Re: [webmin-l] Virtualmin Professional license

[Nathan K. <na...@ve...>]

On Fri, Sep 16, 2005 at 12:00:00PM -0700, Barry wrote:
> Joe Cooper wrote:

Hi Barry and Joe ---

First, a disclaimer.  I am not a lawyer.  I am not even an expert.
But I do feel like I do have a pretty good grasp on copyright law and
the GPL, at least as interpreted in the United States.

IMHO, both of you are right on certain points:

1) If you own a piece of code, you can relicense it however you want.
   The GPL is a license to users, and as such grants rights where
   there once were none.  It does not reduce the owner's rights that
   already exist.  The 'code' in the abstract is not subject to
   copyright or the GPL, instead the particular released version is.
   If the owner wants to make a new version and release it under a
   different license, this is fine and good.  It does not affect the
   instantiations already released under the GPL.

2) The question of whether one owns a piece of code is really prickly.
   If you sit in an empty room and write from scratch having never
   seen anyone else's code, you probably are free from copyright
   infringement and own that code (although as an aside if what you
   write is non-trivial that code you now own almost certainly
   violates someone's patent).  But if you were looking at other
   implementations, you are at the whim of a court as to whether you
   are infringing.  And at least in the US, if you have accepted and
   included code written by others (even one line snippets), in the
   absence of written transfer of copyright ownership from each of
   those contributors, you no longer own that code in entirety.

The lack of ownership does not necessarily mean that you are doing
anything illegal by re-releasing the code under a different license,
it just means that you may be opening yourself up to some liability.
Was the intent to contribute the code under the GPL?  For that matter,
did the contributor intend to grant you a license to release the code
at all?  In the absence of written documentation, this is for a court
to decide.  Personally, I think that written documentation is
overkill, and I would feel reasonably comfortable depending on the
goodwill of the contributors.  But I am obviously not a court of law.

> >The GPL is a license.  A license dictates what folks who do not hold 
> >the copyright can do with code.  It does not have any bearing on what 
> >the holder of the copyright can do with the code.  
> 
> That is absolutely incorrect. The GPL very clearly states what can and 
> can not be done with the code. Derivative works *must* be GPL. Every 
> copy of GPL plainly states this, and saying otherwise here will never 
> make it so,

I'm pretty sure you are wrong about this, Barry.  If one is using the
GPL license to create the derivative work, then you are correct.  But
the owner of the code (with the caveats on ownership above) is not
creating the work under the dictates of the GPL.  As Joe states, the
GPL dictates what rights are granted to others by the GPL, but says
nothing about any other rights one may have to the same code.

This is alluded to by last paragraph of section 7 of the GPL license,
particularly the part after the last semicolon.

  It is not the purpose of this section to induce you to infringe any
  patents or other property right claims or to contest validity of any
  such claims; this section has the sole purpose of protecting the
  integrity of the free software distribution system, which is
  implemented by public license practices.  Many people have made
  generous contributions to the wide range of software distributed
  through that system in reliance on consistent application of that
  system; it is up to the author/donor to decide if he or she is
  willing to distribute software through any other system and a
  licensee cannot impose that choice.

In support of Barry, though, note also that the reference is to
'author/donor', with the implied donation under the terms of the GPL.

Nathan Kurz
na...@ve...