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Viral GPL Misconceptions Elegantly Explained 527

Posted by simoniker from the outbreak-of-gnu dept.
Scot W. Stevenson writes "Our favorite paralegal Pamela Jones of Groklaw has put together a short FUD-killer on the General Public License that explains why you can't lose your proprietary code if you inadvertently incorporate GPL code. This is not the only text of its kind, but it is so well explained that you might want to bookmark the page for future reference."
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Viral GPL Misconceptions Elegantly Explained More

Viral GPL Misconceptions Elegantly Explained

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  • Main GPL Misconceptions (Score:3, Insightful)

    by Anonymous Coward on Monday December 15, 2003 @05:11PM (#7728207)
    It has been proven valid in a court of law.

    Not yet, it hasn't. this may change soon, but as of now... Remember that it was written by an OSS hippy, not a lawyer. Sure, lawyers suck, etc etc, but they do know how to write a document so it won't be destroyed by another lawyer. This is similar to the fact that a lawyer may learn to write code, but ti will be inferior to that of a trained developer.

    It only grants rights, it doesn't take them away

    Well, no. You can reuse teh software as you see fit, sort of. BSD licensing is much superior in this aspect.

    • Re:Main GPL Misconceptions (Score:5, Insightful)

      by Bombcar ( 16057 ) <racbmob@@@bombcar...com> on Monday December 15, 2003 @05:15PM (#7728247) Homepage Journal
      Well, no. You can reuse teh software as you see fit, sort of. BSD licensing is much superior in this aspect.

      Well, yes. It only grants rights. It might not grant as many as BSD does, but it takes away no right granted by the copyright laws of the Berne convention.

    • Remember that it was written by an OSS hippy, not a lawyer.

      I've never heard Eben Moglen called a hippy before, interesting perspective you have there, but I'm afraid he's definitely a lawyer.

      • Re:Main GPL Misconceptions (Score:3, Informative)

        by Anonymous Coward
        Moglen didn't write the GPL. Stallman did, but had it reviewed by lawyers (this was before Moglen joined FSF).

    • Re:Main GPL Misconceptions (Score:5, Insightful)

      by shemnon ( 77367 ) on Monday December 15, 2003 @05:22PM (#7728299) Journal
      Well, yes.

      Without the license you have no right whatsover to use or distribute the code that would be covered by the GPL (assuming no other license has been applied). The GPL grants you the right to re-use in a limited fashion, but without the GPL you would have no right, so it is truely additive and a grant, just not the grant you want. If a piece of code wasn't licensed in any way you wouldn't be able to use it unless you wrote it.

      However, I agree on the philosophical subtext. The BSD license does grant the developer more liberty to use the code in any fashion they choose, including later restricting rights if they so choose. The GPL does not grant as much liberty, so BSD is more free (as in speech) than the GPL, since you can modify the free (as in beer) status of the code with BSD, whereas you cannot with the GPL.

      It is ironic that the GPL, which really rattels the libery saber, is out libertied by the BSD licences, which generally do no such saber ratteling.

      • Re:Main GPL Misconceptions (Score:5, Interesting)

        by Hrothgar The Great ( 36761 ) on Monday December 15, 2003 @05:36PM (#7728434) Journal
        The GPL is tied up with Stallman's and the FSF's free software philosophy. I'm not saying that there's anything wrong with that; just providing a possible explanation for the irony you mentioned. The GPL is designed around the idea that all software should be open source, and it does seem intended to cause more people to release more source code as time goes on. It also really seems to be effective in accomplishing this goal.

        Though to tell you the truth, I never got the whole "free as in beer" thing. Beer is expensive, damn it, and when I use it up, it's all gone and I get a hangover.

      • You're confused about who the GPL gives freedom to (Score:3, Insightful)

        by Anonymous Coward
        The GPL is not about giving freedom to developers, it's about giving freedom to end users. The BSD license is about giving freedom to developers, including the freedom to screw their end users. The GPL guarantees the end user of a piece of software that they have control over the software that is running on their machines, no matter who modifies that software.

        Even though I'm a developer, I still prefer the GPL out of respect for my customers.
      • If a piece of code wasn't licensed in any way you wouldn't be able to use it unless you wrote it.


        Not true [cornell.edu]. You have the right to run software without a license from the copyright holder. ("Copying" the software to RAM is pretty clearly an "essential step").

        • Your example supposes that one is copying into RAM software which one has a legal right to use. (You can't say "Your Honor, Title 17 says it's legal for me to load my pirated copy of Microsoft Office into RAM". When the law says "owner of a copy of a computer program" it means someone who possesses that copy legally). You can only use the software legally under the provisions of the license under which it is offered for sale or rent or whatever. You can only do that if there is a license.
      • The BSD license does grant the developer more liberty to use the code in any fashion they choose, including later restricting rights if they so choose. (Emphasis added.)

        Exactly. The BSD may grant the first generation recipient more rights, at the potential cost of such to all subsequent generations of recipient. The point of the GPL is to guarantee liberties to all subsequent generations of recipient.

        So to short-term thinkers, the BSD appears "freer", but in long-term reality the GPL is.

        • Re:Main GPL Misconceptions (Score:4, Interesting)

          by shemnon ( 77367 ) on Monday December 15, 2003 @09:07PM (#7730431) Journal
          but in long term reality GPL is freer? I disagree. For the rest of eternity the code you use under a GPL license you do not have title to will forever contain the restriction that it must be available under the terms of the GPL (actually it's not eternity, but it is until the respective Copyright Acts declares that the copyrighted work is now in the public domain. And with all the Mickey Mouseing going on with Copyright Law it basically is eternity, but I digress). When you use BSD code you can choose to licence the derivitive work under the GPL, which is to choose to continue the chain of life with fewer licensing rights than were previously had from where you got the software. It is a hastey generalization to say that the only thing you can do with BSD software is to make it proprietary. A presumption that is entirely wrong.

