the case of the GPLed shareware

August 30, 2004 2:43 PM

An Open Letter to Zed. Someday people will realise that the GPL offers no protection from anything, and use a real free software license instead.
posted by reklaw (41 comments total)

bsd : boy youre gonna pay because im the one youre lookin for
posted by Satapher at 2:52 PM on August 30, 2004

I'm trying to see how the linked letter (which is very badly formatted and not very clear without some background) makes the case in regards to the GPL.
posted by KirkJobSluder at 3:02 PM on August 30, 2004

Some background.

I thought the letter was pretty clear, but basically: the X-Chat Windows build is now shareware, costing $20. The source code for the shareware registration section and the scripts for the installer are not included in the source distribution (and nor are "extra bug fixes" and "subtle improvements", apparently). They should be included, however, as they are additions to a GPLed program, and the whole point of the GPL is to stop this sort of thing.

Except, of course, it can't stop it, and doesn't stop it.
posted by reklaw at 3:08 PM on August 30, 2004

This may or may not be it, but as the GPL goes mainstream there will certainly be instances of software publishers who claim to abide by the GPL just for its feelgood value, without actually abiding by any of its actual stipulations. There are mechanisms for the FSF to deal with stuff like that, but I wonder how much money they actually have to sue people, which is what it would take. I prefer the notion of sending Rocky Stallman around to break their kneecaps.
posted by jfuller at 3:10 PM on August 30, 2004

Style self-flame, I used "actual" much too soon after using "actually." Strunk, White, and Fowler rose up and whacked me with their respective little books. Actually, Fowler's is pretty big (THWOP.)
posted by jfuller at 3:14 PM on August 30, 2004

reklaw -- sounds great but the BSD license wouldn't have prevented this either. It would have actually furthered this code usurption, I believe, since the only thing it assures is that the original attribution and license remain viewable.
posted by Ogre Lawless at 3:17 PM on August 30, 2004

Except, of course, it can't stop it, and doesn't stop it.

I'm not really certain what you mean here. No amount of legal text in the world can prevent infringement. On the other hand, a license does provide some grounds to persue a claim of infringement in court, making infringement potentially prohibitively expensive.
posted by KirkJobSluder at 3:19 PM on August 30, 2004

Ogre Lawless: I think that something that GPL-folk don't get about BSD-folk is that BSD-folk don't really care if the code is appropriated.
posted by KirkJobSluder at 3:21 PM on August 30, 2004

So what would the BSD license have done in this case? What seems to be at issue is that zed is not distributing the source in his binary that is derived from GPL'd source. BSD license doesn't have anything to do with that.
posted by sonofsamiam at 3:26 PM on August 30, 2004

That makes no sense, reklaw.

BSD = Zero protection against people selling your software (if you want that).

GPL = Weak protection against people selling your software.

I'd rather go with weak rather than zero protection.

KirkJobSluder, hey, GPL guys get it, they just don't want that happening to *their* work. If you want your free work to be sold, hey, have a blast, use BSD (minus the advertising clause!!!). To each his own.
posted by shepd at 3:26 PM on August 30, 2004

Oops, I see the mistake now. This was posted as an FPP, but should have wound up under this thread.
posted by SteelyDuran at 3:27 PM on August 30, 2004

Exactly, KirkJobSluder. "This code is free-as-in-freedom -- but don't steal it!" is stupid, if you ask me. The GPL is a mess, an unenforcable, unclear web of ambiguity, trying to work around the fact that it is built on this inherent contradiction. You can argue about what the GPL means until the end of time. It is not a good legal document.

