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Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Wednesday, July 21 2004 @ 10:00 AM EDT

How ever does LinuxInsider find so many people willing to attack Linux and the GPL? They surely must work at it.

Today, there is some sophisticated sophistry by a lawyer attacking the GPL. In the nicest way possible, of course. Lawyers are good at subtle sophistry, of course, having gone to law school. His bottom line is that companies shouldn't use the GPL. But how he gets there is by saying a series of provably untrue things, which means that if the FSF were as litigious as some entities we might think of, there would be a slander action coming soon at a courthouse near you. Joke. But it is the case that the author appears to be seriously underinformed or misinformed about the GPL.

So, once again, so that misinformation doesn't grow legs, I hop on my white horsie and ride in the cause of truth and justice.

He calls his article, A Consumer's Review of the General Public License and the author is Phil Albert, an attorney with Townsend, Townsend and Crew. He has written some good articles in the past, and I trust he will in the future, but on reading this one, I can't help but remember Mr. Darl McBride telling us all about lawyers attacking the GPL, remember? In his Harvard speech. Mr. Albert really should take the FSF's seminar on the GPL. It would spare him embarrassment in the future. It never ceases to amaze me that lawyers write such strong words without first contacting the FSF or at least reading the FAQ on the GPL. For that matter, why not read the GPL itself? It does answer his questions. He seems to have read it without understanding it, which isn't a crime, but it does mean his conclusion is subject to question. Let me show you what I mean.

Here is the truth about the GPL in answer to what he wrote, beginning with his writing in colored text, and then the answers to his questions and worries:

1. "The GPL is a nice product, but it could use some polishing. For one thing, it was written by programmers, not intellectual property lawyers. How do I know? The first section of the GPL is section '0.' Lawyers would never start counting with '0,' but that is a natural choice for programmers. Naturally, as a lawyer I am biased toward keeping attorneys in the loop, but even so, legal review of licenses is definitely a good idea. In many cases, the only time when license details matter is when a legal dispute erupts or has the potential to develop. Fortunately, consumers of GPL version 3 can look forward to a lawyer-vetted upgrade. When lawyers don't get in on the act, questions of interpretation can lead to some serious problems."

Here is the answer. Lawyers have been involved with the GPL for approximately a decade. Google is your friend. Try searching for "Eben Moglen" and GPL and see how enlightening it can be. Here's a paper Moglen wrote on enforcing the GPL, which is what he does and has done since the early '90s. For the lazy or underinspired, here is a segment from the book, Chapter 13 of "Free as in Freedom":

"In the case of Sun, they desired to play according to the Free Software Foundation's conditions. At the 1999 O'Reilly Open Source Conference, Sun Microsystems cofounder and chief scientist Bill Joy defended his company's 'community source' license, essentially a watered-down compromise letting users copy and modify Sun-owned software but not charge a fee for said software without negotiating a royalty agreement with Sun. A year after Joy's speech, Sun Microsystems vice president Marco Boerries was appearing on the same stage spelling out the company's new licensing compromise in the case of OpenOffice, an office-application suite designed specifically for the GNU/Linux operating system. 'I can spell it out in three letters,' said Boerries. 'GPL.'

"At the time, Boerries said his company's decision had little to do with Stallman and more to do with the momentum of GPL-protected programs. 'What basically happened was the recognition that different products attracted different communities, and the license you use depends on what type of community you want to attract,' said Boerries. 'With [OpenOffice], it was clear we had the highest correlation with the GPL community.'

"Such comments point out the under-recognized strength of the GPL and, indirectly, the political genius of man who played the largest role in creating it. 'There isn't a lawyer on earth who would have drafted the GPL the way it is,' says Eben Moglen, Columbia University law professor and Free Software Foundation general counsel. 'But it works. And it works because of Richard's philosophy of design.' . . . .

"A former professional programmer, Moglen traces his pro bono work with Stallman back to 1990 when Stallman requested Moglen's legal assistance on a private affair. . . . Since then, Moglen, perhaps more than any other individual, has had the best chance to observe the crossover of Stallman's hacker philosophies into the legal realm. Moglen says the difference between Stallman's approach to legal code and software code are largely the same. 'I have to say, as a lawyer, the idea that what you should do with a legal document is to take out all the bugs doesn't make much sense,' Moglen says. 'There is uncertainty in every legal process, and what most lawyers want to do is to capture the benefits of uncertainty for their client. Richard's goal is the complete opposite. His goal is to remove uncertainty, which is inherently impossible. It is inherently impossible to draft one license to control all circumstances in all legal systems all over the world. But if you were to go at it, you would have to go at it his way. And the resulting elegance, the resulting simplicity in design almost achieves what it has to achieve. And from there a little lawyering will carry you quite far.'"

Now, Moglen isn't the only lawyer involved with the FSF and the GPL. Larry Lessig is on the board of the FSF now. And Daniel Ravicher is Senior Counsel for the FSF as well. To write that lawyers need to get involved and help out is demeaning and inaccurate. Some of the finest lawyers in the world are involved already. Thanks. I'm sure any lawyers wishing to help out would be received graciously.

