decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

The Daemon, the GNU & the Penguin - Excursus: The GPL - By Dr. Peter H. Salus
Saturday, August 13 2005 @ 12:52 PM EDT

Here's our next installment of Dr. Peter H. Salus' book, The Daemon, the GNU and the Penguin, "Excursus: The GPL and Other Licenses." Here are the earlier installments:

He mentions Professor Edward Felten, and some of you may be interested to know that he will participate in what is called a mob-blog on Monday, which I gather means a log of bloggers blogging together in real time, a very appealing concept. Details on Picker MobBlog, including this:

Fred von Lohmann of the Electronic Frontier Foundation will present his paper “Measuring the DMCA Against the Darknet,” 24 Loy. Entertainment L.Rev. 635 (2004). That paper builds off of a prior paper “The Darknet and the Future of Content Distribution” written by a group at Microsoft.

Fred will make an initial post, a discussant will make a commenting post, and we should be off and running. We are in the process of organizing participants.

So far, participants include Doug Lichtman, Tim Wu, Julie Cohen, Jessica Litman, Bill Patry, Bill Rosenblatt, Larry Solum (Legal Theory blog), and Rebecca Tushnet. That is quite a collection of law professors and practicing attorneys. It simply has to be interesting, to me anyway, no matter what they talk about. I wish they'd post the paper a little in advance, so those of us who are not on their level can get a running start, so as to understand everything.

Dr. Salus lists a number of licenses he feels have particular interest. I would add to his list the Artistic License and the LGPL.


The Daemon, the GNU and the Penguin

~ by Dr. Peter H. Salus

Excursus: The GPL and Other Licenses

A license is formal permission for something. In general, this is written permission. Historically, such things began with (unwritten) permission to "go upon or use the land of another" -- to cross a lord's manor or forest, for example -- as a "personal privilege, not constituting an interest in the land."

Copyright is a form of an exclusive license. It is a license granted by the state to the "author," granting them a monopoly on certain activities for a time. The first copyright statute was the Statute of Anne, usually cited as 1709. (As with almost everything, the date is ambiguous: the Statute was introduced in 1709, but "passed into law" on 10 April 1710. The actual publication of the Act [BL 8 Anne c. 19, 261] is just headed "Anno Octavo." But, as the eighth year of Anne's reign terminated on 17 March 1710, contemporaries must have thought of the statute as dating from 1709. On the other hand, Adam Budd [TLS 15 July 2005, p. 24] calls it "The Copyright Act of 1710.")

At any rate, the Statute required booksellers to record their titles in the Stationer's Register to gain protection for their "literary property." All registrations stem from this. 1

In addition to copyright, the law recognizes patents and trade secrets (as well as trademarks, service marks, and "trade dress"), insofar as intellectual property rights are concerned. Until a few years ago, it was generally held that patents needed to be capable of physical instantiation. In 1997, patents on "business methods" were recognized. The next year, filed for a patent on "one-click" purchasing. In 2005, the battle over software patents is still being fought, while interpretations of what is allowed seem to be expanding.

There is no formal filing where trade secrets are concerned, although there are recognized steps you must take to protect your secrets, and most lawsuits have concerned improprieties: breach of contract and outright theft, for example. Attempting to keep the knowledge secret (think of the famed Coca-Cola recipe) is basic here.

To all effects and purposes, software licensing began when UNIX was ported to the Interdata 7 (in Australia) and the Interdata 8 (at BTL). Prior to that, an OS ran only on the machine with which it was sold or, in the case of UNIX, on the PDP-11. (And, if you were running UNIX and had the misfortune to call DEC service, they would tell you they "didn't know" about the alien system.)

The first "open source" license was that of the University of California at Berkeley (I will not distinguish between "free" and "open" source at this time). It came about through an active belief in academic freedom -- the right to examine and investigate.

As has been related earlier, the specific impetus given to Stallman to write the original version of the GPL was the refusal of LISP Machines to share their code.

Though there are now over 500 variants of Free and Open Source licenses, more than fifty of them recognized by the Open Source Initiative (OSI), they all trace their roots to the BSD and the GPL licenses. And, actually, I see both of these as having a common origin in the concept of "the right to tinker."

