what a hypocrit.

  • Jason

    “The bottom line is that idealistic communes cannot last for the long haul. The open source movement may avoid these difficulties for outside contributors who work for credit and glory. But how do the insiders, such as Linus Torvalds, cash out of the business that they built? “

    I almost feel sorry for the folks that just can’t quite grok what free software is all about. “Just For Fun” should be required reading in economics courses.

  • http://sethf.com/ Seth Finkelstein

    Actually, I believe some insiders have cashed-out comfortably in very traditional ways – stock options (in related hardware companies), corporate board memberships, consulting fees. Maybe they didn’t become ultra-ultra-wealthy, but they sure aren’t begging in the streets. I’m not sure if Epstein is unaware of this, or if he considers mere millions to be chump change which doesn’t count as compared to what is the expected corporate norm.

  • http://www.turnstyle.com/bio.asp Scott Matthews

    “contributors who work for credit and glory”

    Actually, getting credit is drawback to the GPL. Even though your credit must remain the the source code, it need not remain in the running GUI.

    And that’s where the vast majority of users would see your name (most, after all, don’t read through the source code).

    You see this happen over and over with all the GPL forks — people taking another GPL project, making changes, and giving it a whole new name.

  • http://lrp.greenrd.org/ Robin Green

    I wouldn’t say it’s hypocritical, strictly speaking. The article claims that open source as a business model is unsustainable for producing and maintaining software. (And then dismally fails at trying to prove that case.) Even if true (which it isn’t), that wouldn’t necessarily preclude using open source software on a temporary basis.

  • http://lrp.greenrd.org/ Robin Green

    Scott Matthews – On the other hand, the vast majority of GPLed projects do not suffer from this problem.

  • http://www.turnstyle.com/bio.asp Scott Matthews

    “On the other hand, the vast majority of GPLed projects do not suffer from this problem.”

    Actually, I’d say that this problem is quite common.

    Let’s say there is GPL’d Project A, and then Project B comes along and uses some Project A code.

    Project B should certainly be expected to include project A credits in the source code, but how often do you actually see Project A credits in Project B’s GUI?

  • http://www.joegratz.net/ Joe Gratz

    I’ve responded to the Epstein piece on my blog. My main point is this: In a commune everyone is an insider, expecting to share equally in the profits that a central body collects and distributes. In an open source project, however, everyone is an ousider; there are no central profits to be divvied up, and nobody within the project has any rights that members of the public at large don’t also enjoy. This keeps open source projects from collapsing under their own weight.

  • http://hardgrok.org Raefer Gabriel

    Joe,

    Close to correct, however, the knowledge of the system you built and the credit of having built it are essentially the most direct form of equity you can have in an Open Source project. Yes, all outsiders have essentially equal rights to the profits of the project, namely the code. But these insiders rights are sometimes monetized in the form of consulting contracts, press and PR benefits, and other career opportunities. Obviously, the higher profile (and more interesting to businesses) the project is, the more of these sorts of benefits you can expect to reap.

    Anyway, I’ve made some more comments in my blog as well.

  • three blind mice

    as jane wang of cornell university observed �the myth �bumble-bees cannot fly according to conventional aerodynamics� simply reflects our poor understanding of unsteady viscous fluid dynamics.�

    similary, the myth that open source is not a viable business model reflects a poor understanding of the dynamics involved.

    who would have expected linus torvalds to be more interested in writing good code than achieving fame and fortune?

    who would have expected thousands of highly skilled software developers around the globe to work day and night (many of them for free) to improve IBM’s server software with no compensation from IBM whatsoever?

    who would have expected software developers who hate microsoft with the white hot intensity of a thousand suns to see IBM and Novel as christ-like saviors?

    in short, nothing about open source makes sense until you realize it is irrational politics and not rational economics that drives it forward.

  • Michael D

    Lots of implications that OSS is somehow new in the business world and cannot be catagorized. Not so. It is very similar to many cooperative schemes that have been part of life for many people for centuries. Looking out of my window I see a field being plowed for winter wheat which will be sold by a cooperative showing very much the dynamics of Epstein’s workers� commune … likely to fail. Except that this “commune” has probably been going for longer than Epstein’s University.

    What is new is that OSS “communes” are frequently set up as cool ideas and then found to be extemely useful. People can make money using them, supporting them, writing about them etc. In the past, the need usually came first and the cooperative was set up, mostly with lots of “free” labour, to satisfy the need. However, regardless of origin, the business dynamics seem to be largely the same.

  • Rob Myers

    “in short, nothing about open source makes sense until you realize it is irrational politics and not rational economics that drives it forward. “

    “Rational economics” is oxymoronic. But let’s let that pass and assume that your beloved corporations are products of this “rational economics”. Why, then, have many of the largest and most innovative corporations embraced the irrational politics of Open Source? When did they go mad? How do you propose we save them? Clearly the invisible hand is busy elsewhere. Would you recommend some kind of protectionist legislation to save these corporations from themselves?

    Your concern that the market must only succeed in a particular way is irrational and not an economic argument. It is an ideological one. Imagine for a moment that Open Source is rational pragmatics against irrational economics. Whether economics is rational or not, you are on the wrong side of your own argument.

  • Rob

    Rob Myers, don’t misread the mice. I actually agree with them this time.

    If you accept the premise that the purpose of any worthwhile endeavor is to make money, then it seems sheer insanity to let others benefit from the sweat of your brow. The problem is, the premise is false. Endeavors can be very worthwhile and merely break even or even lose money/resources. This is a fundamental flaw of market capitalism; anything that doesn’t result in profits (and growing profits at that) is seen as wasted effort and resources. Those who make their living supporting market capitalism usually can’t get wrapped around this concept.

    I would say that the large companies that have embraced Open Source have done so because software is not their primary business. IBM’s primary business is hardware and consulting. Novell’s primary business is (was) networking. Red Hat’s primary business is consulting. Microsoft’s primary business is software, so they are dead set against Open Source on any but the most restrictive terms. SCO’s primary business was software before they became a litigation support company.

  • Rob

    mice-

    Remember back in the 80′s when IBM was The Great Satan? They used their corporate contacts and big advertising budgets to crowd out and kill off other popular systems like Atari, Commodore and Apple. Hatred of IBM then was comparable to hatred of Microsoft today…but then Compaq reverse-engineered the BIOS and made hardware a commodity, and software completely took over as the sole driving force in IT. Microsoft leveraged its position as IBM’s main software supplier into its virtual monopoly on the software industry; meanwhile IBM, disgusted by Microsoft’s practices and the failure of their own software efforts to make a dent in Microsoft’s market share, ran across this little upstart OS that was popular in universities…

    A lot can change in 20 years. Last year’s Satan is this year’s Savior.

  • http://sethf.com/ Seth Finkelstein

    Open Source is not irrational even from the contributors point of view. People who think that, seem to have an extremely narrow view of economic analysis. Code contributions can be learning/practice/advertisements for software engineers.