2. "When lawyers don't get in on the act, questions of interpretation can lead to some serious problems. Take section '0.' It says, in part:

a. "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

"Before the colon, a 'work based on the Program' is defined as including 'derivative works under copyright law.' Following the colon, a 'work based on the Program' is defined as 'a work containing the Program or a portion of it.' Unfortunately, those two definitions are not the same, because the legal definition of 'derivative work' is a term that has been the subject of much case law, and it doesn't happen to mean 'a work containing the [original work] or a portion of it.'

"If I were writing this license, I would include a definitions section that exactly defines everything I need and ensures that usage is consistent throughout."

If derivative work doesn't happen to mean "a work containing the original work or a portion of it," someone needs to tells the US Copyright Office quick. Here is what they say in their Circular 14 - "Copyright Registration for Derivative Works":

"A 'derivative work,' that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” . . . A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law."

And here is 'Lectric Law Library's definition:

"DERIVATIVE WORK - A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'. 17 U.S.C."

Now, lawyers like to make things complex-seeming, because then they can suggest that you need to hire them. Trust me. In the past, I used to help research and prepare articles with/for lawyers, and that is what they always wanted implied or included, so when you read an article by a lawyer, look for the sales pitch and evaluate accordingly. As you can see, derivative works, when simply defined, is exactly what the GPL says it is. As the SCO case has taught us, there can be issues. Each circuit has its own way of determining precisely what constitutes a derivative work in a particular pile of software, as the linked article by Ravicher details. Is Mr. Albert suggesting that we define derivative works by circuit in his suggested definitions? And then add each country? You'll note he didn't give his own suggested definition. First, he can't do so in the space of an article for LinuxInsider. And second, we'd laugh. And third, you wouldn't need to hire a lawyer.

3. "Often, subtle problems -- such as the lack of notice requirement for downstream users -- don't show up until some unusual confluence occurs. If someone receives software and the GPL is conspicuously noted, the copyright holder could argue that the recipient had notice of the license terms.

"However, if someone removed the GPL from the software, or it just dropped off for unexplainable reasons, and another party received the software without notice of the licensing terms, a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be open source, they might have an implied license to use the software without the copyleft provisions of the GPL."

Here is where reading the GPL itself more carefully would have helped him. First, let's assume that Mr. Albert means "license to copy, modify and distribute" instead of "license to use", since there are no restrictions on *use* of GPL code. Next, let's see what would really happen if someone removed the GPL notice, first from Section 1:

"1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program."

And now, let's add on Section 5:

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

Would a judge not interpret it according to what the license says? That you can't remove the notice, and that if you do you lose your rights to redistribute at all? Now, without the GPL, you would be restricted to what copyright law says you can do and no more, meaning you can't copy, modify or distribute. Yes. I believe he would. Because that is what the license says. If you don't accept the terms of the GPL, "nothing else grants you permission to modify or distribute". Mr. Moglen again, from the enforcement article:

"The license doesn't have to be complicated, because we try to control users as little as possible. Copyright grants publishers power to forbid users to exercise rights to copy, modify, and distribute that we believe all users should have; the GPL thus relaxes almost all the restrictions of the copyright system. The only thing we absolutely require is that anyone distributing GPL'd works or works made from GPL'd works distribute in turn under GPL. That condition is a very minor restriction, from the copyright point of view. Much more restrictive licenses are routinely held enforceable: every license involved in every single copyright lawsuit is more restrictive than the GPL.

"Because there's nothing complex or controversial about the license's substantive provisions, I have never even seen a serious argument that the GPL exceeds a licensor's powers. But it is sometimes said that the GPL can't be enforced because users haven't 'accepted' it.

"This claim is based on a misunderstanding. The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL'd software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed."

Removing the GPL notice is a violation of the GPL itself. If someone did that, and then distributed, I believe they'd be in violation of the copyright rights of the authors of the GPLd code, who authorize its redistribution only under the terms of the GPL, and that includes the notice. Substitute MS EULA in his paragraph where it says GPL, as suggested by superspod on Yahoo, and you'll see immediately what I mean:

"let's make a substitution:

'if someone removed the MS EULA from the software, or it just dropped off for unexplainable reasons, and another party received the software without notice of the licensing terms, a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be free of the EULA's terms.'

"How likely is that?"

4. "Lawyers might also argue that it is unclear whether the GPL is based in contract or property (that is, whether a licensee is bound because the licensee agreed to the provisions of the GPL, or a licensee is the owner of some limited property right granted to him or her by the licensor)."

Lawyers might indeed argue, because that is what they do. But it isn't unclear, and there have been many, many articles explaining this. I even wrote one, "The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling" and here is a section, including a portion of an interview I did with Professor Moglen:

Eben Moglen, the Free Software Foundation's attorney, who is primarily responsible for enforcing the GPL, explains the difference between contracts and licenses like this:

"The word 'license' has, and has had for hundreds of years, a specific technical meaning in the law of property. A license is a unilateral permission to use someone else's property. The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property.

