Perens Counters Claim of GPL Legal Risk 145
Microsoft Delenda Est writes "After ACT, a Microsoft front group, started claiming that the GPLv3 was legally 'risky' and could give rise to anti-trust liability, eWeek has published a rebuttal by Bruce Perens. Aside from the fact that IBM, HP, Red Hat, and a couple dozen corporate lawyers are watching over the creation of the GPLv3, there is already precedent that shows the GPL is unlikely to give rise to any significant liability — Daniel Wallace v. FSF. In that case, pro se litigant Daniel Wallace was all but laughed out of the courtroom for alleging the GPLv2 violates anti-trust law, and the GPLv3 clauses in question are simply clarifications and extensions of clauses in the GPLv2. Presumably, that is why the ACT neglected to cite any precedent substantiating their allegations."
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"open source partisan," what is that? (Score:2, Insightful)
I don't think you are going to get very far if you try to equate free software advocates with PR hitmen. One group is composed of volunteers out to promote software freedom and your rights. To do this, they share their code and documentation freely. The other group is composed of people who are paid to advocate positions, regardless of their personal beliefs - a job the more closely resembles prostitution than other professions. The company they represents thinks of developers as pawns to fuck over [slashdot.org] and
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Nice language. This seems to be your favorite soundbyte of the moment. Something some mid-level manager at a company with 60,000 employees said years ago. Talk about hanging on for dear life.
I was wondering though - w
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So he used some nice words to contrast volunteer positions versus paid positions, big deal. The essence of his argument boils down to this: We do what we do for the love or for the money. It turns out that people will lie for money. How many will lie for love?
That may not make him or anyone
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Goo
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Yes well, we've already established that, haven't we?
Please don't be ridiculous. Microsoft doesn't want me to use anything other than Microsoft software, period. They'd rather I run SQL Server instead of Oracle and Windows instead of OS X. The same way Toyota would rather I drive a Camry than a Ford Mustang. Why do you people insist on attaching such deep significance to simple commercial
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I see Microsoft competing with other companies and other companies competing with Microsoft, all of them using tactics akin to your concept of "FUD" as they've done since the IT industry was invented. You have cheapened the meaning of the term "FUD" to the point it is attached to anything, including constructive criticism (remember ESR saying that CUPS sucks? That was FUD!). So really, cry me a river and all that.
You know, Microsoft is not the only commerc
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Oooh, can I be combative and cocky as well? Let me say this: your "freedom" stops precisely at the point where my right to make a profit starts. And since your hero Stallman has repeatedly claimed I'm a spawn of Satan (among other things) because I don't give him my code, we're likely to have a problem, no?
On the other hand, if you're whining about patents (I suppose that's the center of y
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However, it was always the goal of the GPL to make it such that if you wish to benefit from the years of hard work GIVEN to you FREELY by developers that created the GNU toolset, you would have to play by their rules. Which are very simple. Make your work freely available. Distribute the source code... now.. you can charge for the distribu
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I don't know about anyone else, but it sure sounds to me like you fit the bill.
Just because Perens isn't being paid to make this statement (at least directly -- he makes his money largely from his free software advocacy, and this is part of that) doesn't mean that he's not a biased source. He's been one of the core supporters of the GPLv3 from the beginning. His position is just as unsurprising as Microsoft's.
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Don't know where "PR hitmen" came from, but the definition of partisan does seem to more-or-less describe Bruce Perens and a host of other advocates. Bruce might object to the terms "biased" or "emotional," but I think one could objectively point to other opinion pieces he's written where he shows some bias at the very least. Everyone is biased, so this isn't a particularly stron
Why tagged Linux? (Score:2, Insightful)
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Re:Why tagged Linux? (Score:5, Insightful)
All the talk of GPL3 has overwhelmed the fact that there is an LGPL3, which will share most of the GPL3 language. It will most certainly be applied to GNU LIBC.
