FW: Ethics of Circumventing OS (ALSO LONG)

Kim Bruning (seperate for lists) kim2 at bruning.demon.nl
Fri Apr 13 19:31:19 UTC 2001

On Fri, 13 Apr 2001, Ricardo Gladwell wrote:

> Dear Kim,
> Thank you for your interest in my correspondence with Mr. Trachtmen. These 
> exchanges have indeed been an interesting experience for me and you made
> some note-worthy points in your reply, to his reply, to my reply to his article.
> <snippage>
>   > I'm not sure it's unethical either. I don't believe Michael Trachtman has
>   > actually circumvented anything.
> You are quite right on this point: Michael Trachtman hasn't, officially,
> circumvented anything. In his article he claims to define a legitimate, legal
> method of using GPL'd software in a commercial environment, i.e. for profit. My
> emails were not about the legality of this - I'm not in a position to judge
> this. I was merely concerned with the ethics of doing this.

Okay, I read the article and it's exactly what I expected it to be,
interestingly. I'm rather amused.

Mr. Trachtmans article is not a circumvention of OSS at all! Rather it is
a rather nifty workaround for if you can't get code that was *supposed* to
be LGPLed in the first place to act (legally) as if it's LGPLed. This at
the price of a lot of coding gymnastics.

Note that it's perfectly ok to make a profit off of open source. That's
the whole point.  Free Software people might sometimes have some problems
with  profiting without giving something back ("freeloading"), but
since the article is about Open Source, this is not a problem.

Also note that not all Free Software people have problems with
"freeloading". For instance: BSD people don't have this problem, and
actually actively encourage people to use BSD licenced code everywhere.
This is why the Internet now runs under TCP/IP. Example
TCP/IP code was released under a BSD licence, allowing anyone (including
MS, Apple and Linus torvalds) to use it.

> <some more snippage>
>   > actively encourages.) The biggest difference between open source (and free
>   > software) and closed source in this case is that the oss software includes
>   > the source code. "circumventing Free Software" in this case would also
>   > mean circumventing copyright law. That would be a Bad Thing (c).
> You are quite right again: I was wrong to use the phrase 'open source' when
> 'free software' is the correct term. Of course, I mean 'free software', although
> most people use the terms (correctly or not) interchangeably.
> I am a free software advocate, but the years of explaining the 'free
> software' position to my employers, who only really understand the
> term 'open source', has corrupted my vocabulary.

Interesting. Maybe you might want to contact xs4all.nl or vuurwerk.nl (or
the FSFE by the way) and ask them for help in this.
> With regard to the Web Techniques article, the differences between 'free 
> software' and 'open source software' is irrelevant: the method can be applied to 
> both.

Sure. And in both cases it's quite moral and quite legal to do so. Poor
Michael	Trachtman. He should have done more research. If he had written
his article as a GPL fix, it might have attracted more attention.

> <lots and lots of snippage>
>   > Trolling it is. But he has a legal and moral right to do it. Even so,
>   > this kind of trolling might be seen as bending those rights just a little,
>   > by some people, maybe.
> You seem to be under the misconception that I take the position that trolling
> should be outlawed. On the contrary, as a free-software advocate I am also a
> free-speech advocate. I just don't expect to read trolling in a magazine I pay
> good money for. I do expect mature articles regarding serious technical issues
> in magazine entitled, say for example, WebTechniques.

Hmmm, you might have a point at that. 

> <so much snippage it hurts>
>   > Huh? Well, actually, the profits anyone makes by trying to circumvent
>   > copyleft on any of *my* programmse definately belong to me. Offenders
>   > *will* be sued. :-P
> IANAL, but on reading the GPL I can see no mention of exactly who the profits
> belong to. Any details about you the programmer do not appear, but the address
> of the FSF *does* appear in the GPL blurb.

I quote: 

"We protect your rights with two steps: (1) copyright the software, and
(2) offer you this license which gives you legal permission to copy,
distribute and/or modify the software."

Say I write a programme and want to GPL it.

I would be in possesion of the copyright for my software(step 1)*, which I
would then (step 2) release under the GNU Public licence (which is a
standard licence).

My address and other information would appear in the copyright notice
which is included in my programme.

A licence is a legally binding agreement.