          However, real questions of liberty are asked about the rights on has in the immediate time frame, not the possible freedom in the future that people may or may not have. You may dismiss it as "short term thinking" but the only real and substantial rights are the ones that can be exercised in the present. Ask a prisioner who will be released in 100 years, 100 days, or even an hour. They do not have the same liberty as a free citizen. What rights they may have in the future are irrelevant because at any moment they could be shanked and bleed to death.

          But what you dismiss is the right of someone who is using BSD licences code to re-relase a derivitive work under the GPL just as freely as they can place it under a lock and key, so the BSD code in reality has the same potential "freedom" in the future as GPL code because the user can choose to place it under such a license, they merely are under no requirement too. But the option, nonetheless, exists. The user of the GPL, however, cannot place GPL code (or LGPL code) udner a BSD style license. Their liberty is restricted at the present time while the user of the BSD code can do everything that the user of the GPL can do *and*then*some*. So the rights of liberty that a user of BSD code are truly a super set of the rights the user of GPL code has, includeing the possibility to restrict future uses to share alike copyrights of the GPL code.

          In guaranteeing the liberties of subsquent generations of recipt the GPL actually prohibits liberties to the most immediate recipient of the GPLed work. It is a liberty that when prphibited in the manner that the GNU licenses do that will never be grantable.
          • When you use BSD code you can choose to licence the derivitive work under the GPL, which is to choose to continue the chain of life with fewer licensing rights than were previously had from where you got the software. It is a hastey generalization to say that the only thing you can do with BSD software is to make it proprietary. A presumption that is entirely wrong.

            Funny, I don't recall making, much less expressing, such a presumption. However, the original author of the code (the one who chooses the lic
      • The BSD license does grant the developer more liberty to use the code in any fashion they choose, including later restricting rights if they so choose. The GPL does not grant as much liberty, so BSD is more free (as in speech) than the GPL, since you can modify the free (as in beer) status of the code with BSD, whereas you cannot with the GPL.

        In other words, the BSD license grants more liberty to the developer at the expense of potentially taking some liberty away from users further down the line, whereas

    • Re:Main GPL Misconceptions (Score:4, Interesting)

      by Medievalist ( 16032 ) on Monday December 15, 2003 @05:23PM (#7728306)
      Sure, lawyers suck, etc etc, but they do know how to write a document so it won't be destroyed by another lawyer
      If only this were true!

      However, here in reality, whoever has the most money is most likely to win the court case. And lawyers write absolute trash all the time.

      Our lawyer wrote a contract that stipulated we would deliver all data "instantaneously". And could not understand why that was a problem!

    • Re:Main GPL Misconceptions (Score:5, Informative)

      by Our Man In Redmond ( 63094 ) on Monday December 15, 2003 @05:25PM (#7728322)
      Remember that it was written by an OSS hippy, not a lawyer.

      Bzzzzzt! Wrong. It was written by Eben Moglen, professor of law and legal history at Columbia University. I have no idea whether he is a hippy (although I would tend to doubt it), but I have little doubt that he's a lawyer.

      It only grants rights, it doesn't take them away

      Well, no.

      Well, yes. Read the GPL. It grants you rights to do things that otherwise you could not do under copyright law. If you can't do things with the software, it's because copyright law won't let you do them, not because the license itself won't.

    • No.. you misunderstand (Score:5, Informative)

      by mindstrm ( 20013 ) on Monday December 15, 2003 @05:26PM (#7728328)
      Did you read the article?

      The GPL is not some weird contract, some new experiment in copyright law interpretation that requries a test in court.. it is a straightforward license (which is different from a contract). it is, in fact, very clearly a license, not a contract.

      It DOES NOT take away any rights: Copyright allows you certain things by default. The GPL grants you other rights IN ADDITION to those allowed under copyright law, under certain conditions.

      There is nothing to test in court (any more than any license needs to be tested in court).

      We are not talking about freedom here.. or the relative freedom of various licenses..

      As people keep saying, it's very, very simple. If the GPL is not valid... then show how you had permission to create a derived work from MY code. Plain and simple. Either you had no license to do so, in which copyright law applies, and what you did was illegal, or you have the GPL, which says you can do this, within limits.

      • Re:No.. you misunderstand (Score:3, Funny)

        by Anonymous Coward
        Did you read the article?

        Is this a trick question or something? How was I going to get an obvious troll high enough for people to read if I actually took the time to read the article?

        I mean, duh.
    • "...but they do know how to write a document so it won't be destroyed by another lawyer."

      As you said, the GPL hasn't yet been destroyed by another lawyer. The article gives a very eloquent reason why the GPL is difficult to destroy. If a software developer improperly includes GPLed software, either the developer says "The GPL gave me permission to include the software" or the developer says "The GPL is invalid". The first case leads to no problem with the GPL, whereas the second case leaves the developer

  • yes!! (Score:5, Informative)

    by sujan ( 464326 ) on Monday December 15, 2003 @05:13PM (#7728227)
    The GPL states a single, specific requirement, above all else: that if you create a software program that is a derived work of another software program, then that combined work must be distributed under these terms, no more, no less. Making a derivative work of a software program IS NOT SOMETHING THAT CAN HAPPEN BY ACCIDENT. You, the hypothetical developer of the derived work, receive the program accompanied by its unambiguous terms of use, and IT IS YOUR RESPONSIBILITY TO READ AND FULLY UNDERSTAND THOSE TERMS. If you do not, then that is your fault, and ignorance of the law does not excuse its transgression.

