Bruce Perens Explains That 'GPL Is A Contract' Court Case (perens.com) 179
Bruce Perens co-founded the Open Source Initiative with Eric Raymond -- and he's also Slashdot reader #3,872. Bruce Perens writes:
There's been a lot of confusion about the recent Artifex v. Hancomcase, in which the court found that the GPL was an enforceable contract. I'm going to try to explain the whole thing in clear terms for the legal layman.
Two key quotes:
Two key quotes:
- "What has changed now is that for the purposes of the court, the GPL is both a license, which can be enforced through a claim of copyright infringement, and a contract, which can be enforced through a claim of breach of contract. You can allege both in your court claim in a single case, and fall back on one if you can't prove the other. Thus, the potential to enforce the GPL in court is somewhat stronger than before this finding, and you have a case to cite rather than spending time in court arguing whether the GPL is a contract or not..."
- "Another interesting point in the case is that the court found Artifex's claim of damages to be admissible because of their use of dual-licensing. An economic structure for remuneration of the developer by users who did not wish to comply with the GPL terms, and thus acquired a commercial license, was clearly present."
So... dual license even if we don't mean it? (Score:3)
If I'm reading the summary correctly, we would be wise to officially offer dual licensing, even if we set the price so high that nobody would actually license the code under those terms?
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Wait, so because of this case, I now have to reduce my licensing fees?
Re:So... dual license even if we don't mean it? (Score:5, Insightful)
Not necessarily, if nobody has actually purchased the commercial license, it may not help you. Having active commercial licenses do however make it easy to prove damages. In other situations damages are going to be harder to prove, relying on prices of competing products, or the open-market cost of devlopment vs proportion of infringing use.
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You could have done something with your life.
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http://s2.quickmeme.com/img/b2... [quickmeme.com]
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https://www.kickingthebitbucke... [kickingthebitbucket.com]
or my books
https://www.amazon.com/C.-D.-R... [amazon.com]
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If this is a genuine posting, good for you on trying to improve yourself. A+ is a first-step, a way of letting potential employers know that you've demonstrated a penchant for the skills to do some basic support.
Do not stop with A+. It's an entry-level certification and while it's been 20 years since I got my A+, as I understand from current test-takers it's still oriented toward user-focused desktop support, rather than focusing-in on networking, infrastructure, etc. Desktop support can pay the bills bu
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There are too many problems surrounding the GPL, and none of it has precedent set by the courts.
This story is about the courts setting precedent which strengthens GPL. I think you need to crush a little more tinfoil on your antenna there, sport.
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Actually, I have no idea what you're trying to say. Crushing tinfoil on an antennaf? What, like rock salt? I don't think even you know twf you're talking about there, sport.
Ahh, the trolls of youth. Move along, son.
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This story is about the courts setting precedent which strengthens GPL. I think you need to crush a little more tinfoil on your antenna there, sport.
Exactly that. The GPL is a license and is still a license. This court has said that it is also a contract.
I would have said that if someone has a free choice to use software under the GPL license for free, or to pay for a different license to use the software with fewer obligations, and his actions are contrary to the GPL license, then this means that he has accepted the contract for the commercial license.
Also, the defense here is really weak anyway because GPL is still a license, and by using the so
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What are these problems, specifically the ones not addressed by court cases? In most cases, there haven't been court decisions because the parties settle out of court, and this is a sign of a license without major legal issues.
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IANAL!!!
If I understand this correctly, if you're going the copyright route, you can collect various damages encoded in the copyright act. If, on the other hand, you are trying to go the contract route, you will need to prove your damages.
Proving damages under contract law is difficult if you never intended to collect money. This is unlike Copyright, which has such things as statutory damages and infringer's profits. If you go for contract violation, it is easier to prove damages if you have an actual alter
Good luck on that appeal (Score:1)
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And why do you imagine that to be the case? Artifex made it publicly known they are willing to allow a more permissive license than the standard copyright that is applicable in both the USA and South Korea (in this case the GPL). Hancom made it clear they were aware of Artifex's requiring a licensing fee to use the software without the GPL stipulations. Hancom then plagiarized the copyrighted code, followed by getting caught doing so.