With the BSD license, there is no such ambiguity. You are making your code available for anyone to use, with no restrictions. If someone does "appropriate" it, well, your original code is still out there for people to use, isn't it?

shepd: My point is (and no GPL-lover ever gets this point) that weak protections are worse than zero protection; they are much, much worse, in fact. The GPL effectively stops your friends (BSD license users, public domain users) from using your code, because they will respect your license, but offers very little protection against your proprietary-software enemies. The GPL is like Windows Product Activation: it doesn't prevent anyone with malicious intent from doing what they want with your software, but it does inconvienience everyone else.
posted by reklaw at 3:30 PM on August 30, 2004

reklaw, no license protects anything from willful misconduct. Microsoft's license agreements also don't really protect Microsoft. I can go out of my way and download Microsoft XP Professional off of Limewire or via a BitTorrent. So by your reasoning Microsoft should kill it's present licensing terms and go to BSD. In fact copyright law in it's entirety should be destroyed.

The BSD wouldn't be violated in this case because what the X-Chat folks are doing would be perfectly legal. In fact I could grab the BSD licensed source code, change it in some trivial fashion and release it as a commercial application.

This isn't because the BSD license is any stronger legally it's because it doesn't try to enforce any models on how you can redistribute code.

In addition you're only posting somebody's observations of a problem, you've posted absolutely zero information on what is happening legally. The GPL has been challenged but to the best of my knowledge it hasn't actually been tested because companies have decided to comply with the GPL rather than going to court in all previous cases I'm aware of. I would argue that this means that the GPL offers as much protection as any license agreement can.
posted by substrate at 3:31 PM on August 30, 2004

Ogre Lawless: I think that something that GPL-folk don't get about BSD-folk is that BSD-folk don't really care if the code is appropriated.

Nope. Many care the license is followed. The BSD license is easy to comply with, but cases exist where it has not been followed. The Linux Kernel has had parts where "contributors" removed the BSD copyright. AT&T did it - hence the BSDi VS AT&T settlement. And then the group that scrubbed the OpenBSD copyright off their version of BSD.

The BSD believers choose not to buy the myths and hype about the GPL. The GPL doesn't stop people from 'making changes and forcing code to be given back' and the GPL is not a 'licence for freedom' as 2 examples.
posted by rough ashlar at 3:32 PM on August 30, 2004

> I would argue that this means that the GPL offers as much protection as any license agreement can.

IBM is using the GPL against SCO in court. Isn't this a good test?

Maybe the real issue is how unfunded projects can get representation for enforcing the GPL.
posted by dand at 3:47 PM on August 30, 2004

GPL vs BSD really doesnt compute. Both serve two different markets really. One is simply a lot more idealistic and restrictive than the other. Background here.
posted by skallas at 3:52 PM on August 30, 2004

rough ashlar: Nope. Many care the license is followed.

Which is different from what I said. (To repeat, "BSD-folk don't really care if code is appropriated.") A part of this I wonder might be that the BSD-license seems to come out of a more academic culture. We've been paid for the work (in terms of research grants), published, and moved on to the next interesting question. We really don't care what someone else does with it as long as we get credit.

substrate: Actually, license agreements do offer a fair ammount of protection de facto. I work in a field where we buy and use other people's IP and yes, 95% of the time, the potential for legal trouble is enough of an issue to stick to the licensing terms.
posted by KirkJobSluder at 3:54 PM on August 30, 2004

Maybe the real issue is how unfunded projects can get representation for enforcing the GPL.

The Free Software Foundation will help you out though I think you have to assign copyrights to them.

I'm not a GPL zealot but I respect what it's trying to do. I've released some small pieces of code under the GPL. I'd be just as happy releasing it under the BSD license but I knew about the GPL at the time.

If I felt that I had some chance of making non-trivial amounts of money off the code (maybe through licensing non-GPLed versions of it) then I'd go for the GPL rather than BSD. If I knew there wasn't enough potential for money to be worth my while I'd go BSD.

If I thought I could earn a couple of megabucks by not open sourcing it then I wouldn't open source it :P
posted by substrate at 3:54 PM on August 30, 2004

I'd be just as happy releasing it under the BSD license but I knew about the GPL at the time.