    Are internships irrational? After all, why would someone do a hippie-dippie-granola thing like – gasp, choke – WORK FOR FREE?! (this is unfortunately the level of the economic “thought” too often in these discussions …)

  • Chad

    You know you’re in trouble when Epstein starts off his piece by saying that the open source principles “been expertly analysed by James DeLong of the Progress and Freedom Foundation.” Come on! I’ve read that paper. All it does is demonstrate how DeLong fundamentally misunderstands the open source movement. If my blog was still up, you could see the post where I highlight the best nuggets of absurdity from DeLong’s paper.

    However, my blog was one of the many aspects of my life that suffered greatly from the crushing blow of the California bar exam this past summer.

    Anyway, there are parts of DeLong’s paper where he actually says that members of the open source movement are opposed to property rights! Wow. Some people need to do their homework.

  • Chad

    I think Epstein has unknowingly demonstrated his utter lack of knowledge about copyright law. Also, notice that he thinks the GPL is a contract. Whether or not this is true is uncertain. But the FSF, at least, would disagree. As you know, they say it is a “bare license.”

    Then he compares open source projects to a communal workplace. With the nonrivalrous nature of intellectual property, and the seismic shifts caused by digital storage and digital technology, how can anyone, let alone a supposed legal scholar, make this tired analogy? And to think I admired Epstein in law school.

    Sometimes I am absolutely blown away by the extent to which these law and econ types use the blunt instrument of the hyperrational new institutional economics on everything. They should definitely read a little William Barrett once in a while. :D

  • three blind mice

    If you accept the premise that the purpose of any worthwhile endeavor is to make money, then it seems sheer insanity to let others benefit from the sweat of your brow. The problem is, the premise is false. Endeavors can be very worthwhile and merely break even or even lose money/resources. This is a fundamental flaw of market capitalism; anything that doesn�t result in profits (and growing profits at that) is seen as wasted effort and resources. Those who make their living supporting market capitalism usually can�t get wrapped around this concept.

    thanks rob meyers. right on.

    too many people have bought into the notion that growing profits is the only proxy for economic well-being and that economic well-being is the only proxy for well-being in general.

    if you don’t believe in this fiction, the notion of a “rational” economic decision is turned on its head. in other words, you ain’t never gonna understand open source by thinking like adam smith.

    the difference between engineers and economists is that when the engineer sees a flying bumble bee, she must discard all theories that say bees cannot fly. unfortunately economists (and pundits) have no such discipline.

  • Max Lybbert

    I was pretty amazed that there are still college professors that haven’t been exposed enough to open source that these kinds of misunderstandings are still actively believed. So I looked into who Epstein is.

    Epstein looks to be pretty qualified. Unfortunately, he also seems to have been seduced by the law of the hammer (“when all you have is a hammer, everything looks like a nail”). Epstein is libertarian, and believes in strong property rights.

    I think the most likely source of his hang-up on open source can be found in this interview, where he says,

    /* The only way you’ll persuade the public to understand the urgency of the takings cases is to get people out of the frame of mind where they think that for every dollar that the public body wins, the individual loses a dollar. What typically happens is the public wins $1.00 and private owners lose $5.00 or $10. If you do that hundreds upon hundreds of times each year, you have a major drain on the social welfare of the community.
    */

    A takings case, by the way, is a reference to any law or government action that prevents people from using their land, thus preventing them from making money off of their property. Of course, unlike real property, when material goes into the public domain, you don’t get a “major drain on the social welfare of the community,” because everybody can use that material without wearing it out, and without stepping on anybody else’s toes (not even the original copyright or patent owner). So, extending copyrights terms 20 year gives the copyright owner the potential to make $1 at the expense of the public making $10. And if the public makes that $10, there’s no reason to believe that the copyright holder would somehow not be able to make his $1.

    But that’s not the issue Epstein challenges. Epstein somehow overlooks some of the GNU GPL’s elegance, especially the fact that it isn’t a contract. The GPL is nothing more than an extremely long copyright notice along the lines of “Copyright 2004, Joe Random. All Rights Reserved. Permission is granted to modify, copy and distribute, under the following conditions: …” As such, violations of the GPL are nothing more than copyright violations, so there is virtually no chance that a court will decide the penalty is too harsh — since the penalty will be set by law, not contract. So he challenges the legality of voluntarily forgoing some use of copyrighted material so that others can potentially use it for their own good. Perhaps if he recognized this, he would have a different opinion on the matter.

  • three blind mice

    A takings case, by the way, is a reference to any law or government action that prevents people from using their land, thus preventing them from making money off of their property. Of course, unlike real property, when material goes into the public domain, you don�t get a �major drain on the social welfare of the community,� because everybody can use that material without wearing it out, and without stepping on anybody else�s toes (not even the original copyright or patent owner).

    this assumes, max lybbert, that “material” is a non-rivalous asset which may or may not be true.

    just because an asset can be copied ad infinitum without diminishing the original, does not mean that the asset is non-rivalous.

    jefferson’s eloquent remark about lighting another’s taper not diminishing the light of his own reflects a quaint 18th century mentality. like jefferson’s views on the inferiority of black africans this sort of thinking is out of place in the 21st century.

    consider, if you will, that if jefferson’s candle allows him to occupy a market position for the production of light, sharing his flame with another absolutely diminishes the value of the candle in his hand.

    similarly, if digital recordings represent a competitive market advantage – and they do – these are very much a rivalous asset and subject to exhaustion and overuse just like real property.

  • Max Lybbert

    Three blind mice, perhaps I oversimplified. I have significant problems with the current patent and copyright systems, but I’m not as concerned about trademark law. I revised my post several times, and this distinction was eventually edited out.

    I personally do not wish to overthrow the copyright system, or even the patent system. In fact, I think that the problems of copyright law and the threat of patent laws have both been overstated.

    One nice thing about copyright law is that (in theory) I can’t be an infringer without having access to the infringed on work. In other words, I am only limited in what I can do with other people’s material that I have access to. My concern is that those limits may be overly-broad. So long as those limits guarantee the owner’s credit and a reasonable profit, I can accept them. When those limits guarantee that nobody can profit from material, even if doing so doesn’t diminish the original creator’s credit or profit, I think they begin to stifle progress.

    As an example, and in response to your post, consider the Copyright Extension Act. If I’m not remembered as the creator of material 50 years after my death, should Congress give my heirs another 20-year chokehold on that material? If I am remembered as the creator, should people be required to wait another 20 years before they can build on it?

    As another example, consider Mickey Mouse. If “Steamboat Willie” fell into the public domain, would Disney stop being the creator of Mickey? What about the various trademarks Disney holds? Without copyright restrictions, an artist could do quite a bit with “Steamboat Willie” so long as any derivative didn’t infringe on Disney’s trademark. For instance, the main story line could be used verbatim with different characters. Perhaps the animated boat (without Mickey or any other characters) could be digitally extracted and used for something. There are even times when Mickey’s image could potentially be used without confusing consumers about Disney’s ownership. I can’t imagine any of these possible uses doing anything to prevent Disney from making a reasonable profit from Mickey or Mickey merchandise.

