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Robin Bloor Grokking the GPL
Saturday, April 03 2004 @ 07:23 PM EST

Robin Bloor has written a clear description of the GPL for IT-Director, "The GPL: A Simple Guide". This is the first article I have read by anyone not part of the free/Open Source community writing about the GPL who actually understands basically how it works and, more importantly, what it is: It is a license, not a contract. [1]

Here's just a snip, but I recommend you take a look and you might want to pass it on to your PHB:

"Consider the situation where you own land which includes a river bank. You can charge a fee to fishermen to use that portion of your land for fishing in the river - in other words you can grant them a paid license to fish - or you can simply give them permission - so long as, say, they do not stray more than a few yards from the river bank into other areas of your land. In either case you would be issuing a license, with various conditions attached.

"In the same way, you can happily license intellectual property, whether its ownership is covered by copyright or by patent, either by charging a fee or by simply giving permission. This does not give rise to a contract. The giving of permission for such property usage well established everywhere, either with or without a fee being attached. A writer, for example, will sometimes grant permission for the free use of some article he or she has written - as long as it is not used out of context. In those circumstances, a caveat is usually attached to the permission, to preserve the writer's editorial control. Alternatively the writer may impose a charge for usage. In either case, the right stems from holding the copyright.

"So it is with the GPL. It is a copyright permission that allows for the use of the source code . . . .

The important legal point is that the GPL is not a commercial contract. If it were a contract then it would have associated guarantees that define the exchange of value involved. It is a permission."

One small issue, but I think it's just a matter of wording, is that he says the use of source code is protected, whereas it's modification and distribution that is affected, but in the context where Mr. Bloor uses the word "use", that's what he means, because he is discussing a distribution setting. And, of course, Apache isn't under the GPL. But his readers have already abundantly let him know all about that. Even one of our old trolls feels called about to answer Mr. Bloor in the comments. You may find what he wrote, while legally wrong, interesting to read, along with the answer someone provided by another reader, because he may well know what the SCOfolk are up to, since he seems to carry their flag and getting things wrong doesn't seem to stop them from making assertions. All in all, it's a refreshing read and it's also, I believe, an indication that our message is getting out, Groklaw is worth doing, and more and more decent people now understand what SCO is up to.

You might want to check out Dan Gillmor's column on the Sun-MS deal. Open Office seems to be a conceivable vulnerability. It's time to think and plan a workaround or a strategic solution. UPDATE:

A reader has posted a fabulous article by a solicitor, Dr. Ben Kremer, who appears to be associated with an Australian firm, on the GPL. He confirms that the GPL is a license, not a contract. Here's a small taste:

"Licences

"There is nothing, however, to stop the copyright owner from permitting others to do one or more of those acts. There is also nothing to stop that permission being granted on terms. A grant of permission to a person to do something that that person is otherwise forbidden to do is quite common. In legal terms, that is the precise definition of a licence.4 Licences can come about by contract, or by oral permission (subject to any applicable statute), and can be simple or convoluted, and narrow or broad, but all share the same basic form: a person who otherwise has the power to exclude another from an act, and who has the power to authorise that other person to do the act, does so."

He then explains the GPL and how it works, and sums up the requirement that if you modify and distribute in an aggegated work you must do so under the GPL like this:

"To some people, this seems to be a novel use of copyright law. It isn't really: replace 'accompany the work with source code' with 'pay the copyright owner $x per copy', and you have something approaching a standard royalty contract. However, the elegant simplicity hides much power: remedies for breach of copyright are often more powerful than remedies for simple breach of contract. There are many subtle areas involved in open source law and the GPL, but the basic point is quite simple: 'it's the copyright, stupid'."

Nice, huh? He can write for Groklaw any day he likes.


[1] I have corrected the article to reflect my understanding, after prompting, that the original wording could be misleading. I wrote, "This is the first article I have read by anyone not part of the Open Source community". I received the following statement from Richard Stallman. He is correct that what I wrote was conceivably literally correct, but misleading. So I have rewritten. The IP issue he raises is a deeper, more difficult conversation, because "intellectual property" is now a general legal term of art, describing a category of owned copyrights, patents, or trademarks, unfortunately, meaning the umbrella term that includes them all, etc., so to replace it, you'd have to come up with another umbrella term. I agree that it's another confusing term, depending on how it is used, however -- just look at how SCO misleads by using it -- but I can't think of a better umbrella term. Perhaps someone else will be able to.