Car analogy time. Suppose you made publicly known that other people could
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My car is full of gpl code, and it's being used in contravention of the terms of the gpl. Of course the manufacturer doesn't care, but so many products are in the same boat.
I hope that real gpl enforcement starts soon. These companies need to either respect the gpl, or stop using code produced under it.
What people seem to forget when they claim that the gpl is "invalid" is that without it, they wouldn't be able to use the code AT ALL. So if it really is invalid, then it reverts to normal copyright laws whic
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What GPLed code is this? Is it possible to get the source code? Unless you're talking about GPLv3, which is rarely used commercially, the restrictions are that you have to be able to get the source code and use it for your own purposes, which may include redistributing under the GPL.
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My car basically runs Ubuntu, with a bunch of modifications.
The manufacturer has denied this, however I have managed to get root access on the centre stack and instrument cluster comptuters and I can see for myself exactly what is going on.
It is being used commercially, and no source code is being distributed.
It's a clear violation of the GPL, however they don't care because they know that it's highly unlikely anyone will ever take them to court on it.
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Mod Parent Up (Score:2)
This post deserves more visibility.
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US courts have been treating shrinkwrap licenses as contracts. I really disapprove, but apparently in the US you can publicly declare a contract and, if the other party does something that would require the contract, it's binding.
Rules of Acquisition (Score:3)
Rule of acquisition #17: A contract is a contract is a contract.
Reality sets in... (Score:2)
My guess is that there is a HUGE amount of GPL code compiled into numerous closed-source applications being sold or otherwise distributed in ways that violate the GPL. Good luck finding it all...
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"Huge amount" is not enough to be an enforceable copyright violation. There is a huge amount of GPL code. A "huge amount" could be copied under "fair use", while still being a tiny fraction of GPL code.
This is not to say there has _not_ been a significant percentage of code copied directly and used in clear violation of the copyrights. TIVO was an agregious example of such abuse, FANTEC was caught, and BUSYBOX was the first lawsuit about GPL violations. I've encountered violations professionally of violat
Re:Reality sets in... (Score:5, Insightful)
Bruce Perens Slashdot 3,872. are you out there? (Score:2)
Looking at the initial comments, I would think you might want to weigh in on some points/questions coming up here.
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He submitted the story back on 30th May, so he probably isn't aware that Slashdot are running his story yet.
#3872? Pfft. (Score:5, Funny)
Bruce Perens .... Slashdot Newbie. /now get off my lawn.
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Wtf? No, it isn't.... (Score:5, Insightful)
Copyrighted works require permission to copy them... the GPL is simply a written permission to copy the work it covers to anyone that will agree to the terms. Nothing more, and nothing less. If you agree to the terms, implicitly, by not acting in contravention to those terms, then you have permission to copy the work, but if you act in contravention of the terms then the default status of copyrighted work applies and no such permission is granted by the GPL.
Full stop.
Re:Wtf? No, it isn't.... (Score:5, Informative)
Lawyers call an agreement a contract.
The court has just affirmed what you said, Hancom publicly stated that they had agreed to the GPL. Thus there is a contract in place.
The contract has terms, defined by the GPL that Hancom agreed to. These terms were not complied with. Now we have a breach of contract.
Once a breach of contract has been established the case becomes much clearer, lots of existing case law which covers how it should be dealt with.
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The GPL is a license until parties profess mutual assent.
Which you do by redistributing the IP in question, per the terms of the license.
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The GPL puts no obligations on the receiver that aren't already there because of copyright. If you receive a copyrighted work, the only obligation that is placed upon you by receiving it is that you need to get the copyright holder's permission in order to copy it (typically written permission).