My guess is that there is no one reading this whose childhood is not littered with the parts of alarm clocks, toy trains, toasters, robots, radios, etc. (Yes, there is always an extra screw, gear or spring.) Part of learning how things work is taking them apart and reassembling them (or attempting to). Part of learning is destructive analysis.

And that tinkering leads to improvements.

Both the BSD and the GPL are founded in the notion that opening source code to examination leads to extensions and improvements that can subsequently be reincorporated into future code.

But proprietary software (and hardware) doesn't permit that.

In fact, as Professor Edward Felten has repeatedly pointed out, the Digital Millennium Copyright Act (DMCA), specifically criminalizes tinkering. It has been alleged it also criminalizes, for example, access to no-longer-current Web pages. The Wayback Machine has just been sued by Healthcare Advocates for retaining archived pages. While the courts may dismiss the suit, its very presence is chilling.

In Prokofiev's "Peter and the Wolf," the wolf, in his haste, swallowed the duck whole. In their headlong run to "protect" everything, the US Congress more or less did the same with the DMCA Title V, sections 1301-1332. The result has been extreme interpretations, leading to vexatious lawsuits, such as the attempt, happily failed, to extend the DMCA to cover garage door openers.

While the excesses of the large media-producing companies are many, this "slop-over" into other areas was, I'm sure, unintentional. However, the DMCA in the US and its proposed parallel in Canada, and its support by WIPO, are having truly stultifying effects on research and development.

For details on the variety of Open Source licenses, see Rosen's superb book on the subject.2 However, I'd like to mention some things I believe make a few licenses beyond the GPL and the New BSD licenses important.

"Free as in freedom."

1 Anyone interested in the history should read Ronan Deazley's On the Origin of the Right to Copy (Oxford, 2004).

2Lawrence Rosen, Open Source Licensing, Prentice Hall PTR, 2005.

Dr. Salus is the author of "A Quarter Century of UNIX" and several other books, including "HPL: Little Languages and Tools", "Big Book of Ipv6 Addressing Rfcs", "Handbook of Programming Languages (HPL): Imperative Programming Languages", "Casting the Net: From ARPANET to INTERNET and Beyond", and "The Handbook of Programming Languages (HPL): Functional, Concurrent and Logic Programming Languages". There is an interview with him, audio and video,"codebytes: A History of UNIX and UNIX Licences" which was done in 2001 at a USENIX conference. Dr. Salus has served as Executive Director of the USENIX Association.

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs License. To view a copy of this license, visit or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.


The Daemon, the GNU & the Penguin - Excursus: The GPL - By Dr. Peter H. Salus | 58 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic here
Authored by: Anonymous on Saturday, August 13 2005 @ 01:15 PM EDT
Have fun... it's just a game.

[ Reply to This | # ]

Corrections here please
Authored by: Chris Lingard on Saturday, August 13 2005 @ 01:22 PM EDT

But proprietary software (and hardware) don't permit that.

But proprietary software (and hardware) does not permit that.

Though it might be correct in American? don't == do not?

[ Reply to This | # ]

Off Topic Here (non-anonymous)
Authored by: bbaston on Saturday, August 13 2005 @ 02:43 PM EDT
Remember to provide links!

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
Have you donated to Groklaw this month? See bio for Copyright.

[ Reply to This | # ]

Early copyright rulings
Authored by: Anonymous on Saturday, August 13 2005 @ 05:44 PM EDT
The first copyright ruling I know of was in Ireland in 561 AD.

Crimthann a prince of Clan Conail (7 December 521 - 9 June 597) was born in
Donegal. Having studied under Finian abbot of the monastery at Clonard (County
Meath, Ireland) and was later ordained a priest. His monastic name was
Columcille [or Columba - meaning dove of the church] and it is under this name
that history generally knows him.

He stayed with Finian at Clonard in 561 and while at the monesty Columcille
copyied a manuscript Finian had brought from Whithorn monastery in Scotland
without Finian's knowledge or permission. The precise nature of this book is not
clear to this day. The most probable book seems to have been St. Jerome's
Psalter - the Book of Psalms translated into Latin by St. Jerome in the fourth
century - but the authorities differ on this point.

Finian discovered the nocternal activities of his guest and demanded that
Columcille hand over to him the copy that he (Columcille) had made. Columncille
refused and fled before Finian or his monks could seize the copy.

Finian appealed to Diarmuit Ui Neill, high king of Ireland and a kinsman to
Columcille. The high king rendered this now famous judgement:

"To every cow belongs its calf, and to every book its copy".