Thank you for demonstrating why I speak out against the GPL and in favour of BSD at every opportunity.
posted by reklaw at 4:00 PM on August 30, 2004

i cant tell who won
posted by Satapher at 4:28 PM on August 30, 2004

from skallas's link: it is said by some that the requirement that the source code be also freely available does not give the user "freedom" to make closed source software under such a license

And that's what I don't understand from the discussion here. Is there any legal basis for enforcing a claim against someone, especially the original author, who extends a GPL-licensed program into something that's eventually closed-source?

If you really could legally enforce that no one would ever develop a closed-source derivative of your work, that would appeal to many people, and would justify the existence of GPL (so that they could have the terms they want, whether you think it's wise to have software covered by such protection or not).
posted by Zurishaddai at 4:40 PM on August 30, 2004

Is there any legal basis for enforcing a claim against someone, especially the original author, who extends a GPL-licensed program into something that's eventually closed-source?

Thats the $64K question. However there certainly does seem to be a precident. You can make a closed-source version of a GPL program if you own all of the source code yourself. If you don't you have to get relicense any code that was not authored in-house.
posted by KirkJobSluder at 4:45 PM on August 30, 2004

Zed is claiming that he has the right to release xchat under any license he pleases, since he wrote most of it, and the other people who contributed gave up their rights to their code when they sent it to him for inclusion in the project. Seems like a weak argument, but I think many people might have missed that point - that if he is the sole copyright holder, or if all the authors of the work agree to it, then it's perfectly fine for him to release a shareware version of his GPL program.

Anyway, it depends on 1: how much code was contributed by others with the expectation that it would be covered by the GPL, and 2: what other stuff (ie. gettext) does it link to that it shouldn't. Since we don't have all those facts at the moment, it seems premature to pass judgement.

If he is in fact violating the GPL, I think the most likely outcome is that he'll see the error of his ways and do the right thing. That seems to be what usually happens, though it usually happens somewhat more quietly than this.
posted by sfenders at 4:57 PM on August 30, 2004

Is there any legal basis for enforcing a claim against someone, especially the original author, who extends a GPL-licensed program into something that's eventually closed-source?

Theoretically. If you are in violation of a license, you can be sued and you can lose.

But the GPL has never been tested in court and the software industry has a very strong incentive to see that it continues not to be. If the GPL is ruled invalid, it could well invalidate all click-through and shrink-wrap software licenses, assuming it is ruled invalid on the obvious grounds that the act of installing or using software does not constitute agreement to be bound by a license even if the license says it does. Nobody who sells software wants that, obviously.
posted by kindall at 4:58 PM on August 30, 2004

The open letter mentions that the GPL has recently been tested in court, in Germany. Besides which, so many lawyers have professed the belief that it would hold up, and so many companies have settled violations, presumably on the assumption that it would, that it seems a pretty safe bet. See also Moglen's comments on the subject.

IMO it shouldn't have much bearing on the usual click-through licenses, since unlike most of those, as the FSF points out somewhere, accepting the GPL is the only way to gain the legal right to redistribute the work; you don't need to accept it in any meaningful way merely to use the software.
posted by sfenders at 5:21 PM on August 30, 2004

reklaw, I appreciate the fact that you have an axe to grind against the GPL, but to editorialize on the front page of MeFi about it and then use the thread discussion for more FUD is a bit excessive. GYOFW.
posted by azazello at 5:50 PM on August 30, 2004

The GPL is a mess, an unenforcable, unclear web of ambiguity, trying to work around the fact that it is built on this inherent contradiction. You can argue about what the GPL means until the end of time. It is not a good legal document.

Oh, I wouldn't say it's unenforceable. After all, if it's unenforceable, then there's no license whatsoever and you have no right to use GPLed code. Which means that if you use someone else's (GPLed) code and they don't like it, they'll be helping themselves to some of your money in court.