The GPL only grants such written permission to copy the work that it covers to certain people, indentifying the people that it is granting permission to copy the work as anyone who implicitly agrees to its terms
I don't wish to form contracts with people (Score:1)
Since I do not wish to have a contract with random people on the Internet that download my software, then I should probably stop releasing my software as GPL at this point.
Re:I don't wish to form contracts with people (Score:5, Informative)
The logic of the court case isn't specific to the GPL, any licence you choose to distribute source with, or even a straight binary distribution would probably involve the creation of an implicit contract.
You shouldn't be scared of contracts, they are just a way for lawyers to formalise agreements. Buying a coffee - a contract. Buying a bus ticket - a contract. Agreeing to terms and conditions you never bothered to read - a contract.
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I can use a license grant you give without agreeing to a contract with you. In that context, it is only a license - I am merely using what you have already given free license to do. Until I affirmatively state in some form that I am agreeing to the terms, all you have to stop my use would be the copyright that I am infringing, because no contract was formed.
No. A license is basically a permanent contract offer, rights are granted if and only if someone forms a contract by agreeing to it. There is nothing you get "for free" by the mere existence of a license that exists independent of and outside a contract. Even the BSD license has terms you must agree to, if you don't agree to the terms you're in violation of copyright law. If you claim to have rights under that license then that means you claim to have entered into a contract by agreeing to it, in which case
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Since I do not wish to have a contract with random people on the Internet that download my software, then I should probably stop releasing my software as GPL at this point.
The contract doesn't obligate you to do anything (you've held up your end of the contract already, by producing something and distributing it) but it does obligate them to do something, so there is no drawback to entering into such a contract.
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Just to be safe, I am releasing everyone from the contract. And I refuse further participation in the contracts.
That will make things a bit complicated for me on LKML though.
This is easy (Score:2)
Is a software licence a contract? This question is easy to answer, because YOU can answer it and you cannot do the wrong thing.
Two options.
1) You decide it is. You use the software and follow the terms of the licence
2) You decide it is not. Then you're not allowed to use the software, as its copyright protected and you have absolutely no permission to use it, while there is no binding contract which allows you to use it. So you don't use it.
You cannot do the wrong thing.
Re:This is easy (Score:4, Insightful)
You decide it is not. Then you're not allowed to use the software, as its copyright protected and you have absolutely no permission to use it
USING software was not considered an act that could infringe on copyright, when the GPL was originally created. It was argued that any copies made for the purposes of using the software were merely incidental and didn't count for copyright purposes -- they were merely mechanical acts. Even today, few argue that a core router at an ISP needs to obtain a copyright license to transfer bits of Mr Robot from Netflix's servers to the TV.
Back then, you could grab all of FSF's software from someone and use them to your heart's content, not giving a flying fuck about the GPL or any other license. The license was only a concern for whoever gave the software to you, it would only concern you if you tried to pass the software to others (and then only if you didn't simply follow the standard rules for second hand software).
Today the situation is clear as mud. Software licenses can say pretty much anything they want, and they apply to use, not just to copying. Except when they don't.
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Make it more easy: Without a licence, you do not have rights and it's just piracy. Using and especially copying. With a licence (accepted by you), some rights are granted, when you accept some conditions.
That's the whole point why dual licencing is easy. The licence you're not using when forking the project doesn't affect your usage at all, as you do not need to accept it.
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Without a licence, you do not have rights and it's just piracy.
Easy, but wrong. Not very helpful. For instance, in the US you generally have the right to sell the software to someone else, second hand, even though the license says you can't.
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You need to have a licence first. And the next person is bound to the licence. Only the term "you cannot sell" is invalid, but if you do not accept the licence at all, you do not have any right to use the code. That's a big problem with people just putting code on github without adding a licence, because it's totally unclear how you're allowed to use it. That was the reason, that github added the feature to initialize a repo with a licence file.
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Current US copyright law explicitly allows all copying necessary for execution of a lawfully acquired piece of software. Any restrictions on use come from contracts, and US courts have been (in my opinion) far too accepting of shrink-wrap contracts, which look to me like a way to put additional restrictions on a purchaser after the vendor has gotten the money.
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Columbia University law professor Eben Moglen wrote the GPL.
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Columbia University law professor Eben Moglen wrote the GPL.
Eben Moglen contributed to GPL v.3, the original version was written by Richard Stallman.
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Please take your hate speech elsewhere.
Ethical BSD developers don't need GPL code, they write their own because they respect the fact that anyone who wrote GPL code is not okay with the idea of not getting back any improvements made to that code.
On the same note, ethical GPL developers don't relicense BSD code they happen to use, so that any fixes local only to the BSD source can be also shared with the BSD-only world. They both respect the idea that the original author who used BSD for the license doesn't
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It isn't "not getting back" it is "whoever gets it next needs to have the same freedoms, as does the person they give it to and whoever they give it to and whover they give it to .... for forever."
Re:Legal Advice (Score:5, Insightful)
The article by Bruce Perens, like all pro-GPL writing, is nothing but Orwellian double-speak, constantly talking about freedom but at the same time insisting that freedom means "you must do exactly as I say".
That's exactly how freedom works. In free societies, freedom means you cannot murder, you cannot steal, you cannot disparage, you cannot do a lot of actions, deemed bad. You should know that, Hobbes already talked about it a few centuries ago.
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The article by Bruce Perens, like all pro-GPL writing, is nothing but Orwellian double-speak, constantly talking about freedom but at the same time insisting that freedom means "you must do exactly as I say".
This keeps coming up, and I've never received a proper reply, but maybe this potty mouth anonymous coward will surprise me.
Licensing code under a non-copyleft free license means you are fine with someone taking your code and building a commercial product with it, and never giving it back in any way or form. If you're okay with that, how come you're not okay with someone who does give it back, except in a way you can't use?
Intuitively, GPL ought to be more free than completely closed off no matter where you
Some GPL things (Score:3)
I'm not the AC, but I have some commentary on the issue.
My position is that the GPL is inherently toxic to the economy, specifically to the portion of the economy that consists of opportunity to earn from creating software. That very economy is important to those of us who can program at a level where we can create commercial products. My tiny sector of said economy shall not be poisoned thus.
And before someone says "yes, but you can charge for support", the way I see it, the optimum path is to write softwa
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I'm sorry, but it really was too long, and I really didn't read all of it.
There is a group of people, and the original AC belongs to that group, that claim that choosing GPL is somehow immoral, non free or detracting from the public good. I was trying to get someone from that crowd to answer my question.
TL;DR: I won't use GPL source code. You can use GPL source code, and I don't care. The reason I won't use GPL is because it poisons commercial code with a toxic requirement to publish your own inventions.
If you don't care that I use the GPL, then you're not the correct recipient for my question. My question was directed at the vocal anti-GPL people (quite often ACs), who hate it when I use GPL for my project
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Well, once I read that, I didn't read any more of yours either. Cheers. :)
Writing Tips (Score:2)
If you must write a flimsy rationalization of your prejudices, be concise.
Reading Tips (Score:2)
If you want to complain no one has answered your take on things, you should bring reading skills and capacities above the third grade level (and I may be being unkind to many third graders there) in case someone actually, you know, answers you.
It is the height of rudeness to press for a response, and then fail to bother to read it. I'm absolutely unwounded – this is a profoundly obvious case of consider the source – but I certainly know better to continue engagement with demonstrated social crip
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> My position is that the GPL is inherently toxic
That makes for a nice hissy fit but it's not really been bourne out in practice. Proprietary software continues to thrive. It can even be built on top of Free Software. The two can co-exist quite well and suit different purposes for different people.
The only real objection you have is some infantile notion that you can't call someone else's work your own exclusive property.
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You're addressing one software business model there, where you sell software for money. Most software is not written for its sale value, best I can tell, but for internal use. It wouldn't matter to my company if all our code were GPLed, because we're not going to distribute it. It wouldn't matter much for embedded programming, since the software is useless without the gizmo.
You seem to think that, if Jo(e) doesn't want to touch copylefted code, that's a major problem. I don't see that. Jo(e) can't t
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Because Bruce was getting "picked on" the site was changes so UID is emblazoned on everything.
It is not my fault.
Re:Low UID (Score:5, Insightful)
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And yet when the site began, people got along fine with the interface where you had to go out of your way to find out if a commenter had a low number or not.
The person who told me about this site back in 2000 was a Mac user, btw. Also a highly skilled programer who coded DSP chips in Assembly Language.
To the point about what sort of a site Slashdot has become, it's chock full of IT types now. The diametrical opposite of a nerd.
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I don't necessarily like you or agree with you terribly often, but you're a better person than you're showing in this comment. I don't know what your disagreement might be, but I think you should offer an apology for this remark.
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That may well be true, but I am a low-UID AC, and this site always had the "News for nerds, stuff that matters" motto.
Even if it had a large slant towards Linux since the very beginning, and an idiotic meme about beowulf-clustering everything (it got worse with hollywood actress tits memes later, when the imbecile-to-nerd ratio went too high), it has never been ONLY about Linux.
It is just that quality Windows nerds were rare, and sincerely, anyone will fell an absurd need to joke the shit out of the likes o
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Guy with high UID says stupid stuff. Hehe, now that's the slashdot I know and love.
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LOL!
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does my 5 digit id make me cool?
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It makes you cooler than the dirty 6-digit claiming he's been around since the beginning. It's gonna hurt that 6'er to know this 5'er typed this out on a Surface Pro 3. I'm such a "Microsoft weanie".
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It makes you cooler than the dirty 6-digit claiming he's been around since the beginning. It's gonna hurt that 6'er to know this 5'er typed this out on a Surface Pro 3. I'm such a "Microsoft weanie".
I was around since five digits but didn't make an account until six digits and hey, guess what? This isn't even my first account, the first one was 11xxxx. But I think his point stands. The earlier six-digit UIDs are often referred to by the noobs as "low" now, since the UIDs have gotten so very numerous.
Personally, I don't give a shit whether people think I've been on Slashdot for a long time, since that plus five bucks will buy you a cup of coffee. But yeah, 1xxxxx UIDs are "old" now. Kind of like people
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Different username, same story. I never realized how much I would care (and then finally not care again) that I didn't register an account on slashdot for a couple of years. I lurked for a really long time.
Still - the more things change, the more they stay the same... and now the only time six digits isn't cool is when the four digit folks come out to play and remind us they're still here and haven't all left for reddit (yet).
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No.
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don't be so hard on the noobs...
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I LIKE SPROUTS!
smacks head with 2x4, eats paint chips
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Accounts are useful for reputation purposes.
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Thanks to Microsoft, Oracle, SAP and their ilk, what you call "plagiarism" when applied to software becomes both a civil, and a criminal offense with jail time both in the USA and the EU and goes by a different name ("software piracy"). That is just how things are. I don't know how it is in South Korea, though.
As for entering a contract, you better read the details about Artifex v. Hancom. Really.
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How do you violate a contract you never agreed to?
The defendent agreed to the contract by stating publically on their website they licenced the code under the GPL. They could argue that they were lying when they said that and they were merely wilfully infringing copyright but I doubt that would end well for them.
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The defendent agreed to the contract by stating publically on their website they licenced the code under the GPL. They could argue that they were lying when they said that and they were merely wilfully infringing copyright but I doubt that would end well for them.
In Germany, some laws are a bit different from the USA, and as a result the GPL has always been a contract. Except one side didn't care whether you agreed to the contract or not. In court, you had the choice to either claim that you agreed to the contract (and therefore were bound by it) or didn't agree to the contract (and therefore committed copyright infringement). This didn't quite consider a dual license case.
Re:I love OSS but GPL is for assholes (Score:5, Insightful)
Nobody is forcing you to use the gpl. If you don't want to use it, don't.