Legally I would be the copyright holder for the software, and I can set
any terms for use, distribution etc. that I like (short of taking away
someones rights of fair use). I would have set the terms to be equal to
the GPL.

*in the USA it is advisable to register your software with the library of
congress (costs $30) . In the EU, check your local laws (I asked a lawyer)
to see how to gain full copyright protection for your software.  

> <is snippage a word, anyway?>

   (it is now :-P )

>   > Well, Copyright is not exactly hypocrite. It's just that it gets abused
>   > for things it shouldn't be so now and then these days.
> This is an interesting point but you don't really back it up with anything
> concrete. Why isn't copyright hypocritical? Without a doubt, copyright is
> used against freedom of speech, but would you say that it can be used for the 
> benefit of freedom of speech?

Sure. Originally copyright was instated so that authors wouldn't get
ripped off by their publishers. It also makes it possible to write and
maintain books, newspapers, magazines, etc etc etc.
It also allows the GPL to work. 

Copyrights on digital stuff sometimes get abused a bit these days though,
that's why the GPL is so handy.

>  >> It is worth noting that there have never been any legal cases > enforcing
>  >> copyleft - in fact, I do not consider that copyleft > was ever designed to be
>  >> upheld in a court of law.

Wel ummm, copyleft doesn't have to be upheld in a court of law. Anyone
with a little business and legal sense can see that breaching the GPL is a
lot like shooting yourself in the foot. This is especially true if a
lawyer were to explain it to them slowly.

>  >
>  > Sure it was. Ask your lawyer for advice first though. IANAL
> Again, IANAL either but, as far as I know, there are no legal precedents for
> defending the GPL in a court of law. What is more, while I'm sure the FSF can
> call upon considerable resources could they (or anyone else protecting their GPL
> code) sucessfully carry out legal defense of the GPL against one of the software
> giants, such as Oracle or Microsoft? I seriously doubt it.

Well, let's put it this way. Say in a hypothetical situation, you were to
manage to "destroy" the GPL on my code. You could for instance do this by
getting your lawyer to successfully convince the judge it's bunk.

But then there'd still copyright on it. And if your copyright position
_with_ the GPL was shady, well without, you'd probably be much further 
out in the woods than before. In fact you'd probably be in breach of

So now you would possibly be liable for tens of thousands of dollars worth
in punitive damages or actual damages, whichever is _higher_. What's more
the bern convention would allow me to sue you under *my* countries
copyright laws, independant of where you live or operate (provided your
country signed the bern convention too).

Thanks to the nice values often assigned to Free Software stuff (gcc is
said to be worth just under 1 billion dollars) this could be a really
interesting situation.

I think your lawyer would reccomend for you to just settle.

(this is what has happened quite often I gather) 

> With this in mind, I stand by my argument that the GPL is less a legal document 
> as it is a manifesto about the hypocrisy of copyright. I'm sure that it is 
> legally sound, but in these days of big-business litigation I don't think that 
> means very much.

Well, seeing that this is a rather open-and-shut case of copyright
infringement, the author of the GPLed code would probably win pretty

>  > Even so: one of the things that I think everyone agrees on is that freedom
>  > of speech is practically sacred. Nothing is to be gained by being angry at
>  > the messanger. Instead, take a look at his message, and see how it can help
>  > you. Sorry for making this so long, and I hope that this is useful to you.
> Again, you seem to misunderstand me, I'm not angry at the article, just 
> concerned with it's almost hostile attitude to the GPL (and, incidentely, 
> freedom of speech) as I think we should all be. While Mr. Trachtmen is indeed 
> entitled to his freedom of speech, so are we entitled to our freedom to 
> publically disagree with what he says. What is more, we should actively exercise 
> that right at the risk of losing it.

Hmmm, well you could have a point there as well.

> But, don't take my word for it. Judge for yourselves:
> <http://www.webtechniques.com/archives/2001/04/trachtman/>

I've read it now.  Mr. Trachman should have done more and better research
into open source licenceing, like I already said. I agree his tone appears 
to be a tad hostile.

However, on reading how he does it, it seems one would not be absolved
from the requirement to distribute source code along with the GPLed
portion of the code, and that is as it should be.

read you soon,
	Kim Bruning

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