From: David Schwartz <davids@webmaster.com>
To: <brand@jupiter.cs.uni-dortmund.de>
CC: Linux Kernel Mailing List <linux-kernel@vger.kernel.org>
Date: Tue, 11 Feb 2003 14:11:36 -0800
In-Reply-To: <200302112042.h1BKgTPu014960@eeyore.valparaiso.cl>
Subject: Re: Monta Vista software license terms
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On Tue, 11 Feb 2003 21:42:29 +0100, Horst von Brand wrote:
>David Schwartz <davids@webmaster.com> said:
>>On Tue, 11 Feb 2003 08:42:26 +0100, Horst von Brand wrote:

>>>The GPL gives me the right to distribute modified versions _only
>>>if >I
>>>comply with the GPL_. And GPL forbids further restrictions when
>>>distributing.

>>I realize that. But that has nothing to do with what I said, 
>>which
>>analyzes only those rights you have without agreeing to the GPL by
>>virtue of the fact that you possess the work and were not subject
>>to
>>any restrictions in the process of acquiring and using it.

>I just don't get it. If I get sources to foo under the GPL, I can
>spindle
>and mutilate them to my heart's content at home. But as soon as I do
>distribute it, the GPL is in force. There is no "not bound by the 
>GPL
>because I'm not doing ..." and then distributing "and I wasn't bound
>by
>GPL, so..."

	But you don't need to distribute the rights to the Linux kernel 
because already already has the rights to the Linux kernel. And when 
you say you "get sources .. under the GPL", you're implying that you 
have to assent to the GPL to get sources, but you don't. The GPL is 
not a shrink-wrap agreement and you don't have to assent to it just 
to receive or use sources. There is no distribution issue because 
everyone already has the right to possess and use every GPL'd work, 
so there are no rights to distribute.

	I'm puzzled whether you're actually reading and thinking about what 
I'm saying, because your responses seem to indicate that either 
you're not taking the time to understand me or I'm not being clear 
enough.

>>>If your bizarre interpretation was right, no software licence at
>>>all
>>>would have any validity. In particular, I'd be more than very
>>>surprised
>>>if the GPL was so sloppily written. It was written with the input
>>>of
>>>eminent lawyers, after all.

>>    Your generalization doesn't apply because of several major
>>differences between most software licenses and the GPL:
>>
>>    1) Most software licenses do not grant everyone the right to 
use
>>the
>>work covered.
>
>Irrelevant.

>>    3) Most software licenses require your assent before you can 
use
>>the
>>covered work, in fact, most require your assent before you have the
>>right to possess the covered work.

>Don't see the relevance here. Besides, you never "possess" anything,
>you are just given permision to use.

	I'll explain it again, repeating myself more slowly.

	Nobody signs the GPL. So the only way you can determine whether or 
not someone is bound by the GPL is if they did something that they 
could not have obtained the right to do other than by the GPL.

	You don't need to assent to the GPL to receive GPL'd works. You 
don't need to assent to the GPL to distribute rights to use a GPL'd 
work (because everyone is already given that right).

	So what did you do that you couldn't do without the GPL? The answer 
is that you distributed a derived work to people who already had the 
right to possess the original work. I am saying that that is not an 
*additional* right to the *original* work. It's the simple sum of 
other rights. So you don't need to assent to the GPL to get it.

	The difference with other software licenses is that you *do* need to 
assent to them to get the rights you already have without the GPL. 
For example, with Microsoft's EULA, you don't have the right to use 
the work without assenting to the EUAL, so mere use of the work can 
be used as proof of assent.

	As an example, suppose you and I both have some greeting card 
program. I produce a greeting card that includes some graphics 
included with the greeting card program. That greeting card is a 
derived work. I can't distribute it to anyone I want because it 
contains embedded graphics and I would be distributing those graphics 
to people who had no right to them.

	On the other hand, if I distributed it only to people who also owned 
the greeting card program, there would be no rights question. Every 
recipient of my derived work already has the rights to use and 
possess the work from which it is derived. The only additional right 
they need is the right to my modifications, which I can give them.

	Again, the right to possess and use a derivative work when you 
already have the right to possess and use the original work and the 
right to make the derivative work is not an *additional* right to the 
*original* work. I can't say it any clearer than that, and I welcome 
any citations to law or court precedent to the contrary.

-- 
David Schwartz
<davids@webmaster.com>


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