    You therefore have a choice. You can use works distributed under the GPL to create your own software and license that under the GPL, or you can NOT USE the GPL software and use any license you want. If the GPL were infectious, then you would have no such choice; since you do have a choice it is clearly not infectious in this regard.

    Also remember that the GPL clearly states your rights with respect to parts of a program you write: that the GPL only applies to the combined work as a whole. You retain all rights to do whatever you want with the parts of the program you wrote. Furthermore, if a developer combines a GPL'd program X with a proprietary program Y of which he is not the owner, then the combination does not, and cannot legally affect how Y is licensed. All that happens in this situation is that the developer will be unable to satisfy the conditions of the GPL and the proprietary license at the same time, making any release of the software -- however licensed -- in breach of copyright law. Copyright law is pretty clear on the notion that the owner of a copyrighted work has the sole ability to set the terms of use of his copyright.

    • Re:yes!! (Score:2, Insightful)

      by kwerle ( 39371 )
      Making a derivative work of a software program IS NOT SOMETHING THAT CAN HAPPEN BY ACCIDENT.

      Sure it is. If there is a library available on a system that I use, and I link to that library, it is VERY possible for that to happen without me realizing that library is GPL'd. If I tried to then sell my work, I would also have to release my source.

      That has not happened to me, but it is pretty easy for me to imagine.

      GPL code owners have been pretty good about allowing accidental users of GPL code to back out

      • Re:yes!! (Score:5, Informative)

        by cduffy ( 652 ) <charles+slashdot@dyfis.net> on Monday December 15, 2003 @05:34PM (#7728417)
        GPL code owners have been pretty good about allowing accidental users of GPL code to back out things like that, however (replacing the library with a proprietary one, etc).

        And if you'd read the article, you'd know that this isn't by accident.

        Forcing compliance with a license isn't an available remedy for copyright violation. Period. Hence, a court will never force someone to release their application's code. That court *may* impose monitary damages, attourney's fees, or stop further distribution of the work until the infringing portion is removed -- but it will never require code to be released.

        • Re:But, what about... (Score:5, Interesting)

          by cayenne8 ( 626475 ) on Monday December 15, 2003 @06:24PM (#7728918) Homepage Journal
          What if you put an application together using Open Source tools. Let's say your application uses Linux as the OS, and PostgreSQL as the database.

          Now, would the database schema/design now be GPL or would it be proprietary? It isn't compiled or linked to any 'librarys'. It is just instantiated into a physical instance. So, it should not be GPL'ed should it? What about a bunch of PHP scripts you run on Apache...those aren't GPL'ed are they?

          • Re:But, what about... (Score:4, Informative)

            by stwrtpj ( 518864 ) on Monday December 15, 2003 @06:38PM (#7729071) Journal
            What if you put an application together using Open Source tools. Let's say your application uses Linux as the OS, and PostgreSQL as the database.

            You don't need to go any further. The answer is no, the software you develop by merely using the tools does not make your software GPL. Mere use of the GPL'ed program does not make your software GPL.

            For example, if I decide to develop, say, a game to run under Linux, using gcc to compile it, XFree libraries to render graphics, and the GIMP to create the graphical images, I can still choose to release that game under any license I choose.

            Now, would the database schema/design now be GPL or would it be proprietary? It isn't compiled or linked to any 'librarys'. It is just instantiated into a physical instance. So, it should not be GPL'ed should it? What about a bunch of PHP scripts you run on Apache...those aren't GPL'ed are they?

            In all of these cases, you are simply using the program or library in question. That does not make it a derivative work. In my example above, there are several libraries that I may link to that are GPL. Linking does not constitute a derivative work, it constitutes merely using the library. Now, if I purposely built an extension to that library, actually recompiled the library with my new code, then in that case, yes, my code would have to be GPL as well.

          • There are many other OS licenses besides the GPL. If you run on Linux, likely the minimum you are doing is connecting to the kernel via system calls (either you rolled your own routines, or linked with libc). Linus has stated that this not covered by the GPL on the kernel and glibc is available under an LGPL license that explicitly allows such linking. Apache and PostgreSQL are not covered by the GPL, but by a BSD style license. Connect away...

            The most interesting grey area for me is when you have a p

      • Re:yes!! (Score:3, Insightful)

        by mapMonkey ( 207912 )
        I would also have to release my source.

        This is one assumption that the article attempts to reconcile. You would not be obligated to release your source. You would have a choice to make: you could continue to release your product and distribute the source with it, or you could stop releasing your product and pay damages based on your previous infringement of copyrights. The copyright holder can't force you to release your source except as a requirement in your use continued use of the license.

      • Re:yes!! (Score:4, Informative)

        by saforrest ( 184929 ) on Monday December 15, 2003 @05:45PM (#7728516) Journal
        If I tried to then sell my work, I would also have to release my source.

        No. Assuming you discovered that GPL'ed code was included after the fact, you would have a choice:

        1) Starting selling your project under the GPL licence,
        2) Stop selling the product until the GPLed code was replaced with proprietary code, and re-release it,
        3) Stop selling your product entirely.

        You are never required to release your proprietary code. It is always an option, and is obviously the least-effort option once your discover the GPL'ed code has been included, but it is by no means mandatory.

      • Re:yes!! (Score:5, Funny)

        by drix ( 4602 ) on Monday December 15, 2003 @05:53PM (#7728594) Homepage
        I've only been programming for about 15 years, so maybe it's just my lack of experience talking here, but... never have I had it happen where a library simply links itself into my program of its own volition. If you know of a way to make this happen, I'd love to hear it, because it would save me loads of time grepping through assorted header files to figure out a library interface, reading documentation, etc. It would be a dream come true.