Bruce
Re:Why tagged Linux? (Score:5, Funny)
Re:Why tagged Linux? (Score:5, Funny)
I'd rather you hear it from the horse's mouth than from the other end of the horse :-) I guess that's a pretty good description of ACT's lawyer, isn't it?
Bruce
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But, really, how about a separate analysis of LGPL v3? Can an LGPL v3 library be linked to a closed source device that uses DRM with unknown keys?
Re:Why tagged Linux? (Score:5, Interesting)
As long as you can change the library without limitation. Don't lock down that library. And your DRM must not depend on the integrity of that library to work.
Bruce
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Bruce
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Wrong. He wants you to call Linux "Linux", to call GNU "GNU", and to call the combination of the two "GNU/Linux".
Re:Why tagged Linux? (Score:5, Informative)
Bruce
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They will be significantly better for people who prefer GPL2 over GPL3.
Re:Why tagged Linux? (Score:4, Interesting)
That won't be the users, since GPL3 doesn't restrict them at all. So, a GPL2 fork of any GPL3 product will need to be technically better to attract the users. It's unlikely that anyone motivated to fork backward to GPL2 will be able to muster sufficient community resources to make such a thing better than the GPL3 version.
Bruce
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Re:Why tagged Linux? (Score:5, Funny)
Why has *BSD acheived less of a market than Linux? Which of these popular reasons do you believe?
:-)
Bruce
RMS/Theo popularity contest? (Score:4, Funny)
You inhuman bastards are the reason we hate Linux.
</Theo>
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I know there were lots of arguments about BSD vs. GPL, but the BSD license does have the virtue that it's easy to understand. I don't think it's possible to FUD a license that simple.
Bruce
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This is pretty much always said with the rhetorical implication that a fork of gcc in particular would require an impossibly large degree of intellectual labour to maintain seperately.
"Of COURSE you're free to fork gcc under GPL 2! But you'll find, after a few months, that in practice the program is just too complex to be able to maintain your own fork effectively. So when y
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1:) they can higher developers to maintain the code.
2:) The maintinence won't need to be the full blown development like the main project will need. All that will need to be maintained is the stuff neccesary to make it work for them.
3:) Some developers will stay with GPLv2 because it would appear they are being forced
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Linus' position on a kernel licence switch has been greatly distorted. While he didn't like the earlier V3 drafts for some of its ideology he wouldn't have transfered the kernel over from V2 anyway for the simple fact that he doesn't have the copyright for the entirety of the kernel codebase. There is no practical way for him to contact all copyright holders to get appr
Re:Why tagged Linux? (Score:5, Interesting)
Fortunately, it's not as big a problem as you believe. But how can the Linux kernel project, with its thousands of developers, change its license? We can't even reach them all, and some of those developers are dead and their estates don't know software licenses from driver's licenses. But changing the license is easier than most people think.
First, it's not a fundamental change: the intent of GPL 3 is that of GPL 2, the change is in the implementation. Given that, what would be required for such a change would be for Torvalds (or someone else) to publish his intent to start making releases with the new license, as a legal notice. A certain number of people would object, and they would have the right to require that their contributions be removed from the new release.
The kernel team has never been loath to replace code when necessary, and never slow to handle the job, no matter how large the item to be replaced. Just look at the replacement of Bitkeeper with "git", a big job that took a ground-up rewrite and yet was working in five weeks. So, code belonging to GPL3-objectors would be swiftly dealt with.
After some time passed, the release would happen under the new license, and life would go on. There is precedent for this, as Torvalds has already made two significant changes to the prelude to GPL2 on the kernel, publishing his intent and then making a release.
Bruce
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No, I don't think that's true. The fundamental difference is that git was being developed when McVoy started interfering with actual development; Linus didn't mind t
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You have to be careful. GPLv2 or later code contributed to a GPL2 only project can only be GPLv2 on
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I would see it as: this is the first time a legal agreement between to companies has attacked the existing GPL. The GPL is being "patched" to remove the vulnerability.
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OK. Maybe I'm just behind the times or something, but what was "wrong" with GPLv2?
