Re: [ubuntu-uk] The genius of FSF
Mac wrote: > One of the bloggers pointed out that in the USA, breach of copyright can > be a criminal offence as well as a civil one > There was a proposal to make such a thing criminal in Europe, but AIUI, it got rejected by the European Parliament earlier this year! > Do you (or Matthew) know whether this might actually have any relevance > to Microsoft's liability? > AIUI, it's relevant inasmuch as it might stop Microsoft delivering the support it had sold... thus causing MS to breach the contract with the party who had bought the support voucher. That failure to deliver could be a breach of contract on MS's part, but if I were MS I'd enjoin Novell as a defendant. Actually, I'd probably enjoin the programmer who had changed the licencing terms of their product, but only because it'd be a neat way of confusing the issue, not because I actually thought it would be credible. My experience in court has been a bit jaded - I've appeared as a witness (and was complimented by the judge!) but was shocked at the dirty tricks the lawyers played. Matthew, BTW, is rather more of an expert than I am in contracts - if anything he says contradicts what I've said, then please assume that it is I who have got it wrong. > Best wishes > > Mac Regards, Mark -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Mark Harrison wrote: > In the UK, it's hard to see how the courts would do anything other than > In the US, the concept of "punitive damages" exists, > What I don't see (and this is where I came in - in disagreeing with some > of the web articles written) is that a customer calling for support on a > GPLv3 product under one of these contracts would automatically mean that > Microsoft had breached the law. Yes, I guess I was mainly intrigued by the principle that GPL piggybacks on existing copyright law so as to prevent individuals (or corporate entities) from asserting exclusive ownership, rather than setting up a contract specifically to preserve exclusive ownership. That's what struck my as a stroke of genius (and so unlike the normal principles underlying licensing). And, as you say, a consequence is that how the mechanics of GPL work in practice will be specific to the particular jurisdiction's copyright legislation. (Eben has said that he thinks GPLv3 is a bit too focused on the USA.) One of the bloggers pointed out that in the USA, breach of copyright can be a criminal offence as well as a civil one (See http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_0506000-.html) Do you (or Matthew) know whether this might actually have any relevance to Microsoft's liability? Best wishes Mac -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Hiya * Mac: > Matthew East wrote: > That seems to me not contract, but a beautiful and unexpected > inversion of copyright law. A "beautiful inversion of copyright law" isn't a legal concept. The extract you've cited from Eben isn't addressing the mechanism by which an author who publishes material under the GPL agrees a carve out from his copyrights, it's addressing the result. The mechanism is by way of a license (which, as per my previous email, is a type of contract). Here is a reasonable article on how the basics work - http://www.fsf.org/blogs/licensing/20050325novalis.html Still, it doesn't matter too much for the purposes of discussing the more intricate parts of the GPL v3, I just felt that it was worthwhile to understand the basic concepts. Matt -- http://www.mdke.org gnupg pub 1024D/0E6B06FF signature.asc Description: OpenPGP digital signature -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Lee Tambiah wrote: > > Without disscussion I think the GPL 3 is a very good license which > protects Free Software and overall should strengthen it. I agree. I agree that you, and any programmer, should have the right to choose the GPLv3 in new products you create. However, I also believe that programmers should still have the right to choose GPLv2 for products they create (and for that matter, the BSD licence, or for that matter the Microsoft EULA.) > Why should a company be able to take code use it, but deny the users > to reuse it with modifications, they have brought the product so why > should they be restricted? Because the people who wrote the code are happy for them to do so, and licenced the code to them on that basis. Linus Torvalds has stated, unequivocally, that he is happy with what TiVo have done. The FSF's lawyers have confirmed that TiVo's use of the GPLv2 software in their application complies with the GPLv2. > With this attitude TiVo is just using the kernel not actually > contributing in anyway at all. My 2 pennies worth... Linus Torvalds disagrees, and has written so in public. (reference http://kerneltrap.org/node/8382) To be fair, he's agreed they've not contributed that much, but he has outlined what they have contributed. He has also praised TiVo for the way that what they HAVE done has helped promote Linux and Open Source software in general, and stated that TiVo have done MORE than the GPL obliged them to do. Mark -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Mac wrote: > That seems to me not contract, but a beautiful and unexpected > inversion of copyright law. I'm sorry, but I don't understand this line of argument... Let me explain my understanding first, then someone can tell me what I'm missing... - A contract is a legally binding agreement between two parties (which may, to be fair, be overturned by the courts) - Any contract exists inside a legal framework, which includes ALL the relevant law of the land. As I understand things, the classification of the law into things like "copyright law", "property law" and "contract law" is a matter of convenient terminology, not of something that has any legal status. - A software licence is a contract between a developer and a user. Example 1: I (as the owner of a rental property) have a contract (a tenancy agreement) with someone who uses that property (a tenant.) I give them certain rights (they can use the property as their home), they incur certain obligations (they have to pay me rent.) They don't have extra rights beyond those stated either in the contract, or accepted in the part of the law (property law) that governs such contracts, so they can't, for example, use the rental property to run a business. Example 2: I (as a software developer) have a contract (licence agreement) with someone who uses that software (a user). I give them certain rights (whatever are determined in the licence agreement), they incur certain obligations (which may or may not involve paying me a fee, or having an obligation to, say, provide the source code of any modifications they release). They don't have extra rights beyond those stated either in the contract, or accepted in the part of law (copyright law) that governs such contracts, so they can't, for example, deploy a single copy of AardvarkManager 1.0 on all their employees desktops, if the licence they have purchased is a single-PC licence. To create a set of new obligations on a party, one of three things needs to happen: - The appropriate law-making body (in the UK, Parliament+Royal Assent) needs to pass a new law, or amend an old one. - The party needs to sign a new contract. - A set of "conditional obligations" (If X happens, then you will have to do Y) in a contract already agreed needs to be triggered (X needs to happen) The GPLv2 included a term that allowed any contract signed under the GPLv2 to be upgraded, (by mutual consent) to an unspecified future version of the GPL, in this case GPLv3. However, once a programmer has granted a licence, the programmer can't unilaterally withdraw that licence - so any software currently licenced under the GPLv2 remains legal. (Freedom, once granted, endures.) The programmer may, of course, decide to issue no further licences, and say that "as of now, the only licences granted will be under the GPLv3" - that's fine, and I support their right to make that decision. Where the Microsoft / Novell thing has strayed into murky territory is that Microsoft have effectively entered into some "future support contracts" with a bunch of third parties, in conjunction with Novell. At the time that these contracts were sold, Microsoft was in a position where it believed that it, and Novell, would be able to deliver on its commitment (or at least, this is what they would argue in court.) However, Novell are now selling some products licenced under the GPLv3. Some specific provisions of the GPLv3 mean that it may no longer be possible for Microsoft to deliver on the contract it originally signed, and Microsoft/Novell may not be able to provide the support they sold without breaching a different contract (the GPLv3). In the UK, it's hard to see how the courts would do anything other than demand that MS refund the price paid for the support contract, plus, probably, interest, and (maybe) the difference in price required to fund someone else to "do the support" the original contract called for. In the US, the concept of "punitive damages" exists, so that MS might have to refund the price, and pay some kind of fine if they refused to honour the support contract (and thus breach the GPLv3.) It would be one hell of a court case - if someone sued Microsoft, then they'd immediately call Novell as a co-defendant, and let the courts decide who needed to make good on the broken contracts. What I don't see (and this is where I came in - in disagreeing with some of the web articles written) is that a customer calling for support on a GPLv3 product under one of these contracts would automatically mean that Microsoft had breached the law. No, at worst, they might be in a position where it wasn't possible for them to provide the contracted services. -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Matthew East wrote: >...The GPL is a license (hence the "L") by which (among > other things) the licensor and copyright holder grants the licensee the > right to use and redistribute the program subject to certain conditions. > > A license is a type of contract, in this case between the program maker > and the user/redistributor. > I think the GPL is rather more subtle than that, in that it uses copyright law, rather than the law of