[License-discuss] combining GPL and proprietary software - was: CC withdrawl of CC0 from OSI process

[Bruce Perens]

On 03/01/2012 11:57 PM, Chris Travers wrote:
> Ok, so part of avoiding lawsuits is to avoid areas where folks think 
> they can sue about.
Not quite, because neophytes think they can sue about anything. 
Sometimes lawyers cooperate in this, because they think the victim will 
settle or otherwise change their behavior without ever getting near a 
court. So, it has to be an area where there is not such a bright line 
that litigation would immediately fail and that any competent attorney 
would know that.

As an example, the abortive attempt of Astrolabe to sue Olsen over the 
timezone database had the obvious flaw that it attempted to assert 
copyright law over facts like legislative changes to daylight savings 
time. When the defendant showed them a fully-written pleading for a Rule 
11 sanction, Astrolabe withdrew. No gray area there.

> So the FSF's statements are important here
Only because they have good counsel and have successfully enforced the 
license many times.

In contrast, Linus Torvalds' various confusing and conflicting mailing 
list statements about what is OK and not OK under the GPL were not 
something you could rely on. I think he now knows not to make them.
> I can tell you that if I ask two different lawyers with different 
> ideological views regarding free software what the implications of 
> mixing BSD and GPL3 files in the same project, I get two different 
> answers..... 
The fact that there are courts is evidence that lawyers frequently 
disagree. However, you should resist the temptation to waste your time 
on the areas of contention. They are known and can be engineered around.
> There are cases where no amount of isolation will protect you from 
> having created a derivative work. For example, suppose I write a 
> graphics driver which recognizes Doom's OpenGL calls, and transforms 
> them in some interesting way.
We have cases about just this that you can read. They are Goloob v. 
Nintendo, and Micro Star v. Formgen. But you are really far now from 
combining GPL and proprietary software, which doesn't present the 
problems of transforming visual output which is itself a creative work.
> What I am saying is there's a difference between you saying "Linking 
> is legally dubipus under the GPL" and me saying "As far as LedgerSMB 
> is concerned, we interpret the GPL not to restrict linking and mere 
> use of API's, but believe that inheritance may be run into trouble." 
> At least given that I am more or less the de facto leader of the 
> LedgerSMB project. The first is an attempt to describe the license in 
> the abstract. The second is a representation on behalf of a project as 
> to what license rights we believe we are granting. As I understand it, 
> these are very different statements

Yes, but if Dieter wished to enforce his license in a way contrary to 
your sentiment, your statements would have little meaning because his 
contribution is independent of you and your policies and precedes your 
involvement. Even in the case of other developers who are concurrent 
with you, they are either independent copyright holders or share-holders 
in a collective work, and haven't ceded you the right to represent their 
legal interest. If they gave me, as an expert witness, the task of 
showing your statements to be naive and unreliable, it wouldn't be much 
of a problem.

     Thanks

     Bruce
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