I've glanced at the side-by-side comparisons between the two, and I see the changes, and I've heard many people gripe about GPLv3, so why is there a push for it?
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Re:Why tagged Linux? (Score:5, Insightful)
GPL has never stood alone, it has always depended on the local interpretation of copyright and other law to give it force, and those things change over time.
When the GPL was written, there was no web, music came from phonograph records, video from tape, and rather than DRM there was rudimentary software "copy protection". The renaissance of microprocessors, software, the web and digital media worked a tremendous change in the law with many changes to copyright, patents, the nature of consent, contracts, tear-open licenses, and copyright permissions. And there have been many trials over those years that added interpretation to laws that GPL 2 depends upon. As the law changes, GPL must change to keep up with it, or it will become increasingly un-enforcible.
Thanks
Bruce
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Seems to me to be more of a naissance, since there wasn't much of a dark age in computing between the invention of the microprocessor and now.
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there wasn't much of a dark age in computing between the invention of the microprocessor and now
Actually, I think there are several candidates for "dark age of computing". Pick one:
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re: what was "wrong" with GPLv2? (Score:4, Informative)
The GPL v3 attempts to fix this problem by adding a "permissions clause" which allows the original license owner to add other permissions (e.g. the LGPL is now the GPL plus some permissions) and by adjusting the license to be more compatible with the free software norm (e.g. the Apache license is now almost compatible with the GPL v3. The patent clauses are now compatible, unfortunately the Apache indemnity clause was a bit too strong for the GPL community to swallow. ).
This "permissions clause" makes it easy for the average user to understand how different flavours of the GPLv3 can combine -- just drop incompatible permissions and end up with the common subset (which would be no less restrictive than the GPL v3).
This could allow you to define the CPL, PHP license, Mozilla license, etc as GPL + some permissions and either get rid of the original license or publish "equivalent GPL+permissions versions" of these licenses along side the orignal (simpler) license so as to make it obvious how you can combine code from your license with other licenses.
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OK. Maybe I'm just behind the times or something, but what was "wrong" with GPLv2?
It's still too easy to "productise" GPLed code (eg: by tying it to a hardware device like Tivo did).
Legal Risk Numero Uno (Score:1)
GPLv3 in the marketplace (Score:4, Interesting)
Thus, if the marketplace already views GPLv2 as too encumbered, it is unlikely that commercial code released in the future will be licensed under GPLv3, or that commercial entities will contribute to GPLv3 open-sourced projects. Before you argue that this is irrelevant, consider the amount of commercial code that has radically improved Linux in the past five years or so.
I'm not sure if this an argument for or against GPLv3.
Re:GPLv3 in the marketplace (Score:5, Insightful)
Well, this might be moot because GPL3 won't prevent the performance of web services using undisclosed modified internal GPL3 code. RMS feels that this is your right, and has only provided a way for people to optionally apply the Afero GPL, which does prevent this, to GPL3 code.
But your posting touches on a more fundamental topic, where the market is attempting to move Open Source licensing. There will always be a difference between the goals of companies who offer licenses along with their developed code, and companies who receive those licenses. Companies that receive Open Source code will always want BSD-style licensing as it gives them more options to keep their own development using that code proprietary. Companies that release Open Source code will tend to want a more restrictive license as this enables a dual-licensing revenue stream so that they can charge those folks who want to keep their development proprietary.
We can leave the motivation of non-companies to another discussion, since your question did not touch upon it, but they often have reasons to want a sharing with rules (GPL) license over a gift (BSD) license. And of course a detailed discussion of motivation for gift or sharing licenses would be much larger than this little posting.
Thanks
Bruce
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We can leave the motivation of non-companies to another discussion, since your question did not touch upon it, but they often have reasons to want a sharing with rules (GPL) license over a gift (BSD) license.
One notable instance where creators (companies or no) often prefer a gift license over a sharing with rules license is when the software promotes a standard, where adoption of the standard (and a uniform reference platform for same) is often more important than the implementation itself.
