Disarming Viral Software Licenses

I am wondering, what if the person who creates the derived work requires
a separate waiver of this right to obtain the source code under GPL from
everyone to whom the derived work is provided?

You may not impose any further restrictions on the exercise of the
rights granted or affirmed under this License.

But is it legal and enforceable? This seems a bit like a non-compete
clause (that can be ignored in California). Just because the viral
license demands something, does not mean it's entitled to it (limiting
separate contracts with third parties).

Rui Maciel

2009-05-07 10:28:04 UTC

Post by fft1976
But is it legal and enforceable? This seems a bit like a non-compete
clause (that can be ignored in California).

That doesn't make any sense. If you pick up a CD/DVD with some other piece of software, lets say MS Office,
then do you believe that the fact that Microsoft will not authorize you to distribute their own work under
any other license that you may see fit means that their license is "viral" ? Does that mean that Microsoft's
license for MS Office is illegal and unenforceable or a non-compete clause?

Post by fft1976
Just because the viral
license demands something, does not mean it's entitled to it (limiting
separate contracts with third parties).

Indeed. Yet, you do not have to right to pick up any copyrighted work and not only ignore it's license but
also make it out to be your own work at the expenses of the work's rightful owners.

Rui Maciel

Andrew Halliwell

2009-05-08 14:32:23 UTC

Post by fft1976

I am wondering, what if the person who creates the derived work requires
a separate waiver of this right to obtain the source code under GPL from
everyone to whom the derived work is provided?

You may not impose any further restrictions on the exercise of the
rights granted or affirmed under this License.

What does employment law have to do with software licenses?
Apart from nothing, of course.

Unruh

2009-05-09 05:01:36 UTC

Post by Andrew Halliwell

Post by fft1976

I am wondering, what if the person who creates the derived work requires
a separate waiver of this right to obtain the source code under GPL from
everyone to whom the derived work is provided?

You may not impose any further restrictions on the exercise of the
rights granted or affirmed under this License.

That is also covered, in that it says that if you do not agree with the license
agreement, then that license agreement is the only license under which you may
copy the software. Ie, Under copyright law you do not have permission to to copy
the program unless given permission to do so by the copyright owner. The
copyright owner does not give you permission to copy his work for the purpose of
your derived work unless you also give others that permission with respect to the
derived work. You do not have to, but then you have to right to use his work.

Post by Andrew Halliwell
What does employment law have to do with software licenses?

It is an analogy. Thus if the license required you to sacrifice a goat on the
lawn of the legislature, the courts would probably find that condition to be
beyond the contrl of copyright law--ie that you would not have the right to
impose such a condition. In the case of a derived work however, the issue of the
license of that derived work is directly relevant to the original licensor since
he owns the copyright in that derived work (together with you).

Post by Andrew Halliwell
Apart from nothing, of course.

fft1976

2009-05-09 23:07:11 UTC

Post by Unruh
It is an analogy. Thus if the license required you to sacrifice a goat on the
lawn of the legislature, the courts would probably find that condition to be
beyond the contrl of copyright law--ie that you would not have the right to
impose such a condition. In the case of a derived work however, the issue of the
license of that derived work is directly relevant to the original licensor since
he owns the copyright in that derived work (together with you).

If any young and ambitious lawyers in misc.legal are reading this, I'm
pretty sure you can make quite a name for yourself by popping the GPL
bubble the way I'm proposing (I'm not sure if it's feasible) or any
other way. We are talking TV appearances, book deals, hookers and
blow. GPL is a big problem for many free enterprises worldwide.

I don't think the quality of GPL being viral has any legal relevance
or meaning. I just mention it here because I think it's immoral.

Why it's viral: Person A creates the original work and releases it
under GPL for ideological reasons. Person B creates a derived work and
releases it (now it has to be under GPL). Person C creates a derived
work from that work, but might remove the parts created by A, etc.
etc. By the time it gets to person Z, the original A's contribution is
miniscule or non-existent, but the license he imposed now covers the
combined work of many.

Why it's immoral: in many cases person A is actually RMS himself [1],
and the ideology is basically hippie anti-capitalist and anti- free
enterprise.

If American law does not limit the propagation of these viral licenses
through the software industry already, I think it should.

