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From: James Bottomley <James.Bottom...@SteelEye.com>
Newsgroups: linux.kernel
Subject: GPLv3 Position Statement
Date: Fri, 22 Sep 2006 19:30:13 +0200
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Although this white paper was discussed amongst the full group of kernel
developers who participated in the informal poll, as you can expect from
Linux Kernel Developers, there was a wide crossection of opinion.  This
document is really only for discussion, and represents only the views of
the people listed as authors (not the full voting pool).

James

----------

The Dangers and Problems with GPLv3


James E.J. Bottomley             Mauro Carvalho Chehab
Thomas Gleixner            Christoph Hellwig           Dave Jones
Greg Kroah-Hartman              Tony Luck           Andrew Morton
Trond Myklebust             David Woodhouse

                               15 September 2006
                                     Abstract

           This document is a position statement on the GNU General Public
       License version 3 (in its current Draft 2 form) and its surrounding
       process issued by some of the Maintainers of the Linux Kernel
       speaking purely in their role as kernel maintainers. In no regard
       should any opinion expressed herein be construed to represent the
       views of any entities employing or being associated with any of the
       authors.

1 Linux and GPLv2

Over the past decade, the Linux Operating System has shown itself to be far
and away the most successful Open Source operating system in history.
However, it certainly wasn't the first such open source operating system
and neither is it currently the only such operating system. We believe that
the pre-eminent success of Linux owes a great part to the dynamism and
diversity of its community of contributors, and that one of the catalysts
for creating and maintaining this community is the development contract as
expressed by GPLv2.

    Since GPLv2 has served us so well for so long, and since it is the
foundation of our developer contract which has helped propel Linux to the
successes it enjoys today, we are extremely reluctant to contemplate
tampering with that licence except as bug fixes to correct exposed problems
or updates counter imminent dangers. So far, in the whole history of GPLv2,
including notable successes both injunctively and at trial, we have not
found any bugs significant enough to warrant such corrections.


2 Linux, the Kernel and the Open Source Universe

Linux Distributions, as the Free Software Foundation (FSF) has often
observed, don't only contain the kernel; they are composed of a
distribution of disparate open source components of which the kernel is
only a part (albeit a significant and indispensable part) which
collectively make up a useful and usable system. Thus, Linux as installed
by the end user, is critically dependent on entities, known as
distributions, who collect all of the necessary components together and
deliver them in a tested, stable form. The vast proliferation of Open
Source Licences complicates the job of these distributions and forces them
to spend time checking and assessing the ramifications of combining
software packages distributed under different (and often mutually
incompatible) licences--indeed, sometimes licensing consideration will be
sufficient to exclude a potential package from a distribution altogether.

    In deference to the critical role of distributions, we regard reducing
the Open Source licensing profusion as a primary objective. GPLv2 has
played an important role in moving towards this objective by becoming the
dominant Licence in the space today, making it possible to put together a
Linux Distribution from entirely GPLv2 components and thus simplify the
life of a distributor. Therefore, we believe that any update to GPLv2 must
be so compelling as to cause all projects currently licensed under it to
switch as expediently as possible and thus not fragment the currently
unified GPLv2 licensed ecosystem.


3 Linux and Freedom

Another of the planks of Linux's success rests squarely on the breadth and
diversity of its community of contributors and users, without whom we
wouldn't have the steady stream of innovation which drives our movement
forward. However, an essential element of this is the fact that individuals
with disparate (and sometimes even competing) objectives can still march
together a considerable distance to their mutual benefit. This synergy of
effort, while not compromising dissimilar aims, is one of the reasons Linux
manages to harness the efforts of not only motivated developers but also
corporate and commercial interests. This in turn is brought about by a
peculiar freedom enshrined in the developer contract as represented by
GPLv2, namely the freedom from binding the end use of the project. Without
this freedom, it would be much more difficult to satisfy the objectives of
the contributors, since those objectives often have expression in terms of
the end use to which they wish to put the particular project. Therefore, in
order to maintain the essential development synergy and consequent
innovation stream it provides to Linux, we could not countenance any change
to the GPL which would jeopardise this fundamental freedom.


4 Pivotal Role of the Free Software Foundation

We have acknowledged before, projects controlled by the FSF (especially
gcc, binutils and glibc) are essential components of every shipping Linux
distribution. However, we also take note of the fact that the FSF operates
very differently from Linux in that it requires assignment of copyright
from each and every one of the thousands of contributors to its code
base. These contributions have been given to the FSF not as a tribute to do
with as it will but under a solemn trust, as stated in article 9 of GPLv2,
only to licence the code under versions of the GPL that "... will be
similar in spirit to the present version". We, like all the individual
contributors to GNU projects, have taken that trust at face value and
accorded the FSF a special role in the Open Source Universe because of
it. It goes without saying that any updates to GPLv2 must be completely in
accord with the execution of that trust.


5 GPLv3 and the Process to Date

The current version (Discussion Draft 2) of GPLv3 on first reading fails
the necessity test of section 1 on the grounds that there's no substantial
and identified problem with GPLv2 that it is trying to solve.

    However, a deeper reading reveals several other problems with the
current FSF draft:

5.1     DRM Clauses

Also referred to as the "Tivoisation" clauses.

    While we find the use of DRM by media companies in their attempts to
reach into user owned devices to control content deeply disturbing, our
belief in the essential freedoms of section 3 forbids us from ever
accepting any licence which contains end use restrictions. The existence of
DRM abuse is no excuse for curtailing freedoms.

    Further, the FSF's attempts at drafting and re-drafting these
provisions have shown them to be a nasty minefield which keeps ensnaring
innocent and beneficial uses of encryption and DRM technologies so, on such
demonstrated pragmatic ground, these clauses are likewise dangerous and
difficult to get right and should have no place in a well drafted update to
GPLv2.

    Finally, we recognise that defining what constitutes DRM abuse is
essentially political in nature and as such, while we may argue forcefully
for our political opinions, we may not suborn or coerce others to go along
with them. Therefore, attempting to write these type of restrictions into
GPLv3 and then relicense all FSF code under it is tantamount to co-opting
the work of all prior contributions into the service of the FSF's political
ends, and thus represents a fundamental violation of the trust outlined in
section 4.

5.2     Additional Restrictions Clause

As we stated in section 2 one of the serious issues in Open Source is too
many licences. The additional restrictions section in the current draft
makes GPLv3 a pick and choose soup of possible restrictions which is going
to be a nightmare for our distributions to sort out legally and get
right. Thus, it represents a significant and unacceptable retrograde step
over GPLv2 and its no additional restrictions clause.

     Further, the additional restrictions create the possibility of
fragmentation of the licensing universes among particular chosen
restrictions, which then become difficult to combine and distribute
(because of the need for keeping track of the separate restrictions). Thus,
we think this potential for fragmentation will completely eliminate the
needed compulsion to move quickly to a new licence as outlined in section 2

5.3     Patents Provisions

As drafted, this currently looks like it would potentially jeopardise the
entire patent portfolio of a company simply by the act of placing a GPLv3
licensed programme on their website. Since the Linux software ecosystem
relies on these type of contributions from companies who have lawyers who
will take the broadest possible interpretation when assessing liability, we
find this clause unacceptable because of the chilling effect it will have
on the necessary corporate input to our innovation stream.

     Further, some companies who also act as current distributors of Linux
have significant patent portfolios; thus this clause represents another
barrier to their distributing Linux and as such is unacceptable under
section 2 because of the critical reliance our ecosystem has on these
distributions.


6 Conclusions

The three key objections noted in section 5 are individually and
collectively sufficient reason for us to reject the current licence
proposal. However, we also note that the current draft with each of the
unacceptable provisions stripped out completely represents at best marginal
value over the tested and proven GPLv2. Therefore, as far as we are
concerned (and insofar as we control subsystems of the kernel) we cannot
foresee any drafts of GPLv3 coming out of the current drafting process that
would prove acceptable to us as a licence to move the current Linux Kernel
to.

    Further, since the FSF is proposing to shift all of its projects to
GPLv3 and apply pressure to every other GPL licensed project to move, we
foresee the release of GPLv3 portends the Balkanisation of the entire Open
Source Universe upon which we rely. This Balkanisation, which will be
manifested by distributions being forced to fork various packages in order
to get consistent licences, has the potential to inflict massive collateral
damage upon our entire ecosystem and jeopardise the very utility and
survival of Open Source. Since we can see nothing of sufficient value in
the current drafts of the GPLv3 to justify this terrible cost, we can only
assume the FSF is unaware of the current potential for disaster of the
course on which is has embarked. Therefore, we implore the FSF to
re-examine the consequences of its actions and to abandon the current GPLv3
process before it becomes too late.

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From: Adrian Bunk <b...@stusta.de>
Newsgroups: linux.kernel
Subject: The GPL: No shelter for the Linux kernel?
Date: Fri, 22 Sep 2006 20:00:09 +0200
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On Fri, Sep 22, 2006 at 11:15:50AM -0500, James Bottomley wrote:

> Although this white paper was discussed amongst the full group of kernel
> developers who participated in the informal poll, as you can expect from
> Linux Kernel Developers, there was a wide crossection of opinion.  This
> document is really only for discussion, and represents only the views of
> the people listed as authors (not the full voting pool).
> 
> James
> 
> ----------
> 
> The Dangers and Problems with GPLv3
> 
> 
> James E.J. Bottomley             Mauro Carvalho Chehab
> Thomas Gleixner            Christoph Hellwig           Dave Jones
> Greg Kroah-Hartman              Tony Luck           Andrew Morton
> Trond Myklebust             David Woodhouse
>...
> 6 Conclusions
> 
>... Therefore, as far as we are
> concerned (and insofar as we control subsystems of the kernel) we cannot
> foresee any drafts of GPLv3 coming out of the current drafting process that
> would prove acceptable to us as a licence to move the current Linux Kernel
> to.
>...


Some people might wonder why kernel developers have any business
discussing the GPLv3 in their positions as kernel developers and why 
10 core kernel developers put their names on a document containing this
statement.


Isn't all this complete nonsense considering that the COPYING file in 
the kernel contains the following?

<--  snip  -->

 Also note that the only valid version of the GPL as far as the kernel
 is concerned is _this_ particular version of the license (ie v2, not
 v2.2 or v3.x or whatever), unless explicitly otherwise stated.

<--  snip  -->


Considering that the number of people that contributed to the Linux 
kernel during the last 15 years might be in the range 5.000-20.000, so 
asking all contributors to agree with a licence change from GPLv2 to 
GPLv3 (or any other license) and handling all the cases where 
contributors do not answer, are not reachable or disagree, and doing 
this in a way not creating legal issues in any jurisdiction is not a 
realistic option.


So aren't all discussions about "acceptable to us as a licence to move 
the current Linux Kernel to" silly since this is anyway not an option?


In the internal discussions there was one point that changes this 
pictures, and I would consider it highly immoral to keep it secret since 
it affects every single contributor to Linux.


Thinking about probably changing the license of the kernel makes sense 
if you believe the following "nuclear option" is a real option:

     1. It is a legally tenable and arguable position that the Linux
        kernel is a work of joint authorship whose legal citus is that
        of the USA.
     2. On this basis, a single co-author can cause the kernel to be
        relicensed.
     3. To be legally sound, such a co-author would have to be either a
        current major subsystem maintainer or a demonstrated contributor
        of a significant proportion of code of the kernel.


cu
Adrian

-- 

       "Is there not promise of rain?" Ling Tan asked suddenly out
        of the darkness. There had been need of rain for many days.
       "Only a promise," Lao Er said.
                                       Pearl S. Buck - Dragon Seed

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From: Greg KH <g...@kroah.com>
Newsgroups: linux.kernel
Subject: Re: The GPL: No shelter for the Linux kernel?
Date: Fri, 22 Sep 2006 20:10:10 +0200
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On Fri, Sep 22, 2006 at 07:49:53PM +0200, Adrian Bunk wrote:
> Isn't all this complete nonsense considering that the COPYING file in 
> the kernel contains the following?
> 
> <--  snip  -->

In a way, it is, but no one else is standing up in the free software
community becides Linus stating that they think the GPLv3 is bad.  So we
wanted to make our statement also known.

> In the internal discussions there was one point that changes this 
> pictures, and I would consider it highly immoral to keep it secret since 
> it affects every single contributor to Linux.
> 
> Thinking about probably changing the license of the kernel makes sense 
> if you believe the following "nuclear option" is a real option:
> 
>      1. It is a legally tenable and arguable position that the Linux
>         kernel is a work of joint authorship whose legal citus is that
>         of the USA.
>      2. On this basis, a single co-author can cause the kernel to be
>         relicensed.
>      3. To be legally sound, such a co-author would have to be either a
>         current major subsystem maintainer or a demonstrated contributor
>         of a significant proportion of code of the kernel.

Note that almost no lawyer that I have spoken to about this believes
this is an option.  However, one lawyer I have talked to does believe
this, luckily, that lawyer does not have a client who is a co-author in
the current Linux kernel :)

Anyway, this is arguing a legal point on lkml that even the lawyers
don't all agree apon.  I don't think it will get very far here either.

And don't let it detract from the main issue here, the GPLv3 as drafted
has some major issues that a number of us publicly object to, and feel
it will cause great harm if it becomes ratified as drafted.

thanks,

greg k-h
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From: "David Schwartz" <dav...@webmaster.com>
Newsgroups: linux.kernel
Subject: RE: The GPL: No shelter for the Linux kernel?
Date: Fri, 22 Sep 2006 22:10:10 +0200
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> Isn't all this complete nonsense considering that the COPYING file in
> the kernel contains the following?
>
> <--  snip  -->
>
>  Also note that the only valid version of the GPL as far as the kernel
>  is concerned is _this_ particular version of the license (ie v2, not
>  v2.2 or v3.x or whatever), unless explicitly otherwise stated.
>
> <--  snip  -->

First of all, I want to congratulate the Linux kernel developers on getting
it right. I never would have imagined a near-consensus could have emerged on
an even stronger position than my own.

Second, I should point out again that it is unfortunate that Linus did not
retain for himself the exclusive right to modify the Linux kernel license.
If some real problem ever does emerge in the GPLv2 as applies to Linux, it
will be extremely difficult to resolve.

This is probably going to be controversial, but Linus should seriously
consider adding a clause that those who contribute to the kernel from now on
consent to allow him to modify the license on their current contributions
and all past contributions, amending the Linux kernel license as
appropriate. This would at least begin to reduce this problem over the next
few years, leaving fewer and fewer people with claim to less and less code
who would have legal standing to object.

I agree there is no pressing need now and the Linus is unlikely to want to
or need to change the Linux kernel license any time soon, but there could be
an issue of some kind in the next few years, and it would be nice to start
on a solution.

DS


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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: RE: The GPL: No shelter for the Linux kernel?
Date: Fri, 22 Sep 2006 23:50:08 +0200
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[ Sorry if this shows up twice - the first post to linux-kernel was 
  apparently eaten by an over-eager spam filter with an agenda ;^]

On Fri, 22 Sep 2006, David Schwartz wrote:
> 
> This is probably going to be controversial, but Linus should seriously
> consider adding a clause that those who contribute to the kernel from now on
> consent to allow him to modify the license on their current contributions
> and all past contributions, amending the Linux kernel license as
> appropriate. This would at least begin to reduce this problem over the next
> few years, leaving fewer and fewer people with claim to less and less code
> who would have legal standing to object.

It's the last thing I'd ever want to do, for all the same reasons the 
kernel doesn't have the "or later versions" language wrt licenses.

I don't actually want people to need to trust anybody - and that very much 
includes me - implicitly.

I think people can generally trust me, but they can trust me exactly 
because they know they don't _have_ to.

The reason the poll and the whitepaper got started was that I've obviously 
not been all that happy with the GPLv3, and while I was pretty sure I was 
not alone in that opinion, I also realize that _everybody_ thinks that 
they are right, and that they are supported by all other right-thinking 
people. That's just how people work. We all think we're better than 
average.

So while I personally thought it was pretty clear that the GPLv2 was the 
better license for the kernel, I didn't want to just depend on my own 
personal opinion, but I wanted to feel that I had actually made my best to 
ask people.

Now, I could have done it all directly on the Linux-kernel mailing list, 
but let's face it, that would just have caused a long discussion and we'd 
not have really been any better off anyway. So instead, I did

	git log | grep -i signed-off-by: |
		cut -d: -f2- | sort | uniq -c | sort -nr | less -S

which anybody else can do on their copy of their git repository, and I 
just picked the first screenful of people (and Alan. And later we added 
three more people after somebody pointed out that some top people use 
multiple email addresses so my initial filtering hadn't counted for them 
properly).

[ I also double-checked by just checking the same numbers for authorship.
  I'll very openly admit to thinking that the maintainership that goes 
  with forwarding other peoples patches to me counts as almost as 
  important as the authorship itself, which is why I started out with the 
  signed-off-by count, but I also wanted to verify that the list of people 
  makes sense either way. It did. ]

In other words, maybe some people thought that the 29 names were somehow 
"selected" to get that particular answer.  Nope. The only selection was 
just an arbitrary cut-off-point (and the fact that I think two people 
didn't actually vote).

It wasn't meant to be really "definitive" - the poll was literally meant 
to get _some_ kind of view into how the top developers feel. I think the 
end result ended up being more definitive (just thanks to the very clear 
voting pattern) than we migth have expected.

So, to anybody not on the list - don't feel bad. This was about getting a 
good _feeling_ for how the top kernel maintainers - judging purely by an 
admittedly fairly arbitrary, but also very neutral, measure - felt about 
the license.

If the result had turned out very differently, I would probably have had 
to seriously re-think my stance on the license. I don't guarantee that I 
always change my mind, but I _can_ guarantee that if most of the people I 
trust tell me I'm a dick-head, I'll at least give it a passing thought.

[ Chorus: "You're a dick-head, Linus" ]

Anyway, nobody got voted off the island. This was a poll, to get a view 
into what people thought. Take it as such, and I think people will happily 
discuss issues.

Different people had different issues with the GPLv3, so the separate 
white-paper that was written was done by a different group, and is meant 
for a different reason - it talks about some of the issues those 
particular people wanted to point out.

My personal opinion is that a lot of the public discussion has been driven 
by people who are motivated by the politics of the discussion. So you have 
a lot of very vocal GPLv3 supporters. But I think that the people who 
actually end up doing a lot of the development are usually not as vocal, 
and haev actually not been heard very much at all.

In some sense, the poll is a way for the people who actually do a lot of 
the work to show that the FSF doesn't speak for necessarily even a very 
big portion of actual developers.

				Linus
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From: "David Schwartz" <dav...@webmaster.com>
Newsgroups: linux.kernel
Subject: RE: The GPL: No shelter for the Linux kernel?
Date: Sat, 23 Sep 2006 02:20:10 +0200
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> On Fri, 22 Sep 2006, David Schwartz wrote:

> > This is probably going to be controversial, but Linus should seriously
> > consider adding a clause that those who contribute to the
> > kernel from now on
> > consent to allow him to modify the license on their current
> > contributions
> > and all past contributions, amending the Linux kernel license as
> > appropriate. This would at least begin to reduce this problem
> > over the next
> > few years, leaving fewer and fewer people with claim to less
> > and less code
> > who would have legal standing to object.

> It's the last thing I'd ever want to do, for all the same reasons the
> kernel doesn't have the "or later versions" language wrt licenses.

> I don't actually want people to need to trust anybody - and that
> very much includes me - implicitly.

> I think people can generally trust me, but they can trust me exactly
> because they know they don't _have_ to.

Yeah, I see your point. However, what happens if three years from now, there
is some reason that the Linux kernel license really does need to be changed
to fix a serious problem? We're basically just screwed.

While it is true that people don't have to trust you now. They do have to
trust/hope that there won't come a future time when some license problem or
change in law significantly impairs their ability to use Linux.

I can think of procedural safeguards against the "Linus sells out" or "Linus
goes insane" potential problems, but I don't have a perfect solution. I'm
not even sure I have a good one, other than hoping there never is such a
problem and/or that there's some good way to deal with one should one arise.

Suppose hypothetically GPLv3 had been really, really good and there was a
general consensus that it would provide siginficant benefits if it could be
applied to Linux. It might be nice to be able to apply it.

DS


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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: RE: The GPL: No shelter for the Linux kernel?
Date: Sat, 23 Sep 2006 03:40:07 +0200
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On Fri, 22 Sep 2006, David Schwartz wrote:
> 
> I can think of procedural safeguards against the "Linus sells out" or "Linus
> goes insane" potential problems, but I don't have a perfect solution.

I don't think one exists.

The thing is, there's an entirely non-legal reason to never do something 
like that, namely just the psychology of the thing. 

Licenses are important for legal reasons (because problems can arise), but 
I would say that licenses are even *more* important as to how developers 
see them.

And I know that I'm personally very much turned off by any license that 
grants any particular party any special powers. It doesn't matter _how_ 
much I respect or trust the party in question, I wouldn't want to use that 
license.

So any license wording that said that I have any special powers would, I'm 
sure, alienate a large portion of the people who matter - the developers.

So the thing is, we're _much_ better off with nobody that firmly "in 
charge", over the alternative. Everybody feels safer. Nobody needs to 
worry about me or anybody else suddenly going crazy. 

Remember: the perfect is the enemy of the good. Asking for things that are 
perfect "in theory" usually just results in things that are horrible "in 
practice".

So not having anybody in charge could _in_theory_ cause problems. But 
_in_practice_ it's a hell of a lot better than somebody that people need 
to worry about.

				Linus
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From: Jan Engelhardt <jeng...@linux01.gwdg.de>
Newsgroups: linux.kernel
Subject: RE: The GPL: No shelter for the Linux kernel?
Date: Sat, 23 Sep 2006 10:20:07 +0200
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>
>Second, I should point out again that it is unfortunate that Linus did not
>retain for himself the exclusive right to modify the Linux kernel license.
>If some real problem ever does emerge in the GPLv2 as applies to Linux, it
>will be extremely difficult to resolve.
>
Easy to resolve, but difficult to implement:
remove the offending code (and rewrite).

>This is probably going to be controversial, but Linus should seriously
>consider adding a clause that those who contribute to the kernel from 
>now on consent to allow him to modify the license on their current 
>contributions and all past contributions, amending the Linux kernel 
>license as appropriate.

Now that you raise it: I think developers can already have done that 
if they wish - properly name author and conditions who may possibly 
change the license to what. Not that I have seen such code yet, but you 
never know.


Jan Engelhardt
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: RE: The GPL: No shelter for the Linux kernel?
Date: Sat, 23 Sep 2006 20:10:07 +0200
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On Sat, 23 Sep 2006, Jan Engelhardt wrote:
> 
> Now that you raise it: I think developers can already have done that 
> if they wish - properly name author and conditions who may possibly 
> change the license to what. Not that I have seen such code yet, but you 
> never know.

Side note: in "git", we kind of discussed this. And because the project 
was started when the whole GPL version discussion was already in bloom, 
the git project has a note at top of the COPYING file that says:

 Note that the only valid version of the GPL as far as this project
 is concerned is _this_ particular version of the license (ie v2, not
 v2.2 or v3.x or whatever), unless explicitly otherwise stated.

