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

Florin Malita
2007-06-15T01:50:30Z

On 06/14/2007 05:39 PM, Alexandre Oliva wrote:
> On Jun 14, 2007, Florin Malita <fmalita@gmail.com> wrote:
>
>> No, it's not: replacing does not create derivative
>> work. Modification does.
>>
>
> Thanks. Good point. This convinces me that this doesn't work as a
> legal argument under copyright.
>
> I still stand by my understanding that this restriction violates the
> spirit of the license.
>

But since this elusive "spirit" is subject to everybody's interpretation
of the preamble, you must surely admit that it remains just a matter of
opinion ;)

>> It seems pretty obvious that the only right Tivo is withholding is the
>> right to install new versions on the device
>>
>
> Actually, no. They withhold the right to run versions that they don't
> authorize themselves.
>

On that particular piece of hw, yes. But who's granted you the right to
*run* your modified copy *there* in the first place? GPLv2 explicitly
steers clear of anything "other than copying, distribution and
modification".

> Back when GPLv2 was written, the right to run was never considered an
> issue. It was taken for granted, because copyright didn't control
> that in the US (it does in Brazil), and nobody had thought of
> technical measures to stop people from running modified copies of
> software. At least nobody involved in GPLv2, AFAIK.
>
> The landscape has changed, and GPLv3 is meant to defend this freedom
> that was taken for granted.
>

Then you agree that GPLv2 does not protect your freedom (taken for
granted) to run a modified copy on any particular device, or am I
misreading?

>>> What do you think you do when you save a modified source file in your
>>> editor?
>>>
>
>
>> Don't skip the part where the in-memory version started as an exact
>> copy of the original being replaced. Notice the difference? ;)
>>
>
> Sorry, I really don't follow. Both versions of the kernel binary also
> started from a common source ancestor. Were you trying to make a
> distinction on these grounds?
>

Exactly: they have a common ancestor, they are both derived from it. But
there's no ancestry relationship *between* them (unlike your edited file
example) so you cannot argue that one is a modification of the other.
Hence, Tivo is not really *modifying* the copies it distributes with the
device - they're *installing* brand new copies instead. They also choose
not to offer everybody the same privilege :-|

Does this go against the intent of the GPLv2 authors? Probably. Does it
go against the letter of GPLv2? Apparently not. Does it go against
your/some people's interpretation of the GPL "spirit"? Obviously. Does
it go against everybody's interpretation? Obviously not.

---
fm