How I think GPL can be disarmed (I'm not a lawyer, and this work-
around can actually be state legislature-dependent): In the above
example of A through Z GPL propagation, before X gives his software
(without source code) to Y, he might say: "here's the software under
GPL. You owe me $500. I'm obligated to give you the source code if you
ask for it, but before you accept the software, you must agree not to
ask for the source code. take it or leave it". GPL demands that such
additional contracts not be made, but I suspect it's not within the
power of GPL to do so, and if it's true, GPL can be defeated.

[1] http://en.wikipedia.org/wiki/Richard_Stallman

Gordon Burditt

2009-05-09 23:47:58 UTC

Post by fft1976
Why it's viral: Person A creates the original work and releases it
under GPL for ideological reasons. Person B creates a derived work and
releases it (now it has to be under GPL). Person C creates a derived
work from that work, but might remove the parts created by A, etc.
etc. By the time it gets to person Z, the original A's contribution is
miniscule or non-existent, but the license he imposed now covers the
combined work of many.

But remember, any one (or more) of those authors may object and
decide to sue, not just the original author, assuming that author
still has a contribution still in the current version.

Post by fft1976
Why it's immoral: in many cases person A is actually RMS himself [1],
and the ideology is basically hippie anti-capitalist and anti- free
enterprise.

I don't see how an ideology in of itself can be immoral.

I thought it was *pro-capitalist* to release software with all kinds
of strings attached (look at any Microsoft license, for example).

Post by fft1976
If American law does not limit the propagation of these viral licenses
through the software industry already, I think it should.

If American law does not limit the enforcability of licenses that
prohibit publication of benchmarks of the software (see Microsoft
licenses), I think it should.

Post by fft1976
How I think GPL can be disarmed (I'm not a lawyer, and this work-
around can actually be state legislature-dependent): In the above
example of A through Z GPL propagation, before X gives his software
(without source code) to Y, he might say: "here's the software under
GPL. You owe me $500. I'm obligated to give you the source code if you
ask for it, but before you accept the software, you must agree not to
ask for the source code. take it or leave it". GPL demands that such
additional contracts not be made, but I suspect it's not within the
power of GPL to do so, and if it's true, GPL can be defeated.
[1] http://en.wikipedia.org/wiki/Richard_Stallman

Note that you STILL might have difficulty selling your software to
Y for $500, since someone might get the source code from W, duplicate
the functionality added by X, and offer it to Y for free. It's called
"competition".

The Natural Philosopher

2009-05-10 00:59:33 UTC

Post by Gordon Burditt
Note that you STILL might have difficulty selling your software to
Y for $500, since someone might get the source code from W, duplicate
the functionality added by X, and offer it to Y for free. It's called
"competition".

The real answer is that in the end, what people pay for isn't code, or a
license to use it. Its someone else to do something they cant do for
themselves.

If you can't afford lawyers, or law enforcement, that's the de facto
reality of it.

Rui Maciel

2009-05-10 10:26:09 UTC

fft1976 wrote:

<snip />

Post by fft1976
Why it's viral: Person A creates the original work and releases it
under GPL for ideological reasons. Person B creates a derived work and
releases it (now it has to be under GPL).

You don't have a clue about what you are talking about. The patch that Person B created does not have to be
released under the GPL. It may be released under what ever license crosses Person B's mind.

On the other hand, if Person B, the person who wrote the patch, wishes to distribute Person A's work then he
must follow the conditions that Person A has set in order to access his own original work. Person B, the guy
that wrote a patch, does not nor can he ever take away the rights and conditions set forth by any other
author. It isn't even his work to begin with.

Rui Maciel

fft1976

2009-05-10 16:30:41 UTC

Post by Rui Maciel
<snip />

Post by fft1976
Why it's viral: Person A creates the original work and releases it
under GPL for ideological reasons. Person B creates a derived work and

^^^^^^^^^^^^^^

Post by fft1976
releases it (now it has to be under GPL).

You don't have a clue about what you are talking about. The patch that Person B created does not have to be
released under the GPL. It may be released under what ever license crosses Person B's mind.
On the other hand, if Person B, the person who wrote the patch, wishes to distribute Person A's work then he
must follow the conditions that Person A has set in order to access his own original work. Person B, the guy
that wrote a patch, does not nor can he ever take away the rights and conditions set forth by any other
author. It isn't even his work to begin with.