 HOWEVER, in order to allow a migration to GPLv3 if that seems like
 a good idea, I also ask that people involved with the project make
 their preferences known. In particular, if you trust me to make that
 decision, you might note so in your copyright message, ie something
 like

        This file is licensed under the GPL v2, or a later version
        at the discretion of Linus.

  might avoid issues. But we can also just decide to synchronize and
  contact all copyright holders on record if/when the occasion arises.

but note how it's still at the discretion of the actual developers (ie 
when you add a file, you can either not specify any extensions, in which 
case it's "GPLv2 only", or you can specify "GPLv2 or any later", or you 
can specify the "GPLv2 or any later at the discretion of Linus Torvalds".

The silly thing, of course, is that I'm not even the maintainer any more, 
and that Junio has done a kick-ass job of maintaining the thing, and is 
definitely the main author by now. So the whole "discretion of Linus" is a 
bit insane.

[ Although exactly _because_ Junio has been such a great maintainer, I'd 
  bow down to whatever decision he does, so my "discretion" would be to 
  let him decide, if he wanted to. At some point, you have to trust some 
  people, and just let go - if they do more than you do, they damn well 
  have more rights than you do too. "Maintainership has its privileges" ]

Anyway, I suspect the git language was a mistake. We should just have done 
what the kernel did - make the version number be clear and fixed, so that 
people don't even have to worry about exactly what conditions might cause 
a relicensing to happen.

				Linus
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From: Jan Engelhardt <jeng...@linux01.gwdg.de>
Newsgroups: linux.kernel
Subject: Re: The GPL: No shelter for the Linux kernel?
Date: Sun, 24 Sep 2006 10:00:15 +0200
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>> Side note: in "git", we kind of discussed this. And because the project 
>> was started when the whole GPL version discussion was already in bloom, 
>> the git project has a note at top of the COPYING file that says:
>> 
>>  Note that the only valid version of the GPL as far as this project
>>  is concerned is _this_ particular version of the license (ie v2, not
>>  v2.2 or v3.x or whatever), unless explicitly otherwise stated.
>> 
>>  HOWEVER, in order to allow a migration to GPLv3 if that seems like
>>  a good idea, I also ask that people involved with the project make
>>  their preferences known. In particular, if you trust me to make that
>>  decision, you might note so in your copyright message, ie something
>>  like
>> 
>>         This file is licensed under the GPL v2, or a later version
>>         at the discretion of Linus.
>> 
>
>  Actually, this didn't catch on very well anyway, I guess because most
>people just know it's GPLv2 and don't even bother to peek at COPYING, we
>are a bit sloppy about copyright notices and most of them don't mention
>licence at all (if there are any in the file at all), and adding
>explicit copyright notices to mails isn't too popular either.

Would every file that does not contain an explicit license (this 
excludes MODULE_LICENSE) falls under COPYING?

>	$ git grep 'discretion'
>	COPYING:        at the discretion of Linus.
>	git-annotate.perl:# at the discretion of Linus Torvalds.
>	git-relink.perl:# Later versions of the GPL at the discretion of Linus Torvalds
>	git-request-pull.sh:# at the discretion of Linus Torvalds.
>
>and I've found no patches with such special assignment.


Jan Engelhardt
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: The GPL: No shelter for the Linux kernel?
Date: Sun, 24 Sep 2006 18:40:10 +0200
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On Sun, 24 Sep 2006, Jan Engelhardt wrote:
> 
> Would every file that does not contain an explicit license (this 
> excludes MODULE_LICENSE) falls under COPYING?

Basically, yes. There's nothing to really say that you need to state your 
copyright license in every individual file, especially if those files are 
only ever distributed as a whole, together with other things (which souce 
code obviously is - you generally cannot even use an individual *.c file 
without the infrastructure it was written for).

If a file doesn't have a license mentioned, it doesn't mean that it's 
"free for all" or not copyrighted, it just means that you need to find out 
what the license is some other way (and if you can't find out, you 
shouldn't be copying that file ;)

Of course, for clarity, a lot of projects end up adding at least a minimal 
copyright header license everywhere, just to cover their *sses. It's not 
required, but maybe it avoids some confusion, especially if that file is 
later copied into some other project with other basic rules (but if you 
do that, you really _should_ have added the information at that point!).

Me personally, I prefer to not see huge boiler-plate licenses at the top 
of the file, so that every time I open a new file I just see the dang 
license that has nothing to do with why I'm opening it. So I tend to do a 
fairly minimal thing ("Copyright (C) Linus Torvalds 2006" or similar) but 
sometimes I drop even that (ie I personally feel silly adding a copyright 
message to a header file, so I usually don't - and sometimes I just 
forget about it in real source files too)..

Others are more anal^H^H^H^Hcareful, and tend to add a few lines to tell 
what the license is, the ubiqutous "all rights reserved" (which is just 
idiocy), and a blinking gif advertisement for their company. Oh, and the 
"no warranty" clause. And an aphorism or two.

In other words, I don't think there are any real rules. Different people 
and different projects have more or less different rules. If you expect to 
collect treble damages in the US, you might want to add a copyright notice 
just about everywhere, "just in case", and to "show you really care".

IANAL, of course.

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: An Ode to GPLv2 (was Re: GPLv3 Position Statement)
Date: Mon, 25 Sep 2006 04:50:05 +0200
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One of the reasons I didn't end up signing the GPLv3 position statement 
that James posted (and others had signed up for), was that a few weeks ago 
I had signed up for writing another kind of statement entirely: not so 
much about why I dislike the GPLv3, but why I think the GPLv2 is so great.

(There were other reasons too, but never mind that.)

I didn't get my fat arse off the ground on that, partly exactly because 
the developer poll of "which is better" which was related to that issue 
distracted me, but mostly because I just seldom write that kind of text - 
one thing the kernel work has conditioned me for is that I write _replies_ 
to email, I seldom start threads myself (I suspect most of my emails on 
linux-kernel that aren't replies are just release announcements).

However, since there was a sub-thread on groklaw about the kernel 
developers opinions on the GPLv3, and since I did try to explain it there 
(as a reply to postings by PJ and others), and since some of those 
explanations ended up being exactly the "why the GPLv2 is so insanely 
great" that I never wrote otherwise, I thought I'd just repost that 
explanation as an alternative view.

So this post is kind of another way to look at the whole GPLv3 issues: not 
caring so much about why the GPLv3 is worse, but a much more positive "Why 
the GPLv2 is _better_". I suspect some people may have an easier time 
seeing and reading that argument, since it's not as contentious.

A lot of people seem to think that the GPLv2 is showing its age, but I 
would argue otherwise. Yes, the GPLv2 is "old" for being a copyright 
license, but it's not even that you don't want to mess with something that 
works - it's that it very fundamentally is such a good license that 
there's not a whole lot of room for fixing aside from pure wording issues.

So without further ado, here's my personal "reply" to the the GPLv3 
position statement. It's obviously not meant to repudiate James' text in 
any way, it's just an alternate view on the same questions..

I made other posts in the same thread on Groklaw thread, not as positive, 
and not perhaps as worthy and quotable. This one may be a bit out of 
context, but I do think it stands on its own, and you can see the full 
thread in the "GPL Upheld in Germany Against D-Link" discussions on 
Groklaw. The particular sub-thread was on what happens since we can't 
easily change update the license, called "So What is the Future Then?"

(I'd like to point to the groklaw posts, but there doesn't seem to be any 
way to point to a particular comment without getting "The URL from Hell", 
so it's easier to just duplicate it here).

		Linus

---

And thus spake PJ in response:
   "GPLv2 is not compatible with the Apache license.  It doesn't cover
    Bitstream.  It is ambiguous about web downloads.  It allows Tivo to
    forbid modification.  It has no patent protection clause.  It isn't
    internationally useful everywhere, due to not matching the terms of
    art used elsewhere.  It has no DMCA workaround or solution.  It is
    silent about DRM."

Exactly!

That's why the GPLv2 is so great.  Exactly because it doesn't bother or
talk about anything else than the very generic issue of "tit-for-tat". 

You see it as a failure.  I see it as a huge advantage.  The GPLv2 covers 
the only thing that really matters, and the only thing that everybody can 
agree on ("tit-for-tat" is really something everybody understands, and 
sees the same way - it's totally independent of any moral judgement and 
any philosophical, cultural or economic background).

