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Software Licensing: "The GNU GPL Stood Up In Court," Says Richard Stallman
"The Idea That the GNU General Public License Would Never Stand Up In Court is Sheer Fantasy," RMS Says, Rebutting O'Gara Interp

Richard Stallman writes: Maureen O'Gara's review in Linux Business Week of Larry Rosen's book misrepresents the Free Software Foundation's views, when it says we criticized Rosen for "recognizing...licenses other than the GPL".

Recognizing other licenses as legitimate is entirely correct, and we have always recognized many other bona-fide free software licenses. See the Free Software Definition, http://www.gnu.org/philosophy/free-sw.html, and our license list, http://www.gnu.org/licenses/license-list.html.

We do have some disagreements with the Open Source Initiative, because its goals are different from ours. Whereas they recommend a development model for the sake of more powerful and reliable software, the goal of the Free Software Foundation, since 1985, is to give users the freedom to redistribute and change software. The GNU/Linux operating system that is popular today is the result of our idealism.

The idea that the GNU General Public License would never stand up in court is sheer fantasy. I wrote the GNU GPL with copious advice from copyright lawyers, who helped me design it to work with the generally accepted understanding of copyright law.

The FSF has never needed to go to court because violators know we could afford to pursue them. Harald Welte, developer of netfilter, was not so lucky: he did have to go to court to enforce the GNU GPL.

The GNU GPL stood up in court: the court granted a preliminary injunction that shut the violator down. Compliance followed promptly.

The GNU GPL is not the only legitimate license, but I designed it to do the utmost to protect users' freedom. That's why it is used for almost 3/4 of free software packages today.

About Richard Stallman
Richard Stallman is the founder of the Gnu Project, launched in 1984 to develop the free operating system GNU (an acronym for "GNU's Not Unix"), and thereby give computer users the freedom that most of them have lost. GNU is free software: everyone is free to copy it and redistribute it, as well as to make changes either large or small. He is the principal or initial author of GNU Emacs, the GNU C Compiler, the GNU Debugger GDB and parts of other packages. He is also president of the Free Software Foundation (FSF).

Any copyright notice in his articles supersedes all copyright notices on the SYS-CON and Ulitzer sites.

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I was one of the many legal minds which Richard Stallman solicited in a the net.legal newsgroups back in 1984. Gosling, I'm not sure if that's the same Gosling of Java fame, had just come out with a version of emacs which supported some very popular printers. The price tag for this "enhanced" version was steep, something like $300/user. Many emacs users were sending Richard nasty notes, and even threats, because they thought he had deliberately ripped off the developers, thousands of whom had been working on and enhancing emacs.

When Richard approach Gosling, he was rebuffed. Because the original version was placed into the simtel-20 archives under a public domain license, Richard had no legal control over derivative works.

He approached us in this newsgroup, and about 50 lawyers and others experienced in copyright law went through the law books and legal judgements to research the most effective ways to satisfy Richard Stallman's goals of preventing people from simply taking the efforts of thousands of staff-years and making a 2 staff-week enhancement then selling it for some rediculous price to make $millions or $billions.

My own background was in performing arts management, where copyrights and derivative rights including performance rights are very carefully watched and monitored. There were others who were experienced intellectual property rights lawyers, and even a professor from Cornel Law School.

As we reviewed the goals, we drafted the language for what was first known as the "General Public License". A bit later, Richard Stallman formed the GNU project and renamed it the GNU Public License.

The goals were very simple. Protect the efforts of thousands of professionals, students, and hackers who had volunteered time, experience, training, and effort, to create quality software in a collaborative environment, by preventing the publication of proprietary variants.

Richard has been an outstanding guardian of that public trust, and now maintains control of one of the largest, most diverse, and most advanced software repositories in the world, surpassing even Microsoft's.

Not all of us agree with Richard on all points. I disagreed with his efforts to let BISON "take ownership" of code which had been originally been created as source code for commercial products such as compilers or intellegent software. Eventually the issue was resolved with byacc which was a yacc-like variant released under the terms of the BSD license.