    Because of the trademark issue (and remember, trademarks can exist even without a registration — although such trademarks are much “weaker”), people couldn’t legally make Mickey costumes at Disney’s expense, or publish Mickey books, or take a free ride in a million other ways.

    Mickey is an extreme example. Not many works would have such a strong “trademark element.” So? The law has already determined that weak trademarks don’t afford the same protection as strong ones for various reasons. It may be good to step back and wonder if we need such broad restrictions, instead of wondering whether we can think of new restrictions to add to the mix.

  • Rob Myers

    Note to 3BM: I’m not the Rob you agreed with (Rob != Rob Myers), although I do take their point about me misreading you.

    My apologies.

  • Joseph Pietro Riolo

    While the statements made by Richard Epstein about economy
    are purely speculative (he appeared to ignore the role of
    the federal government in providing the public domain works
    and the term limit on intellectual property rights), most,
    if not all, of his statements from the legal perspective
    are dead right. Some people here obviously have a bias
    and criticized him for giving the wrong information but
    it is them that do not have the correct understanding of
    the legal principles behind GPL.

    For example, one person complained about Richard spreading
    the viral myth. It is not a myth. It is a fact that GPL
    can subject whole one’s copyrighted source code to the terms
    and conditions of GPL if the copyright owner decides to include
    a small portion from GPL-covered source code and agrees to
    the terms and conditions. This is why Richard is right to
    caution about the effect of GPL on any copyrighted works.
    (The antidote to this is not to agree to the terms and
    conditions of GPL at the first place and then, use the
    Fair Use Doctrine to include a portion from the GPL-covered
    source code if all four factors can be satisfied.)

    Another example is that too many people thinks that GPL
    is not a contract. In fact, it is a contract but there are
    many kinds of contracts out in the real world. License is
    one kind of contract. The most fundamental principle in
    contract is the agreement between two parties. If there is
    no agreement between two parties, contract does not exist.
    GPL requires a person to agree to the terms and conditions
    as stated in the license in order for the license to be valid.
    Else, GPL is just nothing. Moreover, GPL has no effect on
    any other people who do not see it or do not agree to it
    (as illustrated by Richard’s example in Person A and
    Person B).

    Finally, Richard made a correct observation about the
    strange bedfellows. He is right that GPL heavily depends
    on strong copyright that without it, GPL could not even
    exist. Yet, the proponents of GPL are contradictory to
    the point that they are truly strange bedfellows.

    Again, Richard’s statements on economy are speculative but
    he is right in raising issues about GPL.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Max Lybbert

    Most software user agreements are titled “License” as in “Software License Agreement.” However as, Eben Moglen (who is every bit as qualified as Epstein) says, this practice leads to an unfortunate misunderstanding.

    To explain the misunderstanding, let’s back away from copyright and look at real estate law. If I own a plot of land, I can contract with you to sell it, I can contract with you to rent it, I can contract with you to do several things. However, I can also deed it to you, or leave it to my son via a will. While a deed and a will are both legal documents, they aren’t contracts, because they lack certain elements of contracts.

    In fact, if I were to contract with you to sell the land, the contract simply establishes the terms of the sale. You won’t get title in the land until I transfer it to you via a deed (and in many states you must get that deed recorded at the county courthouse for it to be valid). A “real estate closing” is a meeting where all these documents (and several others) are signed and handed over to the buyer and seller.

    In copyright law, the term “license” simply means permission. So, when federal law states that copying, distribution, modification, public display, public performance, etc. are all prohibited without permission from the copyright owner, getting that permission is called getting a license. BTW, actually transferring copyright requires a written, signed, document under federal law.

    If you look at your “Software License Agreements,” you will usually notice that they are contracts (they have the elements of a contract), and they include a provision that in exchange for your payment and agreement to follow certain conditions (such as agreeing to not reverse-engineer the software), you get a “license” (i.e. permission) to use the copyrighted work. This “license” is much like a deed in a real estate sale (I can give you permission to use my copyrighted material without having a “meeting of the minds” or without getting consideration in return), and the License Agreement that gives you this license is a contract. A similar situation exists for “bailments.”

    The GPL, on the other hand, doesn’t include consideration, so it isn’t a contract. The GPL is nothing but a long copyright notice that states “All rights reserved. Permission granted to copy, modify and distribute under the following conditions. …” It’s no different from the pages you occasionally see in books that say things like “permission granted to copy this page for personal, non-commercial use.” Failure to follow those terms is a copyright violation, not breach of contract. That is why there is no question of what would happen to a GPL violater — the copyright law establishes monetary damages ranging from $750 to $150,000, and permits other penalties as well.

  • Joseph Pietro Riolo

    To Max Lybbert,

    You are correct only if the legal documents are
    unilateral, from one party to other party without
    requiring the latter party to do anything. But, GPL
    is not 100% unilateral. It requires you to agree to
    the terms and conditions before you are allowed to do
    things that GPL allows you to do. This is bilateral.

    For example, if I say, “I give you the permission to
    reproduce my work.”, it is not a contract because I
    do not require you to follow my rules. But, if I say,
    “I give you the permission to reproduce my work as long
    as you give me credit.”, it becomes a contract because
    I require you to agree to my rule before you can reproduce
    my work.

    To use one of your examples, if I add a covenant to my
    deed, this becomes a binding contract on all subsequent
    owners.

    Don’t believe everything what Eben Moglen says. He says
    only things that will make GPL look better.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Michael

    If we’re talking about accuracy (and therefore mistakes) which 800 of the 1297 words in the essay should we be considering?

  • sgtrock

    JRP —

    Let me see if I have this right: You want me to take the word of one academic over another. Fair enough. But which professor actually has any practical knowledge with how the GPL actually works in practice? Let me refer you to this 2001 essay by Eben Moglen:

    I’m the only lawyer on earth who can say this, I suppose, but it makes me wonder what everyone’s wondering about: Enforcing the GPL is something that I do all the time.

    That little bit of hyperbole probably overstated the case a little even then, but it’s tough to argue that anyone knows more about how the GPL actually works than Professor Moglen.

    As to the question of whether or not the GPL is enforceable in court, might I refer you to a German constitutional court decision? Or don’t you believe that reference has any bearing on how the rest of the civilized world will treat the GPL? Well, I guess you’ll just have to see how IBM’s eighth counterclaim against SCO plays out, then.

  • Daniel Wallace

    License or contract? Nonsense. Utter nonsense.

    In 1927 the Supreme Court opined on patent licensing:

    �No formal granting of a license is necessary in order to
    give it effect. Any language used by the owner of the
    patent or any conduct on his part exhibited to another,
    from which that other may properly infer that the owner
    consents to his use of the patent in making or using it,
    or selling it, upon which the other acts, constitutes a
    license, and a defense to an action for a tort. Whether
    this constitutes a gratuitous license, or one for a
    reasonable compensation, must, of course, depend upon the
    circumstances; but the relation between the parties
    thereafter in respect of any suit brought must be held to
    be contractual, and not an unlawful invasion of the rights
    of the owner.� � DE FOREST RADIO TEL. & TEL. CO. v. UNITED
    STATES, 273 U.S. 236 (1927).