Re:GPLv3 in the marketplace (Score:5, Insightful)
I state this in paper on which Open Source license to choose that I give to corporate customers. If you really want everybody to adopt it, even your worst enemy, use BSD. But then don't complain if they make it work incompatibly from your version, as Microsoft is wont to do.
Bruce
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I had to stop using scroogle's search scraper and go to google directly to get the spelling correction. I am sure there are others with this problem.
Re:GPLv3 in the marketplace (Score:5, Insightful)
Yes, do consider the amount of corporate contribution to Linux, and then think about why that work has gone into Linux and not into BSD. Why have IBM, SGI, Red Hat and others chosen to put so much effort into improving Linux rather than BSD? I posit that the GPL, far from being a bitter pill that corporate contributors unwillingly swallow, is the reason they chose to contribute to and work with Linux. IBM, for example, has no interest in putting its efforts into improving a codebase that can be ripped off by Microsoft or other competitors. Code contributed to a GPL project reaps returns in the form of other code that the contributor gets to use, but code contributed to a BSD project may or may not.
Consider Sun, also. They're in the process of open-sourcing Java, and there are strong rumors that Sun plans to license OpenSolaris under GPLv3. Why not BSD?
Because BSD is better for those who take, and GPL is better for those who give. There are exceptions, of course, but in general contributors have fewer concerns with the GPL than with the BSD, and that is why the corporate world has overwhelmingly favored GPL over BSD. IMNSHO, it's also why the volunteer community has overwhelmingly favored GPL over BSD.
What does this have to do with GPLv2 vs GPLv3? Well, projects that get corporate contributions are going to have to look and see if v3 poses any risks to the continued flow of contributions. In practice, I really doubt that any corporations who are willing to contribute and whose contributions we want are going to be put off by GPLv3 because v2 and v3 are essentially the same. v3 tightens up some loopholes and fixes the language, but the basic goals expressed by the license are identical, so the only people who might like v2 but not v3 are those who want to exploit the v2 loopholes -- meaning those who want to exploit the open source community and don't care about their reputation in that community.
If GPLv3 keeps such bad-faith contributors out, I think that's a bonus, not a cost.
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In other words, the SCOs of the world.
MY computer doesn't parse licenses (Score:1)
Re:MY computer doesn't parse licenses (Score:4, Informative)
Then, you are not running any recent Mac or Windows system. Your computer probably depends on the work of people who would not have released their code at all without the GPL. Like the GCC developers, for example, whose work started with Richard Stallman's first implementation. GCC is most likely used to compile the system you are running.
Richard Stallman agrees with you. He doesn't restrict your right to use the software. It is copyright law that restricts your right to distribute other people's software, to modify it, etc. Richard would rather that there were no copyright law. Since there is, he uses the GPL to turn copyright law upon its head as well as he can.
Bruce
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Since there is, he uses the GPL to turn copyright law upon its head as well as he can.
Yes, I actually DO agree with that. GPL derives its power from copyright law, which of course is a good thing. I am happy to see this happening for that reason. But a big problem, to me anyway, is multiple licenses in one program. Talk about bloat! The big compan
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Are you intentionally trying to make Stallman out to be Jesus? Your style is exactly like that of religious people who try to indoctrinate kids. "Jesus loves you. He would rather th
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I do not happen to be a member of a religion that preaches belief in Jesus. On the other hand, I have experience that Richard is a living individual :-)
The original posting "my computer doesn't understand licenses" was sort of deliberately simplistic and childlike, and this may have flavored my response.
Then again, the spirit of St. IGNUtious may have posessed me. Here, [declan.net] child, you may have an icon of St. IGNUtious.
Bruce
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If there were no copyright law, all his work would be in the public domain. If that were the case, I could take it, modify it in a neat and innovative (i.e. valuable) way, and sell DRM-laden binaries without having to redistribute either his original source or my patches. If this is the way RMS would rather it be, he's certainly free to put all his work in the public domain, isn't he?
