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Re: GPL is like a cancer


From: Alexander Terekhov
Subject: Re: GPL is like a cancer
Date: Tue, 14 Apr 2009 21:32:26 +0200

David Kastrup wrote:
> 
> Rjack <address@hidden> writes:
> 
> > "As we were going over the scan results I noticed a very interesting
> > trend. The GPL licensed software tends to assimilate quite a bit of
> > BSD-style and public domain source code. By including that other
> > source code it ends up spreading like a cancer."
> > http://questonsecurity.blogspot.com/2009/04/gpl-license-is-like-cancer.html
> 
> Hm?  The whole point of BSD-style and public domain source code (and
> what the proponents are proud about) is that it is _intended_ for
> assimilation into differently licensed software.  

Hm? The whole point of the BSDL'd and the public domain source code is
that it (original source code released under the BSDL or
entered/dedicated/ in/to the public domain) is "_intended_" to remain
under the BSDL and (respectively) the public domain. The public domain
code just can NOT be *copyright* licensed at all and the BSDL'd original
expression must remain under the BSDL and only the BSDL, regarding the
the copyright law. Some have argued that even modifications to the
BSDL'd code must remain under the BSD as well:

http://opensourcelaw.biz/publications/papers/BScott_BSD_The_Dark_Horse_of_Open_Source_070112lowres.pdf
 

"What is the legal effect of being required to retain "this list of 
conditions". Are they just there for show? Do they have some other 
effect? In determining this, a court will look to the objective 
meaning of the clause and, potentially, the objective intention of the 
original licensor. In this case, the actual subjective intention of 
the party granting the license (and what they thought the words meant) 
is irrelevant.8 What the court is looking to determine is what the 
reasonable person (ie an idealized and dispassionate citizen who is 
called on to assess the scope of the license) would make of the 
words.9 

Consider first the warranty disclaimer. If there is a requirement to 
"retain" a copy of the warranty disclaimer in a redistribution, is a 
court likely to say the warranty disclaimer is intended to be 
effective or not? For example, could the disclaimer be retained but 
framed by a redistributor in such a way that the disclaimer had no 
legal force?10 It is likely that the reasonable person would read the 
license and think that the licensor intended that the warranty 
disclaimer was to be retained without qualification. A similar 
argument could be made about clause 5 (which prohibits endorsements). 

On this analysis, the warranty disclaimer travels with the 
distribution and the redistributor has no ability to qualify it. The 
question then becomes what about the other clauses? What about clause 
2 which permits "redistribution and use" of the source form? If, in 
the case of the warranty disclaimer, the objective intention of the 
requirement to "retain" or "reproduce" the warranty disclaimer is that 
the warranty disclaimer cannot, by the manner of its retention, be 
limited in its application or scope. Why should the same reasoning not 
apply to the terms in the "list of conditions"? Moreover, if the 
disclaimer and endorsement prohibition are operative as conditions, 
what basis can there be for arguing that the other clauses are not? 

If the other license terms are operative, then the combined effect of 
clauses 2 and 3 is that redistribution of the source form must occur 
on the terms of the NBSDL.

[...]

We now turn our attention to the case where modifications are made to
the source form, and redistribution of the source form with those
modifications occurs. Above, we concluded that the NBSDL applies to the
unmodified source form. Does it also apply to the source form with
modifications?
 
The situation in this case can be argued in a similar manner to the
argument above about framing the warranty disclaimer. By assumption, no
license is granted by the redistributor over the original code. This
raises a question about the difference between the original work and the
work as modified. This difference may not be able to be licensed by the
original licensor as it may not be theirs to license. However, the
original licensor has mandated specific wording to be included which, on
its face, applies to the source form “with modifications”. The question
would become – is it reasonable to read these words as permitting a
similar form of framing by the distributor to that discussed above (in
paragraph 4.5/note 10)? For the same reasons as those above, it seems
unlikely that the wording would be permitted to be framed so as to be
ineffective. Could it be framed to be limited in application? We would
argue that the original licensor has an interest in disclaiming the
whole of the source form “with modifications”, especially as
modifications may cause the code to operate incorrectly. If so, that
would support a reading of the license as not permitting the restriction
of the disclaimer to a subset of the source. A similar argument might be
made in respect of the no endorsement requirement in clause 5 (which
refers to “this software”), although this is not so clear.

Two clauses (the warranty disclaimer and the clause 5) imply that the
terms of the license are intended to address some of the interests of
contributors to the software.12 The references to “contributors” in
clauses 5 and 6 would have no meaning if the license terms only ever
applied to the original form as licensed. As these references to
contributors appear to be very deliberate, it would be inappropriate to
prefer an interpretation in which they have no meaning.

As such, we argue that the license does not permit its own “framing” in
the course of distribution and the wording would be read as a license
over the work with modifications. There may now be two licenses, one
from the original licensor relating to the unmodified work, and one from
the contributor relating to the work with modifications.

A counter argument may be that, depending on how the template's details
are populated, the copyright statement (clause 1) will be wrong in the
case of modifications and the NBSDL does not provide an option for the
addition of other copyright notices. This is difficult to reconcile with
the interpretation above.13 However, if not reconciled (perhaps as a
drafting error),14 it is difficult to see how the NBSDL can be
interpreted except by reading down the references to contributors in
clauses 5 and 6.15

[...]

CONCLUSION

If the arguments in this paper are correct then we can draw a number of
conclusions:

(a) arguably, the words of the NBSDL considered in isolation require
that modifications be distributed under the terms of the NBSDL, and that
this requirement therefore cascades down to subsequent generations of
code;

(b) the license does not appear to leave room for the relicensing of a
NBSDL Work under the terms of any other license, at least in so far as
any restrictions in other licenses would seem to be able to be avoided;

(c) the NBSDL does not have a requirement for the distribution of source
code."

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)


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