Richard's precision of thought is admirable and no doubt it made emacs and gcc and the GPL possible. Here is the his email:

The article "Robin Bloor Grokking the GPL" says,

This is the first article I have read by anyone not part of the Open Source community writing about the GPL who actually understands how it works

What about me? I have been writing about the GNU GPL as part of the Free Software Movement since before the Open Source Movement was even started, and I am not a part of anything that labels itself "open source".

The community I belong to was built by the Free Software Movement, so it is really the Free Software community. (Advocates of Open Source are also members of this community, but their movement came later and did not build the community.)

Your statement may be literally correct if you have not read my writings about this, or that they don't count as "articles". But I'm afraid that people will read it as confirming the widely repeated claim that I am part of "the Open Source community". Would you please publish this note as a correction?

On a more substantial point, you quoted Bloor as speaking of "intellectual property" as if it were a kind of substance that could be "covered" by either copyrights or patents. This is highly misleading--it encourages people to think that copyrights and patents do similar things, which is not true. The term is used as propaganda by those who want the public not to think critically about copyrights, patents, or the various other disparate laws sometimes grouped together under the heading of "intellectual property".

We should not cite any statement using that term as an example of clear understanding!

Richard Stallman
President, Free Software Foundation
Author of the GNU General Public License (GNU GPL)


  


Robin Bloor Grokking the GPL | 146 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Robin Bloor Grokking the GPL
Authored by: Anonymous on Saturday, April 03 2004 @ 07:45 PM EST
Thanks PJ

[ Reply to This | # ]

Robin Bloor Grokking the GPL
Authored by: whoever57 on Saturday, April 03 2004 @ 07:47 PM EST
He makes one other comment that is not strictly true:
and that any enhancements made by the licensee to the source code must be offered back to the originators.
.. since the GPL requires source code to either accompany binaries, or be made available to anyone, rather than just the originators.

Still he is close!

---
-----
For a few laughs, see "Simon's Comic Online Source" at http://scosource.com/index.html

[ Reply to This | # ]

Best line st the end
Authored by: Anonymous on Saturday, April 03 2004 @ 07:49 PM EST

"... SCO has embarked on a PR campaign to support its case - darkening the skies with press releases. ... whereas IBM and Novell have chosen to remain silent on the matter, because that is what most companies do in commercial legal disputes. It remains to be seen whether SCO's vociferousness proves to be a clever tactic."

[ Reply to This | # ]

Poor it-director server...
Authored by: Anonymous on Saturday, April 03 2004 @ 07:53 PM EST
The second most scary thing after being slashdotted, is being groklawed... The page comes up, after several tries, for now. Hope it gets on some mirrors or Google cache soon.

"Any technology distinguishable from magic is insuficiently advanced." - Geek's Corolary to Clarke's Law

[ Reply to This | # ]

Are all permission grants valid?
Authored by: Anonymous on Saturday, April 03 2004 @ 08:32 PM EST
There's an assumption a lot of us are making that because the GPL is a pure
grant of permission above and beyond what copyright law allows that it's
automatically valid. While in this case there's nothing I can see in the GPL
that would render it invalid (and IANAL), I could certainly envision unilateral
permission grants that might not be valid.

Consider a hypothetical license grant that allows unrestricted use by people
only of a certain ethnic background. Could this be found invalid, either as a
matter of public policy or as a matter of lack of clarity (a person may not be
able to determine if he's legally permitted to use it or not -- perhaps in this
hypothetical situation he believes that he's in the valid category but someone
else later does some research and determines that he isn't)? In the material
world, a private facility such as a restaurant is not allowed to discriminate on
racial grounds who it will serve. Conceivably something similar could apply to
copyright licensing.

Again, my point here isn't to argue that the GPL has problems in this regard --
the distribution conditions are quite clear (IMHO), and there's nothing that I
can see that would appear to be against any obvious public policy. However, SCO
already seems to be trying to argue something of that kind, and it may be
something to watch out for.

[ Reply to This | # ]

Strange reader comment on IT-Director following the article
Authored by: jayfar on Saturday, April 03 2004 @ 09:12 PM EST
A reader's post on the IT-Director site following the article is in serious need of rebutal from Moglen or some other real lawyer. Comment #6 by a Daniel Wallace starts off with "The Free Software Foundation is confused concerning license law" and posits a very strange theory about the nature of a supposed contract arising out of the GPL.

