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By: Joseph Pietro Riolo Mon, 07 Nov 2005 23:58:18 +0000 To Brian Thomas:

Let me ask you: The exclusive Right in Article I, Section 8
- Is it part of life, liberty or property in the Fifth
Amendment? This is just one example where exclusive Right
is understood not to be part of life, liberty or property.
Another example is the rights that come with Americans with
Disabilities Act. You don’t find these rights in the Fifth
Amendment’s life, liberty or property.

As I said repeatedly, you need to show court ruling that
shows that all rights are found in life, liberty or property.
The fact that you could not produce any court ruling gives
a very strong indication that your position is not correct.

You asked me how a private party can deny rights. As I told
you repeatedly, a party can waive its rights or restrain itself
from exercising rights through agreement. Some laws specifically
disallow any agreement that will restrain or waive some rights.
This is also true for freedoms.

As I said before, it is not necessary to have GPL tested in any
court. We have enough court cases to analyze any license.

Apparently, you did not read the last paragraph in my comment
dated “Oct 28 05 at 4:35 PM.”

You have total freedom to believe and accept Stallman’s Orwellian
definition of “free”. That’s your business. Here, I am defending
the true spirit of freedom by showing how GPL and other so-called
“free” licenses differ from the public domain where freedom truly
is alive.

Joseph Pietro Riolo

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

By: brian thomas Mon, 07 Nov 2005 21:14:53 +0000

Fifth Amendment focuses on the relationship between the government
and people. The government can’t deprive people of their life,
liberty, or property (let’s be careful with words here, the
word “rights” does not exist in Fifth Amendment).

Nor, for that matter, does the word “government”. Regardless, courts are a branch of the government whose powers are being limited here, and only through courts can license terms be enforced. And no, the mere involvement of a court does not constitute due process.

But what meaning has the word “liberty” in this context if any lawful right can be excluded? Put another way, how can one be prevented from exercising a lawful right without depriving him of liberty?

Moreover, how can a private party deny rights, except by the power of the government? When we talk about “fair use”, we’re talking about the freedom to do certain things without fear of being sued. Certainly a suit can be filed for any reason, but until the government steps in via the courts, no one need fear if the complaint is not one allowed under law. And my contention is that no one whose claim of copyright infringement is barred by the fair use doctrine and the law implementing it has any claim under the GPL. The lack of any court case testing this for over fourteen years does not cast any meaningful doubt on that question; quite the contrary. The range of litigation in this country’s history suggests that if a complaint can be prosecuted, it will.

And back to your very first comment again: the suggestion that Larry Lessig, law professor and specialist in intellectual property law, and a special fan of the GPL in particular, does not “grasp” its fundamental nature is an insult that only suggests a lack of “grasp” on your part. If he is embracing a Communist, or Orwellian, cause, he is doing so with full knowledge; he certainly does not fail to grasp its implications.

But you do Stallman a disservice as well; socialist though his politics clearly are – even Orwellian if you will, considering his support of intrusive government regulation of business and industry – there is no duplicity or deception in his naming this “free” software, because there is no abridgement of anyone’s valid rights either intended or enabled by the GPL.

Nothing you have said has advanced a coherent, logical argument supporting either contention. This and your haughty, dismissive tone could well explain why the Professor has not seen fit to dignify your comments with a response – an example I will now emulate.

By: domain Sun, 06 Nov 2005 06:23:14 +0000 Microsoft Shared Source Initiative

best Regards

By: Joseph Pietro Riolo Sat, 05 Nov 2005 23:18:56 +0000 To Brian Thomas:

Fifth Amendment focuses on the relationship between the government
and people. The government can’t deprive people of their life,
liberty, or property (let’s be careful with words here, the
word “rights” does not exist in Fifth Amendment).

Not all rights are covered by Fifth Amendment. You argued that
rights are included in “liberty” but I think that you are
stretching the meaning of liberty too far to include any right.
There are several thousands of rights in the U.S. (just my guess,
I really did not count the number of rights) but I doubt
that “liberty” (or even “life” or “property”) covers all of
them. This is the reason why I say that you need to show
court ruling that says that fair use right is covered by
Fifth Amendment. I argued that fair use (not “fair use
right”) is the result of First Amendment.

By Orwellian, I meant that Stallman was manipulating the
definition of “free” and “freedom” to mislead people into
thinking that “free software” prompts or protects freedoms
when it really does not. See
for different meanings of Orwellian. It is far more
precise to say “GPL-covered software” than to say
“free software”.

Joseph Pietro Riolo

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

By: brian thomas Sat, 05 Nov 2005 21:48:31 +0000 No, I gave up because I cannot see any connection at all between your arguments and your original characterization.

I asked for, and did not get, a logical explanation of how and why any right of any kind does not qualify for “due process” protection under the Fifth Amendment.

I never hinted that I believed that waiving rights through contract was a problem, and specifically stated otherwise.

You have yet to show why you believe that a document which does not constitute an agreement can take away rights that I already have.

I can’t cite court cases; if I could, my layman’s opinion of their import would be suspect. Accordingly, I’m not demanding that kind of support of your argument; I’d just like to understand its logic.

In particular, to me the term “Orwellian” refers to the oppressive atmosphere of government control which characterizes the novels of George Orwell, particularly “Nineteen Eighty-Four” and “Animal Farm”. How a license issued by a private party – in no way involving the government – and thus having power only over that party’s intellectual property, is in any way similar to that, you have yet to explain.

I’m not looking for proof, just an understanding of your reasoning. After this lengthy exchange, I’m no nearer that understanding than when I read your first comment.

By: Joseph Pietro Riolo Sat, 05 Nov 2005 11:33:37 +0000 To Brian Thomas:

You gave up because you could not even produce any
law or court ruling that says that fair use rights
(by the way, there is no such thing called “fair use
rights” in the copyright law) are included in “liberty”
and that they can’t be abrogated.

You gave up because I produced court cases saying that
it is okay for people to waive their rights through
any kind of consensual agreement, unless the agreement
is unconscionable or against public policy. It is very
common. Also, it is possible that people’s freedom to
enter any consensual agreement is part of liberty but
it is probably not accurate.

This discussion started when I said that Stallman’s
definition of “free software” is Orwellian. As can seen
from the long discussion, there is nothing free about
it in term of freedom.

Joseph Pietro Riolo

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

By: brian thomas Fri, 04 Nov 2005 20:58:34 +0000 I give up. I can’t tell why you’re arguing, or even what you’re arguing.

For one thing, you apparently agree as to the import of section 5, which I have said is probably of null effect, and should probably have added is technically inaccurate, because an action not even requiring knowledge of the existence of a document can not constitute agreement with it. But its imprecise explanation can still be understood in the sense that it means that you can be obligated under it regardless of your agreement. But nothing in it implies that you can be obligated beyond the scope of the owner’s rights, and as you say, if it does, it’s just wrong, and therefore unenforceable.

The warranty and liability matter doesn’t take any rights from you; it merely asserts that you don’t have them – a necessary defensive measure in a legal environment where an implied warranty may be assumed in the absence of any such explicit disclaimer. It is therefore irrelevant to whether a license can deprive you of pre-existing rights.

And of course, a duly executed agreement or contract (barring coercion, of course), being consensual, is also not relevant, and only enters in because of the question of consent raised in cases of violated EULAs which quite clearly are contracts, even though they contain a very poor license.

I’ll simply restate my two central contentions:

  • that if all rights (and – redundantly but perhaps more clearly – the free exercise thereof) granted under law are not what is meant by “liberty” in the fifth amendment to the US Constitution, then nothing meaningful is; and
  • that if any party, by any means, seeks or purports to abrogate any right, then that government’s complicity with that abrogation constitutes a deprivation of “life, liberty or property without due process of law”, the specific thing categorically forbidden by the fifth amendment.

