GNU GPL and Open Source Definition

[RD]

I disagree with your conclusion that Article 5 of the OSD is in conflict
with (or contradicts) paragraph 8 of the GNU GPL. 

More important, I  do not believe there is an easy or simple answer to
your final question. Both of your questions point out a conundrum that
extends far beyond open source, and is a part of the transborder (or
borderless) nature of Cyberspace. 

Consider, for example, that fact that the United States is prosecuting a
Russian software company (ElcomSoft) for distributing software (this is
the Adobe reader issue) on the Internet (that was developed in Russia)
in violation of United States copyright law (the DMCA). If we expand the
real case to a hypothetical and ask: should ElcomSoft license, viewing
it for the hypo as an open source software license, incorporate a
limitation prohibiting distribution of its software in the United
States? How would you answer that question? 

Of course, even if you agree that incorporating the limitation is "best"
for the open source community, the question arises whether the license
would have protected ElcomSoft from criminal (or civil) prosecution? 

These are novel issues for the open source community, and I think we may
have to wait to see what answers will come from the courts or other
fora.  In the meantime, I read the GNU GPL and the OSD as taking a
well-intentioned cautious approach to this matter, and do not see them
as inconsistent.

Rod

Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
www.cyberspaces.org
rod at cyberspaces.org

My papers on the Social Science Research Network (SSRN) are available
through the 
following url: http://papers.ssrn.com/author=240132



> -----Original Message-----
> From: Arnout Engelen [mailto:arnouten at sci.kun.nl] 
> Sent: Sunday, May 05, 2002 6:41 AM
> To: license-discuss at opensource.org
> Subject: GNU GPL and Open Source Definition
> 
> 
> Hi,
> 
> Reading the 'rationale' for paragraph 5 of the OSD, it 
> appeared to me that it prohibits what the GPL does in 
> paragraph 8. I will quote for your convenience:
> 
> OSD paragraph 5:
> The license must not discriminate against any person or group 
> of persons.
> 
> Rationale (thus not officially part of the OSD):
> In order to get the maximum benefit from the process, the 
> maximum diversity of 
> persons and groups should be equally eligible to contribute 
> to open sources. 
> Therefore we forbid any open-source license from locking 
> anybody out of the 
> process.
> 
> Some countries, including the United States, have export 
> restrictions for 
> certain types of software. An OSD-conformant license may warn 
> licensees of 
> applicable restrictions and remind them that they are obliged 
> to obey the law; 
> however, it may not incorporate such restrictions itself.
> 
> GNU GPL paragraph 8:
> If the distribution and/or use of the Program is restricted 
> in certain countries either by patents or by copyrighted 
> interfaces, the original copyright holder who places the 
> Program under this License may add an explicit geographical 
> distribution limitation excluding those countries, so that 
> distribution is permitted only in or among countries not thus 
> excluded.  In such case, this License incorporates the 
> limitation as if written in the body of this License.
> 
> 
> Of course I know the GPL is 'approved open source', but could 
> someone explain why this is not a contradiction? 
> 
> As a 'side-track' interesting issue: what would be better 
> 'for the community'? A license that basically allows more 
> than the law, OSD-like, which may produce a dangerous 
> pit-hole for developers to fall in, or one that allows 
> law-enforced restrictions to be incorporated in the license, 
> like the GPL seems to do? What are the consequences of 
> allowing or prohibiting such restrictions to be incorporated 
> in a license?
> 
> -- 
> Arnout Engelen <arnouten at sci.kun.nl>
> 
>   "If it sounds good, it /is/ good."
>         -- Duke Ellington
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> 

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