GNU General Public License

A Spectre is haunting multinational capitalism--the spectre of free information. All the powers of ``globalism'' have entered into an unholy alliance to exorcize this spectre: Microsoft and Disney, the World Trade Organization, the United States Congress and the European Commission.

Where are the advocates of freedom in the new digital society who have not been decried as pirates, anarchists, communists? Have we not seen that many of those hurling the epithets were merely thieves in power, whose talk of ``intellectual property'' was nothing more than an attempt to retain unjustifiable privileges in a society irrevocably changing? But it is acknowledged by all the Powers of Globalism that the movement for freedom is itself a Power, and it is high time that we should publish our views in the face of the whole world, to meet this nursery tale of the Spectre of Free Information with a Manifesto of our own.

Freedom Zero

Linux Today - Stallman and Kuhn on the freedom to choose license

As reported by Gnuheter, a new essay published by Bradley M Kuhn och Richard M Stallman carries the title "Freedom or Power?". The authors state something that we might have suspected from essays from Kuhn and Stallman before, but now is a little more clear, if still ambiguous:

"However, one so-called freedom that we do not advocate is the "freedom to choose any license you want for software you write". We reject this because it is really a form of power, not a freedom."

The essay is interesting in the light of an earlier essay published by Eric S Raymond. Raymond states:

"In other words, Stallman and Kuhn want to be able to make decisions that affect other developers more than themselves. By the definition they themselves have proposed, they want power".

Tim O'Reilly started the debate with his weblog of July 28, 2001: My definition of freedom zero, where O'Reilly states:

"If Freedom Zero for developers is the freedom to offer software on whatever terms the developer sets and a user will accept; Freedom Zero for users is the right to choose whatever software they like, without interference from platform vendors who try to deny that choice."

The issue is not simple. Stallman and Kuhn could be attacked on liberal grounds and even more so on libertarian grounds. This notwithstanding, you probably find a point in their statement:

"We believe you should decide what to do with the software you use; however, that is not what today's law says. Current copyright law places us in the position of power over users of our code, whether we like it or not. The ethical response to this situation is to proclaim freedom for each user, just as the Bill of Rights was supposed to exercise government power by guaranteeing each citizen's freedoms. That is what the GNU GPL is for: it puts you in control of your usage of the software, while protecting you from others who would like to take control of your decisions."

I am not sure whether Raymond, Stallman or O'Reilly is right, but to paraphrase Esther Dyson: the conversation continues.

General Issues

While the FSF promotes open source code as a means of cooperating and producing software, his "free software" philosophy might be considered as somewhat fundamentalist flavor of "software anarchism". And jangling with the words "free" and "freedom" is one of the most prominent Stallman's hobbies. See for example his critique of The Problems of the Plan 9 License  where he failed to realize the license tries to address (among other things) the "renaming game" problem present in GPL v.2. Actually there are two flavors of GNU license (GPL and LGPL):

• GNU General Public License
• GNU Lesser General Public License
  • Martin Cracauer's GPL Page -- The GNU General Public License (GPL), used by many popular free software packages, contains some requirements that makes it hard to use in the real world. Most importantly, its clause that program modules under the GPL must not be linked with modules under licenses that add any term the GPL does not have, prevent many good software packages from being combined. There is an alternative license - the LGPL - that has all the power to protect people's own work, but without the extended requirements that serve no other purpose than to force your will on someone else and his work.
• Philosophy of the GNU Project - Free Software Foundation (FSF)
  • Licensing Free Software
• Why you shouldn't use the Library GPL for your next library - GNU Project - Free Software Foundation (FSF) -- the indication of radicalization of RMS position due to recent failures and creation of open source umbrella movement.  An interesting illustration of the "subtle greed"  of proletarian revolutionaries ;-). For a man became a pure political activist to say that " Popularity is tempting" toward commercial software developers is pretty hypocritical.

  The GNU Project has two principal licenses to use for libraries. One is the GNU Library GPL; the other is the ordinary GNU GPL. The choice of license makes a big difference: using the Library GPL permits use of the library in proprietary programs; using the ordinary GPL for a library makes it available only for free programs.

  Which license is best for a given library is a matter of strategy, and it depends on the details of the situation. At present, most GNU libraries are covered by the Library GPL, and that means we are using only one of these two strategies, neglecting the other. So we are now seeking more libraries to release *under the ordinary GPL*.

  Proprietary software developers have the advantage of money; free software developers need to make advantages for each other. Using the ordinary GPL for a library gives free software developers an advantage over proprietary developers: a library that they can use, while proprietary developers cannot use it.

  Using the ordinary GPL is not advantageous for every library. There are reasons that can make it better to use the Library GPL in certain cases. The most common case is when a free library's features are readily available for proprietary software through other alternative libraries. In that case, the library cannot give free software any particular advantage, so it is better to use the Library GPL for that library.

  This is why we used the Library GPL for the GNU C library. After all, there are plenty of other C libraries; using the GPL for ours would have driven proprietary software developers to use another--no problem for them, only for us.

  However, when a library provides a significant unique capability, like GNU Readline, that's a horse of a different color. The Readline library implements input editing and history for interactive programs, and that's a facility not generally available elsewhere. Releasing it under the GPL and limiting its use to free programs gives our community a real boost. At least one application program is free software today specifically because that was necessary for using Readline.

  If we amass a collection of powerful GPL-covered libraries that have no parallel available to proprietary software, they will provide a range of useful modules to serve as building blocks in new free programs. This will be a significant advantage for further free software development, and some projects will decide to make software free in order to use these libraries. University projects can easily be influenced; nowadays, as companies begin to consider making software free, even some commercial projects can be influenced in this way.

  Proprietary software developers, seeking to deny the free competition an important advantage, will try to convince authors not to contribute libraries to the GPL-covered collection. For example, they may appeal to the ego, promising "more users for this library" if we let them use the code in proprietary software products. Popularity is tempting, and it is easy for a library developer to rationalize the idea that boosting the popularity of that one library is what the community needs above all.

  But we should not listen to these temptations, because we can achieve much more if we stand together. We free software developers should support one another. By releasing libraries that are limited to free software only, we can help each other's free software packages outdo the proprietary alternatives. The whole free software movement will have more popularity, because free software as a whole will stack up better against the competition.