"derived work" means both A and B contributed to it

Post by Rui Maciel
Rui Maciel

LOL

Gordon Burditt

2009-05-07 04:10:55 UTC

Post by fft1976
(This is a purely theoretical legal question I'm curious about, no
need to go nuts, even if you feel very strongly about viral licenses)
The GPL license [1], now wide-spread among non-commercial software,
requires that if you create a derived work and provide it to someone,
you must also provide the new source code (software blueprints) under
the same license, requiring others to abide by the same license, ad
nauseam. (This is the "viral" part)
I am wondering, what if the person who creates the derived work
requires a separate waiver of this right to obtain the source code
under GPL from everyone to whom the derived work is provided? The

If you really want to "get around" the GPL, contact the author and
see if they will agree to give you a different license (which is
likely to cost money). Some code is available under multiple
licenses.

Post by fft1976
intent of the GPL is of course to prevent anything like that (so it
can spread), but is it really doing that, and if so, is it legal and
enforceable?

I don't think having someone waive is a substitute for anything,
particularly not a substitute providing the source code.

Post by fft1976
[1] http://en.wikipedia.org/wiki/GNU_General_Public_License

It would be interesting if the GPL specifically required that you
may not waive (note complete absense of any restriction on WHAT you
may not waive) without permission in writing from the Free Software
Foundation, and that this requirement was found legally to affect
the relationship between you and your landlord, or between you and
the Internal Revenue Service.

Rui Maciel

2009-05-07 10:21:44 UTC

It isn't "viral". The GPL is a license, which is nothing more than a list of conditions set by the
author(s) that you must respect in order to be granted the privilege of accessing that software. If you
"create a derived work" you are still using the software that the original authors have produced. The
original authors don't lose any of their rights on their work just because someone decided to tweak it,
specially if that person acknowledged the set of conditions initially set up.

Post by fft1976
I am wondering, what if the person who creates the derived work
requires a separate waiver of this right to obtain the source code
under GPL from everyone to whom the derived work is provided?

Waiver? That doesn't make sense. What that person needs to do is get the authors of that work to agree to
let them access their work under a new set of conditions. To put it in other words, you need to access that
work under a new license which must be willingly provided by the original authors themselves.

Rui Maciel

fft1976

2009-05-08 00:00:20 UTC

Post by fft1976
The GPL license [1], now wide-spread among non-commercial software,
requires that if you create a derived work and provide it to someone,
you must also provide the new source code (software blueprints) under
the same license, requiring others to abide by the same license, ad
nauseam. (This is the "viral" part)

It isn't "viral". The GPL is a license, which is nothing more than a list of conditions set by the
author(s) that you must respect in order to be granted the privilege of accessing that software.

No. The original work may be long gone, but because GPL propagated
itself through the many changes, the license may be the only thing
that remains of the original.

That's why it's viral.

GPL is similar to a non-compete agreement in that it attempts to limit
the person's contracts with third parties. Please see my original
message. I suspect you didn't.

Gordon Burditt

2009-05-08 03:22:59 UTC

Post by Rui Maciel
It isn't "viral". The GPL is a license, which is nothing more than a

list of conditions set by the

Post by Rui Maciel
author(s) that you must respect in order to be granted the privilege

of accessing that software.
No. The original work may be long gone, but because GPL propagated
itself through the many changes, the license may be the only thing
that remains of the original.

The same applies to copyright. There is no guarantee that you can
get hold of the original author (who may be long dead) to negotiate
a license so you can redistribute it.

Post by Rui Maciel
That's why it's viral.
GPL is similar to a non-compete agreement in that it attempts to limit
the person's contracts with third parties. Please see my original
message. I suspect you didn't.

*COPYRIGHT* is similar to a non-compete agreement in that it attempts
to limit the person's contracts with third parties.

A truly "viral" license would have provisions like this:

- If you distribute this software, you must distribute *ALL* software
you write under the GPL and under no other license.
- Distributing this software transfers any patents or first-born children
you may own to the Free Software Foundation.
- You may not deem nor permit anyone to deem on your behalf without
permission from the Free Software Foundation (which will never be
forthcoming).

Rui Maciel

2009-05-08 21:08:47 UTC

Post by fft1976
No. The original work may be long gone, but because GPL propagated
itself through the many changes, the license may be the only thing
that remains of the original.

The General Public License is a license. It is nothing more than a set of conditions that a potential user
must agree to obey in order to be granted the right to use a work of art. As it is easy to see, no one can
force anyone to demand a specific set of conditions for their work in exchange for the right to access a
work of art. A legal demand does not and cannot "propagate".

Therefore, if you pick up a GPL software package and if you write a patch for it then no one can force you
to do anything with your piece of work, including forcing you to release it under the GPL. Yet, just
because you've written a patch that doesn't mean you suddenly gained any right over some other person's
work. That means that the GPL license still applies to the code they have written. So, if you wish to
distribute their code then you need to obey their wishes, which are specified in the GPL.