    In 1997 the Eleventh Circuit Court of Appeals held the
    ruling in DE FOREST (supra) applied to nonexclusive
    copyright licenses:

    �Implicit in that permission was a promise not to sue for
    copyright infringement�a promise that at least one court has
    found to be the essence of a nonexclusive license. See In re
    CFLC, Inc., 89 F.3d 673, 677 (9th Cir.1996) (“[A]
    nonexclusive patent license is, in essence, �a mere waiver
    of the right to sue� the licensee for infringement.”)
    (quoting De Forest Radio Telephone & Telegraph Co. v. United
    States, 273 U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625
    (1927)).� � Jacob Maxwell Inc., v. Veeck, 110 F.3d 749
    (11th Cir. 1997)

    In 1998 the Second Circuit held:

    �A copyright owner who grants a nonexclusive license to use
    his copyrighted material waives his right to sue the
    licensee for copyright infringement. See Jacob Maxwell,
    Inc. v. Veeck , 110 F.3d 749, 753 (11th Cir. 1997); Peer
    Int�l Corp. v. Pausa Records, Inc. , 909 F.2d 1332, 1338-39
    (9th Cir. 1990);� � Graham v. James, 144 F.3d 229 (2nd Cir.
    1998)

    In conclusion:

    “… but the relation between the parties thereafter in respect of
    any suit brought must be held to be contractual, and not an unlawful invasion of the rights of the owner.” DE FOREST (supra).

    *ALL COPYRIGHT LICENSES ARE CONTRACTS*

    Daniel Wallace

  • Joseph Pietro Riolo

    To sgtrock,

    Nothing in my comments said that GPL is not enforceable.
    I am aware that it is enforceable (because it is a kind
    of contract). But, it is enforceable only between
    parties that agree to the terms and conditions as stated
    in GPL. It has no affect on other parties that do not
    agree to the terms and conditions or never see them.
    The copyright law, on the other hand, has affect on all
    people that it has jurisdiction over regardless of whether
    they know about it.

    It is your choice to believe everything what Eben Moglen
    says. I for one don’t take all of his words with blind
    faith. My comments focused on disagreement with others who
    have the wrong idea of how GPL works and again, nothing in
    my comments says that GPL is unenforceable. If you want to
    agree to terms and conditions in GPL, that is your choice
    (the freedom of choice to agree or not to agree is an
    essential requirement for contract, else contract is not
    valid) but be sure that you have the right idea of what it
    is and how it works. For example, Section #5 in GPL is
    a lie because the Fair Use Doctrine allows me to use a
    portion of the GPL-covered program and distribute it if
    all four factors are satisfied. This is one example that
    most people are not aware of.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Anonymous

    Saying that EULAs and the GPL are different is indeed correct. The EULA is subject to State Contract Law and to be honest is a mechanism used by the software industry to get around limitations and exclusions of rights written into copyright law most notably the exclusions found in sections 109 (First Sale Doctrine) and 117 (Limitations on exclusive rights-computer programs). Software makers furthermore try to get around the max pentalties for infringement found in chapter 5 and the time limitations on bringing a claim found in section 507 (3 years for civil and 5 for criminal-for those to lazy to look it up) through the EULA.

    Many also miss this portion right here-

    “301. Preemption with respect to other laws

    (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” – this quote is from the US LOC copy of titlle 17

    License grants to engage in in any activity in section 106 is regulated by title 17 and any contract (State Law) is prempted..

    This is unlike the EULA which is covered by the U.C.C. of the state the contract is in. It is important to note that some states, in order to protect their citizens from UCITA, changed the deffinitions in their versions of the UCC to include computer software as a commodity under the definitions of commodities under the UCC and thus the contract is formed when the purchaser pays for the software- The EULA which the user does not see typically until they place the CD into the computer’s optical drive enforcabilty is questionable in these states as it is additional contract terms not made at the time of the contract. One should also note that in many states a Sale of software has been ruled a sale under the UCC- thus the licensed and not sold argument in the EULA and the workaround to premption is not valid.

    A lot of EULAs try to squirm around the premption issue by using the term “use” the software. However they then cut their own throats by defining use as installing the software on X computers (Copying) which is an act covered by section 106 and then section 301 comes back into play. They also typically cut their own throats by saying Utilize or Run, however a computer must make multiple electronic transitory copies to Utilize or Run a program- Again a protected act which would invoke section 301. In the BnetD case the deffense did not argue that in order to use the software it must be copied over and over and over… pretty much each time it is used it is coppied at least into RAM. which would bring premption back into play there- something they can try on apeal among other things like the sited injuction in the Lexmark case was vacated.

    The GPL by contrast does not try to work around limitations of exclusive rights like an EULA. There is less of a chance that the GPL would be prempted than a EULA- as it is granting exclusive rights in exchange for granting exclusive rights in the others works, an act which is often done across industries known as cross licensing. In fact if the GPL is ilegal so is cross licensing.

  • Anonymous

    Saying that EULAs and the GPL are different is indeed correct. The EULA is subject to State Contract Law and to be honest is a mechanism used by the software industry to get around limitations and exclusions of rights written into copyright law most notably the exclusions found in sections 109 (First Sale Doctrine) and 117 (Limitations on exclusive rights-computer programs). Software makers furthermore try to get around the max pentalties for infringement found in chapter 5 and the time limitations on bringing a claim found in section 507 (3 years for civil and 5 for criminal-for those to lazy to look it up) through the EULA.

    Many also miss this portion right here-

    “301. Preemption with respect to other laws

    (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” – this quote is from the US LOC copy of titlle 17

    License grants to engage in in any activity in section 106 is regulated by title 17 and any contract (State Law) is prempted..

    This is unlike the EULA which is covered by the U.C.C. of the state the contract is in. It is important to note that some states, in order to protect their citizens from UCITA, changed the deffinitions in their versions of the UCC to include computer software as a commodity under the definitions of commodities under the UCC and thus the contract is formed when the purchaser pays for the software- The EULA which the user does not see typically until they place the CD into the computer’s optical drive enforcabilty is questionable in these states as it is additional contract terms not made at the time of the contract. One should also note that in many states a Sale of software has been ruled a sale under the UCC- thus the licensed and not sold argument in the EULA and the workaround to premption is not valid.

    A lot of EULAs try to squirm around the premption issue by using the term “use” the software. However they then cut their own throats by defining use as installing the software on X computers (Copying) which is an act covered by section 106 and then section 301 comes back into play. They also typically cut their own throats by saying Utilize or Run, however a computer must make multiple electronic transitory copies to Utilize or Run a program- Again a protected act which would invoke section 301. In the BnetD case the deffense did not argue that in order to use the software it must be copied over and over and over… pretty much each time it is used it is coppied at least into RAM. which would bring premption back into play there- something they can try on apeal among other things like the sited injuction in the Lexmark case was vacated.

