GPL v3, the Q&A: part 4- odds and ends

Posted on by Luis Villa

These are the last odds and ends of my GPL Q&A series. I may or may not find the energy to elaborate on the patent and DRM provisions tomorrow, since those seem to have generated the most questions, but I may not- I’m completely destroyed right now, and I plan on going to a baseball game tomorrow night and having a beer instead of writing. Generally, I do not recommend writing about something at work all week, and then coming home at night and writing more, in a different voice, for a different audience, and all while trying to maintain your impartiality and mental walls on both sides. Draining.

Q: Tell us how you really feel about the ‘pragmatism v. idealism’ framing of the Linus v. FSF camps.

A: Argh. While it certainly isn’t untrue, I think it is a lot more useful to frame the camps in terms of being split by focus on rights of developers v. rights of users. Both camps get pretty irritated when they feel their real rights are being violated- plenty of members of both camps have tromped around enforcing their copyrights when they feel they need to, and both camps feel very strongly about their visions of how the world will or should be (Linus may not say ‘should’ a lot, like Richard does, but the world domination talk is most definitely a driven vision of a specific world that he likes.) And both sides are willing to compromise on methods as long as their goals are reached. (Do you really think RMS consulted with IBM and Sun on v3 just because he is a nice guy? No; he’s just a ruthless pragmatist when he wants to be.) This isn’t to say there isn’t a lot of truth there; the meme wouldn’t be so pervasive otherwise. But both parties have a lot more in common than recent coverage and discussion would have you believe.

The pragmatist/idealist framing not only isn’t terribly accurate, it isn’t very useful. It makes for an easy story for journalists, but past that what is mostly does is to encourage both sides to think of the other side as either crazy or immoral, when in fact they share a ton of common ground. (If their mechanisms and goals didn’t overlap, the fundamentally user-focused v2 wouldn’t have been so wildly successful with developers.) If the FSF spoke specifically of user rights instead of generic rights (which are easier to mischaracteriz/ridicule), and addressed developer rights as a complementary set of rights instead of something secondary, it would help bring everyone together as peers using the same language instead of frequently ridiculing each other. Similarly, if the ‘pragmatist’ camp had admitted that they too were concerned with rights- just a different, perhaps more limited set- it would have helped them get more of what they wanted (simpler language, for example) out of the FSF. Of course, it is too late now for this round, but I think both sides should work on expanding those common grounds in the future. In the meantime, the rest of us will have to sit back and watch while they snipe at each other and Microsoft has the last laugh.

Q: While you’re venting a bit, have a blast: how do you feel about the claims that the v3 is ‘political’?

A: The use of ‘political’ as a slur against v3 demonstrates an abysmal understanding of both the specific history of free software and the general history of how rights evolve.

Yes, v3 is certainly political, in the sense that it claims the existence of “rights” that are controversial, and hence whose existence (or non-existence) has to be resolved via political/social means instead of judicial/analytical means. But all of these things were also true of v2. We’ve now reached the point where even Microsoft has mostly accepted that developers have the right to share if they want, and that community development is a valid and respectable way to develop software. Given that, it is easy to forget that in 1991, the notion of sharing and openness in code was controversial, and that as recently as a few years ago Microsoft was denouncing it as unamerican. If we’d listened to those who dismissed v2 as ‘political’ (or worse) in 1991, we wouldn’t be where we are today. So dismissing anything now because it is ‘political’ (instead of actually discussing the merits, which I fully admit are arguable) would be silly.

More generally, the v2’s transition from ‘political’ to accepted right is a fairly common trend in Western political history, as rights go from non-existent to hotly politically contested to taken for granted. Again, to dismiss something as ‘political’ demonstrates a great deal of ignorance of these broad historical and political trends. A good comparison is women’s voting. We take it for granted, and don’t think of it as ‘political’ anymore- it is now a core right, very broadly accepted. But when women first proposed that they should be able to vote, the question was very much ‘political’- protest marches were held, proponents were scorned, and the process took decades to go from proposal to accepted fact. Now, of course, you could be raised and come to adulthood without ever being aware that it women ever were denied this fundamental role in our society. As it has with the attempted creation of new rights in v3, new issues have evolved from the suffrage movement, like the rights of women in the workplace and affirmative action. The historical question is not whether it is wrong to bring these issues up for being ‘political’, but rather whether in 15 years we’ll see DRM as being more like the rights of women to work (was “political” after voting rights passed, now no longer controversial) or like affirmative action (was “political”, still is in many places.) Either way, the right way to tackle the issues is on the merits- not to use political as a slur.

