[conspire] Re: Sun's strategy to discredit Linux.

[Rick Moen]

Christian Einfeldt <einfeldt at earthlink.net> wrote:

> Ian Murdock is talking about the same thing here:
> http://ianmurdock.com/archives/000225.html

Being a licensing geek, I wanted to follow that one up.  So, I've
written to Ian Murdock (though I may be struck down for dissing the
tribal elders):


 From rick Mon Oct 11 19:28:42 2004
 Date: Mon, 11 Oct 2004 19:28:42 -0700
 To: imurdock at progeny.com
 Subject: Inquiry about RHEL licensing
 X-Mas: Bah humbug.
 User-Agent: Mutt/1.5.6+20040722i

Greetings, Ian.  I have some (non-polemical, genuine) curiosity 
about your "Red Hat Enterprise Linux is proprietary" blog entry.

I'm not an ideologue trying to chew up your time.  We've never met, but
I'm a longtime Debian-inclined sysadmin.  [snip a bit about our 
employment history having briefly crossed]

I'd have tried to post some thoughtful comment to your blog (rather than
sending you mail), but am not a blogger and am uncertain how to do that.

Your blog entry asserted that RH, Inc. has exclusive legal rights to
RHEL in binary form.  Does it?  I've been trying to chase down this 
assertion for quite a while.  But please hold that thought, for a
moment.

You say the legal vehicle RH uses to assert control is its Subscription
Agreement.  With respect, having studied that agreement, that does not
appear to be the case:  To the best of my ability to tell, a lawful
purchaser of RHEL, albeit stipulated to be bound to the terms of his
service agreement, may lawfully give a duplicate of his binary CD set to
me or anyone else.  If you think about the licensing terms of many of
RHEL's upstream packages, you'll realise that it could not be otherwise:
The binaries are derivative works of the source packages, ergo the
copylefted ones must be lawfully redistributable, or RH would be in
violation and lose its licence to those works.

Instead, what RH uses to assert (very tenuous) control is trademark
encumbrances over the two non-software RPMs, named redhat-logos and
anaconda-images -- and a proprietary copyright licence covering those
two RPMs that conditions the right of non-commercial redistribution on 
observance of the company's posted trademark "policy".

It is my guess that compiling many of the other packages -- the software
ones -- causes image files from one of the two encumbered packages to be
included in the binary builds.  Thus, if compiled from the complete set
of RHEL source RPMs without modification, (some) binary RHEL packages
would fall under that encumbrance.  If true, that would explain (e.g.) 
White Box Linux's policy of rebuilding all binaries from a set of SRPMs
that substitute different image files for Red Hat's encumbered
originals.


Anyhow, I'm sending this mostly because you noted that you hoped to
address various comments in a follow-up posting, so I though mine might
be of interest.  If I'm correct:

1. It is untrue that RH's Subscription Agreement gives RH exclusive rights.
2. It is untrue that most RHEL binary packages have any form of encumbrance.
3. It is true that two non-software SRPM packages have encumbrances.
4. It is true that some RHEL binary packages, if built using those two,
   fall under a for-profit-usage restriction.
5. It is untrue that RH enjoys any form of monopoly over RHEL binary
   RPMs that don't derive from those two packages, or were built with
   substitute image files.


And I must respectfully but strongly dissent from:

> If you want to run any of the RHEL-certified applications and receive
> support from the ISV, you have little choice but to buy RHEL from Red
> Hat on whatever terms it specifies. By any definition of the term,
> that's a proprietary position.

The conclusion is non-sequitur, and abuses the concept of "proprietary".
Even if RH was willing to give support only to left-handed redheads born
on Mother's Day in Palo Alto, that would in no way make the software
proprietary.  It would leave all parties free to do anything at all with
the software -- including support it.  The principles of free /
open-source software don't entitle you to support from the ISV on your
terms:  You're not entitled to support at all.

Moreover:  

> The key phrase [in Merriam-Webster's definition of the term
> "proprietary"] is "used, made, or marketed by one having the
> exclusive legal right".

With respect, this is a dodgy argument:  As surely you're aware,
numerous legal rights are exclusive to the copyright holder by automatic
operation of copyright law, e.g., the right to determine licence terms
of a particular codebase instance and the right of attibution.  Note
that issuance of a particular instance under an open-source licence
doesn't change that fact.

Much thanks to you and your wife for starting (and leading) the Debian
Project.  I enjoy your work every day.

Best Regards,
Rick M.