If the GPL isn't a good legal document, then no license exists, and if zed is using code other people gave to him, he's still in the wrong.
posted by oaf at 6:00 PM on August 30, 2004

To refute reklaw's points:

• The new X-Chat distribution is an example of GPL misuse. Because the owner has not complied with the contractual duties placed by GPL on them, the license does not hold. Therefore the legal basis of any use of the work or the source code is not defined until tested in court. This is akin to releasing without a license.
• GPL offers legal protection from known inappropriate code reuse. That protection is being tested as we speak in one of the highest-profile cases in the history of the software industry, and the pending outcome is obvious and in its favor. Additionally, the Free Software Foundation has spent millions of dollars and the work of expert copyright lawyers to ensure that the GPL is legally valid, and offers free legal counsel to those who claim to be victims of a breach.
• GPL is chosen consciously in favor of BSD-style licenses by many programmers in an effort to maximize free distribution of information. It is not appropriate for all uses - no software license is. The programmer has the freedom to control, to an extent, how their code is used. The fact that not all misuse is detectable is utterly irrelevant to the original purpose of the license.
• GPL has little in common with shrink-wrap licenses, because in order to commit a breach of its contract, you must release a derivative of the licensed work for distribution to the public. At this point you have either accepted or breached the copyright of the original author and the terms of the copyright set by the author.

posted by azazello at 6:12 PM on August 30, 2004

I guess I should have checked what's really going on before taking on reklaw's quality FUD.
Peter Zelezny, the X-Chat developer:

My particular Windows release is not released under GPL.

So that's that, and the GPL has not been misused. Thus, the open letter is not exactly connected with reality. Now, his decision to release the package and then ask those who contributed their patches to mail him if they don't want them to be used is highly questionable, but definitely not a grave violation.

So, reklaw, what exactly was the purpose of this post other than to push an agenda using false statements about one programmer's decision to dual-license some code?
posted by azazello at 10:30 PM on August 30, 2004

metatalk
posted by holloway at 10:45 PM on August 30, 2004

Not for the faint of heart: Slashdot discussion on the topic
posted by azazello at 11:39 PM on August 30, 2004

The thing people don't seem to get about the GPL is that if it really were to fail in a court test (unlikly, according to Eben Moglen and others) and declared null and void, then the licence would automatically revert back to a standard copyright licence, not some sort of free-for-all. At which point some set of improvements would be made to GPL 3.0 and the author could choose to re-release his or her code under this new GPL.

There are practical reasons as well as ideological ones for using the GPL as well. Microsoft's 'embracing and extending' of Kerberos (a bsd-licenced bit of code) to break compatibility with the standard would not have been possible under the GPL.

I still don't get why this xchat thing proves the futility of the GPL.
posted by Space Coyote at 6:03 AM on August 31, 2004

I still don't get why this xchat thing proves the futility of the GPL.
It doesn't. Reklaw, meet logic. Logic, reklaw. You two kids wander off and chat. Go on now, scoot!
posted by jester69 at 8:02 AM on August 31, 2004

Space Coyote: There are practical reasons as well as ideological ones for using the GPL as well. Microsoft's 'embracing and extending' of Kerberos (a bsd-licenced bit of code) to break compatibility with the standard would not have been possible under the GPL.

Not true. Kerberos was a published protocol standard with an MIT-licensed reference implementation. Had the reference implementation been released under the GPL, Microsoft could have still "embraced and extended" the protocol simply by developing a clean-room implementation.

I would argue that non-copyleft licenses for reference implementations do a better job of standardization than the GPL. For example, the big reason why http and html took off and gopher did not, had to do with Tim Berners-Lee's rather radical decision to put reference implementations into the public domain. Compared to the huge ammount of good that has come out of the large number of protocols with non-commercial non-copyleft implementations (dns, http, telnet, smtp, imap, pop, WebDAV, xml) it seems like a viable long-term strategy.
posted by KirkJobSluder at 10:01 AM on August 31, 2004

The GPL effectively stops your friends (BSD license users, public domain users) from using your code, because they will respect your license, but offers very little protection against your proprietary-software enemies.

Ummm, that's the point, reklaw. And "little" is always better than none. For example, we all know that a bullet proof vest offers little protection against an armour piercing bullet, but if you know you're going to get shot at, wouldn't you rather wear one on the off chance it keeps you alive?