    The GPL by contrast does not try to work around limitations of exclusive rights like an EULA. There is less of a chance that the GPL would be prempted than a EULA- as it is granting exclusive rights in exchange for granting exclusive rights in the others works, an act which is often done across industries known as cross licensing. In fact if the GPL is ilegal so is cross licensing.

  • Joseph Pietro RIolo

    To the anonymous,

    Once again, you have the wrong idea about GPL.

    Let’s look at the definition of “Program”. It is
    very vague and could include the public domain works.
    It does not clearly exclude the public domain works as
    seen in some Creative Commons licenses. Moreover,
    it has own definition of derivative work which goes
    beyond the U.S. copyright law’s definition of derivative
    work.

    Then, it has some additional conditions and requirements
    that are not in the U.S. copyright law. Moreover, there
    is no time limitation on GPL, just like EULA.

    From the point of view of contract, EULA and GPL belong
    to same family. They differ only in terms and conditions.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Daniel Wallace

    Let�s examine how the GPL licensor authorizes the
    *licensee* to sublicense �downstream”. Remember the GPL�s
    (2b) �to be licensed as a whole at no charge to all third
    parties under the terms of this License”?

    �Section 106. Exclusive rights in copyrighted works
    Subject to sections 107 through 120, the owner of
    copyright under this title has the exclusive rights to do
    and to authorize any of the following:�

    Only the �owner of copyright� has the �exclusive right� to
    �authorize”.

    Section 101 states:
    �A ��transfer of copyright ownership’� is an assignment,
    mortgage, exclusive license, or any other conveyance,
    alienation, or hypothecation of a copyright or of any of the
    exclusive rights comprised in a copyright, whether or not it
    is limited in time or place of effect, but not including a
    nonexclusive license.�

    From whence springs this mysterious sublicensing authority
    of GPL licensee(s)? When does �owner of copyright� mean
    �licensee under a nonexclusive license”? Does �exclusive�
    mean both �licensor� and �licensee� simultaneously?

    �It goes without saying that a contract cannot bind a
    nonparty.� � Equal Employment Opportunity Comm�n v.
    Waffle House, Inc. 122 S.Ct. 754, 764 (2002)

    How many legal mistakes can one unenforceable, preempted
    copyright license contain? Count �em.

    The GPL is DOA in a court of law.

    The open source licenses at OSI as well as the Creative
    Commons License are also preempted by Section 301 of the
    Copyright Act.

    A survey of current holdings with respect to Section 301
    reveals a food fight in the various federal circuits over
    the meaning of “equivalent” in section 301 with respect to
    ordinary two party contracts and section 106 rights.

    Notwithstanding what is decided over simple contracts,
    any license created under law of contract which purports
    to apply to the “public” and copyright regulation either
    implicitly or explicitly is an attempt to create a “right
    against the world” (see e.g. ProCD v. Zeidenberg 86 F.3d
    1447).

    The Court in ProCd observed:
    “Like the Supreme Court in Wolens, we think it prudent to
    refrain from adopting a rule that anything with the label
    �contract� is necessarily outside the preemption clause: the
    variations and possibilities are too numerous to foresee.
    National Car Rental likewise recognizes the possibility that
    some applications of the law of contract could interfere
    with the attainment of national objectives and therefore
    come within the domain of Section 301(a).”

    The Appeallate Courts will never uphold these “public”
    licenses. Congress reserved the exclusive right to
    regulate public policy (national objective) with regard to
    copyright by passing section 301.

    Daniel Wallace

  • Alex Fernandez

    That is a funny point by Daniel Wallace. Completely bogus however: the license comes from the copyright owner, and it authorizes anyone to distribute the work, as long as they comply with several conditions. If I get a program written by Richard Stallman via my favorite distribution, my license does not come from the distributor but directly from Stallman. That�s why Debian, Red Hat et al are not usually licensors but licensees, just as I am; we both have a license in writing by which the FSF grants us the right to modify, distribute� as long as we comply with its conditions.

    Distributors are usually called �sublicensors”, because they often modify the software before distributing it; they become both licensees (of the original) and licensors (of their modifications). In this case I (the final user) must get licenses from both the FSF and my distributor. And under the GPL my distributor is required to license the software using the GPL too; that�s what section 2b is about.

    Maybe Mr Wallace does not believe it, but the conspicuous absence of GPL lawsuits might open his eyes. Citing a lot of unrelated cases does not change this simple fact.

  • Daniel Wallace

    How does an absence of evidence confirm anything?
    Is that how Moglen defends the GPL in court?

    “Your honor the GPL has never been fully adjudicated in a
    court of law therefore you must rule it enforceable”?

    In matters of copyright Congress passes the laws and
    the courts interpret the application of those laws.

    Even the Supreme Court of the United States in it’s
    rulings points to legal “authority” for the explanation
    of its decisions. The federal circuit court decisions
    that for the most part guide the interpretation of
    copyright law are heavily annoited with case and statutory
    citations.

    The historical evolution of legal principles are reviewed.
    Precedent in local and global context of prior case
    decisions are cited copiously to justify a court’s decision
    – the court points to the legal grounds upon which it
    bases its opinion.

    The musings of the present day cadre of lawyers who guide
    the evolution of “open source law” would have us rely
    upon their singular pronouncements as legal authority.

    What basis in the law does any current law professor have to
    claim that the courts will enforce any free/open source
    license?

    The cyberscape is as barren as the surface of the moon when
    it comes to citation to the courts and their decisions as
    guidance from these lawyers. Those who wear the black robes
    are those who will determine what the law is — not law
    professors, blog pundits, retired physicists or computer
    programmers.

    Come on Moglen, Rosen, Lessig let’s see some citation to
    legal authority to support FOSS licensing principles
    and claims. Answer the great unwashed masses! Then we shall
    believe.

    Daniel Wallace

  • http://jimdrash.com/ Jim Drash

    It is fascinating to read articles like this written by folks who have no clue about the history of the software industry. Having the source to a piece of code is not some new idea. When you bought a mainframe you got the source code to the OS. I spent time in my careeer supporting accounting packages and we had the source and from time to time made changes to it. When DEC released VMS this is the first time I remember not having access to the source but even DEC released OpenVMS as a response to its customers.

    Closed source code as we see it today was popularized by two companies: Microsoft and Apple. It is actually the closed source business model that is having the most problems. As these two realize that, the screw will turn but not without lots of gnashing of teeth (that we see today). With Apple, the screw is already turning OS X is baed upon BSD and you can get the source to that.

  • dumbkiwi

    In response to Daniel Wallace and his point about unauthorised copyright sub- licences:

    If I am a copyright holder and say, you have permission to do x, and you have the right to grant other people the right to do x, then I am authorising the sublicense of my copyright work, as the owner. There is no inconsistency here with section 106. What makes this different to a proprietary license, where the owner can authorise sublicensing? Why the distinction. Are proprietary licenses also pre-empted? They would be on your arguments.