"A contract, on the other hand, is an exchange of obligations, either of promises for promises or of promises of future performance for present performance or payment. The idea that 'licenses' to use patents or copyrights must be contracts is an artifact of twentieth-century practice, in which licensors offered an exchange of promises with users: 'We will give you a copy of our copyrighted work,' in essence, 'if you pay us and promise to enter into certain obligations concerning the work.' With respect to software, those obligations by users include promises not to decompile or reverse-engineer the software, and not to transfer the software."

Very clear, but what about the GPL? Which is it? A license or a contract? First, the name tells you what the authors intended: General Public License. It doesn't say General Public Contract or even General Public License Contract. So they intended it to be a license, not a contract. Does it fit the definition? Professor Moglen:

"The GPL, however, is a true copyright license: a unilateral permission, in which no obligations are reciprocally required by the licensor. Copyright holders of computer programs are given, by the Copyright Act, exclusive right to copy, modify and redistribute their programs. The GPL, reduced to its essence, says: 'You may copy, modify and redistribute this software, whether modified or unmodified, freely. But if you redistribute it, in modified or unmodified form, your permission extends only to distribution under the terms of this license. If you violate the terms of this license, all permission is withdrawn."

5. "It is also not clear if the GPL intends to bind the licensee beyond the scope of copyrights, restricting the licensee's actions even more than copyright law would."

Oh? Really? Judge for yourself, from the wording of the GPL, and you will see that the clear intent is to give you more rights than you have under copyright law, not less. This is the selective blindness I was writing about the other day. When brains are fimly set in a certain, proprietary direction, they can read clear words and they do not register:

"Preamble

"The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. . . .

"When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. . . .

"We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software. . . .

"1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program."

I believe, aside from the clear statement of intent in the Preamble, that it's designed to expand your rights, just reading the list of things you *can* do that any lawyer knows you *can't* do under Copyright Law alone should make it clear, even to a lawyer, that the purpose of the GPL is not to restrict your rights beyond Copyright Law.

Why do people write such things? Why knows? Mr. Albert may be a fine person and a fine attorney. Unless the subject is the GPL. Let's face it. Law is a specialization profession. No lawyer can know all the areas of law, so I'm not belittling him when I say that this isn't his area of specialty. It doesn't have to be, and to his credit, he calls it a consumer's view of the GPL, which I take as a recognition that he isn't providing a legal view here.

If you want a legal view, you'd do well to hire someone who knows the GPL and has some experience. At least you need a lawyer who has attended the GPL seminar, so he or she won't mislead you, even in good faith, because of not understanding the GPL and how it works. If you need surgery, you don't go to a general practictioner. And if you really want the best results, you want someone who is not only a surgeon, but one who has done a lot of operations on the body part you need worked on. It's just logic. And law is the same.

As for his implied advice to businesses, perhaps they will wish to consider what Sun found out, as expressed in the snip from "Free as in Freedom." You pick the license depending on what community you wish to attract. That isn't at all, by the way, why I would pick a license. But if I didn't care about freedom and only cared about the bottom line, then I might pick one that way. After all, as Mr. Albert writes:

"There is no question that the GPL is an important product. It enjoys a huge portion of the license market relative to other licenses. Out of all the distinct software packages available today, a large percentage are licensed using the GPL, and except for 'licenses' that simply put the software into the public domain, it is probably the most commonly used."

Now I, personally, don't care if businesses use the GPL or sink like a stone in the marketplace instead or craft a license they like better that is compatible with the GPL. But any business that ignores the huge and rich body of work that they can have access to, and the community behind it, is not thinking altogether clearly, maybe because of all the misinformation out there, trying to undermine acceptance of the GPL as a valid license and make it seem like a frightening license with unclear terms that haven't been tested in court, blah blah. If I recall correctly, that is Microsoft's theme song.

As as for LinuxInsider, if they were really an insider, they'd have known already everything I wrote today, and they would have spared poor Mr. Albert by telling him to rewrite his article. Microsoft has no excuse. They've sent lawyers to the GPL seminars.


  


Some Sophisticated Legal Sophistry, Otherwise Known as FUD | 154 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please
Authored by: jbeadle on Wednesday, July 21 2004 @ 12:19 PM EDT
So PJ can find them...

-jb

[ Reply to This | # ]

OT and links
Authored by: overshoot on Wednesday, July 21 2004 @ 12:20 PM EDT
Chains in the next thread.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: John M. Horn on Wednesday, July 21 2004 @ 12:35 PM EDT

Without question the best explanation of these parts of the GPL that I've ever
seen. Good work PJ!

