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Attorney Dan Ravicher on Open Source Legal Issues

Roblimo posted more than 13 years ago | from the ignorance-of-the-law-is-no-defense dept.

The Courts 155

Quite a while back we asked Dan Ravicher, a young attorney who is personally interested in Open Source and Free Software licensing issues, a bunch of questions on the subject. We waited and waited for his answers, and the wait turned out to be worthwhile because Dan ended up writing what amounts to a legal FAQ for Open Source and Free Software developers. This is important reading for anyone involved in any way with Open Source or Free Software development.

Attorney Interview Disclaimer:

Legal opinions posted on Slashdot are for general information purposes only and should not be taken as specific legal advice. If that's what you need, you should consult a lawyer familiar with the laws in your jurisdiction about your situation. Also, please remember that everything you read here represents Dan's personal opinion, which is not necessarily shared by his employer, Brobeck, Phleger & Harrison LLP, or any of Brobeck's nearly 1000 other attorneys.

Now the interview itself...

When will source code be considered speech?
by LordNimon

Every programmer knows that source code is speech, and should be protected like any other speech. However, the courts just don't seem to realize that, probably because none of the judges have ever been programmers. What would it take for the court system to generally acknowledge that source code is speech, and how long will it take for that to happen? What do you think will be the biggest ramifications if/when it does happen?

Dan

SHORT ANSWER

Source code is speech, but not all speech receives the same amount of First Amendment protection. Due to its functionality, source code cannot receive the highest form of First Amendment Protection. But source code that is expressive in nature may receive some First Amendment protection.

LONG ANSWER

I have some good news and some bad news.

The good news is that the few courts to consider the issue concluded that source code is speech. Further, in the DeCSS case, it seems as though the federal appeals court in New York will uphold the lower court judge who also concluded that source code is speech. However, the bad news is that the First Amendment's protection of speech is not absolute and not all speech gets the same amount of First Amendment protection.

The amount of protection given particular speech depends upon it's content. While some speech can easily be categorized as political, commercial, verbal acts or otherwise, First Amendment analysis often looks at the speech's expressiveness as opposed to its functionality to determine the corresponding level of protection. Purely expressive speech regarding public affairs, politics and government (think "F--- the draft!" on the back of a jacket worn by an individual with no intent to cause imminent lawlessness) gets heightened First Amendment protection, while purely functional speech (think "Do you have any drugs?" to an undercover police officer or "I accept" to a party which has offered a contract) gets little First Amendment protection. This leaves speech which is both expressive and functional, such as commercial speech (think "Eat at Joe's!"), lying somewhere in the middle. Further, indecent speech (think adult porn) gets very little protection while obscene speech (think child porn) gets no protection whatsoever.

Since source code is by its nature functional, it seems unlikely that any court would ever find that it is purely expressive. However, the courts which have addressed the issue have concluded that source code can also be expressive. In fact, in 1999 a federal court in California wrote, "While source code can be easily compiled into object code by a user, ignoring the distinction between source and object code obscures the important fact that source code is not meant solely for the computer, but is rather written in a language intended also for human analysis and understanding." Therefore, there is no universal answer to the question of how much First Amendment protection applies to source code. Rather, the issue depends in part on the particular expressive versus functional nature of the source code in question.

However, although the speech involved may be an important element, the true focus of First Amendment analysis is whether a particular law unconstitutionally abridges free speech. Courts ask whether a particular law violates the First Amendment, not whether particular speech deserves First Amendment protection. Therefore, speech can not be looked at in isolation. Rather, a particular law must be looked at to determine how it affects speech. Laws aimed at speech with a certain message are deemed "content-based" and most often receive heightened scrutiny. On the other hand, laws which are "content-neutral", such as time-place-manner restrictions, most often receive less scrutiny. For instance, in the DeCSS case, the court is looking at the Digital Millenium Copyright Act to determine what level of scrutiny it shall receive in relation to its regulation of speech.

Another issue which deserves attention is the fact that the First Amendment rights we all have are alienable. That is, we can bargain away those rights through a contract. Confidentiality agreements are a prime example of one party giving up their right to speak which are routinely enforced. This issue as it relates to license agreements and their prohibition against publishing reviews or benchmark test results is addressed in response to question 8 below.

OFF TOPIC RESPONSE TO COMMENT

Lastly, I just wanted to respond briefly to your comment about judges not being computer programmers. While this is true, so is the fact that most computer programmers are not lawyers. However, this doesn't prevent computer programmers from understanding difficult legal issues. Likewise, judges are generally capable of understanding computer programming issues.

No funds, no change of winning?
by antis0c

I'm a freelance programmer, and like most programmers I do it for the love of the "art", and because of that most of my creations are licensed under GPL.. However, my question is, what would happen if Big Corporation X were to take my code, integrate it into a proprietary system, and sell it for millions, ignoring all demands to release source to the modifications (and thus breaking the GPL). What could I honestly do besides writing letters threatening legal action?

I obviously don't have the funds to compete in the courtroom with Big Corporation X, and even if I were to try, the expense and time alone would set me into debt for probably the greater part of the rest of my life. What chance does the GPL or any other Open Source licensed software have, if a good part of it's development team is composed of just average guys with bills, debt and little free time?

Dan

SHORT ANSWER

Keep writing good code.

LONG ANSWER

You are correct; without substantial resources, it is extremely difficult to successfully enforce your intellectual property rights against a major software company. However, I strongly urge you to not underestimate the power that individuals and small organizations have to cause change.

For instance, you could assign your rights to an entity who is sympathetic to the open source movement and who has the resources to vindicate your interests. Many large entities in the open source world (including the Free Software Foundation and Sun) ask developers to assign their interests back to them. This coalesces the ownership into one entity which has the resources to bring legal actions to assert the copyright interests in the code. [Note: This is discussed further in response to question 9 below.] Further, it might be possible to find a law firm willing to take a copyright infringement case on a contingent fee basis. This prevents the "little guy" from being denied "his day in court."

Also realize that the courtroom is not the only place (in fact not even the most important place) you can compete with Big Corporation X. The court of public opinion often favors the David over the Goliath. The key here is to make sure the general public knows how you are helping them, and that "hacker" is not a negative term. Small businesses are often noted for better customer service, better product and better innovation than their multi-national counterparts. Further, publicity is very inexpensive and can be extremely helpful. For example, just today (June 4, 2001) a New York Times article with the headline, "Open-Source Movement Advances," presented the free software movement and the open source concept in a very positive light.

In the meantime, it is my view that the best thing you can do is keep writing code. And not just any code, write the best damn code you can. Write code that is pioneering and revolutionary and causes the entire software development community to recognize it as singly that of the open source realm. Write code that solves problems closed source developers don't even know exist. Spend your valuable time addressing programming issues, not legal ones. After all, you chose to be a programmer, not a lawyer.

Now, this may lead to your code being more desirable in the eyes of those with bad faith intent, but it will also be more attractive to those with good faith intent. I encourage you to be receptive to all who wish to learn about and support your programming, including non-programmers such as business people, lawyers, students, etc. Once there's a gathering of individuals around your code (or a project which your code is part of), it won't be as hard to organize an effective intellectual property defense scheme. Odds are that someone in this group will have the legal, business, public relations, or other training and experience to worry about those issues while you continue to write damn good code. If you, the other developers, and the supporting folks pool resources, you may soon have sufficient capability to vindicate your combined interests.

Further, I urge you to not be overly cynical about our justice system. Yes, there are flaws which subject our legal system to manipulation and abuse and, yes, things move slowly and sometimes backward for periods, but I truly believe that our system is pretty good and eventually produces the correct results.

Public Domain
by Flying Headless Goku

A common justification for choosing an open source license, and putting up with all the license-compatibility issues, over simply releasing the code into the public domain is fear of litigation. Do you believe that the creator of public domain software (perfection disclaimed, use at own risk) is at any greater legal risk than the creator of open-source licensed software in the case of costly software failure? (I'm especially interested in any relevant precedent you are aware of)

Dan

SHORT ANSWER

Yes.

LONG ANSWER

Yes, one who releases code into the public domain has greater litigation exposure than one who only releases the code through valid contracts (licenses) which include limitation of liability and disclaimer of warranty terms. The default rules for relationships amongst parties (the ones that apply in the absence of a valid contract) are based in tort and include negligence, warranties and other basis of liability. However, when the parties enter a valid contract, the contract's terms supercede the default rules unless the terms violate a statute, a constitution or public policy. Limitation of liability and warranty disclaimers contained in valid contracts (which are used to limit risks to the developer) are routinely upheld by courts.

However, whether mass-market public software licenses (such as the GPL, MozPL, IBMPL, etc.) are enforceable has yet to be addressed, or even litigated. This is why I wrote my paper; the uncertainty surrounding the enforceability of such licenses causes inefficient waste by those parties who wish to use such licenses in that they will have to assume risk associated with this uncertainty.

Microsoft Licensing
by Alien54

In your detailed paper, you note:

37. For instance, under the first sale doctrine, an owner of a piece of software can transfer her program to whomever and for whatever she desires. The use of a license prevents this doctrine from applying, which allows computer programming firms to price-discriminate between customer characteristics. If Microsoft wants to give Windows software to public schools at a cost blow the production cost and the transaction consummates a sale, the first sale doctrine would apply, and the school could resell the programs at a higher price to a corporation, retaining the difference. This would cause Microsoft to charge all customers one price, either by lowering its price, forcing it to run at a loss, or raising its price, thus making the program unavailable to schools and other meagerly funded organizations. This result is economically inefficient and would most assuredly be politically unpopular.
I am interested on the implications of the fact of Microsoft's monopoly in as it applies to licensing. While it can be argued that the two issues are separate, and one is not relevant to the other, many people look at the practices of Microsoft in this regard and view it with horror and contempt. Are there instances where such licensing practices impose a non-legitimate enforcement of "rights", and in fact constitute improper maintenance of a monopoly? Or do people have these separate issues confused, when they should be treated separately?

Dan

SHORT ANSWER

Yes, intellectual property licensing implicates antitrust law. License provisions which have a net anticompetitive effect are illegal.

LONG ANSWER

Yes, since intellectual property licensing can be anticompetitive, antitrust law is implicated. Antitrust law holds that any anticompetitive effects of intellectual property licensing are permissible only if they are outweighed by their procompetitive effects. One highly important factor in this analysis is the market power of the parties involved, specifically if either party is a monopoly.

As you mention, the Department of Justice deemed Microsoft ("MS") to have a monopoly in certain markets and to have engaged in licensing with net anticompetitive effects. MS first came under scrutiny for its licenses with OEM's that were designed to achieve long term exclusivity. That time a settlement was reached by which Microsoft agreed to reduce the term of it's agreements and allow for OEM's to install other operating systems on their computers. The second round of scrutiny currently under review by a federal appeals court in Washington involves MS requiring the bundling of Internet Explorer with Windows and is still being litigated. The dispute in that case centers around whether MS has monopoly power and whether the intellectual property licensing provisions at issue have a net anticompetitive effect.

Images and Sounds
by K45

How does the GPL affect non-sourcecode files that are part of an application?

Specifically, I'm concerned about the images and sounds that are included with a game I'm working on.

Does the GPL "contaminate" these other files that are included? If so, how do "source" and "binary" distribution apply to images and sounds.

Dan

SHORT ANSWER

The GPL may "contaminate" sound and image files if they are part of a whole work, and that work is based on a GPL licensed program.

LONG ANSWER

The relevant part of the GPL reads,

If identifiable sections ... are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it. ... the intent is to exercise the right to control the distribution of derivative or collective works based on the Program. In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.
Therefore, under the GPL, if the non-source code files are "distributed as part of a whole which is a work based on the [GPL'd] program," then the whole application, including those non-source code files, must be distributed under the GPL. However, if the non-source code files are not "based on the [GPL'd] Program" and are "merely aggregated" with the GPL'd program for distribution, then those non-source code files do not have to be distributed under the GPL. This means that the issue lies in how the non-source code files are incorporated into or with the GPL'd program.

