October 28, 2005  ·  Lessig

It is a common (and very good complaint) that there are too many free and open source software licenses. Multiplicity weakens interoperability. Interoperability of innovation is key.

For sometime, Microsoft has been playing in this community. Its “Shared Source Initiative” has given at least some access to important Microsoft code.

Last week, Microsoft made a major announcement that will benefit the ecology of free and open source software licenses significantly. As described here, Microsoft has abandoned a ton of licenses, focusing its efforts on just three core licenses. Two of these three licenses — the MS-Community License (MS-CL), and the MS-Permissive License (MS-PL) are technically “free” licenses under the FSF’s definition of free. The third MS-Reference License (MS-RL) is a view-only license, not quite free, but valuable nonetheless.

This is fantastic news, reinforcing an ecology of free licenses.

  • Joseph Pietro Riolo

    Professor Lessig,

    Apparently, you don’t grasp the gist of Richard
    Stallman’s Orwellian definition of “free software”.
    His definition requires that when you distribute
    executable code, you must also distribute source
    code with it. Nowhere in Microsoft’s licenses
    requires licensees to distribute source code along
    with executable code in all cases.

    Joseph Pietro Riolo
    <[email protected]>
    <[email protected]>

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

  • three blind mice

    Multiplicity weakens interoperability. Interoperability of innovation is key.

    interoperability of innovation? sorry professor, but this makes no sense. innovation implies change, interoperability abhors change. setting a priority on interoperability stifles some innovation and enables others.

    one must look at innovation as a whole.

    competition among standards, platforms, and devices is at least as important as interoperability. Henry Ford pioneered interoperability and the result was that every model T was black and looked exactly the same as every other model T. not so much innovation, but parts could be easily exchanged.

    the Bell System’s telephone network achieved very high levels of technical interoperability, but not so much innovation. left to the Bell System’s idea of interoperability, the world would still be circuit switched.

    there has been very little real innovation in TCP/IP but because TCP/IP has been relatively stagnant there has been some innovation in the applications that use TCP/IP. it woud probably make very little sense to keep TCP/IP stagnant for the next century in order to priortize interoperability for applications. it would be akin to re-creating another Bell System.

    competition among different licenses is more likely to produce a better result than a one-size-fits-all license than can never be changed for fear of disturbing interoperability. there are also serious anti-trust implications to reducing developer choice.

    Joseph Pietro Riolo free software is an ALTERNATIVE to proprietary software. it should NEVER be allowed to become the only option.

  • http://gnuosphere.blogspot.com Peter Rock


    it [free software] should NEVER be allowed to become the only option.

    Why not?

  • three blind mice

    why not?

    is it not obvious? open source is one development model. it is not the only development model, nor is it the best development model; it is only a different development model. having different development models – and different licenses – provides choice. giving developers, businesses, and consumers choice is the sine qua non of market economics.

    it’s really not any more complicated than that.

  • http://wolli.blogspot.com/ wolli

    A quick glance at the licenses brought the following to my attention: the licenses say that Microsoft grants you the rights, and when you develop derivative works, you must distribute these under the same license, which itself cannot be modified. This means obviously that the license for your derivative work would also say that Microsoft grants the end user the rights.

    Sounds a bit like you were assigning your copyright in the derived work to Microsoft, and then Microsoft would license the work to the third parties.

  • http://gnuosphere.blogspot.com Peter Rock


    having different development models – and different licenses – provides choice. giving developers, businesses, and consumers choice is the sine qua non of market economics.

    The fact is, proprietary software divides and controls computer users – it takes away their freedom. It is also anti-market as the support around proprietary software is a monopoly. It is also anti-market as its nature is more akin to mercantilism – it is rooted in the idea that restricting trade is good. Your argument is like saying that democracy and dictatorial regimes should co-exist because it is good for humans to have the choice of having their freedom respected or revoked. I don’t see the value in such co-existence. I want freedom for all human beings. Co-existence is a wonderful philosophy and approach when dealing with certain phenomena. For example, I think people of different cultural and racial backgrounds should co-exist. But when one of the items in question is inherently oppressive, the argument for co-existence is dubious.