He ordered Columcille to turn the copy over to Finian.

The plot now thickens.

While Columcille was a member of the Ui Neill clan and kinsman to the high king,
he identified with his mother's family the clan (O'Donnell) in accordance with
Celtic custom. (This was common: maternity is a legal fact: paternity - at least
until recently - was only a presumption.)

The O'Donnells did not recognise the right of the (in thier view) upstart Ui
Neills to hold the high kingship so Columcille felt justified in defying
Diarmuit's order and declared "The wrong decision of the judge is a raven's
call to battle!"

This mess ended up as the Cul Dreimne in County Sligo - also known as the Battle
of the Books or the Battle of Cooldrevny. The battle resulted in a humilliating
defeat for Diarmuit and 3,000 dead on the battle field. The copy Columcille had
made also became known as the 'cathac' (battler) as a consequence.

Exactly what happened next is anything but clear. It is said that Columcille was
overcome by remorse and exiled himself. It seems more probable that he was
exiled by the Synod of Teltown, a meeting of loyal Ui Neill clergy summoned for
this purpose by the high king. Columcille was almost excommunicated for his
'theft by copy' of Finian's book but only the eloquent arguments of his friend
Brendan of Birr persuaded the Synod to impose banishment as an alternative

Clearly they had a need for an attourney even then.

Regardless of the reason he and 12 other monks took a ship from the east coast
of Ireland and ended at the island of Iona which at the time was part of the
kingdom of Dal Riada the king of Dal Riada was a kinsman of Columcille's. (Dal
Riada just over 200 years later gave rise to the kigdom of Scotland.) On this
desolate island the monks founded a monastry. Colmcille had earlier founded
perhaps as many as 41 monestaries before this - including ones at Derry and
Durrow (both in Ireland).

From this base the Christianity was spread throughout Northern Scotland. Later
Aidan (? - 642) a monk from Iona founded a monastery at Lindisfarne which was
used as a base to convert the Angles and Saxons in England.

Collumcille went on to found monastries all over Nothern Scotland - perhaps as
many as 60. Iona remained his base and it is there that the Scottish kings were
buried - including Mac Bethad mac Findláech [Macbeth] (1005 - 1057). Collumcille
first biography - Life of St. Columba - was written by Iona's ninth Abbot,
Adomnan about 100 years later. The monastary was abandoned in 807 AD because of
the increasing threat of Viking raids. Before this happened the Book of Kells -
presently at Trinity College, Dublin (Ireland) - was written there.


So was this statue law or not?

The king under Brehon law was the principal law maker and arbitrator of
disputes. This is the first known copyright ruling in Europe - and possibly the
world - and would have had the effect of law.

The Glorious Revolution which brought William of Orange to power in England in
1688 created a strict seperation of the legislative and royal powers. The king
could not longer pass laws and resolve disputes. Under Brehon law - please
recall here literacy was not universal so laws were rarely written down - the
high king's ruling would have been regarded as the law of the land and would
have stood until the Act refered to in the main article.


When you consider that this one copyright case left 3,000 dead and ended up
converting at least one country to Christianity, the SCO-IBM case rather pales
in comparison.

Almost completely unrelated to this topic is that the actor Mel Gibson's second
name is Colmcille. His first name comes from Saint Mel (? - 489) the nephew and
companion of Saint Patrick (387 - 493) and later the bishop of Ardagh



[ Reply to This | # ]

Wow (was: mob blogging)
Authored by: inode_buddha on Saturday, August 13 2005 @ 09:43 PM EDT
Wow (was: mob blogging) Some of those names ring distant but important bells. It
has been awhile since I heard anything of these folks.

For our purposes here, I think that this "Licensing" chapter may be
among the most important, although I really prefer technical issues.

Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

The Daemon, the GNU & the Penguin - Ch. 17 - By Dr. Peter H. Salus
Authored by: Nonad on Wednesday, August 17 2005 @ 03:26 AM EDT
Not REALLY related to your story, Peter, but I just saw your short take on the
demise if department 1127 over at UNIX Review.

I was never in 1127 (I was a 9212 down at Holmdel), but seeing 1127 finally die
is sad.

It is indeed a reflection of the Labs' culture and research environment
vanishing, never to return...

We made some great things there. :o)

Take care.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )