Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

[Daniel Hazelton <dhazelton@enter.net>]

On Thursday 14 June 2007 13:26:30 Alexandre Oliva wrote:
> On Jun 14, 2007, Daniel Hazelton <dhazelton@enter.net> wrote:
> > On Thursday 14 June 2007 03:11:45 Alexandre Oliva wrote:
> >> On Jun 14, 2007, Daniel Hazelton <dhazelton@enter.net> wrote:
> >> > Ah, well... In the case of "Windos" and other proprietary OS's I try
> >> > to educate people and get them to switch.
> >>
> >> Good.  So I presume you'd tell them to switch away from a
> >> turned-proprietary GNU/Linux operating system as well, right?
> >
> > If that happened I'd be lost. I've tried the various BSD's and found they
> > had problems with hardware support and getting a new version of the BSD
> > kernel to compile and boot is something of a black art.
> >
> > The point is moot, though. It can never happen.
>
> Look again, it's already happened in the TiVO and other devices.
>
> The software that ships in them is no longer Free Software.
>

In *YOUR* opinion and by *YOUR* definition of the term. Yes, I have seen some 
evidence that TiVO hasn't made some of the modifications they made public - 
doesn't mean that they won't, just it hasn't *YET* been done. (Not that I'm 
so omniscient I can say, definitively, whether they will or won't - or even 
that they haven't done it already).

By my own definition replacement != modification.

>
> Consider a new microprocessor.
>
> Consider that Linux is ported to it by the microprocessor
> manufacturer.
>
> Consider that the manufacturer only sells devices with that
> microprocessor with TiVO-like locks.
>
> How exactly can you enjoy the freedoms WRT the GPLed software you got
> from the manufacturer?

The same as I would with a TiVO. I have the right to copy, modify, distribute 
and run the code - even if I can't do any of those things on the hardware the 
original binary operates on.

>
>
> Now consider that you have a single computer, and that's built by TiVO.
>
> How exactly can you enjoy the freedoms the author meant you to have,
> if the TiVO box won't run the program after you modify it?

Simple: I don't buy it. Each and every piece of hardware I buy has a rather 
laborious research process before I actually spend the money on it. This 
makes it a certainty that I can use the hardware in the manner I want without 
problems like your hypothetical.

Whats worse - forcing your morals and ideals on someone or giving them the 
same freedom of choice you had?

Before you answer remember that that is *EXACTLY* what is being done with 
GPLv3. With GPLv2 and prior there was a simple guarantee that 
every "Licensee" had exactly the same rights. With GPLv3 you are forcing your 
ethics and morals on people - and isn't this exactly what the Roman Catholic 
church did during the Spanish Inquisition?

> > If this "run modified copies on the same hardware you received the
> > original on" *IS* the "spirit" of the license, then why isn't it
> > stated anywhere before GPLv3?
>
> For the same reasons that the pro-DRM laws weren't mentioned before,
> and the patent retaliation clauses weren't mention before: these
> specific cases hadn't been studied, only the general idea of
> respecting users' freedoms was.

Bzzt! Wrong! The reason is that it wasn't necessary - at all. It still isn't, 
but a group that feels modification == replacement wants it to be, so it has 
suddenly become necessary. (Note that anti-DRM stuff *IS* good - DRM is part 
of an attempt by failing business models to stop the failure)

> > I'll grant you that. But, at this point, where can I find a copy of
> > the GPLv1 without having to dig around the net ?
>
> In the program you received under GPLv1.
>
> Hey, you said there was code under GPLv1.1 in the Linux tree.  Then,
> there should be a copy of GPLv1.1 in there, otherwise AFAICT the
> distribution of that code is copyright infringement.  IANAL.

Ah, but I never said I had a GPLv1 program. If GPLv1 is still valid and 
available I should be able to find a copy of it *RIGHT* *NOW* to license a 
new project if I want to use GPLv1 as its license. So your logic is again 
flawed.

> >> In contrast, your TiVO may get a software upgrade without your
> >> permission that will take your rights away from that point on, and
> >> there's very little you can do about it, other than unplugging it from
> >> the network to avoid the upgrade if it's not too late already.
> >
> > And because its a device that connects to their network - and TiVO
> > isn't a telecommunications company - they have the right to upgrade
> > and configure the software inside however they want. (In the US at
> > least)
>
> But do they have the right to not pass this right on, under the GPL?

Yes, they do. It isn't a right they have as "copyright holders" - in fact, it 
isn't a part of their rights under the copyright at all. It's a part of their 
rights as the owners of the network. 