    RMS has said it and I completely agree with him – “proprietary software is “anti-social”. Choice of “development models” is fine assumuing the models in question ALL respect your freedom. However, focus on the development models misses the point that proprietary software places its users in chains.

    If you can explain to me how proprietary software is not anti-social, I’m all ears. Simply read a proprietary license and the fact is there – Stallman’s statement is neither false nor hyperbole – no matter how shocking and seemingly extreme it sounds. Proprietary software is about maximizing profit and externalizing the side-effects directly upon the computer users themselves.

  • http://gnuosphere.blogspot.com Peter Rock


    Richard Stallman’s Orwellian definition of “free software”

    Could you please explain what you mean by this?

  • anonymous

    “[Stallman's] definition requires that when you distribute
    executable code, you must also distribute source code with it. “

    That’s not quite true (http://www.fsf.org/licensing/essays/free-sw.html). However, the GPL (maybe that’s what you mean by “his definition?”) does require licensees to provide code on-demand for a limited time. So, if some users don’t care about code, you don’t have to force it on them.

    “Nowhere in Microsoft�s licenses requires licensees to distribute source code along with executable code in all cases”

    That’s not true at all: according to the MS-CPL, “You must also provide recipients the source code” — http://www.microsoft.com/resources/sharedsource/licensingbasics/communitylicense.mspx

  • brian thomas

    How is it “Orwellian” for me to require, when I consent to give you the product of my own work to use as you desire, that you honor my intention as the owner of the work to make sure that everyone else may do so also, by stipulating that you may not distribute it except under the same terms? “Orwellian” values deny citizens rights to their property such as the GPL explicitly enumerates.

    Yes, Stallman is an avowed socialist, one of my generation raised on the subtle seditions of an educational community that taught us that socialism was really the socio-economic ideal, but it just hadn’t yet been implemented effectively. I have awakened from that stupor; it would appear that he has not.

    His political leanings notwithstanding, look closely at the reasons for his championing of free software. Software was free at the beginning; it was originally, in effect, part of the hardware, to the extent that it only ran on specific hardware and the hardware was useless without it. Great strides were made in software in those days because collaboration and community improvement were (relatively) easy.

    As the industry grew, however, and the notion of portable software gained traction (ironically, Unix was a major driver of this), a business model for software development separate from hardware development emerged, and businesses formed from it now saw their competitive advantage eroded if what they were selling was available for nothing. As a result, most code – including most code previously available for free – became available only for a fee, and even that was for only the compiled output, which typically only ran on one hardware platform. The source code typically became a secret, available – if at all – at a much higher price.

    The effect on research, which is what Stallman did for a living, was devastating. Suddenly, the tools of his trade – indeed, some of the work he himself contributed – were unavailable to him due to the excessive cost and legal restrictions.

    Take away a man’s life’s work and you can expect a strong reaction. This is literally what happened to Richard Stallman, and his reaction was to dedicate the remainder of his days to making it possible to avoid this happening again. His (and the Free Software Foundation’s) work on the GNU compiler construction kit gcc (originally standing for GNU cc, after the Unix C compiler) laid the undisputed critical foundation of all truly portable software, and eventually for Linux.

    It is important to note also that gcc also made a lot of software companies a lot of money, considering that it was highly portable (thanks in part to Larry Wall’s metaconfig, a Perl-based toolkit for factoring in the quirks of diverse operating systems, so as to make more independent code). I have personal experience of working for a small startup in the early ’90s, and bringing one tape to a borrowed machine of a sort of which I had little to no experience, and leaving, typically one to eight hours later, with another tape containing our entire product compiled for, and installable on, that architecture. It is therefore the case, then, that Stallman’s work has enabled the creation of untold wealth by private enterprises, and with his blessing.

    The FSF found, however, that merely releasing their work into the public domain did not protect it from being privatized, and taking it away again (Professor Lessig’s audience here is well aware of this, so I won’t dwell on it), hence the GPL.