John Horn

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Anonymous on Wednesday, July 21 2004 @ 12:40 PM EDT
I get it! Finally this guy spells it out. The IP/contract lawyers are just mad
as hell to have been left out of the loop. This bunch of geeks who can't even
count properly (they start with 0, the fools), when in need of a legal document,
dared to not crawl on their hands and knees before the exalted Illuminati! The
sheer gall of it! They just went ahead and crafted a superior product! There
must be something terribly wrong with it. There just must be. We need it to be.
Please?

[ Reply to This | # ]

owever does LinuxInsider find so many people willing to attack?
Authored by: k on Wednesday, July 21 2004 @ 12:40 PM EDT
> However does LinuxInsider find so many people willing to attack > Linux
and the GPL? They surely must work at it.

It would be interesting to know that. What exactly is
"LinuxInsider"? What connections does it have to the community?
To the Dark Side?



---
/ k

[ Reply to This | # ]

OT: Moglen a hacker?
Authored by: Anonymous on Wednesday, July 21 2004 @ 12:50 PM EDT
Slightly OT:

"A former professional programmer, Moglen traces his pro bono work with Stallman back to 1990 [..]"

Well I'll be a monkey's uncle...

I wonder why he went the law school route? Did he get a taste of Microsoft's DDK and decide he didn't want to be tortured for a living?

;-)

[ Reply to This | # ]

LinuxInsider using trademarks inappropraitly
Authored by: Anonymous on Wednesday, July 21 2004 @ 12:52 PM EDT
Isn't LinuxInsider using the Linux trademark inappropraitly?

I don't see the permission notice on their site.


[ Reply to This | # ]

Who was it...
Authored by: Anonymous on Wednesday, July 21 2004 @ 12:53 PM EDT

Who was it who said (paraphrased) that it is impossible to get a man to understand something when his income depends upon his not understanding it?

[ Reply to This | # ]

Pandora's box has already been opened
Authored by: Bill R on Wednesday, July 21 2004 @ 12:57 PM EDT
The more FOSS opponents argue that FOSS should be ignored, the more interest is
generated.

Too late to close box.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: tredman on Wednesday, July 21 2004 @ 01:05 PM EDT
I've always thought that the companies and individuals that are against the GPL
are so because they aren't able to profit off the backs of others and claim it
as their own. Microsoft is very much that way. Their claims of innovation are
based mostly on property, personnel and ideas that they have acquired from other
companies, either through buyout or espionage, er, I mean, research and
development.

I'm sure right now, somewhere in their source control system, is a goodly amount
of GPL code floating around, waiting to be innocously inserted into a new
version of software. Maybe some of it has been used surrepticiously, maybe not.
In fact, if TSG's courtoom tactics prove even moderately successful, maybe the
open source community could sue MS for a few B's, claiming that there's no way
Window's stability record is improving without having Linux code in it.

But I digress.

Regarding his opinion of the GPL starting with a section 0 instead of section 1,
has Mr. Albert never picked up a novel? How many novels start out with a
prologue, or some other introductory chapter. Does that make Stephen King, Neil
Stephenson, or Isaac Asimov programmers, too?

Item number three doesn't wash either. Take the EULA out of a piece of
Microsoft, Oracle, IBM, et al software and give it to a friend. See how far it
gets you in court.

"There is no question that the GPL is an important product. It enjoys a
huge portion of the license market relative to other licenses."

It's one of the oldest rules of business. Put a viable, rock-solid product out
and the customers will come. That is, if they're not being FUD-ed into oblivion
by your competitors.

Tim

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: ujay on Wednesday, July 21 2004 @ 01:07 PM EDT
I am most definitely not a lawyer, but from this laymans granted limited understanding, do not these 2 definitions of Derivitive work blow SCO out of the water in their derivitive works theories?
"A 'derivative work,' that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” . . . A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law."

And here is 'Lectric Law Library's definition:

"DERIVATIVE WORK - A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'. 17 U.S.C."

Clearly the USPTO have defined derivitive work as copyrightable, and an original work, not (As SCO claims) an infringement of the original author(s) rights.

---
IE is not a browser, it is a scream.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:09 PM EDT
I think his problem stems from seeing too many EULAs which say that they're
'license agreements' but which are used more like contracts.

It's just not the normal way of doing things to have a license that trys NOT to
restrict the other party very much.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Nick_UK on Wednesday, July 21 2004 @ 01:10 PM EDT
Great read :)

Now I can say thank god IANAL (or a judge, trying to work out what these legal
type guys rabbit on about).

Nick

[ Reply to This | # ]

What about the disclaimer of warranty?
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:14 PM EDT
As I understand it, the argument why the GPL may require reciprocal obligations
on the part of the recipient and thus be a contract rather than a license stems
from the disclaimer of warranty. It is obvious why, in certain jurisdictions,
this could be construed to constitute "an exchange of obligations" as
Prof. Moglen puts it: in exchange for the author's obligation not to sue for
copyright infringement if the software is redistributed according to the rules
of the GPL, the recipient is obliged not to sue if the software is defective and
breaks state laws involving the fitness of merchandise.