The actual content of a document involved in this, whether you call it a “license” or not, and regardless of what category of law is involved, has no bearing whatever on the above.

By: Joseph Pietro Riolo Thu, 03 Nov 2005 22:12:26 +0000 To Brian Thomas:

It is not entirely necessary for GPL to be tried in any
U.S. court. We have enough court cases to help us
analyze any license. In Germany, however, GPL was involved
in a court case. Here are two different perspectives on

There is no question that GPL (except Section 5) would
pass any test in any U.S. court. I merely describe how it
works. We greatly disagree on the mechanism of GPL and how
it relates to the U.S. copyright law.

I don’t agree with your interpretation of Section 5 in GPL.
As I said before, it is simply false, even in natural reading.
There are some court cases saying that simply because someone
is doing something does not signify an agreement to the license.
The most popular example of this is the terms and conditions
found on most web page. Most of them say that by accessing web
pages, you agree to terms and conditions. Courts said that
this is not enough. People need to show explicit agreement
by clicking on button, for example. Section 5 is simply false
to say that by merely modifying or distributing GPL-covered
software, I agree to the terms and conditions in GPL.

Regarding your comment on my statements in #1, I already
gave you the court decision on Blizzard v. BNetd as an
example of how license can restrain people from doing
things that are permitted by copyright law. There is
one exception and it is the author’s right to revoke
agreement. No agreement can cause author to waive
that right.

Also, there is no conflict between licenses and copyright
law because copyright law does not always preempt licenses.
In fact, I have not seen any license that is preempted by
copyright law.

Regarding your comment on my statements in #2, you really
have to show me any law in the U.S. that makes plagiarism
actionable, other than outright copyright infringement.

Regarding your comment on my statements in #3, there is
a case whose name I don’t remember where a company agreed
to pay royalty to an inventor. However, when the patent
expired and the company stopped paying royalty to the
inventor, the inventor sued the company and because
of the wording in agreement that did not say explicitly
that the company could stop paying royalty, the inventor
won. The lesson from this is that whenever any person
or entity signs an agreement with author or inventor,
make sure that the agreement ends whenever patent
or copyright ends. That is what some Creative Commons
licenses do. They end when copyright expires. GPL
does not do that.

Not every change to a copyrighted work creates a new
work. If there are few changes here and there, no
new copyright will exist in the next version of software.
The next version has to be substantially different
from the older version enough to be considered as
a derivative work. (It is 70 years, not 75 years,
after the last author’s death. 95 years for

Regarding your comment on my statements in #4, you are
right only if I agree to terms and conditions in GPL.
If I am able to copy portion of your software as allowed
by copyright law, there is nothing that you can do to
stop me from putting my patents in my software that
includes a portion of your software. Personally, I
don’t like it. I brought it up to illustrate the
mechanism of license and how it is different from
copyright law. This is a good example of how
license can go outside of the scope of copyright
law to restrain people from doing something.

Regarding your comment on my statements in #5, GPL’s
definition of “Program” and “work based on the
Program” are far different from copyright law’s
meanings. Some Creative Commons licenses make the
definitions totally compatible with the copyright

Regarding your comment on my statements in #6, like
patents, I mentioned the warranty as an example of how
license can go outside of copyright law to include
other things that are totally unrelated to copyright
law. This is why I say that not every violation of
GPL is also violation of copyright law. What will
happen if people forget to include the no-warranty
section in license when they distribute software?
Certainly, they can’t be sued under copyright law.
They only can be sued under contract law for
breaching the agreement.

Again, you need to show me any law or court ruling
saying that fair use rights are part of liberty and
that they are guaranteed by Constitution,

Joseph Pietro Riolo

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

By: Brian Thomas Thu, 03 Nov 2005 15:11:42 +0000 That the GPL has not been tried in court (if it is true) is less meaningful than it would be had it not been so widely used for as long as it has. Indeed, most of the lawyers whose opinions I have heard on the matter (and who are not just rabid litigators) consider it a better thing that a document never required a court test than that it survived one. Part of this can probably be attributed to the fact that it is written in clearly explanatory language rather than the usual convoluted and often obfuscatory legalese. Given that there are hundreds of thousands of products using it, and that there are many people (presumably including you, from your writings) who would like to get away with violating it, or even just to bring it to a court test, for the past 14 years (for the current version alone), that record seems remarkable to this layman at least.

