Re: [webmin-l] Virtualmin Professional license

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

Joe Cooper wrote:

> Hi Barry and all,
>
> I'm going to try this again, and hopefully, it will put this thing to 
> bed before the rest of the list gets tired of our legal ranting.
>
> Barry, the crux of your argument is that we, the copyright holders, 
> cannot make a commercial variant of something that we have previously 
> released under the GPL and that dual-licensing with the GPL and a 
> GPL-incompatible license is not legally supportable.


That is not the crux of my argument at all.

The crux of my argument is that you can not attach a dual license to
previously GPL'd code base that is incompatible with the GPL. that is
subtly different.

If you showed me that the other companies you described as having dual
licenses (they do have dual licenses, I agree) offer *different
versions* under different licesnses, then that would be very interesting
to me indeed. I culd find no indication that, e.g., the price paid by a
SleepuCat customer buys them one line of code different then can be had
for free under GPL at any time. I gooled "gpl dual license and found a
interview with a SleepyCat exec who described this insome detail. I
don';t have the url right now, but I am sure you can find it.

> You've stated this in dozens of different ways, but it all comes down 
> to whether we have a legal right to do so.  As I mentioned before, 
> this is a very common misconception about the GPL.  So, let's dispel 
> this myth first with a simple question:
>
> Who will sue the copyright holder for not following the letter of the 
> license under which they have released their code?

There are many ways pressure can be brought to bear with, or without
suing. I already listed a bunch of them.

But to answer you specifically, I suppose anyone who wants to can sue
you. The courst will sort it out later, and even if tossed, it is a hit
to your limited resources.

>
>
> A copyright infringement lawsuit would have to be brought in order for 
> any "legal mess" to occur, which is what you believe you're helping us 
> avoid with this discussion.

I haven't said one word about copyright infringements. I give you the
benefit of the doubt as to having ownership of the copyright. this is
not about that at all.

>
> So, who will bring this lawsuit?  You?  The FSF?  Virtualmin, Inc.?


Need not be a lawsuit, nor one aginst you. It could be open legal
questions that will tangle up your relationship with OPenCountry, or
generally the word mught get around that you are on questionable and
unresolved licensing ground  among potential sponsors or other financial
backers of your ventures. This might cause their behavior to be at more
arms-length with you then it would otherwise be, and prove detrimental
to your ovewrall efforts, and hence cause you to be less successful for
all your users.

Seriously. Ask Opencountry about it. Michael Grove is a good guy, he
will help you sort through this. I might ask him myself about these
issues discretely, without referring to you specifically, the next time
I bump into him around town. Or, if you would prefer me to ask him
directly, that is fine by me. I want you to have all the success you
could ever hope for and more.

>
> Of these three options, only one has a legal leg to stand on, and I'll 
> give you three guesses as to which one it is.  The first two guesses 
> don't count.


I am not suggesting that finding a lawsuit in your mail is your biggest
risk at all. You are not going to be liek the guys from Kazaa/Skype
slinking around avoiding lawsuit servers. It is the broad environment
that will lead to your better success that I am concerned about.

I am telling you, and you can ask around if you don't believe me, this
is the kind of stuff of due diligence all the time. If your product is
of questionable provenance, it is going to make it harder for you to
find financial support.

But, like I said, there is a way out of this maze, and it only depends
on the way you word the plan.

>
> It ought to be obvious from this simple question, and the obvious 
> answer, that there can be no such thing as a license that applies to 
> the copyright holder (a license has to be enforceable under the law, 
> and thus there has to be someone with greater rights than the license 
> grants).  


Good. Then show me examples where companies released non-GPL'd versions
of previously (and future as you plan to do) GPL'd code please. I know
you plan, and will do, only a temporary fork. I don't mistrust you. But
you keep claiming it is common without showing an example or three.

> So, there goes the argument that we have to license every line of code 
> we write for the rest of our lives under the GPL (whether it is part 
> of Virtualmin or not).  


I never said that. GPL'ing Virtualmin only means derivatives of that
code are GPL'd (and possibly dual licensed). If it is new code, then you
can choose how to liecnse it. fsf.orgf discusses what constitutes
derived code in some detail. You know and so does everyone else, this is
just a canard, although I feel you are frustrated. Take a deep breath
and ask your attorney's, or ask your partners at Opencountry to have
their attorneys assist you. They are qualified, I am sure.

> We simply don't, and no amount of arguing that we do is going to 
> change the legal facts.  I'm just not going to argue that point any 
> further.  If you still don't believe me, I'm sorry, there's nothing 
> more I'm willing to say on the matter.  Take it up with the FSF or an 
> attorney, if you like.  

Careful what you wish for :) shouldn't you be the ones asking? I amean,
if you already had legal advice on this matter, you would have stated
that at the very beginning.


> If you believe that we have the legal copyright necessary to license 
> it to others under the GPL *despite starting out with a different 
> license*, then you must believe we also have the legal rights 
> necessary to license it under other terms.


I don't follow you their. Did you start out with a different license? Hs
that license suddenly made a reappearance? are you basing virtualmin pro
1.0 on an old versions of virtualmin where this license applied? If yes
to all of that, well, OK maybe you are most of the way there in my book,
but you haven't posed it hat way until now, if at all.