Presumably the GPL means to address this by making clear the disclaimer of
warranty exists only "to the extent permitted by applicable law". But
it is not clear to me that this should be interpreted as "to the extent
permitted without constituting a reciprocal obligation on the part of the
recipient that would turn this into a contract." IANAL, but Phil Albert is
certainly not the only one who disagrees with Eben Moglen on this point. (For
example, read David McGowan at the University of Minnesota Law School:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=555851)

The stated intent of the GPL to remain a unilateral license and not a contract
is certainly evidence of the licensor's intent, but there's no reason that
should be dispositive if one of its provisions requires that it be construed as
a contract. While a number of legal experts--Moglen foremost among
them--clearly believe the GPL is safe from this avenue of attack, a number
disagree. (The McGowan article was approvingly cited in Larry Solum's blog,
probably the foremost legal blog on the Internet.) Nor have I seen Moglen or
any other GPL-as-license defenders address this point directly. (PJ's article
certainly does not.)

Ascribing these legitimate questions to FUD is either ignorant or evasive and
dishonest.

[ Reply to This | # ]

Great, but you missed a bit...
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:19 PM EDT
Item 3:-

Albert: "Often, subtle problems -- such as the lack of notice requirement for downstream users -- don't show up until some unusual confluence occurs ... if someone removed the GPL from the software, or it just dropped off for unexplainable reasons, and another party received the software without notice of the licensing terms, a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be open source, they might have an implied license to use the software without the copyleft provisions of the GPL."

PJ: Would a judge not interpret it according to what the license says? That you can't remove the notice, and that if you do you lose your rights to redistribute at all?

The point Albert is making is that if a 3rd party removed the notice, and you received it, then a judge may rule in your favor. Since it is presumed "Open Source".

(Not that I believe that for 2 seconds, the consequences for all proprietary code would be awesome.)

But, nitpicking, Albert referred to a downstream user, not the person who removes the GPL. And whether the nature of open source might affect judgements on the "innocent receiver".

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:36 PM EDT
"However, if someone removed the GPL from the software, or it just dropped
off for unexplainable reasons, and another party received the software without
notice of the licensing terms, a court might construe that if the recipient had
no notice of the actual license terms, but understood the software to be open
source, they might have an implied license to use the software without the
copyleft provisions of the GPL."

This piece is a bit rich.

If a programmer knowingly accepts code from a second party it is incumbent upon
him/her to determine if the second party does have the right to transfer the
copyrights to that code. (We have seen this thing happen with 'code leaks' from
Google and Microsoft and there is is the Gates and Avant! cases refered to
earlier in GL where code seems to have been 'stolen'.)

The author wants to believe that the court would accept that code was used by a
programmer without a clean title to it. Isnt that a 204 is for?

And the GPL just 'dropped off'? What - the code fell off a lorry? The police
might like to have a word with you sir about this code that 'fell off a lorry'.
The GPL does not drop off. It is activly removed. (Think the mens rea and the
actus reus here.) By removing the GPL you are engaging in licence violation.

Now it just about possible that a second party might offer for sale the
copyrights to code they claim to own and it is possible that a programmer might
just buy these to use in his/her programme. If the copyright holder discovered
this unauthorised use then there would be a case of fraud against the second
party and infringment proceeding against the programmer. The programmer might
have engaged in innocent infringement but would be required fairly quickly to
cease infringement or face damages.

Secondly the author deliberately tries confuse "open source" with
"public domain". Since this guy is (1) an autorney (2) practices in
the US and (3) is writing on copyright one might expect him to know something
about it.

The GPL is *not* public domain. Open Source code is *not* public domain - unless
it is explicitly stated that it is. Copyright is automatic since 1976 in the US
and even earlier before that. (Copyright a 'flexible' concept in China - but
thats another story entirely.)

The only way the court is going to fall for this is (1) to forget what the court
knows about copyright law - specifically the provisions of the 1976 act and the
requirement of a valid 204 satifying Jasper - and the maxim that everyone is
suposed to know the law (so that pleading ignorance is not a valid defense).
Sheeesh!!!

This guy's understanding of the law here is so out of touch that he either does
not know anything about copyright law in the US - in which case what *is* he
doing here in the first place - or he is supposed to know know something in
which case his expressed understanding is *seriously* deficient.

Can we sent this guy on a compulsory re education programme. Doctors and
dentists can to be forced to under go a re-education programme if they display
serious ignorance of the requirements relating to thier practice - the
alternative is normally to be booted immediately off the register so ompliance
is usually pretty good. Does this apply also to lawyers in the state this guy
practices in?

[ Reply to This | # ]

Component works, compilations, and derivative works
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:39 PM EDT
I invite you to read

http://www.ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp

Don't miss the definition of "derivative computer programs" (323).

