Dynamic linking, was: Re: Dispelling BSD License Misconceptions

[Matthew Flaschen]

Fabian Bastin wrote:

>> No, as long as the license didn't discriminate.  However, copyright
>> holders might be able/have to discriminate in enforcement.
>>
>>   
> You are right. But it would still be a bad situtation in my eyes.

Definitely.

> 
>>> We can also consider a different situation. Often, GPLd library are
>>> created as replacements to non-GPLd libraries (to my best knowledge, it
>>> is for instance the case of TLS, whose goal is to replace SSL)
>>>     
>>
>> These are protocols, not programs.  Free and unfree software exists for
>> both.
>>
>>   
> Ok. Badly expressed. The point that I would raise is just that GPL
> library, and more specific GNU codes, are sometimes produced juste to
> replaced preexisting things. TLS and SSL are protocols, indeed, but in
> practice, GNU TLS can be seen as an attempt to OpenSSL for instance. The
> example is probably not the best. I have to think a bit more in order to
> produce a better one.

Yes, this is obviously true.  After all, GNU is meant to be a free,
compatible implementation of UNIX.  However, the GNU project focuses on
replacing only code that is unfree. That's why they kept X Windows, Tex,
etc., even though these weren't under the GPL.  See
http://www.gnu.org/licenses/license-list.html#SoftwareLicenses for a
list of licenses the FSF considers free.

>> I think that if the code wasn't written specifically for GPL code, it
>> probably isn't a derivative work
>>
>>   
> So the question is than how to determine the initial opinion of the
> first author? And what about the co-authors? The question of intention
> can be very tricky to determine.

Right.  I agree this whole thing isn't simple.

>>> I become more and more uncomfortable with the "all-GPL" (GNU project)
>>> vision behind this licence
>>>     
>>
>> The GNU Project is not all-GPL in any sense.  The GNU project itself
>> uses other licenses for its code, including LGPL and MIT.  They have
>> also "adopted" external code under other licenses, such as X11.  Their
>> criterion is simply whether they believe the license is free; in
>> practice these licenses overlap almost completely with OSI-approved
>> licenses
>>
>>   
> Well, the GPL licence is the licence promoted and recommanded by the FSF
> (http://www.gnu.org/licenses/), and the other licences are sometimes
> used for convenience, but not recommanded for the GNU project.

That's true.  GPL is recommended simply because it's free, strong
copyleft, and already widespread.

 Stallman
> position about LGPL for istance is quite clear, since he explicitely
> recommands to avoid LGPL when possible in order to force people to
> switch to GPL.

Yes.  The FSF's position is code should remain free for all end-users,
and GPL is the best way to accomplish this; personally, I also support
the GPL for this reason.

> If you take the whole licences, you could observe the word "derivative"
> in GPL v2 in Point 0, which defines the licence extent.  GPL v3 differs
> by speaking only about the whole work, and in Point 0, the "covered
> work". The definitions have to be found in the rationale.

This is incorrect.  The phrase "whole work" is not used, and "covered
work" is defined in Section 0.

>> I'm really losing your point here, but GPL 3 is specifically written to
>> minimize such local variations in interpretations.  That's why it uses
>> custom terminology like "propagation" and "conveying"; the idea is that
>> these words don't have existing meaning in any legal systems.
>>
>>   
> Sorry that my point is not clear. The lack of existing meaning could
> imply that the licence will be subjet to a lot of interpretations if
> contested, and the interpretation could be dependent on the location.

The interpretation of terms of art like "derivative work" are certainly
dependent on location.  Part of GPL 3 is to construct new, clear meaning
from words with no existing legal meaning.  I think this will result in
less location-specific interpretation, since courts will hopefully look
more to the license itself.  However, IANAL and this could be the wrong
approach.

> The fact is that until now, disputes (with one or two exception) have
> been mainly resolved without trials. What I want to say is that trials
> could so much money in US that it is really the best way to proceed, and
> I think that Moglen have taken this fact into account. The European
> situation is different, with for instance the Munich trial, which has
> been well publicized because it has recognized the validity of the GPL.

Right, but there haven't been a flurry of GPL v2 trials anywhere; I
don't think that will change with GPL v3.


> Local terms are not too difficult to interpret if the law system is
> precised, so I think that it is an acceptable solution

What?  If they wanted to use local terms, they'd have to create a
hundred versions of the license; this is very undesirable.
> 
> I find all of this far from be simple...

I agree.

Matthew Flaschen

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