Re: [webmin-l] Virtualmin Professional license

[Barry <we...@i1...>]

Nathan Kurz wrote:

>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.
>  
>
I was with you until the last sentence. The GPL absolutely *does* impose 
limitation on the copyright owner. In particular, all *derivative* works 
*must* be GPL'd. This is the essence of GPL. There is no escaping it, 
Except by:

-  not GPL'ing code in the first place, and alternative "open" licenses 
exist to address this issue. all this is explained in plain English on 
the fsf.org site and has been almost forever.
- dual licensing with a license compatible with GPL (also discussed in 
plain English on the fsf.org site)

Jamie and Joe freely chose the GPL for Virtual min 2+  years ago. As a 
result, all future versions, unless they are written form scratch, are 
derivative works and hence GPL. They don't have to like it, but it is 
the truth.

As far as I know, no code that was once GPL'd has ever reverted to any 
other status, without the GPL attached. I would very much like to know 
of counter examples if they exist.

>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).  
>

Agreed.

>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.
>  
>
This is the crux of the argument in the SCO  case. It  has yet o make it 
to court, and SCO has not publicly said which code is infringing. So I 
guess it is still really an open question. In the particulars of the SCO 
case, at this point, having had plenty of time to put up or shut up, and 
having failed to take the opportunity, most people feel SCO is just 
blowing smoke.

>The lack of ownership does not necessarily mean that you are doing
>anything illegal by re-releasing the code under a different license,
>  
>

But it does leave you at risk later should th ownership be proved to not 
be as advertised. Not unlike the same reason why when you buy a house, a 
title search is undertaken and insurance on the results also taken. The 
risk of a mistake happening is low, but the potential price of that 
mistake is very high indeed.

>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.  
>

\Right - that was why I mentioned there are in fact legal risks, when 
Joe suggested there were none. He could find his resources tied up in 
legal actions, even if he were to prevail, and what a waste that would 
be when it could be clarified now.

>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.
>  
>

Nor responsible for the releasability of a commercial project. Real 
companies, with real investors, check out these matters very carefully, 
and very routinely before a release. Providence of intellectual 
property, when the main asset of the company is that intellectual 
property, is critical. Without the documentation, no investors will come 
forward, at least not at a reasonable price.

>  
>
>>>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.  
>>>      
>>>
Incorrect conclusion , and answered in plain English on the FAQ on the 
fsf.org site.

>>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.  
>

Read the info at fsf.org. I am correct.

>If one is using the
>GPL license to create the derivative work, then you are correct.  
>

Which is the case under discussion. Virtualmin has been GPL for 2+ years 
- I quoted the timeline form the swelltech site already. Virtualmin Pro 
(presumably) will merely be new and extended features form the existing 
version. So it is a derivative work, of GPL code. Other cases are not 
what we are talking about here.

>But
>the owner of the code (with the caveats on ownership above) is not
>creating the work under the dictates of the GPL.  
>

They already did that 2 years ago.

>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.
>  
>

That is what Joe states, and I understand his desire  for it to be that 
way. But it is not what the GPL states, not what the FSF states about 
the matter, and they are the owners of the GPL itself.

>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.
>  
>

Section 7 begins :   "If, as a consequence of a court judgment or 
allegation of patent infringement or for any other reason (not limited 
to patent issues), conditions are imposed on you (whether by court 
order, agreement or otherwise) that contradict the conditions of this 
License, they do not excuse you from the conditions of this License. If 
you cannot distribute so as to satisfy simultaneously your obligations 
under this License and any other pertinent obligations, then as a 
consequence you may not distribute the Program at all."

In short, it says if there is a court order that forces you to do 
something contrary to GPL, then the terms of the license are such that 
you may not distribute the code at all.

In other words, it is all or nothing.

So section 7 isn;t going to help make the case that something other then 
GPL, for a derivative work, based on any court order at all, is allowed. 
It clearly states the opposite of that.


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

Here are some useful clause form GPL:

"For example, if you distribute copies of such a program, whether gratis 
or for a fee, you must give the recipients all the rights that you have. "

"Activities other than copying, distribution and modification are not 
covered by this License; they are outside its scope."

" You may copy and distribute verbatim copies of the Program's source 
code as you receive it"

"You may charge a fee for the physical act of transferring a copy, and 
you may at your option offer warranty protection in exchange for a fee."

"Thus, it is not the intent of this section to claim rights or contest 
your rights to work written entirely by you; rather, the intent is to 
exercise the right to control the distribution of derivative or 
collective works based on the Program."

"You may not copy, modify, sublicense, or distribute the Program except 
as expressly provided under this License. "

" Each time you redistribute the Program (or any work based on the 
Program), the recipient automatically receives a license from the 
original licensor to copy, distribute or modify the Program subject to 
these terms and conditions."

Personally, I think there is an easy way around these issues, but they 
are going to require that Jamie and Joe realize that the code for 
Virtualmin Pro *is GPL*. That the code is GPL does not prohibit them 
charging for it.

Beyond that, I will leave it as a puzzle for a while to see if they or 
anyone else find the solution - I think the exercise will be educational 
indeed, more so then if I just spit it out.

Best,

Barry