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The Answer to the Wasabi anti-GPL Sarbanes-Oxley FUD |
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Tuesday, March 07 2006 @ 02:42 PM EST
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If you were wondering what the answer was to the recent Wasabi FUD about the GPL and Sarbanes Oxley, here it is, from the Software Freedom Law Center, "Sarbanes-Oxley and the GPL: No Special Risk". When I first read the Wasabi paper, I had two reactions: 1) Man, some BSD folks fight dirty, and 2) I wish I was qualified to answer their anti-GPL FUD. I knew enough to know it was FUD, but I didn't feel I could personally write an answer. I'm really glad someone has.
Eben Moglen points out there has never been a case where criminal charges were ever brought against a GPL user for violating the SOX Act. Ever. For that matter, the paper explains that it is unlikely it ever would happen because to be criminally liable under the Act, there has to be intentional misconduct. The paper also "points out that SOX generally applies only to public companies and that disclosure in a company's SEC reports is not necessary if a company’s use of the license is immaterial to its business. It also states that companies that must comply with SOX bear the full cost of SOX compliance regardless of the licenses of the software they choose," as the press release puts it. You might as well read the entire press release, which is
here and I'll reproduce it below. Shame on Wasabi for floating FUD. Peter Galli at eWeek has a story on the entire shameful episode and the response now by the Software Freedom Law Center: Wasabi Systems has created a Web site that contains a licensing guide that includes a section on how the Sarbanes-Oxley Act "has changed the open source landscape by making GPL violations a federal crime."
Wasabi Systems has also posted a white paper to its Web site titled "When GPL Violations Are Sarbanes-Oxley Violations," which says that the SOX (Sarbanes-Oxley) Act requires public companies to provide truthful disclosures of information, including ownership of intellectual property.
However, the latest Software Freedom Law Center white paper maintains ... these issues were reviewed and it was found that there is in fact no special risk for developing GPL'd code under SOX.
"Under most circumstances, the risk posed to a company by SOX is not affected by whether they use GPL'd or any other type of software. Arguments to the contrary are pure anti-GPL FUD [fear, uncertainty and doubt]," the paper says. OSDL gave seed funding to set up the Center, if I recall. I know you join me in saying thank you to OSDL for doing so. If by any chance you'd like to read the Sarbanes-Oxley Act itself, here you go [PDF]. ************************************
March 7, 2006
Software Freedom Law Center Addresses Erroneous Interpretation of Sarbanes-Oxley as Applied to the General Public License
NEW YORK, March 7, 2006 – The Software Freedom Law Center (SFLC), provider of pro-bono legal services to protect and advance Free and Open Source Software (FOSS), today announced it has published a white paper on its position regarding alleged General Public License (GPL) violations in relation to the Sarbanes-Oxley Act (SOX). The paper, titled “Sarbanes-Oxley and the GPL: No Special Risk,” is available at: http://www.softwarefreedom.org/publications/Sarbanes-Oxley.html.
“Recent discussions regarding the GPL and SOX have been wrought with false information and have prompted the SFLC to issue its position on the topic,” said Eben Moglen, chair of the Software Freedom Law Center. “It is our job at the SFLC to provide the best legal advice and resources to our clients. This paper will help users of the GPL, from developers working on FOSS projects to CIOs working at Fortune 500 companies, to clearly understand there is no new need for concern. The fact remains that no criminal charges on the basis of violating the SOX Act have ever been brought against a GPL user.”
The SFLC paper defines the realistic impact of a GPL violation as it could be applied under SOX. The SFLC paper points out that SOX generally applies only to public companies and that disclosure in a company's SEC reports is not necessary if a company’s use of the license is immaterial to its business. It also states that companies that must comply with SOX bear the full cost of SOX compliance regardless of the licenses of the software they choose. Lastly, the paper explains that if SOX applies to a GPL violation, it is not likely that a company or developer would be criminally liable, since the Act cannot be criminally violated without intentional misconduct.