Q: Back up a bit to day 1 and get off your high political horse. You said GPL v2 is incompatible with GPL v3? That doesn’t make sense.

A: Stallman explains it pretty well here:

When we say that GPLv2 and GPLv3 are incompatible, it means there is no legal way to combine code under GPLv2 with code under GPLv3 in a single program. This is because both GPLv2 and GPLv3 are copyleft licenses: each of them says, “If you include code under this license in a larger program, the larger program must be under this license too.” There is no way to make them compatible. We could add a GPLv2-compatibility clause to GPLv3, but it wouldn’t do the job, because GPLv2 would need a similar clause.

Because of this clause, “compatibility” with GPL is always a one-way street- I may be able to convert BSD or APL code into GPL code, but I can’t do the reverse. GPL with itself is no different.

Q: So, uh, isn’t incompatibility bad?

A: The incompatibility does restrict your ability to cut and paste code directly from one codebase to another. But past that, it probably won’t matter much.1 Again, quoting Stallman:

Fortunately, license incompatibility only matters when you want to link, merge or combine code from two different programs into a single program. There is no problem in having GPLv3-covered and GPLv2-covered programs side by side in an operating system. For instance, the TeX license and the Apache license are incompatible with GPLv2, but that doesn’t stop us from running TeX and Apache in the same system with Linux, Bash and GCC. This is because they are all separate programs. Likewise, if Bash and GCC move to GPLv3, while Linux remains under GPLv2, there is no conflict.

Q: Talk to me more about this APL compat. Are we going to have GNU/httpd now?

A: The one-way compatibility of GPL (mentioned above) isn’t something that is ‘hidden’ when FSF talks about compatibility- it is very deliberate, very public, and very explicit. So this new compatibility means that one-way GNU forks of Apache projects are now a legal and theoretical possibility. But pragmatically, it seems unlikely- the Apache folks have well organized communities that would likely outcode any fork, and when Mozilla went dual-license, Stallman specifically recommended against such a fork. It seems unlikely he’d act differently now- the goal of this compatibility has been to increase the ability of free software communities to work together, not to split them apart.2

Q: What about the Internet and Software as a Service?

A: The FSF’s relationship to software delivered over the internet is ambiguous. v3 explicitly maintains the loophole for software whose UI is delivered over the internet, so someone3 can still do things like take GNU code, replace the terminal interface with an html interface, distribute it to the world via http, and not provide your modifications upstream. At the same time, FSF does endorse the Affero Public License, which closes that loophole. If you’re worried about that problem, you can definitely use the Affero instead of the GPL.

Exactly why the FSF hasn’t closed the loophole in the GPL and is instead offering the Affero is unclear; if I were a betting man I’d say that the FSF would prefer to use moral pressure on Google and friends, rather than legal pressure until Microsoft is no longer a threat. The phrase is ‘pick your battles.’ You can see Moglen talk a little bit on this subject here. (Be forewarned: I normally think that Eben is one of the world’s best at taking difficult concepts and expressing them orally, but this isn’t, IMHO, Eben’s most lucid talk, perhaps because so much of it may be intended to be read between the lines.)

Q: Any thing you missed or badly screwed up in the first few days?

A: The biggest was that I neglected to mention a significant downside to dual-licensing. When you dual-license, you limit the code you can copy and paste into your own code base to the set of code which shares the same license you do. So, for example, Mozilla (which is triple licensed) can only copy from code bases which share the same three licenses- that is to say, virtually none. Not only does this make it more difficult to reuse code from elsewhere, it also makes it easier for forks to occur. For example, Flock is a GPL-only fork of Mozilla. This means that when Mozilla makes fixes, Flock can take them, but not vice-versa.

