Re: [Gnu-arch-users] re: licensing question

[Andrew Suffield]

On Mon, Mar 20, 2006 at 10:50:02AM -0800, Thomas Lord wrote:
> I think you are wrong about clients being able to give up their 
> rights so casually (see, e.g., GPL FAQ on the topic of trade 
> secret restrictions) but that is secondary:  the provider has
> no right to pass along a GPLed work under any terms other than
> the GPL, which permits copying and installing.

Well, I suppose it might be possible to violate the GPL in that way,
but I'm going to assume that this isn't *exactly* what Redhat are
doing - from my brief analysis, it doesn't appear to be.

I believe that what they are doing is providing you with a copy of the
software under the full terms of the GPL, and you can do whatever you
want with that.

At the same time, they are offering you the option of entering into a
support contract which then restricts some of those rights.

The distinction between this and the 'trade secret' case is that you
have the option of taking the software but refusing the support
contract. Now, Redhat *do* limit access to most of their servers to
the people who accepted the support contract... but they still offer
the software in a 'reasonable' form to those who don't take the
contract. The two offerings are effectively independent, which is
legally significant - Redhat are not considered to be imposing
restrictions because the client must accept those restrictions
of their own volition.

So their clients are giving up some of their GPL rights in exchange
for an unrelated contract. The GPL does not (and, if my limited
understanding of contract law is correct, *can* not) prevent them from
doing this.

Now, you could make an argument in court that the support contract is
not actually optional - in effect, that the software is of no use
without it - and approach a GPL violation that way. I think you could
even build a plausible legal argument to support this idea. But
personally I wouldn't be betting on you winning it. I think it would
be a long shot.

> Of course, selling support separate from distributions doesn't magically
> grant the support provider the right to restrict my use of GPLed
> software.  They are free to support *covered uses* while refusing to
> support *uncovered uses* but not free to prohibit uncovered uses which
> are otherwise permitted by law.

If they were prohibiting them then you would have a case for unfair
contract terms, and would stand a good chance of getting that clause
struck down.

But actually Redhat are just varying the fee for their service based
on some other factors about what you've been doing. This is legal
primarily because the insurance companies want it to be legal. Even if
you don't want it, they have the money. And their argument makes a
kind of sense. Somebody who installs 500 copies of Redhat is probably
going to be a heavier support burden than somebody who only installs
one copy, even if they both only have one *supported* system. So the
courts allow this sort of thing.