“The idea that a GPL violation could result in jail time is unreasonable,” said Karen Sandler, attorney at the Software Freedom Law Center. “You take away this unlikely threat, and the argument is reduced only to compliance, and GPL compliance is remarkably simpler than that of alternative licenses.”
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Authored by: troll on Tuesday, March 07 2006 @ 03:13 PM EST |
With clickable links if you know how to make them.
Yours truly ...[ Reply to This | # ]
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Authored by: Woad_Warrior on Tuesday, March 07 2006 @ 03:29 PM EST |
That way PJ can find'em. [ Reply to This | # ]
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Authored by: ankylosaurus on Tuesday, March 07 2006 @ 03:33 PM EST |
I'd was just going through my in-box and found a pointer to the controversy, and
was going to send the info to PJ, but I see PJ is already fully briefed and has
provided the answers for us. Thanks, PJ.
---
The Dinosaur with a Club at the End of its Tail[ Reply to This | # ]
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Authored by: RealProgrammer on Tuesday, March 07 2006 @ 03:42 PM EST |
Much in the same way SCO sees a boogieman behind every corner of IBM's
arguments, the other side (whatever that means) sees danger in Open Source.
It's as if the wheels are turning,"They're giving something away. Just
because they want to. It can't be that simple, there must be a trick."
Well, there is a trick, but it's not what they think. The thing about giving is
that it's contagious. When you get a gift, you tend to look for ways to give.
At least, that's the plan.
---
(I'm not a lawyer, but I know right from wrong)[ Reply to This | # ]
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Authored by: imroy on Tuesday, March 07 2006 @ 03:59 PM EST |
The 'G' in GPL stands for GNU, not General. The GPL is the *GNU* general public
license. The name "general public license" could refer to anything
without "GNU" out the front.[ Reply to This | # ]
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Authored by: Nick_UK on Tuesday, March 07 2006 @ 04:08 PM EST |
Last week at work everybody was given a 'disclaimer' to
sign.
Basically it signs over rights/copyright to stuff you
develop/do at work to the Company - including patents (I
would get a grand total of a £200 reward if I get a
successful patent awarded!!!).
I refused to sign it (nicely) as all/most of my sysadmin
stuff is GPL software - I fix/develop things and pass back
to the community. This 'disclaimer' would not allow me to
do that.
I am in current discussion with the ethics/business
manager and such people to resolve this. But no way am I
giving in. They are happy to take, but not give - this
(my) issue would have been invisible until this
'disclaimer' came up.
Nick [ Reply to This | # ]
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Authored by: seeks2know on Tuesday, March 07 2006 @ 04:10 PM EST |
Here is an
interesting interview in OSNews of Jay Michaelson, VP of Wasabi.
The
article introduces the company this way:
The main commercial
company behind NetBSD is Wasabi Systems. The company has contributed advances
and big chunks of code to the open source project, while they do offer a boxed
release of NetBSD. However, their main business for the company is the embedded
market and NetBSD is marketed as an embedded OS. Today, we talk to the Vice
President of Wasabi Systems, Jay Michaelson.
In the
article, he bashes the Linux and the GPL several times. So put your boots on,
the FUD is rather deep. --- There is but one straight course, and that
is to seek truth and pursue it steadily."
-- George Washington
[ Reply to This | # ]
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Authored by: Woad_Warrior on Tuesday, March 07 2006 @ 04:10 PM EST |
Wasabi's take on LKM's
seems to incorporate a good deal of FUD also. But it does also include some
truths. (mainly about how adding proprietary modules goes against the spirit of
Linux, and that it may also cause other problems such as, instability, having to
wait on the whims of the people who can access the code to make updates and
bugfixes, etc.... But that would affect any FOSS system.) (NVidia and other
proprietary drivers rants belong in OT thread.)
For the most part,
the FUD on that page is the same as on the other pages. What they say about
having to donate your code if you use any GPL code seems to be the most glaring.