Not that there haven’t been challenges: At least one large company with the motivation and the resources to challenge it in court (Cisco, I believe) did not do so when it was revealed that they based their router OS on Linux without honoring their source-code distribution obligations. After some public posturing, they finally agreed to comply.

There is also some confusion in my use of the word “unilateral” to describe the license. Whether or not this is appropriate, my meaning was “one-way” in terms of the number of parties involved, not in terms of the direction of rights transfer. My argument, of course, is that where an instrument is unilateral in the first sense, the Constitution generally guarantees what common sense and most notions of fairness dictate: that it is limited to being unilateral in the second sense as well.

Another point I will clarify, and partially concede, is that section 5, which clearly states that “you are not required to accept this License, since you have not signed it” does go on to say that modifying or distributing it indicates acceptance of it. However, the didactic tone and explanatory detail of this section, which for the most part simply explains the legal implications of the document, suggests to me that this is of null effect. Its most natural reading, in my opinion, understands it as simply stating the legal opinion that engaging in any act forbidden under copyright law with respect to the covered product (excepting just copying and using it, which is permitted without limitation) means that you must comply with the terms of the license if you wish to be protected by it.

Any alternate reading would need to explain either why this is not the most natural reading or what legal principle requires contravention of this interpretation. Either argument would also have to overcome or reinterpret the 14-year prosecutorial history of the licensors – including most significantly the authors of the actual license – which appears to support their intent that it be interpreted that way. The meaning of a document is always held to be that which is intended by the author; any objective legal meaning of the language is only applied when the author’s intent cannot be inferred from the document itself or the context surrounding it, of which nothing is more persuasive than the author’s own actions.

To your numbered points:

1. Only a legal opinion can solve this question ultimately, but I’d like to understand how you believe that the GPL or any instrument created by a non-governmental entity has the power to contravene law. Even if it does say that, I believe that it is implicitly understood that conflicting law can invalidate any portion of a license or contract. There is also explicit acknowledgement of this in most legal documents, in the form of a severability clause.

2. I believe your first statement is false. Copying and claiming anything as your own, whether or not you publish it, is plagiary, and copyright law may not cover it, but it is actionable. The second statement is correct, and is the basis of software that affords most developers the freedom they need to use, reuse, or modify software without risk of legal liability. There is a reason that developers who don’t have the luxury of large legal staffs choose the GPL. The bottom line is that the benefits, both of using GPLd software and of licensing your own works under it, far outweigh the costs, and most risks are eliminated.

3. This is nonsense. I repeat: no private utterance can contravene law. The GPL has no effect, and no authority, except in the context of the author’s rights under copyright law. When those rights expire, the license is moot. Again, the “parties that agree to it” is a meaningless concept. Only one party “agrees” to it, and that is the copyright owner, who is stating in a legally-binding document the conditions under which his rights may be transferred, without entering into any explicit agreement. As such, it cannot cover the transfer of rights not held by the author, any more than I could lawfully write a check to you from someone else’s bank account.

You do bring up an interesting thought, of course… One controversial aspect of current copyright law is that rights accrue to the creator of a work from the moment it is committed to a persistent medium. Together with the fact that any change to a work effectively creates a new work, it means that a new copyright is created with every change. If Linux were still being used in the next century, it would likely still be actively developed, so that under current law it would have a fresh copyright, to which the GPL would still apply. Would this be a good thing? From the point of view of the Creative Commons, whose purpose is to re-establish the benefits of a public domain in the presence of laws hostile to it, it would continue to have the intended benefit. If it were not still actively developed, the copyright would expire 75 years after the death of the last person to change it. Thus, if copyright still created any hindrance to re-use of a work, because that last author or his successors could not be located, the GPL would still protect the re-user.