In German law, "derivative work" is called "Bearbeitung"
(something creative enough to have a copyright
on "derivative work") and "Umgestaltung" (modifications
can't be copyrighted). Compilations are "Sammelwerke".
It's quite clear that when you "compose" copies together
(not modifying or even reading the code) the result is a
compilation, not a derivative work.

You should also read "Christian H. Nadan, A Proposal to
Recognize Component Works: How a Teddy Bears on the
Competing Ends of Copyright Law, 78 Cal.L.Rev." (it's
available on westlaw for just 12 bucks via credit card).

His paper is cited in

http://courses.cs.vt.edu/~cs4984/computerlaw/lewis.doc
("LEWIS GALOOB TOYS, INC. v. NINTENDO OF AMERICA, INC.")

It's probably the same "Christian H. Nadan" who wrote
the devastating "legal review" of the idiotic FSF's
interpetation (which is nothing but politically motivated
FUD and groundless bluffing) of the GPL.

http://groups.google.com/groups?selm=40EE8CDC.977AE902%40web.de

Hth.

regards,
alexander.

--
#include <war> // computer game war stuff ;-)

int main() {
unsigned explosive_power = 0;
while (still_not_eliminated("FSF"))
send_a_bomb("FSF", explosive_power += 10/*kiloton*/);
}

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: ankylosaurus on Wednesday, July 21 2004 @ 01:41 PM EDT
The particular article to which PJ responds is remarkably flimsy; frankly, I was
surprised that it warranted the effort.

However, I looked at some of the related articles (available as links on the
page) and Mr Albert has been talking about the GPL for a while. Some of the
other articles are longer, and/or have more substance, and/or reflect a better
understanding of the GPL. (I'd suspect that he needed an article quick for a
deadline, had nothing to say, and wrote the article that PJ critiqued. Pure
speculation, of course, but that's what it feels like from here.)


---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

When lawyers don't ...
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:44 PM EDT
"When lawyers don't get in on the act, questions of interpretation can lead
to some serious problems. "

The Asset Purchase Agreement between SCO and Novell in 1985
seems to prove otherwise.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Anonymous on Wednesday, July 21 2004 @ 01:53 PM EDT
I know several people whom are IP lawyers and let me tell you, LOTS of lawyers
have problems understanding the GPL and exactly what it means. I think lawyers
being who they are tend to examine every little word and phrase in a document,
and the GPL isn't exacly written like most proprietary licenses, so it's hard
for them to grasp it's breadth. Most licenses tend to be of the sort "you
can't do this and you can't do that or you'll answer to us" type of
documents (just read the license for the Sun JDS).

I think because there is so much public FUD and debate about the GPL, it's
enforcability (it is), etc, this leads some lawyers to be weary of it with no
solid court cases to point to for legal enforcability. Of course as some have
said, the license is so solid that no one wants to risk a courtroom argument
over it. Catch 22.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD - a letter to the editor.
Authored by: Anonymous on Wednesday, July 21 2004 @ 02:04 PM EDT
If you think thats rich, you should read the 'letters to the editor' response
from someone called Daniel W:

http://www.linuxinsider.com/letters/

under the heading 'GPL ISN'T VIRAL, ISN'T VALID'

"... The GPL is preempted just as SCO has stated in their IBM filings. The
only thing that flows from the GPL license is promissory estoppel permissions.
The GPL isn't viral. It isn't valid. --Daniel W."

Shesh, Where do they get thes guys from?

[ Reply to This | # ]

Two words.
Authored by: UglyGreenTroll on Wednesday, July 21 2004 @ 02:16 PM EDT
Ree - Lax.

I read the article. It was not an attack against GPL and Linux. It was just an opinion piece, probably an honest one, about possible deficiencies in the wording of the GPL. To talk about a slander suite, even in the context of, "we wouldn't do that", is silly.

Now it may be that Phil Albert is totally out to lunch here. That's for lawyers to debate. But there was no FUD-generating maliciousness in the article

The writer of this post, (is it PJ? I can never tell) is succumbing to a siege mentality. Breath deep, take a valium. gain some perspective. If you can't take criticism, even mistaken criticism, without flying off the handle, well then you've stopped thinking. And you are bound to alienate those whose feet are still on the ground.

[ Reply to This | # ]

  • One word... - Authored by: Anonymous on Wednesday, July 21 2004 @ 11:50 PM EDT
  • Two words. - Authored by: Anonymous on Thursday, July 22 2004 @ 01:09 AM EDT
Talkbacks to this article
Authored by: Thomas Frayne on Wednesday, July 21 2004 @ 02:24 PM EDT
I just sent a talkback to this article. A similar talkback sent while I was
writing mine appeared when I submitted it. Here is mine.

Since you seem to want to nitpick the GPL, here are some nitpicking answers to
your argument.

GPL3 is not vaporware. Pre-beta versions can be found on the web.

GPL2 was written by Richard Stallman, who is not a lawyer. However, Eben Moglen
is an intellectual property lawyer who has successfully enforced the GPL for
over ten years without having to go to court. (Courts have to interpret the
unclear language written in licenses and contracts by lawyers; apparently the
GPL doesn't have unclear language in any important respect.)