    I challenge anyone to explain to me how the GPL, which enumerates the rights that the author of a software package grants to those who use it, and the conditions under which those rights are granted, is in any sense “Orwellian”. If I create a work, it is mine; no one can tell me how I may use it. Nor can they tell me whether, to whom, or under what conditions I may give it to another. If someone makes something else out of it (subject to legal interpretation), then I may want – and have the right – to have a say in what they do with my work. Copyright gives me these rights, limited somewhat by the “fair use” doctrine which gives some rights over my work to others.

    Two issues really grate on me in listening to typical discussions of this. First, calling the GPL Orwellian – at least in connection with its restrictions – suggests that it limits the rights of licensees. It does not. Copyright law does that. The GPL grants rights that ordinarily don’t exist, and simply puts conditions on those grants.

    Second, the typical EULA, which by implication is the standard by which the GPL should be measured, actually does take away most or all of the rights granted by copyright law. You can’t sell it if you don’t want it any more; you can’t modify it or use bits of it without explicit permission; you can’t even look inside to see how it works! As such, it has been controversial, since the only way that legal rights can be abrogated is by a contract, assented to by both parties. Given that a typical retail software purchase does not comprise any contracts, the “click-wrap” scheme was initiated. Calling a scheme “Orwellian” because it lets me prevent that kind of use of my work defies logic.

    Or do fair use and good capitalist, democratic values imply that, having received a work of software for nothing, I have the right to package it up and sell it under such a EULA, which not only fails to extend the right that I had but actually takes away rights previously held by all under copyright law?

    I am not a socialist; I firmly reject the principles of Marxism as theoretically flawed and practically unworkable, based on deep understanding of them as a former Marxist ideologue. I specifically disagree with most of Richard Stallman’s economic and social theories. But the FSF’s definition of free software – as embodied in the legal instrument known as the GPL – is no more socialist or “Orwellian” than a potluck dinner or a barn-raising.

  • brian thomas


    “antitrust implications”?

    “reducing developer choice”?

    I was taught that “trusts” were monopolistic “combinations in restraint of trade” – in other words, conspiracies among ostensibly competing producers to keep prices artificially high. They could only do this if they controlled some crucial aspect of the market, such as raw materials sources or trade routes or patents.

    It has been set forth that free software could be considered a conspiracy to fix prices, but I think that only a Microsoft partisan or a complete simpleton or lunatic (without comment on the degree of overlap of those sets) could ever make such a statement with a straight face, since price-fixing is only a problem if the price is kept artificially high.

    Of course, price wars can be used anti-competitively, but only by producers having deep pockets, and even then only long enough to bankrupt the competition so they can again raise prices.

    And I truly fail to see how providing more code, with fewer restrictions, reduces developer choice. What am I missing?

    Or did I wake up on the wrong side of the mirror today, and you’re not three blind mice but the Red Queen, or Humpty Dumpty (“when I use a word, it means what I mean it to say, neither more nor less…”)?

    And Larry Lessig is really the Cheshire Cat, smiling beatifically disembodied on us all…

    Curiouser and curiouser…

    brian (or is it, Alice…?)

  • three blind mice

    And I truly fail to see how providing more code, with fewer restrictions, reduces developer choice. What am I missing?

    brian thomas what you are missing is the same thing that peter rock is missing – the broader view. the world exists of more than software developers. microsoft has created the most widely used software in the world. what has mr. stallman created? GNU is indeed a very useful thing, but it cannot compare to the social and technical impact of windows.

    this is in no way meant to denigrate mr. stallman, but to point out that you ignore the massive success of the proprietary model. the TCP/IP stack in windows 95 did as much for the world wide web as HTML. where would the internet be if there were no easy to use machines to connect to it? it would still be a toy for university researchers.

    there is a need for different business models as much as there is a need for different development models. one-size-fits-all, everything must be “free”, there shall be no intellectual property is a very one-dimensional view of the world.

    the banal uniformity of interoperability holds little promise for the future. the world is a complicated place. we are all better for the differences. diversity is the key! the more choice, the better.