contract. Here's Eben Moglen's description of how it works (sorry this is a bit long): "Thus, the initial rules for sharing undertaken by the Free Software community... assumed that only the law of copyright need fundamentally to be considered. And what was achieved was, within the vocabulary of the community, a very pretty hack. A hack in the sense that the word is ordinarily employed in our, if I may call it, our community, an unexpected result achieved by creative deployment of existing parts in an unexpected or unusual configuration. The hack to copyright law was the recognition that the purposes of free software could be achieved by subtracting from the rights exclusively given to the author by the law of copyright as it applied to computer software. What the free software author wanted was actually simply to remove a few pieces from the existing copyright machine. He didn't need to add anything to it - no additional obligations needed to be placed on any user of the software, no additional agreements needed to be gotten from anybody who had a copy of the software - all that was necessary was to remove some restrictions - by sharing the copyright status accorded to each author of a computer program, the exclusive right to control copying, modification, and initial distribution of copies. Under US Copyright law, that's all there was, exclusively vested in the author. What the author then wanted was to give the power to copy and modify away. To remove exclusivity, and to provide to others what the statute gave exclusively to him or her. With respect to distribution, the only principle necessary in order to protect sharing was to say "if you redistribute, whether modified or unmodified, use these permissions and no other." ... By honeycombing copyright in other words, by returning to the user some, but not absolutely all of the exclusive rights vested in the author under copyright law, the social artefacts desired (the freedom to copy, modify, and share) could be ensured at the full strength that copyright law ever ensures the author's rights. No further contractualisation, no further compulsion, no further form of legal coercion is necessary but a determination to enforce copyright for the benefit of sharing." That seems to me not contract, but a beautiful and unexpected inversion of copyright law. Mac -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
> Mark Harrison wrote: >> Mac wrote: >>> You do have to hand it to Richard Stallman, Eben Moglen and their >>> colleagues - the genius evident in GPLv3 just takes your breath away: > >> I'm no lawyer, but in the UK at least, there are at least two problems >> with the "legal analysis" here: >> >> - I had understood that a new contract / law could never apply >> retroactively. I believe that the same applies in the US. >> - I had understood that a contract could not be used to cause a party to >> commit a criminal offence. In the UK at least, such a contract term >> would be struck down by the courts (and usually, any contract would >> include a clause that explicitly said that if one part of the contract >> were found to be illegal, the rest still stood.) > > > As I understand it, GPLv3 is not a contract; it's a waiver of copyright > that passes to those who also waive copyright. This is what's so clever > about it - it just doesn't work like a contract or licence. I think > this is why patent/copyright lawyers have such trouble with it: it's > anti-matter! This isn't accurate. The GPL is a license (hence the "L") by which (among other things) the licensor and copyright holder grants the licensee the right to use and redistribute the program subject to certain conditions. A license is a type of contract, in this case between the program maker and the user/redistributor. Matt -- Matthew East http://www.mdke.org/ -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Mark Harrison wrote: > It's hard to see, however, how any legal document written on 1st July > could retrospectively apply to a contract signed on the 30th June unless > the contract made specific provision for itself to be modified. I may be wrong, but I thought that's exactly what GPLv2 had done, in the by making it's provisions applicable 'under GPLv2 or any future revisions' or words to that effect. (BTW, I'll have a look at your blog about why you aren't a member of FSF. Thanks for the URL, and for your thoughts) Mac -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