I also overlooked another option, besides outright copyright assignment, for handling the ‘or later’ problem- the license allows assignment of a proxy who can decide whether or not to upgrade to future versions of the license. This allows you (for example) to assign the right to upgrade to GPL v4 to the GNOME Foundation, without having to trust them completely enough to do a copyright assignment, while still allowing the Foundation to set some coherent strategy when the next license comes out. It seems like this is something that organizations who intend on being around for the next 16 years might want to consider as a lighter weight alternative to copyright assignment or just blindly trusting in ‘or later.’

Oh, and I’m not doing the all-caps thing; that is my theme. Sorry about that; I intend to fix it at some point.
Q: parting shots for now?

A: This license is an evolution, not a revolution; a good one that lots of projects will adopt, but which won’t (quite literally) change the IT world like v2 did. The revolutions are still to come- when we figure out the licenses for things outside of copyright (like web APIs, standards, personal data, and trademark) that give us great developer benefits and improved user rights, like GPL v2 did, we’ll see explosive growth in those spaces.

[see all parts: part 1, part 2, part 3, part 4.]

  1. If you’ve seen an O’Reilly article arguing otherwise, ignore it- or at least go back and read the comments, particularly those from Richard Fontana. The article seriously misunderstood a lot of things. [↩]
  2. Note that I’ve been told that GNU has done this in some cases, like gnash, so YMMV. [↩]
  3. *cough*google*cough* [↩]

Published by Luis Villa

31 thoughts on “GPL v3, the Q&A: part 4- odds and ends”

  2. y más sobre un tema como éste, aquí tenéis los 4 artículos para vuestro goce y disfrute: GPL v3, the Q&A: part 1- the license GPL v3, the Q&A: part 2- developers GPL v3, the Q&A: part 3- companies GPL v3, the Q&A: part 4- odds and ends Después de echarle un vistazo… ¿qué os parece la nueva GPLv3? [IMG ;-)]

  3. GPLv3 hype, changes, hoopla are about. He also offers his views and commentary which I found refreshing. I recommend reading Luis’ four part analysis starting with Part 1. After part 1, you will probably be hooked enough to take in Part 2, Part 3, Part 4, and Luis’ post-analysis Link Dump. I will offer a couple comments on what I observed. First, I think the press had higher expectations of the “rolling support/relicensing” announcements would be

  4. impact to developers and companies. While not (yet) a lawyer (he’s currently taking up law), he was part of GPL Discussion Committee A. Luis has a disclaimer about these writings btw. Part 1 – The License Part 2 – The Developers Part 3 – Companies Part 4 – Odds and Ends In other news, not many people may have been aware of it, but Benjamin “Mako” Hill is now part of the FSF Board of Directors. I’ve worked with Mako on some projects and is a co-member of the Ubuntu Community Council. His writings, opinions and

  5. a good work in this last point, making upstream understand why he has to license properly his work so it can be safely distributed. For those interested, Luis Villa has written some articles about this issue 1. The License 2. Developers 3. Companies 4. Odds and ends A nice reading if you want to understand the key points of GPL v3. 10:01am

  6. a good work in this last point, making upstream understand why he has to license properly his work so it can be safely distributed. For those interested, Luis Villa has written some articles about this issue 1. The License 2. Developers 3. Companies 4. Odds and ends A nice reading if you want to understand the key points of GPL v3.

  7. Fun for the whole family! GNU GPLv3 Launch. And Luis Villa finished his 4-part GPLv3, The Q/A:[IMG] part 1 – the license part 2 – developers part 3 – companies part 4 – odds and ends Update: GNU-Linux Software License Revision Praised By SIFMA. Wow. Interesting move by the large financial and securities companies. It seems these large users do actually like Free Software and the rights they get under GPLv3 much more than all

  8. It is indeed all about rights.

    You get into problems when you start thinking that copyright is a right rather than a privilege.

    You also get into problems when you elevate the right to liberty above the right to privacy.

    Copyright has respect for neither and will ignore liberty and privacy in the jealous protection of its monopoly against infringement.

    So, whilst copyright may grant the copyright holder some unethical control over what people may do with the work privately, the GPL should at least hesitate before it follows copyright in crossing this threshold. Copyright is not a paragon of ethics, so if GPL would protect all human rights rather than remain fixated on liberty it should protect privacy – or at least respect it.