Post by fft1976
That's why it's viral.
GPL is similar to a non-compete agreement in that it attempts to limit
the person's contracts with third parties. Please see my original
message. I suspect you didn't.

That doesn't make any sense. Do you even know what a copyright license or even a non-compete agreement is?

Rui Maciel

Andrew Halliwell

2009-05-09 14:09:34 UTC

Post by fft1976
No. The original work may be long gone, but because GPL propagated
itself through the many changes, the license may be the only thing
that remains of the original.

Not even that. You don't have to agree with the GPL or even abide by it, if
you only USE the software. Nothing in the license limits its usage.

The license covers distribution and copying only, not use.
You could make as many derived works as you like, as long as you keep them
in-house. The moment you start distributing them elsewhere, THEN you must
abide by the GPL.

fft1976

2009-05-10 17:05:31 UTC

Post by fft1976
No. The original work may be long gone, but because GPL propagated
itself through the many changes, the license may be the only thing
that remains of the original.

The General Public License is a license. It is nothing more than a set of conditions that a potential user
must agree to obey in order to be granted the right to use a work of art.

A work of art?!

http://en.wikipedia.org/wiki/Work_of_art

That's rarely used with software. GPL-licensed code especially tends
to be crap cobbled together by amateurs that needs thousands of people
improving it until it reaches any kind of usability.

This is because the intent of GPL is to demand "improve my crap". Good
programmers are secure about the quality of their work and release
their code to public domain when they want others to marvel at their
code and use it freely, or proprietary licenses, when they want to
profit from it.

Post by fft1976
GPL is similar to a non-compete agreement in that it attempts to limit
the person's contracts with third parties. Please see my original
message. I suspect you didn't.

That doesn't make any sense.

I'm not surprised. Your language skills seem to be wanting.

Douglas Mayne

2009-05-08 19:02:34 UTC

I am not a lawyer, but I find the terms of the GPL to promote cooperation
and creation of new works. IIRC, that is the same goal of the Copyright
acts in the United States. Remember, "Copyleft" is really just a copyright
license. Enforcement of copyright violation varies by jurisdiction.
Violating copyright can certainly lead to civil action and civil
penalties. In a recent copyright based legal action, criminal penalties
have been applied (http://tinyurl.com/dd8knx) Ouch.

The BSD, GPL, and commercial software licenses are copyright licenses.
They tell you what you're entitled to do with the software. The BSD
license allows source code to be forked at any point, and then taken
private by new developers. The GPL also allows forks at any point, but
taking code private is disallowed. Each license makes a case why one
is better than the other. From the outset, the developers are free to
choose whatever license they would like to use. Whatever they choose, it's
good to have the legal framework in place; otherwise, it's like getting
married without a prenuptial agreement. If there is a divorce, then one
party is likely to feel cheated. It's good to be on the same page from the
start.

There is some legal standing for the enforcability of the GPL. From
your reference:

<quote wikipedia>
In April 2004 the netfilter/iptables project was granted a
preliminary injunction against Sitecom Germany by Munich District Court
after Sitecom refused to desist from distributing Netfilter's GPL'ed
software in violation of the terms of the GPL. On July 2004, the German
court confirmed this injunction as a final ruling against Sitecom.[34] The
court's justification for its decision exactly mirrored the predictions
given earlier by the FSF's Eben Moglen:

Defendant has infringed on the copyright of plaintiff by offering the
software 'netfilter/iptables' for download and by advertising its
distribution, without adhering to the license conditions of the GPL. Said
actions would only be permissible if defendant had a license grant... This
is independent of the questions whether the licensing conditions of the
GPL have been effectively agreed upon between plaintiff and defendant or
not. If the GPL were not agreed upon by the parties, defendant would
notwithstanding lack the necessary rights to copy, distribute, and make
the software 'netfilter/iptables' publicly available.

This ruling was important because it was the first time that a court had
confirmed that violating terms of the GPL could effect copyright violation.
</end quote>

--
Douglas Mayne

Unruh

2009-05-09 05:12:49 UTC

Post by Douglas Mayne

No, they can only control copying, not use.

Post by Douglas Mayne
license allows source code to be forked at any point, and then taken
private by new developers. The GPL also allows forks at any point, but
taking code private is disallowed. Each license makes a case why one

No, the code can be private as long as it is not distributed.