        Incidentally, in every (L)GPL'd library I've ever used, the licensing terms are spelled out clearly right there at the top of said header files. You'd have to be either a) incredibly dense, or b) trying, not to know under what terms they were licensed.

        • Re:yes!! (Score:3, Informative)

          by JoeBuck ( 7947 )

          What is much more frequent, in a big company, is that some rookie programmer who doesn't understand copyright law grabs some piece of code off the net, or out of a textbook, and copies it into a proprietary application, not realizing that there is anything wrong with this. I think that more people have run into problems by using code from, say, "Numerical Recipes in C" than by using GPLed code, though.

          The point of the Groklaw article is that such mistakes don't instantly force the company to GPL the who

      • Re:yes!! (Score:5, Informative)

        by AJWM ( 19027 ) on Monday December 15, 2003 @05:57PM (#7728641) Homepage
        If I tried to then sell my work, I would also have to release my source.

        Didn't read the article, did you? That is one thing you would not have to do.

        The only thing that copyright law could compel you to do would be to cease distribution of the work that incorporated GPL code. You might choose to scrap the product, or you might choose to write your own version of the offending code. Or, you might choose to release your code under the GPL. But you cannot be compelled to the latter.

        (You might also be liable for damages on what you'd already sold, but that's a separate issue.)

        • Re:yes!! (Score:3, Insightful)

          by kwerle ( 39371 )
          If I tried to then sell my work, I would also have to release my source.

          Didn't read the article, did you? That is one thing you would not have to do.

          Sigh. OK, BS pedantic games:

          If I tried to then sell my work, I would also have to release my source.

          Yes, I would have to release my source. Failing to do so would [likely] result in damages, C&D, or nothing, depending on what the courts decide.

          Or I could rewrite my code. Or do other things.

          But you cannot be compelled to the latter.

          (You migh

    • Re:yes!! (Score:3, Insightful)

      by bradkittenbrink ( 608877 )
      you are correct, but you miss the point of the article. the article makes a much stronger claim, that even if you do "accidentally create a derived work" and redistribute it under a proprietary license (which is possible if you don't have perfect knowledge of what all your employees are doing) then the worst that can happen is that you get fined and forced to stop distributing your GPL-violating derived work. this argument destroys the popular claim that the punishment for GPL violations would be to force

    • Re:yes!! (Score:5, Insightful)

      by Brandybuck ( 704397 ) on Monday December 15, 2003 @05:58PM (#7728646) Homepage Journal
      Making a derivative work of a software program IS NOT SOMETHING THAT CAN HAPPEN BY ACCIDENT.

      Well, yes and no. It all depends on how you define "derivative work." This isn't explicitly defined for software in copyright law, so how the FSF defines may be different from how you define it, but neither of you would necessarily be incorrect.

      Here's one example: GPL libraries. You write some non-GPL code, and then dynamically link it to a LGPL library. But unbeknownst to you, that LGPL library itself links to a GPL library (which silently relicenses the first library under the GPL). According to the FSF, you have created a derivative work of a second library, and must release it under the terms of the GPL.

      It is this sort of thing that companies are worryied about. They know all too well that you can't cut and paste GPLd code into your own. They're not that stupid. But if they haven't spent the time to examine the licensing of each and every library and system call, then they'll be wise to be extra cautious.

      As for me, screw them. The licensors that is. I'll do a cursory check of the licensing, but if anyone attempts to screw me over by wrapping GPL code in a LGPL interface, I'll hunt them down and force them listen to RMS sing the Free Software Song until their brains leak out their ears.

    • Re:yes!! (Score:3, Interesting)

      by mcspock ( 252093 )
      You therefore have a choice. You can use works distributed under the GPL to create your own software and license that under the GPL, or you can NOT USE the GPL software and use any license you want. If the GPL were infectious, then you would have no such choice; since you do have a choice it is clearly not infectious in this regard.

      This is abusing the terminology here. You are basically saying that the GPL lacks the viral properties because you can elect to not use it.

      This is like me running an amusement

  • Note to Darl (Score:4, Funny)

    by Ralph Yarro ( 704772 ) on Monday December 15, 2003 @05:13PM (#7728230) Homepage
    New open letter idea: explain how you CAN lose your free code even if you don't incorporate any SCO code into it, as long as SCO keeps saying you have.

  • If you like Groklaw.... (Score:5, Informative)

    by i_want_you_to_throw_ ( 559379 ) * on Monday December 15, 2003 @05:14PM (#7728242) Journal
    Donate to it! Pamela is FAST approaching sainthood, support her site.

  • Slashdot, a groklaw mirror? (Score:3, Interesting)

    by george_w ( 32279 ) on Monday December 15, 2003 @05:17PM (#7728263)
    Just one question. Why does slashdot keep 'mirroring' almost every single story from groklaw?

    I've been lurking on groklaw for quite a while now, it's stories and replies have always had a high 'standard' and I have to admit: once this 'mirroring' began, the posted comments on groklaw started to lose quality and became more and more superficial.

    Thanks slashdot! ..... :-(

    • Re:Slashdot, a groklaw mirror? (Score:2, Interesting)

      by Anonymous Coward
      Slashdot has helped groklaw become a popular site. Dont complain too much if the people that it attracts are not "up to your standard". Embrace the popularity and adapt to it. hey even Dumb people have good ideas on occasion, let the cream rise to the top and quit trolling.
    • Ahhh yes... I remember those days quite well. A Groklaw story was lucky to get 50 comments, but each and every one of them added to the conversation. Now the articles get upwards of 150-200 with tons of "me too!" comments while the real gems get buried in the rubbish.

      Seems to me that Groklaw is in serious need of adopting the Slashdot moderator system.

