Subject: Re: For Approval: Microsoft Permissive License
From: Rick Moen <>
Date: Mon, 10 Sep 2007 11:42:50 -0700

Quoting Ben Tilly (

> It may be clear to you, but it is not clear to several others,
> including me.  Multiple people have pointed out the obvious case of
> Tivo, if they had a Linux kernel patch, would they have cause to
> object if the kernel went from GPL v2 to GPL v3?  They contributed
> expecting to be able to benefit from future improvements made by
> others, and now they can't benefit.

1.  Have you confirmed that there is in fact code in the Linux kernel
that bears a TiVo, Inc. copyright notice?  Looking through , I see nothing even
remotely like that.  (Yes, I know you said "if".  I am in general less
interested in hypotehtical situations than in real ones, particularly
when other people are invoenting work for me regarding those situations.)

(If prior contributors _meant_ to speak of TiVo as a kernel contributor,
I apologise for having missed the intended context, which was very
unclear from the wording of their posts.)

2.  It is not clear to me that Torvalds as project leader has a legal
duty to preserve the ability of contributors (or other users) to
continue to make a particular economic use of the codebase (especially
as they can fork at the time of any such licence change).  If you
believe doing so is a tort on the part of the project leader towards
(hypothetical) contributors, kindly tell us what tort that would be.

> Similarly for many embedded devices, the length of the GPL v2 is
> already an issue.  The GPL v3 is much longer.

Again, if you believe a tort would be committed, please feel welcome to
cite what specific tort that would be.

> As a practical matter, very few open source projects have properly
> registered copyrights to deal with.  

Correct.  I note in passing that this concern may be US-centric.  I do
not know how many other jurisdictions give greater enforcement power to
registered copyrights than to unregistered ones.

> And so it may be hard to quantify and prove actual damages.  

Actually, it would be difficult to quantify and prove actual damages
_irrespective_ of whether the copyrights in question had been
registered.  Lack of registration, however (in US jurisdictions), makes
such a showing pointless (until after registration), as collection of
such damages is barred by statute.

> But there are real drawbacks for some contributers to moving to the
> GPL v3.

Immaterial to the legal question, as stated.  Again, if you claim that
tort theory applies, kindly do detail what torts, how, when, etc.

> Whether or not they would win the legal case, the objections are
> real....

"Objections" are not the same as civil wrongs.  Please do not confuse
the two.

> Suppose that I think a licensing change benefits 95% of my
> contributers, but is bad for 5%.  Is it OK to make that licensing
> change?

I would imagine that a project leader would wish to look out, mostly,
for the project as a whole.  However, if he messes up regarding 5% of
contributors, he/she has to bear the risk of them being angry, and had
better have a compelling reason for his/her actions -- and, separately,
if the complainers feel wronged as a matter of civil law and are
sufficiently highly motivated, the project leader could end up
attempting to convince a court otherwise.

This state of affairs, of course, is indistiguishable from pretty much
the entire rest of life in a real society.  

> I submit that it is not, because I have no right to coerce
> that 5% to give of their freely given labor what they didn't choose to
> give.

I submit that trying to keep everyone absolutely happy with one's
actions, all of the time, is always and everywhere a fool's game, and
has been universally known to be so since _at least_ the days of Aesop.


Damned straight.

> But in this case, I think the legal system agrees with me.

In this case, I think you haven't _even_ disambiguated states of
unhappiness from tort law (civil wrongs_.  And your problems go on from

> Ethics is only simple as long as people agree on what is moral.

Tell me something I _don't_ know, for a change.  And, preferably,
something factually correct, while you're at it.

Cheers,      "Transported to a surreal landscape, a young girl kills the first
Rick Moen     woman she meets, and then teams up with three complete strangers       to kill again."  -- Rick Polito's That TV Guy column,
              describing the movie _The Wizard of Oz_