  Since the name "Library GPL" conveys the wrong idea about this question, we are planning to change the name to "Lesser GPL." Actually implementing the name change may take some time, but you don't have to wait--you can release GPL-covered libraries now.

One problem with both licenses is that they does not protect the author's contributions from "one-to-one" hijacking. In this sense this is "the law of jungles", anti-copyright license. Any as I see on the WEB the author of the derivatives that have a couple of small patches to the original (see for example TARA). Thus one of the GPL's loophole is "renaming game." All that GNU formally require is that "You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change". You do not need any reason for the change. Here is the relevant quote:

2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change. b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.)

For example if I want to create a "derivative" work by renaming some files in the original and the name of the product it's perfectly OK with GNU.

• Daemon News 1999/05 Restrictively Unrestrictive The GPL License in Software Development

  It is my opinion that the General Public License is not so much about ``keeping free software free'' as it is about forcing us to accept the extreme Communistic political philosophy of Richard Stallman and others at the Free Software Foundation. The very spirit of the GPL is to attack the very concept of Capitalism and individualism. There is no concept of intellectual property under the terms of the GPL. Your hard work is no more your property than everyone else's.

  I found myself compelled to write this article because of the over- abundance of GPL'ed software that is flooding the open-source software community. Most of this flood of GPL-ism is because of the increasing popularity of the Linux operating system, most of which is GPL'ed. Indeed, Richard Stallman himself would prefer that we recognize the Linux operating system as ``GNU/Linux'' instead, because of the fact that almost all of the code is GPL'ed. The Linux kernel itself is not a GNU/FSF product, however.

  The BSD license suffers from a rather unfortunate name, which has caused it to be less recognized. Due to the popularity of Linux (and the vast assortment of nuts and fanatics who defend it to the death), the BSD license is assumed to have nothing to do with Linux whatsoever. This is not true at all. The BSD license can be applied to the same material as the GPL. Of course, since most of the body of code in the ``GNU/Linux'' system is GPL'ed, there is no hope of ever changing the licensing - they've gone too far to turn back now.

  So given all the arguments I've presented here, I hope you can see where I'm coming from. The GPL is not about freedom. It's also not without its advantages. But the fact that the GPL can infect code derived from other GPL'ed programs, as well as the fact that the output of some GPL'ed programs must also be GPL'ed, is unacceptable. In fact, it should be contested over its shaky sense of legality in these matters. I'm not aware of any court cases involving the GPL so far, so we have yet to see what will happen when such an issue arises. I can only hope that the courts will decide against the GPL's habit of infecting other code.

  In summary, despite the disadvantages in certain instances, most open source software licenses contribute to the growth and technological and artistic development of software and computer science in general. Both licenses that have been considered here fall under this category, and as such should be considered a valuable resource and a great achievement for the intellectual development of the scientific and technological communities as a whole. Open source software is all about the sharing of ideas and concepts. Programming is as much an art as a science, and it is not wrong to borrow from the ideas of others and to learn from those who have gone before us.

• Martin Cracauer's GPL Page -- interesting critique of GPL that contrasts it to LGPL.

  The GNU General Public License (GPL), used by many popular free software packages, contains some requirements that makes it hard to use in the real world.

  Most importantly, its clause that program modules under the GPL must not be linked with modules under licenses that add any term the GPL does not have, prevent many good software packages from being combined.

  There is an alternative license - the LGPL - that has all the power to protect people's own work, but without the extended requirements that serve no other purpose than to force your will on someone else and his work.

• SlashdotFeatureGPL vs BSD

  Recently, there has been a lot of anti-GPL sentiment in the BSD camps. A cynic would say that they are simply jealous over the GPL's (and Linux') success; however, with a careful examination of reality one notices that the BSD license is no less, perhaps more successful than the GPL, and the BSD variants are thriving in their own niches. So why the anti-GPL sentiment? Personally, I believe it's two things.

  1. BSD advocates are maybe just a little, tiny bit bitter over the fact that Linux is perceived to be more successful than BSD. Everyone with his head screwed on straight knows that neither of these two factions are going away, but nonetheless, there may be some resentment there. By creating awareness of their OSen, they can draw attention to it.
  2. Some BSD advocates mistake the anti-proprietary slant to the GPL as pro-communist or anti-capitalist, both of which are blatantly foolish and incorrect.

  The GPL exists because Richard Stallman, rms, wanted to ensure the freedom of software forever. Free Software, of all its types, thrived then and thrives now; however, the GPL is one of the only licenses which guarantees that Free Software cannot become non-Free. This doesn't mean that money can't exchange hands over Free Software, only that it can't become proprietary.

  When using the BSD license, your software is just as Free as when you use the GPL. However, a company can take your code, incorporate it into its own proprietary product, and (depending on the type of BSD license, with or without advertising clause) you can receive no compensation for your work, perhaps not even credit. If that's exactly what you want, then the BSD license is for you. However, it seems just a little bit dangerous for a lot of Free Software authors.

  This isn't possible with the GPL. It's always there, blatantly in your face, telling you ``You may not use this code in proprietary ventures.'' If a company takes your work, repackages it and sells the repackaging and service for it, your code is still available. It isn't legally permissible for them to take your code, incorporate it into another product and sell that product.

  The BSD license is a fine license. It does exactly what it's meant to do, which is get the software out there. For a lot of Free Software authors, that's exactly what they want. However, for some people, that's not good enough -- they want to give everyone the freedom to do with the code what they will, but they don't want to give people the right to make the code proprietary.

  The GPL is very popular, and very effective, because it protects people's Free Software, while still allowing them the freedom to do with it essentially whatever they want. Many people make a living selling and creating Free Software; this number will only increase as its benefits become more publicised and well-known.
   

• Slashdot Thus Spake Stallman

  Q: (from Bruce Perens) - I'm concerned that GPL restrictions on derived works haven't kept up with software technology.

  RMS: I am working on GPL version 3, but this is not something that should be rushed. I put it aside for most of a year to work on the GNU Free Documentation License, but now I plan to get back to it.

  Bruce: The most pernicious example is CORBA, which lets us create derived works from components that aren't in the same address space at all, yet work seamlessly as if they were. I'd rather not see my GPL work end up in somebody's proprietary program, simply because it's been server-ized to avoid my license restrictions.

