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Linux's GPLv2 licence is routinely violated (2015)

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Re: Linux's GPLv2 licence is routinely violated (2015)

#171

Post by hnfong »

butlerm wrote: post #150
tsimionescu wrote: post #131

Earlier quoted context omitted.

The main point of my argument, and the main concern I feel with GPL-style licenses, is the notion of "do I have to distribute my work under the terms of the GPL even if I don't distribute any GPL code directly; in other words, when is my program a derived work of a GPL work?". If instead I am distributing GPL code directly, the question is more clear - as you say, copyright law makes few exceptions there. But again,…

Unfortunately the FSF's idea of what a derivative work is largely something they made up with no basis in statutory law and which has never been tested in court. It basically consists of wishful thinking on their part. In the US, a derivative work has a legal definition in Title 17 of the United States Code, and anything that is purportedly a derivative work that doesn't clearly fall under the legal definition or est…

> has never been tested in court

This used to be true, but arguably the GPL has been tested in court in the infamous Oracle v Google case. (Java is licensed under the GPL among other licenses)

It looks like the Supreme Court said "sure... whatever, Fair Use, I guess". Are APIs copyrightable in general? God knows. But at least you have a case from a top court deciding that in some cases you can actually copy all the APIs in a GPL'ed Java library.

Totally agree with FSF making stuff up though. The reality distortion field they have is pretty legit. I don't think people even realized how the Java case could have impacted the interpretation of GPL and that it was actually a high profile allegation of GPL violation.

Oh well shrug

Re: Linux's GPLv2 licence is routinely violated (2015)

#172

Post by hnfong »

Borealid wrote: post #39
tsimionescu wrote: post #25

> The userspace ABI is stable and intended not to cause anything targeting it to become a derived work. But once again, this seems to be a way in which the kernel project seems to think it has the power to interpret the GPL. In their minds, targeting the userspace ABI doesn't make a derived work, but writing a module does, unless it only targets GPL_ONLY symbols, in which case for some reason it isn't. I think this w…

I think there's some confusion in the above post. The relevant "derived work" definition for the purpose of linking isn't one stemming from copyright law, it's the one in the GPL itself. This is because the GPL defines what licensees are permitted to do with the licensed work, and it imposes restrictions on those rights. Copyright law by default lets you make very little use of the software - the GPL broadens that ou…

Does the GPL(v2) actually say you can't static link anywhere in its text?

IIRC the static link thing was a FSF interpretation that is not incorporated in the license text. The GPL only stipulates that derivative works must be GPL'd without going into specifics what kind of linking constitutes a derivative work. In case of dispute a court would likely interpret "derivative work" according to standard copyright law (after all it's a legal term) unless there is evidence that the parties intended to use the FSF interpretation.

Re: Linux's GPLv2 licence is routinely violated (2015)

#173

Post by butlerm »

seba_dos1 wrote: post #168
butlerm wrote: post #150

Earlier quoted context omitted.

Unfortunately the FSF's idea of what a derivative work is largely something they made up with no basis in statutory law and which has never been tested in court. It basically consists of wishful thinking on their part. In the US, a derivative work has a legal definition in Title 17 of the United States Code, and anything that is purportedly a derivative work that doesn't clearly fall under the legal definition or est…

If you persuade enough people to be "out of touch with reality", they're not out of touch with reality anymore, because it's the reality that got changed.

That may be true, but in this case the relevant parties to be persuaded are federal appellate judges before it can fairly be said that reality has changed on the ground. How likely they are to be persuaded by a position that has no apparent basis in the statutory text is a real question. As far as I can tell, no one making these rather unusual claims has even tried to outline such an argument.

Why should anyone be persuaded by a legal position that has internal logic that has never been explicated anywhere? If lawyer A writes to lawyer B claiming that B's client is creating a derivative work but cannot explain why, lawyer B is more than justified in laughing them to scorn.

Even if B did create a derivative work according to some unknown and unheard of legal argument acceptable to the courts, fair use could apply anyway. But one can hardly begin to look at the fair use factors if lawyer A could not even identify how a legally cognizable derivative work is being created in the first place.

Re: Linux's GPLv2 licence is routinely violated (2015)

#174

Post by butlerm »

hnfong wrote: post #171
butlerm wrote: post #150

Earlier quoted context omitted.