    • Re:Slashdot, a groklaw mirror? (Score:5, Insightful)

      by Bagels ( 676159 ) on Monday December 15, 2003 @05:59PM (#7728657)
      Perhaps Slashdot should add a link to Groklaw on the side of the main page, as it has done with certain other popular websites in the past (AnimeFu, Penny Arcade, Everything, etc.). That would make more sense, and it could replace the vacant spot left by the passing on of "The Filthy Critic."

  • Useful for the Pathfinder debacle (Score:5, Informative)

    by WatertonMan ( 550706 ) on Monday December 15, 2003 @05:23PM (#7728305)
    This FAQ is very helpful. I suspect a lot that happened to the poor developer of PathFinder for the Mac would have been avoided had this FAQ been available.

    For those of you not familiar with that situation, the author borrowed and modified some open source code for a terminal app into a Finder alternative. A bunch of GPL zealots then started a flame war with many actually demanding that he release the entire source code to the world under the GPL! What was worse was that the author had already helped the community by releasing many of the classes he had developed!

    While such zealots obviously can't be taken as representative of GPL supporters, it is cases like that which gives the GPL a bad name.

    • Re:Useful for the Pathfinder debacle (Score:5, Informative)

      by nathanh ( 1214 ) on Monday December 15, 2003 @06:15PM (#7728838) Homepage
      For those of you not familiar with that situation, the author borrowed and modified some open source code for a terminal app into a Finder alternative. A bunch of GPL zealots then started a flame war with many actually demanding that he release the entire source code to the world under the GPL! What was worse was that the author had already helped the community by releasing many of the classes he had developed!

      Hrm. I hadn't heard of this PathFinder GPL violation before, but a few minutes with Google paints an entirely different picture to the "GPL Zealots vs the Virtuous PathFinder Guy" that your story painted.

      From here [macslash.org] it seems that rather than "many actually demanding" a GPL release, it was very few people even hinting at a GPL release, and no actual demands were made. In any event, only the iTerm authors can make demands and even then they can't demand a GPL release.

      For the most part, people were just exploring the possibilities in a mostly civil manner. If I was forced to polarise the discussion I would say the most significant minority of comments were anti-GPL trolls; typically saying things like "GPL BAD BSD GOOD" and other nonsense.

      Later, the author of PathFinder apologises and admits it was an honest mistake. Many subsequent comments are then repeating that the mistake was honest so they should try and find a solution where everybody walks away happy. Nobody wanted to crucify the PathFinder guy... at least, not that I saw.

      So I don't know where you got this entirely negative opinion of "GPL Zealots" from. My view is that the mistake was honest, the mistake was admitted, the iTerm authors seemed content to find an equitable solution, there were the typical anti-GPL trolls, and no actual demands for a "GPL release" were made.

      Now contrast this with intentional violations of the GPL where the violator refuses to comply. For example, easyRDP [palli.nl].

    • the author borrowed and modified some open source code for a terminal app into a Finder alternative. A bunch of GPL zealots then started a flame war with many actually demanding that he release the entire source code to the world under the GPL! What was worse was that the author had already helped the community by releasing many of the classes he had developed!

      That's almost as bad as the story about this other guy. He borrowed some of the Windows system DLLs for use in his own alternative OS product. A b

  • Not so fast... (Score:3, Interesting)

    by gpinzone ( 531794 ) on Monday December 15, 2003 @05:24PM (#7728315) Homepage Journal
    "The claim that a GPL violation could lead to the forcing open of proprietary code that has wrongfully included GPL'd components is simply wrong. There is no provision in the Copyright Act to require distribution of infringing work on altered terms. What copyright plaintiffs are entitled to, under the Act, are damages, injunctions to prevent infringing distribution, and--where appropriate--attorneys' fees. A defendant found to have wrongfully included GPL'd code in its own proprietary work can be mulcted in damages for the distribution that has already occurred, and prevented from distributing its product further. That's a sufficient disincentive to make wrongful use of GPL'd program code. And it is all that the Copyright Act permits."

    But it's the GPL, not Copyright Act that states the proprietary code needs to be released as GPLed open code. Why couldn't a judge order them to do that? It's not unthinkable. Besides, what possible monatery damages could there be to the GPLed project? It's not that the offending company is taking away income from the open source community.
    • Besides, what possible monatery damages could there be to the GPLed project?

      Some software uses a dual GPL/proprietary license. Someone who steals the GPLed version to avoid paying the license fee on the proprietary version could easily be causing financial harm. This doesn't apply to most GPLed software, though.

    • Re:Not so fast... (Score:2, Informative)

      by leonscape ( 692944 )
      The judge can only order you not to relase your code, they cannot order you to relicense your code.

      Thats up to you.

      Monatery damamges can vary depending on the case.

      The fact that whenever this has come up the company usually decides the easiest thing is too release the source code under the GPL. But that is not the only solution.

    • Re:Not so fast... (Score:4, Interesting)

      by Otto ( 17870 ) on Monday December 15, 2003 @05:34PM (#7728413) Homepage Journal
      But it's the GPL, not Copyright Act that states the proprietary code needs to be released as GPLed open code. Why couldn't a judge order them to do that? It's not unthinkable.

      Actually, it is, because the infringer still has a choice. Either they can agree to the GPL, in which case they have to GPL the derived code, or they can disagree with it, in which case they have to remove the GPL'd code entirely. The judge cannot force someone to agree to the license, the most he can do is force them to stop infringing by using the copyrighted code.

      The suit the GPL'd code's author brings will be a copyright violation suit, because that's exactly what the infringer will have done. Used copyrighted code without permission. There's no contract for the GPL'd code's author to enforce. He hasn't gotten their agreement to the GPL. They can always agree to it or disagree to it, as they choose. It's just that whether they are infringing his copyright or not hinges on their agreement or disagreement.

