Subject: Re: Judgment Day for the GPL? - Determining the Legality of the GPL
From: Crispin Cowan <crispin@wirex.com>
Date: Mon, 03 Jul 2000 11:51:30 -0700

Ben_Tilly@trepp.com wrote:

> IANAL, but my reading is that the GPL is an offer of a contract between the
> copyright holder and the user.  It's specific purporse is to offer terms
> under which the user may have permission from the copyright holder to do
> things that copyright requires permission from the copyright holder to do.

IANAL either, but the above makes sense to me. Most of the discussion about
whether the GPL escapes me: it looks fundamentally enforcable, and the
argument that it can be broken seems to hinge on some picky details.  Which is
why it's an argument for lawyers, not arm-chair philosophers like (most of)
us.


> However for me the huge question mark is public performance.  Karsten tried
> to convince me that there was an argument for it being allowed, but I am
> not sure.  The GPL expressely does not cover public performance, it is only
> concerned with copying, distribution, and modification.  So what happens if
> a copyright holder sues some company saying that their using it on the
> internet is public performance which they don't have a license for?

The second paragraph of point 0 of the TERMS AND CONDITIONS FOR COPYING,
DISTRIBUTION AND MODIFICATION says:

     Activities other than copying, distribution and modification are not

     covered by this License; they are outside its scope.  The act of
     running the Program is not restricted, and the output from the
     Program
     is covered only if its contents constitute a work based on the
     Program (independent of having been made by running the Program).
     Whether that is true depends on what the Program does.

Which would seem to give someone who received the program in compliance with
the GPL complete license for public performance.  "The act of running the
Program is not restricted".


> This cuts to the core of many free software businesses, and I would
> therefore like it if there was a release 3 of the GPL making the status of
> public performance explicit.

GPL 3 will make things *very* interesting.  If GPL3 imposes additional
restrictions that some users of GPL'd software don't like, and some other
GPL'd code authors attempt to "migrate" code currently under GPL 2, then there
will be a dispute.  This will be most especially true when the dispute is
between parties who have both contributed code fragments to the GPL'd work.
Ugly, ugly mess.

I suggest that authors who want to migrate a work to GPL 3 should get buy-in
from ALL contributing authors that they can find before attempting to do so.
This would minimize the claim that an objector might have.

Once more for emphasis:  IANAL, get your own legal advice.  Unlike free
software, free legal advice is worth what you paid for it :-)

Crispin

--
Crispin Cowan, CTO, WireX Communications, Inc.    http://wirex.com
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