What is the other license, and is it GPL compatible?

Is any of Virtualmin based on Webmin at the time it was GPL'd? If so,
the code may be infected with GPL license requirements form the
beginning, even if you didn't intend it to be. IANAL, but if that is the
result you are relying on, you should discuss it with someone that is.

>
> On to the other issues you've raised that are new to the discussion 
> and worth covering:
>
>
> If you believe you have contributed code to Virtualmin that you would 
> rather we not include, say the word and show me the code.  

I don't recall. A line here or there maybe. I know I have pointed out a
bug or two, or asked for a minor feature that Jamie has repaired.
Whether I dug through the code and suggested the fix, I don't know. If I
did, consider it public domain.


> Let's not be wishy-washy, and say "it may be that others, or even I"...

It is not important if I did. I don;'t want any contributions out of the
code even if I did. I suppose if you care to see if I ever posted some
code or not you can search the archives. I think I probably did not, but
I am not 100% sure. I also have made some adaptations for use on my own
machines, never released to anyone, as I have done with other GPL'd code
from other projects. What I have kept and what I have shared, I am not
really sure - it is not a matter of wishy-washy.

> Either you did or you didn't.  I don't believe anyone has been misled 
> into contributing code to Virtualmin without awareness that there had 
> been a non-GPL version in the past and there would be a non-GPL 
> version in the future. 

Nah - I don't feel misled - I think the ransomware part has been around
for a while, right? I jsut didn't notice the significance of it until
your 2 recent announcements combined with the recent Mambo fiasco (which
I also use).

BTW, the Mambo developers were able to rapidly acquire the assistance of
FSF attorney Eben Moglen to assist them sorting out matters regarding
copyright holder-entity formation, code forks, funding, and GPL issues.
I am trying to help you here - really I think you will do well to review
their case and contact them. They are kindred should to all of us, and
they have just wrestled with a lot of the issues you are wrestling with.


> But if there is a piece of code that fits that description, point it 
> out.  There's no time like the present.  I suspect you greatly 
> over-estimate the amount of non-Jamie-authored code in any version of 
> Virtualmin.


I don't know if there is *any* non-Jamie code. I rarely see code posted
to this list. What is provided off-list I don't know, but based on the
nature of most queries here, I suspect little to not much. Again,
whether or not you/Jamie are the copyright holders is not the real issue
here.

>
>
> OpenCountry has nothing to do with Virtualmin, Inc. or Virtualmin 
> Professional.  Virtualmin, Inc. is a Texas Corporation with two 
> shareholders: Jamie Cameron and me.  OpenCountry are a nice bunch of 
> folks who have sponsored Webmin development, and I applaud them for 
> their involvement.  There is no need to pester them about licensing of 
> Virtualmin...they'll have no clue what you're talking about.

I suspect they would care very much about the fact hat products they
intend to support and offer their clients are properly licensed as Open
Source: http://www.opencountry.com/news/webmin.html

I agree OpenCountry folks are nice. That is why I am asking you to ask
them discretely for assistance in this matter.


> Anyway, the long and short of this issue is that a copyright holder is 
> never subject to the license under which they distribute their own 
> code, even if that license is the GPL.  


I am not saying there isn't a pretty simple way out.

> I'm out of ways to explain this, and until you come to understand this 
> fact, we simply aren't going to end up talking about the same problem.

Point me to a web site that explains this with respect to the GPL and we
are almost home free. I am willing to commit to the end of this exercise
being that you have a dual licensed product. I am not so sure I am
willing to commit to the end being that there are two code branches,
brought back into sync periodically, where one of them is subject to GPL
and the other not unless I see convincing evidence that others have done
it and the gpl community at large is OK with it.



>
> If you don't want to take my word for it, take it up with anyone you 
> like.  The FSF won't be particularly happy to hear from you, 


Why not? Their web site invites questions if you have already read their
other material, in particular the FAQ.

> but they might be willing to answer your questions (I am a core 
> developer on another large Open Source project that approached the FSF 
> about turning the project into a GNU project, and now I know their 
> approach and when they have an interest in a project, and I can assure 
> you they don't care one whit about Virtualmin).


I think becoming a gnu project and answering questions about GPL issues
are two entirely different things in their organization. I suspect the
latter is probably much harder to get their interest in then the former.

And I wouldn't pose the question in anything other then a neutral,
non-project specific way anyway, so if for some reason they are
disinclined to care about virtualmin and/or anything associated with
you, well, you wouldn't be identifiable anyway.

>
> If you'd like to keep discussing it, let's make it private, as this 
> isn't really relevant to Webmin.  


Fair enough. I will be away over the weekend anyhow so maybe this will
cool down and you can have a chance to reflect. Next week we can move
forward offline. I don't think it will be difficult or rancorous.

> I just posted the announcement here as I know there are quite a few 
> folks here who in the past had shown an interest in the ransom or GPL 
> version of Virtualmin.  Just thought I'd fill them in on what we've 
> been working on, and I really didn't intend to start a firestorm about 
> licensing.


Agreed you had some bad timing - but you recall I did ask some questions
about forking and by extent licensing *before* the virtualmin
announcement too.

Best,

Barry