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 17:03:55 -0700
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> "David Schwartz" <davids@webmaster.com> writes:

> > 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.
>
> Of course you can.

No you can't.

> What rights do you have to BSD-licenced works, made available
> (under BSD) to MS exclusively? You only get the binary object...

You are equating what rights I have with my ability to exercise those
rights. They are not the same thing. For example, I once bought the rights
to publically display the movie "Monty Python and the Holy Grail". To my
surprise, the rights to public display did not include an actual copy of the
film.

In any event, I never claimed that anyone has rights to a protectable
element that they do not possess a lawful copy of. That's a complete
separate issue and one that has nothing to do with what's being discussed
here because these are all cases where you have the work.

> You know, this is quite common practice - instead of assigning
> copyright, you can grant a BSD-style licence (for some fee,
> something like "do what you want but I will do what I want with
> my code").

Sure, *you* can grant a BSD-style license to any protectable elements *you*
authored. But unless your recpients can obtain a BSD-style license to all
protectable elements in the work from their respective authors, they cannot
modify or distribute it.

*You* cannot grant any rights to protectable elements authored by someone
else, unless you have a relicensing agreement. Neither the GPL nor the BSD
is one of those.

> >> 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.

> But he may have received only binary program image - or the source
> under NDA.
> Sure, NDA doesn't cover public information, but BSD doesn't mean public.
> Now what?

What the hell does that have to do with anything? Are you just trying to be
deliberately dense or waste time? Is it not totally obvious how the
principles I explain apply to a case like that?

Only someone who signs an NDA must comply with it. If you signed an NDA, you
must comply with it. An NDA can definitely subtract rights. It's a complex
question whether an NDA can subtract GPL rights, but again, that has nothing
to do with what we're talking about here.

Sure, you can have the right from me to do X and still not be allowed to do
X because you agreed with someone else not to do it. So what?

> > 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.

> Sure, the licence covers the >>>entire work<<<, not some "elements".

This is a misleading statement. The phrase "entire work" has two senses. The
license definitely does not cover the "entire work" in the sense of every
protectable element in the work unless each individual author of those
elements chose to offer that element under that license.

If by "entire work", you mean any compilation or derivative work copyright
the "final" author has, then yes, that's available under whatever license
the "final" author places it under. But that license does not actually
permit you to distribute the work.

This is really complicated and I wish I had a clear way to explain it.
Suppose I write a work and then you modify it. Assume your modification
includes adding new protectable elements to that work. When someone
distributes that new derivative work, they are distributing protectable
elements authored by both you and me.

Absent a relicensing agreement, they must obtain some rights from you and
some rights from me to do that. You cannot license the protectable elements
that I authored that are still in the resulting derivative 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.
>
> Of course, that's a very distant thing.

Exactly. Every protectable element in the final work is licensed by the
original author to every recipient who takes advantage of the license offer.

> >> BTW: a work by multiple authors is a different thing than a work
> >> derived from another.
> >
> > In practice it doesn't matter.
>
> Of course it does. Only author of a (derived) work can licence
> it, in this case he/she could change the licence back to BSD,
> or sell it to MS (if not based on GPL etc).

Only the author of any protectable element can license it, whether it's in a
derivated work or by itself.

You are seriously confused if you think that just because you create a
derivative work that includes my protectable elements you can then license
the elements I created under a license you choose.

Please read GPL section 6. The license *always* flows from the *original*
licensor to the ultimate licensee.

> > 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?

> Sure you can :-) that doesn't mean it would protect me from Disney,
> but you can.

Well, in that case you are technically correct. Anyone can license anything
to anyone.

The point you need to understand is that to distribute any work (derivative,
composite, mere aggregation, whatever) that contains protectable elements
from multiple authors, you must obtain the right to every protectable
element you intend to distribute. You can only do so from the original
author or a relicensor. In the case of BSD or GPL licenses, there are no
relicensors.

> > 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.

> I'm told in the USA use = copying from disk to RAM = distribution,
> isn't it true? :-)
> It doesn't matter of course.

No. Anything that is *necessary* to do X is part of X. Copying from disk to
RAM is necessary to use the work, so it is part of use.

> > 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).

> I don't compare them (though you can). You don't get a licence for
> "original elements" in MS-Windows, do you?

You don't get a license because you don't need one. You aren't going to
distribute or modify Windows, so why would you need a license?

Microsoft may choose to impose what is really a click-through or shrink-wrap
contract. But it is not really a copyright license at all. In fact, such
agreements are enforceable even for works that cannot be copyrighted.

> > 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.

> Yes, but it isn't automatic. Imagine you have received something
> from MS, under more permissive licence (I think such things did
> happen). How do you, for example, recognice boundaries of the
> elements, IOW what additional rights do you have to each line in
> the code or pixel in the font?

I don't know. Why does that matter?

> The file itself only states:
> (C) MS
> portions (C) e.g. Bitstream
> licenced under their special agreement
>
> What extra rights do you receive from Bitstream? Perhaps you should
> ask them if they have given you some licence? :-)

You don't know and thus even if you have additional rights to the content,
you cannot exercise them. Having a right and being able to exercise it are
not the same thing. So what?

> Or another example, redistributable runtime libraries. What extra
> rights do you have?

Presumably, you have some license that permits you to redistribute them so
long as you comply with certain terms.

> What you write is true for GPL, but it doesn't mean it's true
> everytime. It's just that clause in the GPL.

It is true in any case where there isn't a relicensing agreement. There is
simply no other way it could work.

DS


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