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The problem with putting his work in the public domain is that you can take the work and make a copyrighted modified version. So, public domain unfortunately plays into the hands of people who want to make copyrights with restrictive licensing.
Bruce
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lawyers are just folks that never stopped playing in the debate club and laws are just the "rules of the game"
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They're also for coders. A lot of coders will refuse to code if the result is going to be placed under an unfavorable license.
And for consumers. I think you like the guarantee that your software will be reasonably priced (probably free) and that if the original developers give up, someone else will maintain the software so your documents don't bitrot when you move to a different computer architecture, etc
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In a perfect world, that would work. The sad truth is that the majority of the world disagrees with you, and would get justifiably angry if you don't offer certain guarantees to others without signed contracts. In fact, if you live in a country that's a signatory to the Berne Convention, you are bound by international laws to offer guarantees to others without s
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Can we trust? (Score:2)
Well, I suppose they are anti-trusting their consumer base.
The only part I don't agree (Score:2)
Re:The only part I don't agree (Score:5, Insightful)
The word "coupons" might have led you astray. What Microsoft is giving out is paid-up Novell licenses which Microsoft pays for. Either the distribution or support inherent in those licenses, which is done on Microsoft's behalf, involves copying: a direct infringement if you haven't agreed to the license. And there is also the potential for contributory and vicarious infringement in the law. In contrast, when a radio station gives out Big Mac coupons, it is always doing so on behalf of Macdonands, who is paying for that form of advertising. So, it's not the same thing at all.
Bruce
I'm confused (Score:2)
Your original statement says:
You then further clarify:
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Bruce
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Bruce
So Glad I use SUSE (Score:3, Funny)
Think about the droves of people and organizations who will now be joining us (Microsoft and Novell) in ensuring their users and customers are lawsuit-free by only using GPL v2 and hiding behind the MS agreeements.
Thank you ever so much, Steve!
Thank you Ron!
Seriously - I figure the GPL v3 is being worked over so much that - like v2 - whatever challenges will hold up just fine.
Good rebuttal by Bruce Perens (Score:5, Funny)
I am looking forward to the V3 release of GPL and LGPL. I especially like the way the new LGPL draft basically just references the V3 GPL (draft), with exceptions.
I believe that Microsoft's claims of anti-competitiveness of the new GPL is laughable. Microsoft sets a high standard for anti-competitive activities, in my opinion. Also, people and organizations who want to live, play, and build systems in the LGPL/GPL infrastructure world should be allowed to do so - Microsoft's push here seems to be desiring to remove people's freedom to pick alternative (to Microsoft) development strategies. No big surprise.
I have some influence on my customers (I am a consultant) and I use this influence to convince them to go open source on more of their projects.
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Let's look at three scenarios:
Let's say you grant me a license to your software, and license it GPL. If I give or sell a copy to my competitor, I must give him the same chance to make changes that I had. How is that anti-competitive? It sounds like it levels the field, not the opposite. If I write software that does the same thing later, I have the choice to write it from scratch, to pay for libraries, or to release my sources and build on what you license
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Let's say you grant me a license to your software, and license it GPL. If I give or sell a copy to my competitor, I must give him the same chance to make changes that I had. How is that anti-competitive? It sounds like it levels the field, not the opposite.
The court that threw out Daniel Wallace lawsiut against the FSF more or less said the same thing:
[T]he GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.
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The big question becomes, I guess, whether there's some sort of problem with the fact that the FSF has partnered with all of these companies and acts as a hub of collusion for them.
As far as anti-competitive goes, though, Novell was competing in the ma
Re:Good rebuttal by Bruce Perens (Score:4, Informative)
Bruce
Most interesting part... (Score:2, Interesting)
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This started with a legal theory that Eben Moglen, FSF general counsel, gave at the FSF annual meeting. Someone should interview him on it.
Bruce
Res publica conservata est! (Score:1)
Well... (Score:1)
Thank you ACT! (Score:2)
Thanks ACT, for providing criticizim at such an early stage, providing an opportunity to review the GPLv3 before release. Thank you for the increased public attention.