4. A slight clarification first: the GPL does not permit you to distribute my software with your patents where you can demand royalties.

And this means what, exactly? If I wish to say that my work shall remain unencumbered by patents in perpetuity, what harm is engendered? To whom? Under what law or principle? By what social or ethical value is my choice onerous or antisocial? That it’s not nice – not nice to deny someone the ability to profit from my work by denying others the ability to profit from it as he did? Please do explain this…

5. This, as far as I can tell, is entirely false. Again, regardless of what it actually says, a document transferring my rights to you cannot effectively take rights from you, unless it is an agreement to which you are a party. Either that, or my understanding of the US Constitution is seriously flawed. It’s always possible, but of course you’ll have to persuade me.

6. I have no competent opinion on this, but as to the implications, I have these observations: first, I have to agree that copyright has no role in it, since it’s not related to any copyright matter. It’s only there because, unlike most copyrightable works, software is a product subject to laws governing warranties and product liability. Second, I don’t believe that expressed or implied warranties or product liability relies in any way on contract law since liability – like copyright – does not require agreement. Third, and most important: what relevance has this to the GPL or ANY license – what software product have you ever seen that did NOT carry such a disclaimer?

And last, my claim is that fair use rights, like any rights granted or guaranteed by Constitution, legislation or contract are, of absolute necessity, part of any meaningful definition (particularly including any legal definition) of liberty, especially in the context of Constitutional guarantees – regardless of the specific means by which they were granted. Some contract rights might be considered as property, perhaps, but that is also explicitly named as protected. Please explain how it can be otherwise, and in particular, which classes of rights are not protected in this way and why.

So, to the lawyers (if any) who are listening, it is becoming evident that this is the question on which this discussion ultimately hinges: under what circumstances, if any, can a document not issued by a duly-constituted legal authority of competent jurisdiction deny rights neither held by the issuer nor voluntarily surrendered by agreeing to its terms?

By: Joseph Pietro Riolo Wed, 02 Nov 2005 21:19:36 +0000 To Brian Thomas:

GPL has not been tried in any U.S. court. But, there are some
court cases where licenses are enforceable, even if they
are in contrary to the copyright law. The court ruling
that I mentioned in my previous comment is one example.

It is incorrect to say that GPL does not require any
manifestation of agreement. Some GPL-covered software require
you to express agreement by clicking on the button “I agree”.
That is how an agreement is made. However, for some other
GPL-covered software that do not require express agreement,
it is up to court to decide whether any agreement is ever
made. It will look at the facts and decide whether the
parties actually have an agreement.

An example of unilateral license is like this: I
grant everyone the permission to copy chapters 2 to 5
from my book. Or, like this: I grant everyone the
permission to copy first 5,000 lines of source code.
Unilateral license imposes no conditions on other
party. GPL does not do that.

Here are few things that show the difference between
GPL and copyright law:

1. The copyright law allows me to copy the public domain
code, uncopyrightable code, or code as allowed by fair
use from your software to my own work and distribute
it without doing anything more. GPL requires me to
include the license notice, copyright notice, attribution
whenever I want to copy and distribute any portion of
your software.

2. If I compile my program with some functions in your
software, the copyright law permits me to create executable
program and claim it as my own without the need to get
the permission from you. GPL requires that if I use
any function in your software, I must abide by GPL that
covers your software and I must impose GPL on my own

3. GPL has no time limitation while the copyright law
has time limitation on copyright. Suppose that Linux
lasts for very long time – more than 100 years, copyright
in Linux eventually will expire and therefore, anyone is
free to copy the code whose copyright has expired. GPL
however does not expire until the parties that agree to
it cease to exist.

4. Copyright law permits me to incorporate my patents
into software and can demand people to pay me royalty
for patents. GPL does not permit me to distribute
software with patents where I can demand royalty.

5. GPL covers any kind of code while the copyright law
covers only copyrightable code. GPL’s definition of
derivative is much larger than the copyright law’s
definition of derivative.