      • Re:Not so fast... (Score:4, Interesting)

        by gpinzone ( 531794 ) on Monday December 15, 2003 @05:40PM (#7728471) Homepage Journal
        Actually, it is, because the infringer still has a choice. Either they can agree to the GPL, in which case they have to GPL the derived code, or they can disagree with it, in which case they have to remove the GPL'd code entirely.

        One of the defenses I've heard from GPL advocates regarding the SCO scandal is that SCO "gifted" their code because they didn't pull their Linux distribution right away. From what you're saying, it sounds like that wouldn't be the case. However, does that imply that SCO or any other contributer could pull their code since they choose not to abide by the license anymore, either?

        • Re:Not so fast... (Score:3, Informative)

          by cduffy ( 652 )
          This element of SCO's argument, as I understand it, is that they didn't really release that proprietary code because they didn't know that it was there. If they'd known chosen to release that code while knowing what it was, then they'd certainly have no right to revoke the license; their argument is that they didn't, which makes it more of a grey area.

          So, roughly: SCO is a special case, they argue, because they didn't know what they were releasing. In most cases, however, folks unarguably do know what they

  • What if you turn it around . . . . (Score:3, Interesting)

    by mofu ( 609230 ) on Monday December 15, 2003 @05:26PM (#7728334)
    OK, great you can't lose your code if you "accidently" incorporate a bit of GPL code. What if its the other way around. What if you intentionally insert your proprietary code into a GPL program and release the binary?

  • Copyright question (Score:3, Interesting)

    by gpinzone ( 531794 ) on Monday December 15, 2003 @05:29PM (#7728359) Homepage Journal
    Is it okay to use and distribute a snippet of GPLed code if it's considered "fair use"? If so, can you ignore the GPL license since it would THEN be more restrictive than the current copyright law?
  • After reading various articles from Linus Torvalds and from people posting on Groklaw, I still have no idea if a program that uses the Linux kernel headers is required to be GPLed. If this is true, what system calls are permitted to be used without having to GPL one's program--only ones already specified in standards such as for Unix?
    • Headers are considered to be documentation for all sakes and purposes. They are intended to be an outline for external code to communicate with the major subsystems. That is why the headers are available seperately from the kernel sources.

      This same system is used for proprietary binaries. They give you a pre-compiled binary or library with a set of headers for your code.

      That said, the community has always looked unfavorably on binary-only drivers in the Kernel. They only tend to work for the major distros, and they also tend to lack the polish and peer review that goes into the normal bevy of OSS driver.

      I for one don't understand why a vendor would only go halfway in supporting Linux. Release a patch and let the community support your device, or always be a day late and a dollar short trying to keep up with the developments in the system.

      Ok. I do see one case: where the kernel "implements" a major function of the device in software. Even there a better approach exists. Simply provide the minimal communication hooks in the kernel itself, and devise a user-space program to perform the software control functions. The user space program can be as proprietary as you want, and it won't get stomped on as the kernel changes.

  • I"m gonna burn some Karma here... (Score:4, Interesting)

    by EvilTwinSkippy ( 112490 ) <{yoda} {at} {etoyoc.com}> on Monday December 15, 2003 @05:30PM (#7728376) Homepage Journal
    My Signal-to-Noise ratio on the article read a whopping zero. We all know a contract is different from a license. In fact, most licenses state that in X number of words.

    I kept reading waiting for that new bit of information to process. They nugget to file. I was very dissappointed. Yes it was well written, but it contained no information. Worse, it contained information that seemed to be reassuring at first, but increadibly naive. The rules about contracts versus licenses varies depending on your jursdiction.

    Just because law is being discussed on the Internet does not mean the law is influenced by it. Case law varies between countries, and in the case of the US in particular, WITHIN a country.

  • Seriously even if you provide a foolproof evidence that GPL is not at all like SCO or microsoft are proclaiming it to be, Is it really going to kill FUD ?

    I mean come on, look at what FUD stands for, Fear uncertainty and doubt, All three essentially meaning the same thing, The unpredictability of future.

    Even a rock solid data provided by linux gurus can be used to generate FUD back against linux .

    cnet is shining example of how to use opensourse's strength against spreading FUD against opensourse itself.

    J

  • FUD is FUD, regardless of where it comes from. People have a conception of the effects of using GPLed code, and that comes from reading the stupid license to begin with, not from thin air. This is not a misconception, it's just a different interpretation. I.e., it can be interpreted that way. And it can be interpreted as in this article, using the finer points of contract vs. license. But until the GPL is proven in court, all interpretations are just that, FUD. It doesn't matter if they come from The People

  • Copyright violation? Look out! (Score:3, Funny)

    by Weaselmancer ( 533834 ) on Monday December 15, 2003 @05:37PM (#7728437)

    From the article:

    This is likely to mean that a copyright holder who licenses her software under the GPL, and subsequently brings a law suit against an individual who allegedly violated a term under the GPL would sue for copyright infringement rather than breach of contract.

    Not exactly encouraging. According to the RIAA, copyright infringement is worse than manslaughter. You'd be better off shooting the original author - you'll do less time.

    Weaselmancer

  • The real problems with the GPL (Score:5, Interesting)

    by ikewillis ( 586793 ) on Monday December 15, 2003 @05:38PM (#7728448) Homepage
    1. The language is, in many places, ambigouous and misleading. The concept of a derived work is not explicitly defined, nor has specific attention been paid to dynamic versus static linking.
    2. No definitive interpretation by a court has been made. This article is completely the interpretation of a single individual and its relevancy to a definitive interpretation within a courtroom setting is dubious at best. There exists Linus's interpretation of this matter, which would preclude the possibility of binary only kernel drivers, but shouldn't this carry over to any code which utilizes system calls in Linux? Wouldn't such code be considered a derived work and be forced to be distributed under the terms of the GPL? Consequently, it doesn't seem possible for glibc to legally be LGPL, as it utilizes the Linux system call table and is consequently a derived work of the GPL'd Linux kernel. This opens up a whole nasty can of worms...
    3. The GPL has many bizarre concessions and terms, such as requiring those who distribute GPL software to distribute it by mail at anyone's request, charging only the cost of media.

