Re: GPL and other licences

[Alexander Terekhov]

David Kastrup wrote:
[...]
> That must be why we have all those copyright violation lawsuits going
> on.

"We" don't have any lawsuits. You (gnu.org folk), on the other hand,
have a nice lawsuit from Wallace. Kudos to him for calling the bluff
and achieving pretty good results already. For example,

http://www.terekhov.de/Wallace_v_FSF_37.pdf

Breaking news. FSF says that the contract controls. 

<quote>

Plaintiff's mischaracterization of the GPL in his Response has no
bearing on the resolution of the pending Motion to Dismiss because 
the Court can examine the GPL itself. "[T]o the extent that the 
terms of an attached contract conflict with the allegations of the 
complaint, the contract controls."

</quote>

Reactions:

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Re: FSF says that the contract controls
by: day5done    01/27/06 04:38 pm
 
The lawyers for the FSF must'a been smokin' the good stuff from 
Merkey's stash.

Everyone who is neither blind nor an idiot knows for certain that 
the GPL is a *LICENSE NOT A CONTRACT* -- Richard Stallman has 
clarified that fact at least a hundred times.

Dollar to a dime Eben Moglen fires the lame asses over at the ICE 
MILLER law firm real soon. 
-----

-----
Re: FSF says that the contract controls
by: day5done

>> I'm sure there would be people willing to take you up on that bet
if they thought you'd actually pay. <<

If Moglen doesn't fire them he has some serious explaining to do to
thousands of people on why he misled programmers and companies on the
legal nature of the GPL -- he is, after all, a Professor of Law and
lead counsel for the FSF.

"This right to exclude implies an equally large power to license--that
is, to grant permission to do what would otherwise be forbidden.
Licenses are not contracts: the work's user is obliged to remain
within the bounds of the license not because she voluntarily promised,
but because she doesn't have any right to act at all except as the
license permits."

http://emoglen.law.columbia.edu/publications/lu-12.html

Since the GPL is now proclaimed a contract, its terms are subject to
interpretation under the common law of *fifty* different state
jurisdictions -- there is no "federal common law".

That fact is a real can of worms in its own right. Most states have
their own restraint of trade laws. Linux may face fifty different
Wallace's in fifty different states.

If Wallace lost in Federal Court he could still sue under Indiana law:

IC 24-1-2-1 Illegal combinations; exceptions; offense; defense Sec. 1.
Every scheme, 
contract, or combination in restraint of trade or commerce, ...
-----

Furthermore,

-----
GPL Hollaaring
by: walter_oak_night    01/27/06 03:04 pm
 
ICE on automatic aggregation of software copyrights
In fact, the GPL itself rejects any automatic aggregation of software
copyrights under the GPL simply because one program licensed under the
GPL is distributed together with another program that is not licensed
under the GPL: "In addition, mere aggregation of another work not based
on the Program with the Program (or with a work based on the Program) on
a volume of a storage or distribution medium does not bring the other
work under the scope of this License."

Linux kernel v. application
And as the copyright notice in the kernel sources says, user
applications are not subject to the GPL.

Supported by Hollaar:
With dynamically-linked libraries, the application program being
distributed is no longer a compilation that includes the library.
Because the library is not being distributed with the application
program, no permission is needed from the copyright owner of the library
for the distribution to users. Users must, of course, be authorized to
use the library, but if they are owners of a copy of the library, under
Section 117 they can make any adaptations of the library necessary to
use it with the application program.

FSF GPL FAQ
I'd like to modify GPL-covered programs and link them with the
portability libraries from Money Guzzler Inc. I cannot distribute the
source code for these libraries, so any user who wanted to change these
versions would have to obtained those libraries separately. Why doesn't
the GPL permit this? ….
http://www.gnu.org/licenses/gpl-faq.html#MoneyGuzzlerInc

FAQ as Fact
In 2002, a company named Global Technologies Ltd (now defunct) had
ported some 4.5M lines of GPL/BSD and other open source code to Windows
using AT&T Uwin. They claimed less than 500 lines had to be changed and
all changes went back to original authors. The binaries were distributed
from their web site, but one day disappeared. My $50.00 check for a CD
distribution of the binaries and source, which indicated $25 gift to
FSF, was returned with a letter explaining Moglan threatened legal
action for violating the GPL because the code was linked with AT&T
uwin’s proprietary posix.dll that provided the POSIX interface on
windows.

Hollaar disagress
Some have claimed that an application program that needs a library for
its operation is a derivative work of that library. They take that
position because the application program is “based on” the library
because it was written to use the subroutines and other aspects of the
library. Such a position is misplaced....
No other conclusion makes sense. If it were not the case, then any
program using the applications program interfaces (APIs) of an operating
system could be considered a derivative work of that operating system.
And, under the exclusive right to prepare derivative works, the
copyright owner of an operating system such as Microsoft Windows could
control who was allowed to write programs for that operating system.

What was that automatic rejection again?
-----

-----
Re: GPL Hollaaring FAQ or Fiction
by: walter_oak_night    01/27/06 03:56 pm
 
Moglen got on the phone, resulting in both of the attorneys backing out
of publicly discussing a moot court argument involving a scenario
wherein a company used GPL software with a dynamically linked library,
and wherein an issue would have been whether the DLL was then subsumed
under the GPL.

Darn. Would have been interesting.

Beyond the Basics: Advanced Legal Topics in Open Source and
Collaborative Development in the Global Marketplace

When: Tuesday, March 21, 2006, 8:30 a.m. - 5:30 p.m.

http://www.law.washington.edu/lct/Events/FOSS/

Appellate Argument Moot: The Scope of Derivative Works under an Open
Source Software License

Respected FOSS experts will argue the proper scope of a “derivative
work” under U.S. copyright law, as applied to reuse of software source
code, before a distinguished panel of federal appeals court judges:

* Honorable William C. Bryson, U.S. Court of Appeals for the Federal
Circuit
* Honorable Haldane Robert Mayer, U.S. Court of Appeals for the Federal
Circuit
* Honorable Margaret McKeown, U.S. Court of Appeals for the Ninth
Circuit

This simulated appellate argument will permit some of the most difficult
issues facing practitioners to be debated fully and vigorously. The oral
argument will be preceded by an optional one-hour analysis of the legal
and technical issues raised in the hypothetical fact pattern.
-----

And finally,

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Re: Icing on the GPL
by: day5done

Wallace used the term "intellectual property" seventeen times in his
Answer brief. He is complaining about the price fixing of *intellectual 
property* (that is to say licensing of exclusive rights in copyrights 
and patents).

The FSF states:
"…The GPL expressly allows a fee to recover the variable or
incremental costs associated with distributing software licensed under
the GPL: "You may charge a fee for the physical act of transferring a
copy." (GPL 1.).

See the "…fee for the physical act of transferring …"?

This fee for transfer has nothing whatsoever to do with the allegation
of price fixing of "intellectual property". Neither do charges for
service and support. The FSF is confusing the intangible copyright
with the tangible physical embodiment of a copyrighted work.

§ 202. Ownership of copyright as distinct from ownership of material
object Ownership of a copyright, or of any of the exclusive rights
under a copyright, is distinct from ownership of any material object
in which the work is embodied. Transfer of ownership of any material
object, including the copy or phonorecord in which the work is first
fixed, does not of itself convey any rights in the copyrighted work
embodied in the object; nor, in the absence of an agreement, does
transfer of ownership of a copyright or of any exclusive rights under
a copyright convey property rights in any material object.
-----

regards,
alexander.