6. GPL uses the contract law to disclaim warranty. The
copyright law has no role in it.

You need to show me where you get the idea that fair use
is included in the word “liberty”. Fair use is the result
of the freedoms of speech and press that put limit on the
exclusive rights in copyright.

Joseph Pietro Riolo

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

By: Brian Thomas Wed, 02 Nov 2005 19:53:06 +0000 I am sure that I don’t well understand the mechanism of license, but you apparently don’t understand, or don’t agree, that the GPL’s enforceability does not depend on the consent, agreement, or even knowledge of the license’s terms or existence on the part of the receiving party. As such, until explained otherwise, I cannot escape the conclusion that it is a unilateral instrument, regardless of its content.

You will surely have noted, if you have carefully examined it, that there is no place for you to sign it, or in any other way indicate agreement. That’s because it is not an agreement, but a one-way (i.e., unilateral), non-exclusive, conditional grant of rights that you do not otherwise have.

Such an instrument cannot, according to my understanding of the fifth amendment to the US Constitution, invoke the power of government (state or federal) to deprive any person of “life, liberty, or property” without “due process of law”.

May I presume that you agree that fair use rights are included in the meaning of the word “liberty” as used above, and that a lawsuit founded on breach of terms of a document to which one has not agreed does not constitute “due process”? If not, I (or you) have a lot to learn…

A EULA, or End-user License agreement, on the other hand, has been held to be a bilateral instrument or contract, with the user having agreed to any abrogation of his pre-existing rights. The only argument has been on whether the user actually agreed in any meaningful way, not on whether it was a contract.

Not every violation of GPL is a violation of copyright law

This could only be true if the GPL forbade something permitted by copyright law, which I’m sure it doesn’t. However, if it did it would be meaningless, because rights cannot be taken away except by law or contract, and the GPL is neither.

If copyright law says I may do something, the GPL, being the utterance of a private party, has no authority to say otherwise, and so does not come into play. I’ll say it again: it is not a contract. It exists only to give you rights that copyright law does not give you, and is thus a defense against claims arising under copyright law. Period. If you violate the terms of the license, you lose that defense, and you are liable under copyright law. The GPL (probably) does not address any activity that is lawful under copyright law, because it need not, but more importantly because legally it cannot. It has no power to contravene law.

More simply, in answer to your final paragraph, one can not sue under contract law where there is no contract. I think I mentioned that the GPL is not a contract

Please cite statutes, court cases, or whatever legal authorities you wish to use in correcting my misunderstanding of the mechanism of license.

By: SATISH BHARDWAJ Wed, 02 Nov 2005 17:35:46 +0000 Prof. Lessig. Why should I want a license from microsoft or for that matter from Google to develop software. You have a very popular blog. You could make a ton of money by becoming an affiliate of retailers and posting Text Links. Here you are posting prasises of Microsoft.

I wish I could get the idea accross that there is a need for developing a new method of surfing the web as discussed at

say a good word for it, Professor, will you? Thank you.

By: Joseph Pietro Riolo Tue, 01 Nov 2005 21:09:44 +0000 To Brian Thomas:

There is nothing wrong with dictating how you want
people to use your works. That is your intellectual
property rights. How you want to do with them
is your own business. Whether you are right or
wrong is outside of the scope of this discussion.

There are several wrong impressions that you are under.
That is very common among people who don’t understand
the mechanism of license.

It is entirely possible that license can make you give
up (waive) rights and/or make you restrain yourself
from exercising rights. The recent court ruling on
Blizzard v. BNetd shows how one can give up the
ability to reverse engineer through license. Only
very few rights are inalienable. None of the intellectual
property rights is inalienable.

It is incorrect to say that license is unilateral.
You have to read the terms and conditions in the license
to determine whether the agreement is entirely
unilateral, partially unilateral and partially
multilateral, or wholly multilateral. It does not
matter what agreement is called, be it a license,
agreement, contract, or whatever name. If the terms
and conditions require the licensee to do something,
the agreement is not unilateral.

