Re: Of mice and men


In article <1115410148.028858.28150@xxxxxxxxxxxxxxxxxxxxxxxxxxxx>, "Richard" <riplin@xxxxxxxxxxxx> writes:
>
> The GPL is certainly a licence and not, for example, a contract as the
> EULA is.

That distinction strikes me as a bit dubious, at least under US law,
but IANAL - here or in New Zealand (just as well; the commute would
kill me).

> The underlying product is protected by copyright laws, it is
> only the licence that lets you use it.

In the US, patent and trade secret law may also apply to the product.
I suppose trademark law could also apply to things like product name
and embedded logos.

> If you do not like the terms of
> the GPL then there are several choices: 1) don't use it. 2) Obtain a
> different licence for that product that has different terms and
> conditions.

Well, yes. Isn't that generally the case with a license?

Also, some products are multi-licensed, and each user can choose
under which license to use it.

> For example Borland's Kylix is available as a free GPL version and
> resulting programs, if they are released, must be under the GPL. Note
> that there is no requirement to release or distribute. If you are
> developing in-house you do not have to give your programs to anyone,
> they can be kept completely secret.

Again, I'm dubious. I see nothing in the GPL text which makes this
distinction; if you "distribute" a derived work even within an
organization, then the terms of the GPL appear to apply and you must
make source code available to all the users within your organization.
I wouldn't call that "completely secret".

> > (Whether this is actually true is an open question, as the GPL hasn't
> > been tested by the courts in any jurisdiction, AFAIK.)
>
> Yes, it was tested in Germany by MySQL.

I had forgotten about the MySQL case. According to _The Register_,
however, that was settled out of court without the license actually
being reviewed by the court.[1] I admit I haven't looked into the
situation closely, though, so I may be looking at the wrong case.

> The main reason that it is not tested in courts is that the product is
> not protected by the GPL it is protected by Copyright.

Beside the point. The GPL hasn't been tested in the courts because
no one's pursued a GPL-violation case to the point where a court
would review the license. While (in the US) holding copyright is
necessary to bring legal action against the violator of a (software)
license, the organizations and individuals producing software licensed
under GPL generally retain copyright (or in some cases assign it to
the FSF), so they'd be the plaintifs anyway.

> The only defense for a copyright action is that they
> have a licence to use, the licence is only valid if they have complied
> with its conditions. Thus, when a user is accused of not complying with
> the conditions their defense requires that they must prove they _are_
> complying. When they realise this they comply and the case is dropped
> (usually this is before it is filed).

This strikes me as a rather optimistic interpretation of the law. I
find the opinion - voiced by more than one observer - that the FSF is
reluctant to see the GPL tested in court far more plausible.


1. http://www.theregister.co.uk/2002/11/21/mysql_nusphere_settle_gpl_contract/

--
Michael Wojcik michael.wojcik@xxxxxxxxxxxxxx

You brung in them two expert birdwatchers ... sayin' it was to keep us from
makin' dern fools of ourselfs ... whereas it's the inherent right of all to
make dern fools of theirselfs ... it ain't a right held by you official types
alone. -- Walt Kelly
.

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