If no source code exists for parts of the work, section 3 of the GPL states that "the preferred form of the work for making modifications to it," must be distributed in order to satisfy the "source" distribution requirement. Since I have very little technical knowledge, I'm not sure exactly what is "the preferred form" for making modifications to image and sound files.

There are also two other issues which you might want to think about. First, no court has yet ruled on the validity of the GPL. Therefore, the above section may be held unenforceable. Second, if you are the complete owner of all the copyrights in either the non-source code files or the program, you have the ability to license those copyrights under both the GPL and other licenses, if you so choose. Say for instance, a GPL'd game comes your way and you wish to add graphic X. You create graphic X in a way which creates in you all its copyrights. If you then incorporate graphic X into the game, the enhanced game must be distributed under the GPL. However, you can also distribute your graphic X under other licenses, including closed source.

Helping avoid contributory and vicarious liability
by cworley

Fred von Lohmann wrote a White Paper for the EEF concerning avoidance of "contributory and vicarious copyright infringement" (being liable for writing software that promotes "fair use", but can be used for copyright infringement).

In that, he states guidelines for developers. One of the guidelines is: "Be open source".

I would think Open Source would set you up for liability in such matters: anybody who modified your code, making it able to infringe on copyrights, would make you vicariously liable for opening the code in the first place.

Or, take for example, TiVo. Their systems are open source, they've posted their kernel and tool modifications on their web site (as per the GPL). Now they're worried that someone could use that to easily create code that will allow MPEG extraction from the unit (and widespread distribution of copyrighted materials).

I'm not sure how being open source can protect a software developer from such litigation.

Can you explain this?

Dan

SHORT ANSWER

Whether one is liable for contributory and vicarious copyright infringement is an extremely fact specific inquiry. Being open source, by itself, does nothing to absolve one of liability for contributory and vicarious liability.

LONG ANSWER

For those who have not had the opportunity to read von Lohmann's paper, let me restate the underlying law regarding contributory and vicarious copyright infringement before addressing your question.

Neither contributory nor vicarious copyright infringement claim that the defendant violated any copyright; rather they claim the defendant helped or benefited from someone else's copyright infringement. First and most obvious, both forms of liability require the copyright owner to show actual copyright infringement by someone. Whether or not the source code of the program is released to the public won't make a difference on the finding of this element.

Along with the showing of actual infringement, contributory infringement requires the plaintiff copyright owner show (1) the defendant actually knew or reasonably should have known of the direct infringement at the time (2) the defendant induced, caused or materially contributed to the direct infringement. For instance, one can be liable for contributory infringement if they release a software product that is used to infringe copyrights without any substantial non-infringing uses. Vicarious infringement requires the plaintiff copyright owner to show (1) the defendant could control or oversee the direct infringement and (2) the defendant received benefit from the infringement. Since element (2) for both of these tests has been relaxed by the courts, the discussion properly focuses on the knowledge element for contributory infringement and the control element for vicarious infringement.

Being open source in and of itself most likely won't make any difference for these elements. However, being open source, as opposed to proprietary, may make it easier for the initial developer (or one way upstream from the current version) to argue lack of control or knowledge, especially if the project undergoes significant development by downstream developers without any involvement or control by the original author. This requires the open source code to be entirely released without any continuing control, monitorization or ownership at a point well before the time that the code is known to have infringement capabilities. [Note: reasons why open source developers may want to keep control and/ or ownership over their projects are discussed in the responses to Questions 2 and 9.]

Therefore, if the open source developer retains control over the program or if the version of the program used to commit copyright infringement is similar to the version of the program originally released by the open source developer, being open source does nothing to reduce potential contributory or vicarious copyright infringement. Other actions, such as providing maintenance or support, might also support a finding of contributory or vicarious copyright infringement.

Without putting words in his mouth, what I think von Lohmann was trying to say was not "be open source", but rather "be extremist" by selecting either "total control or total anarchy" as he puts it. He advocates either retaining complete and entire dominion over your code and the users of your code so that you can prevent any copyright infringement or, at the other extreme, releasing the code entirely to the public without any ability to control or determine how it develops. In order to decide which is better for a project, this benefit of a potential reduction in liability exposure should be measured against the associated consequences of loosing all ability to control or receive financial benefit from the project.

RELATED DISCUSSION

Lastly, when thinking about contributory and vicarious liability, open source developers should also consider the Digital Millenium Copyright Act (17 U.S.C. 1201). The DMCA isn't directly concerned with copyright infringement, rather it addresses the technological measures that some copyright owners use to control access to their works. For instance, a court recently held (and the issue was not appealed) that CSS is a technological measure that effectively controls access to movies. In essence, the main copyright laws protect the property, while the DMCA protects the fence which the property owner erects around her property.

Specifically, the DMCA states that as of Oct. 28, 2000, "No person shall circumvent a technological measure that effectively controls access to a work." Further, the DMCA says the following:

No person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product service, device component, or part thereof, that -

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work.

As the DeCSS case demonstrates, these provisions expose software developers to potential liability if they create programs which can be used to defeat technological measures.

Big ballpark hypothetical
by wrinkledshirt

Okay, some unknown hacker creates his/her foo application and releases the source under GPL. Something occurs that leads him/her to suspect that the foo source has been incorporated into a commercial product that isn't following the terms of the GPL with regards to rereleasing the source. Furthermore, the things that lead him/her to suspect this aren't basic paranoia -- someone with a conscience and access to the suspect source has leaked information about it or whatnot. Or maybe something else -- point is, there is a case that could be made.

From a PRACTICAL standpoint, what sort of things would this unknown hacker have to do to make their case? Would it be possible from a practical point of view under (eg) the United States legal system for this unknown hacker to take the company to court? What sorts of costs would he/she incur? What sort of time-frame would it take to achieve resolution? What sorts of potential rewards or compensation could he/she expect? Are there any precedents that are analogous to this situation?

Dan

SHORT ANSWER

It would be difficult, but not impossible for an individual computer programmer with little or no money to vindicate her copyright against a major corporation. Resolution could take between several months and several years. If successful, she can enjoin the infringing activity and receive money damages.

LONG ANSWER

Practically speaking, the unknown hacker should seek legal counsel who is familiar with litigating copyright law in the context of software source code. And, yes, it is possible for an individual to take on a major corporation, such as by enlisting the help of others (possibly even a friendly corporation) or, in the rare instance, by a law firm taking the case on a contingency fee basis. [For more discussion of this, see the answer to question 2 above.] Such a copyright case can last anywhere from several months (if settled during or shortly after discovery) to several years if the case goes to trial and appeal.

Copyright Infringement occurs when someone other than the copyright owner exercises one or more of the exclusive rights of the copyright owner. An unauthorized use of the copyrighted material exposes the infringer to criminal and/ or civil liability under U.S. copyright law. Further, the copyright holder in a civil case does not have to prove intent to infringe by the defendant, but only that the act of infringement occurred. The defendant corporation would likely defend the case vigorously by, among other things, asserting a variety of defenses including the affirmative defense of fair use.

Once a copyright holder proves copyright infringement, she can recover actual damages and lost profits if they can be adequately proven. Otherwise, if the copyrighted work was properly registered, the copyright owner can get attorney's fees and statutory damages, which can be as high as $150,000, without any requirement of actual proof of harm. Copyright holders can also seek an injunction to prevent the alleged infringement from continuing during or after the litigation.

Also, as a side note, it would be difficult for a case to rely entirely on individuals "with a conscience and access to the suspect source." For one reason, they are probably in violation of their employee confidentiality agreement by telling anyone about what they know to be in the suspect source code, so they may not want to come forward to testify. Consequently, it would be helpful to discover other evidence (documents, sworn testimony, etc.) supporting the allegations.

As for precedent, in the case LMP v. Universal Lighting, a law firm took a technology-related case for a couple of garage inventors on a contingency fee basis and won a $92 million judgment. Although it took several years and a couple appeals, the plaintiffs eventually had their rights vindicated.

Supremacy Clause and shrinkwrap "no review" terms.
by coats

Daniel, you write,

59. There is a huge flaw with this core of these Supremacy Clause preemption arguments. The underlying rationales given for performing a separate Supremacy Clause preemption analysis are exactly the same arguments made for finding the license procedurally or substantively unconscionable under state contract law.
How does this square with shrinkwrap license clauses that demand no one publish reviews or benchmarks without permission? Both Microsoft and Oracle employ such clauses, for example. It would seem to me that this conflicts with the original (1823?) Supreme Court decision that established the "fair use" doctrine -- the Court declared that Congress might not pass a copyright law so stringent as to restrain freedom of speech nor freedom of the press... and benchmarking and publishing the results certainly is a legitimate exercise of the latter! And the subject would seem to me to be precisely a Supremacy Clause argument...

Dan

SHORT ANSWER

The rights given to individuals by the Constitution and Congress are mere default starting positions which can be freely transferred by contract. As long as a contract is validly formed, the Supremacy Clause will not undo the bargain struck by the parties.

LONG ANSWER

The Supremacy Clause of the Constitution preempts any state law which "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Some argue that state contract law which enforces software license provisions such as prohibitions against publishing benchmarks or reviews circumvents the doctrine of fair use and the first amendment and, as such, should be preempted by the Supremacy Clause. Those who advance this argument believe that parties should not be allowed to use contracts to undo the congressional fair use balance struck between the right of copyright owners to control the use of their works and the Constitutional right of individuals to the freedom of speech. However, the accepted view is that individuals have the right to contract around the fair use balance struck by Congress. Therefore, copyright law and the Constitution supply mere default rules, which only apply in the absence of an agreement between the parties.

The Constitution also gives us the right to give up our rights (think Miranda warning, "You have the right to remain silent; If you choose to waive that right and talk, we can use what you say against you."). We can also exchange the rights we are given initially for other rights (think confidentiality agreements which say "I agree to restrict my right to tell people what you show me, if you also agree to restrict your right to tell people what I show you."). Validly entered contracts are the vehicle by which rights are exchanged. And although there are some differing points of view, the widely accepted theory is that the Supremacy Clause has no application to validly entered contracts. Therefore, as long as they are part of a validly entered into license agreement, the anti-publication of benchmarks or reviews provisions are completely legal and enforceable.

RELATION TO OPEN SOURCE LICENSING

Contrary to what I sense is your feeling, it is my view that the open source community should be encouraged by this result for the simple reason that several provisions in the most common public software licenses (the GNU General Public License and the Mozilla Public License) could also be deemed to limit the fair use rights of licensees. For instance, the GPL requires the licensee to license under the GPL any future work which includes part of the licensed work. This arguably prevents someone from making a fair use of GPL'd code (for example, by taking a small line of code and incorporating it into a million line program which is part of a doctoral thesis). However, by entering into the GPL, the licensee possibly waives her right to make any such fair use. If the Supremacy Clause was to preempt this provision, the intent and strength of the GPL would be seriously thwarted. Therefore, it is good for the free software community that the Supremacy Clause does not strike provisions of validly entered software licenses.

Further, there is another reason why the open source community may be benefited by the anti-publication of benchmarks or review provisions of closed-source licenses. Assume two software products compete in a market, one is closed source and licensed under terms which include the anti-publication provisions mentioned above while the other is licensed under a public software license, such as the GPL. The open source product will presumably be or become the subject of published benchmark reports and reviews, while the closed source product will not. Educated consumers may be less likely to purchase the closed source product because they have no available information regarding its performance or quality. Further, even if there are published benchmarks and reviews for the closed source software, educated consumers may recognize that those reports and reviews were only published with the consent of the closed source company. This fact will detract from the reliability and value of the report or review to the consumer. So at least in theory, the anti-publication provisions may actually hinder the closed source product's ability to compete with open source products in the marketplace.

Contributor Agreements
by dood

I'm one of the lead developers on the Open Source project Jive. Many of our contributors work on the project as part of their job duties at their place of employment. In light of that, we've been considering a mandatory Contributor Agreement for all code that is submitted to the project (excluding one-liners).

We want the agreement to accomplish three things:

1. Stipulate that the code is being released to the project under the project's license (for our project this is the Apache License).