Post by Douglas Mayne
is better than the other. From the outset, the developers are free to
choose whatever license they would like to use. Whatever they choose, it's
good to have the legal framework in place; otherwise, it's like getting
married without a prenuptial agreement. If there is a divorce, then one
party is likely to feel cheated. It's good to be on the same page from the
start.
There is some legal standing for the enforcability of the GPL. From
<quote wikipedia>
In April 2004 the netfilter/iptables project was granted a
preliminary injunction against Sitecom Germany by Munich District Court
after Sitecom refused to desist from distributing Netfilter's GPL'ed
software in violation of the terms of the GPL. On July 2004, the German
court confirmed this injunction as a final ruling against Sitecom.[34] The
court's justification for its decision exactly mirrored the predictions

The problem is that a ruling ib a German court has no standing in a US ( or
chinese or Indian,or... court) except perhaps persuasive power.

Post by Douglas Mayne
Defendant has infringed on the copyright of plaintiff by offering the
software 'netfilter/iptables' for download and by advertising its
distribution, without adhering to the license conditions of the GPL. Said
actions would only be permissible if defendant had a license grant... This
is independent of the questions whether the licensing conditions of the
GPL have been effectively agreed upon between plaintiff and defendant or
not. If the GPL were not agreed upon by the parties, defendant would
notwithstanding lack the necessary rights to copy, distribute, and make
the software 'netfilter/iptables' publicly available.
This ruling was important because it was the first time that a court had
confirmed that violating terms of the GPL could effect copyright violation.
</end quote>

Well, no. It said at least in the quote, that it did NOT address the validity of
the GPL, just that absent the GPL there existed no other license under which the
copying could be done. It explicitly says that it is not ruling on the validity
of the GPL.

Post by Douglas Mayne
--
Douglas Mayne

Douglas Mayne

2009-05-09 08:50:29 UTC

Post by Douglas Mayne

No, they can only control copying, not use.

I was mainly comparing the differences between forking versions with the
desired intent that the new child project could continue to be
redistributed without violating the terms of the license. However, I have
to disagree, because I think that the license does _attempt to tell_ you
under what terms you have the right to use the software. This is moot
under the GPL, because "Right 0." is the "right to run the software."
Other licenses, especially commercial licenses, attempt to extend the
license agreement into a defacto contract between the parties. I see
elsewhere on this thread that you do not agree with that assertion;
however, absent a legal precedent I think you'd be out on a limb to
arbitrarily violate terms specified in the fine print. The simplest case
is commercial software that requires a fee to be paid. Absent the fee, the
user has no right to run the software (and translated back to copyright,
had no right to "copy it to his system.") Other licenses may require some
form of attribution, or that a mandatory disclaimer be displayed before
the program is launched. This seems reasonable, too. If the software is
not intended for use in certain environments, then the user should be
advised of that fact beforehand.

IANAL. Others will have to work out the subtlety of the terms and whether
a software license is a defacto contract. Lucky for me, I mostly
use software which are covered by free and open source licenses. They
specifically give end users the right to run the software, and to examine
the source code to find ways to improve the code. When I run commercial
software, I abide the terms, including paying the required fees, etc. That
said, some terms in commercial licenses have proved to be too onerous,
IMO. Especially, when those terms are being set by an abusive monopolist.
Let's hope that the European Union forces some real progress on
specifications and compatibility. I don't think they're going to buy into
Ballmer's "ham sandwich" extension, or your example of goat sacrifice.

No, the code can be private as long as it is not distributed.

I agree with that, at least in the case of the BSD and GPL licenses.

Post by Douglas Mayne
is better than the other. From the outset, the developers are free to
choose whatever license they would like to use. Whatever they choose,
it's good to have the legal framework in place; otherwise, it's like
getting married without a prenuptial agreement. If there is a divorce,
then one party is likely to feel cheated. It's good to be on the same
page from the start.
There is some legal standing for the enforcability of the GPL. From your
<quote wikipedia>
In April 2004 the netfilter/iptables project was granted a preliminary
injunction against Sitecom Germany by Munich District Court after
Sitecom refused to desist from distributing Netfilter's GPL'ed software
in violation of the terms of the GPL. On July 2004, the German court
confirmed this injunction as a final ruling against Sitecom.[34] The
court's justification for its decision exactly mirrored the predictions

The problem is that a ruling ib a German court has no standing in a US (
or chinese or Indian,or... court) except perhaps persuasive power.

Correct.