    To argue that the sub-licensee is not a party to a licensing contract with the owner is irrelevant. As has been argued to death, the GPL is not a contract. It is a license. It gives you permission to do something, that without permission, you would be prohibited from doing by Copyright legislation. Nothing more, nothing less. You can choose to abide by it, and not breach Copyright law, or you can flout it and breach Copyright law. It is not a contract.

    Matt

  • Joseph Pietro Riolo

    To dumbkiwi,

    Your statement of “nothing more, nothing less” is not
    entirely correct. GPL is not a subset of the U.S.
    copyright law. GPL does more than what the U.S. copyright
    law covers. For example, GPL requires you to include
    the wording of GPL or reference to GPL in every copy
    of source code. The U.S. copyright law does not require
    that.

    GPL requires you to make your source code available
    to people. The U.S. copyright law does not require this.

    GPL requires you to make patents available to people
    free of charge. The U.S. copyright law does not require
    this.

    GPL is not nothing more, nothing less. How is it possible
    that GPL can do more than what the U.S. copyright law
    covers? The answer is through the power of contract from
    where license comes.

    A person can flout GPL (i.e. by requiring people to pay
    royalty for patent) and still abide by the U.S. copyright
    law. Under what law can you sue the person? Not under
    the U.S. copyright law but under contract law in states.
    Not every violation of GPL is also violation of the U.S
    copyright law.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Anonymous

    Joseph,

    First, you would not need to specifically exclude works in the Public Domain. It is in the Public Domain and thus could be used. In fact if you could extract the portion not in public domain then you can use it. The book publishing companies in fact do this all the time. Especially with classic works where there is either a forward or an abridged copy.

    Purchase a book and look at the copyright notice. It will typically say “All rights reserved, which includes the rights to repoduce this book or portions in any form except as provided by Copyright Law. For information address: [Name and address of publisher]” Notice that in no place does the copyright notice on almost every published book list when it expires.

    Second, If you grab a modern play script from any theatrical store on the first page you will find the license to publicly perform the play. The license will tell you how much to send the copyright holders agent to perform it publicly. No where in this license does it specify a date where as you should not send the money. If the material is in Public Domain then it is in Public Domain and there is no exclusive right to perform it publicly.

    Third, I am not sure about how and why you come to the conclusion that the GPL goes beyond the definition of Derivative works.

    Section 100

    ” 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�.”

    also see section 103

    “(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”

    so tell me exactly how that is different than this

    “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”.) ” – from section 0 of the GPL.

    Also note from Section 0 of the GPL-

    “Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.”

    Explain to me exactly how this definition is different than the US Copyright definition?

    Third, a computer progrm is � a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result” – yes its vauge but blame congress and the special interest groups as they are the ones who made it so.

    Fourth, most EULAs trie to re-grant rights explicitly limited from copyright holders in sections 109 and 117 back to the copyright holder. The GPL grants rights covered in section 106 to the end user.

    It has already been pointed out that section 6 addresses the question of transfer – this is section 6 of the GPL “6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.”

    as to Daniels objections;

    – see section 5 of the GPL “5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.”

    There is no magical transfer here. The GPL itself is the transfer mechanism

    “� 204. Execution of transfers of copyright ownership

    (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

    There also is no Magical Sublicense there. Your license to copy, ditribute , make derivatives is from the original author per section 6 of the GPL. This is why the GPL must be present on all works distributed under the GPL. If the GPL is not present on the works then you have no right to distribute the work from the original license becuase that is what the author licensed you to do- see section 5 of the GPL. By not distributing it with the GPL text you infringe the copyright of the original author. This is the same as those play scripts I talked about earlier. If you perform the play without following the license terms, typically paying a royalty to the author’s agent, you infringe copyright.

    Furtherore the GPL has been enforced by courts, just not in the US yet. Don’t worry though as IBM included copyright infringement in its counterclaims against SCO in SCO v IBM. SCO has been distributing IBM’s code which IBM licensed under the GPL in a maner that violates the terms of the GPL.

    Also those law professors … well you do realize that many of them Were/Are judges don’t you??

  • Joseph Pietro Riolo

    To anonymous,

    Regarding the public domain works, this is not explicitly
    excluded by the GPL. Compare it with some Creative Commons
    licenses that explicitly state that they cover only the
    copyrightable works. GPL’s definition of “Program” could
    include the public domain works. One way to avoid GPL
    if I want to use the public domain portions is to decline
    it. That way, the source code is under the copyright law
    and because the copyright law does not cover the public
    domain works, I can copy them without any problem. The
    key here is not to agree to GPL at the first place.

    Your insistence that GPL does not cover the public domain
    works is not supported by the language and wording in GPL.
    GPL should be revised to clarify that it covers only the
    copyrightable works. But, it is not surprising that FSF
    chose not to do so because it does not embrace the public
    domain which is not compatible with the philosophy behind
    GPL.

    Your examples of classic works is very different from GPL.
    The difference is that there is no license or contract
    that you have to agree to in order to use classic works.
    Therefore, the classic works are not bound by any terms
    and conditions that are found in license or contract. But,
    suppose that a company wrap around a public domain classic
    novel with license or contract that does not allow you to
    copy the novel. If you agree to the terms and conditions,
    you are bound by them. Again, the key here is whether you
    agree to terms and conditions at the first place.

    The problem with GPL’s definition of derivative is the
    clause that says that any work that contains a portion of
    the GPL-covered software is considered as a derivative work.
    This is regardless of how small or big the portion is. For
    example, if I copy only 10 lines from a GPL-covered 1,000-line
    program to my program, according to GPL, my program is a
    derivative work of the GPL-covered program. This is not so
    with the copyright law. Just because you copy a small portion
    from a copyrighted work to your work does not automatically
    make your work a derivative work, according to the U.S.
    copyright law. The derivative work, according to the U.S.
    copyright work, has to be substantially similar to the original
    work. As an example, a series of books usually have same
    characters but not every book is a derivative work of the
    previous book in the series.

    This is why GPL is considered as a viral license. It all
    takes a small portion of a GPL-covered program to subject
    your work to GPL if you agree to terms and conditions at the
    first place and copy the portion to your work.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • dumbkiwi

    To Joseph regarding GPL, contract and US Copyright law:

    If you breach the GPL attaching to my programme, my remedies are under copyright law. In particular, if you do not make source code available when you distribute a binary of my code, then I can sue you under copyright law for breach of my copyright – that is, you have copied my work, and distributed it without my permission. Breach of copyright – nothing more, nothing less. If you modify my work to include patented material, and then distribute it without the requisite patent license, I can sue you for breach of copyright. You have copied, modified and distributed my work without my permission. Breach of copyright – nothing more, nothing less. I cannot force you to grant the requisite patent license.

    The GPL works by setting out the basis on which I am prepared to permit you to breach my rights as a copyright holder, which you would otherwise not have if I didn’t give you such permission. If you do not follow the terms of that permission, then you do not have permission, and my remedies are based on the copyright statute. I doubt I would ever get a remedy of specific performance, as you have not agreed to do anything. That is why by putting a few lines of GPL code into Windows, MS cannot be forced by the courts to GPL windows. The owner of the GPL code could sue MS, or require that the code be removed, but could not force the code to be GPL. There is no such remedy based in copyright law, and therefore no such remedy as a consequence of using the GPL.