  • Fiepoto

    “we are all better for the differences. diversity is the key! the more choice, the better” TBM

    Now that is Orwellian! Peter Rock is right when he called such statements about “choice” dubious.

  • J.B. Nicholson-Owens

    Joseph Pietro Riolo’s unjustified namecalling notwithstanding, RMS’ definition of free software does not “[require] that when you distribute executable code, you must also distribute source code with it.”.

    There’s nothing in the new BSD or MIT X11 license that requires distributing source code with executables, and yet both of those licenses qualify as free software licenses. The FSF distinguishes between licenses that grant software freedom to licensees and those that maintain software freedom for all recipients. They employ a mechanism called copyleft to achieve the latter in their most widely used and endorsed licenses (the GNU General Public License and the GNU Free Documentation License). Hence, the GNU GPL is a copylefted free software license and the new BSD license is a non-copylefted free software license.

    three blind mice is confusing open source with free software. The development methodology at the center of the open source movement philosophy is distinct from the philosophy of free software. This essay explains the situation quite well and is probably one of the most underrated essays the FSF has published. In a later post, three blind mice appears to be arguing popularity as a means to weigh the success of the GNU Project (“microsoft has created the most widely used software in the world. what has mr. stallman created?”). But it is not three blind mice’s place to determine what is the metric of success for the GNU Project, nor is popularity the sole means of how the GNU Project determines success (“The goal of GNU was to give users freedom, not just to be popular.“).

    The reason the FSF argues that all published software should be free software stems from an ethical examination of what non-free software does to users and what kind of society we ought to live in. For the FSF, copyright power is not just a matter of choice where all choices are equally good.

  • Eris

    “Apparently, you don�t grasp the gist of Richard Stallman�s Orwellian definition of �free software�. His definition requires that when you distribute executable code, you must also distribute source code with it.”

    So basically what you’re saying is that you want to be able to steal my code and distribute your hacked-up version in binary form.

    Yeah, I’ll be sure to let you on my dev team.

  • Joseph Pietro Riolo

    To Three Blind Mice:

    Of course, GPL is an alternative to other licenses.
    I was just disputing Professor Lessig’s claim that
    Microsoft’s MS-CL and MS-PL fit Richard Stallman’s
    definition of “free software”.

    To Peter Rock:

    My below response to Brian Thomas explains what I
    mean by Orwellian.

    To anonymous:

    See Section 3(C) in MS-CL. It does not require you to
    make source code available to other people. In other
    words, it gives you the choice to make or not to make
    source code available to other people.

    To Brian Thomas:

    Freedom usually means no restriction (it is not that
    simple but I don’t think anyone is in mood to discuss
    philosophy on freedom).

    The key word in your first paragraph is “require”.
    When you require me to do something after you consent
    to let me use your product, you are restricting my choice
    to do what I want. You take away or you are restricting
    my freedom to do anything that I want to do with your
    product. Richard Stallman says that this is freedom. I
    say that this is control. You are simply controlling
    over me on what I can and can’t do with your product.

    Freedom is always double-edged sword. It is very
    powerful. Your friends have the total freedom to betray
    you (or not to betray you). When a person becomes your
    friend, you do not require that person to give up the
    freedom to betray you. You do not require that person
    to sign contract called “friendship”.

    The public domain is like friend. It gives the people
    the total freedom to do what they want to do with the
    public domain materials. They can choose to make the
    same public domain materials available to other people
    with no additional restrictions. Or, they can choose
    to restrict the uses of the public domain materials
    through license as you pointed out. Either way, they
    have the freedom to decide how to do with the public
    domain materials.

    Richard Stallman does not want that. He does not want
    people to have the freedom to ignore his rules.
    Therefore, he wants the copyright holders to forbid
    users from breaking the rules as outlined in GPL.

    For him, freedom is control. That is what I meant by

    You should notice that proprietary and open licenses
    (including GPL) use the same power to control people
    who agree to licenses. The only difference between
    proprietary and open licenses is the amount of control
    over people. Proprietary licenses exert more control
    than open licenses do. Also, licensees have no freedom
    to disregard the terms and conditions in licenses unless
    licensors free them from the obligations to follow the
    terms and conditions. That is no freedom. That is called
    bondage. You are bound to GPL if you agree to the terms
    and conditions. You have the total freedom to agree or
    not to agree to GPL. Once you agree to GPL, you lose the
    freedom to get out of it. Only the licensor has the
    freedom to free you from the legal obligations, unless
    license spells out other ways to get out of it.