  RMS: If people can write non-free software that makes use of free CORBA components, that is bad in one way: it means that their non-free software can build on our work. But using our free software through CORBA does not make our programs themselves non-free. So it is not as bad as extending our programs with their non-free code.

  I think it will be hard to claim that a program is covered by our licenses because it uses CORBA to communicate with our code. Perhaps in cases of particularly intimate coupling we could convince a court of that view, but in general I think we could not.

  Bruce: A more common problem is dynamic libraries that are distributed separately from the executable. You say that a court would hold those to be devices explicitly used to circumvent the license restrictions, but that's rather chancy, and no substitute for explicit language regarding what is, and what isn't, considered a derived work in the GPL.

  RMS: We have no say in what is considered a derivative work. That is a matter of copyright law, decided by courts. When copyright law holds that a certain thing is not a derivative of our work, then our license for that work does not apply to it. Whatever our licenses say, they are operative only for works that are derivative of our code.

  A license can say that we will treat a certain kind of work as if it were not derivative, even if the courts think it is. The Lesser GPL does this in certain cases, in effect declining to use some of the power that the courts would give us. But we cannot tell the courts to treat a certain kind of work as if it were derivative, if the courts think it is not.

  I think we have a pretty good argument that nontrivial dynamic linking creates a combined (i.e. derivative) work. I have an idea for how to change the GPL to make it clearer and more certain, but I need to see if we can work out the details in a way that our lawyer believes will really work.

  Bruce: There's also the problem of Application Service Providers, who make a work available for people to use without distributing it, and thus would be under no obligation to make the source code of their modifications available. Do I have to see my GPL work abused that way as well?

  RMS: I too feel these servers are not playing fair with our community, but this problem is very hard to solve. It is hard for a copyright-based license to make a requirement for these servers that will really stick. The difficulty is that they servers are not distributing the program, just running it. So it is hard to make any conditions under copyright that affect what they can do.

  I had an idea recently for an indirect method that might perhaps work. I'd rather not talk about it until our lawyer figures out better whether it can really do the job.

  Bruce: It seems there's a lot of new technology that the GPL isn't keeping up with.

  RMS: You make it sound as if solving these problems were only a matter working hard enough to change the GPL. But the GPL can only use copyright law as it exists. The recent changes in US copyright law to "keep up" with technology, in the DMCA, were commanded by the software privateers, and they were designed to help them restrict away the users' freedom, not to help us protect users' freedom. They allow copyright owners to restrict the mere running of a program--but only if some sort of hard-to-bypass license manager or access control enforces the restrictions. The freedom of free software means that even if we did put such artificial restriction into a program, the user could easily bypass them--and that's a good thing! But it means that new legal power is not available for use for copyleft.

  The DMCA is a perfect example of the harm done when business dominates government and society. One part of the law explicitly says that only commercially significant activities are considered important (to legitimize a program which is often used to bypass technological means of controlling the users)--showing explicit prejudice against educational uses, recreational uses, communitarian uses, military uses, and religious uses.

  Q: What kind of a position do you take on applications such as Napster?

  RMS: Napster is bad because it is proprietary software, but I see nothing unethical in the job it does. Why shouldn't you send a copy of some music to a friend? I don't play music from files on my computer, but I've occasionally made tapes of records and given them to my friends.

  Q: In particular, I see GTK Napster carries a standard GPL. I'd just like to know what happens when someone like Metallica wins a lawsuit against Napster who has a GPL'd counterpart such as GTK Napster? Can they touch it at all?

  RMS: I don't know who will win those lawsuits, but I don't see anything that would give free programs any special protection from this kind of suppression. It seems to me that if they win against Napster, they would probably win against any program doing a similar job.

  If they do not win using present-day law, we can expect to see the record companies purchase new laws they can use to suppress these programs in the future--and trot out famous musicians like Metallica (only famous musicians get much of their income from copyright) who will say that copying music is like killing their baby.

  We can also expect to see fierce attempts to catch individuals who use Napster and imprison them. The War on Copying will become more vicious.

  The War on Drugs has continued for some 20 years, and we see little prospect of peace, despite the fact that it has totally failed and given the US an imprisonment rate almost equal to Russia. I fear that the War on Copying could go on for decades as well. To end it, we will need to rethink the copyright system, based on the Constitution's view that it is meant to benefit the public, not the copyright owners. Today, one of the benefits the public wants is the use of computers to share copies.

  Metallica justifies their lawsuit saying they think it is an outrage that their music has become a "commodity". Apparently they think music is a commodity when shared between fans, but not when large companies sell copies through record stores. What hypocritical absurdity!

  Such drivel is normally laughable. But Metallica is presenting it as an excuse to attack our freedom, and that is no laughing matter. I encourage people to write letters to periodicals that cover this story, stating disgust for Metallica's lawsuit and rejecting their views.

  Q: The battle over CSS has been about whether people have the right to use software (I consider DVDs software because they are programs read by a computer chip) when it is controlled by the content control system CSS, even after they've bought it. I hope they'll lose in the courts, but it is unclear at this point whether they will, however, my question is on another, related topic.

  Suppose very strong, nearly unbreakable encryption were used on traditional Software DVD (i.e. stuff like M$ software or other companies software, just in a DVD format) and a DVD CCA for software were set up saying, "You aren't allowed to access the content of any DVDs unless you use our licensed DVD decryption software. Oh, and our DVD decryption software contains a legally enforceable (under UCITA) software license which states that you cannot reverse engineer any content you have decrypted using our decryption software." How would Free Software handle it?

  RMS: With laws like that, there would be no lawful way to solve the problem. The Digital Millenium Copyright Act comes close to what you imagine, and it may be enough to prohibit free software for this job. (I don't know for certain, and I think the answer is not known yet.) It may be necessary to develop this software in countries which do not have these laws.

  Q: Does there now need to be a Free Hardware philosophy which states that "Hardware which exists tied to a proprietary software system must be replaced by Free Hardware standards" or something similar?

  RMS: I agree--but it will be hard to get the movie companies to release movies for that hardware. Fundamentally, the only solution will be when enough of the public believes in freedom to change the laws that are the basis for denying our freedom.

  Q: I've been reading your opinions for some time now, and while they make sense in and of themselves, they beg certain other questions. What interest me most are your meta-ethical notions.