GPL is not entirely unilateral. It requires the
licensees to do certain things in order to distribute
the GPL-covered software. These things are not required
by the copyright law. That is why GPL does not preserve
fair use. Fair use does not require you to anything
more when you copy a portion of a work whose copyright
is still active. But, GPL requires you to do certain
things when you copy and distribute any portion of

There is no agreement on whether fair use is a right.
Some say that it is merely a limitation on the exclusive
rights that a copyright holder owns. Some say that
it is a right against copyright holder’s exclusive

Not every violation of GPL is a violation of copyright
law. If I determine that a portion of your software is
uncopyrightable due to the Merger Doctrine, I am able
to copy it. The copyright law permits it because there
is no copyright in it. You can’t sue me for violating
your copyright for there is no copyright in it. I
can compile it and run it on my machine and make copies
for all my friends and customize it. It is perfectly
legal. There is nothing that you can do to stop me
from doing these things. That is also true for code
that is in the public domain and code as permitted
by fair use.

However, if I agree to terms and conditions in GPL,
then, you can a claim against me for violating the
terms and conditions. In this case, you do not use
copyright law to make a claim against me. You use
state contract law to sue me for breaking the terms
and conditions in GPL.

Joseph Pietro Riolo

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

By: Brian Thomas Tue, 01 Nov 2005 13:52:06 +0000 And the question is: Why is this wrong?

Why, to be clear, is it wrong to allow me to dictate – as any other rightsholder may – how my work is used, merely because what I wish to dictate is that everyone has the same rights with respect to my work, regardless of whether they get it directly from me or from a third party?

Why especially, when it is apparently acceptable for me to control my work in such a way as to forbid propagation of those rights?

Do you imply that I do not have a right to do as I wish with my property unless I forbid anyone else that right?

And I’m definitely out of my league here, and I will hope for the enlightenment of a legal expert on this, but I do not believe that a license of any kind may take away any pre-existing right. Licenses grant rights, period. They may, of course, impose conditions on those rights, but since they are unilateral grants and not contracts – agreements entered into by mutual consent – they can not take away rights. I am open to correction here.

Perhaps a EULA – an end-user license agreement – is, in fact, a contract; it seems that the legal conflicts over those have centered on whether or not there was, ideed, an agreement by the purchaser.

As such, I do not believe that the GPL forbids fair use, because as a unilateral instrument it cannot abrogate existing rights. Under the US Constitution, no citizen’s rights can be limited except by law or by consent; this is rather basic, and was a major sticking point with the British crown a couple of centuries ago. Fair use is a right that you have, by law, with or without the owner’s permission.

To make it clearer by concrete example, if you were to copy my work and call it yours, that would be a copyright violation. Contrary to what I believe you are saying, if you were to take a portion of my code and post it on your blog to ridicule my inept coding style, that would be fair use, and nothing in the GPL can forbid you to do that because a license cannot take away rights.

If you were to compile it and run it on your own machine, and make copies for all your friends, and customize it to your own tastes, that would be a copyright violation. Period. If, however, I had released it under the GPL, you have a defense against any copyright claims I should be foolish enough to pursue, provided that you complied with the terms of the license. The license does not require or in any way depend on your assent, therefore it cannot, under the Constitution, abrogate any of your rights.

Another angle: Because a license is not a contract, if you did not comply with the terms of the license, my action against you would still be a copyright infringement, not a violation of the license. There is no “violation of license” per se; only a violation of copyright, against which the license can be a defense only if your actions (or lack thereof) did not render the license inapplicable.

At least, that’s how I understand it…

By: Joseph Pietro Riolo Tue, 01 Nov 2005 07:13:20 +0000 To Brian Thomas:

Unless the license does not contain extra elements
not found in the U.S. copyright law, it is possible
to eliminate fair use through license. There is no
court case that says otherwise.

What you seem to overlook is that GPL also eliminates
fair use. Fair use is not preserved in GPL.