    To J.B. Nicholson-Owens:

    I re-read the web page that Professor Lessig cited and
    you are correct.

    To Professor Lessig:

    Unlike courts where speakers can simply withdraw questions
    or statements, I can’t simply withdraw my comment that
    I made this morning. This is to state that I was wrong to
    accuse you of not grasping the essential meaning of
    “free” as defined by FSF in the web page that you cited.

    Joseph Pietro Riolo
    <[email protected]>
    <[email protected]>

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

  • Wesley Parish

    “human in public view” posting here ;) I had a look at the five new Microsoft Shared Source licenses and have to agree with Prof Lessig – two of them, the “raw” Microsoft Permissive License and the “raw” Microsoft Community License, do fit both the FSF’s definition of Free Software licenses, and the OSI’s Open Source Definition.

    The real question is about what Microsoft will do with its current set of Shared Source projects. If it just leaves them as is where is, it’s now got 15 Shared Source licenses, and all the joy its worst enemies could wish on it – having been proved to have lied yet again, thus causing its licensees much grief as they decide whether or not to believe it yet again, etc …

    Workable policy for Microsoft is easy enough to decide – fold Shared Source programs like the GSP into the MS Restricted License, and massively over-licensed-unto-death Shared Source programs like the MS WinCE foursome into the MS Permissive License, retain the ones licensed under existing OSI-approved licenses under their current licenses, and decide the rest on a case-by-case basis.

    Just my 0.02c – inflation again!

  • J.B. Nicholson-Owens

    Freedom often means restrictions. Freedom of speech doesn’t allow you to say anything at any time. The GNU Project representatives explain the logic of this in their talks almost every time they give a talk. I’ll try to paraphrase what they say:

    Not all freedoms are possible to have because some freedoms conflict. The freedom I have to walk down the sidewalk in safety conflicts with your freedom to drive your car anywhere you want. So society has to make choices about what is more important, and in this case we choose to restrict where the car driver is allowed to drive and at what speed they’re allowed to travel. We are not imposing these restrictions to demonstrate control over car drivers. We are imposing them because we have made a choice to favor pedestrians. The GNU GPL, the most famous copylefted free software license, has restrictions on distribution because those restrictions serve the purpose of ensuring that more people get software freedom (the metric by which the GNU Project defines success). Allowing derivative works to be placed into the public domain or licensed under a license that doesn’t enforce the user’s freedoms as well as the GPL does would mean people could get software that has restrictions that are there to give the distributor control over the user. And this is clearly unacceptable for the GNU Project.

    Freedom is not control for Stallman. In fact, Stallman directly addressed the difference between freedom and power.

    Finally, you don’t have to choose to distribute the GPL-covered software in the first place (the GPL’s terms kick in on distribution). You could write your own program instead and leverage your power to license it any way you wanted. If anything in this arrangement is Orwellian, it’s copyright power, not what the GNU Project is advocating.

  • http://gnuosphere.blogspot.com Peter Rock

    Stallman is a “pragmatic incrementalist”.

    Over the summer I purchased a book that I heard about through this very blog. The book is called “Straightforward: How to Mobilize Heterosexual Support For Gay Rights” by Brown and Ayers. In Chapter 2, the notion of “pragmatic incrementalism” comes up and JPRs claim that Stallman’s notion of freedom is Orwellian propaganda made me think of this chapter.