  You often speak of notions such as right and wrong as if they were objective things; do you hold them to be so?

  RMS: I think of right and wrong as based on how what we could do affects other people--the implications of imagining ourselves in the situation of the people our actions affect.

  People can come to different conclusions about the implications. I don't believe in relativism; I don't believe that any conclusion is as valid as any other. If I and someone else disagree, at least one of us is wrong. Unfortunately, there's no way to place to get complete certainty about what's right and what's wrong. We can only try our best to figure it out.

  The generalizations that we get from our consciences are our values. Our specific conclusions about ethics derive from these values; arguments about ethics depart from them. So my arguments about free software, or anything else, start from the values I believe in. They are addressed to people who at least partly share these values. When people persistently reject these values, there is nothing I can say to them. But sometimes people will start to share my values when I point out to them the situations the values are based on. They may then imagine the same feelings I felt or imagined.

  Q: Are there "natural" rights, and what is the nature of their existence?

  RMS: I think there are natural rights, natural in the sense that people are entitled to them regardless of what governments say about them. Freedom of speech is a good example; I think people are entitled to freedom of speech, and censorship is wrong. That is one example that I think most people reading this would agree with. I also believe that the freedom to share software and other published information is also a natural right.

  There are also artificial rights, rights that are not natural. I agree with the US legal system, for example, in the view that copyright is an artificial right, not a natural one. It can be reasonable to have a limited kind of copyright system for some kinds of works, but this is a concession made to benefit the public, not an entitlement of authors and publishers. This system should be limited so that it doesn't seriously conflict with other people's natural rights.

   

• LinuxPlanet: Stallman/Stanco: A Dialogue on Copyright Law and Free/Open Source Software (Part 1)  News,Community,Small Features Jul 13th, 2000  -- very weak dialog of  two GPL evangelists
  • (Part 2) 
  • (Part 3)
  • (Part 4)
  • (Part 5)
  • (Part 6)
  • (Part 7) 
  • (Part 8) 
    
• Another sign of Stallman radicalization -- he don't like Trol Tech Q license but he like to speculate on the word "freedom" is the best "proletarian revolutionaries" tradition ;-)
  • BeOpen.com: Richard Stallman's Response to Warwick Allison of Troll Tech  News,Community Jul 17th, 2000

    "Warwick Allison in your interview says some confused things about the GPL. To prevent the readers from being misled, would you please post this response?..."

    "But Allison's implication that the GPL is meant to stop someone from making money is just plain wrong; in fact, the freedom to sell copies for a profit is part of the freedom that the GPL protects. Being for freedom and community does not mean being against profit."

    "When Red Hat Software refused to include KDE/Qt in their GNU/Linux system, they did something unusual for a company: they acted for the sake of the community's freedom rather than for short-term expediency. You called this "strange"--I call it admirable. One view criticizes them as foolish for declining a selfish opportunity, the other praises them for caring about the community. It is a difference of values."

    Complete Story

  • Linux Today - BeOpen.com Interview with Warrick Allison of Troll Tech's Qt Library

  • "...We have a lot of people come to us and say, "I want to write an Open Source product." When they say that, they don't always understand what an Open Source product is. For example, they say, "We want to write this Open Source product and suddenly later down the line, we want to make it commercial." In other words, what they're saying is, "We want somebody else to write it for us, and then we'll sell it later."

    "People like that, we try to say, "Either do it properly. Do it as Open Source or don't do it as Open Source." There are advantages in not using Open Source. You can make more money in the short term and spend that on developers all over and get some sort of product. We don't steer people either way, really."

    "The purpose of us having two licenses is because we want people who want to write Open Source software to be able to do it with no ties to us at all. They can use version 2.1 of Qt forever, and modify it to their heart's content. We don't want people to be tied to us, and we don't want people to feel like they're tied to us."

• Slashdot: GPL vs BSD [June 23, 1999]
• LibreNix: The BSD License & the GPL: Why we need both -- rather primitive...
  "...if you want maximum freedom for the licensee, the BSDL is best. If you want guaranteed access to the source of future published code, the GPL is best."
• Philosophy of the GNU Project - Free Software Foundation (FSF)
• the FSF's explanation of CopyLeft

GPL's Suppressed Envy Problem

The essence of the section is very well explained by the following Slashdot posting:

Re:Is BSD more free than GPL (Score:0) by Anonymous Coward on Saturday January 01, @11:52AM EST (#51)

His changes are his work...not yours. WRONG! He changed my code. That means I own his changes. Without me, he'd have nothing to change, so everything he does with my stuff is mine! I do not grant him the right to hide them from me. He must hand over his changes to my work. And he must do it for free. This gives me the maximum power over my own work. If you want to work for me for free, then thanks, but it's still you working for me, because it's my program. Not yours. Get it?

Another variant of the same phobia is the Microsoft will steal their precious code. A good counterargument is reproduced below:

Re:Foo! (Score:3, Insightful) by Arandir (arandir-at-meer-dot-net) on Saturday January 01, @04:25PM EST (#151) (User Info) http://www.meer.net/~arandir/

"...but keep in mind that by choosing BSD, you could be working for Microsoft for free." So what? Are you so arrogant to believe that Microsoft even wants your code? The number of incidents where Microsoft used BSD code can be counted on one hand. Compare that to the myriad BSD packages out there and it's insignificant. And the number of BSD packages which withered away because some "proprietary" Microsoft version existed is exactly ZERO. Besides which, all you Anonymous Cowards keep telling me that Free Software is not about "free beer". If it's not, then who cares if Microsoft sells your "beer" for money?

Here is one the replies that underline another side of the problem -- the side that also is present in the existence of a special version of Linux for Transmeta -- an ultrasecretive company that does not revel the actual architecture and command set of their chips.

Re:Is BSD more free than GPL (Score:0) by Anonymous Coward on Saturday January 01, @11:24AM EST (#31)

Yes, but what about those of us who would like to contribute to a GPL product that eventually has many authors? If the original author wants to take it commercial, and I can't, I'd be pissed -- especially if I did a proportionally similar amount of work. I seriously question the validity of this position taken in the GPL. If he can, using some of my code, I say fuck him and let him use untested and shaky license in a court case. I'd like to see something like this happen.