Unfortunately the FSF's idea of what a derivative work is largely something they made up with no basis in statutory law and which has never been tested in court. It basically consists of wishful thinking on their part. In the US, a derivative work has a legal definition in Title 17 of the United States Code, and anything that is purportedly a derivative work that doesn't clearly fall under the legal definition or est…

> has never been tested in court This used to be true, but arguably the GPL has been tested in court in the infamous Oracle v Google case. (Java is licensed under the GPL among other licenses) It looks like the Supreme Court said "sure... whatever, Fair Use, I guess". Are APIs copyrightable in general? God knows. But at least you have a case from a top court deciding that in some cases you can actually copy all the A…

The claims that have never been tested in court here aren't part of the license, but rather commentary as to what constitutes a derivative work under copyright law. If true, they would affect the legality of a number of practices that apparently do not require distributing or modifying licensed components or accepting the license at all.

If loading and running a program with dynamically linked modules with incompatible licenses creates a legally prohibited derivative work in memory, that is a reasonable claim that the author copyright holders of some of the code could pursue the users in question about. That is not what is controversial though.

The controversial claim is that by merely making a module that is link or use compatible with another module a legally prohibited derivative work has been created. Not by incorporating inline code, or copying the structure, sequence, or organization of another module, but merely by making something that is compatible in the abstract. Where is the legal basis for this claim? It is apparently nowhere, little more than wishful thinking.

Re: Linux's GPLv2 licence is routinely violated (2015)

#175

Post by Jiro »

Borealid wrote: post #149
Jiro wrote: post #138

Earlier quoted context omitted.

>Said differently, the GPL doesn't try to apply itself to "derived works" because of some contralegal dictum they don't have a different creative origin. It merely says "you have two choices - license the things you link with OUR stuff under OUR terms, or you don't have the right to use our stuff". The GPL doesn't restrict use, and says so. When people say that the GPL only lets you use the work under the author's te…

Making a copy of a copyrighted work (duplication) is one of the fundamental actions that usually requires a license. It is difficult to find a way to take another action with the work without first duplicating it.

If you otherwise have the rights to use it, duplicating it in order to use it may fall under fair use.

Re: Linux's GPLv2 licence is routinely violated (2015)

#176

Post by butlerm »

hnfong wrote: post #172
Borealid wrote: post #39

Earlier quoted context omitted.

I think there's some confusion in the above post. The relevant "derived work" definition for the purpose of linking isn't one stemming from copyright law, it's the one in the GPL itself. This is because the GPL defines what licensees are permitted to do with the licensed work, and it imposes restrictions on those rights. Copyright law by default lets you make very little use of the software - the GPL broadens that ou…

Does the GPL(v2) actually say you can't static link anywhere in its text? IIRC the static link thing was a FSF interpretation that is not incorporated in the license text. The GPL only stipulates that derivative works must be GPL'd without going into specifics what kind of linking constitutes a derivative work. In case of dispute a court would likely interpret "derivative work" according to standard copyright law (af…

Static linking creates a work that incorporates another work, in a way that does not appear to be mere aggregation and which usually requires at least a modicum of creativity.

I imagine end users might statically link things together all day long without getting in much trouble - 17 USC 117 practically exempts that sort of thing. But it seems like it would be pretty dangerous ground for a vendor to distribute a statically linked executable in violation of the license of one of its components in large part because a valid license is necessary to distribute the component in the first place.

Re: Linux's GPLv2 licence is routinely violated (2015)

#177

Post by hnfong »

butlerm wrote: post #174
hnfong wrote: post #171

Earlier quoted context omitted.

> has never been tested in court This used to be true, but arguably the GPL has been tested in court in the infamous Oracle v Google case. (Java is licensed under the GPL among other licenses) It looks like the Supreme Court said "sure... whatever, Fair Use, I guess". Are APIs copyrightable in general? God knows. But at least you have a case from a top court deciding that in some cases you can actually copy all the A…

The claims that have never been tested in court here aren't part of the license, but rather commentary as to what constitutes a derivative work under copyright law. If true, they would affect the legality of a number of practices that apparently do not require distributing or modifying licensed components or accepting the license at all. If loading and running a program with dynamically linked modules with incompatib…

> commentary as to what constitutes a derivative work under copyright law

That's part of my point actually. The question of API copyrightability in the Java case has a lot to do with whether copying APIs/ABIs in the code (whether from headers or binary symbol tables) is copyright infringement.

That said, it's unfortunately true that the conclusion is far from clear. (Sidenote -- given that the Supreme Court dodged the question, does it mean that the Court of Appeals decisions still hold? [I'm not familiar with the US legal system])

Re: Linux's GPLv2 licence is routinely violated (2015)

#178

Post by tsimionescu »

bregma wrote: post #155
tsimionescu wrote: post #135

Earlier quoted context omitted.