    Ayers and Brown quote congress member Barney Frank (pg. 20, Straightforward) as saying:

    The notion that being concerned about implementation somehow means you don’t care about your ideals is the single stupidest sentence I hear uttered by otherwise intelligent people. What that says is I care so much about these values, they are so important to me, that I will be absolutely indifferent to whether or not I make any progress in accomplishing them. You, I think, have a right to be totally nonpragmatic about your favorite color, about what season of the year you like. Things that are of relative triviality, fine, don’t be pragmatic. Who cares whether they happen or not? But when you’re talking about the most fundamental human values, how dare you say, “Well, I care about these, and I will therefore pay no attention to whether or not they get advanced.” We can argue about what’s the best way to advance them, but it simply cannot be rationally said that the depth of your concern is shown by the shallowness of your effort to implement what it is you’re concerned about.

    I agree that the public domain maximizes one’s options when a work of code is available under that status. However, I disagree with JPR that, in regards to software, the public domain exemplifies freedom.

    Ayers and Brown go on to say (pg. 21) -

    Pragmatic incrementalism takes into account the political, social, and economic reality to wrest benefits from the social landscape, however small, whenever and wherever they are achievable.

    Richard Stallman wrote the GPL taking into account the “social landscape”. It is because of the actual landscape that it becomes completely appropriate to refer to the GPL as a license that gives one freedom. To make the claim that the public domain is what defines freedom is to be so focused on a particular value that one ignores the actual state of social circumstances – or more simply, what is.

    The proponents of licenses that resemble the BSD license often say that the BSD gives you “more freedom” because you can turn the code into a proprietary package. I find this claim suspicious and problematic. That’s like saying one is not living in a free society unless one is granted the power to take away another’s freedom.

    So when JPR says…

    Freedom usually means no restriction (it is not that simple but I don’t think anyone is in mood to discuss philosophy on freedom).

    …I strongly disagree. Non-frivolous discussion regarding the philosophy of freedom is absolutely essential and is what can keep tyranny at bay. To simply define freedom and then execute that static definition in daily living without reflection upon one’s own “social landscape” is a dangerous approach.

    J.B. Nicholson Owens is absolutely on the mark when he states -

    If anything in this arrangement is Orwellian, it’s copyright power, not what the GNU Project is advocating.

  • Joseph Pietro Riolo

    To J.B. Nicholson-Owens:

    That is precisely why I said that freedom is not that
    simple. It is a very complex topic that always bedevils
    philosophers for many centuries. I am fully aware that
    not all freedoms are edification.

    I don’t agree with you that freedom has restriction. That
    is not what freedom is. When freedom starts to have
    restriction, it is no longer freedom and it changes into
    privilege or right. Driving a car is a privilege. Walking
    down the sidewalk is a right-of-way across someone else’s

    GPL does not give any freedom for it has restrictions on
    distribution as you pointed out. What GPL actually does
    is to give special privilege to people who agree to the
    terms and conditions in GPL. Those who do not agree will
    not have special privilege. The public domain does not
    favor one over other but GPL does favor one group over
    other group. That is Stallman’s business to favor one
    group over other but to say that he is giving the former
    more freedoms than the latter does not agree to the
    spirit of freedom.

    The web page that you cited does not show the correct
    understanding on difference between freedom, right,
    privilege and power. (It was wrong about government
    power guaranteeing each citizen’s freedoms through
    Bill of Rights. It is not Bill of Freedoms. It is
    Bill of Rights. There is only one occurrence of the
    word “freedom” in Bill of Rights while there are
    six occurrences of the word “right” and “rights”.
    Freedom means that the government has no power to
    restrain you but also is not obligated to help you
    while right means that the government is obligated
    to help you exercise it. You have the freedom of
    speech meaning that the government can’t stop you
    from making a speech but you don’t have the right
    of speech meaning that the government is obligated
    to help you making a speech.) To see the difference
    between freedom and right in the web page, just
    replace every occurrence of “freedom” with “right”
    and you will see that GPL is really about the
    users’ rights. Finally, what is left unsaid from
    the web page is that GPL needs power to enforce
    the terms and conditions. Rights and privileges
    need power in order for them to be meaningful.
    Freedom does not need power for it flourishes in
    absence of power.