2. Ensure that the contributor has permission to release the intellectual property to the project, including any necessary permission from their employer.

3. Make sure that the contributor does not apply for patents for the code that they're submitting.

My question is:

1. Do you see legal value in this sort of agreement?

2. Do you know of any boilerplate agreements that exist?

3. Shouldn't more Open Source projects be worried about IP issues that a contributor agreement seeks to prevent?

Dan

SHORT ANSWER

Yes, there is legal value in this sort of agreement. Yes, there are "boilerplate" agreements available, but I strongly advise against relying on them entirely. Yes, the managers of open source projects should consider the intellectual property issues involved with their project and consider the appropriateness of a contributor agreement.

LONG ANSWER

From a purely legal standpoint, such an agreement provides several benefits to open source projects. The potential for your project to incorporate submitted code that actually belongs to someone else (namely the contributor's employer) creates a risk for your project. Requiring contributors to confirm that they have permission to release the code to your project helps to reduce your exposure to third party intellectual property infringement claims. In addition to having the agreement for legal reasons, it could also be helpful to also post a detailed FAQ about why such an agreement is needed and who a contributor can contact if they (or their employer) have issues or questions.

It should please you to know that several members of the open source community, including the Free Software Foundation and Sun, already go about protecting their open source projects by requiring contributors to complete similar type agreements. However, one difference between what I've seen and what you propose is that such agreements do not forbid the contributor from applying for patents; rather they require the contributor to grant a license to any future patents she receives to the project as well.

As for "boilerplate" agreements, at the risk of sounding self serving, I encourage you to have a lawyer review any documents before using them for your project. The time and money you invest will ensure that the agreement complies with the specific laws of your jurisdiction while also addressing and satisfying the specific needs of your project.

How Can We be More Effective?
by bwt

The open source community interaction with law and politics to date has been almost completely reactive. Typically some company or government institution has or is about to do something draconian before we are able to mobilize. Sometimes we get there in time, sometimes not. Examples are: DMCA, UCITA, and hundreds of software patents, Microsoft's embrace and extend campaign of the week, ... the list goes on.

What can we do as a community to be more effective in protecting ourselves. I'm someone who has joined the EFF, written letters to the copyright office, participated heavily on Openlaw, and written letters to my Congressmen. Many of us are involved in these ways, but somehow we've got to take it up a notch. What's the next step?

Dan

SHORT ANSWER

I strongly believe that the free software movement has been and continues to be incredibly successful in the only arena that matters, the market place.

LONG ANSWER

I think you don't give yourself enough credit. The impact free software has had in such a short period of time is simply amazing, especially when one considers the economic disadvantage open source supporters have in relation to those who oppose them. Being reactive is not necessarily a bad thing; it's much better than being alienated, indifferent or complacent. But, since you asked, I make a few suggestions below, which may help the free software movement continue to progress at its already extremely productive rate.

My first suggestion is to recognize what has been accomplished. Often it is easy to focus on what has not been done or what has gone wrong, but every once in a while, it is necessary to appreciate the achievements of the past. Although you believe the open source movement lost certain legal battles (such as DMCA, UCITA, software patents, etc), what matters is the war in the marketplace. In my opinion, open source development has been galvanized, not thwarted, by these "losses." To support this conclusion, I simply point to the amount of press open source software has received to date and to the number of major corporations, including IBM, HP and Netscape, who have made severe commitments to the ideas behind the free software movement.

My second suggestion is for open source developers to keep writing good code. After all is said and done, people care about getting the best product they can at the cheapest price. The free software community has already proven to many people that it provides a competitive and sometimes superior alternative to proprietary software development. Although legal issues are important to the success of an open source project, they should always come second to the technical development of the code. It is my opinion that law does not lead the market, rather the market leads the law. Therefore, winning in the marketplace will lead to winning in the legal system, not vice versa.

My last suggestion is to encourage the open source community to take advantage of the marketplace of ideas. Although some individuals deserve a little more credit than others for the achievements of the free software movement, the key to the success of open source software development has been the involvement of vast numbers of individuals. To this end, I would encourage those in the free software movement to welcome varying points of view. Limiting the amount and kind of ideas which are presented and discussed will serve a great disservice to the movement. Only through (sometimes heated) debate will the most merit-worthy principles reveal themselves.

But again, I reiterate that it is my sincere opinion that the accomplishments of the open source movement to date can only be described as remarkable.

"Special Guest Comment"
by Richard M. Stallman

I'm glad that people are interested in asking about the GNU GPL, but while asking, please keep in mind that the GPL was not developed by the Open Source Movement, and really has no connection with it.

The Open Source Movement was founded in 1998 by people who disagreed with the Free Software Movement's idealistic goals. Many open source developers use the GNU GPL for pragmatic reasons--to make sure that their programs won't be "embraced and extended" into proprietary versions. Anyone is welcome to use the GPL, for whatever reason. But in order to understand the GPL, you need to think of it as a free software license, not as an open source license.

I wrote the GPL in the 1980s as part of the Free Software Movement. The goal of the Free Software Movement is to give computer users the freedom to share and change the software that they use. The GPL is designed specifically to achieve that goal--to make sure every user of a GPL-covered program has the freedom to share and change it.

Dan

Mr. Stallman is indeed correct. However, since the practical, as opposed to theoretical, legal differences between free software and open source are minimal in comparison to their collective differences with proprietary software development, my responses above use the terms interchangeably. By doing so, I do not intend to imply that all public software licenses are the same; just as I do not intend to imply that all proprietary software licenses are the same by also grouping them together in my answers. Lastly, Mr. Stallman's point that the GPL differs from other open source licenses reinforces my suggestion above that individuals should seek specific legal advice for their specific circumstances.

cancel ×

155 comments

Re:misconception (1)

Anonymous Coward | more than 13 years ago | (#174915)

Engineers are not just lego stackers. Engineers solve problems using the knowledge and tools available to them. This is essentially the same thing programmers do. They often just have a different toolbox.

How the 'little guy' can win the mentioned cases (2)

Anonymous Coward | more than 13 years ago | (#174917)

With a Beowolf cluster of Attorney Dan!

hmm (4)

Anonymous Coward | more than 13 years ago | (#174918)

Therefore, under the GPL, if the non-source code files are "distributed as part of a whole which is a work based on the [GPL'd] program," then the whole application, including those non-source code files, must be distributed under the GPL. However, if the non-source code files are not "based on the [GPL'd] Program" and are "merely aggregated" with the GPL'd program for distribution, then those non-source code files do not have to be distributed under the GPL. This means that the issue lies in how the non-source code files are incorporated into or with the GPL'd program. If no source code exists for parts of the work, section 3 of the GPL states that "the preferred form of the work for making modifications to it," must be distributed in order to satisfy the "source" distribution requirement. Since I have very little technical knowledge, I'm not sure exactly what is "the preferred form" for making modifications to image and sound files.

And I thought one of the reasons to use Free Software was to avoid complex licensing issues? The GPL seems to have as much controvery as any other license, whether or not it is even enforceable hasn't been proven yet in court. I hear all the time that using Linux "avoids all the licensing crap of MS". Well, after reading this, I'm not so sure about that. The GPL seems just as complex and irritating, if not more, than any of those lame EULA I click "agreeing" to.

Re:Programming is mostly solo (2)

Skyshadow (508) | more than 13 years ago | (#174919)

I contend therefore that Judges and Lawyers do not understand the creative process involved in writing computer programs, and are therefore unqualified to make laws regarding them.

Hello in there, Chris. What color is the sky in your world?

It's fair to disagree with the way the system works, but retreating into the little fantasyland of your own imaginary world isn't a really good way to go about it (much less wasting bandwidth by shooting your load all over Slashdot). I mean, I think that rock stars shouldn't get the Supermodels and that I should, but that's not happening, either.

Besides, if you're doing most of your programming solo, you're probably in the minority. In my experience (and I do tend to work for places that make appliances, not straight hardware), software development is massively collaborative.

----

Jeez... (3)

Skyshadow (508) | more than 13 years ago | (#174920)

Man, it would have given me a lot more confidence if he hadn't begun each answer with "IANAL".... :)

----

Re:An idea to prove the GPL. (3)

Have Blue (616) | more than 13 years ago | (#174922)

I suspect that this sort of thing (cooperation between two sides of a lawsuit) is highly illegal.

Complexity begets complexity (4)

Tony (765) | more than 13 years ago | (#174924)

Of course the GPL is complex. IP law is complex; the GPL is designed for one purpose-- to short-circuit IP law. To do that, it has to address every possible point of IP law.

If you look at the GPL, add all its parts up, subtract the IP-circumvention bits, you end up with one simple philosophy:

I will share with you if you share with me.

It's simple, it's beautiful, it's fair.

Who stands to gain the most from BSD licenses? Anyone who takes a BSD-licensed product and makes it proprietary, that's who. For instance, Microsoft's ip stack (and many of the programs) were taken straight from BSD-licensed code. What did MS gain from this? Everything. What did the people who wrote the code in the first place gain?

Nothing.

The fragmentation of Unix came about because of the BSD-licensed code that Scott McNeally used to create SunOS. IBM, HP, et al soon followed suit. If they had used GPLed code instead, they could have contributed back to a common core and differentiated themselves on hardware instead (which is what really counted to start with).

The BSD is great only if you don't mind that your code is taken by someone else to make money. Personally, I don't want that to happen.

Re:An idea to prove the GPL. (2)

Jason Earl (1894) | more than 13 years ago | (#174925)

What's really needed is a small time software company that has admitted to "borrowing" a piece of GPLed software for inclusion in its commercial product, and who is still dumb enough to not cave in to the Free Software Foundations demands.

The /. story about VirtualDub seemed to me like a good case (unfortunately the FSF isn't the copyright holder).

Here's to hoping that the folks who "borrowed" the virtualDub software are dumb enough to actually go to court.

Re:...but some animals are more equal than others (2)

Phillip Birmingham (2066) | more than 13 years ago | (#174926)

Oh thats scary, isnt this exactly what happened in the book animal farm? This slow chipping away is beginning to unnerve me. Really I believe animal farm is almost as important if not more important to our present day politics as 1984.


"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." -- Justice Oliver Wendell Holmes, Jr.

Re:Confusion (2)

cpt kangarooski (3773) | more than 13 years ago | (#174929)

I beg to differ.


I too have found that the GPL is utterly irrelevant for actual usage. Additionally, I find the mere existance of software licenses in nearly all cases - with an exception for the GPL's as it pertains only to copying - abhorent and unecessary.


I would also like to point out that you are utterly and demonstrably WRONG. Term 0 of the GPL states:


This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.



Now, if everything I've read about the GPL is incorrect, including the GPL itself, I'll be pretty surprised, I can tell you that.


The GPL explicitly applies only to the modification of the software and the creation of copies and distribution therof. Furthermore, for a user who does not agree to the license, the statutory exceptions of 17 USC 117 permit him to make whatever copies are necessary (e.g. copies to RAM) in order to run the software, and to make backups. The copyrights of software publishers have not applied to those matters for AFAIK over two decades. Indeed, one wonders how legal a license that dealt with such matters would be given that the copyright holder is not a factor anyway.


Refusal of the GPL does not require an alternate form of permission from the copyright holder in order to obtain a copy. In order to make this clear, as it's difficult to express, I will employ an example.


A programmer, Foo, has agreed to the GPL of a piece of software, and distributes copies. As part of his obligation to distribute them (which he wishes to fulfill) he has them available for download on an ftp site.

Bar, a user, wants to use the software, and downloads a copy from Foo's site. However, being more legally astute than you, he finds that the GPL is unecessary for his purposes, and declines to agree. Nevertheless he can legally posess, run, make backup copies of and transfer (not copy) what he downloaded all he likes.



Although this appears to be a copyright violation - Bar made a copy w/o agreeing to the license - it is not. Because Foo has permission to grant permission to others to make copies as a function of his duty to distribute it. Additional copies made by Bar would be infringing, except when permitted by law, such as in the case of backups and incidental copies needed to run it. But any copies he downloads are perfectly legal.