    • Re:The real problems with the GPL (Score:4, Informative)

      by AJWM ( 19027 ) on Monday December 15, 2003 @07:02PM (#7729337) Homepage
      The concept of a derived work is not explicitly defined

      Copyright law appies. The term "derived work" is pretty well defined both by legislation and case law.

      shouldn't this carry over to any code which utilizes system calls in Linux?

      There's a clear (and written) exception in the Linux license that permits user programs to make system calls without being affected by the GPL. That is, after all, the function of an OS. Binary modules go beyond normal system calls, however. (Furthermore, glibc exists for plenty of other kernels besides Linux, including BSD and proprietary.)

      3. The GPL has many bizarre concessions and terms, such as requiring those who distribute GPL software to distribute it by mail at anyone's request, charging only the cost of media.

      Lots of licenses have what seem to be bizarre terms. In this example, though, that offer need only be made if you don't distribute the source along with the binary -- and the term is not specifically the cost of the media, but "for a charge no more than your cost of physically performing source distribution,". I.e. it's okay to charge for shipping and handling too, just don't make it a profit center.

    • Re:The real problems with the GPL (Score:4, Insightful)

      by dido ( 9125 ) <dido&imperium,ph> on Tuesday December 16, 2003 @12:17AM (#7731731)

      Why the hell this post was modded +5 Interesting is beyond me, as it simply goes on slinging more FUD and further misconceptions.

      1. The language is, in many places, ambigouous and misleading. The concept of a derived work is not explicitly defined, nor has specific attention been paid to dynamic versus static linking.

        A derived work is a specific term used in the Copyright Act, and it has a very clear definition there, and has a very clear meaning based upon decades of case law. Dynamic vs. static linking is clearly delienated in the LGPL, not the GPL, which explicitly states that linking *of any kind*, static or dynamic, constitutes the creation of a derived work. The Lesser GPL relaxes this saying that dynamic linking is considered a use of the library under the license, and not the creation of a derived work.

      2. No definitive interpretation by a court has been made. This article is completely the interpretation of a single individual and its relevancy to a definitive interpretation within a courtroom setting is dubious at best. There exists Linus's interpretation of this matter, which would preclude the possibility of binary only kernel drivers, but shouldn't this carry over to any code which utilizes system calls in Linux?

        Why should it? Any code that utilizes system calls in Linux is by definition merely USING the kernel, not creating a derived work, and even absent the clarification statement Linus Torvalds put just before the GPL in the COPYING file in all Linux distributions this should be obvious to anyone who knows how an operating system is used by programs running under it, and this issue will definitely come up if there were a court case involving this (and there probably never will be one, unless some bizzare legal strategy by SCO decides to use it).

        Do you really think that Oracle's lawyers didn't take this into consideration before they decided to port Oracle to Linux? The fact that we have a lot of significant proprietary software running under Linux written by large corporations with well-funded legal teams should be sufficient to fully dispel this misconception in the mind of a layperson.

        Kernel modules, on the other hand, are a completely different animal, and for the most part modules actually do incorporate large portions of real kernel code and are linked into a GPLed kernel, thus making them a derived work. While it is not in violation of any license to actually make and possibly even distribute such kernel modules, it may be a GPL violation to distribute a whole binary kernel that uses these modules.

        Wouldn't such code be considered a derived work and be forced to be distributed under the terms of the GPL? Consequently, it doesn't seem possible for glibc to legally be LGPL, as it utilizes the Linux system call table and is consequently a derived work of the GPL'd Linux kernel. This opens up a whole nasty can of worms...

        The system call table is mere information, and information cannot be copyrighted.

      3. The GPL has many bizarre concessions and terms, such as requiring those who distribute GPL software to distribute it by mail at anyone's request, charging only the cost of media.

        Where in the GPL does it state that you are required to do this? I don't see it anywhere. Perhaps you didn't bother to read this particular section as carefully as you should have:

        3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

        a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

        b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing sour

  • Slashdot promoted misconceptions (Score:3, Informative)

    by linux11 ( 449315 ) on Monday December 15, 2003 @05:39PM (#7728454)
    How ironic--in a Slashdot story about GPL misconceptions, the biggest misconception is promoted: what the G in GPL stands for.

    Only works that specifically state they are covered by the *GENERAL* Public License recieve the protections of that work. A reference to "GNU" Public License could be a reference to ANYTHING.
  • I agree that this is a very well-written and well-argued artcle. It's ideal for somebody who is non-technical and doesn't grasp the concept of the GPL, such as management types.

    That's why I'm not toally thrilled with the liberal use of jargon like "FUD" in the article. While it's second nature for us to use that term, I doubt that non-technical types will know what that means. It's easily-enough explained, but it might cheapen an otherwise-supurb article in their eyes. Communication is all about understanding your audience and expressing your message appropriately...

    I feel bad about nitpicking such a nicely-written article. It's great otherwise. Kudos to the author. :)

  • In brief: (Score:5, Interesting)

    by ScottSpeaks! ( 707844 ) on Monday December 15, 2003 @05:44PM (#7728508) Homepage Journal
    A licence grants rights in only one direction; a contract grants rights (and obligations) in both directions. Because the GPL is merely a licence, those using GPL code cannot be required to give up the rights to their own code.

