[License-discuss] AGPL "loopholes" (was: [License-review] Approval: Server Side Public License, Version 1 (SSPL v1))

Bradley M. Kuhn bkuhn at ebb.org
Fri Nov 9 21:54:39 UTC 2018

Moving this to license-discuss as it's OT for the SS Public License

Kyle Mitchell wrote at 11:28 (PST) on Thursday:
> There are many loopholes in AGPLv3.  I've taken to calling
> two of them "API Loophole" and "Container Loophole".

Calling these "loopholes" is just rhetoric.  The issues you mention haven't
been tested in Court under derivative and combined works statues (if I'm
wrong and you have cases to cite, please cite).

It was never the intention of any copyleft license to go further than
copyright law would take it, and as such, if it turns out the things you
mention are determined by Courts to not be combined/derivative works, then
they weren't in copyleft's reach to begin with.

But your argument is your theories of what you *think* would succeed in
front of a judge in a copyright case as matters of law.  AFAICT, those
decisions are not yet made.

And, in my experience in courts regarding copyleft, judges really don't like
tricky technical means to "get around" making something a
combined/derivative work.  Engineers sometimes think they're cleverer than
judges, but they usually aren't.  Judges aren't easily fooled by "work
arounds" that seek to circumvent the law, and in my experience when they
encounter such "work arounds" of the law being attempted, the judges are
become more suspicious that something nefarious is going on.

Bradley M. Kuhn

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