Allowing the FSF to defend GPLv3 against FUD early in the game simply makes it less likely that people(customers) will be affected by FUD at a later date after GPLv3 has been deployed.
ACT is stupid.
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Wow, you're right!! We're dumb. We spend money to do a legal analysis of the GPLv3 to look at potential downfalls and then share it with the community during the comment period... when they can actually change it.
If we were just trying to spread FUD, that would be idiotic!!!
Perhaps you, Bruce and the rest of the community would be better served by reading, digesting and taking lessons from the actual content of our work we provided, rather than simply launch ad hominem attacks.
Just a thought, not a serm
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I am not a lawyer, go argue this with a lawyer, leave me alone. Charge me with anti-trust and you can talk to my lawyer. Otherwise stfu!
Key quote: (Score:3, Insightful)
We note that the draft of the GPLv3 does not tear down the bridge Microsoft and Novell have built for their customers. It is unfortunate, however, that the FSF is attempting to use the GPLv3 to prevent future collaboration among industry leaders to benefit customers..
I believe what Horacio Gutierrez really meant was: "It is unfortunate, however, that the FSF is attempting to use the GPLv3 ... to benefit customers..."
Because Horacio's argument just doesn't make sense. Typically, industry collaboration works to benefit the industry, not the consumer. In fact, I believe the boards of most corporations would consider collaboration among companies to reduce price and increase features (thereby reducing profit margins) to be a breach of fiduciary duty on the part of the CEO. I'm not aware of any company trying to decrease its profit margin, yet this is what Horacio suggests. In fact, I think it is just the opposite: industry collaboration tends to stifle new features, increase cost, and reduce the functionality and usability of software. The FSF is actually having a positive impact on the industry by virtue of its increasing competition. It is the classic example of how capitalism minimizes inefficiencies in markets - currently, the major proprietary software makers aren't very efficient at producing what the market wants. In comes the FSF, and solves the problem.
OT: Discussion about ODN (Score:2)
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Ok, who does project planning. Really. I would be interested in doing some coding for educational purposes, but I'm not sure that my efforts would meet the needs of the educational community. What we really need is for teachers to come together to tell us what they need, rather than scratching our own itch. The site is targetted primarily at programmers, not the end user right now.
But let's do some work on this. I have years of source code which for which the whole is less than the sum of the piece
Wow! (Score:1)
The idea that the GPLv3 is likely safe from litigation because one case against GPLv2 was laughed out of court is itself laughable.
Interesting twist (Score:5, Insightful)
The threat of being completely cut off from the ability to distribute GPL code can easily be seen as extreme and unfair for any company...
I believe even Microsoft is being forced to admit the power of free software.
Remember when Microsoft said Linux was irrelevant? When Balmer called it a toy?
Now it seems they are making the claim that free software developers must allow Novell to distribute their works, according to Novell's conditions, or suffer liability under a claim of tortious interference.
So it would seem that:
What is particularly galling about this position is that Microsoft's lawyers seem to be of the opinion that if someone stopped giving away their software - software upon which Microsoft has built a business relationship - that Microsoft can now sue the author, who received no money for his work, for damages.
Yes, this is our legal system at work. Where the refusal to give away software can get you sued.
I imagine by this reasoning, Microsoft could be sued for tortious influence the next time they raise the price of Vista.
Tortious interference (Score:2)
Read the Papers (Score:4, Interesting)
Re:Read the Papers (Score:4, Interesting)
I checked with Eben Moglen, general counsel of the Free Software foundation, before writing a rebuttal to the eWeek material. Moglen had seen your paper and did not consider it worth his time to respond.
I responded to your quotes in eWeek since they had already run in the press. I have no desire to propogate the rest of your material.
I think it would be helpful for you to debate your material with an attorney supporting GPL3, instead of me. Unfortunately, we have not yet found an attorney who sees sufficient merit in your work to find it interesting to engage you.
Bruce