Your statement "Take this program..." is accurate, but usage is a whole different matter and thus what you say here is not really germane to this thread. Your next paragraph is wholly in the wrong, however. The license, again, specifically has no bearing on use. Indeed, as a rule copyrighted materials can be used for any purpose under the sun provided that such use does not include the creation and distribution of copies, except where exceptions are made by Congress or the courts.


Posession of a legally acquired piece of GPL software, use thereof, transfer to another - these are all legal and have nothing whatsoever to do with the license. Indeed, one wonders if a license that exclusively dealt with such issues would be at all legal, as it would involve absolutely no consideration by the copyright holder. (i.e. "You agree not to do anything that you're legally allowed to do, except what I say you could do, but which you could have done anyway")


If you disagree, please feel free to point out precisely where in the GPL or in copyright law you find support for your argument. Meanwhile, I'm going to continue to encourage people to use MS software w/o agreeing to the EULA as it is a useless, potentially illegal, after-the-fact license which restricts the rights the user already enjoys having paid for the software prior to opening the box. The GPL at least has a redeeming feature in granting rights one didn't have in the first place.

Re:Confusion (2)

cpt kangarooski (3773) | more than 13 years ago | (#174930)

There isn't one. There doesn't need to be one. In 99.44% of cases regarding copyright holders and the users of copyrighted works, there isn't one either. Software is unusual wrt having licenses at all, and it's mostly a historical accident and the reasons for it no longer apply except in the cases of unusual things like the GPL. MS EULAs are pointless, irrelevant and redundant.

Basically, if I'm a user, so longs as I legally obtain a copyrighted work, I can do anything I want with it, barring making copies, (except in certain cases, such as backups or quotations) making works so derivative that they constitute an infringement, (except in certain cases such as parodies) putting on public performances, (except in certain cases, such as manditory licensing of music) and from distributing said copies.

There is no significant difference for the purpose of this discussion between software and a book. I'd bet money that you do not as a matter of course agree to licenses explicitly or implictly that govern what you may do with a book. OTOH, you are bound by laws which do govern what you may do, but that isn't a contract. You are not licensing the content within the book, and it would be a grave mistake to think so.

Re:Jeez... (2)

Frederic54 (3788) | more than 13 years ago | (#174931)

IANAL= I Am Not A Lawyer
--

Re:Quotation (1)

ChaosDiscord (4913) | more than 13 years ago | (#174932)

You've done Mr. Finkelstein a great disservice by quoting him out of context. The bit about "underscoring the important role lawyers can play in society" is a quote from a lawyer's web site. Mr. Finkelstein's article makes it clear that he disagrees with that interpretation. The title, and point of the article is "'The first thing we do, let's kill all the lawyers' - it's a lawyer joke [spectacle.org] " It's a good article, and I encourage everyone to read it [spectacle.org] .

Re:hmm (2)

ChaosDiscord (4913) | more than 13 years ago | (#174933)

And I thought one of the reasons to use Free Software was to avoid complex licensing issues? The GPL seems to have as much controvery as any other license, whether or not it is even enforceable hasn't been proven yet in court. I hear all the time that using Linux "avoids all the licensing crap of MS". Well, after reading this, I'm not so sure about that. The GPL seems just as complex and irritating, if not more, than any of those lame EULA I click "agreeing" to.

Compared to those EULA's, the GPL is much simpler. You can use the program, make copies for personal use, reverse engineer the software, publish reviews of the software, modify the source, and use the modifications yourself. All without agreeing to the GPL at all. You only need to agree to the GPL when you want to redistribute the program to other people. So far, without even agreeing to the GPL you've avoided all sorts of complex licensing issues. No legal weirdness at all. Basic copyright law. Nothing legally uncertain at all.

Now, for the privledge of redistributing the software to others, you have to start paying attention to the GPL. Sure, it's a bit of a pain, but with most software protected by EULA, you can't redistribute it at all.

So, as an end user, using GPL software is perfectly safe.

(OT) This comment was funny, unfairly modded down (1)

msouth (10321) | more than 13 years ago | (#174935)

How the 'little guy' can win the mentioned cases

(Score:-1)
by Anonymous Coward on Tuesday June 05, @12:37PM EST

With a Beowolf cluster of Attorney Dan!

Now, cmon, that's funny!
--

Re:Quotation (2)

msouth (10321) | more than 13 years ago | (#174936)

Mr. Ravicher is right, open source isn't going to win because it has a license with the legal kryptonite to undo proprietary software. It's going to win when users get tired of exaggerated license fees and bizarre EULA's and because it's technologically superior. He's right, the state of open source is impressive. Look at where Microsoft is after 10 years of dominating the desktop OS/office market and buying up or undercutting their competition and having all major hardware vendors except Apple specifically tailoring workstation hardware to run various flavors of Windows. Then compare the state of GNOME, KDE, and Linux and how much the groups responsible for each have accomplished in less than a decade, often meeting complete apathy or heavy resistance from larger manufacturer's on various fronts

I was also impressed by this recurring advice. Another thing that I liked was how often he batted down "this license abridges speech" arguments. He didn't exactly advertise it, but it brings up the extremely important point that people voluntarily enter into these agreements. Ok, maybe you can make an argument that a business these days is, in fact, forced into using MS stuff (but he (and the courts) have addressed that, as well), but as far as things like DVDs go, no one of forcing you to buy that stuff.

It's easy to blame the big corporations, but it's about as responsible as blaming the Jews. The real problem isn't the RIAA/MPwhoever, it's the unthinking public that will go ahead and buy a DVD that they can't use in a way they want to. All of these problems would be solved if we just said--"what, it's formatted in a way that means I can't legally make a backup copy? No, thnks! I won't buy it!".

Turn your anger toward the consumers. Think "politician : people that vote for them" :: "corporations : people that vote for their practices with their money". The thoughts are equally frustrating. But they are valid.

If you are going to throw your effort at solving a problem, solve the problem of getting people to think (and, possibly the harder part, act based on that thought).
--

Re:...but some animals are more equal than others (2)

ethereal (13958) | more than 13 years ago | (#174939)

This is not new, though, and in fact probably more speech receives First Amendment protection now than it did 200 years ago. Back then you wouldn't have seen courts upholding the rights of unpopular groups to demonstrate, the right to unpopular forms of protest like burning draft cards and flags, etc. I agree that some things are less free than they were (for economic, social, and political reasons), but speech doesn't seem to me to be one of them.

Now all we need is an amendment prohibiting frivolous anti-flag-burning amendments, and we'd be all set on the free speech front :)

Caution: contents may be quarrelsome and meticulous!

The GPL's very long, but is it hard to get around? (2)

Zico (14255) | more than 13 years ago | (#174940)

Whenever someone I know has some code that they want to take from a GPL'd work, I just give them the following pointers for getting around it legally without having to redistribute their own source code.

Take whatever source you want to, but in your final project, slip in a few Easter eggs (I've got a few canned routines which are tiny that I give to my friends). If someone stumbles upon them, they get a pop-up dialog of a picture of Richard Stallman's face (with a little extra bit of rabid look in his eyes, thanks to a little Photoshop manipulation), along with a random silly quote of his, like "Security might make sense with banks and military facilities, but in a computer lab, that is a sign of a social breakdown," or him advocating piracy. No sound effects, but suggestions are welcomed. For console based apps, the random quote is just send to stderr — yeah, not nearly as fun, I know, but some mocking of him needs to be present.

Why the mocking? Well, because that's the basis for using the GPL'd source in the first place. You're just taking the GPL'd code as fair use in your parody of GNU software. See, you're not really selling an Emacs clone with enhancements but no source. You're really selling a RMS parody, with the ostensible joke being that it's GNU software that mocks RMS. It just so happens that it works as a utility, but if anyone asks, that wasn't your point at all, you were just out to have a few laughs. And the GPL certainly has no business applying to parodies, so feel free to improve away or distribute all your want without ever distributing a single line of source. :)


Cheers,

Re:An idea to prove the GPL. (2)

sethg (15187) | more than 13 years ago | (#174944)

IANAL, but...
I suspect that this sort of thing (cooperation between two sides of a lawsuit) is highly illegal.
This sort of thing is called a "friendly lawsuit" or a "collusive lawsuit". It's not always illegal. For example, suppose my brother and I are named as heirs in a will, and the terms of the will are ambiguous, and we need a court to issue a definitive ruling before either of us can collect. In such a case, I can sue my brother, and even if it's obvious that there's no animosity between us, the court will let the suit go forward.

However, usually, the US Federal courts don't like collusive lawsuits. One reason for the dislike is that the US Constitution only gives the courts the power to judge "cases and controversies", so if there's no real controversy between the two parties, it's not the court's business. Another reason is that US courts use an adversary system, and so they depend on each side being motivated to bring up all the evidence and argument that would prove its point.

One of the classic friendly-lawsuit cases is Chicago & Grand Trunk Railway Company vs. Wellman [findlaw.com] . Michigan passed a law regulating fares on railroads; the railroad had fares higher than the regulated rate; Wellman tried to buy a ticket at the regulated rate, was turned down, and sued. At trial, the railroad claimed that if it couldn't charge more than the regulated maximum, it would default on its loans, and Wellman said nothing to dispute this argument (there's the collusion). Then the railroad asked the court to declare that the fare-setting statute was unconstitutional. The trial court, the appeals court, and the US Supreme Court all refused to play along.
--

Re:An idea to prove the GPL. (3)

redhog (15207) | more than 13 years ago | (#174945)

But if I start a company, and then takes someones (who I don't know at all) GPLed code and incorporates in my own non-free product, and does it in a quite visible way, so that the author of the GPLed work can't but sue me? Remember I don't know him, and that I'm evil and steal his code to test the GPL rather than earn money (I may even do that, too, just to prove the point), shouldn't really matter? "I thought it was legal - GPL is just a pice of toiletpaper"?

Re:...but some animals are more equal than others (1)

dar (15755) | more than 13 years ago | (#174948)

No. He gave examples of competing rights. Do I have the right to shout "Fire!" in a crowded area? Don't you see that my right to shout "Fire!" has to be balanced with the rights of others sharing that crowded area?

If you think the answer is simple, you need to look a little closer.

Re:hmm (2)

Arandir (19206) | more than 13 years ago | (#174949)

Take all the approved Open Source Licenses and all the approved Free Software Licenses, and all of those not yet approved but which might be. Now arrange them from the simplest to the most complex. The GPL ranks up there next to those corporate legalese licenses. Now rank them according to their actual length. Ditto. Rank them according to the number of restrictions. Ditto.

Frankly, the GPL is one of the most complex, lengthy and restrictive license you could devise and still manage to squeak into the "free" category. As a user, I am glad that GPL programs are free. As a developer, I wouldn't touch it with a ten foot lawyer.

Interesting and Good Stuff (1)

Hangtime (19526) | more than 13 years ago | (#174951)

Extremely interesting and informative stuff today fellas. Just when I think this place is going to hell, you pull one out with an extremely informative interview.

Kudos to Dan for a great bunch of responses

HT

Longer than Katz... (1)

Neon Spiral Injector (21234) | more than 13 years ago | (#174955)

Wow, that actually came in longer than anything Katz has written, but is so amazingly informative. Too bad we can't moderate articles. :)

--

Re:An idea to prove the GPL. (4)

Vagary (21383) | more than 13 years ago | (#174956)

Many posters have mentioned that this is illegal, but if the legal system does not allow us to test a contract "before it matters" then it is flawed! What would happen if the GPL were to be declared unfit right now? What would happen if it were to occur a year from now? People are putting too much effort in if it could all be dashed!

Somebody needs to figure out how to make the community sure, beyond a reasonable doubt, that open source licenses are real.

excellent (5)

majcher (26219) | more than 13 years ago | (#174957)

Wow. That was possibly the most informative, insightful, and interesting thing that I've seen posted to Slashdot, ever. Can this interview, or the important parts of it, be made available in a more prominent place on the site? This "Legal FAQ for Open Source" is an invaluable document to be able to point to, and would be a great resource to answer many potential redundant "Ask Slashdot" articles...