[ Reply to This | # ]

The Troll (Daniel Wallace)
Authored by: Xenographic on Saturday, April 03 2004 @ 09:29 PM EST
I found some interesting tidbits on the troll PJ mentioned that should be shared
with everyone :]

For starters, here's a rebuttal to his arguement (from someone who IS a
lawyer--something Mr. Wallace does not even purport to be) --

http://www.linuxworld.com/story/43614.htm

It's a follow-up on an email he sent to LinuxWorld (which was covered by
Groklaw, of course!) in which he argued that the GPL was unconstitutional. He's
done quite a lot of such argueing, in fact, and I sent all of my research to PJ
already, in case it's useful :]

Still, it makes me wonder... When I see the name Daniel, I immediately think of
Daniel Lyons, the fellow at Forbes who does such shoddy research. Perhaps these
two were seperated at birth? :]

[ Reply to This | # ]

OpenOffice.org is GPL/LGPL and thus would be forked
Authored by: freeio on Saturday, April 03 2004 @ 09:32 PM EST
The concern over the fate of OpenOffice.org is worth considering, but in the
end, because OpenOffice.org is released under the GPL/LGPL, it could be forked
if Sun went over to the dark side. This is one very real strength of the GPL
model - if a vendor releases a program under GPL/LGPL, it cannot be recalled.
Whoever has the program under that license has the legal permission to use,
copy, modify, distribute and such under the terms of the GPL.

While Dr. Faust (Sun) has made a deal, that seals his fate but does not
adversely affect anyone else.

---
Tux et bona et fortuna est.

[ Reply to This | # ]

OT: GPL and grantback
Authored by: Khym Chanur on Saturday, April 03 2004 @ 10:00 PM EST
From Ope n Source Licensing: Virus or Virtue? (or a better formated exceprt):
The courts have yet to analyze a copyleft provision for misuse, but the courts have addressed an analogous provision—the grantback. A grantback provision requires that a licensee of intellectual property grant back to the licensor a license or ownership in creations made by the licensee. ...

Although grantbacks have not come up in the copyright misuse arena, they have in the patent context—and as we have seen, the patent misuse cases form the underpinning for the copyright misuse doctrine. Courts have found that grantback clauses extending to improvements are not misuse, because the licensee in some sense developed the improvement with the help of the original patent. Where grantback clauses extend to preexisting or unrelated patents, however, courts have found patent misuse. Where “the scope of [licensee’s] ‘improvements’ and inventions required to be assigned to [the patent licensor] extended far beyond the scope of [the] basic patent [licensed by licensor] the effect was to extend unlawfully its monopoly and thus result in patent misuse.”[80] Plainly, the Patent Act does not give the patent owner rights to other unrelated patents, and using a patent to obtain such rights exceeds the scope of the patent. Similarly, the Copyright Act’s grant of rights does not extend to unrelated works or preexisting (and therefore necessarily nonderivative) works, and using the copyright license to extract such rights exceeds the scope of the copyright grant. This may constitute copyright misuse. A license to a copyrighted work on condition that any work with which it is combined or shares data must be licensed back to the licensor—and the entire world—on the specific terms the licensor mandates, is beyond the scope of the copyright in the originally licensed work. Yet this is what the GPL apparently requires. ...

So, if this is true, would the GPL have to be modified to say "GPL'd code can't be combined into any pre-existing code" to not be a copyright misuse?

[ Reply to This | # ]

Dumb Question time
Authored by: charlie Turner on Saturday, April 03 2004 @ 11:41 PM EST
Sorry if the answer should be obvious, but what is PHB?
Thanks!
ct

[ Reply to This | # ]

Robin Bloor Grokking the GPL
Authored by: blacklight on Sunday, April 04 2004 @ 03:15 AM EDT
"The important legal point is that the GPL is not a commercial contract. If
it were a contract then it would have associated guarantees that define the
exchange of value involved. It is a permission."

A contract implies prior agreement between two parties, but the GPL can't be a
contract because there is no prior agreement, and because the copyrights holder
holds all of the high cards: I mean, if he or she owns the software and I have
no prior agreement with the owner about me using the software he or she owns,
then what is there for me to argue and agree about?

The GPL is a permission that is given unilaterally by the copyrights holder,
based on the copyrights holder's right to do what he or she pleases with his or
her property, restrained only by the provisions of the US Copyrights Act (or
whatever the copyrights law of your country is).

I have three options: (1) use the copyrighted software under the provisions of
the US Copyrights Act; (2) use the copyrighted software under the terms of the
GPL; (3) don't use the copyrighted software.

Given these options, SCOG's copyrights claims amount to making claims on either
someone else's copyrighted code, or on code that can't be copyrighted.

[ Reply to This | # ]

There is a better article here
Authored by: Anonymous on Sunday, April 04 2004 @ 05:31 AM EDT
Someone gets it.