> >> > A lot of them would probably have private modifications that would
> >> > never be distributed - and under the GPLv2 it is clear that you can
> >> > keep modifications private as long as you don't distribute them.
> >>
> >> Likewise with GPLv3.
> >
> > I can see this, but will a company see this?
>
> In what sense does the GPLv3 make this particular point any less
> obscure?

Never claimed it was less obscure, just that you've usually got a board-room 
filled with middle-aged men that might have problems agreeing that it is a 
clear-cut case.

> > True. But that doesn't save them from lawsuits trying to force them
> > to obey the terms of the new revision even though they received the
> > software under an earlier version.
>
> Nothing saves anyone from silly lawsuits.  This one would likely be
> laughed out of court in no time.  Anyone worried about this should
> also be concerned about their neighbor suing them for copyright
> infringment every time they set their stereo loud enough for the
> neighbors to listen and be annoyed.  (Hint: only the copyright holder
> would stand a chance of winning such a lawsuit)

Yes, but the fact that it would cost money to get the suit dropped is a 
problem. 

> >> > (and don't try to argue that even though those modifications are
> >> > truly private (to the company) they should be released anyway to
> >> > comply with the "spirit" of the license. It is made clear that it
> >> > isn't by the text of the license itself)
> >>
> >> How could you possibly come to the conclusion that forcing anyone to
> >> release private modifications would be in compliance with the spirit
> >> of the license?  can != must
> >
> > I was trying to be sarcastic and inject a little humor here. Guess I
> > should have used the old <sarcasm> tag :)
>
> Aah.  I'm not sure I'd have understood it either.
>
> >> >> > Why should I repeat Linus' explanation of the ways that GPLv3
> >> >> > violates the spirit of GPLv2?
> >> >>
> >> >> Don't worry about parrotting here, he hasn't provided that
> >> >> explanation yet ;-)  Please give it a try.
> >> >
> >> > But he has. Whether you have accepted that his explanations are
> >> > valid or not doesn't change the fact.
> >>
> >> His explanation is based on a reading of the license that doesn't
> >> match what its authors meant.  I guess the authors know better what
> >> they meant the spirit of the license to be than someone else who
> >> studied it a lot but that until very recently couldn't even tell the
> >> spirit from the legal terms.
> >
> > And his interpretation is no less valid than that of anyone else. In
> > fact, after a recent conversation with a couple of lawyers that I
> > know, I can state that his interpretation isn't that far off from
> > theirs.
>
> Interpretation as applied to the legal terms, yes.  As for the spirit
> of the license, the authors ought to know better than anyone else what
> they meant.  Sure, other interpretations might lead to different
> understandings as to what the readers *think* it means, but that
> doesn't change what it was *intended* to mean.

Doesn't matter what the author intended it to mean - at all. What matters is 
how its interpreted when/if it shows up in court. This can be seen *ALL* the 
time with laws across the globe. In the US there is this thing called 
the "RICO" Laws- "Racketeering Influenced Criminal Organization" - that give 
the government the ability to seize anything that is deemed a "profit of drug 
sales" or of a "Criminal Organization". It has been used for that purpose, 
but its interpretation has caused it to be used to seize money that has had 
no source in either.

> > Then you're lucky. I've had a lot of people say something similar to the
> > following: "Oh, I've heard about that. So which version of the GNU-Linux
> > kernel are you running?"
>
> Oh my.  That's indeed unfortunate and unfair.
>
> > As I've stated before - I can find nothing in the history of the GPL or
> > the FSF that makes the "on the same hardware" requirement clear and part
> > of the "spirit" of "Free Software".
>
> Put the considerations above, about a single computer or a
> uniformly-limited computing platform, and you'll see that this "on the
> same hardware" argument is just a means to deny people freedom.  If I
> could stop you from running modified versions on one piece of
> hardware, then I could on two, and 3, and then soon it's all of them,
> and we're back to square zero in terms of freedom.
>
> >> > What I won't do is release whatever tools and such that are needed to
> >> > make the hardware run a different version of the kernel. Why? Because:
> >> > the hardware was designed so that a specific version of the kernel
> >> > runs without problems, there is hardware that is very picky and
> >> > running a customized kernel could cause that hardware to fail, etc...
> >>
> >> Why do you care?  It's no longer your hardware, it's theirs.
> >
> > Legal requirements in some countries that require manufacturers to
> > provide support for their product for a period of time after it has been
> > purchased.
>
> If you replace a component in the hardware, are you still required to
> provide support or offer warranty?  Why should this be different just
> because it's a software component?

Artificial distinctions in the law

DRH

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