Re: EASTERBROOK's "quick look" on the GPL and Wallace's claim

[Alexander Terekhov]

LOL.

http://lwn.net/Articles/208617/
(GPL survives antitrust challenge - again)

Subscriber bojan:

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Ruling is here:

http://www.internetcases.com/library/cases/2006-11-09_wal...

If I didn't know better, I'd say this was written by someone from FSF :-)
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Subscriber louie:

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If it was written by FSF, it wouldn't say in the first (second? I don't 
recall) paragraph that the GPL prevents selling the software for money ;) 
But yeah, well written. Worth noting that the judge is well respected (if 
not always well liked) and has been discussed as a potential Supreme 
Court nominee.
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Subscriber bojan:

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Clearly, he means "sale of licence for the derivative work", as it is 
mentioned in the context of copyright law. Not a physical copy of the 
software. The "limiting reproduction in order to collect a fee" is 
copyright royalty here, which GPL doesn't allow.
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Subscriber louie:

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No, what I was referring to was this, in the first paragraph:

    "Authors who distribute their works under this license... authorize 
     not only copying but also the creation of derivative works—and the 
     license prohibits charging for the derivative work." 

Emphasis mine; GPL analysis Easterbrook's and clearly not FSF's :)
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Subscriber dododge:

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> If I didn't know better, I'd say this was written by someone from FSF :-)

Easily disproven by the use of the term "Linux operating system" on page 2 :-) 
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Subscriber jstAusr:
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(from the GNU GPL faq):
Does the GPL allow me to sell copies of the program for money?

Yes, the GPL allows everyone to do this. The right to sell copies is part 
of the definition of free software. Except in one special situation, there 
is no limit on what price you can charge. (The one exception is the 
required written offer to provide source code that must accompany binary-
only release.)

And just to comment on the court order:

>From the court order:

Thus the GPL propagates from user to user and revision to revision:
neither the original author, nor any creator of a revised or improved
version may charge for the software or allow any successor to charge.
Copyright law, usually the basis of limiting reproduction in order to
collect a fee, ensures that open-source software remains free: any
attempt to sell a derivative work will violate the copyright laws,
even if the improver has not accepted the GPL. The Free Software
Foundation calls the result "copyleft."

I don't think that is framed correctly at all, because:

1. The original author can do whatever they want including but not limited 
to; dual licensing the work or charging whatever they want or assigning 
their copyright to someone else. I'm including more than what the court is 
addressing but still...

2. The successors have the same rights as the original author except that 
the succesors don't have copyright to the prior authors work so, they can't 
change the licensing terms of the work. The GNU GPL allows anyone to 
"charge" but they can't restrict the distribution rights of the successors.

3. "any attempt to sell a derivative work will violate the copyright laws,
even if the improver has not accepted the GPL." The word "even" should be 
removed from that statement. And, "improver" may apply but, is not really 
inclusive enough.

4. The description is inconsistant with what the Free Software Foundation 
describes as "copyleft".

5. The Court's statements work correctly within the scope of the ruling, 
but I hope they aren't taken literally in future case law.
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Subscriber bojan:

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> 1. The original author can do whatever they want including but not 
> limited to; dual licensing the work or charging whatever they want or 
> assigning their copyright to someone else.

But the judge's statement refers to the work already licensed under the 
GPL. For that, original author cannot change the terms later. You can 
only lose the licence if you breach it.

> 2. [..snip..] The GNU GPL allows anyone to "charge" but they can't 
> restrict the distribution rights of the successors.

On the contrary, nobody is allowed to charge royalties - which is what 
the judge is talking about. This gives it away, without much 
"interpretation":

> Copyright law, usually the basis of limiting reproduction in order to 
> collect a fee, [..snip..]

That's collection of royalties, an activity prohibited by GPL.

Everyone is allowed to charge only for physical copies, something this 
ruling explicitly mentions a bit later on:

> The GPL covers only the software; people are free to charge for the 
> physical media on which it comes and for assistance in making it work.

In other words, the judge isn't talking about charging for anything but 
royalties in the text you quoted and that's not permitted per GPL.

> 3. [..snip..] The word "even" should be removed from that statement.

I don't see why. If the improver accepted the licence, no royalties can 
apply, as per GPL. If the improver didn't accept the licence, then it 
has no permission to distribute at all, so no royalties can apply again. 
So, "even" appears to work just fine.

We should give the judge a bit more credit, I think.
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Subscriber MathFox:

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I like it where the judge says (on page 5):

    Intellectual property can be used without being used up; the marginal 
    cost of an additional user is zero [...] so once a piece of 
    intellectual property exists the efficient price of an extra copy is 
    zero, for that is where price equals marginal cost. 

That is the fundamental economic argument behind Open Source and Creative 
Commons. Thanks to the Internet, distribution has become so cheap that 
setting a price for a creative work causes more trouble than it's worth 
for most cretive people.
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Oh poor EASTERBROOK. LOL.

regards,
alexander.