Nobody approached by the FSF for a GPL violation has volunteered to be the first
test case. You might say that SCOG is an exception, but FSF did not sue SCOG,
and IBM's countersuit against SCOG was for copyright infringement. SCOG might
say that the GPL licensed it to distribute Linux, but SCOG did not satisfy the
conditions of the license, so it did not have permission to distribute.

Your nitpicking about "work based on the Program" is misleading. The
definition is before the colon. After the colon comes "that is",
which clearly indicates an explanation, not an alternate definition. The
explanation is just a short description of how "work based on the
Program" interacts with the copyright law definition of derivative work,
but you mistakenly take it for an attempt to redefine "derivative
work".

Your argument on notice is over-simplified and incomplete. The GPL does not
give anyone permission to remove the copyright notices in a GPL'd program, so
anyone that does it is violating copyright law and distributing the illegal
program also violates that law. Anyone who knows that the program is illegal
has no right to receive it. Anyone who does not know still violates copyright
law by using it, but may escape damages other than being forced to stop. Anyone
who distributes the illegal program will have to show due diligence in
determining what license he or she had to do it.

Lawyers can argue anything they want. When they can't pound on the facts or the
law, they pound on the table. (For example, look at SCOG).

Any lawyer that take an unbiased look at the GPL will realize that it is a
license that gives conditional permissions. If you don't obey the conditions,
you don't get the permissions. No contract.

It is also possible to look at the GPL as containing a public offer that can be
accepted by doing something contained in the offer. There is no contract, but
if you do that thing, you accept the offer and create a contract. There is no
practical difference in these viewpoints.

Since companies like IBM and HP spend billions of dollars on GPL'd programs,
they, as I, must think that GPL2 is steel plated and has no significant bugs.
The clay piggy banks have not be used for more than a decade. All GPL3 has to
do is to answer the nitpicking, and add additional armor in the form of
discouraging patent predators.

[ Reply to This | # ]

His basic point is false
Authored by: seeRpea on Wednesday, July 21 2004 @ 03:16 PM EDT
he wrote: "When lawyers don't get in on the act, questions of interpretation can lead to some serious problems." Excuse Me? Weren't lawyers involved in the Novell-'thenewSCO' UNIX contract?

[ Reply to This | # ]

His basic point is false
Authored by: seeRpea on Wednesday, July 21 2004 @ 04:13 PM EDT
he wrote: "When lawyers don't get in on the act, questions of interpretation can lead to some serious problems." Excuse Me? Weren't lawyers involved in the Novell-'thenewSCO' UNIX contract?

[ Reply to This | # ]

That's strange, no mention of BSD.
Authored by: seanlynch on Wednesday, July 21 2004 @ 04:32 PM EDT
Almost all of the attacks in the OP-ED pieces against the GPL call for the open
source community to use the BSD license instead. This attack does not. The
author must have some semblance of integrity.

The usual argument goes like this:

"GPL bad, Blah Blah Blah.
GPL leaves you vulnerable, Blah Blah Blah.
GPL destroys your precious IP, Blah Blah Blah.

If you want the benefits of open source, without
the evil, viral, un-American GPL you should
really use the BSD license."

Of course the reason is obvious. Closed source companies can use as much BSD in
their own closed source code as they want.

They could use the GPL code without open sourcing their own code, by re-writing
the GPL'ed code so it could be used as a called routine. They would have to keep
the GPL'ed code open. But hey, it does belong to the original author and not to
them. It would take more effort and expense on their part, but it can be done.

Companies like Microsoft have used BSD code in their own OS's in the past, they
are comfortable with it. If only all that talent that is going torwards
developing GPL software would produce BSD software instead, those closed source
companies could profit from other people's work much more easily. And If it was
BSD the closed source companies would not have to give back any improvements to
the community. Giving back improvements to a community that gave you valuable
software for free is for losers, not for big profitable monopolies.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: John M. Horn on Wednesday, July 21 2004 @ 04:35 PM EDT

I don't think I will ever 'grok' the law, not really anyway. Not like I
'grokked' R. A. Heinlein's 'Stranger in a strange land', which is the place I
first recall seeing the word 'grok' used as a synonym for the word 'understand'
or perhaps, the word 'comprehend'.

The way PJ explains these parts of the GPL though, I think I may be coming close
to 'grokking' this (I'm told) simple legalese.

John Horn

[ Reply to This | # ]

All GPL Attacks focus on two things
Authored by: Anonymous on Wednesday, July 21 2004 @ 06:03 PM EDT
All GPL attacks have one of two problems:

a) they forgot to read the part where it says you can USE the product WITHOUT
accepting the license

b) they haven't looked at their argument while substituting "MS EULA"
for "GPL". You will pretty much always find the GPL better when doing
so.