On 7/10/07, Mark Harrison <[EMAIL PROTECTED]> wrote: Mac wrote: > As I understand it, GPLv3 is not a contract; it's a waiver of copyright > that passes to those who also waive copyright. This is what's so clever > about it - it just doesn't work like a contract or licence. I think > this is why patent/copyright lawyers have such trouble with it: it's > anti-matter! > > Best wishes > > Mac Mac, Thanks for that. It's hard to see, however, how any legal document written on 1st July could retrospectively apply to a contract signed on the 30th June unless the contract made specific provision for itself to be modified. Not even the government can (normally) pass laws that apply retrospectively. Oh, and I have (finally) blogged about why I'm not a member of the FSF - you are strongly encouraged to visit http://planet.ubuntu-uk.org/ for all your Ubuntu-UK related needs :-) My blog is one of many syndicated there. M. -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/ Without disscussion I think the GPL 3 is a very good license which protects Free Software and overall should strengthen it. Why should a company be able to take code use it, but deny the users to reuse it with modifications, they have brought the product so why should they be restricted? With this attitude TiVo is just using the kernel not actually contributing in anyway at all. My 2 pennies worth... -- " linux: because a PC is a terrible thing to waste" -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Mac wrote: > As I understand it, GPLv3 is not a contract; it's a waiver of copyright > that passes to those who also waive copyright. This is what's so clever > about it - it just doesn't work like a contract or licence. I think > this is why patent/copyright lawyers have such trouble with it: it's > anti-matter! > > Best wishes > > Mac Mac, Thanks for that. It's hard to see, however, how any legal document written on 1st July could retrospectively apply to a contract signed on the 30th June unless the contract made specific provision for itself to be modified. Not even the government can (normally) pass laws that apply retrospectively. Oh, and I have (finally) blogged about why I'm not a member of the FSF - you are strongly encouraged to visit http://planet.ubuntu-uk.org/ for all your Ubuntu-UK related needs :-) My blog is one of many syndicated there. M. -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Mark Harrison wrote: > Mac wrote: >> You do have to hand it to Richard Stallman, Eben Moglen and their >> colleagues - the genius evident in GPLv3 just takes your breath away: > I'm no lawyer, but in the UK at least, there are at least two problems > with the "legal analysis" here: > > - I had understood that a new contract / law could never apply > retroactively. I believe that the same applies in the US. > - I had understood that a contract could not be used to cause a party to > commit a criminal offence. In the UK at least, such a contract term > would be struck down by the courts (and usually, any contract would > include a clause that explicitly said that if one part of the contract > were found to be illegal, the rest still stood.) As I understand it, GPLv3 is not a contract; it's a waiver of copyright that passes to those who also waive copyright. This is what's so clever about it - it just doesn't work like a contract or licence. I think this is why patent/copyright lawyers have such trouble with it: it's anti-matter! Best wishes Mac -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
Re: [ubuntu-uk] The genius of FSF
Mac wrote: > You do have to hand it to Richard Stallman, Eben Moglen and their > colleagues - the genius evident in GPLv3 just takes your breath away: > > http://www.freesoftwaremagazine.com/blogs/microsoft_the_copyright_infringer > > http://www.groklaw.net/article.php?story=20070709101318827 > > > Mac > > I'm no lawyer, but in the UK at least, there are at least two problems with the "legal analysis" here: - I had understood that a new contract / law could never apply retroactively. I believe that the same applies in the US. - I had understood that a contract could not be used to cause a party to commit a criminal offence. In the UK at least, such a contract term would be struck down by the courts (and usually, any contract would include a clause that explicitly said that if one part of the contract were found to be illegal, the rest still stood.) On the first, the GPLv3 may indeed prevent Microsoft continuing to sell Novell / SuSE vouchers, but cannot be used to trigger Federal proceedings against Microsoft for vouchers sold prior to the new version of the GPL. Analogy: smoking in public became illegal in the UK on the 1st July, but this doesn't mean that smokers can be prosecuted for smoking in a pub on the 30th June, nor can pubs be prosecuted for having smoking areas up till that date. On the second, there is a real danger of a backlash here. Example: - Microsoft sells (legally) voucher - Customer buys voucher - Customer waits 6 months - Customer tries to cash in voucher for use on a GPL3 product - Novell says "Sorry, but owing to the licence used on that GPL3 product, it would cause a breach of Federal Law for us to provide this support. Please choose a non-GPL3 product." Fundamental principle of marketing - it doesn't matter what's "true" - all that matters is what your customer believes! Mark -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
[ubuntu-uk] The genius of FSF
You do have to hand it to Richard Stallman, Eben Moglen and their colleagues - the genius evident in GPLv3 just takes your breath away: http://www.freesoftwaremagazine.com/blogs/microsoft_the_copyright_infringer http://www.groklaw.net/article.php?story=20070709101318827 Mac -- ubuntu-uk@lists.ubuntu.com https://lists.ubuntu.com/mailman/listinfo/ubuntu-uk https://wiki.kubuntu.org/UKTeam/