At one time, the National Science Foundation's NCSA used a similar license. Under this open source GPL style license, the Web Browser and Web Server, along with thousands of other pieces of software commonly used today, were created and enhanced. But in 1994, Spyglass was granted permission to sell "Branding Rights" - the right to put a company logo and company sponsored bookmarks into the initial configuration files. When Prodigy tried to get rid of the ability to manually enter a URL, contributors balked, stating that this was an unacceptable change to the source code. At best, they wanted the source code so that they could put that address line back.

Spyglass secretly sold the rights to Microsoft, who added some last minute changes to their version of the license, including the ability to make proprietary, unpublished changes to the original Mosaic code.

When developers and contributors protested, loudly, the NCSA decided to rewrite the NCSA license, and retroactively license all of the software in it's archive under the new license. This was a bit like telling all of the people in a suburban neighborhood that they were building an airport that would have planes flying about 300 feet overhead, but offering nothing for the damages and lost real-estate value.

Because it was a government agency making this decision, efforts to reclaim the original rights under the original terms were quickly thwarted.

In retailation, contributors began publishing patches to the NCSA server, but under the terms of a "Forced Giveback" license similar to the GPL. Eventually, there were so many patches that the new server became known as "A patchy" server. The madison avenue types changed the spelling to apache, and this new server is still the most widely used server in the industry.

Richard has also been flexible. Under licenses such as the LGPL, it became possible to create libraries which could run under GPL software, but would allow commercial software to call these "bridge" libraries without having to give back their source code.

One of the problem today, is that there are thousands of patches and upgrades being released for Linux, which are only available under the terms of the GPL and LGPL. This means that proprietary products such as Microsoft Windows, SCO Unix, Apple OS/X, and numerous others, are unable to apply well-known patches and upgrades which are not available under their less restricted licenses.

Open Source has also been creating problems for those who are attempting to patent software. In many cases, software patents involve disclosures of source code, which often can be traced back to GPL and LGPL roots. This can often nullify a patent, or place the patent itself under the legal umbrella of GPL.

The problem is that companies like Microsoft and SCO want to feed from the GPL trough, but they want to kill off the very contributors who keep adding to and enhancing these GPL products.

David....

If you USE GPL code in a non-GPL application then YOU CANT USE THE CODE.

MySql allows you to get NON-GPL LICENCED CODE to use in a non-GPL application.

In other words, the code belongs to MySQL, which they licens under the GPL for free use.

As soon as you try to violate that license, they REQUIRE you get a different license that WILL allow you use it the way you want.

Tough.

What's the view of the GPL when it's used by companies like MySQL who say if you use you USE (not sell, just use) GPL code in a non-GPL application, you must BUY a license to the open source? People contribute code to projects under the GPL because they are sharing in the previous contribution while adding their own to make it better. That's what the GPL was all about. But now we have corporations taking that "open source" and saying you have to buy it to use it. That's not the GPL is it?

Daniel Wallace said, "Do you suppose there is another agenda at work here? The editors of LinuxWorld are spinning like a top. This is more blather directed at discrediting
fellow journalist Maureen O'Gara."

It's ludicrous to compare Mr Stallman's clear, logical writing to the blather spewed by Ms O'Gara in a sister SYS-CON eZine.

Mr Wallace is showing his agenda clearly. It's no secret he vociferously opposes the GPL and uses more than his share of selective quoting to promote his own biased views.

If anyone wants to see Mr Rosen's opinion of O'Gara's propaganda piece, check out:

blogs.zdnet.com/open-source/index.php?p=197

=^^=

"It's an open question: would the Internet exist if the Berkeley stack had been GPL?"

Yes - because the code was developed with public funds via DARPA. And up until 1975 (or therabouts) the rules were that software developed under public funding was owned by the public. Therefore, the internet would have existed.

The GPL would only have re-enforced this ownership, by keeping all improvements/extensions also in the public.

"Would TCP/IP have seen broad adoption by commercial Unix vendors?"

Yes. Again, DARPA requirements, and it WAS included in parts of DoD/government purchase.