The thing is, exactly because the GPLv2 is not talking about the details, 
but instead talks entirely about just a very simple issue, people can get 
together around it.  You don't have to believe in the FSF or the tooth 
fairy to see the point of the GPLv2.  It doesn't matter if you're black or 
white, commercial or non-commercial, man or woman, an individual or a 
corporation - you understand tit-or-tat.

And that's also why legal details don't matter.  Changes in law won't 
change the notion of "same for same".  A change of language doesn't change 
"Quid pro quo".  We can still say "quid pro quo" two thousand years later, 
in a language that has been dead for centuries, and the saying is still 
known by any half-educated person in the world.

And that's exactly because the concept is so universal, and so 
fundamental, and so basic.

And that is why the GPLv2 is a great license.

I can't stress that enough.  Sure, other licenses can say the same thing, 
but what the GPLv2 did was to be the first open-source license that made 
that "tit-for-tat" a legal license that was widely deployed. That's 
something that the FSF and rms should be proud of, rather than trying to 
ruin by adding all these totally unnecessary things that are ephemeral, 
and depend on some random worry of the day.

That's also why I ended up changing the kernel license to the GPLv2. The 
original Linux source license said basically: "Give all source back, and 
never charge any money".  It took me a few months, but I realized that the 
"never charge any money" part was just asinine.  It wasn't the point.  
The point was always "give back in kind".

Btw, on a personal note, I can even tell you where that "never charge any 
money" requirement came from.  It came from my own frustrations with Minix 
as a poor student, where the cost of getting the system ($169 USD back 
then) was just absolutely prohibitive.  I really disliked having to spend 
a huge amount of money (to me) for something that I just needed to make my 
machine useful.

In other words, my original license very much had a "fear and loathing" 
component to it.  It was exactly that "never charge any money" part. But I 
realized that in the end, it was never really about the money, and that 
what I really looked for in a license was the "fairness" thing.

And that's what the GPLv2 is.  It's "fair".  It asks everybody - 
regardless of circumstance - for the same thing.  It asks for the effort 
that was put into improving the software to be given back to the common 
good.  You can use the end result any way you want (and if you want to use 
it for "bad" things, be my guest), but we ask the same exact thing of 
everybody - give your modifications back.

That's true grace.  Realizing that the petty concerns don't matter, 
whether they are money or DRM, or patents, or anything else.

And that's why I chose the GPLv2.  I did it back when the $169 I paid for 
Minix still stung me, because I just decided that that wasn't what it was 
all about.

And I look at the additions to the GPLv3, and I still say: "That's not 
what it's all about".

My original license was petty and into details.  I don't need to go back 
to those days.  I found a better license.  And it's the GPLv2.

			Linus
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From: Jan Engelhardt <jeng...@linux01.gwdg.de>
Newsgroups: linux.kernel
Subject: Re: The GPL: No shelter for the Linux kernel?
Date: Mon, 25 Sep 2006 08:10:09 +0200
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>> Would every file that does not contain an explicit license (this 
>> excludes MODULE_LICENSE) falls under COPYING?
>
>[...]
>If a file doesn't have a license mentioned, it doesn't mean that it's 
>"free for all" or not copyrighted, it just means that you need to find out 
>what the license is some other way (and if you can't find out, you 
>shouldn't be copying that file ;)
>
>Of course, for clarity, a lot of projects end up adding at least a minimal 
>copyright header license everywhere, just to cover their *sses. It's not 
>required, but maybe it avoids some confusion, especially if that file is 
>later copied into some other project with other basic rules (but if you 
>do that, you really _should_ have added the information at that point!).
>[...]

Though I strongly agree with you, some GNU folks (such as 
savannah.nongnu.org) seem to explicitly require it, even for files 
that do not make up a single program (i.e. like coreutils/ls.c).



Jan Engelhardt
-- 
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From: Michiel de Boer <x...@rebelhomicide.demon.nl>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Mon, 25 Sep 2006 11:00:15 +0200
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James Bottomley wrote:
> Although this white paper was discussed amongst the full group of kernel
> developers who participated in the informal poll, as you can expect from
> Linux Kernel Developers, there was a wide crossection of opinion.  This
> document is really only for discussion, and represents only the views of
> the people listed as authors (not the full voting pool).
>
> James
>
> ----------
>
> The Dangers and Problems with GPLv3
>
>
> James E.J. Bottomley             Mauro Carvalho Chehab
> Thomas Gleixner            Christoph Hellwig           Dave Jones
> Greg Kroah-Hartman              Tony Luck           Andrew Morton
> Trond Myklebust             David Woodhouse
>
>                                15 September 2006
>                                      Abstract
>
>            This document is a position statement on the GNU General Public
>        License version 3 (in its current Draft 2 form) and its surrounding
>        process issued by some of the Maintainers of the Linux Kernel
>        speaking purely in their role as kernel maintainers. In no regard
>        should any opinion expressed herein be construed to represent the
>        views of any entities employing or being associated with any of the
>        authors.
>
> 1 Linux and GPLv2
>
> Over the past decade, the Linux Operating System has shown itself to be far
> and away the most successful Open Source operating system in history.
> However, it certainly wasn't the first such open source operating system
> and neither is it currently the only such operating system. We believe that
> the pre-eminent success of Linux owes a great part to the dynamism and
> diversity of its community of contributors, and that one of the catalysts
> for creating and maintaining this community is the development contract as
> expressed by GPLv2.
>
> ...<SNIP>....
>
> 6 Conclusions
>
> The three key objections noted in section 5 are individually and
> collectively sufficient reason for us to reject the current licence
> proposal. However, we also note that the current draft with each of the
> unacceptable provisions stripped out completely represents at best marginal
> value over the tested and proven GPLv2. Therefore, as far as we are
> concerned (and insofar as we control subsystems of the kernel) we cannot
> foresee any drafts of GPLv3 coming out of the current drafting process that
> would prove acceptable to us as a licence to move the current Linux Kernel
> to.
>
> Further, since the FSF is proposing to shift all of its projects to
> GPLv3 and apply pressure to every other GPL licensed project to move, we
> foresee the release of GPLv3 portends the Balkanisation of the entire Open
> Source Universe upon which we rely. This Balkanisation, which will be
> manifested by distributions being forced to fork various packages in order
> to get consistent licences, has the potential to inflict massive collateral
> damage upon our entire ecosystem and jeopardise the very utility and
> survival of Open Source. Since we can see nothing of sufficient value in
> the current drafts of the GPLv3 to justify this terrible cost, we can only
> assume the FSF is unaware of the current potential for disaster of the
> course on which is has embarked. Therefore, we implore the FSF to
> re-examine the consequences of its actions and to abandon the current GPLv3
>   

For what it's worth, i support RMS and his fight for free software fully.
I support the current draft of the GPL version 3 and am very dissapointed
it will not be adopted as is. IMHO, Linux has the power and influence
to move mountains in the software industry, and shouldn't shy away from
the opportunity to take moral responsibility when it arises.

What is the stance of the developer team / kernel maintainers on DRM,
Trusted Computing and software patents? Does the refusal to adopt GPLv3 as
is mean that these two are more likely to emerge as supported functionality
in the Linux kernel? Are there any moral boundaries Linux kernel developers
will not cross concerning present and new U.S. laws on technology? Are they
willing to put that in writing? Will Linux support HD-DVD and BluRay by
being slightly more tolerant to closed source binary blobs? What about
the already existant problems with the Content Scrambling System for
DVD's?

Finally, i hope that the wishes of the community of people that have only
contributed to the kernel a few times but whose combined work may equal that
of the core developers, are taken into account; as well as the wishes of
the massive amount of users of the Linux kernel.

How about a public poll?

Regards, Michiel de Boer

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From: tri...@samba.org
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Mon, 25 Sep 2006 12:10:09 +0200
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James,

Thanks for posting this. It's obviously had a lot of thought go into
it.