When you agree to GPL, you are bound to the terms
and conditions in GPL. What this means is that if
you merely copy one line of code and distribute it,
you are still required to follow terms and conditions
in GPL.

But, if you don’t agree to GPL at first place, you
can copy code that is in the public domain, code
that is uncopyrightable due to Merger Doctrine,
and code that is within the boundary of fair use
and distribute it without the need to follow terms
and conditions in GPL.

The Section 5 in GNU GPL is simply untrue. The copyright
law does not forbid copying and distributing any portion
of work if that portion is in the public domain, is
uncopyrightable, or is within the boundary of fair use.
It is amazing that such untrue section remains in GNU
GPL for many years misleading people into thinking that
it is not possible to copy and distribute any portion of
GPL-covered software without following the terms and
conditions in GPL.

Joseph Pietro Riolo

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

By: Brian Thomas Mon, 31 Oct 2005 13:33:53 +0000 Brian Thomas, could you please direct me to the site or book where Stallman openly declares that he is a “socialist”.

I cannot, having no memory of his making such a statement directly. So I must admit to, and apologize for, implying an explicit statement, which I had not witnessed, in my characterization of his beliefs, which I have. And I do ask your pardon for the same.

So, for the record, let me amend my statement to remove that implication and stick to what I have observed in public fora which, presumably, quoted him accurately:

Stallman’s public statements indicate a strong socialist point of view on economic and political matters beyond the software sphere.

If you disagree with this statement, I will try to find specific examples. It shouldn’t be too difficult; as I recall I did not have that impression until I read a recent interview.

And to the Mice et al:

I don’t have the brains or the inclination to follow through the convoluted and – I suspect, meaningless – philosophical meanderings of your arguments. I simply posit these simple statements for the record, at the risk of repetitiveness:

  • A license by definition grants rights not otherwise available under law.
  • It may do this – again, by definition – because the licensor possesses the granted rights.
  • Copyright law grants no rights to receivers of a copyrighted work beyond what is recognized as “fair use”. All other rights over the work remain with the owner.
  • Proprietary software licenses typically abrogate nearly all “fair use” rights (strictly as a matter of opinion, it seems to me that a license per se cannot do that. But courts appear to disagree).
  • The GPL and similar licenses grant many more rights, with no obligations beyond proper attribution and agreeing to pass those rights on to anyone to whom the licensee voluntarily distributes the work, whether or not for consideration or compensation of any kind.
  • And one more thing for the Mice: What Microsoft has done is to pursue a deliberate, systematic strategy of market control, with the present result that people pay more for poorer quality software, and put up with bugs and security vulnerabilities that customers in a truly competitive market would never have tolerated. They have not brought the world great new innovations but have bought, stolen, hijacked standards, and strongarmed competitors and customers alike so that there was no practicable choice in software. All of the items you mention came from others, and indeed they did benefit in a big way from the BSD IP stack; in fact it unquestionably saved their bacon back when they finally woke up to the threat posed by the Internet. The only meaningful innovation they have practiced is in finding new ways to construct and reinforce their hegemony.

    And I don’t think you really read my post – forgivable, considering its length – because if you had you would have noted that I listed Stallman’s first major contribution, which has been invaluable, even to proprietary vendors – gcc. As a developer I have personally benefitted enormously from this, as I mentioned. But beyond that, the GPL made the current open-source phenomenon possible, and even the mighty Microsoft must sit up and take notice, and is finally doing things like lowering their prices.

    In closing, three statements on which I’d like your opinion, just for curiosity’s sake:


    By: Peter Rock Mon, 31 Oct 2005 05:09:05 +0000 Alan,

    How would one “teach” intelligent design?

    By: Alan Sun, 30 Oct 2005 20:36:29 +0000 Hi Lawrence:

    How about discussing your views of the use of copyright to prevent Kansas educators from using teaching materials because they also teach intelligent design? It seems like a new abuse of copyright that is suddenly ok because it is against those “bible believing people”.