Re:Quotation (2)

gmhowell (26755) | more than 13 years ago | (#174958)

Good points. As usual, IANAL, but let me try to address a few that I don't quite agree with:

First, it would be difficult to prove damages, except for a few things. Let us say that Linus and Linus alone coded every single line of the Linux source code. He could easily choose to license code under the GPL, but make the code available to MicroSoft under a different license. Let's say that he wants $10 per copy of derivative works, or just a flat $1 million fee. M$ balks, and does the work anyway with the GPL code. There is a 'loss' right there.

Another situation: my project is available as GPL. I don't offer an additional license. M$ takes my code, compiles it, and sells it for $100 per copy. I get a copy of the software, and ask for my copy of the code. They refuse. I assume that they have made $1 million worth of improvements to the code. There is my loss. (I include purchasing it, because they have to distribute to violate the GPL).

The losses are not direct, but any creative lawyer/accountant/MBA should be able to contrive a scenario that equates to a loss. You may also ask for punitive damages and attorneys' fees.

My biggest concern is the David vs. Goliath scenario that you mentioned and that was mentioned in the original article. That's why FSF is around. Sure, they aren't M$ big, but they are a hell of a lot bigger than I am. The only problem is that many people aren't going to assign the rights to their code to the FSF. I haven't read the agreement in over a year, but if I remember, it's not a bad one. The only loss I remember is that you would be unable to license your own code to M$ for a charge. This could matter to some projects, but it seems that these are very rare.

I agree that Free/Open Software CAN win on technical merits. But with the embrace and extend policy, it's going to be a constant battle, and frequently a defensive battle. I am truly amazed that the Samba team is still going. How can they (even in the face of fresh group members) keep updating to correct for Microsoft's protocol changes?

For the second edge of that sword, look at how patents seem to work in the US (and by extension, much of the western world). What is to stop Microsoft from extending... HTML5, creating a browser that only works with their codes, and then patenting every last bit of it? If you own the desktop and a good portion of the server space (hey, lots of people use Apache, but lots of people use IIS as well) alternatives are in it up to their eyeballs. (Of course, anti-trust litigation should take care of these sorts of things, but that is certainly a crap-shoot) Fair use and copyrights usually let things like Samba get by; patents can 'correct' that 'mistake'.

Let's look at the actual text of the 1st Amendment (1)

Kevin S. Van Horn (29825) | more than 13 years ago | (#174959)

> However, the bad news is that the First
> Amendment's protection of speech is not
> absolute and not all speech gets the same
> amount of First Amendment protection.
>
> The amount of protection given particular
> speech depends upon it's content.

What part of "Congress shall make no law... abridging the freedom of speech, or of the press" doesn't the Supreme Court understand? When the Constitution prohibits any law that so much as "abridges" the freedom of speech, that sounds pretty damned absolute to me.

All of these exceptions to the First Amendment that the Supreme Court has carved out have no basis whatsoever in the actual text of the Constitution. You can go over the Constitution with a magnifying glass, and you won't find any trace of them. They are simply craven excuses for outright usurpation.

Re:An idea to prove the GPL. (1)

fuckface (32611) | more than 13 years ago | (#174961)

No, they go to law school so they can spend the rest of their lives raping American's wallets.

Re:...but some animals are more equal than others (3)

revscat (35618) | more than 13 years ago | (#174962)

Oh thats scary, isnt this exactly what happened in the book animal farm? This slow chipping away is beginning to unnerve me. Really I believe animal farm is almost as important if not more important to our present day politics as 1984.

I don't think it's all that bad. Most forms of speech that have been restricted are that way for good reasons. He even talks about it just below the quote you picked. Stuff like yelling "Fire!" in a crowded theater, reneging on contractual agreements, etc. Remember: the First Amendment was set up primarily to protect political speech, and it still holds up marvelously when judged against that yardstick. I can say "Busch is a moron" until the cows come home with no (realistic) fear of retribution coming from the White House.

This isn't to say that we shouldn't keep our guard up, because we most certainly should.

- Rev.

Re:...but some animals are more equal than others (3)

ctimes2 (38940) | more than 13 years ago | (#174963)

Not really, and he's right. You really do have to look at the speech. If speech was completely protected, you could accuse your neighbor of being a child molestor over a property dispute, broadcasting it to the city and calling 'anonymous' tips to the police and child protective services departments, without fearing any legal consequence - and breaking your neighbors bank account with legal fee's.
The point he was trying to get to was that not all speech is protected (like the above) and some speech is indeed more protected than others (like the truth, if you haven't forfieted your right to tell it through a non-discloser agreement). Each case is looked at individually.
One more example, along the lines of IP: If you create a better mouse trap, you can patent the design and the plans to make one. If someone reads your plans - do they have the right to tell the world how to make their own better mouse trap using what they remember of your design? That's the kind of 'speech' that's not protected because it would take your idea and destroy it's fiscal value to you, the creator of the mouse-defigulator.
That's how the mpaa see's DeCSS - as the posting of their better mouse-trap design, and to some degree they're right. Personally, I think the inventor of said 'mousetrap' should concentrate on building the trap with quality materials and creating brand recognition, but that's me. I mean hell, it works for Nike - you can get tennis shoes for $15 bucks, but people still buy air-Jordan's for $115.

Ctimes2

Re:hmm (2)

nevets (39138) | more than 13 years ago | (#174964)

As the name suggests the "Free" in Free Software is for the software and not the programmer. The source must remain free, and all that goes with it must too be free. The user of the software is free to use it and distribute it as long as the software remains free. So, no, the user is not free to do what he/she wants with it, but the software itself is to be free.

Now, I don't agree with the philosophy behind this, but I do prefer to use the LGPL. The code I write should be free, but what you link to it can be whatever you choose to be. Mr Stallman, doesn't care for this license, and that's why he changed it from "Library General Public License" to "Lesser General Public License" to try to prevent people from choosing it as the default. I think that more should go under the LGPL since the code itself won't be legally used in closed form, but it still can be used with other parts of code that is closed.

One last point, and this goes with some things that Dan mentioned. Is the GPL legally enforceable? If I were to write code that interacts directly with the GPL and shrink wrap it and make it only proprietary, but it does not use any GPL code itself, but links to GPL code. If I ship it without the GPL part, and just tell users to link it with a GPL library (not LGPL). Have I done anything legally wrong?

The point I'm making is that if I wrote a program, that can be linked to a GPL library, but did not use any GPL code, could I sell it and tell users how to link to the GPL part. I would do nothing to link to the GPL, that would be the users doing. So if anything, the user would break the GPL and not I. For those that talk about the headers I used, I could just write my own, like Lesstif did with Motif. I'm not sure you can restrict the API. So if you can't limit the API, then you really can't limit the linking.

This is just hypothetical, but I've always been curious to what would happen if this did go to court. I'm not sure if the GPL can enforce this part of the license, unless the DMCA had something to do with it.
Steven Rostedt

Effective access controls (2)

overshoot (39700) | more than 13 years ago | (#174966)

For instance, a court recently held (and the issue was not appealed) that CSS is a technological measure that effectively controls access to movies.

I infer that the court in question is the Southern District of New York, and the case is Universal v. Corley. If not, oops.

The case itself is under appeal, and although there were no arguments heard on the "effective TPM" issue that was at least in part because the lower Court refused to allow arguments on that point. The matter is, if I read the appeals briefs correctly, being challenged by way of objection to the lower Court's ruling on the matter without testimony or argument.

Re:An idea to prove the GPL. (1)

wiredog (43288) | more than 13 years ago | (#174970)

See this comment [slashdot.org]

s/pub/prison/ if you stoop to their level, dumbass (3)

devphil (51341) | more than 13 years ago | (#174971)

Evil deliberately *loose* the case

So, if we're too scared that OSS can't win a legitimate victory, we resort to fraud?

Isn't this the exact same thing that Microsoft and its ilk do? Instead of competing in the software arena, make your point by pulling dirty tricks in court?

One comment new lawyer (3)

I_redwolf (51890) | more than 13 years ago | (#174977)

Further, I urge you to not be overly cynical about our justice system. Yes, there are flaws which subject our legal system to manipulation and abuse and, yes, things move slowly and sometimes backward for periods, but I truly believe that our system is pretty good and eventually produces the correct results.

You're too new of a lawyer to make a comment like that. Considering the past and present I can't be cynical enough about our justice system! Unarmed men being shot down for no reason and their murderers get 6 months in jail. Here in NYC in 1999 a cop shot a 15 yr old kid from running from him. The max time he can serve is 1 yr on the misdemanor charge, He'll serve if convicted probably about 4-5 months max.

Your justice system and mine are two different justice systems. For me past, present and I hope not but most likely future have proven that. I applaud you for your love of the system but comments like that are an insult to and injured public.

Re:*BSD is dying (1)

PsionicMan (74653) | more than 13 years ago | (#174983)

"*BSD, *BSD, *BSD, *BSD, *BSD, etc."

Dear lord, have you ever even heard of pronouns?

--Psi

Max, in America, it's customary to drive on the right.

Re:Confusion (2)

Eric Seppanen (79060) | more than 13 years ago | (#174985)

I understand what you're trying to say, but you're unfortunately mistaken; I can back up everything I've said.

I think that you're assuming that to use (install and execute) a program you need a license contract with the copyright holder. This is not true any more than if you were talking about a music CD. You don't need a license to play a CD; you own a copy and you can do whatever you want with it privately. Copyright is copyright.

Didn't you ever notice that few GPLed programs have a license-acceptance screen during installation? If you didn't sign, click, or otherwise agree to a contract, you're not bound by it. That doesn't mean that you're infringing anything, because the only rights reserved for the copyright holder are copying and creating derivative works (and a few others like "translation" that are meant for literature and not software). Since "use" is not a right reserved for the copyright holder, anyone can use copyrighted software without agreeing to anything.

Your description of the "essence of the GPL" is absolutely correct; but note that when somebody else wants to distribute software that is copyrighted by a third party, then you're talking about copyright infringement, because now we're beyond use and into copying and derivative works. Only then does a contract become necessary and then the GPL is required. But it's a contract between the copyright holder and the distributor/modifier, not the end-user.

The main point is that copyright laws don't say "you have to have X's permission to use X's copyrighted software". Shrink-wrap and click-wrap "contracts" are only used on proprietary software, and the GPL doesn't work the same way. It's disturbing that so many people have accepted the idea that they can somehow be bound by contracts they haven't signed, agreed to, or even seen... that's just not true. (proprietary software won't install unless you click "I agree"; that's how they attempt to get a binding contract with you.)

I recommend you go and read how copyright law actually works; it's actually quite different than what you perceive it to be.
--

Re:Confusion (3)

Eric Seppanen (79060) | more than 13 years ago | (#174986)

You write:
the gpl does apply between the copyright holder and the end user, because the end user is guaranteed a right to the source code...
You should go and read the GPL [gnu.org] sometime. It does not guarantee anything between copyright holders and end users. It does guarantee that if the copyright holder releases source code (and it's ridiculous of them to use the GPL otherwise), all other people who wish to distribute binaries (or derivative works) must agree to distribute source.

Note that's an agreement between the copyright holder and another coder or distributor. It benefits the end-user, of course, but nowhere in that arrangement did the end-user ever enter into any kind of contract. That's why end-users can't sue companies in violation of the GPL; only the copyright holder can.

Go and read section 5 of the GPL, and it should be obvious that you're not bound by the GPL unless you're looking to modify or distribute GPLed code.
--

Confusion (4)

Eric Seppanen (79060) | more than 13 years ago | (#174987)

When you say "only releases the code through valid contracts (licenses) which include limitation of liability and disclaimer of warranty terms" (under the "public domain" question), you seem to be implying that licenses similar to the GPL are a contract between the copyright holder and the end user.

This is contrary to everything I've ever read about the GPL.

The GPL isn't a contract between the copyright holder and an end-user, it's a contract between the copyright holder and a (prospective) author of derivative works, or anyone who wants to make copies of the software.

The GPL even says: You are not required to accept this License.