Of course they then go on to say that there are ways around the requirement, but
they try to make it seem like these methods are somehow illegal, or may become
so. Unpopular, I'll grant you, but that the couple of methods mentioned are
somehow going to get you in trouble? Kinda makes you wonder what solutions this
company, who admits to using FOSS, really wants to push on their customers.[ Reply to This | # ]
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Authored by: Chris Lingard on Tuesday, March 07 2006 @ 04:12 PM EST |
This person or company has never checked the facts, they are clearly wrong,
or just mixed up.
As discussed above, none of this
applies to companies who merely use GPL software, such as those who run Linux on
their servers, as long as their software was created in a compliant
way.
What is this supposed to mean. What do they mean
"compliant way"? You can download binaries, RPM packages, or source, You can
compile the source and run it. You can modify it in-house and use it. Does
this reporter understand what software is?
Specifically,
if a company modifies GPL-governed software, it is required by the terms of the
license to make its modifications (i.e., derivative works) open source as well.
Failure to do so results in nullification of the right to use, sell or otherwise
distribute that software.
Wrong again, guess they wrote
this on a bad day. You can modify and use GPL software as any technical person
understands. Only if you want to release it must the modifications be GPL, and
the source must be available. But you own copyright to your modifications, then
release it under GPL. You can sell it, rent it out, charge for support. And
customers are happy to pay for support.
Effectively, a
violation of the GPL means that the software company does not duly own its
software.
Land grabbing is not allowed, what do you
expect if you violate the licence. But if you are honest, and do not cheat, you
keep the copyright of what you have created.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 07 2006 @ 04:15 PM EST |
This whole unsavory affair illustrates the problem with the BSD license. If
you license your code under the BSD, you are giving it to companies like Wasabi
Systems - a company that not only doesn't give anything back to the community
whose software it exploits, but actively tries to damage that
community.
If the affair persuades just one developer to stop using the
BSD license and to switch to the GPL, some good will have come out of it. [ Reply to This | # ]
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Authored by: bstone on Tuesday, March 07 2006 @ 04:26 PM EST |
Whatever topic "someone" thinks is hot will get this type of
publicity. A couple of days ago, Fark picked up an article about the dangers of
driving while talking on a cell phone. In that case, the driver also just
happened to be using cocaine, methamphetamines and alcohol at the time, but the
article headline was the cell phone. You had to read the whole article to catch
the rest of the story. The "story" was about how dangerous it was to
use a cell phone while driving. When the writer has an agenda, that's what you
get in the article.
Of course, if a company violates the license for the software they are using (or
selling), they will have legal problems. This has nothing to do with whether
the illegal code is GPL or not. We're back to the same scare story with a
slightly different tag line. The old (SCOX) story is about how likely
proprietary code is to be copied into open source (not likely, compared to
closed source where the copying wouldn't have to be done in broad daylight).
Now it's another "angle" on the same attempt at a story.
[ Reply to This | # ]
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- FUD of the day - Authored by: Anonymous on Tuesday, March 07 2006 @ 04:53 PM EST
- FUD of the day - Authored by: Anonymous on Tuesday, March 07 2006 @ 09:21 PM EST
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Authored by: hopethishelps on Tuesday, March 07 2006 @ 04:26 PM EST |
On Wasabi's web site we see that a key part of Wasabi's product line is a
"Wasabi-enhanced GNU Toolchain".
If they have "enhanced" (well, modified)
any part of the GNU Toolchain, and distributed the modified tools in binary form
to clients, then they have certain obligations under the GPL.
Does anyone
know a Wasabi customer? [ Reply to This | # ]
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Authored by: dwheeler on Tuesday, March 07 2006 @ 04:44 PM EST |
It's important to note that Wasabi is a biased source. Wasabi's primary work is
on NetBSD, which competes with Linux (and has a far smaller market share than
Linux). The NetBSD kernel is also open source software, though using the BSD
license instead of the GPL license, and it can be turned into a
proprietary product (it's not clear that Wasabi does this, but its per-seat
license suggests that it may).
