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Re: Do I have to release the patch for a GPL software under GPL?

From: Gordon Burditt
Subject: Re: Do I have to release the patch for a GPL software under GPL?
Date: Fri, 12 May 2006 23:12:59 -0000

>> We are obviously not going to rip any opensource software, even the
>> GPL software we going to patch.
>You are obviously planning to do just that.
>> What we expect is only make our *tiny* patch under our
>> control. There is no anyone else code in the tiny patch.

Let us suppose that the patch to GPL-licensed software consists
entirely of the following (excluding the copyright notice on the
patch and the complex user-threatening license for the patch):

Obtain version of GNU GNU.
Edit file foo.c .
Delete line 287 and re-insert it after line 159.
Delete line 36.
Replace line 34 with the following line:
#define DRM_ENABLE 0
This patch could also be presented as an ed(1) script to do the
same thing.  Note that there is no code from the original contained
in the patch.

Now, I, Evil Bill Fence Door, copyright this patch, sell it with
onerous copy protection, and for $1,000,000 a copy.  The license
that comes with it prohibits re-distribution of the patch.  Note
that I'm *not* re-distributing any GPL-licensed software.  It's up
to the customer to get it himself.

Sorry, FSF, there's nothing you can do about this.  I don't need a
license from you to distribute the patch.  It's not derived [hint:
this is a term defined specifically for copyright law] from your
software, so I don't need your license.  The fact that the patch
is useless without GPL software is irrelevant - that's not the way
copyright law works.  Gas engines are useless without gas, but that
doesn't mean I need a license from an oil company to sell engines.

Now, what about the customer?  He gets the patch, he gets a copy of
GPL-licensed GNU GNU, and he applies the patch.  According to the
GPL, the customer is allowed to do this if he doesn't distribute
the modified copy.  Evil Bill Fence Door doesn't want you to distribute
the patch or the modified copy created with the patch either.

Now, what about the customer distributing the patched version?  Is
the patched version a derivative of the original GPL-licensed
software?  Almost certainly yes.  Is the patched version a derivative
of the patch?  Good question, since only one line from the patch
appears in the modified version.  I'm not a lawyer.  If the answer
is YES, the customer can't distribute the modified version because
of Evil Bill Fence Door's license.  If the answer is NO, Evil Bill
Fence Door's license doesn't apply, but how about the GPL?  Now,
can the customer distribute the *modified version*, but not Evil
Bill's patch used to create it, and satisfy the GPL?  I think the
answer is yes.  Evil Bill won't like that.  But the customer still
can't distribute Evil Bill's patch.

>Your "tiny patch" serves no purpose without the GPLed software, so you
>effectively add the GPLed software into a proprietary offering against
>the explicit wishes and the license you have been granted.

That isn't true if I don't distribute GPLed software.

>I repeat: if you don't want to heed the conditions of the GPLed
>software, contact the original author and offer to pay him for a
>license to use his software under different terms and conditions.

If I can write the patch in such a way that it does not include code
from what I'm trying to patch, I don't have to do that.  For most
patches, I don't think that's practical or possible.  For some it
might be.

>> We do not want to restrict the redistribute of the original GPL
>> software, it's not our business.  What we want to do is to put the
>> restriction of redistribution on the tiny patch we created.
>You plan to restrict the redistribution of a variant of the original
>GPL software.  The license does not permit that.  Negotiate a
>different license.  You can't just ignore the license and make up your
>own terms.

I can ignore the license if what I am distributing is not a (modified
or unmodified) copy of something covered by the license.

                                                Gordon L. Burditt

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