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Re: [Gnu-arch-users] Re: arch and linux 2.7

From: Stephen J. Turnbull
Subject: Re: [Gnu-arch-users] Re: arch and linux 2.7
Date: Fri, 07 Nov 2003 13:17:20 +0900
User-agent: Gnus/5.1002 (Gnus v5.10.2) XEmacs/21.5 (celeriac, linux)

>>>>> "John" == John Goerzen <address@hidden> writes:

    John> "Stephen J. Turnbull" <address@hidden> writes:

    >> What's your point?  The BKL I'm looking at imposes no
    >> conditions regarding use of other SCM products.

    John> You've got the wrong license.  We're talking about the Free
    John> Use License, which is here:


    John> Section 3(d) says:

       (d)  Notwithstanding any other terms in this License, this
            License is not available to You if  You  and/or  your
            employer  develop,  produce,  sell,  and/or  resell a
            product which contains substantially similar capabil-
            ities  of  the BitKeeper Software, or, in the reason-
            able opinion of BitMover, competes with the BitKeeper

What makes you think that's not the license I was looking at?  Those
were exactly the words I was looking at.  I _still_ find no instances
of the word "use" or its synonyms in that passage.  Where are they?

    John> Really, this means that

Are you a lawyer, that anybody should give weight to your unsupported
opinion about the "real meaning" of a legal document?

    John> if Larry decides you "compete", you are out.  So in the
    John> example of a Debian developer, Larry could decide that
    John> Debian competes, and take out all Debian developers if he
    John> likes.

Wrong on four points.  First, you have implicitly equated "use other
software" (my words, summarizing a theme of the thread, which is that
users of other SCMs who contribute bug reports and requests for
enhancement---a reasonable interpretation of A Deruwe's "[users] only
giving insight and ideas"---may not use BK under the "free use"
license) with "compete" (your word, and not a complete quote of the
license).  Was that merely a thinko?  Are you contending that Larry
cheats in the same way, or not?

Second, with respect to the more plausible contention that "Debian
developers" en masse are disqualified because Debian distributes CVS
and svn, that license does not allow Larry to decide that _you_
compete.  It allows Larry to decide that a _software product_
competes.  He must then establish that you or your employer are
"developing, producing, selling, or reselling" _that software product_
or he may not invoke paragraph 3(d).

It might actually be non-trivial to prove that Debian as a distro
develops, produces, sells, or resells other SCMs in the legal meaning
of those words; I don't know.  It's surprising how often the law
actually corresponds to common sense in such definitions.  It's the
edge cases (as we software developers know) that get crazy.  Debian is
presumably an edge case legally, which means it could go either way.
Eg, Debian's lawyer would undoubtedly argue that because Debian is
distributed by Debian itself free of charge, and licensed to all
resellers free of charge, any revenues from CDs etc are due to
reciept of donations, not sales.  AFAIK a court might sustain that.

Third, you are ignoring the word "reasonable".  That word is defined
by the courts and any applicable legislation, not by Larry or
Bitmover's lawyers.  Ie, Debian undoubtedly produces configuration
management software (eg, dpkg), but Bitmover would have to do a fair
amount of work to show that "dpkg competes with Bitkeeper in the
reasonable opinion of Bitmover", and the court might very well reply
"the Court finds the plaintiff's contention to completely lack merit".

Fourth, to the best of my knowledge, Debian has _no_ employees.  If so,
only Debian developers directly involved in the SCM packages are at
any risk of being denied use under the soi-disant "free use" license.

Combining those four points, I think that Debian users are at zero
risk of not qualifying for the "free use" license, and the risk to
Debian developers in general infinitesimal.

No, SINAL.  However, he occasionally knows what he is talking about.

Institute of Policy and Planning Sciences
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.

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