So we have a company trying to generate
fear of a competitor's product. They're trying to instill fear of the GNU GPL
license, under which their competitor (the Linux kernel) is released, and saying
you should use their product instead. Hardly a new tactic; this is simply
another organization playing the same old tactic. Any such claims should be
viewed with a critical eye, and in this case the claims don't stand up to real
scrutiny.
[ Reply to This | # ]
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Authored by: Steve Martin on Tuesday, March 07 2006 @ 05:07 PM EST |
Wasabi Systems has created a Web site that contains a
licensing guide that includes a section on how the Sarbanes-Oxley Act "has
changed the open source landscape by making GPL violations a federal
crime."
Um, IANAL, so correct me if I'm wrong, but it
was my understanding that GPL violations by definition result in copyright
infringement, which is already a Federal crime. Further, it was that way long
before the Sarbanes-Oxley Act, so it has nothing whatsoever to do with
S-Ox.
--- "When I say something, I put my name next to it." -- Isaac
Jaffee, "Sports Night" [ Reply to This | # ]
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Authored by: mram on Tuesday, March 07 2006 @ 05:13 PM EST |
What is the relationship between Wasabi and MS?
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 07 2006 @ 05:14 PM EST |
Well, maybe Wasabi has changed their web site significantly, but in comparing
the two, you find that the SFLC memo is more flawed than the Wasabi
site.
First off, almost every link goes directly to the middle of the Wasabi
information. ie: sox.html rather than to the
beginning of the
report. When one starts reading something in the middle. you miss such
important points as:
So, whether the GPL matters depends on whether
you're changing and redistributing the code. And that depends on your business
application. For example, if you are running Linux on your server, you're almost
certainly not changing and redistributing the Linux code, so the GPL's
provisions do not apply -- notwithstanding the "fear, uncertainty, and doubt"
one hears in certain quarters. On the other hand, if you're embedding Linux in a
device, you probably are changing and redistributing the Linux code, and so the
GPL does apply.
Source "Does the GPL
Matter to your Business?"
Throughout the report, Wasabi
makes it clear that it's talking about distributed modified GPL source as your
main product or a significant portion thereof. The SFLC memo on the other hand
doesn't seem to make clear what it's actually talking about:
We
have reviewed these issues and, as discussed more fully below, there is in fact
no special risk for developing GPL'd code under SOX.
Then
later:
In the end, contrary to what others may argue, there is in
fact no additional SOX liability or risk for using GPL
software.
You will notice that at the start they mention
developing GPL'd code however, they consistantly mention, and concude with a
statement regarding "use of GPL software". The Wasabi report
specifically addresses the modification and distribution of GPL code and
clearly outlines that if that's what you do, you have three
options:
- Comply with the GPL, and donate the code you paid to create to
anyone who wants it.
- Try to use workarounds (boot-loadable modules,
etc.)
- Noncompliance (cheat and wait until someone catches
you)
It then goes on to explain how #3 is a bad idea and #2 is not
definately a valid solution.
If one were to pretend that the Wasabi report
was written specifically to TiVo before the source was made available, you would
be reading it in what appears to be the me to be the correct light. I can only
assume there's some FUD somewhere which takes the Wasabi information out of
context and suggests that the mere use of GPL software can in some way effect
SOX compliance.
It is not, however, on the Wasabi website. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 07 2006 @ 05:38 PM EST |
Daniel Wallace is a *big* BSD advocate. I'd be willing to bet
that Wallace is talking to (or manipulating) Wasabi Systems.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 07 2006 @ 05:50 PM EST |
From the Wasabi article:
[O]ver 50% of the risk assessment is done by engineering teams. A reasonable
interpretation of Sarbanes-Oxley is that this common practice breaks the law. If
engineering teams are in charge of compliance and risk assessment, executives
are trusting non-lawyers to make legal decisions. Even if those decisions are
right, the process is wrong - and that means it's a Sarbanes-Oxley violation if
the company is public.
