From: David Schwartz <davids@webmaster.com>
To: <forrest@lmcg.wisc.edu>
CC: Linux Kernel Mailing List <Linux.Kernel.Mailing.List@vax.home.local>,
       <linux-kernel@vger.kernel.org>
Date: Wed, 12 Feb 2003 15:28:18 -0800
In-Reply-To: <200302122304.h1CN4eC18614@leinie.lmcg.wisc.edu>
Subject: Re: Monta Vista software license terms
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On Wed, 12 Feb 2003 17:04:40 -0600, Daniel Forrest wrote:
>David,

>>>To make and distribute a derived work, you need certain rights
>>>to the original work. Specifically, you need the right to make the
>>>derived work in the first place and you need the right to
>>>distribute the original work. I am saying that you have both of
>>>these rights without clause 2. It is even arguable that you have
>>>them without clause 1.

>What about clause 5:

>5.  You are not required to accept this License, since you have not
>signed it.  However, nothing else grants you permission to modify
>or distribute the Program or its derivative works.  These actions
>are prohibited by law if you do not accept this License.
>Therefore, by modifying or distributing the Program (or any work
>based on the Program), you indicate your acceptance of this
>License to do so, and all its terms and conditions for copying,
>distributing or modifying the Program or works based on it.

>This clearly states that you have no rights to distribute anything
>unless you accept all the terms of the GPL.

	I'll repeat section 1 of the GPL again:

"1. You may copy and distribute verbatim copies of the Program's
source code as you receive it, in any medium, provided that you
conspicuously and appropriately publish on each copy an appropriate
copyright notice and disclaimer of warranty; keep intact all the
notices that refer to this License and to the absence of any
warranty; and give any other recipients of the Program a copy of this
License along with the Program."

	This clearly says that you can distribute the program without 
accepting the section 2 restrictions.

	I previously addressed "modification". This is not a precise legal 
term, and I presume it was intended to mean the production of derived 
works. The GPL says:

"Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope.  The act of
running the Program is not restricted, and the output from the 
Program is covered only if its contents constitute a work based on 
the Program (independent of having been made by running the Program).
Whether that is true depends on what the Program does."

	This grants the right to use the covered work. As I've argued, using 
source code includes the right to produce derived works because there 
is no other way to use source code. (Well, I suppose you could look 
at it or paper your wall with it. But its intended purpose is to be a 
recipe for the production of derived works.) It is quite clear that 
the GPL was never intended to restrict anyone's ability to use the 
covered works and RMS has clearly argued that the GPL is not a 
shrink-wrap agreement, that is, one you must agree to in order to use 
a copyrighted work.

	Section 5 does say, "However, nothing else grants you permission to 
modify or distribute the Program or its derivative works.  These 
actions are prohibited by law if you do not accept this License."  I 
agree with this statement. However, my argument is that you can 
distribute derived works under the rights given only in the two 
sections I cite above, neither of which alone or in combination 
invokes the section 2 (source disclosure) requirements.
-

	To preserve the linux-kernel list from having to see more of this, I 
would ask anyone interested in responding to please send any further 
comments directly to me. I'll respond to them to you privately, and 
then if you still feel they must go to the linux-kernel list, you can 
send them with my responses in one shot. This will spare the kernel 
list from having to see two or three messages where zero or one would 
suffice.

	I'm not trying to silence anyone. You can still send your message to 
the kernel list. I'm just saying once you see my response, you may 
not wish to send it to the list or you may wish to send it with a 
response to my response. I feel obligated to respond to most public 
comments that challenge my view for fear that silence will be equated 
with an inability to rebut.

-- 
David Schwartz
<davids@webmaster.com>


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