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Re: Did I finally figure out the rationale?


From: mike3
Subject: Re: Did I finally figure out the rationale?
Date: 26 May 2007 13:37:30 -0700
User-agent: G2/1.0

On May 26, 2:10 pm, John Hasler <address@hidden> wrote:
> > Now most software "licenses" purport not at all to be licenses, namely
> > permissions for doing something.  Instead they purport to be contracts:
> > that is why you have to click "I agree" and similar stuff.  In that case,
> > a legal defense can actually be that you can't enter into a contract by
> > clicking on a button on some screen.
>
> An important point to emphasize here is that under US law the legal owner
> of a copy of a piece of software has all the authority he needs to use that
> software.  No license is required.  The Microsoft EULA is not a license
> granting rights you would not have otherwise had.  It is a contract in
> which Microsoft agrees to sell you a copy of the work on the condition that
> you give up some of the rights you would have had absent the EULA.  The
> GPL, on the other hand, is a unilateral grant of rights.  It grants you
> permission to do things you would not be allowed to do in its absence
> without requiring you to give up any you would have did you not accept it.
> You need not accept the GPL to use the software.

Because if you don't accept the GPL, you can still use the software,
it's
just that you cannot make any copies, modify, etc. since you do not
have
those permissions _under copyright law_, not because you did not
accept
the GPL. If you want to do those things, then you can either do them
under
the GPL's terms or negotiate a different set of terms with the
author(s) of
the software.

But that's the difference between a *license* and a *contract*. A
license
is a _grant of permission_ to do things that would otherwise be
forbidden
under law. The "restrictions" in the GPL simply set out the scope of
that
permission. The _law_ does all the restricting, not the GPL. But what
Microsoft does is to limit how you can _use_ the software -- _using_
software is not specified in copyright law pro or con. There are no
restrictions on _using_ software in copyright law (copyright law
only provides restrictions on copying and modification of software or
other protected works) -- so the restrictions all come from Microsoft,
and hence the resulting end-user "license" agreement is actually a
contract.

As for the question of derivative works, copyright law would otherwise
forbid them -- so what GPL does is it _relaxes_ that restriction --
not
impose an additional one. It says you can make all the derivative
works
you want, provided you also make them free -- and the reason why
you must make the whole thing free INCLUDING THE PARTS YOU WROTE
YOURSELF is so that the amount of free software and code can grow,
and the free software itself can develop and become better. One could
have a license that doesn't require the original parts you wrote
yourself
of a derivative to be released, however this would curb the growth
of free software, and since one of the core principles of Gnutianism
is that all software must be, no, is _innately_ free, then this would
run contrary to that as it would be supporting non-free software.
The GPL is not simply to "keep free software free", at least not the
software specifically licensed under the GPL, contrary to some
people's claims here that that's the only thing it is trying to keep
free. No, it is trying to keep as much software as possible free
since it is believed software is intrinsically free, hence the
requirement of making the totality of derivatives free -- it preserves
the _intrinsic_ freedom of the derivative -- even the original code
is considered _intrinsically_ free. Proprietary licenses are
considered to be _taking away_ a freedom that already would
have existed, so the freedom being preserved is not just that of
the GPL program, but of software in general. However it would
be unreasonable to include a demand that in exchange for using
a GPL program at all then one must make _all_ software they
are developing free (as then it becomes a contract), it only does
what is reasonable -- set out how derivatives can be distributed
if one wants to make them. So then we are led naturally to the
"copyleft" system.

Now, is this right?

> --
> John Hasler
> address@hidden
> Dancing Horse Hill
> Elmwood, WI USA




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