[ Reply to This | # ]

Missing the point, again.
Authored by: Anonymous on Sunday, April 04 2004 @ 06:26 AM EDT
PJ, I think what has been repeatedly missed in such discussions is the
ALTERNATIVE to accepting the GPL, should you feel its terms do not suit you.

You are of course allowed to contact ALL the contributors directly/individually
and $$NEGOTIATE TERMS$$ for using their copyrighted material in your non-GPL
project. Money Talks After All.

Also, such GPL contributors are simply 'showing their wares' under the
protection of copyright and also demonstrating their ability to work as a team
on a large scale project (that works).

When you think of it like this, how can anyone possibly argue that the GPL is
unconstitutional as a potential threat to the business economy !!!!!!!!!!

Paul.


[ Reply to This | # ]

Understatement of the decade
Authored by: PeteS on Sunday, April 04 2004 @ 09:48 AM EDT
PJ wrote (in part)

All in all, it's a refreshing read and it's also, I believe, an indication that our message is getting out, Groklaw is worth doing, and more and more decent people now understand what SCO is up to.

I would say Groklaw is not only worth doing for the message, it has been worth doing, and will continue to be worth doing, showing how the model for FLOSS works in areas other than software.

A collaborative HOWTO, with examples, if you like.

---
Today's subliminal thought is:

[ Reply to This | # ]

The GPL as a license and an offer
Authored by: Thomas Frayne on Sunday, April 04 2004 @ 12:41 PM EDT


The second comment under Bloor's article is mine. I also posted it in Groklaw, simple guide. Since it is now on topic, I would like to discuss it further.

I agree with Bloor that the GPL only licenses the use of the program, not modification or distribution, unconditionally. I also agree with Kremer that the GPL can be interpreted as a license with conditions. However, interpreting the GPL as a license plus a public offer makes all the legal implications clearer.

The GPL is a pure license, not a bilateral contract, since it explicitly declines to require acceptance as a condition for permission to use the program. However, this permission is has no extended permissions beyond those given to a valid owner of a copy by copyright law, and a bilateral contract between a person needing these permissions and the copyright owners is necessary to secure these permissions, as correctly mentioned in Daniel Wallace's (mostly FUD) comment to Bloor's article. Wallace's main error is to state that there is no bilateral contract because of lack of privity (acceptance of the terms).

Even though the GPL is not a bilateral contract, there is an associated bilateral contract that is created as follows:
1. The GPL makes a public offer.
2. A member of the public accepts the offer by performing an act that is permissable under terms of the offer, but not otherwise.
3. This creates a bilateral contract between a person needing the permissions and the copyright owners, binding on both parties, and enforceable by either.

(E.g., this contract is what is breached if any of the parties fails to abide by the terms of the GPL.) Proving that a person performed such an act is evidence that the offer was accepted, so the requirement of privity is satisfied. This is what IBM will argue if SCOG argues that there was no contract to be breached.

Note that many think that the GPL does not have to be accepted to modify a GPL'd program for in-house use. However, the bare license does not give this permission, so acceptance is required. Further breaching the contract forfeits all rights, and copyright law provides that in this case, all copies of the program must be destroyed, so the violator does not even have a right to keep a copy of the program, much less run it.

For more details, including a discussion of mere aggregation, see the above link.

[ Reply to This | # ]

Robin Bloor Grokking the GPL
Authored by: Anonymous on Monday, April 05 2004 @ 11:49 AM EDT
Mr. Stallman really needs to figure out that he's splitting hairs in ways that
utlimately hurts rather than helps his cause.

He is part of the Open Source movement to the extent that the Open Source
movement incorporates the ideals for which the GPL stands. The OS movement holds
those ideals to some extent. Mr. Stallman wants to distance himself from any
official connection as the OS movement subordinates Mr. Stallman's important
issues to other issues that the OS movement deam to be more critical.

Does Mr. Stallman officially represent the OS Movement? No. But for him to claim
he is in no way associated with them is for him to ignore his own historical
importance in the development of that movement.

He is drawing distinctions that are immaterial to any sound reading of the
history of Open Source. Without Richard Stallman's GPL the Open Source Movement
would not exist. The OS Movement incorporates his ideas but in ways he doesn't
like. That doesn't mean he's not associated with them, it just means he doesn't
particularly like the association.

But for all his protesting that he's not part of them, he will never be able to
extricate the historical fact that the OS Movement was birthed from the womb of
the GPL. He's the intellectual grandfather of the OS Movement, like it or not.

[ Reply to This | # ]

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