Date: Tue, 11 Feb 2003 14:27:21 -0800
From: Larry McVoy <lm@bitmover.com>
To: David Schwartz <davids@webmaster.com>
Cc: brand@jupiter.cs.uni-dortmund.de,
       Linux Kernel Mailing List <linux-kernel@vger.kernel.org>
Subject: Re: Monta Vista software license terms
Message-ID: <20030211222721.GA15043@work.bitmover.com>
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	David Schwartz <davids@webmaster.com>,
	brand@jupiter.cs.uni-dortmund.de,
	Linux Kernel Mailing List <linux-kernel@vger.kernel.org>
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> 	I'll explain it again, repeating myself more slowly.

David has a good point here.  It is worth emphasizing that what you believe
to be true may not be legally true.  Everyone believes certain things about
the GPL but those beliefs are just opinions.

If David is correct, and what he is saying seems plausible, then because
there is no click through, shrink wrap, or written agreement to the GPL,
if you had the rights to the software *before* it was modified then
you had those rights, end of story.  And the GPL grants those rights
to everyone.  This is why almost 100% of the other licenses in the world
start out with "XYZ expressly  reserves  all  rights  in  the Software
not specifically granted to Licensee."

I think people should read his posting below carefully, which is why I
quoted it.  

> 	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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-- 
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Larry McVoy            	 lm at bitmover.com           http://www.bitmover.com/lm 
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