    The concept is very simple. Eben Moglen should be congratulated for formulating such a simple, elegant and robust solution. It is stunning in its simplicity. I think that’s what gets most people. They expect the GPL to be incredibly complex. It can be in its application to things like shared libraries. But at a conceptual level, it is very simple.

    Matt

  • Anonymous

    Joseph,

    First, the GPL does not regulate “Use” (Utilization such as loading and running) of the software- Unlike most EULAs. Go reread the GPL and then go read Eben Moglen’s speach on how there is no reason under copyright to have a license to “use” a computer program. In fact this was in part the purpose of CONTU. Read in paticular chapter 3 of the final report;

    “The 1976 Act, without change, makes it clear that the placement of any copyrighted work into a computer is the preparation of a copy and, therefore, a potential infringement of copyright….Because the placement of a work into a computer is the preparation of a copy, the law should provide that persons in rightful possession of copies of programs be able to use them freely without fear of exposure to copyright liability. Obviously, creators, lessors, licensors, and vendors of copies of programs intend that they be used by their customers, so that rightful users would but rarely need a legal shield against potential copyright problems. It is easy to imagine, however, a situation in which the copyright owner might desire, for good reason or none at all, to force a lawful owner or possessor of a copy to stop using a particular program. One who rightfully possesses a copy of a program, therefore, should be provided with a legal right to copy it to that extent which will permit its use by that possessor. This would include the right to load it into a computer and to prepare archival copies of it to guard against destruction or damage by mechanical or electrical failure. ” – from the “Final Report of the National Commission on New Technology Uses of Copyrighted Works”

    Section 117 of the current copyright law was rewritten to CONTU’s recomendations explicitly so that a user would not need a license to use software. Congress did make one serious change in adobting CONTU’s Recomendation. Congress changed legal possesor to owner of copy in section 117. It is certain elements of the software industry that have tried to use a weird combination of State Contract and State Trade Secret Law to pervert the law so that consumers loose their first sale rights and their rights under section 117 including the right to adapt or have the software adapted for their computer.

    Most GPL software in fact does not require you to click I agree or anything before you use the software. Many GPLed softwares, especially ones written to run on Linux, BSD, Darwin, Ect don’t even have installers and you must compile it yourself.

    Second, The copyright act does allow you to take Public Domain works and add your own materials to it and claim copyright over the whole as a collection. This is done often with classical works and works in public domain in paticular movies in the public domain – not to mention that the Media Companies also tend to encrypt PD movies and use access control systems on the DVD- BTW as of right now you can’t legaly break the encryption to access the content of encrypted DVDs even if they are in the Public Domain – see the 321 Studio cases if you don’t believe me. A good reason for you to write your Congress-Person saying they should supporty laws which reform the DMCA such as the DMCAr

    Unlike works of the US Government, you may take materials in the Public domain and create a collection and claim copyright over the collection. It does not “Pollute” or infect your work to take PD materials and insert them into your copyrighted collection. This is why the copyright notice on classic works that is dated with a current date indeed is valid. Works of the US Govt if not properly attributed used to make the entire work loose its copyright. That rule in the Copyright Act however has been changed, even though the US Patent office still has warnings about such- Raises the question why the USPTO was offering advice on Copyright Law when the LOC is the shepard of copyright and not the USPTO- that is a long and complicated story involving politics, power grabs, and the such which is OT and too involved really to get into here.

    Third, you are corect in your assumption that the GPL was not designed to enrich the public domain. The GPL was designed so that university instructors, students, and others could collaberate with one another even though the university/ employer forced them to sign a NDA or IP clause. In the case of NDAs it works as a defensive mechanism as in the person bound by the NDA may not publish the work but neither can the University/Employer without revealing the Trade Secrets thus making the NDA useless. This is why there are clauses in the GPL to handle that.

    “If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.” – from section 7 of the GPL

    To understand this you must understand the history of the GPL and also understand that many Universities tend to force both students and staff to sign IP cluases- meaning the University Owns any IP the Student or Proffesor creates. In the case of Students, and why you see many Student GPLed projects, it is a double whammy as they paid to attend the University and then the University gets ownership rights to their work – In otherwords the students are paying to get their work stolen. The students and professors to rebel against this, intergrate their work with existing GPL work and the University, who wants to Publish for Prestrige, is left in a pickle- either publish and get the prestige but loose control of the work or sit on it forever and not let anyone know about it. The Universities, who like to publish things tend to go ahead and publish.

    Fourth, you are wrong about charging a royalty or patent the work to flout the GPL. If you violate the GPL you will not be sued for contract law violations in state court, as SCO has discovered in IBM’s counterclaims, but rather for copyright infringement in Federal court. That is written clearly into the GPL- I don’t know where you came up with your conclusion. Reread section 5 of the GPL.

    Also reread section 301 of the US Copyright act and remember the GPL specifically only covers US Copyright Act section 106 covered activities. It does not cover use.

    Fith, if it is in Public Domain you can get the original source and copy all you want. Nothing in the GPL prohibits that. As copyright in the US lasts 75 years after the authors death there is no GPLed software that has fallen into the Public Domain. If an author of a piece of software releases originally under the GPL but then latter attributes it to the Public domain only the portion that he/she wrote goes to Public Domain- not the entire work. Again from the LOC-

    “(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material” -from section 103 of the US copyright act.

    Likewise if an author who decides to republish under the BSD or other license decides to relicense their code they may only do so with their code not any other author’s contributions becuase the GPL does not transfer copyright ownership as the grant comes from the original author.

    Sixth, US Copyright Law does not define how large a portion can be used to make it a derivative work. There is the Fair Use deffense but you still have that deffense if you use GPL software. Fair Use however is an affermitive deffense meaning the defendant must prove that their use satisfies the requirements.

    Seventh, US Copyright Law does require that you register the materials you want protected by copyright and send several copies of it to the LOC. If you fail to do this you can not file suit for copyright infringement and if you fail to register prior to 3 months before filing suit you only collect real damages. If you file later than 3 years after the infringement you can not collect any civil damages and after 5 years there are no criminal damages – see chapter 5 of the US Copyright act. So, yes US copyriuight law does require you to show the source to people, at least the LOC, if you want copyright protection in the US.

    Eighth, unfortunatly you are wrong about characters in books not being considered derivatives. FanFicts and FanArt technically are infringing unless the author can sucessfully argue a Fair Use defense. Remember Fair Use is an affirmative defense and it is up to the alleged infringer to prove that it was fair use. Randel’s “Wind Done Gone” was initially found to infringe Michell’s “Gone with the Wind” in 2001 becuase it copied characters and plot from “Gone with the Wind” and was enjoined to stop production in 2001. The case was apealed and the injunction was vacated by the COA. The case was ultimatly settled out of court with Mitchel’s estate donating money to a black college- Mostly becuase they didn’t want a fair use ruling for it being a parody. Heck we are on Lessig’s blog go read “Free Culture” as he explains what is wrong with the current copyright law with regards to Fair Use Defenses and the such.