The BSD license does *EXACTLY* the same in reverse, a GPL coder cannot implement any of his ideas under the BSD license, either, assuming he wants GPL coverage.

I don't get your point at all, reklaw. Are you just angry that you can't take GPL code and put it in BSD projects?

You realize that under the BSD license GPL coders can't use your work either, right? (Don't give me that "Sure you can" deal, here's what 'the GPL man' sez on the issue). Now, if you're talking about the revised BSD license, alright then, however, I have to think that you modified it so GPL users could enjoy it, so again, no complaints there.

You're not making any sense to me at all -- I don't see your point, reklaw. Hammer it in to me.
posted by shepd at 12:02 PM on August 31, 2004

In fact, I would argue that the gnu is a bit hypocritical in complaining about "embrace and extend." Microsoft adapted Kerberos in ways that broke compatibility with other implementations, but gnu broke compatibility with their own open-source implementations of POSIX standards. gsed, gawk, bash, and gcc all include extensions that were to some degree intended to push a dependence on GPL-based software. One could argue that the GPL is a more benevolent hegemony than the UNIX licenses that preceeded it (and I would agree, with some reservations.) But the point is that the success of gnu/Linux is a excellent example that restrictive licenses do not prevent someone else from "embracing and extending" a published standard.
posted by KirkJobSluder at 12:32 PM on August 31, 2004

For example, we all know that a bullet proof vest offers little protection against an armour piercing bullet, but if you know you're going to get shot at, wouldn't you rather wear one on the off chance it keeps you alive?

That's a completely spurious analogy. The GPL is more like strip-searching everyone who walks out of your shop in case they've stolen something, but leaving the side door wide open. If you're not going to close the side door (indeed, in the case of the GPL, it might not be possible to close it), then why bother with the strip-searching?
posted by reklaw at 1:39 PM on August 31, 2004

Gnu Cakes 1.3
============

A winter treat!

INGREDIENTS

2 cups self-raising flour
1 spoon baking powder
2 spoon sugar
1 size 7 egg (or larger)
1 cup of milk
A spoon of vege oil
One cup of the bile dripping from reklaws mouth.

INSTRUCTIONS

Mix the following together: flour, baking powder, sugar, salt. Leave it for 5 minutes after mixing.
In a seperate bowl mix the rest of the ingredients together, and then fold this into the original mixture.
Bake on 250 C or until golden brown. Leave to cool near the window and watch out for bears!

Released under the GPL 1.3 or later.
posted by holloway at 2:56 PM on August 31, 2004

The GPL is more like strip-searching everyone who walks out of your shop in case they've stolen something

Strip searching? Get some fucking perspective. Are you seriously claiming that I am harming you by requiring that you release source code modifications when you redistribute software that I have given away?

Don't like it? Fine. Write your own. (I do hope you have actually written some open source software--if not, you really have no credibility making these arguments. I see a Freshmeat account, but no projects...)
posted by Galvatron at 2:57 PM on August 31, 2004

<esmerelda> and 250° is a tad low for baking a cake...
<holloway> THey're more like cupcakes/muffins
<esmerelda> still
<esmerelda> 350
<esmerelda> otherwise it'll take hours to get to golden
<esmerelda> and make it teaspoons
<holloway> Ok, I'll submit a patch.
<holloway> Gnu Cakes 1.4 on its way!
posted by holloway at 3:07 PM on August 31, 2004

The GPL is more like strip-searching everyone who walks out of your shop in case they've stolen something, but leaving the side door wide open. If you're not going to close the side door (indeed, in the case of the GPL, it might not be possible to close it), then why bother with the strip-searching?

Because:

- It's your store.
- It scares the customers into submission.
- It makes the theives obvious, since anybody walking out that side door is going to be suspicious.

It works on the same principle that random airline searches work. It doesn't work well, but it works WELL ENOUGH. And it's a shitload cheaper than getting a lawyer to write it up for you.

If you're going to make that comparison, though, then BSD is like marking everything down to $0.00 and opening all the doors.
posted by shepd at 5:03 PM on August 31, 2004