You seem to be under the impression that the GPL applies to anyone who uses free software. It doesn't, and that's intentional.
--

Re:One comment new lawyer (1)

cc_pirate (82470) | more than 13 years ago | (#174988)

The problem is that he should not have used the words "justice system". We don't have a "justice system". We have a "legal system". We have laws that we laughably hope enforce some sort of justice. In somes cases they do, and in some they don't. Our legal system does appear mostly to work, but don't expect justice from it.

In the Old West they knew what Justice was, and Justice carried a gun.

Re:An idea to prove the GPL. (2)

kevin805 (84623) | more than 13 years ago | (#174989)

Two answers:

1. That's what lawyers are for. The "test before it matters" is taking it down to a lawyer versed in the law and asking if it will hold up. In this case, however, the lawyer says, "maybe".

2. Have Congress clear it up. They can pass an addition to copyright law that, e.g., clears up whether a contract can be binding if the software is free.

Re:An idea to prove the GPL. (2)

LordNimon (85072) | more than 13 years ago | (#174990)

Nice idea, but there's already some legal precedence (either some law or some prior legal ruling) that makes this illegal.
--
Lord Nimon

Re:...but some animals are more equal than others (2)

PenguiN42 (86863) | more than 13 years ago | (#174991)

One more example, along the lines of IP: If you create a better mouse trap, you can patent the design and the plans to make one. If someone reads your plans - do they have the right to tell the world how to make their own better mouse trap using what they remember of your design?

Yes they do. What's illegal is to actually build and sell said mouse trap. You're confusing patent and copyright.

-------------
The following sentence is true.

Re:An idea to prove the GPL. (2)

kevin@ank.com (87560) | more than 13 years ago | (#174992)

I suppose you could purposely go out to thieve some GPL'd source code, and wait for someone to sue you (the FSF is pretty good about protecting its rights for example) and let the blocks fall where they may. It could be an expensive hobby though (intentionally infringing on registered original works can bring IIRC treble damages plus all attorneys fees.)

Really though you don't need to martyr yourself or your company in this way. While it is true that GPL hasn't been tested in court, it does have quite a bit of established precedent. Many companies have been in violation of various aspects of the GPL at some point, and have voluntarily come back in compliance when the problem was pointed out to them, and that precedent helps other violators understand the potential risk in violating the license.

Re:An idea to prove the GPL. (3)

kevin@ank.com (87560) | more than 13 years ago | (#174993)

You don't think people have already thought of using that approach to bugger the system? It is illegal for two parties not genuinely at odds to use the courts in that way, and if they figure out what is going on you'll soon be in the middle of a criminal rather than civil proceeding.

Re:hmm (2)

mr (88570) | more than 13 years ago | (#174994)

When you compare the 6 pages and 29,000+ words of the GPL to the 1/3 page and less than 300 words of BSD, one comes to the understanding that BSD is an easy to understand Open Source license, and the GPL is full of clauses.

Re:hmm (2)

bmajik (96670) | more than 13 years ago | (#174995)

This sentiment is exactly what a certain large company with a bad reputation on slashdot is painfully trying to express.

The GPL is _not_ a "Free" or "unrestrictive" license in any way shape or form.

BSD licensed software is effectively worry free. Paste in the banner into your about box, done.

But to a traditional software company, the GPL is the most frightening thing ever. Nearly every aspect of it is legally dubious.. including the extent and conditions of its viral nature. To those organizations that are currently IP-focused for revenue, the prospect of a court randomly deciding to strip them of their assets is easily reason enough to not bother.

For a number of reasons, which Dan and others have hinted at or expressed directly, "safe" GPL development from a traditional software company is very tricky, and needs lots of spendy lawyers to sort through specific issues on a case by case basis.

The situations where GPL is a worry free endeavour are few and far between. That it hasn't gotten anyone into serious trouble yet doesn't mean it wont.

effective access control... (1)

zimbu (99236) | more than 13 years ago | (#174996)

Specifically, the DMCA states that as of Oct. 28, 2000, "No person shall circumvent a technological measure that effectively controls access to a work."

Well once you circumvent it doesn't that show that it wasn't effective?

Re:An idea to prove the GPL. (2)

Zalgon 26 McGee (101431) | more than 13 years ago | (#174997)

Then you brag about it on Slashdot.

Then the judge finds out that a bunch of people manipulated his court in bad faith.

Then your lawyers get disbarred. So where's the bad part ;) ?

Re:Confusion (1)

RickHunter (103108) | more than 13 years ago | (#174999)

This, for some reason, makes me somewhat suspicious of these answers. If the lawyer was treating the GPL as an EULA that grants rights instead of taking them away, he's likely been barking up the wrong tree, as RMS will no doubt point out. You are in no way required to even that a program is licensed under the GPL unless you step beyond the bounds of what copyright law allows you to do "by default".


-RickHunter

Too optimistic about patents? (1)

sparcE (103646) | more than 13 years ago | (#175000)

He's right that much of open source's legal success will depend on its success in the marketplace, but I'm still more worried than he is about patents, DMCA, etc. I'm just waiting for some dumb patent to stick a big wrench into Open source development (or at least distribution by reputable sources). Sigh...

Re:Confusion (2)

ninewands (105734) | more than 13 years ago | (#175001)

When you say "only releases the code through valid contracts (licenses) which include limitation of liability and disclaimer of warranty terms" (under the "public domain" question), you seem to be implying that licenses similar to the GPL are a contract between the copyright holder and the end user.

This is contrary to everything I've ever read about the GPL.


If this statement is, in fact, true, I would submit that everything you've ever read about the GPL is incorrect. By it's own terms, the GPL controls the totality of a licensee's rights with regard to the object (program/document, what-have-you) to which it applies, just as Microsoft's "shrink-wrap" license does. The difference is that the GPL makes a very broad and sweeping grant of rights as opposed to the highly restrictive grant by Microsoft and other closed-source/unfree software developers.

The GPL isn't a contract between the copyright holder and an end-user, it's a contract between the copyright holder and a (prospective) author of derivative works, or anyone who wants to make copies of the software.

The GPL even says: You are not required to accept this License.


This is true, however, failure or refusal to accept the license requires that one either negotiate a one-off personal license or infringe the original developer's copyright. The essence of the GPL is "take this program for free and do what you will with it, however, if you choose to modify it or improve on it, the cost of me giving it to you free is that you have to share your modifications and improvements just as I did."

You seem to be under the impression that the GPL applies to anyone who uses free software. It doesn't, and that's intentional.

The GPL does, in fact, apply to everyone who does anything with free software because the license governs the terms under which you have permission to use it. The license is a document that grants anyone other than the original developer the right even to possess the software. The fact that the few restrictions imposed by the licensee only impact those who develop derivative works is irrelevant.

In short, you're wrong.

Regards,

Re:An idea to prove the GPL. (3)

benenglish (107150) | more than 13 years ago | (#175002)

The GPL has had its debut in court and wins ! ... Then you all go down the pub ...

Then you brag about it on Slashdot.

Then the judge finds out that a bunch of people manipulated his court in bad faith.

Then your lawyers get disbarred.

Then you get to spend quite a while sitting in a really bad state-run hotel trying to avoid the big guy who likes to call you "Sweety."

Question 2 - No funds, no chance of winning (5)

benenglish (107150) | more than 13 years ago | (#175003)

This question brings to mind a case from Houston a couple of decades or more ago. While I can't remember the particulars (I think it had to do with racial discrimination and voting rights), I do remember that the plaintiff's lawyer made waves with an elegant hack on the legal system. Having no funds for a protracted battle and wanting to get to the Supreme Court in as short a time as possible, he filed suit in small claims court and claimed less than USD$25 in damages. He lost immediately.

Then he appealed. Now, under Texas law, any claim that small may not be appealed through the state courts. Literally the first available level of appeal was the U.S. Supreme Court. He appealed and prevailed in what was, for a Supreme Court decision, an incredibly short period of time and for a pittance in legal fees.

Anybody have any good test cases in mind?

Re:Can you imagine... (5)

Rakarra (112805) | more than 13 years ago | (#175006)

A Beowulf cluster of lawyers? Doesn't the MPAA usually bring one of those to the courtroom?

Re:The problem is... (1)

SaiyajinTrunks (117664) | more than 13 years ago | (#175007)

Yes, and GNU/Linux is a wonderfully stable system, but keep in mind that it ...is distributed in the hope that it will be useful, but without any warranty; without even the implied warranty of merchantability or fitness for a particular purpose . [debian.org]

Wow, not even fitness for a particular purpose! Doesn't exactly inspire confidence, but your very own life may depend on it one day. [slashdot.org]

Nullified NDA? (2)

SaiyajinTrunks (117664) | more than 13 years ago | (#175008)

In the response to the "Big ballpark hypothetical" question, Dan says,
Also, as a side note, it would be difficult for a case to rely entirely on individuals "with a conscience and access to the suspect source." For one reason, they are probably in violation of their employee confidentiality agreement by telling anyone about what they know to be in the suspect source code, so they may not want to come forward to testify.

Consider this: You take a job at a company that specializes in "entertainment web sites" and you sign the typical "confidentiality agreement." During the course of your assigned work, you discover that one of the company's most popular revenue producers is a kiddie-porn site (that masquerades as a legal adult-porn site on the accounting books). Can the company successfully sue you for "violating the confidentiality agreement" if you report their illegal activities? It seems to me that if the company in question is violating the law (copyright infringement of GPL'd work) then that company's "confidentiality agreement" would effictively be nullified. Is there any truth to this, or am I just letting my IANAL colors shine too bright?

Re:Compromises (2)

patter (128866) | more than 13 years ago | (#175010)

Airplane engineers don't make compromises when the deadline is due. Why is it considered okay to make compromises in code when the deadline is due?

I must say that this is something I can't completely understand either. I'm now working in 'QA -- quality assurance'. What this means in a practical sense is often anything but assuring quality. We instead rubber stamp hasty patches made to meet deadlines, with no consideration given by the developer or management on what this change will have on the overall operation of our product.

We recently ended up accepting a solution which protects the user from an underlying flaw in the database schema, but does not resolve the underlying limitation in the database. All done rather quickly, in order to meet a deadline, with no real consideration on the impact this has on the overall system. And I can't say I blame the developer, or my erstwhile colleague who accepted the original patch. The problem is a lack of design from higher up (management or project lead), and really their only fault is succumbing to customer demands.

And the ironic thing is, the new fix is to reverse the original one.. sigh.

Compromises (1)

morn (136835) | more than 13 years ago | (#175013)

[Note that I'm making this comment because I think it deserves discussion, not necessarily because it expresses my views on the matter. It's a tough subject]
It is ok to make compromises in code, when dead line is due. Think airplane engeneer makes compromises when the deadline is due.
You make this statement, but are you really sure it's true? Just because it happens doesn't make it right. I tend to thing that this attitude is what makes the 'rest' of the population so mistrusting of computer technology. Perhaps we should be asking:
Airplane engineers don't make compromises when the deadline is due. Why is it considered okay to make compromises in code when the deadline is due?

--

Software Engineer: oxymoron (3)

clary (141424) | more than 13 years ago | (#175014)

Often programmers told to scrap the project and redo it with their new knowlege. Where do you see engeneers do that?
In most cases, engineers have established procedures for building things that work. With certain dramatic historical exceptions, most bridges don't fall down. Can we say that about software?

"Software engineering" as it is commonly practiced is not "engineering" in the same sense as civil engineering, electrical engineering, etc.

First, the state of the art in software does not approach that in the world of things. Let's face it. We have been building things longer than we have been building software.

Second, as alluded to by the previous poster, software developers very often do not (or are not allowed to) apply the same level of discipline to a project as say, the builders of a physical structure. Again, there are some spectacular exceptions to this norm...think Challenger.

I rather be considered a code poet than lego code designer and implementer.
Funny, but I have lately moved more toward the lego master picture of myself. I have been steeped in OO design and development the last few years, but have recently been exposed to some "component-oriented" techniques that go beyond the object-oriented approach I had used. I am currently looking for references to such pluggable, component-oriented development techniques, especially using Java. Post 'em if ya got 'em.

