Re: [ox-en] GPL Restrictive was - RedHat and Fedora and SuSE andNovell
- From: Seth Johnson <seth.johnson RealMeasures.dyndns.org>
- Date: Thu, 13 Nov 2003 20:09:32 -0500
The GPL is not a contract. It requires no consent; this is in fact the key
principle of the GPL, that it is entirely an expression of recognized
exclusive rights accorded to authors under copyright. That's really the
"secret weapon" aspect of it. The other, non-copyleft licenses often ask
for more, and therefore require consent, thus becoming contracts.
I like that, because the GPL is hanging its hat on an exclusive rights
tradition that has plenty of precedent for the principles of free software,
not depending on whether it is "valid" as a "contract." I'm not referring
to the right to control derivative works, which is its explicit foundation,
but the fact that the principles it's standing for actually reflect
recognized jurisprudence regarding whether one can have exclusive rights to
something like an algorithm. In order to attack it, one would have to
finally address directly whether that principle, so long overlooked now, is
valid -- rather than avoid it, which has been the stratagem of those opposed
to information freedom.
What Martin's asking is in effect whether such an approach founded on
copyright in itself can withstand an attack of the sort that says it
interferes with the right to contract. I think that we need not worry. I
think that Eben knows what he's up to, as does Richard. It will be a bright
sunshiny day when someone finally dares to drag the GPL into court, no
matter what line of attack is brought against it. If the charge is that it
interferes with the right to contract, then the issue will finally become
transparent: either the question of whether algorithms are appropriate
subject matter for copyright in the first place, or the question of whether
copyrights on algorithms are the kind of thing that can trump supposed
rights to write contracts that would cover algorithms.
Seth Johnson
Russell McOrmond wrote:
On Thu, 13 Nov 2003, Martin Hardie wrote:
MY growing view is that the attacks on FLOSS (starting with the SCO case
it appears )will come based upon the freedom of contrcat enshrined int
he emaning of liberty in the US Constitutionand he fact that the GPL is
"restrictive" and thus contrary to this liberty and anti competetive (a
la anti Trust law).
How can exercising the freedom to contract be contrary to the freedom
to contract? This whole line of thinking sounds entirely like nonsense to
me.
The GPL is a contract, and a reciprocal one at that (I give you this if
you give me that). It is similar in many ways to other reciprocal
contracts, such as more well known royalty-bearing software contracts (I
give you this if you pay me that).
The odd-ball licenses out there, if you really want to look at them
closely, are the NDA licenses (You give me this, you give me that, I give
you nothing) like the Shared Source licenses, or the non-Copyleft licenses
(I give you this, I give you that, you give me nothing) like the BSD
licenses.
This is not to say that I don't believe that non-reciprocal licenses
like BSD and LGPL don't have their place as I believe they do. There are
many times when releasing economic rights and retaining moral rights in
copyright make a lot of sense. I also believe that pre-term-release
public domain (things that are released to the public domain before the
term expires) has a strong roll to play.
I just think that all the anti-Copyleft stuff is out of place
considering that the vast majority of software that is distributed at all
is offered according to some reciprocal contractual arrangement.
---
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
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