I do think there are a few flaws in the arguments however. The biggest
one for me can be summed up in the question "which license better
represents the intention of the GPLv2 in the current world?"

When the GPLv2 was drafted it wasn't a legal document in a vacuum. It
came with a preamble that stated its intentions, and it came with
someone who toured the world explaining the intentions and
motivations. There were even plenty of repeat performances for anyone
who wanted to attend :-)

I think the GPLv3 does a better job of expressing legally those
intentions than GPLv2 did. In particular this part of the v2 preamble:

  "For example, if you distribute copies of such a program, whether
   gratis or for a fee, you must give the recipients all the rights
   that you have."

I think that recent developments (such as TiVo v2) have shown that
companies have found ways to give recipients less rights then they
have themselves. 

So I think the parts of the position statement that talk about the
importance of the 'development contract as expressed/represented by
GPLv2' and the implication that this contract would be violated by the
current GPLv3 draft are not accurate. That development contract came
with a clear explanation (or at least it seems clear to me).

Similarly, the position statement states:

  "This in turn is brought about by a peculiar freedom enshrined in the
  developer contract as represented by GPLv2, namely the freedom from
  binding the end use of the project."

but I think this particular 'freedom' comes more from the development
conventions of the Linux kernel community than from the GPLv2. I don't
see anything in the GPLv2 that actually tried to enshrine that
particular freedom. That doesn't mean it isn't a worthwhile thing to
enshrine, I just think it is inaccurate to claim that the GPLv2
attempts in any way to enshrine it.

Linus clearly values this freedom very highly, as I'm sure many kernel
developers do. So for those people the GPLv2 license may better
represent their own intentions.

For myself, I value other things more highly. One of the most
important aspects of the GPL for me is the equality between vendors
and recipients of software. I really like the symmetry between giver
and receiver, and the fact that this symmetry is passed on down the
chain, so that someone ten steps away from me as an author ends up
with the same rights that I had.

(There is an exception to this. The copyright holder is the only one
who can sue over a violation of the license, so that is an asymmetry,
but I think it is an essential asymmetry and prevents chaos. When
faced with a GPL violation of my code I have almost always chosen to
work with the violator to bring them into compliance, whereas if
anyone could sue then we'd see lawsuits far too often)

One result of this symmetry is that most GPLd software is 'free as in
beer' as well as 'free as in freedom'. If someone were to start
charging outrageous prices for GPLd software then someone else will
come along and sell it cheaper. That drives down the price to a
reasonable level.

I like the fact that I was able to distribute useful patches for the
kernel in TiVo v1. I didn't like the fact that I had to work around
the binary kernel modules used by TiVo, but I didn't complain too
loudly partly because it was a nice challenge to work around the
problem. I was delighted when TiVo incorporated some of my changes (in
particular a new driver) into their future releases. That was the GPL
working.

With v2 TiVo introduces something which had the potential to make that
impossible, at least for me. Thankfully they didn't get it quite
right, but it certainly made me aware that the symmetry I had been
taking for granted in the GPL was under threat.

So for me this symmetry is more important than the loss of the 'end
users can do what they want' freedom. From my point of view, that
freedom was never part of the 'contract' I had with the FSF, but the
symmetry freedom was, and thus I think the FSF has done well in fixing
a hole in the GPLv2 license.

Finally, I'm curious as to the legal basis of this statement:

> As drafted, this currently looks like it would potentially jeopardise the
> entire patent portfolio of a company simply by the act of placing a GPLv3
> licensed programme on their website.

I can't see anything in the current GPLv3 draft which would do
that. Could you explain how that comes about?

Cheers, Tridge
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From: Neil Brown <ne...@suse.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Mon, 25 Sep 2006 13:00:10 +0200
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On Monday September 25, x...@rebelhomicide.demon.nl wrote:
> 
> For what it's worth, i support RMS and his fight for free software fully.
> I support the current draft of the GPL version 3 and am very dissapointed
> it will not be adopted as is. IMHO, Linux has the power and influence
> to move mountains in the software industry, and shouldn't shy away from
> the opportunity to take moral responsibility when it arises.

I think that would be against the character of Linux.  Linux has
always been primarily about technology and community rather than
freedom.  Doing something to improve the technology or enable the
community would be very in-character.  Doing something in the name of
freedom would not.

Is that a reasonable position to take?  Well, maybe.

There are (at least) two ways to change unpleasant behaviour in
others.  One is through legislation.  The other is through making the
pleasant behaviour more attractive.
Legislation is short term, but makes things black-and-white (or, in
the case of grey areas, very expensive). 
Rewarding good behaviour is a much slower process, but deals with gray
areas much more effectively.

I think it is clear that we need a balance.  
The 'legislation' of GPLv2 plus the economic benefit of hundreds of
developers have been an effective 2-prong attack to encourage people
to share their software.  This has been self re-enforcing.  The more
people see the benefit, the more people seem to get involved.
So Linux has done a lot for freedom by focussing on technology.

So the question is: has the balance swung far enough the wrong way to
make a change in legislation necessary?

The 'DRM' provision of the proposed GPLv3 seem to be being driven by 1
company - Tivo.  Yes, what they are doing is against our spirit of
freedom.   But is it enough to justify changing the legislation?  Or
would that be 'the tail wagging the dog'??

The 'patent' provisions are - to me - more defensible than the DRM
provisions (fewer grey areas).  But are they an actual problem, or
just a potential problem?

The GPLv2 was written based on experience of people taking code and
giving nothing back.  Based on quite a lot of (unpleasant) experience,
a very effective measure was developed to combat it.
Do we have the same amount of experience with the problems that the
GPLv3 is supposed to fix?  If not, fixing now might be a bit premature
and may lead to unwanted side effects.

But maybe I am just misinformed.  Maybe there are dozens of different
manufacturers making devices that use DRM to prohibit freedom despite
using GPL code, and maybe there are hundreds of submarine patents
owned by distributors of GPL code and embodied in that code that the
owners are going to start suing us overs.... Is there a list of these
somewhere?

> 
> What is the stance of the developer team / kernel maintainers on DRM,

While I cannot speak for other developers (and sometimes have trouble
speaking for myself), one stance I have often heard is that DRM is
simply a tool - one that is largely based on cryptography which is
just another tool.  They can have good uses and bad uses just like the
TCP/IP stack (think 'spam').  So code to implement then would (if of
suitable quality) be allowed into the kernel.  If you want to make DRM
illegal, speak to your member-of-parliament, not your code developers.

> Trusted Computing and software patents? Does the refusal to adopt GPLv3 as
> is mean that these two are more likely to emerge as supported functionality
> in the Linux kernel? Are there any moral boundaries Linux kernel developers
> will not cross concerning present and new U.S. laws on technology? Are they
> willing to put that in writing? Will Linux support HD-DVD and BluRay by
> being slightly more tolerant to closed source binary blobs? What about
> the already existant problems with the Content Scrambling System for
> DVD's?

Tolerance of binary blogs seems to be steadily dropping.

As far as I can tell, the DVD-CSS is purely a legal issue today - the
technical issues are solved (I can watch any-region on my Linux
computer, and in Australia, the law requires that all DVD players must
ignore region encoding as it is an anti-competitive practice).

How HD-DVD and BluRay will work on Linux is yet to be seen, but I
seriously doubt that anything in the GPLvX would have much effect on
the outcome.  The greater effect would come from people writing to
their congress-person and voting with their wallet.... or just
reverse-engineering the technology:-)

> 
> Finally, i hope that the wishes of the community of people that have only
> contributed to the kernel a few times but whose combined work may equal that
> of the core developers, are taken into account; as well as the wishes of
> the massive amount of users of the Linux kernel.

This isn't about anyone's wishes.  The kernel is GPLv2 only and that is not
going to change - arguably is cannot change.

This is about a group of developers giving an opinion.  If others
agree, it might become an argument that the FSF will choose to allow
to affect their policy making (rather than thinking it is just Linus
raving as usual).  If no-one agrees, it will remain the opinion of a
few, with all the lack of force that implies.