Re:Is BSD more free than GPL (Score:0) by Anonymous Coward on Saturday January 01, @12:07PM EST (#60)

I seriously question the validity of this position taken in the GPL. If he can, using some of my code, I say fuck him and let him use untested and shaky license in a court case. I'd like to see something like this happen. Agreed. It's about time that a judge applied his line-item veto to cross out invalid portions of the license. And no, that doesn't break the whole thing. That's not how contracts work. Get a lawyer. The GPL is not supportable.

Re:Is BSD more free than GPL (Score:3, Interesting) by Arandir (arandir-at-meer-dot-net) on Saturday January 01, @04:06PM EST (#145) (User Info) http://www.meer.net/~arandir/

"Perhaps you should look proprietary up in the dictionary before you apply it to gcc." ----- Proprietary: (1) of, relating to, or characteristic of a proprietor (2) used, made, or marketed by one having the exclusive legal right. Proprietor : one who has the legal right or exclusive title to something : OWNER ----- Proprietary software is owned software. The FSF owns gcc. By retaining a copyright, they have retained exclusive legal rights to gcc. The FSF is the owner and proprietor of gcc, and thus gcc is proprietary. Perhaps you should use a real dictionary, instead of the redefinitions the FSF uses.

Forking

Geocrawler.com - mozilla-license - Forking the Lizard

I remember it was thoroughly examined at the time of the original licensing of the code and that GPL (and dual licensing) was rejected not just for this reason but it was a significant one.  Its true that one could always argue that any of my scenarios are unlikely to happen but I can`t quite see me bringing a proposal to a board of directors and them being happy with that kind of risk assessment.

Its not as if this kind of attack was unknown or even ignored in literature on GPL ( http://www.softpanorama.org/Social/copyright.shtml#GPL), such as the `renaming problem` where a body of files can be simply renamed under GPL and treated as a separate work.  This actually makes my Company X example much worse, if in releasing their product they had trusted the dual licence and heeded the Stupidity Tax argument then someone could come along and simply rename all the files created by Company X under the GPL licence and
Company X would have no recourse whatsoever and what`s more would be unable to use this renamed copy within their own proprietary software even though the only difference was in the naming of the files.

To counter the argument that the Stupidity Tax (the cost of maintaining a radically different tree) ensures my dire scenarios will not take place, I`d make two points.

Firstly, if the benefits of specifically forking into the GPL outweigh the benefits of not doing so then it will be done.  Up to now a great many GPL`d programs have been *nix based and the nature of that audience is quite well disposed to cooperation, with the mozilla.org XPCOM and XPFE releases an entirely different kind of audience is being sought.

Secondly, unlike a fork for the purpose of functionality, this kind of fork can be continually fed from the MPL code.  Each new release of MPL based code (and dual licensed), can feed the forked version especially when the
object that is forked isn`t part of the main mozilla.org code but a Contributed Work, in other words a significant application.

I think the benefits of forking any successful application based on mozilla.org will become so tempting as to be irresistable.

As for it not being a problem so far with existing `dual licensed` code I`d actually say that its a problem waiting to happen, betting on it not happening might mean that your quotient for belief in fellow man is higher than mine but that`s about all.  For instance, the release of 3.1 of NSS might just encourage someone to mangle GPL code into it because it suits them to have had someone else implement the RSA algorithm.  You can also say that AOL as the original contributor doesn`t care about this because from the time its forked in this way they cease to care about it.  A developer of vertical market applications with small audiences however has a different scale of problems.

I believe this `dual-licensing` is a hideous mistake it will dissuade small commercial developers from contributing significant fixes, and from publishing open source.  This might seem an irrelevant audience to mozilla.org, undoubtedly to AOL it is, but it was one of original aims of the MPL licence.  If this is no longer the ethos on which mozilla.org runs then it would be better if it came out and said so.

Simon

GPL and Corba

Can CORBA Sidestep Open-Source Licensing (Web Techniques, Apr 2001) Counterattack agaist "viral aspect" of GPL.

"This is great for businesses that would rather extend existing code than reinvent the wheel-but there's a catch.. Essentially, this means that if you improve open-source software, those improvements must also be open. In many cases, developers in this scenario are stuck"

... ... ...

As you've likely noticed, other than the reusable boilerplate code, you had to write very little code to run the TaxExpert program in a separate process: 7 lines in the taxes.idl file ( Listing 4), 13 lines in the TaxExpertimpl class ( Listing 8), and then 9 lines in the main routine that starts the CORBA server ( Listing 9). That's a total of fewer than 30 lines of code.

CORBA is a powerful library that you can use to perform many different tasks, like writing distributed software that's in different languages and runs on different machines with different operating systems. Mastering the IDL file is the key to using CORBA. Complex projects require complex IDL files, including features like different data types, arrays, structures, and IO specifications. CORBA also offers many sophisticated instance and memory-management strategies. While complete mastery of CORBA may take awhile, you can use the techniques I've shown to get immediate results.

Open-source software is among the best written and most widely used software in the world. However, as open-source software is licensed and isn't in public domain, you often can't make use of it in real-world commercial situations. Although you should consult a lawyer for a definitive legal opinion, you might be able to use a CORBA-based programming strategy to split your program into two parts: one open-source and one proprietary.

Linux Today - WebTechniques Can CORBA Sidestep Open-Source Licensing

RMS and the RIAA are on opposite sides of the freedom debate, but they do share one common enemy "Church's Thesis" http://cs.fit.edu/~ryan/glossary.html. A direct result of Church's Thesis is that no matter what you're trying to do, there's always a way to do it with one more level of indirection, or one more after that, or one more after that, or .... There's always a way to cheat *any* system you have in place, so unless you're willing to take draconian measures that will make a lot of legitmate uses illegal, you'll just have to accept it.

CORBA-like technologies are a case in point. CORBA, XML-RPC/SOAP, and even plane old named pipes are protocols that work by communicating results back and forth. Essentially, communication can be used to simulate any linkage. If you make communication equal to linkage, you open up a whole rat's nest of legal and enforcement implications.

RMS must be pulling out his hair over the issue, since he doesn't want to become the very thing he's fighting against.

Ultimately, as RMS admits, the issue is not legal, it's moral. You can't legislate morality, but you can make laws that encourage you to do the right thing. The beauty of the GPL is that it "legislates" a set of rules that make it "okay to share without feeling taken advantage of". It's a delicate balance that's incredibly difficult to keep in the long term unless people really want it.