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Anonymous on Wednesday, July 21 2004 @ 06:17 PM EDT
"A 'derivative work,' that is, a work that is based on
(or derived from) one or more already existing works, is
copyrightable if it includes what the copyright law calls an “original work of
authorship.” . . . A typical example of a derivative work received for
registration in the Copyright Office is one that is primarily a new work but
incorporates some previously published material. This previously published
material makes the work a derivative work under the copyright law."


does this definition of derivative work means that the article above is an
derivative work of Phil Alberts article?
because the article incorporates parts of the original article ??

"It's just logic. And law is the same."

sorry but law isn t logic at all. law is the product of lobbyists and
politicians(often lawers) trying to hide
their personal advantages behind cryptical formulations.

myc

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Anonymous on Wednesday, July 21 2004 @ 09:40 PM EDT
How about changing the font when quoting someone. I don't recall the site I
first saw this one, but someone had said it was for the color blind readers.
IIRC, they used style sheets to make a special tag that represented the quoted
person in a unique font and color.

[ Reply to This | # ]

Promises, promises...
Authored by: Anonymous on Wednesday, July 21 2004 @ 10:03 PM EDT

Prof. Nimmer, Nimmer on Copyright (a book quoted by many federal courts):

"Without a promise there is no contract, while a promise on the part of one who engages in unlicensed reproduction or distribution is not required in order to constitute him a copyright infringer."

I guess this particular lawyer (the one writing the article on GPL) missed that one.

Definition of a contract from Restatement (Second) of Contracts:

"A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty."

Next up, formation of a contract, by Prof. Neustadter:

"Except in some special cases, the formation of a contract requires both mutual assent by two or more persons to an exchange of promises (bilateral contract) or an exchange of a promise for performance (unilateral contract) and a consideration."

Finally, a task for everyone at Groklaw: find the promise or performance a licensee is giving back to the licensor for obtaining the permission to copy, modify and distribute the work, in other words, for getting the GPL for that particular piece of software.

WARNING: Don't try to hard, you may spend your entire life looking for one.

Hint: illusory promise defined in Restatement (Second) of Contracts:

"Illusory promises; mere statements of intention. Words of promise which by their terms make performance entirely optional with the ``promisor'' whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise."

[ Reply to This | # ]

Why is this not a Unilateral Contract
Authored by: AllParadox on Thursday, July 22 2004 @ 01:21 AM EDT
From the first, I have read the GPL as a unilateral contract.

There is no good reason why a document cannot be both a license and a contract.
For example, General Warranty Deeds are usually considered to be both a Deed and
a contract.

For this lawyer to suggest that the GPL is weak or invalid because it is not a
bilateral contract seriously undermines any credibility he may have on any other
topic.

Everyone has passing familiarity with unilateral contracts. They are the only
kind used in the insurance industry.

They taught the unilateral contract topic to this old lawyer in law school, and
I have no doubt that they still do. Ask any lawyer if he recalls the
"Carbolic Smoke Ball" case from law school.

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

I think the lawyers know better
Authored by: Anonymous on Thursday, July 22 2004 @ 08:01 AM EDT
Over the last year, there have been several articles of this sort.

Are all of these lawyers incapable of understanding the law? Are they all too
lazy to actually read the GPL? I very much doubt it.

And, anyway, why do these lawyers care? Why are they taking their valuable to
write such articles when they are supposedly not connected to any GPL IP case?

I cannot make a direct connection to msft. But I strongly suspect that these law
firms, and msft, are slyly winking towards each other.


[ Reply to This | # ]

what state or country's laws would apply?
Authored by: Alan Bell on Thursday, July 22 2004 @ 11:53 AM EDT
at the end of his rant he observes that it is unclear as to what laws should
apply, is this in any way relevant to anything? how on earth could it matter
what legal system is used, the wording of the GPL is the same whatever?

[ Reply to This | # ]

..funny how this _sophisticated_ "concerned consumer" _ignores_ the disclaimer of warranty. ;-)
Authored by: Anonymous on Thursday, July 22 2004 @ 02:32 PM EDT
..funny how this _sophisticated_ reviewer and lawyer
and "concerned consumer" _ignores_ the disclaimer
of warranty. ;-)

..I mean, does _any_ concerned consumer go buy, say,
a pc monitor, without a warranty on it, legally? ;-)

[ Reply to This | # ]

Some Sophisticated Legal Sophistry, Otherwise Known as FUD
Authored by: Anonymous on Thursday, July 22 2004 @ 09:52 PM EDT
> BUT the GPL offers such a license on a consignment sale basis... the
(future) copyrights from any distributed modifications will be cross licensed
for any derivative or
compilation works (under the same GPL terms.)

No, it does not. The licence can be had even if you never prepare or distribute
any modifications. And BTW, the reason why modifications have to be licensed so
that the whole is licensed under the GPL is not some kind of promise from the
licensee - it is because the licensee has no other course of action due to the
copyright law.

[ Reply to This | # ]

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