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

Rick Moen rick at linuxmafia.com
Tue Oct 12 11:55:11 PDT 2004

Christian Einfeldt <einfeldt at earthlink.net> wrote:

> To a simple end user like me, it all comes down to where you get your 
> work done. 

Sure.  I guess where I become impatient is where people act like it's a
big revelation that free / open-source software can be used to create
things that are not part of the commons in some sense.  Like, eek!
Stephen King could use AbiWord to write a novel and _not_ contribute
the latter directly to Project Gutenberg!  A "proprietary" use of free
software; the horror, the horror!

C'mon, people.  Think.

I regularly knock certain people sideways by outlining what I've long
considered an obvious application of the concept of copyleft:  Let's say
you write a very fast, uniquely effective, somewhat innovative (but not
enough to defensibly patent)  database engine (or similar core software
component), which you hope to make money selling as proprietary
software, but where you estimate that practically all the market value
lies in supersets of that engine embedded in a larger software
framework.  You can't afford a long marketing campaign to get your
engine accepted in that role by business, and don't wish to hand over
your creation to a bunch of VCs.

So, you do something gutsy:  You issue an instance of your engine
codebase under GPLv2, and state in the docs and your Web page that you
are also glad to offer the same software under proprietary terms for 
use in constructing modular products -- listing some of the suggested
applications of same.

Large numbers of people download (and redistribute, at no cost to you)
the GPLed engine software, adapt it in a large number of ways, and make
it famous.  Your customers and competitors can test it, evaluate it, and
prototype projects with it, seeing for themselves at minimal cost how
good it is.

But you alone have the right to create proprietary derivatives.  Other
people, including your by now highly frustrated competitors, have no
legal right to create and distribute proprietary structures using your
code -- only GPLed ones, which they cannot proprietise.  In fact,
anything they do with your engine becomes just an advertisement for the 
fact that proprietary offerings of that sort may be bought from you

People hear that, and react with "Wait!  Stallman and Moglen never
intended the GPL to be used that way."  Well, guy, life is full of
unintended consequences.  Free / open-source licensing, ultimately, is
what it does.  If people find themselves acting surprised and indignant
about what it does in particular applications, maybe they should have
paid closer attention to the way things work.

OK, here's something (possibly) interesting that we licensing geeks
noticed a long time ago:  Let's say you create and release a copylefted
work using one of the licenses (MPL, GPL, LGPL) that condition the right
to redistribute and create derivative works on access to the modified
source code _if one redistributes_.  I download it, and deploy it
strictly as a Web-based application.  I make modifications, and deploy
_as_ a Web-based application my modified version.

You notice this, and send me a polite note requesting access to your
modified source code under the terms of the licence.  I send an equally
polite note back, saying no, and pointing out that I have not
_redistributed_ my derivative work.  My modified code is behind closed
doors.  Remote users are not receiving a copy of it; they're merely
using it via a Web browser.  Ergo, I have _not_, in fact, distributed
modified code, ergo I have no obligation to you under your licence.
As licensing geeks would say, the licence's "forcing provision" was not
"triggered", because the specified trigger was an action that never
occurs in a Web-services scenario.

Now, as any old-school BSD guy would tell me, even though I have the
legal right to create and (Web-)deploy a private fork in this case, I'm 
probably shooting myself in the foot, over the long term, because I'll 
have to bear all by myself the cost of long-term maintenance, and have
cut myself off from the benefits of participating in the community
process that will be underway in public concerning the main fork.

However, it is indisputable that my usage is lawful.  If you didn't
anticipate this when you picked {MPL|GPL|LGPL} as your licence, you
should have paid closer attention.  (On the other hand, it might have
been exactly what you intended:  Licences are what they do.)

There are copyleft licences that attempt to use a modified sort of
"forcing provision" more applicable to Web services, e.g., the Affero
GPL, created in 1989 with FSF permission:

> Progeny "owns" the new stuff that they create to make Linux work
> better.

Well, no.  Progeny shareholders own stuff the company creates _using_
Linux.  (See Stephen King / AbiWord example.)  If they create derivative
works of the Linux kernel and/or other GPLed works, _and_ redistribute
those, then they have to make their source code accessible under those
same terms.  If on the other hand they make private forks, then they're
probably being stupid over the long term but are committing no torts.

The free / open source software world never aimed to have special rights
to Stephen King's novels.  ;->  We wanted people to have access to
tools created by open-source coders; we don't have special claims over
what they create _using_ (but not derivative of) those tools with the
sweat of their own brows, any more than you have an automatic special
claim to a farmer's corn crop just because you sold him a tractor.

Cheers,                    Facta tua Restitueri ad Status Pristinus Eius.
Rick Moen                       (May your data be restored to
rick at linuxmafia.com            its original pristine condition.)

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