[License-discuss] Red Hat compilation copyright & RHEL contract (was Re: License incompatibility)

[Al Foxone]

On Mon, Sep 2, 2013 at 5:46 PM, Bradley M. Kuhn <bkuhn at ebb.org> wrote:

> Al Foxone asked me on Friday at 13:58 (EDT) about:
>> http://www.redhat.com/f/pdf/corp/RH-3573_284204_TM_Gd.pdf
> ...
>> At the same time, the combined body of work that constitutes Red Hat®
>> Enterprise Linux® is a collective work which has been organized by Red
>> Hat, and Red Hat holds the copyright in that collective work. Red Hat
>> then permits others to copy, modify and redistribute the collective
>> work. To grant this permission Red Hat usually uses the GNU General
>> Public License (“GPL”) version 2 and Red Hat’s own End User License
>> Agreement."
>
> It's certainly possible to license all sorts of copyrights under GPL,
> since it's a copyright license.  Red Hat has chosen, IMO rather oddly,
> to claim strongly a compilation copyright on putting together RHEL and
> Red Hat licenses that copyright under terms of GPL.

Red Hat customers receive RHEL compilation as a whole in ready for use
binary form but Red Hat claims that it can not be redistributed in
that original form due to trademarks (without additional trademark
license, says Red Hat) and under pay-per-use-unit restrictive
contract. I would not call that GPL.

>
> It's certainly possible to do that.  It's admittedly a strange behavior,
> and I've been asking Red Hat Legal for many years now to explain better
> why they're doing this and what they believe it's accomplishing.  I've
> yet to receive a straight answer.  Can anyone from Red Hat on the list
> tell us if Red Hat Legal's answer remains: "No comment"?
>
>> I doubt that "Red Hat’s own End User License Agreement" is
>> 'compatible' (according to you) with the GPL'd components in that
>> combined work as whole. Anyway, that combined work as a whole must be
>> full of proclaimed 'incompatibly' licensed components (once again
>> according to you). How come that this is possible?
>
> However, don't conflate RHEL's compilation copyright issue with the RHEL
> customer contract.  They're mostly unrelated issues.  The RHEL customer
> contract has long been discussed, and it amounts to a "if you exercise
> your rights under GPL, your money is no good here" arrangement.

Money is no good?

(quoting Red Hat Enterprise Agreement with [snip] editing)

"Client agrees to pay Red Hat the applicable Fees for each Unit.
"Unit" is the measurement of Software or [snip] usage defined in the
applicable Order Form.

...

5.1 Reporting. Client will notify Red Hat (or the Business Partner
from whom Client purchased Software or [snip]) promptly if the actual
number of Units of Software or [snip] utilized by Client exceeds the
number of Units for which Client has paid the applicable Fees. In its
notice, Client will include the number of additional Units and the
date(s) on which such Units were first utilized. Red Hat (or the
Business Partner) will invoice Client for the applicable Services for
such Units and Client will pay for such Services no later than thirty
(30) days from the date of the invoice.

5.2 Inspection. During the term of this Agreement and for one (1) year
thereafter, Red Hat or its designated agent may inspect Client's
facilities and records to verify Client's compliance with this
Agreement. Any such inspection will take place only during Client's
normal business hours and upon no less than ten (10) days prior
written notice from Red Hat. Red Hat will give Client written notice
of any noncompliance, including the number of underreported Units of
Software or [snip], and Client will have fifteen (15) days from the
date of this notice to make payment to Red Hat for the applicable
Services provided with respect to the underreported Units. If Client
underreports the number of Units utilized by more than five percent
(5%) of the number of Units for which Client paid, Client will also
pay Red Hat for the cost of such inspection."

> That's not an arrangement that I think is reasonable (and it's why I
> wouldn't be a RHEL customer myself), but there's nothing in GPL (that
> I'm aware of) that requires that one keep someone as a customer.
> Imagine if GPL *did* forbid firing your customers!  It'd really
> hurt independent contractors who offer Free Software support.
>
>
> Also, I encourage discerning carefully between mundane GPL violations
> and Free Software license incompatibility.  While both could be
> classified as "GPL violations", Free Software license incompatibility
> usually refers to a situation where Free Software authors seek to DTRT
> but are confused when navigating contradictions between two Free
> Software licenses for works they seek to combine.  At most, you could
> say "Free Software license incompatibility is a specialized case of a
> potential copyleft violation".  However, that's a technically accurate
> but misleading characterization, since the motives are usually
> non-commercial, coupled with a desire to DTRT for the community.

My understanding is that when the GPL licensee distributes copies of
derivative works prepared under the GPL permission, the GPL insists on
licensing the copyright in a derivative work under the GPL and only
the GPL. Since creation of derivative work (and even distribution of
adaptations under 17 U.S.C. 117) requires permission I can understand
that demand. This is basically consideration in exchange for copyright
permissions. For anything else the GPL is as relevant as in the case
of plain redistribution of copies under statutory permission 17 U.S.C.
109 without any contractual requirements. IOW "incompatibility" does
not exist. Please prove me wrong. :-)