Well, that's the standard closed source is a PITA problem. That part I understand quite well. Your problem, however, caused me to think about the article in reverse: what if commercial code relied more heavily on CORBA and the like? Wouldn't that make it one heckuva lot easier to sneak in some kinds of fixes and functionality? Not compared to having the source, of course, but better than the common case.
Just a wonderin'.

GPL and government-sponsored work

CNET.com - News - Investor - News - Story -- Allchin's controversy. Jim Allchin was probably the first influential software company official that openly linked GPL license with Anarchism and pointed out that like some other equality-based social schemes GPL might negatively influence innovation:

 Jim Allchin, says that freely distributed software code such as rival Linux could stifle innovation and that legislators need to understand the threat.

The result will be the demise of both intellectual property rights and the incentive to spend on research and development, he said yesterday, after the company previewed its latest version of Windows. Microsoft has told U.S. lawmakers of its concern while discussing protection of intellectual property rights.

...''Open source is an intellectual-property destroyer,'' Allchin said. ''I can't imagine something that could be worse than this for the software business and the intellectual-property business.''

Microsoft clarifies exec's open-source concerns

Allchin's concerns, eWEEK was told, stem from GPL paragraph (2B), which states, "You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

In other words, Microsoft representatives warned, "anyone who adds or innovates under the GPL agrees to make the resulting code, in its entirety, available for all to use ... [which] might constrain innovating stemming from taxpayer-funded software development."

Allchin, according to the company, does not have the same concerns about all open-source approaches in general. "There are other kinds of open-source licenses that encourage third-party development but without the same constraints, including the BSD license," Microsoft representatives said.

See also:

A Response to Jim Allchin's Comments by Tim O'Reilly. Rather intresting althouth he avoided the question "Is Anarchism un-American ?"; also he failed to distinguish between BSD License and GPL where BSD license IMHO more represents an academic part of the movement and GPL -- it's anarchist part). It's somewhat apologetic: O'Reilly is the major beneficially of the open source movement -- the quality of O'Reilly book about important open source products are vastly superior to the quality of the documentation written by volunteers but he ignored this fact and praise CatB that claims quite an opposite ;-). Contains a couple important observations (in one linking FSF to a cult :-) :

To be sure, Richard Stallman is evangelical in attempting to convince others that free software is a moral issue, and not just a pragmatic choice, but he is hardly alone in asserting a forceful moral position about issues for which there is no wide cultural consensus.

...The greater part of Microsoft's revenue in the late 90's came from the incorporation of internet functionality (mostly developed on an open source model) into its products. The upgrade stream came not just from innovation inside Microsoft, but in large part from innovation by the very community Allchin now seems to portray as the "worst thing that could happen to the software business."

Slashdot comments:

Re:Ah... so they're Pro-BSD (Score:1) by davidmb on Wednesday February 21, @06:49AM EST (#361) (User #213267 Info)

Regarding your second point, has anyone actually tested this out in court yet? It'd be interesting to know whether the GPL is a powerful legal lever or not. At the moment it seems like companies are more worried about damage to their image if they're seen to pilfer GPL code.

Python License Change

Guido van Rossum Responds to Python Licensing Issues  Open Source,Community,Software Sep 7th, 2000

In any case we don't want to use *just* the GPL for Python, because there are many proprietary software developers in the Python community who don't want to work with the GPL. Python has always had a BSD'ish license which was perfect for them. I see no reason to suddenly confront everyone in the Python world with the GPL.

For more information on the CRNI license, see here.

Linux Today - Richard Stallman Response to Dave Winer on Python Licensing

By Richard Stallman

David Winer is passionate in his disgust for me and my work; so much so that he does not limit himself to rebuking me for the things I have done. He feels entitled to imagine other things he would disapprove of, and attack me for them too.

In his column on September 8, he notes that he tells Guido van Rossum, "Don't give in to Stallman." From the context, it is clear Winer imagines that I am asking--or rather, demanding--that Python be released under the GPL and only the GPL.

As Guido can confirm, that is not the case. I have been pushing for the license of Python to be compatible with the GPL, so that it can be linked with GPL-covered programs as well as with other programs.

If the Python license is incompatible with the most popular free software license, that creates a major practical problem for the community. Given the importance of this problem, all my efforts in talking with the Python developers have been aimed at solving it, at trying to propose some solution that they will accept. This isn't easy, and I am not going to make it harder by asking them for something else in addition.

Winer's description of my goals is equally inaccurate. I am not opposed to commercial software. When companies contribute to the Free World by developing free commercial software, I say more power to them. I started a free software business myself in 1985, selling tapes of GNU Emacs; I dropped it when the FSF took over selling these tapes.

What I disapprove of is non-free software--never mind whether it is commercial or noncommercial. But even I sometimes choose a license that permits a library to be used in non-free software (see http://www.gnu.org/philosophy/why-not-lgpl.html).

The idea of the GNU GPL is to establish certain liberties for everyone, and defend them as much as possible from anything that might take them away. We believe in two-way cooperation, and we invite everyone to join, but we do not invite people to exploit us by putting our code into non-free programs.

One thing in Winer's article is accurate: my philosophy is NOT open source. I have been standing firm for the philosophy of the Free Software Movement since 1984. The Open Source Movement, founded in 1998, has a less firm stand. I am not going to join them; I am going to keep standing firm.

But although I do not agree with or speak for the Open Source Movement, I have seen what they say, and I know that Winer misrepresents them when he invokes their name for his opposition to copyleft.

I believe that software users are entitled to certain liberties, to share and change software. I wrote the GNU GPL to defend those liberties. But there are some kinds of liberty I do not agree with. Taking liberty with the truth is not a good thing.

Copyright 2000 Richard Stallman
Verbatim copying and distribution of this entire article are permitted in any medium, provided the copyright notice and this notice are preserved.

KDE Jihad

Stallman on Qt, the GPL, KDE, and GNOME

Making Qt available under the GPL makes it legal to take an existing GPL-covered program and adapt it to work with Qt. It also provides a way to resolve one of the free software community's long-standing problems, the problem of the ethical and legal status of KDE.