Constitutional confusion (4)

shanek (153868) | more than 13 years ago | (#175017)

The rights given to individuals by the Constitution

It always brings me down to see lawyers--especially ones as bright and honest as this one seems to be--making this mistake.

The Constitution grants nothing to us. It acknowledges that we have the rights, and those rights can't be taken away by the government. But it doesn't give us those rights, and, as the 9th Amendment clearly states, isn't meant to limit our rights in any way whatsoever.

The Constitution is a limitation on government, not the people.

Re:Confusion (2)

TotallyUseless (157895) | more than 13 years ago | (#175018)

the gpl does apply between the copyright holder and the end user, because the end user is guaranteed a right to the source code. whether they do anything with it is totally irrelevant, they still have a guarantee to it. The part where it says you dont have to accept the license... well, they expect you to delete the program if you dont accept... not just say 'naw, i dont agree to that' and keep using it anyway...

abusive market segmentation (1)

peccary (161168) | more than 13 years ago | (#175020)

... If Microsoft wants to give Windows software to public schools at a cost blow the production cost and the transaction consummates a sale, the first sale doctrine would apply, and the school could resell the programs at a higher price to a corporation, retaining the difference. This would cause Microsoft to charge all customers one price, either by lowering its price, forcing it to run at a loss, or raising its price, thus making the program unavailable to schools and other meagerly funded organizations. This result is economically inefficient and would most assuredly be politically unpopular.

I think this is nonsense. If Microsoft, or anybody else, thinks that schools, churches or libraries are underfunded, and deserve to have cheap Microsoft applications, then those high-minded philanthropists can just as easily grant money directly to the socially-valuable institutions, or subsidize their purchases. If those institutions would rather have the money than the software -- if they think they know better how it could be used -- isn't that their decision to make? What justifies your paternal assumption that they need cheap software more than, for instance, cheap food?

Your argument is just a smokescreen for abusive licensing practices.

Re:Quotation (2)

Pinball Wizard (161942) | more than 13 years ago | (#175021)

ah but you see the lawyers have a slightly different view of that particular quote.

Since the quote came from one of a small band of illiterate craftsmen who wished to overthrow the rule of law, disagreeing with that quote and taking the opposite viewpoint is akin to siding with Truth, Justice, and the American Way.

Just goes to show how the lawyers can put a spin on just about anything. ;)

Re:An idea to prove the GPL. (1)

SnapShot (171582) | more than 13 years ago | (#175023)

Could you have a good faith effort where both sides do their best to win? Microsoft and the EFF, for example, decide to settle the ambiguity and determine if the GPL is valid in the court of law. The case itself may be contrivied, but both sides are heavily vested in proving their side is correct.

It seems like you hear the term "test case" refering to various laws (not to mention the examples of individuals turn themselves into the police to test the legality of a specific criminal law...)

Clarification? (1)

Happy Monkey (183927) | more than 13 years ago | (#175024)

37. For instance, under the first sale doctrine, an owner of a piece of software can transfer her program to whomever and for whatever she desires. The use of a license prevents this doctrine from applying, which allows computer programming firms to price-discriminate between customer characteristics. If Microsoft wants to give Windows software to public schools at a cost blow the production cost and the transaction consummates a sale, the first sale doctrine would apply, and the school could resell the programs at a higher price to a corporation, retaining the difference. This would cause Microsoft to charge all customers one price, either by lowering its price, forcing it to run at a loss, or raising its price, thus making the program unavailable to schools and other meagerly funded organizations. This result is economically inefficient and would most assuredly be politically unpopular.

How is this not true for books? Textbooks, for instance? Would we be served by adding anti-fair-use licenses to textbooks, so poor schools could get them cheaper?
___

Re:Clarification? (1)

Happy Monkey (183927) | more than 13 years ago | (#175025)

...adding anti-fair-use licenses to textbooks...

Here, I of course meant to say "first sale" rather than "fair use", though the meaning of the question does not change much.
___

Questions lost their numbering? (1)

CaptainCap (194813) | more than 13 years ago | (#175027)

I encounter the remark "question 9 below" but the poster HAS NOT NUMBERED the questions. Ravecher went to a lot of effort to answer these questions, so how about fixing that up? Or stick in a hyperlink.

Re:Quotation (4)

ichimunki (194887) | more than 13 years ago | (#175029)

As far as we know, he said nothing. That was a character in one of his plays.

Dan Ravicher, from this "interview", strikes me as a decent lawyer and probably a decent person as well. It's fun to lump lawyers into the "bad" group, especially since the more laws they pass, the more we all end up paying lawyers for things we shouldn't have to pay lawyers for. But it's easy to forget that not all computer programmers are automatically "good" guys either-- think Bill Gates.

To me what's interesting is the recurring theme in the answers Mr. Ravicher gave that point up how utterly futile it may be to take on a Goliath if one is only a David. The enormous cost of litigating professionally in such a way so that a judge will take the case seriously seems to be a major factor in preventing progress. Businesses and groups like MS, IBM, RIAA, MPAA have a lot of money and staff lawyers who can easily do things like file for temporary restraining orders and injuctions and whatnot-- even when they don't expect to be awarded damages, they can offset the lawyers' expense by ruining their competition (or whatever). But to even start a copyright infringement case against a company like MS would require any programmer to convince a judge to compel MS to turn over source code to a 3rd party for review. Without such a review, any injunction is going to be short-lived, let alone the prospect of damage awards. And really, with GPL software how exactly do you measure damages (since right now most GPL software is available for the price of a download)?

Mr. Ravicher is right, open source isn't going to win because it has a license with the legal kryptonite to undo proprietary software. It's going to win when users get tired of exaggerated license fees and bizarre EULA's and because it's technologically superior. He's right, the state of open source is impressive. Look at where Microsoft is after 10 years of dominating the desktop OS/office market and buying up or undercutting their competition and having all major hardware vendors except Apple specifically tailoring workstation hardware to run various flavors of Windows. Then compare the state of GNOME, KDE, and Linux and how much the groups responsible for each have accomplished in less than a decade, often meeting complete apathy or heavy resistance from larger manufacturer's on various fronts.

misconception (3)

zoftie (195518) | more than 13 years ago | (#175030)

It seems that many lawyers and companies do take
advantage of current misconception that programmers
are engeneers and you need engeneer mindset,
to be programmer. Many in programmer classes are
taught engeneering concepts, math and such other
things, where actual writing and text composition
courses would benefit programmers more than ever.
Back to beginning, programmers are writers, not
composers. Engeneers do build bridges and use
only well known ways to do things and very very
rarely allowed to deviate from the common path,
where in programming it is one of the rules to
follow so you become a successful programmer.

Often programmers told to scrap the project and
redo it with their new knowlege. Where do you
see engeneers do that? And timelines timelines.
It is ok to make compromises in code, when dead
line is due. Think airplane engeneer makes
compromises when the deadline is due.
Programmers are writers and want to be considered
as that, but not all. Engeneer is more prestigious.

Back to my point this guy is right about code being
paragraphs of letters than building blocks.

Of course when you write a large book, novel,
you have to fit the text chunks together,
sometimes rewrite or adjust them. Here's the
catch engeneers don't lay brick and mortar,
programmers job however is beginning to the
end job, make structure, and fill it in with the
content.

I rather be considered a code poet than lego code
designer and implementer.

Re:misconception (2)

TOTKChief (210168) | more than 13 years ago | (#175031)

Engeneers do build bridges and use only well known ways to do things and very very rarely allowed to deviate from the common path, where in programming it is one of the rules to follow so you become a successful programmer.

Eh?

Okay, so I follow best practices [in my job, they're NASA standards, specifications, etc.], but I have to use a fair amount of creativity. Only engineers who're re-inventing something--say, a bridge--"never deviate from a common path". [My roommate, a grad student in CivEng, would kick my arse if he read that, but I hold that it's true--he's just building me a target.] Yeah, we've got a bag of tricks, but engineers have to be creative in solution-finding as well.

Or did you miss that great scene from Apollo 13 where NASA engineers were tasked to "make this fit into the area designed for this with all of this"?

I crack up every time I watch that scene. Working in an aerospace project office is a lot like that. You just keep faking it and hope no one notices...and you have a guy fiddling in the corner while Rome is burning. =)

So don't collaborate. (1)

Planesdragon (210349) | more than 13 years ago | (#175032)

At random, take some GPL'd code from a poor shmuck and "steal" it for your project. You, of course, want the GPL to fail.

Then the rest of us sue you for violation of the GPL, and if we win we decide to let you off easy because we're nice--or not. :)

Now see why the GPL still hasn't been tested in court?

Good news (4)

Sheepdot (211478) | more than 13 years ago | (#175033)

This is good information to have. No longer will we need to rely on people who say "IANAL but ..." but rather say "IANAL but this guy is and he says ...".

Much thanks for all the work.

Re:The GPL's very long, but is it hard to get arou (1)

update() (217397) | more than 13 years ago | (#175035)

Zico, you forgot about that other cornerstone of Slashdot legal theory: if you make something into a song, poem or T-shirt, it is no longer subject to any sort of regulation. (Why, just yesterday we had an article [slashdot.org] purporting to support this.)

BTW, for those who think either of these are really sound legal theories, the answer to the "code as free speech" question gives an ecellent, thorough explanation of why that's not so.

Unsettling MOTD at my ISP.

Re:Quotation (1)

deebaine (218719) | more than 13 years ago | (#175036)

I agree on this point; the state of open source software is impressive. But how much more impressive could it be if people would set aside their differences and focus on moving forward? I am more experienced with GNOME, but I like some KDE features. I also like (gasp) some Windows features. As a community, I think it makes a lot more sense to aggregate things and push forward rather than splintering. Competition at this point is counterproductive--the competition consists of the people looking to shut open source down.

Everyone reading /. knows that open source has some inherent advantages--and some inherent disadvantages. It is critically important that the community press the advantages and minimize the impact of the disadvantages.

-db

Bar Raised (3)

mojo-raisin (223411) | more than 13 years ago | (#175037)

Wow! I think the bar for amazing /. articles has been raised dramatically. Dan makes the excellent point that while we should be aware of the issues, as programmers we should concentrate as much energy as possible on writing great software.

So hop to it;)

Thoughts: (4)

Futurepower(tm) (228467) | more than 13 years ago | (#175038)


Thoughts:

Criticism of RMS -- Many people who have not taken the time to understand the issues criticize Richard Stallman. The fact that he is criticized a lot should not make you think that the criticism is valid.

Richard Stallman does the community a great benefit by making sure the movement doesn't drift off course. This requires a serious effort because most people don't take the time to understand the finer points of the law.

Sharing -- The GNU GPL license represents the efforts of many smart people to enforce a simple idea: I will share with you if you will share with me.

It doesn't matter how many clauses it takes to accomplish that result; the number of clauses required and the length of the contract is unimportant. What is important is the very simple result.

See Tony's excellent comment #87 for more about this.

Radical Idea? I Think Not. -- Anyone who is logical and patient and careful enough to write good code and debug it is capable of understanding the law.

Programmers should not take a passive attitude toward the law. You can understand the issues discussed here in far less time than it takes to learn how to program in C++. The fact that you are a programmer shows that you have the mental ability to be logical.

Yes, the law is not always logical. But programs are not always bug-free. If you can deal with bugs in programs you can deal with bugs in the law.

It might be possible under some circumstances, for example, to prepare a case yourself, and then take it to a lawyer to catch any shortcomings in what you wrote. Arguing a case yourself is allowed by the courts.

There is a useful comparison between GNU free software and do-it-yourself free litigation. Programmers pay for their hardware and give their time freely to produce an excellent product. Litigation requires the payment of court costs, and the same attention and intelligence might also produce similarly excellent results.

Note that those who make money from litigation might criticize this idea the way Microsoft's Steve Ballmer criticizes the GNU GPL and free software. Also note that I am not saying that prosecuting a case yourself would be easy. But since you already do difficult things every day, you are prepared for difficult efforts.

Thanks Dan -- I thought that Dan Ravicher's comments were excellent and extremely well written.

Great Comments -- See gmhowell's comment #110 for thoughts about damages.