  • gcc and other OO development software (Score:4, Insightful)

    by BigGar' ( 411008 ) on Monday December 15, 2003 @05:44PM (#7728512) Homepage
    One thing that's made me wonder is, if I want to use gcc or another gpl compiler, would the resultant project automatically be gpl'd? Just compiling a "hello world" program would link together several gpl'd libraries would that be considered a derivitive of the original?
    • No, The resultant software does not have to be GPL'd. For one thing the libs are under the LGPL, and secondly what you develop with the compiler is not restricted.

    • Re:gcc and other OO development software (Score:4, Interesting)

      by zippity8 ( 446412 ) on Monday December 15, 2003 @05:58PM (#7728652)
      One thing that's made me wonder is, if I want to use gcc or another gpl compiler, would the resultant project automatically be gpl'd?

      http://www.gnu.org/licenses/gpl-faq.html#IfInter pr eterIsGPL
      When the interpreter just interprets a language, the answer is no. The interpreted program, to the interpreter, is just data; a free software license like the GPL, based on copyright law, cannot limit what data you use the interpreter on. You can run it on any data (interpreted program), any way you like, and there are no requirements about licensing that data to anyone.

  • Derivative Works (Score:3, Interesting)

    by DCheesi ( 150068 ) on Monday December 15, 2003 @05:50PM (#7728564) Homepage
    If the proprietary code is inherently derivative of the GPL'ed code, then the company's only options would be to stop selling it or release the source. Since both would result in the loss of revenue from that IP, they lose their investment either way. If anything, releasing their code under the GPL would be the lesser of two evils, since they could still sucker a few people into paying for the box with their name on it. So in that sense, the "viral" argument holds up from a business perspective.

    Of course, in software it's easier to separate the original work from the "derived" portions (compared to literature, etc.), but that would still negate all the benefits of using the OSS base code in the first place. Better to use a base OS/framework that you know you own than to risk having to rewrite everything later...

  • rent-a-coder (Score:4, Interesting)

    by mumblestheclown ( 569987 ) on Monday December 15, 2003 @05:59PM (#7728659)
    I recently started hiring a few coders using rent-a-coder's online service. when you submit a project bid, there is a little generic boilerplate for "deliverables" that gets put in there that I as the bid requestor fill-in. The boilerplate is basically three points--the second one is interesting. it basically says that the bidder (that is, the coder) will explicity not use any proprietary third-party tools unless asked (this makes sense--if somebody does some work for me, i dont want to be suprised to find out that i have to buy an expensive widget to maintain the coe), nor should the coder use any GPLd code.

    Of course, the bidder is free to remove or alter any stipulation he wishes and i'm sure there are many projects on rent-a-coder that are explcitly gpl. however, for my proprietary needs, i'm happy with the no-GPL provision--it makes a lot of business sense in my particular case. i guess what i'm bringing out in this post is the notion that people are aware of the GPL's viral nature (the parent article notwithstanding) and do plan business strategy to avoid it regularly. similar non-gpl provisions are commonplace in many corporate IT departments as well. it's not necessarily foolhardy--it's a choice.

  • Many Minds need to be BLOWN up ..... (Score:3, Interesting)

    by leoaugust ( 665240 ) <leoaugust@[ ]il.com ['gma' in gap]> on Monday December 15, 2003 @06:04PM (#7728715) Journal

    The only part people have trouble getting their heads around is the fact that the GPL grants you additional rights, whereas most EULAs further restrict rights beyond the restrictions of copyright law,

    Whereas EULA's restrict rights, GPL grants you additional rights ... This I think is very well put, and it immediately brings to mind the development of numbers ... from positive to negative, and gives a hint of why some people are having trouble understanding the expansive developments ...

    When numbers started off they were probably used to count stuff like sheep and bales. So all that was need was positive numbers. And that was that. Now I can imagine someone came up with the concept of negative numbers, and many people would have been flabbergasted. What ? Negative numbers ? What are they supposed to stand for ? Can you have a negative number of Sheep ? Can there be negative number of Bales. Ha Ha. Mr. King, Can you see how stupid the idea of negative numbers is ...

    But of course we now know that negative numbers are not a stupid idea. But a pretty brilliant idea. And then of course Zero is a brillianter idea. And don't get me started on Complex numbers ....

    Me thinks, Darl is an Ape who still thinks that numbers should only be positive, and the rest of the things like negative numbers, zero, and complex numbers, are going to destroy the whole notion of property - because, he thinks, all property has to be positive.

    Of course Darl forgets that in addition to positive (credit), property can be negative (debt), or zero (easy come easy go) and complex (the financial instruments and derivatives ...) .....

  • A broader question has to be......... (Score:3, Interesting)

    by mormop ( 415983 ) on Monday December 15, 2003 @09:21PM (#7730534)
    If Groklaw's interpretation is correct and the phrasing of the GPL is that watertight, where does this leave those who misrepresent it?

    If it's as straightforward as it seems then any suitably qualified person, e.g. a lawyer should, upon reading it, be able to understand it's true meaning. It then follows that if a suitably qualified lawyer representing a proprietry software company fails to inform that company that their claims about the GPL are untrue they are failing in their duty to advise their clients that their claims are incorrect and possibly constitute fraud in a legal sense.

    Should the lawyer inform the company only to be ignored that would then put the company in the position of having knowingly made false/ fraudulent claims in the pursuit of money e.g profit or to use another term "obtaining funds by deception".

    Maybe sending a registered delivery copy of a plain language step by step explanation of the GPL interpreted by a lawyer would put them in a position where falsehood becomes potentially damaging in law.

    On the plus front, top marks to Groklaw who are carrying out a superb job of undermining SCO's defenses.

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