Date: Sun, 15 Apr 2007 15:27:34 -0700 From: "Ted Mittelstaedt" <tedm@toybox.placo.com> To: "Chad Perrin" <perrin@apotheon.com>, "Michel Talon" <talon@lpthe.jussieu.fr> Cc: FreeBSD Questions <freebsd-questions@freebsd.org> Subject: Re: Virally licensed code in FreeBSD kernel Message-ID: <00b001c77fad$44b30080$3c01a8c0@coolf89ea26645> References: <20070415190228.GA75088@lpthe.jussieu.fr> <20070415215533.GA8052@demeter.hydra>
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----- Original Message ----- From: "Chad Perrin" <perrin@apotheon.com> To: "Michel Talon" <talon@lpthe.jussieu.fr> Cc: "FreeBSD Questions" <freebsd-questions@freebsd.org> Sent: Sunday, April 15, 2007 2:55 PM Subject: Re: Virally licensed code in FreeBSD kernel > > Between these four sections -- 1.3, 1.6, 1.9, and 3.6 -- it is not 100% > clear what the intention (in a legal context) of the licensing as it > applies to a "Larger Work" must be. Granted, it sure looks like no > other parts of a "Larger Work" that are not part of the same file as > code explicitly licensed CDDL would be covered by the CDDL, but a lawyer > could probably make a pretty good case for the license extending beyond > the explicitly licensed code in a case where a "Larger Work" is compiled > as a single binary executable. > Chad, that is very unlikely. If that kind of tack would have worked then SCO would have tried this when they filed the infringement lawsuit against Linux. This argument was also NOT tried when Unix Systems Labs sued University of California, Berkely over the original FreeBSD source code. In both those lawsuits, the lawyers didn't attempt to include the -entire- distribution. Instead they included the subsections. In the USL lawsuit it was the kernel. The SCO lawsuit is still languishing but the USL lawsuit was settled after the judge ruled that USL couldn't make a case, and subsequent to this the lawyers set out a list of specific source files that infringed. > In any case, even if the rest of the code in the compiled binary is not > in fact covered by the CDDL under any circumstances other than explicit > release under terms of the CDDL, one still has a source distribution > obligation for part of such a compiled binary according to the law and > the terms of the CDDL -- the part that is distributed under terms of the > CDDL, at minimum. This means that a compiled binary that includes CDDL > code in its source files carries a source distribution legal obligation, > period. We're chipping away at the "freeness" of the software either > way. > Here is the summary problem, and it's the problem with the GPL. Copyright law basically says the owner cannot release copyright interest by doing nothing. In other words if I compile GPL code into my code and distribute the result, my code's copyright stays with me, unless I do something explicit like signing over copyright ownership to the FSF With GPL code where the owner has given over copyright to the FSF, the FSF can simply threaten to sue an infringer if they distribute a modification to GPL code then try to use their copyright rights over someone else to prevent them further modifying their modification in ways they do not want to have happen - because the FSF can withdraw permission they have to use the FSF-owned copyrighted code under GPL. But in the vast majority of cases of GPL code the developer retains copyright on the stuff that is distributed via GPL. It is not at all clear that if someone takes that GPL code and does something in violation of the GPL, and the copyright holder refuses to do anything about it, that the FSF has any legal standing to get involved in a lawsuit. And if they don't, and nobody else sues, then the GPL violator will "get away" with violating the GPL. And if that happens enough times, the "threat value"of the GPL will become mostly useless. Right now the only "threat value" that the GPL carries against infringement for non-FSF code is that people know that even if the original copyright holder didn't sign over copyright rights to the FSF, and doesen't have deep pockets, if they infringe GPL code and the copyright holder doesen't like it, the FSF will come rushing in with their money and lawyers to help the copyright holder to sue the infringer. What people don't know about is what is happening with GPLed code that the copyright stayed with the owner, was never given over to the FSF, and the original author loses interest in it, and someone comes along and infringes it. There's dozens if not hundreds of GPL projects languishing around up on Sourceforge that haven't had updates to them for years, have had few downloads, and little general interest by the community and no interest by their copyright holders. If someone came along and stole sections of the work and put it in a commercial product, do you think the FSF would sue them, or even publicize it? I very much doubt it. The FSF does not like to advertise failures in the GPL and I believe that there has been a lot of infringement of GPL code in the past that the FSF has remained quiet about - simply because they cannot interest the copyright holders in getting involved in a lawsuit, or transferring copyright ownership to the FSF. A software license is only as good as the willingness of the copyright holder to back it up. For FSF copyrighted code, there's a lot of willingness - but the general public often mistakenly equates fsf-copyright-owned-code-under-GPL in the same league as jow-blow-owned-copyright-code-under-GPL. Ted
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