    As a matter of pragmatism, Affero compatibility was promised, and so that has been achieved. In this way FSF becomes a little closer to Creative Commons in compromising on principle, i.e. providing a variety of licenses that vary in their respect for liberty and privacy.

    Understanding why liberty is ethically constrained by privacy is surprisingly non-obvious. One can spout aphorisms, but they don’t seem to help, e.g. “Your liberty is not constrained by being denied another’s private work, therefore their right to privacy delimits your right to liberty” or “The point at which your right to liberty begins to impinge upon others’ right to liberty is found just outside the perimeter of your privacy”.

    In the context of the GPL I thought I’d make some attempt to come up with a more accessible example:
    Gladys, Privacy, Liberty and the GPL
    http://www.digitalproductions.co.uk/index.php?id=48

    Gladys would violate the AGPL (at some unclear point). The question is, why do supporters of the AGPL feel so strongly that people like Gladys should be stopped?

    The ‘loophole’ in the GPL is the granite wall of our human right to privacy, not the wooden fence of unethical commercial privilege. And so, it is no loophole at all.

  10. Concerning Gnash, the story is as follow:

    The lead of the Gnash project did some work on the original code base for a customer, and submitted a patch. Upstream rejected it and showed that they were not interested.
    That said, the fork was basically the only way to get things done.

  11. A last-minute change to the release version of GPLv3 (without any opportunity for public comment), now means that all GPLv3 works can be relicensed as AGPLv3 works (but not vice versa).

    Linkage compatibility enabled use, but combination now compromises the GPLv3 license as expression of principle.

    So, if AGLPv3 is termed privacy-disrespecting, and GPLv3 privacy-respecting, then GPLv3 no longer prevents code being used by privacy-disrespectors.

    What a kludge. Very dangerous to slip such fundamental changes in at the last minute.

  12. In case it’s not clear what I’m on about…

    It is possible that in the same way that copyleft says “Your right to modify and share this software is upheld, but only on condition you preserve this right in publications of your copies or derivatives”, we would also want to say “Your right to make and keep private copies or modifications is upheld, but only on condition your preserve this right in publications of your copies or derivatives”.

    That is no longer possible. There is no longer copyleft for privacy.

    GPLv3 now says “Your right to make and keep private copies or modifications is upheld, but if you want to deny this right to others you can simply republish your copies or derivatives under the AGPLv3”.

    It seems the FSF is continuing to mistake ‘the privilege of seizing private modification without compensation or authorisation’ as ‘the freedom to study private modifications’.

    Liberty does not trump privacy.
    If you want to study private modifications, purchase them.
    If you want private modifications to be published, purchase them and publish them.

    The choice between GPLv3 and AGPLv3 is going to be just like CC-SA and CC-SA-NC. The latter will be more popular (appealing to people’s desire to deny expoitation by corporations), but only because people aren’t thinking things through properly.

  13. Re: Copying and pasting code from one license to another

    I practiced law in Austin, Texas, USA, for 8 years before leaving that trade to work in finance and technology. Most of my practice was corporate law, but a significant portion was entertainment and copyright law. Since then, I’ve had a keen interest in following the rise of technology law, which is a peculiar mix of copyright, patent, criminal, international, constitutional, and contract law.

    Having been on the legal, business, and technical sides of these issues, and having read and followed the GPL v. 2 and 3, I am convinced that developers will copy and paste from one to the other and no one will (and probably no one can) stop all but a token few (if that many).

    I will describe why I thunk what I think below. Because I only know US law, and was only ever licensed in Texas law, I am speaking about USA/Texas legal concepts. YMMV Also, I am not discussing the extent to which a crooked lawyer in cahoots with a crooked judge can lie, cheat, and steal. That’s a whole other discussion.

