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Re: The GPL dream is finally over!

From: Rex Ballard
Subject: Re: The GPL dream is finally over!
Date: Sat, 16 Aug 2008 12:34:12 -0700 (PDT)
User-agent: G2/1.0

On Aug 16, 4:31 pm, Linonut <lino...@bollsouth.nut> wrote:
> * Rjack peremptorily fired off this memo:
> > My dream is that Eben, RMS, and all GPL true believers read and
> > understand this decision so that we need never again hear the
> > nonsense claim that "The GPL is a license and not a contract".

Technically, a contract has conditions for termination.  There is a
point at which
the contract is satisfied and there terms no longer need to be

A Copyright license is very much LIKE a contract, and it is as legally
binding as a contract, however, there aren't a set of conditions that
fulfill the contract at which point it is no longer necessary to honor
the terms and conditions of the license.

Nullification of copyright license would cause a HUGE problem for all
copyright holders, because it would create chaos and confusion over
what could and could not make a license valid.  Microsoft's control
over it's copyrights could have been destroyed by the ruling as it
stood.  The same law that makes it possible for Microsoft to publish
source code and maintain control of that code under the terms of a
copyright license, or even binary code under the control of a license,
is the same law that gives Richard Stallman the right to control the
use of his code through his copyright license.  The consideration that
makes the license legally binding is the use of the copyrighted work.
The exchange of cash is secondary.  That is merely another condition
of the license.

The key difference between a license and a contract is that no
ownership is transferred to the licensee.  This is not a purchase, or
a transfer of title, where the legal obligation ends once the terms of
the contract have been satisfied.  A license remains legally binding
so long as the license is in force.  If the license is revoked or
terminated, the right to use the copyrighted work is terminated with
it.  The license can remain in force until the copyright expires or
until it is terminated by one or both parties.

It's very similar to the terms of a driver's license, or a radio
license, or any government issued license.  Your grant of the license
is contingent on your willingness to abide by the terms of that
license.  If you violate the terms of that license, the license can be

Keep in mind that the judge in the district court made no attempt to
nullify the validity of the license itself, but instead attempted to
claim that the terms of the license was unclear.  Ironically, this
also would have been an unacceptable threat to copyright holders,
since the GNU license is probably one of the simpler licenses.  The
law assumes that you are old enough to commit to a legal agreement,
and that you are responsible for understanding the terms of the
license.  If you are not sure you understand the terms of a license,
you should get a competent attorney to explain the full consequences
of the license agreement.

The "flip side" of a license is that it can be terminated at any
time.  If you stop using the software and remove any copies, then you
are no longer bound by the terms of the license.  In theory, even the
nondisclosure terms is restricted to your use of copies of the
software.  Anything that you remember residually once you have
destroyed or returned the originals is probably not covered by the
agreement since you've terminated it.

> >

\> The good faith usage of the GPL has been going on for a couple
> now, and has resulted in a large body of software being available to
> millions of people.

That's correct. The first drafts of the GPL were drafted in 1984, by a
number of subscribers to the newsgroup.  I was one of about
50 involved in the discussion and played a minor role.  Since I was a
corporate employee and this was personal interest, I asked that my
name NOT be included in the credits.  It was originally called the
General Public License, but with the creation of the GNU project, the
name was changed to the GNU Public License.

>  A conflict with business was inevitable, but, in
> the highest-profile case so far, IBM vs SCO, the plaintiff kind of let
> the GPL angle drop.

Actually, the conflict started, and ended, about 22 years ago, with
the GNU project.  Many of the original authors of BSD code had seen
their cold transferred to AT&T with no consideration from AT&T.  Many
of those early contributors contributed their source code to GNU out
of spite for AT&T.  The irony is that the GNU code began to quickly
evolve and many people contributed to the GNU code, and refused to
license their enhancements to AT&T for resale in their proprietary

Many of the early contributors to Linux had been working on the HURD
project, and when Linus contributed his little kernel under the terms
of the GPL, claiming that his 10,000 lines of code were all original
code, it was more than enough to cause many GNU developers to start
adding enhancements to the Linux kernel.  And to the frustration of
many UNIX vendors, they refused to publish these enhancements under
more permissive licenses such as the BSD license.  This is one of the
reasons why Linux has better driver and hardware support, as well as
numerous performance enhancements to the kernel.

The fundamental flaw in the SCO case was that McBride asserted that
EVERY line of UNIX could ONLY have originated from AT&T or Xenix
source code, and that it could ONLY have originated from the
proprietary licensed version of the AT&T Kernel.

McBride deliberately chose to withhold most of the history of UNIX, or
perhaps he didn't know it.  Prior to proprietary versions of Linux
AT&T had published several "unlicensed" (Pre-1976) versions of UNIX,
and had contributed them to universities and colleges for "educational
purposes" with no restrictions on the use (because at the time,
copyright law did not cover code compiled from copyrighted source
code.).  The last of these "unrestricted" versions was AT&T Version 6,
which was copyrighted in 1976.  AT&T was not allowed to "Sell" UNIX
until after divestature in 1983.  Their first product, AT&T System III
was so lacking in features compared to BSD 2.4 or BSD 4.0 that AT&T
eventually negotiated a license for BSD UNIX from the University of
Berkeley and released the merged code as AT&T System V.  Released
System Vr4 was the merge of all of the BSD 4.2 libraries, APIs, and
applications, including Curses, VI, Sockets, and several other BSD
specific features and applications.

The Irony is that by not asserting the role of BSD, SCO violated the
terms of the BSD license itself.  In theory, anyone who contributed
BSD source in the 1980s or 1990s could revoke SCO's right to use that
code, since SCO attempted to claim ownership of code that had been
licensed to them on the terms that required them to acknowledge the
original authors and BSD.

Other licenses violated by SCO included the licenses to X11, GNU, and
Athena, including SGML, HTML, and XML.

The irony is that most of the code that IBM did not request to have
dismissed, was code that was created, owned, or funded by IBM
(Including Athena and X11).

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