    Joseph Pietro Riolo
    <[email protected]>
    <[email protected]>

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

  • Joseph Pietro Riolo

    To Peter Rock:

    Certainly, I agree that it is important to discuss on
    philosophy regarding freedom. When I said that I don’t
    think that anyone is in mood to discuss philosophy of
    freedom, I mean that the very large majority has no
    interest in analyzing the meaning of freedom. You may
    be in the very minority. I do value the freedom of
    knowledge (including source code). However, Stallman
    has his own definition for “free software” and I
    still maintain that he is misusing the word “freedom”
    to advance his own philosophy. The word “freedom”
    just sounds better than “rights” or “open” or
    whatever word out there.

    As I said before, freedom is always double-edged
    sword. You can exercise freedom for good purposes
    or even bad purposes. You have the freedom to
    turn the public domain source into a proprietary
    package. But, when you are denied the freedom
    to do that, what do you have? Certainly, it is not
    freedom. What you have is called “right”. That
    is what GPL is doing. GPL gives you certain
    rights (not freedoms) to do certain ways but do
    not give you the rights to do other ways.

    There is already social landscape for the public
    domain. But, Stallman does not like it. He
    does not like anyone in that landscape to have the
    freedom to turn the public domain source into
    a proprietary package through license. Therefore,
    he decided to create his own social landscape
    according to his own philosophy. To give it
    a name, he decided to misuse the word “free”
    to make it look wonderful to the people who do
    not care the difference between his Orwellian
    definition of freedom and the true meaning of
    freedom. That is his business. He has the
    freedom to create his own world.

    In the U.S., people have the freedom to enter
    into contract with each other but once they
    do that, they are bound to the terms and conditions
    in the contract. That is how the public
    domain code can be turned into a proprietary
    package through restrictive license or even GPL.
    You are correct in saying that the maker of the
    proprietary package takes away the freedom that
    is available in the public domain. That’s one
    downside about the public domain. However,
    that is not the end. People can always bypass
    that maker to go to the source of the public
    domain code and copy it. Or, they can look
    for other people who still make the public
    domain code available without any additional

    Joseph Pietro Riolo
    <josephpietrojeungrio[email protected]>
    <[email protected]>

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

  • three blind mice

    Joseph Pietro Riolo and Peter Rock – thanks to both of you for your eloquent and thoughtful posts in this thread.

    Peter Rock, the Ayres and Brown quote was particularly appropriate. too often we – we three blind mice included – get hung up on ideology, underestimate the practical limitations, and ignore the possibilities of a different approach.

    being open-minded to other possibilities is what fuels innovation and it is a pleasure to find such strength in the arguments of others.

  • http://gnuosphere.blogspot.com Peter Rock

    Brian Thomas:

    Stallman is an avowed socialist

    Brian Thomas, could you please direct me to the site or book where Stallman openly declares that he is a “socialist”.

  • Alan

    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”.

  • http://gnuosphere.blogspot.com Peter Rock


    How would one “teach” intelligent design?

  • Brian Thomas

    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:


  • Joseph Pietro Riolo

    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
    <[email protected]>
    <[email protected]>

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

  • Brian Thomas

    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…

  • Joseph Pietro Riolo

    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
    <[email protected]>
    <[email protected]>

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

  • http://www.newerawisp.blogspot.com SATISH BHARDWAJ

    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.

  • Brian Thomas

    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.

  • Joseph Pietro Riolo

    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
    <[email protected]>
    <[email protected]>

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

  • Brian Thomas

    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?

  • Joseph Pietro Riolo

    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
    <[email protected]>
    <[email protected]>

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

  • brian thomas

    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.

  • Joseph Pietro Riolo

    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
    <[email protected]>
    <[email protected]>

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

  • brian thomas

    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.

  • Joseph Pietro Riolo

    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 http://en.wikipedia.org/wiki/Orwellian
    for different meanings of Orwellian. It is far more
    precise to say “GPL-covered software” than to say
    “free software”.

    Joseph Pietro Riolo
    <[email protected]>
    <[email protected]>

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

  • http://www.domainunion.de domain

    Microsoft Shared Source Initiative

    best Regards

  • 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).

    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.

  • Joseph Pietro Riolo

    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
    <[email protected]>
    <[email protected]>

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

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