    To prosecute a lawsuit requires a lot of steps, each of which are control gates to “winning.” First, somebody has to do something that bothers the plaintiff so much that the plaintiff (or his contingency fee lawyer) will spend the enormous time and money required to detect and prosecute the case. This is overwhelmingly the biggest control gate of all. If a developer copies some code from a GPL v.2 code to a GPL v.3 project, or vice-versa, in most cases no one is going to complain because the parties to the licenses and the third-party beneficiaries thereof aren’t going to get upset about it, even if they discover it. They either don’t mind at all, or they affirmatively WANT developers, users, and everyone else to have that ability.

    Second, the plaintiff must show a “case or controversy”, which means that it’s a real dispute between two parties, and not just advisory. While lawyers like to give advice (and often unsolicited, as evidenced by the blogsphere writings of Mr. Villa and I), the framers of the constitution didn’t want lawyers in black pajamas writing about things that’s not any of their business.

    Third, the plaintiff must allege a “cause of action”, which (as I’m sure Mr. Villa has suffered through in Civil Procedure) is a term of art with a lot of baggage. Basically, it means you gotta have something to complain about. In the case of the GPL from which the code was copied, the plaintiff can say “There it is in black and white: You must distribute your code under the same license downstream, so you have breached this contract.” I’ll come back later and say why I think that’s eventually a loser argument, but it’s good enough of one to show a cause of action. The point is that the plaintiff must articulate a specific legal wrong (I know, a contradition in terms to those who don’t speak legalese) before the courts will hear the case. The court will decide the case only the cause of action the plaintiff alleges; it won’t “just do the right thing” and invent its own cause of action.

    Fourth, a plaintiff must have “standing.” That means the plaintiff has to be the right person to complain. In our world of technology law, that means the owner of the copyright or patent, the parties to the license agreement, and intended third-party beneficiaries of the agreement. In the case of the GPL, everyone in the whole world, now and forever, is explicitly an intended third-party beneficiary of the license, so just about everyone who cares will have standing to enforce the GPL in his or her own name.

    Fifth, the plaintiff must convince a court that the particular cause of action alleged has merit. The problem the cross-GPL’d plaintiff will have is that courts will be predisposed to construe each version of the GPL as acceptable compliance with that clause of the other, even though the two licenses are not identical. Some lawyers will immediately jump up and call me a liar, a fool, and braindead for suggesting such a thing, but I am convinced that sooner or later, courts will construe both GPLs in such a way as to make it possible to use the other.

    The reasons are deeply embedded in the history of the common law, but it can be summarized by saying that the common law has an antipathy to contracts exerting “dead hand” rule. (This antipathy has found expression in the infamous Rule in Shelley’s Case, the Rule Against Perpetuities, and other Capitalized Law Rules You Forget Once You Graduate.) Although the courts of the United States generally and Texas especially are very adamant about enforcing contracts, they don’t mind telling dead people to drop dead when it comes to imposing their desires on the living.

    The courts will likely not fail to notice that for the same reason that everyone has standing to enforce both licenses, and the effect of both is to encourage the code to be used, modified, and transferred openly, the plaintiff gets the benefit of its bargain no matter which of the two versions of the GPL are used.

    Sixth, and most importantly, the plaintiff must have an available remedy. This is will be incredibly hard to overcome for a plaintiff suing under either version of the GPL. In contracts, there are essentially only two remedies: specific performance, injunction, and money damages. Specific performance tells the defendant “Comply with the contract or else I’ll throw you in jail!” In practice, it is extremely difficult to get a court to order specific performance in a contract case that doesn’t involve real estate. For one thing, once the defendant made a contract (i.e., the other GPL version) with an innocent, good-faith, downstream transferree, the cat is out of the bag and no one can get it back. Injunction tells the defendant “Don’t do this or else I’ll throw you in jail!” But, once again, the defendant already sold the code under a new license, so it’s too late. Money damages is compensation for a loss that the plaintiff has suffered. Under either version 2 or 3 of the GPL, a plaintiff will have an extremely difficult time convincing a court of money damages for distributing the code under the other version. What economic loss have you suffered if everyone can redistribute your code and use it for free?