See benenglish's comment #32 for an example of creative litigation.

Re:The GPL's very long, but is it hard to get arou (1)

Water Paradox (231902) | more than 13 years ago | (#175039)

Dear Teacher:


We are very sorry to announce that Zico's absence yesterday was due to an extraordinarily complicated perambulation of non-negotiable consolations in the gigantic size, being beyond our ability to comprehend in several dimensions, yet leaving us that one pitiable understanding that the dog ate his homework and so we collaborated on this extensive excuse of an excuse for his absence so that we could pretend to be socially responsible, but actually we are slackers, blah, blah, blah,

Zico's parents.

I.E. Why not use your creativity to do what you're supposed to do, instead of what yer not? Why not simply code BETTER than the GPL'd code, rather than go to all the trouble of disguising the fact that you're stealing someone else's code? Hmmm.

Re:Programming is mostly solo (1)

Water Paradox (231902) | more than 13 years ago | (#175040)

nice analogy.

Re:excellent (3)

Water Paradox (231902) | more than 13 years ago | (#175041)

What is compelling about Dan's responses is that he is not cynical. He consistently encourages people to write good code, using language that reveals he knows about coding himself--or at least he reads enough Slashdot to understand the psychology of a coder. He is deeply interested in the causes of programmers, and this preliminary codification of the present condition of Open Source is an impressive foundation for future reference on this topic.

What is nice is the way he piles Free Software folk right into the heap with Open Source folk, quite gracefully smoothing over a trivial politicization within the movement that has been needing to happen for a long time. I also do not make the distinction between the two groups which others make, and use the terms "free" and "open" interchangeably in this context.

Stallman is working very hard to maintain a sense of clarity that he presciently held way back in the 1980s, but the fact is, the point is made. Hundreds of thousands of people around the world have gotten his point, and have extended it in many directions. The idea behind the GPL is infused in all the other "free" licenses, and anyone can choose whichever flavor suits them best. No need to say one is "better" than the other, which I think Stallman seems to tend toward. It is what it is. What do we have, about a dozen major free licenses to choose from? I am grateful for this entire FAQ, but most grateful for the closing lines responding to Stallman's question, where an attorney does the opposite of "divide and conquer."

I also enjoyed learning details about the Supremecy Clause. That's good stuff to know about, in many contexts.

Re:An idea to prove the GPL. (1)

room101 (236520) | more than 13 years ago | (#175042)

...And then the "behemoth software company" sues you for $98,000,000, plus damages, court costs, etc. They can't loose.

Wow, you're right, that was much better.

This is depressing... (2)

Bonker (243350) | more than 13 years ago | (#175043)

You are correct; without substantial resources, it is extremely difficult to successfully enforce your intellectual property rights against a major software company.

Of course, this highlights the importance of membership in the EFF. The more dosh they have, the more lawyers they can buy to help people like Avery [pair.com] .

Re:Confusion (1)

dexter1 (244765) | more than 13 years ago | (#175044)

You may very well be right from a legal standpoint, however, I think the one of the aims of the GPL is to broaden the terms of what constitutes a "user". In the world of proprietary software, an user is exactly as you describe. In the world of free software, a user can be thought of as a user of the source code, not a user of the binary. In other words, the user is bound by the license, but, since the license only restricts very specific user activities ( the copying and modification of source code), most users do not have to worry about the license (and, in fact, the user only becomes bound by the license once the user modifies and distributes the source code). It is a license that the user implicitly agrees to by doing certain activities. In a sense, that is the same as convential licenses. As long as I only use the software for limited purposes (a paperweight) I am not bound by any license agreement. Once I start doing something more robust with the software ( installing it) I become bound to the agreement. This is the same thing with the GPL. As long as I use the software for limited purposes ( binary use), I am not bound by any agreement. When I want to use it for something more robust ( modifying and distributing) then I become bound by the license. The difference is the degree of freedom allowed to the user and the definition of an user

There is, I am sure, no legal precedence to back this up, but think about how much more useful code would be if all users had the opportunity to change the source code--that it was as much of a right to a user as the right to use the binaries.

An idea to prove the GPL. (5)

rixster (249481) | more than 13 years ago | (#175045)

Something I thought about this morning

Get a few friends together. Split into two groups and form two companies. Call one "Good Software Inc." and call the other "Evil Software Inc.".

Now Good software Inc release some software, no matter how lame, under the GPL. Evil Software Inc (remember they're just friends), take the software and sell it as part of their proprietary application (perhaps even keeping the about box!). Hire two lawyers, one to represent Good, the other Evil. Go to court. Good puts forth the GPL Free Software case, Evil deliberately *loose* the case and pay punitive damages of, oh say, $100.
The GPL has had its debut in court and wins ! (And it'll always be known as the Good vs Evil 2001 GPL case).
Then you all go down the pub (if you're English, at least).

Re:An idea to prove the GPL. (1)

tanpiover2 (249666) | more than 13 years ago | (#175046)

Even Better...

Get a job at some behemoth software company then conciously use some GPL'd code in a project that gets released. In a fit of guilt, blow the whistle on yourself and testify at the hearing. You lose your job (all part of the plan, we'll make sure you get more work afterwards) meanwhile the FSF wins $98,000,000 in damages and finally has the bankroll to pursue future infringement cases on its own.

Re:misconception (1)

chriso11 (254041) | more than 13 years ago | (#175047)

Here we go again.

Programming is not engineering. You assert that it is simply a different toolbox. OK - is an auto mechanic an engineer? He is using a different toolbox to solve problems.
The answer is no, in most cases. Just because tools are involved and problems are solved, the activity is not engineering.

Good Article (1)

chris_mahan (256577) | more than 13 years ago | (#175048)

Good article. Kudos to the attorney for his work. I suspect a client might have been charged a pretty penny for all this work. We appreciate it.

Re:Programming is mostly solo (1)

chris_mahan (256577) | more than 13 years ago | (#175049)

I'm saying it's not fair.
I'm not saying that's not the way it is.

As far as software, it's like painting. You hire a company of 200 to repaint all 47 buildings in the campus. You hire 1 guy to do the mural in the library. Guess which painting will make onlookers think?

Oh, and the sky is ceiling-tile speckled off-white, unfortunately.

Re:Law as code? (2)

chris_mahan (256577) | more than 13 years ago | (#175053)

Funny you should say that. Law is genereally thought of as a "code" by which citizens should abide.
mmmmm....

The problem is... (2)

regexp (302904) | more than 13 years ago | (#175056)

A helpful article, but keep in mind that (as stated in the disclaimer at the top of the article) these are the opinions of one lawyer. His opinions are not the law. Other lawyers--or a court--could have completely different interpretations of the law on some issues, and could come to different conclusions.

This is great! (2)

Rick the Red (307103) | more than 13 years ago | (#175057)

Thanks a bunch, Mr. Ravicher! This is one of the best things I've ever read on /. It makes me wish SlashCode had a "print" feature, so I could save the text alone, without all the html around it. Good job, and thanks again.

Rick

P.S. anyone know how to clone this guy? if i ever need a lawyer, i want someone like him :-)

Re:and furthermore (1)

kcurtis (311610) | more than 13 years ago | (#175058)

Yes and no. No, we don't need to promote MS any more. But schools are in the business of educating students in preparation for working in the real world, and MS is pervasive in the real world.

If you need to hire staff, and you office uses Windows and MS Office, what good is someone who uses Linux and Star? It's not worth the learning curve when someone else walks in with the needed skill set.

I don't disagree. It's a catch 22. But don't blame schools for wanting to teach students the skills the school thinks they'll need in the real world.

One other note-- giving free products to schools does not guarantee a stranglehold on the market. Just ask Apple.

Re:hmm (1)

BlueTurnip (314915) | more than 13 years ago | (#175059)

Then use BSD for code you write, not GPL.

Richard Stallman was absolutely right when he said that the purpose of GPL was not to promote the free exchange of ideas, but to create a society in which virtually all software must be free. These are two very different things.

I'm afraid that many people who have the former goal (free exchange of ideas, as in academia) apply the GPL to their code without thinking of the ramifications. If you are interested in actually promoting the free exchange of ideas (which GPL doesn't do) then please consider applying the BSD license or a BSD-like license to code you write. In particular, don't use GPL unless you truly understand what it's purpose and ramifications are.

*Everyone* makes compromises (2)

Spamalamadingdong (323207) | more than 13 years ago | (#175063)

Airplane engineers make compromises, too. There are always compromises between cost and weight, between time and labor to assemble and surface finish, between manufacturability and total performance. When the Boeing 747 was new, it could only carry a part of its specified load because the available engines didn't produce enough thrust for the airframe. Did Boeing re-engineer the aircraft to lighten it and make its payload fraction higher? No, they compromised and delivered an aircraft that wouldn't be able to fulfill its complete potential until some time later.

Everything in life is full of compromises. Ironically, one of the things edging us out of the compromise trap is computers. Using genetic algorithms we can find superior or possibly optimal solutions for a given set of constraints, and do it very quickly. When one of your compromises is time-to-market which is determined by the amount of engineering work required, this is a very big deal.
--

Re:Quotation (2)

lobsterGun (415085) | more than 13 years ago | (#175064)

I believe he said...

"The first thing we do is kill all the lawyers." Henry VI

Contrary to popular belief, the proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution -- thus underscoring the important role that lawyers can play in society.

Stolen blatently from http://www.spectacle.org/797/finkel.html

on being cynical (1)

leifb (451760) | more than 13 years ago | (#175066)

"Further, I urge you to not be overly cynical about our justice system. Yes, there are flaws which subject our legal system to manipulation and abuse and, yes, things move slowly and sometimes backward for periods, but I truly believe that our system is pretty good and eventually produces the correct results. "

I can't help feeling a little cynical about a process in which my participation is abridged due to my employment and (assumed) thought process.

I write code for a living. I think clearly and rationally. Apparently, these suffice for any lawyer in the US to exclude me from a jury.

I really can't say I trust a system that consistently leaves life and death decisions in the hands of those who are chosen for an inability to think for themselves. Of such pebbles are avalanches built. And lynch mobs.

No, that's true. (1)

phubar (456077) | more than 13 years ago | (#175067)

Implying that a lawyer -- someone who's (hopefully) been through LAW SCHOOL -- ought to understand basic English grammar is not trolling. He wasn't terribly rigid with his presentation, seeing as how he says 'damn' more than once.

Anyway, I agree; his audience wasn't exactly formal, but if you want to be taken seriously as a lawyer (even on /.), you really ought to rite güd phyrst.
-Phu

---
Who ARE you?!

Just to avoid confusion... (1)

j7953 (457666) | more than 13 years ago | (#175068)

unless of course you have signed a contract with the software vendor that prohibits you to do so

... I should add that generic OEM licenses that the customers agree on when installing the software don't count here, as those aren't individual contracts, and certain provisions are illegal under german law unless the contract has been individually negotiated.

Educational licensing -- there are other solutions (3)

j7953 (457666) | more than 13 years ago | (#175069)

Wow! What a great article!

One thing I'd like to comment on, however, is the "Microsoft Licensing" question. The justification for licenses which prohibit resale given here is that this prevents persons or organizations who are eligible to receive a less expensive license from reselling it. That's true, but preventing resale is not the only way of doing this.

Some of you might know that the highest german court has recently ruled that reselling OEM software is legal (unless of course you have signed a contract with the software vendor that prohibits you to do so).

Still, the court has agreed that there might be different types of usage for a software, and a product may be sold for one specific type of usage only. For example, it is still illegal to sell or use a single user software as a network software, or an educational version as a standard version.

(In fact, the court has simply denied that OEM versions are a seperate type of usage. OEM versions are considered a special low price offer that anyone is of course free to make, however that doesn't give the vendor any additional rights.)

This allows software vendors to have lower pricing for schools (or higher pricing for network versions), while still allowing customers to resell the software -- i.e., one school may sell its software to another school, but not to a business.

I'm not saying the one or the other system is better (though the no-resale licensing seems less consumer friendly to me), I just wanted to point out that there are alternative solutions as well.

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