The design of KDE was based on a fundamental mistake: use of the Qt library, which at the time was non-free software. Despite the good intentions of the KDE developers, and despite the fact that the code of KDE itself was free software, KDE could never be part of a completely free operating system as long as it needed a non-free program to function.

But the KDE developers were not concerned about this problem, and recruited helpers who shared their views. As KDE/Qt developed, it posed a growing risk to the progress of free software. The risk was that KDE/Qt would become so established that most of the user community would treat it as indispensable--disregarding the fact that this meant using non-free software. Widespread acceptance of one crucial non-free program would encourage a general willingness to accept non-free software, meaning fewer people who might have the will to help replace KDE/Qt with something entirely free. And that job would require catching up with a large head start, just as we did in replacing Unix with GNU and GNU/Linux. To be back in that situation was a discouraging prospect.

But we were not there yet, and it was clear we should take preventive measures before we got there. In 1997 we launched two parallel projects designed to avoid that situation: the GNU desktop (GNOME), which aimed to provide a completely different alternative graphical interface, and Harmony, a free replacement for Qt. The reason for starting two projects in parallel was redundancy: any project may fail, and the risk was big enough to warrant two simultaneous approaches to preventing it.

GNOME caught on, and by 1999 it was a clear success. Then Qt was rereleased under a new license, the QPL, which made it free software. This solved the principal problem of KDE/Qt, the fact that part of it was non-free. But a secondary problem remained: the problem of license inconsistency.

The QPL is incompatible with the GPL, which means that Qt and GPL-covered modules cannot legally be combined, unless the developers of one module or the other grant an exception to permit it. The KDE developers certainly intend their GPL-covered code to be used with Qt, and one can argue that by telling you to link it with Qt they have implicitly given you permission to do that. But they did not formally state this exception in the KDE source code itself, and it is not comfortable to rely on implicit permission for something like this.

In addition, in some cases code was copied into KDE from existing GPL-covered modules whose copyright holders had not given special permission. (Only the copyright holders can give extra permission to do things that the GPL does not permit.) That is a real violation of the GPL. Because of this, and the overall lack of an explicit exception, the legal status of KDE remained clouded.

Qt 2.2 provides the basis to solve this secondary problem, but a certain amount of cleaning up will be needed to fix it thoroughly. Misusing a GPL-covered program permanently forfeits the right to distribute the code at all. Such situations have occurred in KDE, and now they ought to be cleaned up.

It would be a good idea for all of the authors of code in KDE (more precisely, all of the copyright holders) to make a clear statement that linking their code with Qt in the past was done with their permission, thus assuring existing KDE users that they have not forfeited distribution rights to that KDE code.

Also, where code was copied from other GPL-covered programs, their copyright holders need to be asked for forgiveness. To lead the way, the FSF hereby grants this forgiveness for all code that is copyright FSF. More precisely, those who as of September 4, 2000 have used some FSF code in violation of the GPL solely by linking it with Qt, and thus have forfeited the right to use that code under the GPL, will once again have full GPL permissions to use that code upon switching to a GPL-covered version of Qt. I appeal to all the other copyright holders of affected code to grant similar forgiveness and thus help resolve the situation quickly.

Soon KDE should be properly based on a GPL-covered version of Qt, and the Free Software Movement will be able to think of KDE/Qt as a contribution and not as a problem. Meanwhile, I think there is no reason to work on another package which is equivalent to Qt. If you want something like Qt, use Qt.

But GNOME is here, and is not going to disappear. GNOME and KDE will remain two rival desktops, unless some day they can be merged in some way. Until then, the GNU Project is going to support its own team vigorously. Go get 'em, gnomes!

GPL as an incompatible license

Royalty-Free CIFS Technical Reference License Agreement -- funny this is the first license that explicitly mentions GPL as IPR impairing license and discriminates against it in a way similar to GPL's discrimination of BSD works (you cannot use GPL code in BSD project without changing the license to GPL).  It looks that GPL was caught in the same way. Paragraph 1.4 is a Microsoft variant of "viral property":-). It might be also interesting to read FSF reaction  They do not feel the tragicomic elements in this shafu, if they discriminate against others, other has full rights discriminate against them.

... ... ...

1.4 "IPR Impairing License" shall mean the GNU General Public License, the GNU Lesser/Library General Public License, and any license that requires in any instance that other software distributed with software subject to such license (a) be disclosed and distributed in source code form; (b) be licensed for purposes of making derivative works; or (c) be redistributable at no charge.

1.5 "Non-Microsoft Platforms" shall mean any platform other than any version of a Microsoft client, embedded and server operating system product, including without limitation, Windows XP, Windows CE, Windows 2000 and Windows 95 operating system products, or successors of those products.

1.6 "Necessary Claims" shall mean those claims of a patent or patent application, including without limitation, United States Patents Nos. 5,265,261 and 5,437,013, which (a) are owned, controlled or sublicenseable by Microsoft without payment of a fee to an unaffiliated third party; and (b) are necessarily infringed by implementing the CIFS communication protocol as set forth in the Technical Reference, wherein a claim is necessarily infringed only when there are no technically reasonable alternatives to such infringement.

1.7 "Technical Reference" shall mean the Microsoft copyright document titled Common Internet File System (CIFS) File Access Protocol version 1.0 found at MSDN Downloads.

1.8 "Term" shall have the meaning assigned to it in Section 6.1.

2. Enhancements and Updates

2.1 Enhancements. Any Microsoft file system protocol enhancements beyond the Technical Reference are not licensed.

2.2 Updates. Updates to the Technical Reference are not licensed. In the event Microsoft elects to provide updates of the Technical Reference to Company, such updates will only be licensed by Microsoft under a separate written agreement or a written amendment to this Agreement.

LWN.net weekly edition

Meanwhile, "royalty-free" (RF) licenses are generally considered to be good for free software. But what is one to make of Microsoft's "Royalty-Free CIFS Technical Reference License Agreement," which prohibits the distribution of a CIFS implementation under an "IPR impairing" license - specifically the GPL? It's only "royalty-free" if Microsoft likes your license. These terms appear to be an effort to undermine Samba, which is licensed under the GPL. Whether this attempt will see any success is, of course, another question: the Samba developers have not signed this agreement. It does hint, however, at the possibility of real attacks against Samba - using patents, perhaps - in the future.