    Ninth, the GPL reads like a standard royalty agreement. Although you are correct in some regards that royalty agreements are not written into copyright law it is not the same as a EULA which reads like a funky perpetual lease agreement.

    Royalty agreements are covered by copyright law in such that if they are broken you are sued for copyright infringement . If charged with infringement you can make any number of affirmative defences, such as fair use, the portion you copied was public domain, the portion you copied was not protectable, ect.

    The typical EULA on the otherhand, unfortunatly, is not the same as it claims that you essentially are making a perpetual non-transferable lease to utilize the content. EULAs claim from the get go that you do not own the copy- if they didn’t then they would have to honor the US Copyright Law Sections 109 and 117 limitations. Depending on which state you reside in the only rights you have under a EULA, assuming its enforcable, is those spelled out in the EULA. This is of course if they didn’t do something silly like define “use” as copying the software in which case the EULA could be prempted such as in Vault v. Quaid. Also if the EULA contract does something silly like inhibit free speech for no good reason, such was the case in New York v. Network Associates d/b/a McAfee Software where the EULA prevented the user from writing disparaging but true things about the software, the license in whole or in part may be found to be not binding.

    You should also not that such EULAs under the license but not sold theory have been found to be considered sales see; RRX Indus.Inc. v. Lab-Con Inc., Applied Info. Mgmt. Inc, v. Icart, Novell, Inc. v. CPU Distrib., Inc., and it goes on and on and on and on. The cases which allow licensed and not sold mentality are in the minority. Not to mention that several states have passed legislation to change their version of the UCC to protect their citzens from UCITA and in these states with ANTI-UCITA typically you do “buy” the software and the contract is completed when you transfer funds for the copy of the software.

    Tenth, almost all software licenses to create derivatives are “Viral” with some exceptions such as the BSD license. Have you read the AT&T Comercial Unix License or the Microsoft Shared Source License. If not go read them. Essentially the licensing company claims to own your work. The same is true with the license that covers JAVA and the “Open” Macromedia Flash Player develpers license. Also note that Daimler-Chrysler was sued by SCO for failing to comply in a timely fashion with certification that they kept any trade secrets regarding Unix secure 7 years after they stoped using Unix. Now tell me which license is viral.

  • Joseph Pietro Riolo

    To Matt,

    You have a wrong concept that every violation of GPL is
    also a violation of U.S. copyright law.

    Here is a possible scenario: Person A writes software X and
    attaches GPL to it and distribute it to the public. The
    software X contains 10,000 lines of source code.

    Person B looks at Person A’s software X and consents to GPL
    that it comes with.

    A while later, Person B copies only one very basic function
    containing 10 lines of source code from software X to his
    own software Y. Instead of making the source code in
    software Y available to the public, Person B decides to
    distribute only binary code to the public.

    A while later, Person A finds out that Person B copies
    10 lines of source code from software X to software Y and
    also finds out that Person B does not make the source code
    for software Y available to the public along with the binary
    code.

    Person A decides to sue Person B.

    Let’s use your assumption that breaching GPL is equivalent
    to breaching copyright.

    In court, Person A explains the situation to judge. Person
    B will use the Fair Use Doctrine to justify the copy of 10
    source code. After going through four factors in the Fair
    Use Doctrine (purpose is for research, the copied function
    is mainly an utility, only 0.1% of software X is copied, and
    no effect on potential market or value of software X), the
    judge decides that Person B does not infringe Person A’s
    copyright. Therefore, Person A can’t use any of the remedies
    available under the copyright law.

    What Person A is supposed to do? The next step is to show
    that Person B violates GPL. After seeing at the evidence,
    the judge decides that Person B violates GPL because he
    does not make source code available to the public as required
    by GPL.

    What are the remedies that Person A has for the violation
    of GPL? Not much. Person A can ask judge to order Person
    B to make source code in software Y available as per GPL
    or remove 10 lines of copied source code from software Y.
    More likely, the judge will order the latter.

    You are entitled to your opinion about GPL. A lot of people
    love GPL. That is their choice. I am correcting your
    wrong concept on how GPL and copyright law interact.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Joseph Pietro Riolo

    To anonymous,

    You have wandered into other points that I am aware of and
    that I don’t disagree most of them.

    I will go through some of your points.

    I am aware that many EULA’s are more restrictive than GPL
    but then, GPL is more restrictive than some other licenses
    that are more restrictive than the public domain. It is
    all about spectrum from the most restrictive license to the
    total absence of license.

    I am aware that most GPL software does not require you to
    click on the “I agree” button. This is what makes it more
    friendly than other software because I have the choice of
    whether to agree or not to agree to GPL. I can purchase
    two copies of GPL software. With one copy, I agree to
    GPL. With the second copy, I decline GPL. That way, if
    there is a way that I want to do but it is allowed only
    by GPL, I will use first copy. If there is a way that
    I want to do but it is allowed only by copyright law, I
    will use second copy.

    Although copyright law allows you to claim copyright in
    the collection that includes the public domain works,
    the copyright does not extend to the public domain works themselves.
    So, I could copy the public domain works individually
    from the collection without violating the copyright law.

    Because the copyright law covers only the copyrighted works,
    DMCA does not cover the public domain works. So, I would
    break the encryption to copy the public domain works. There
    is no crime in that. However, the companies are too clever
    (and greedy) that they wrap around the public domain works
    with the license that does not permit you to copy them. The
    trick here is to find a way to get around the license such as
    copying the files from DVD directly.

    If I charge people for using patent in GPL-covered software,
    I do not violate anything in the copyright law. There is nothing
    that you can do with the copyright law. The only way that you
    can stop me from charging people is through contract law where
    you can ask judge to order me to stop charging people or to
    remove source code that patent covers. Like Matt in previous
    comment, you have the wrong concept that every violation of
    GPL is also a violation of the copyright law.

    As I said before, the definition that GPL uses for “Program”
    does not explicitly exclude the public domain works, unlike
    some other licenses. The definition is very vague that it
    could include the public domain works.

    You have to look at the list of activities in the U.S. copyright
    law that make up a derivative work. All of them require substantial
    portion from the original work. These activities do not include
    quoting or copying a portion from other copyrighted work, as allowed
    by the Fair Use Doctrine or as permitted by the owner of the copyright.
    See http://www.copyright.gov/circs/circ14.html.
    GPL, on the other hand, goes beyond than that to include even a small
    portion from GPL-covered software.

    It is not required to show the entire source code of software to
    the Copyright Office for the purpose of registration. I believe
    that you only need to show first 25 pages and last 25 pages of
    source code. See http://www.copyright.gov/circs/circ61.html for
    more details.

    I don’t think that you are correct about characters. The Harry
    Potter books are a good example. Each new book is not considered
    as a derivative book of the previous book. But, each movie based
    on each book is considered as a derivative work.

    Some licenses are viral and some other licenses are not viral. I
    am disagreeing with those who say that GPL is not viral.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.