Subject: Re: "viral" (was RE: Licensing options for firmware)
From: Rick Moen <rick@linuxmafia.com>
Date: Wed, 6 Apr 2005 13:51:37 -0700

Quoting Anderson, Kelly (KAnderson@dentrix.com):

> As for Rick's statement:
> 
> >>>>>
> This is not quite correct.  If you redistribute the derivative work,
> your failure to issue an instance under GPL would create the tort of
> copyright violation against the upstream author, as you would be using
> his/her work in a fashion inconsistent with his/her rights grant.
> Nothing grabs you by the throat and forces you to comply.
> 
> People who find themselves under threat of litigation (and adverse
> publicity) as a tort-feasor, if they take that threat seriously, most
> often get out of it by simply ceasing to commit the infringing action.
> <<<<<
> 
> I'm assuming that most other people are like me, and are basically
> trying to be honest and fair in their use of other people's open source
> technology. That when they come up with something valuable that they can
> release, that they also release it under a license of their choosing. I
> greatly respect other's rights to release code however they wish. For
> all crimes, you don't go to jail until and unless you get caught, and
> you get found guilty. Swiping GPL code and putting it into a commercial
> program is something you are likely to get away with (since the code
> isn't published) but that doesn't make it right.

Again, my point was to debunk the assertion that copyleft licensing
"forces you" to release work under this-or-that set of terms.  Being
charitable for a moment, this seems to be a key misapprehension
underlying much of the overblown rhetoric and fatuously mistaken
editorials.

The sizeable distinction between something that "forces you" and
something that implies tortious behaviour should be familiar to any
businessman who's ever been caught between two contradictory
obligations.  For example, I worked at a firm that shall go nameless, at
which (I gather) one group of coders accepted code from two business
partners under NDA, and another group used that code to enhance a GPLed
codebase (an NDMP piece).  Which was then put in binary form on a public
ftp site -- for all I know, maybe by a third group.

A request came in pursuant to GPLv2 clause 3b, asking the firm to kindly
provide matching source code for the released binary.  The matter was
referred to corporate counsel, who decided that apologising for (and
terminating) the public release as unintentional was wiser than shafting
the firm's two business partners (violating sundry contracts).

"Doing right" in such real-world circumstances can mean choosing the
lesser wrong, and I think most of us in corporate counsel's shoes would
make the same choice.

And you will note in particular that the firm was not "forced to release"
anything. 

> In Open Source, however, the license takes the place of the corporation
> as an organizing "container". The GPL license, in it's "HIV-viral"
> nature, is working towards being the anti-monopoly monopoly, the
> Microsoft of open source if you will.

Only in the sense that, and to the extent that, people wish to
participate.  Comparing that to an infection is plainly ludicrous, and
suggests someone's intent to fast-talk the ill-informed.