Date: 15 Dec 2001 14:43:45 -0800 From: swear@blarg.net (Gary W. Swearingen) To: Terry Lambert <tlambert2@mindspring.com> Cc: chat@FreeBSD.ORG Subject: Re: IBM's intentions with JFS (was: IBM suing (was: RMS Suing was [SUGGESTION] - JFS for FreeBSD)) Message-ID: <2c3d2c85pa.d2c@localhost.localdomain> In-Reply-To: <3C1B39FF.C0F06938@mindspring.com> References: <3C186EA5.4EA87656@mindspring.com> <20011213093555.76629.qmail@web21107.mail.yahoo.com> <3C186381.6AB07090@yahoo.com> <3C1875D6.5DE4F996@mindspring.com> <1id71idej9.71i@localhost.localdomain> <3C1875D6.5DE4F996@mindspring.com> <20011213051012.Y56723-100000@turtle.looksharp.net> <3C186381.6AB07090@yahoo.com> <3C1875D6.5DE4F996@mindspring.com> <3C186381.6AB07090@yahoo.com> <20011214122837.O3448@monorchid.lemis.com> <3C19807D.C441F084@mindspring.com> <5ipu5i9u0w.u5i@localhost.localdomain> <3C19D716.3FC77047@mindspring.com> <c58zc5a68o.zc5@localhost.localdomain> <3C1A6E7F.3CF2E0EB@mindspring.com> <c48zc496pp.zc4@localhost.localdomain> <3C1B39FF.C0F06938@mindspring.com>
next in thread | previous in thread | raw e-mail | index | archive | help
Terry Lambert <tlambert2@mindspring.com> writes: > "Gary W. Swearingen" wrote: [snip] > > I think you are not geting it. My (and others) concern is not that > FreeBSD code would be GPL'ed (though that is a valid concern), but > that the various licenses which the FreeBSD code is distributed under > are incomptible with the GPL (e.g. the :BeerWare License" and the "4 > clause BSDL", the "Bill Paul Voices in the head license", etc.). I still think your argument was in error, but it's better dropped now. I did think that FreeBSD was under a 2-condition license, because of http://www.freebsd.org/copyright/freebsd-license.html, titled "The FreeBSD Copyright" (Another item for my PR-someday list.) > You can't argue that an OS consisting of a GPL'ed JFS and a BSD > licensed everything else is _not_ a derivative work of both the > GPL'ed JFS and the BSDL'ed everything else, particularly since it > is widely acknowledged that an OS needs an FS to be useful at all. Well, I can argue that it is a collective work, but I'm not sure if law considers that to also be a derivative or something distinct. In any case, I'm sure that the OS+JFS is a single work with copyrights. But it doesn't matter that the collective work is a derivative of a GPL work. What matters is whether the original non-GPL work is "based on" the orignial GPL work and falls under the GPL's "mere aggregation" escape clause, so that the non-GPL work is not contaminated. (The GPL contradicts itself in this matter, but the escape remains.) In this case, the non-GPL part can hardly said to be "based on" the GPL part. Copyright law doesn't care about what an OS needs; each part is just a separate work of authorship. Saying that a non-GPL part created before a GPL part is "based on" the GPL part is ridiculous (though date of creation gets to be a messy subject). > If all of FreeBSD were under the 2 clause BSDL, then the FSF would > claim compatability of the license with GPL. It's not all under > that license, however. But let's say for the sake of argument, it > was. I would argue that the FSF's legal theory was wrong, since > you can not license BSDL'ed code under a different license (e.g. > the GPL) unless you are the copyright holder, or have an assign > from the copyright holder(s): the BSDL is what permits you to use > the code, and you are not permitted to change the license. The > closest you could get would be an aggregate license, like the UofU > "OSKit" GPL license. Excepting the last stentence which I don't understand (yet), I agree. In fact, the BSDL'd code doesn't even fall under the copyright of the licensee of the joint work; any conditions put on it by the GPL are of no effect in court. 17 USC 103b: The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. So I think you are saying that since the deriver can't put such conditions on the BSDL'd code (unless he is the owner?), then he can't agree to the GPL nor use the GPL code with the BSDL'd code at all. I guess I have to agree. Wow! > > The non-derivative code could even be put into the public domain. > > I believe that the BSD code would all be in the Public Domain > already, if there wasn't a need for a "hold harmless" to stave > off litigation. If the Congress could see fit to imply a "hold > harmless" for works placed in the public domain, most of my code > written on my own time for the purposes of reference would be > placed in the public domain already. Using the BSDL doesn't "stave off" the litigation, but it lowers the risk to more acceptable levels. And it's not as risk free as you might think, because the BSDL (and the GPL) allow people to get ahold of and own the software without having read or agreed to the terms of the licenses. Such people, presumably assuming that it is under copyright, can't distribute it, but the law allows them to run the program, which might harm them, leading to the litigation you tried to avoid. And I see no reason it couldn't be sucessful litigation, unless there's a more basic law that you aren't libel for things done with your stuff which you've let people use for free. (Doesn't work for swimming pools, though.) Does this mean we need "read and click to signify agreement" filters (virtual shrink wrap) on open source software? > I think that you would end up with a derivative work of BSDL'ed code > that lived in the Linux kernel _only_ because of the exception in > the Linux license granting treatment of the kernel as an LGPL'ed > library for the purposes of access to kernel services. ... > Linux kernel is treated as an LGPL'ed library due to a specific > exception granted to licensees to allow the use of commercial third > party drivers. As I showed (with a clip from the Linux kernel's COPYING) in a message yesterday (or just look at GPL claims in most of the source code), it's not clear that there is any such exception; it's probably just Linus' questionable understanding of the meaning of the GPL. Notice that it is "signed" by Linus, not the copyright owners. I guess it is an exception in practice, though. Nobody's getting sued. To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
Want to link to this message? Use this URL: <https://mail-archive.FreeBSD.org/cgi/mid.cgi?2c3d2c85pa.d2c>