But if a project is under the gpl, you don't get to simply ignore it's terms simply because you don't like them.
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Hmm, corporate greed detected. I donate far more than that as an *unpaid volunteer*, although I do it with upstream work, not money.
I'd say you are donating a little bit of what you make off the hard work of others to feel better, but not giving back nearly as much as you should. And if you are a typical example, that's why the larger BSD projects are always operating ultra-starved. Make it an US$ 20k yearly donation to OpenBSD (which are far more starved than FreeBSD), and you will *start* to make sense.
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Are you saying that you think it is fine for author to prevent copying, unless they allow copying on the proviso that those who copy also allow copying?
There may well be contributors who wanted to make a proprietary derivative that locked in users, but I dare say there were none who wanted someone else to make
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It is a nasty game they play. A GPL library will be "Standard" more and more until there really is no alternative. How is this any better than places like Microsoft?
Wow. Last I checked, Microsoft was closed source pure evil in a box with a huge price tag, and you're asking how Free/Open Source GPL'd code is any better than Microsoft?
Somebody needs a whap upside the head with a clue by four.
Re:I love OSS but GPL is for assholes (Score:5, Interesting)
Often you will see GPL projects that "allow" a corporate license.
The unwritten detail that you aren't seeing is that a GPL project that dual licences is almost exclusively developed by one company. It isn't a collaboration, because contributors provide their code under the GPL and that can't be included in the commercial product. This means that the GPL code is a gift by the company to the wider world with conditions which allow the company to continue to profit, they typically don't request significant contributions such as donations. The difference with a purely closed source company like Microsoft is that you, as the consumer, have a choice you otherwise wouldn't. For example you can use the GPL version for early development work and switch to the commercial license when you are sure you want to use the library and distribute a final product. The library development process closely mimics a standard closed source company.
Collaborative GPL products work very differently and are never dual licensed. The GPL provides a guarantee for each company contributing that every other company must also contribute. This allows direct competitors to cooperate on a product knowing that they aren't putting themselves at a disadvantage. These projects work very differently to the dual licensed ones, the development process is open to allow communication across multiple companies. They also take code contributions and sometimes financial contributions, often to maintain infrastructure.
I regularly have my company donate to many open source projects. These donations are pretty good (1-5k each) but we all fully agree that never in a million years would we donate to a GPL project or any over arching project ever.
Companies I have worked for have supported projects vital to our work. The license influences libraries we use and the way way we use them. If you are adamantly opposed to the GPL and don't rely on their work then it would make perfect sense not to direct your money or time there.
Not supporting a collaborative GPL project because of a few non-collaborative GPL projects just shows off your ignorance.
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Note that is a good point, which many OpenSource developers will recognize:
While companies like BSD-style licenses better for pure use, MANY companies prefer a GPL-license for code THEY contribute (GPLv3 may have changed that a bit though). Thus proving the statement "BSD is preferred by businesses" wrong. It's mostly preferred when they do not have the PRIMARY intention to collaborate or contribute (though they may end up still doing that though).
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Stallman and his ilk don't do GPL so that their code can be free. But so they can have power over other coders. Often you will see GPL projects that "allow" a corporate license.
Sigh. The GPL protects freedom from users. If you don't like a dual-licensed project, then don't contribute your code to it, which requires assignation of ownership. Problem solved. Hope this helps!
The key here is that most of the people who probably contributed to the project didn't want it GPL but it was the only project in town.
They had a choice. They could work on their own project, or they could benefit from the labors of others. If they took the latter route, then they really don't get to complain.
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It's really simple. If the software you want to use has license terms you don't like, write your own. You're no worse off if a GPLed project exists that does what you want than if no such project existed. Stop bitching about people who do creative stuff that doesn't appeal to you.
You also seem to do a lot of projecting of motives on other people. If most of the people on a project want it to be permissively licensed or proprietary rather than GPLed, they'll do that instead.
A bit of history on Stall