And nothing says that the code used by propriatary vendors would have to be made public. They could (and frequently did) re-implement the entire stack. Resolution of incompatibility was done by having a reference implementation.

Large chunks of the Internet run on BSD-licensed code (or similar). It's an open question: would the Internet exist if the Berkeley stack had been GPL? Would TCP/IP have seen broad adoption by commercial Unix vendors? Or would we all be running X.400 email over a variety of cross-licensed proprietary implementations such as SNA and DECnet and [putatively] NetBIOS/NT? Whatever may be your opinion or mine about the goodness of the GPL, its effectiveness in library code is open to debate. In fact, that's what led to the LGPL, and to the bizarre loading of closed binaries into the Linux kernel.

The question here is what is more important "People or Business"

Software is a unique thing. It is the first time that something can be made from nothing. Ideas and knowledge are like software, but ideas needs a need an extra step to do something. Software can be duplicated at near zero cost, making it a totally renewable resource.

Knowledge and ideas are not created in a vaccuum. New ideas and knowledge is built from older concepts. With GPL and Open Source software, the ideas and work of other people are added upon by new people build something from nothing.

Open Source is a way to give people more knowledge and power with out stealing it from others.

These comments seem wholly misdirected by Mr Wallace as the article in question is written by RMS himself.

The case to which Stallman refers occurred in Germany
and was decided under German law. It was very
disingenuous of the LinuxWorld editors not to mention
that Stallman omitted this fact.

Stallman is attempting to leave the impression
that the GPL's section 2(b) has been ruled
enforcable under United States law. It hasn't
and never will be... it's preempted under
U.S. copyright law.

As to Stallman's resorting to copious legal advice
here's some from Professor Micheal Davis of Clevland
State University that Richard chose to ignore.

http://lists.essential.org/upd-discuss/msg00131.html

Do you suppose there is another agenda at work here?

The editors of LinuxWorld are spinning like a top.
This is more blather directed at discrediting
fellow journalist Maureen O'Gara.

If you wish to impress upon readers the idea that the
GPL is enforceable, publish the article in the German
language... since Germany is where the ruling is
applicable.

Stallman and Moglen have artfully avoided *any*
meaningful court review of the applicability of the
GPL's section 2(b) under U.S. copyright law.

Larry Rosen knows and acknowledges this fact. Why can't
Stallman, Moglen and the LinuxWorld editors?

Daniel Wallace :)

> It's like hiring police to prevent trespassing in
> a free access public park.

IIRC, the original GPL was written after two companies (Apollo and LISP Systems were names I remember but I'm not sure), took the LISP compiler written by Richard Stallman at MIT, modified it, copyrighted it (!), and resold it making many millions of dollars. Stallman and MIT never got a penny.

Naturally, any bug fixes or enhancements made to the compiler were never reported back to MIT and were hidden from other LISP users. Again, IIRC, other people making similar bug fixes and mods were sudddenly confronted with the commercial copyright claims and ordered to desist.

Pretty nasty wasn't it?

Why are so many people spending so much time tracking down violations of a *free* software license? It's like hiring police to prevent trespassing in a free access public park.

I've written many free software tools over the years. I've licensed these using the GPL, BSD licenses, and finally switched a couple of years ago to GPL for everything.

Why? There are several reasons:

1. I relicense the same source code commercially. This means companies pay for commercial licenses which do not have any GPL-like requirements. This is of course my right since I'm the author. It provides some nice income. Not possible with BSD licenses.

2. Other free software developers are given a competitive advantage when they use my GPL'd code. Commercial developers can choose to pay if they want to escape the GPL license. When I used BSD licenses, I was actually giving a competitive advantage to those who reused my source code in commercial products.

The GPL is a weapon, of course, and no-one likes being at the receiving end. But for any developer who has spent years (decades, even) writing open source, it's an excellent and far-sighted choice.

Harald Welte mostly operates within german legislation. And in german civil law, the loser pays.

]] ignorance is bliss commented on 23 March 2005:
So how does Welte fund this? [[[

Welte apparebtly donates his own time and takes all the financial risk...

So how does Welte fund this?


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