--
If that's true, doesn't it also apply to BSD and to proprietary software?[ Reply to This | # ]
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Authored by: darkonc on Tuesday, March 07 2006 @ 06:05 PM EST |
Under the Microsoft XP EULA, backing out of a software update because it breaks
your (mission-critical?) application can result in you potentially losing all
rights to use the software at all.
Once you update your software, you no
longer have the right to use the old version. If you then go back to using the
old version then you are in violation of the EULA, and subject to being forced
to destroy all versions of your software at Microsoft's whim. --- Powerful,
committed communication. Touching the jewel within each person and bringing it
to life.. [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 07 2006 @ 06:43 PM EST |
Sadly, I agree. Disclaimer: This obviously isn't intended
to be a "BSD stereotype" or to imply that the whole
community is this way... but, in the years I've watched
Linux grow up from 2.0, I don't think a lot of people in
the BSD crowd have ever been very friendly.
I remember in the 2.2 days when they were still loudly
trumpeting about how they had superior performance in some
areas. 2.4 came around, and a lot of this changed. By the
time 2.6 came around, Linux was whipping *serious* ass in
all kinds of important areas like network performance,
number of deployments, availability of commercial support
and skilled workers, etc. Nowadays, the vast majority of
the Top 500 fastest supercomputers in the world run Linux.
And I still witness extreme fanboyism all over the
place... BSD zealots telling Linux newbies that Linux
isn't a very capable server, or that *BSD is faster. (And
I've never seen a single one, when challenged, actually
back those claims up.)
Meanwhile, the founder of OpenBSD goes out to the news
telling the world that he thinks Linux is terrible, it's
crap, etc. The reporter accurately suggested 'sour
grapes'. And Torvalds had the perfect quote in response,
stating that the man 'is difficult' and declining to
comment further.
Time goes on, out comes FreeBSD 6.0. The press release
proudly alludes to some unspecified benchmark in which
FreeBSD 6.0 was allegedly faster than Linux at "data
throughput". They failed to define data throughput, failed
to provide any information about what version of Linux was
tested, etc.
And they still try to convince Linux supporters to switch
because of the GPL. Cause, you know, it's great for
companies to be able to swallow your product whole and
turn it into a proprietary minefield.
I wish they'd spend more time modernizing their operating
systems than trying to fight Linux's immense popularity
with outright offensive FUD.
</rant> [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 07 2006 @ 09:35 PM EST |
Is Wasabi desperate or just jealous? [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 07 2006 @ 10:12 PM EST |
"GPL compliance is remarkably simpler than that of alternative
licenses."
Not to raise hackles, but I must admit I don't understand
this. What could be
simpler or better than the FreeBSD license? In some ways
it can be seen as
superior in every way,
including the fact that it allows any
kind of use and doesn't necessitate
buy-in to the author's political
views.
The idea of FOSS and the GPL are two quite separate things. And
maybe
FreeBSD has the former right.
J [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 08 2006 @ 01:23 AM EST |
What does that even mean? Ownership of what? Do they have to disclaim
ownership of minesweeper on every Windows desktop?
I would assume (which is probably a bad thing to do) that the law applies more
to a SCO/Novell situation where a company is claiming to make money off of
copyright/patent/trademark licensing, but that they don't actually own the
rights to sell licenses.
Did the Wasabi people mean to imply the GPL takes away ownership? That's of
course absolutely false. Even if a company decides to cure a GPL violation by
obeying the license, that doesn't mean they don't hold the copyright over the
software they wrote.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 08 2006 @ 06:33 AM EST |
Actually, why?
I know someone who was sent to prison by the BSA for employing people who used
unlicensed software (3d studio, etc) in making a game.
Fair is fair.
Why would it be unreasonable to send some GPL violators in prison?