    Finally, the defendant must have the money for the plaintiff to collect. Lawyers call a defendant without assets “Judgment Proof” because the judgment is just meaningless paper if the plaintiff can’t collect. In states like Texas and Florida, which have very strong homestead and debtor protection laws, a debtor’s home, retirement account, automobile, most household effects, and tools of the trade are exempt from creditors. For many developers actually writing code, that’s everything. In Texas, you can’t even garnish wages to collect a judgment. Consequently, the huge army of developers working on open source projects in their spare time will be cutting and pasting from open source license to another without a care in the world.

    Fundamentally, we should expect no different. Both versions of the GPL were written mostly with an eye towards protect defendants in litigation, not to help plaintiffs recover. A world-view that is deeply suspicious of (even antagonistic towards) copyrights in the first place will not place high priority on enforcing that which they believe to be immoral.

    Happy Trails,

    Loye Young
    http://www.iycc.biz
    Laredo, Texas

  14. Loye, you’re quite right, and thus a member of the upper echelons of those percipient enough to recognise the GPL as a passive redirection of coercion against would be coercers – not as something that is intended to be enforced through litigation by those who would compel its requirements.

    The GPL is fundamentally three things:
    1) A defense against litigation by those who appropriate GPL code and desire to enclose it (via copyright litigation) – and those who simply desire to enclose it (via patent litigation).
    2) A collaborative protocol for a distributed development community – enforced by opprobium.
    3) A statement of principle

    If you don’t believe in copyright/patent, you can simply ignore the GPL (though beware of opprobium from those who think it actually has intrinsic power that cannot be ignored). It is only intended to ward off believers.

    What the GPL cannot really do is compel disclosure of source code – even in published derivatives. The AGPL certainly can’t compel disclosure of source code in modified SaaS apps either. But, the fact that the GPL is impotent in these respects is not the issue. The issue is that people believe the compulsory publication of private modifications is an ethically sound principle.

    I am concerned about the GPL as a statement of principle, particularly this latest incarnation’s appeasement of those who believe the right to privacy must be pierced to seize highly coveted, unpublished modifications. If enough people believe their desire to study your private materials is congruent with a rightful liberty to study your private materials and don’t understand how their right to ‘freedom’ can possibly be constrained, then the principle of ‘freedom to study’ will ride rough shod over other considerations, other rights.

  17. Crosbie,
    You are on the right track, but I disagree with part of what you say.

    I think the GPL does have the ability to compel release of source code, and it won’t be that hard, either. Everyone is what lawyers call “an intended third-party beneficiary” of the GPL. The effect of that status is that everyone will be able sue to enforce it. The threshold for a non-frivolous lawsuit is pretty low; the plaintiff need merely to have a “reasonable basis” on “information and belief” that some part of the code is subject to the GPL. Because the number of operating systems not subject to an open source license is actually quite small, that shouldn’t be too much of a problem. And even the remaining few proprietary operating systems are subject to the claim that it pilfered code from GPL’d software (especially those that either are Unix-like or interoperate with open protocols and standards on the internet).

    Once in the judicial system, the plaintiff has a wonderful array of tools to compel disclosure of information from the defendant. The kicker is that the only real way the defendant (in this case, the developer or software company) can prove that the software isn’t a derivative of a GPL’d work is to produce the source code in discovery. (For those who have the good fortune of never having been through a lawsuit, “discovery” is the time before trial when each side must give the other side documents and testimony. In many cases, the discovery process is as big a weapon as, and much more expensive than, the trial itself.)

    My belief is that eventually, every software developer in the world will open up the source code, by choice or by court order. The sooner folks get used to that idea, the better they will adapt to how profoundly open source licenses (of whatever variety) have changed the world.

    Happy Trails,

    Loye Young

  18. Loye,

    Perhaps I should have kept the two paragraphs as one. The GPL can only compel publication of unpublished source code from people who believe in copyright.

    1) Fred takes some published GPL s/w
    2) Fred modifies it, and keeps his source secret
    2) Fred compiles a binary
    3) Fred publishes the binary
    4) Jim, who obtains a copy from a friend, dissassembles it and miraculously obtains evidence it is a GPL derivative of GPL s/w licensed by Bob and demands the modified source code.
    5) Fred refuses, saying he doesn’t believe in copyright.
    6) Jim tells Bob.
    7) Bob consults you, his lawyer, and asks you if you could compel Fred to surrender the source code (and if so, how much money and time it would take).