Yes, but copying a piece of software from a CD into program memory or onto my own hard-drive for archival purposes has been established as a fair-use exemption. So, if I legally acquire a copy of a program (say, I buy a CD), it can't impose extra restrictions after-the-fact through an EULA that only appears when I run it, and I am well within my rights to use my copy (e.g. by copying it into RAM/CPU icache to run it)…

The GPL is a license that applies only to software code and not to the end-user software. A book allegory is more like an author decides to embed the several chapters of one of Rowling's "Harry Potter" books verbatim in a fanfic novel. You could buy or download the novel and have every right to read it, lend it, or re-sell it but the original fanfic author is in copyright violation. If Rowling had published her books…

> The GPL is a license that applies only to software code and not to the end-user software.

I don't know what you are trying to say with this. Binary code distributed to end users is a derived work of the source code, so there is no difference between distributing source code or binary code, from any point of view. And if I illegally create a copy of X's work and sell that copy to Y, X has a right to ask for Y's copy to be destroyed.

And again, I was explicitly talking about the fact that work A can be a derived work of work B even if A includes no amount of B directly. If I re-tell Harry Potter in my own words, replacing every single phrase, name etc., but otherwise keeping the story identical in every way, then my work is almost certainly a derived work of Harry Potter and J.K. Rowling is the only one who has a legal right to distribute the work I created - which also means she has a right to ask for the destruction of all copies of said work that I illegally distributed (not that this would be too easy to enforce).

Similarly, the question arises: if I create a program that has a GCC-shaped hole in it, and distribute to end-users under a proprietary license, to be used with a copy of GCC that they obtain separately, is my work a derived work of GCC or not? This is a real legal question that the GPL has no bearing on.

Re: Linux's GPLv2 licence is routinely violated (2015)

#179

Post by hnfong »

butlerm wrote: post #176
hnfong wrote: post #172

Earlier quoted context omitted.

Does the GPL(v2) actually say you can't static link anywhere in its text? IIRC the static link thing was a FSF interpretation that is not incorporated in the license text. The GPL only stipulates that derivative works must be GPL'd without going into specifics what kind of linking constitutes a derivative work. In case of dispute a court would likely interpret "derivative work" according to standard copyright law (af…

Static linking creates a work that incorporates another work, in a way that does not appear to be mere aggregation and which usually requires at least a modicum of creativity. I imagine end users might statically link things together all day long without getting in much trouble - 17 USC 117 practically exempts that sort of thing. But it seems like it would be pretty dangerous ground for a vendor to distribute a stati…

Might be a bit hair splitting (probably appropriate to do so in this context?), but the GPLv2 states that "mere aggregation of another work... does not bring the other work under the scope of this License". But it technically does not imply the converse is true, i.e. if it is not mere aggregation it must be a derivative work.

Since "derivative work" does not seem to be clearly defined in GPLv2, I would say it's hard to argue that statically linking creates a "derivative work" in the GPLv2 without showing that this is the general legal position of copyright law as opposed to a specific stipulation in the GPL.

Re: Linux's GPLv2 licence is routinely violated (2015)

#180

Post by tsimionescu »

xorcist wrote: post #140
tsimionescu wrote: post #128

Earlier quoted context omitted.

Let's imagine the following scenario. I am creating and distributing a program that, when run on a user's system, will dynamically link with a copy of libc. I am not distributing this copy, but my program will fail to run if no such copy exists. Furthermore, I tell my customers that the only lib C I officially support is FictitiousLibC, released under the full GPL (not the LGPL like the real GNU Libc). The question i…

> According to the FSF, [...] then YES, I am breaking the copyright The FSF have actual copyright lawyers on hand. Where have they said this? The example is not very easy to understand. In general copyright law isn't really applicable to your own right to distribute your own original work.

> The FSF have actual copyright lawyers on hand. Where have they said this?

It is part of the official GPL FAQ [0].

  Does the GPL have different requirements for statically vs dynamically linked modules with a covered work? (#GPLStaticVsDynamic)

     No. Linking a GPL covered work statically or dynamically with other modules is making a combined work based on the GPL covered work. Thus, the terms and conditions of the GNU General Public License cover the whole combination. [...]
> The example is not very easy to understand. In general copyright law isn't really applicable to your own right to distribute your own original work.

The very question is if my work is original. If I create a program that only works when (dynamically) linked with a (GPL) library, is my program an original work, or is it a derived work of that (GPL) library? This is a question that has not really been settled in court; the official opinion of the FSF is clear: it is a derived work.

If the explicit question in the GPL FAQ is not engouth, note again that the whole purpose of the LGPL (and other GPL+exemptions licenses, such as Java's and GCC's) when compared to the GPL is to allow this type of use, which they clearly would not have created unless they believe it would not be allowed for a full GPL library.

[0] https://www.gnu.org/licenses/gpl-faq.en.html#GPLStaticVsDyna...

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