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 08 2006 @ 07:38 AM EST |
From: http://www.wasabisystems.com/gpl/lkmkernel.html
"LKMs all have to include at least one "header file", an
incorporation by reference (using the #include<> function in C) of certain
preliminary kernel-specific information, without which the module would not be
able to function. Header files distributed with a kernel are essential to inform
the compiler (which converts the source code into machine readable code) about
the environment the code will operate in. Header files also can contain certain
macros which save programmers effort in their coding, making abbreviated
references to longer pieces of code crafted to work within the kernel
environment. The inclusion of one or more of these header files, which are
distributed as a part of the GPL'ed Linux distribution, within one's own LKM,
arguably makes an open and shut case that the module contains verbatim copying
of GPL'ed subject matter, and is, hence, an infringement of the author's rights
unless made under the authority of a license. The only license under which the
linux kernel header files are offered is the GPL, so if one makes copies of
them, and then makes works based on them, then one is obliged to meet the GPL's
conditions, or be found to be an infringer."
1) Doubt
The weasle word is "arguably", the header file is not copied into your
code, the header file is a link device to allow you to connect to connection
points.
'Arguably' using macros provided in the header file, creates copying of code
from the header to your own code.
Using this argument 'Arguably' any code you've written for Winstalls now belong
to Microsoft (#include <windows.h>)
2) Uncertainty
Arguably, those macros are provided as convenience functions and the use of the
'name of the macro' in your code is authorised by the copyright holder.
In addition to the fact that while the code to which the macro refers is
probably/may be protected by copyright, the name of the macro is NOT, and as it
is only that which is referred to in your (supposed derivative) copyrighted
work, So it is also arguably *NOT* in violation of the GPL.
NOTE: IANAL but the US copyright office uses the following in it's definitions
of what is not protectd by copyright.
http://www.copyright.gov/circs/circ1.html#wnp
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere
variations of typographic ornamentation, lettering, or coloring; mere listings
of ingredients or contents
I am guessing that the macro name falls in to this category.
3) Fear
The author of the original article has used tortuous reasoning to present an
extra-ordinarily lopsided argument. He has then taken this imbalanced (and quite
probably wrong) view of the use of header files and decided to place it in the
context of Sarbannes-Oxley as an [arguably] Open and shut case of a Sarbannes
Oxley violation not just a GPL infringement (or not)
The effect of this is to suggest that if a lowly geek writes the following
(pseudo) code (back off nit pickers).
#include <linux/kernel.h>
print min(ARGV[1],ARGV[2]);
compiles it and then embeds the resulting binary object in Huge mega public
corporations specialised widget then the CEO and his chums will end up doing
Jail Time with Bubba and Spud.
To Summarise.....
The stated arguments of Wasabi threaten (Fear) on the basis of lopsided and
incomplete (Uncertainty and Doubt) reasoning
Hence FUD.
It's not that diffficult.
(though, and I am sure PJ will agree, you do have to make sure you do your
research and not just skim and jump to judgement)
[ Reply to This | # ]
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Authored by: vonbrand on Wednesday, March 08 2006 @ 09:24 AM EST |
PJ, I think you are being unfair to the BSD crowd.
They are mostly people
who care deeply about software freedom,
and they are right in that the
BSD license is freer than GPL. The idea of sharing is the same, just that BSD
relies on everybody following their moral duty to do so, GPL makes it a legal
condition.
That said, there is a lot of people who'd just love to
have everything in the public domain, and failing that, under the BSD license,
because they want the right to (ab)use the software, but aren't willing to give
anything in return (something GPL forces you to do).
[ Reply to This | # ]
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Authored by: Anonymous on Friday, March 10 2006 @ 05:53 AM EST |
The purveyors of BSD do what all companies do when their product fails to attain
mindshare and fails in the marketplace. They've resorted to flat-out lying.
Wasabi Systems is well known for their lack of integrity when discussing the
GPL.[ Reply to This | # ]
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