  19. […] Update: Luis Villa provides good commentary about the licence itself, info for developers and for companies and finishes with some good closing thoughts. […]

  20. Crosbie,

    Good example.

    Assumptions: To make matters simple, we’ll assume that Jim, Bob, Fred (or significant assets of his) are all in the US or subject to its jurisdiction. Further, because in the USA contracts are usually governed by state law, I’ll assume Texas law, because that’s what I know. Many jurisdictions have commercial laws similar to Texas, so that’s not an unreasonable assumption.

    Answer: Yes, Fred can be compelled to turn over the source code before trial, during discovery. Either Bob (as the licensor) or Jim (an intended third-party beneficiary) can achieve the same result, but Jim’s case would have better aesthetic appeal to a judge, IMHO. Bob or Jim can automatically get a subpoena for the code from the court clerk simply by asking for it. Fred’s lawyer will likely try to get a hearing on a motion to quash the subpoena. He’ll lose, but he’ll try anyway because he wants to make a living, too.

    Legal Fees: Relatively cheap. Hard to define exactly without some knowledge of the precise facts and the parties’ situations, but on the facts you state, I’d put it in the $5,000 to $10,000 range because I assume Fred’s lawyer will try the low-cost, standard dilatory tactics. (YMMV, significantly) If Fred has actually violated the GPL, as the facts assume, Fred be liable for the legal fees for both sides.

    Available enforcement: If Fred were to distroy the source code, he would be criminally liable for obstruction of justice, punishable by incarceration. If he were to refuse to provide the code after being ordered to provide it, he would be jailed for contempt of court.

    Conclusion: GPL can compel disclosure of source code, even from one who “doesn’t believe in copyright.” Stallman, et. al, wrote the GPLs to ensure the code stays open to the maximum extent possible. They did a good job.

    Note: Your example is a developer who distributed only binaries. I started this conversation by stating that a developer who switches between GPL v2 and v3, or vice versa, would not have much actual exposure. I stand by that argument. That’s because the source code would be open under either license, which is the fundamental consideration of either license.

  21. Thanks Loye, that’s the sort of detailed response I was hoping for – and for which I’m very grateful.

    However, I would be interested to know of any previous case in the history of copyright in which the author of an unauthorised derivative:
    1) Has had their unpublished, intermediate derivatives or other working materials sequestered
    2) Has been prosecuted and found guilty of copyright infringement
    3) Has been jailed as a consequence

  22. Crosbie,

    I don’t know about the history of the world, but an author who made an *unpublished* change to software would have inconsequential actual risk of liability or punishment on copyright grounds, if for no other reason than no one else will know or care. (I am assuming the author had a proper license to the original, unaltered software.)

    However, if the author later published the unauthorized derivative, and the original licensor or a third-party beneficiary detected that fact and brought suit for infringement, that author’s relevant, internal, unpublished documents, including without limitation working papers, phone records, diaries, and such, is subject to full discovery as a matter of course.

    Relevance, of course, is an elastic concept, and lawyers make a ton of money arguing the scope of proper discovery. However, your example assumes that the working papers, etc., are related to the final product. They would be discoverable to show the extent to which the defendant knew about the violation, the extent to which the derivative relied on the original, etc.

    Here’s a link to the general rule governing discovery, Rule 26 of the US Federal Rules of Civil Procedure, “General Provisions Governing Discovery; Duty of Disclosure”:
    http://www.law.cornell.edu/rules/frcp/Rule26.htm

    Here’s a link to Rule 34 of the US Federal Rules of Civil Procedure, “Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes”:
    http://www.law.cornell.edu/rules/frcp/Rule34.htm

    Here’s a link to Rule 37, “Failure to Make or Cooperate in Discovery; Sanctions”
    http://www.law.cornell.edu/rules/frcp/Rule37.htm

    Enjoy.

    Happy Trails,

    Loye Young
    Laredo, Texas

  26. […] the Q&A: 4부 – 기타 wariua 2007-07-11 01:29 작성 | GPL, 번역 Luis Villa씨가 작성한 GPL v3, the Q&A: part 4- odds and ends를 제멋대로 번역해 […]

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