> 
> How about a public poll?

We've all see the sort of politician that get into government on the
back of a public poll...  Do you really think a public poll would
provide a useful result :-)

NeilBrown
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From: Alan Cox <a...@lxorguk.ukuu.org.uk>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Mon, 25 Sep 2006 13:10:07 +0200
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Ar Llu, 2006-09-25 am 20:51 +1000, ysgrifennodd Neil Brown:
> The 'DRM' provision of the proposed GPLv3 seem to be being driven by 1
> company - Tivo.  Yes, what they are doing is against our spirit of

Actually quite a few companies have done this, and in some cases have
been involved in out of court settlements over that kind of abuse.

Let's be clear about this. The GPLv2 covers the scripts etc for
installation. The DRM keys are probably covered, and out of court
settlements lend weight to that. It has always been my publically stated
position that I reserve the right to sue anyone who uses my code and
locks it away with keys.

The GPLv3 rewords it in an attempt to be clearer but also I think rather
more over-reaching. It's not clear what for example happens with a
rented device containing GPL software but with DRM on the hardware.
Thats quite different to owned hardware. GPLv2 leaves it open for the
courts to make a sensible decision per case, GPLv3 tries to define it in
advance and its very very hard to define correctly.

Alan

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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: The GPL: No shelter for the Linux kernel?
Date: Mon, 25 Sep 2006 17:20:13 +0200
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On Mon, 25 Sep 2006, Jan Engelhardt wrote:
> 
> Though I strongly agree with you, some GNU folks (such as 
> savannah.nongnu.org) seem to explicitly require it, even for files 
> that do not make up a single program (i.e. like coreutils/ls.c).

Each project obviously has its own rules. The kernel, in many ways, these 
days does something even stronger, in the sense that we now ask not that 
every file be marked, but each and every change be signed-off-on. It's 
more than a copyright issue, of course (it started out motivated by the 
worries of tracking codeflow, but I think one reason it has worked so well 
is that it's become useful for so many other things).

So lots of projects have their specific rules. I don't think the "add 
notice to every file" is wrong per se, I just think it's impractical: not 
only does it get unwieldly with all those messages at the top, usually an 
open source project ends up being a mix of lots of different people that 
own rights in it, and in many ways it's thus better to track at a change 
level rather than a file level if you do tracking.

But exactly because it doesn't have any real legal rules, the rules are 
from other sources, and boil down mainly to just per-project "coding 
style" issues.

		Linus
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From: Thomas Gleixner <t...@linutronix.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Mon, 25 Sep 2006 18:10:21 +0200
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On Mon, 2006-09-25 at 12:31 +0100, Alan Cox wrote:
> The GPLv3 rewords it in an attempt to be clearer but also I think rather
> more over-reaching. It's not clear what for example happens with a
> rented device containing GPL software but with DRM on the hardware.
> Thats quite different to owned hardware. GPLv2 leaves it open for the
> courts to make a sensible decision per case, GPLv3 tries to define it in
> advance and its very very hard to define correctly.

Also the prevention of running modified versions is not only caused by
economic interests and business models. There are also scenarios where
it is simply necessary:

- The liability for damages, where the manufacturer of a device might
be responsible in case of damage when he abandoned the prevention. This
applies to medical devices as well as to lasers, machine tools and many
more. Device manufacturers can not necessarily escape such liabilities
as it might be considered grossly negligent to hand out the prevention
key, even if the user signed an exemption from liability.

- Regulations to prevent unauthorized access to radio frequencies, which
is what concerns e.g. cellphone manufacturers.

- ...

An ultimate definition of acceptable and unacceptable usage scenarios is
simply not possible due to the complexity of the problem. Any attempt to
create a definition will lead to loopholes and grey areas. Further it
will compulsory exclude acceptable usage scenarios.

A simple loophole example was brought up in the discussion already:
Technical limitations which do not allow modification at all, e.g. ROMs,
ASICs are apparently considered as a valid usage scenario, but it also
allows in consequence the circumvention of the intended lock down
protection by simple technical means, e.g. ROM based software
cartridges.

If you knit narrower meshes, you create more holes. This is not only
true for knitgoods, it's also a well known problem of legal systems.

	tglx


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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Mon, 25 Sep 2006 19:00:16 +0200
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On Mon, 25 Sep 2006, Michiel de Boer wrote:
> 
> I support the current draft of the GPL version 3 and am very dissapointed
> it will not be adopted as is. IMHO, Linux has the power and influence
> to move mountains in the software industry, and shouldn't shy away from
> the opportunity to take moral responsibility when it arises.

Well, you do have to realize that Linux has never been an FSF project, and 
in fact has never even been a "Free Software" project.

The whole "Open Source" renaming was done largely _exactly_ because people 
wanted to distance themselves from the FSF. The fact that the FSF and it's 
followers refused to accept the name "Open Source", and continued to call 
Linux "Free Software" is not _our_ fault.

Similarly, the fact that rms and the FSF has tried to paint Linux as a GNU 
project (going as far as trying to rename it "GNU/Linux" at every 
opportunity they get) is their confusion, not ours.

I personally have always been very clear about this: Linux is "Open 
Source". It was never a FSF project, and it was always about giving source 
code back and keeping it open, not about anything else. The very first 
license used for the kernel was _not_ the GPL at all, but read the release 
notes for Linux 0.01, and you will see:

		2. Copyrights etc

  This kernel is (C) 1991 Linus Torvalds, but all or part of it may be
  redistributed provided you do the following:

	- Full source must be available (and free), if not with the
	  distribution then at least on asking for it.

	- Copyright notices must be intact. (In fact, if you distribute
	  only parts of it you may have to add copyrights, as there aren't
	  (C)'s in all files.) Small partial excerpts may be copied
	  without bothering with copyrights.

	- You may not distibute this for a fee, not even "handling"
	  costs.

notice? Linux from the very beginning was not about the FSF ideals, but 
about "Full source must be available". It also talked about "Free", but 
that very much was "Free as in beer, not as in freedom", and I decided to 
drop that later on.

How much clearer can I be? I've actively tried to promote "Open Source" as 
an alternative to "Free Software", so the FSF only has itself to blame 
over the confusion. 

Thinking that Linux has followed FSF goals is incorrect. IT NEVER DID!

I think the GPLv2 is an absolutely great license. I obviously relicensed 
everything just a few months after releasing the first version of Linux. 
But people who claim that that means that I (or anybody else) should care 
what the FSF thinks on other issues are just being totally silly.

> What is the stance of the developer team / kernel maintainers on DRM,
> Trusted Computing and software patents?

I'm very much on record as not liking them. That changes nothing. I'm also 
very much on record as saying that DRM, TPC etc have nothing at all to do 
with the kernel license.

If you want to fight DRM, do so by joining the Creative Commons movement. 
The problem with Disney is not that they use DRM, it's that they control 
the content in the first place - and they do that because content tends to 
be too monopolized. 

The whole "content" discussion has _nothing_ to do with an operating 
system. Trying to add that tie-in is a bad idea. It tries to link things 
that aren't relevant. 

So go fight the problem at the _source_ of the problem, not in my project 
that has got nothing to do it.

And please, when you join that fight, use your _own_ copyrights. Not 
somebody elses. I absolutely hate how the FSF has tried to use my code as 
a weapon, just because I decided that their license was good.

> How about a public poll?

Here's a poll for you:
 - go write your own kernel
 - poll which one is more popular

It really is that simple. The kernel was released with a few rules. The 
same way you can't just make your own version of it and then not release 
sources, you _also_ cannot just make it GPLv3. 

It's not a democracy. Copyright is a _right_. Authors matter.

			Linus
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From: Sergey Panov <si...@sipan.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 03:20:07 +0200
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On Fri, 2006-09-22 at 11:15 -0500, James Bottomley wrote:
> Over the past decade, the Linux Operating System has shown itself to be far
> and away the most successful Open Source operating system in history.
> However, it certainly wasn't the first such open source operating system
> and neither is it currently the only such operating system.