Microsoft's language also highlights a common misconception about the GPL that Microsoft, seemingly, wants to encourage. One often sees claims that use of GPL-licensed software can force the release of a company's proprietary source code. In fact, the GPL lacks any such power. A company which distributes software derived from GPL-licensed code is required to make source available and follow the other GPL terms. Should a company fail to comply with those terms, however, there is only one thing that happens: the company loses its right to use the original GPL-licensed code. From the GPL text:

You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License.

The loss of the right to use GPL-licensed code can be devastating to a business, but it is not the same as having that business's intellectual property pried away from it.

Open source subject to fiery debate Stallman's "demands for freedom" with microscope ;-)

The panel was stocked with an economist, a researcher, a professor, and a representative from Microsoft -- all invited to participate by hosts the American Enterprise Institute (AEI) and the Brookings Institution, two organizations that analyze the impact of government regulation on the economy.

But audience member Richard Stallman, president of the Free Software Foundation, nearly stole the panel's thunder as he grabbed a microphone during the question and answer period and attempted to commandeer the conference to address what he described as mischaracterizations the panel made about the free software movement. Stallman had not been invited as a panelist.

There are actually three software licensing models in use today, explained panelist Lawrence Lessig, a professor at Stanford University. There is proprietary software, which shields a program's source code from the licensee; open source software that lets the user view the source code and make changes to it; and general public license (GPL) software that adds a restriction to the open source license saying any modifications made to the source code must then also be made freely available. The GPL model was developed by Stallman.

While Lessig argued that each licensing model has validity, he said that some commercial software vendors take issue with GPL's condition that would force them to make their modifications to the code -- as well as the original software -- available for free, since that would jeopardize the companies' ability to sell software with their additions. For example, if a piece of software that emerged from government research was made available to the industry under a GPL license, many software vendors would not be able to base their own programs on it because that would expose their source code to the general public.

"When software is distributed under GPL, it's impossible for a private company to commercialize or incorporate any of that work" into their own products, said panelist Brad Smith, senior vice president and deputy general counsel with Microsoft, since the company would have to charge for its software while others would be allowed to distribute it for free. "Our point is if you're going to license software under GPL, it's important to appreciate the ramifications on the diversity of the software ecosystem."

Another panelist said that open source software such as the Apache Web server has found success because it contains enhancements and modifications from all sorts of different developers. "Even though it's not GPL, people don't want to take (Apache) private, they want to contribute back," said Jim Bessen, director of Research on Innovation, a nonprofit group that promotes research on technological innovation. "There are a lot of economic reasons not to take it private," such as reaping the benefits of others' input, he said.

In some countries, governments are jumping into the debate on the side of open source software, said panel moderator Bob Hahn, director of the AEI-Brookings Joint Center for Regulatory Studies. In Singapore, for example, the government is subsidizing open source software's production and use, he said. The U.S. government ought to pick the best product for the job, be it open source or proprietary, said David Evans, senior vice president with National Economic Research Associates, an economic consulting firm. There isn't a "market failure" in the software industry that the government needs to fix by supporting open source software, he said, and the top firms in the industry are changing all the time.

"The industry over (the past) 20 to 25 years doesn't seem to be screaming out for government meddling," Evans said. "Politicians just aren't very good at picking technology, markets are."

Using this market failure test to determine whether or not the government should commit to open source software is one of the topics that Free Software Foundation's Stallman took issue with. "These questions regarding market failure, I don't think it matters. Injustice, that's what matters, " Stallman told the panel and the audience. Debating over whether "the market is working or not misses the whole point of freedom," he said.

Stallman also disputed Bessen's earlier comments criticizing the press for characterizing free software advocates as free love idealists of the 1960s. Stallman said that, in fact, the groups have similarities. "We're demanding freedom," he said.

GPL and Fair use

Computer News Fair Use and the Fallacy of GNU -- an interesting stance on GPL and fair use doctrine.

[Bell, 1998] Bell, T. W. "Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine," 76 NC L. Rev., (1998), pp 557-619. URL: http://www.tomwbell.com/writings/FullFared.html

Scholars have explained fair use in at least three ways: (1) as a proxy for a copyright owner's implied consent;[112] (2) as part of a bargain between authors and the public, struck on their behalf first by courts and then by Congress;[113] and (3) as a response to a market failure in private attempts to protect authors' expressions from undue copying.[114] The first of these three explanations has fallen into [p. 581/p. 582] disfavor because it does not explain why fair use protects parody and other uses of copyrighted material that owners find disagreeable.[115] The second explanation receives due consideration below.[116] The present subsection addresses the third explanation of fair use and argues that, as a response to market failure, the fair use doctrine can and should give way in the face of the effective enforcement of authors' rights through automated rights management.

Lawmakers enacted the Copyright Act to cure an alleged case of market failure: creating a work can cost authors a good deal, whereas copying a work costs free riders very little.[117] Absent special protection from such copying, the argument goes, authors will underproduce and the public will suffer. Copyright, as Justice Holmes explained, therefore "restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit;"[118] namely, copying others' expressions at will. Perhaps [p. 582/p. 583] in the digital intermedia automated rights management will cure this market failure by protecting authors' works through technological and contractual means.[119] ARM's other curative effects interest us here, though.

Markets, like squeezed balloons, bulge outward where unconstrained. In its attempt to protect authors from the discouraging effects of unfettered copying, copyright law has thus created market failure elsewhere. The costs of avoiding infringement by obtaining permission to use a copyrighted work, and thus avoiding infringement claims, often exceed the benefits of the desired use. Such transaction costs threaten to prevent many socially beneficial uses of copyrighted works from taking place. The doctrine of fair use attempts to cure this particular market failure by excusing as non-infringing a limited (though poorly defined) class of uses of copyrighted works.[120] As Professor Gordon describes it, "courts and Congress have employed fair use to permit uncompensated transfers that are socially desirable but not capable of effectuation through the market."[121]

Understanding fair use as a response to market failure does much to explain the vagaries of its development in the case law.[122] More to the point, it lends support to the holding in American Geophysical. Consistent with the market failure theory of fair use, the court reasoned that "a particular unauthorized use should be considered 'more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered 'less fair' when there is a ready market or means to pay for the use."[123] In other words, the scope of the fair use defense rises and falls with the transaction costs of licensing access to copyrighted works.

GPL and Linux Kernel