From: "David Schwartz" <davids@webmaster.com>
To: <khc@pm.waw.pl>
Cc: "Theodore Tso" <tytso@mit.edu>, "Adrian Bunk" <bunk@kernel.org>,
       "Can E. Acar" <can.acar@pro-g.com.tr>, <misc@openbsd.org>,
       <linux-kernel@vger.kernel.org>, "Daniel Hazelton" <dhazelton@enter.net>,
       "Eben Moglen" <moglen@softwarefreedom.org>,
       "Lawrence Lessig" <lessig_from_web@pobox.com>,
       "Bradley M. Kuhn" <bkuhn@softwarefreedom.org>,
       "Matt Norwood" <norwood@softwarefreedom.org>
Subject: RE: Wasting our Freedom
Date: Mon, 17 Sep 2007 14:09:38 -0700
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Kryzstof Halasa writes:

> "David Schwartz" <davids@webmaster.com> writes:
>
> > Theodore Tso writes:
>
> hardly

A apologize for the error in attribution.

> > Of course you don't need a license to *use* the derived work.
> > You never need
> > a license to use a work. (In the United States. Some countries
> > word this a
> > bit differently but get the same effect.)

> Really? I thought you need a licence to use, say, MS Windows.
> Even to possess a copy. But I don't know about USA, I'm told
> there are strange things happening there :-)

No, you do not need a license to use MS Windows. Microsoft may choose to
compel you to agree to a license in exchange for allowing you to install a
copy, but that is not quite the same thing.

If you read United States copyright law, you will see that *use* is not one
of the rights reserved to the copyright holder. Every lawful possessor of a
work may use it in the ordinary way, assuming they did not *agree* to some
kind of restriction.

> > If, however, you wanted to get the right to modify or distribute a
> > derivative work, you would need to obtain the rights to every
> > protectable
> > element in that work.

> Of course.

> > Read GPL section 6, particularly this part: "Each time you
> > redistribute the
> > Program (or any work based on the Program), the recipient automatically
> > receives a license from the original licensor to copy,
> > distribute or modify
> > the Program subject to
> > these terms and conditions."

> Seems fine, your point?

My point is that you *cannot* prevent a recipient of a derivative work from
receiving any rights under either the GPL or the BSD to any protectable
elements in that work.

> In addition to the rights from you (to the whole derived work),
> the recipient receives rights to the original work, from original
> author.
> It makes perfect sense, making sure the original author can't sue
> you like in the SCO case.
>
> If A sold a BSD licence to B only and this B sold a proprietary
> licence (for a derived work) to C, C (without that clause) wouldn't
> have a BSD licence to the original work. This is BTW common scenario.

C most certainly would have a BSD license, should he choose to comply with
terms, to every protectable element that is in both the original work and
the work he received.

C has no right to license any protectable element he did not author to
anyone else. He cannot set the license terms for those elements to C.

Again, read GPL section 6. (And this is true for the BSD license as well, at
least in the United States, because it's the only way such a license could
work.)

Neither the BSD nor the GPL ever give you the right to change the actual
license a work is offered under by the original author. In fact, they could
not give you this right under US copyright law. Modify the license *text* is
not the same thing as modifying the license.

> > To distribute a derivative work that contains protectable elements from
> > multiple authors, you are distributing all of those elements
> > and need the
> > rights to all of them. You need a license to each element and
> > in the absence
> > of any relicensing arrangements (which the GPL and BSD license are not),
> > only the original author can grant that to you.

> Of course.
>
> BTW: a work by multiple authors is a different thing than a work
> derived from another.

In practice it doesn't matter. All that matters is that you have a single
fixed form or expression that contains creative elements contributed by
different people potentially under different licenses. The issues of whether
it's a derivative work or a combined work and whether the distributor has
made sufficient protectable elements to assert their own copy really has no
effect on any of the issues that matter here.

> > It is a common confusion that just because the final author has
> > copyright in
> > the derivative work, that means he can license the work.

> Of course he (and only he) can. It doesn't mean the end users can't
> receive additional rights.

No, he can't. He can only license those protectable elements that he
authored.

There is no way you can license protectable elements authored by another
absent a relicenseing agreement. The GPL is explicitly not a relicensing
agreement, see section 6. The BSD license is implicitly not a relicensing
agreement.

> Come on, licence = promise not to sue. Why would the copyright
> holder be unable to promise not to sue? It just doesn't make sense.

A license is not just a promise not to sue, it's an *enforceable*
*committment* not to sue. It's an explicit grant of permission against legal
rights.

Would you argue that I can license Disney's "The Lion King" movie to you if
I promise not to sue you over any (no) rights that I possess to it?

> > He cannot license
> > anyone else's creative contributions absent a relicensing arrangement.
>
> Sure, he can licence only his work, perhaps derived work.

Right.

> Look at MS Windows - it's a work created by a single company, though
> derived from other works, it's (C) MS and you get a licence for the
> whole MS Windows from only MS.

You are confusing licenses of two very different types. The BSD and GPL
licenses only cover modification and distribution, two rights you do not get
to MS Windows at all. *Use* is not restricted under copyright.

You are comparing apples to oranges.

It is misleading to say you "get a license for the whole MS Windows from
only MS". You do not need a license to *USE* a copyrighted work in the
United States. You only need a license to copy, distribute, or modify the
work. These are rights you *never* *get* to MS Windows.

There is simply nothing remotely comparable to the BSD or GPL license in the
case of MS Windows. There is no grant of additional rights beyond those you
get automatically with lawful possession (such as use).

Licenses that only grant additional rights and do not restrict use, such as
the GPL and BSD license, are not remotely comparable to EULAs or
shrink/click wrap agreements. They follow completely different rules and are
basically incomparable.

If MS wished to grant someone the right to modify or redistribute Windows,
that person would also need to obtain the right to modify or distribute
protectable elements not authored by Microsoft. The only way they could
obtain those rights, assuming Microsoft didn't have written relicensing
agreements, is from the original author under the original licenses.

DS


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