Fuzzy (but realistic) logic:

   kernel != operating_system

   operating_system > kernel

   operating_system - kernel = 0

   kernel - (operating_system - kernel) < 0


The Q. I'd like to know the answer to is:
    What part of the (operating_system - kernel) part is ready to adopt
    v.3?

Another (license compatibility) Q. is:
    If the (operating_system - kernel) is re-licensed under v.3 and
    the kernel is still under v.2 , would it be possible to distribute
    combination (kernel + (operating_system - kernel)) ?

The last Q. is how good is the almost forgotten Hurd kernel?

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From: Jan Engelhardt <jeng...@linux01.gwdg.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 08:00:15 +0200
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>Fuzzy (but realistic) logic:
>
>   kernel != operating_system
>
>   operating_system > kernel
>
>   operating_system - kernel = 0
>
>   kernel - (operating_system - kernel) < 0
>
>Another (license compatibility) Q. is:
>    If the (operating_system - kernel) is re-licensed under v.3 and
>    the kernel is still under v.2 , would it be possible to distribute
>    combination (kernel + (operating_system - kernel)) ?

If by operating system you mean the surrounding userland application, 
then yes, why should there be a problem with a GPL2 kernel and a GPL3 
userland? After all, the userland is not only GPL, but also BSD and 
other stuff.

>The last Q. is how good is the almost forgotten Hurd kernel?

Wild guess: At most on par with Minix.



Jan Engelhardt
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From: Sergey Panov <si...@sipan.org>
Newsgroups: linux.kernel
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On Wed, 2006-09-27 at 07:55 +0200, Jan Engelhardt wrote: 
> >Fuzzy (but realistic) logic:
> >
> >   kernel != operating_system
> >
> >   operating_system > kernel
> >
> >   operating_system - kernel = 0
> >
> >   kernel - (operating_system - kernel) < 0
> >
> >Another (license compatibility) Q. is:
> >    If the (operating_system - kernel) is re-licensed under v.3 and
> >    the kernel is still under v.2 , would it be possible to distribute
> >    combination (kernel + (operating_system - kernel)) ?
> 
> If by operating system you mean the surrounding userland application,

almost, surrounding_userland_applications = (operating_system - kernel) 

> then yes, why should there be a problem with a GPL2 kernel and a GPL3 
> userland? After all, the userland is not only GPL, but also BSD and 
> other stuff.

It was not a problem with GPL[0-1]/BSD/MIT license, but is it still true
with GPL3? What is the difference between running application on the top
of the kernel "A" and linked with the library "B"?

> >The last Q. is how good is the almost forgotten Hurd kernel?
> 
> Wild guess: At most on par with Minix.

... ???. I am not so sure. Kernel is really a small thing. The VMWare
proprietary hyper-visor was/is reusing Linux drivers with ease, why BSD or
Hurd can not do the same? As a former (Linux) driver writer I like to show the
following numbers to my friends:

$ du -s lib kernel  net drivers
980     lib
1728    kernel
16132   net
130872  drivers

and:

$ find ./kernel -type f -exec cat  {} + | wc -l
48312
$ find ./drivers -type f -exec cat  {} + | wc -l
3367849

================================================================

PS. Given that some of the sub-systems (e.g SCSI) in Linux still suck
badly, other OS (not as in Operating Systems but as in Open Source)
alternatives might eventually gain some ground in the enterprise
environment.

 


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From: Jan Engelhardt <jeng...@linux01.gwdg.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 11:10:14 +0200
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>almost, surrounding_userland_applications = (operating_system - kernel) 
>
>> then yes, why should there be a problem with a GPL2 kernel and a GPL3 
>> userland? After all, the userland is not only GPL, but also BSD and 
>> other stuff.
>
>It was not a problem with GPL[0-1]/BSD/MIT license, but is it still true
>with GPL3? What is the difference between running application on the top
>of the kernel "A" and linked with the library "B"?

I think Linus once said that he does not consider the kernel to 
become part of a combined work when an application uses the kernel.

I tend to agree, it's gray (unless Linus explicitly colorizes it) -- 
IIRC the GPL allows a GPL and closed program to interact if they do so 
using 'standard' interfaces, i.e. passing a file as argument, or 
shell redirection, communicating over a pipe or a socket, etc.
But OTOH, linking code makes it a combined work.
And the question now is: Since the kernel is the one providing these 
standard services, what would apply? Do userland and kernel communicate 
by means of linking or by means of standardized interfaces (in this case -
fixed syscall numbers or thelike). I'd say the latter. An application 
does not link with the kernel IMHO, no symbol resolution is done.

>> >The last Q. is how good is the almost forgotten Hurd kernel?
>> 
>> Wild guess: At most on par with Minix.
>
>... ???. I am not so sure. Kernel is really a small thing. The VMWare
>proprietary hyper-visor was/is reusing Linux drivers with ease, why BSD or
>Hurd can not do the same? As a former (Linux) driver writer I like to show the
>following numbers to my friends:

Oh well I was rather interpreting the question as "What about Hurd?" and 
my answer was the same from the Hurd page last time I read it.
"It's not so complete to make up a production system." or similar.

>================================================================
>
>PS. Given that some of the sub-systems (e.g SCSI) in Linux still suck
>badly, other OS (not as in Operating Systems but as in Open Source)
>alternatives might eventually gain some ground in the enterprise
>environment.

Don't tell me you like the Solaris way of naming devices. :)


Jan Engelhardt
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From: "Nicolas Mailhot" <nicolas.mail...@laposte.net>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 11:50:06 +0200
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> As far as the you must be able to run modifications language goes:  too
> many embedded devices nowadays embed linux.  To demand a channel for
> modification is dictating to manufacturers how they build things.  Take
> the case of an intelligent SCSI PCI card which happens to run embedded
> linux in flash.

So just clarify GPL v3 so any GPLv3 distributor gives the same level of
access to the people he distributes his GPLed software do (ie if the code
is on a flasheable device, open the flash process ; if it's drm-protected
: give
the DRM key)

It's not as if most (all?) widespread linux-embedded devices are not
flashable nowadays. Factory recall everytime you need to fix a
security/feature bug just costs too much

(as far as I know every single Tivo-like thing *is* updateable remotely)

-- 
Nicolas Mailhot


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From: Alan Cox <a...@lxorguk.ukuu.org.uk>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 14:00:14 +0200
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Ar Mer, 2006-09-27 am 10:58 +0200, ysgrifennodd Jan Engelhardt:
> I think Linus once said that he does not consider the kernel to 
> become part of a combined work when an application uses the kernel.

COPYING top of the kernel source tree.

> I tend to agree, it's gray (unless Linus explicitly colorizes it) -- 
> IIRC the GPL allows a GPL and closed program to interact if they do so 
> using 'standard' interfaces, i.e. passing a file as argument, or 
> shell redirection, communicating over a pipe or a socket, etc.
> But OTOH, linking code makes it a combined work.

No. The definition of a derivative work is a legal one and not a
technical one. Take a look at the history of the objective C compiler
front end for gcc. It is possible that linked code is not derivative or
pipe using code is derivative - consider for example RPC. Simply making
a linux device driver make the same function calls to the kernel by RPC
messages over a pipe type device would not change its status.

Alan

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Subject: Re: GPLv3 Position Statement
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On Wed, Sep 27, 2006 at 07:55:41AM +0200, Jan Engelhardt wrote:
> If by operating system you mean the surrounding userland application, 
> then yes, why should there be a problem with a GPL2 kernel and a GPL3 
> userland? After all, the userland is not only GPL, but also BSD and 
> other stuff.

Actually, the biggest problem will likely be userland applications and
shared libraries.  Many people believe that the GPL infects across
shared library links.  Whether or not that's true, it's never been
tested in court, and probably depends on the legal jurisdiction.  In
any case, many parts of the community, and certainly distributions
like Debian, behave as if the GPL infects across shared libraries.
But if that's true, then we have a big problem, because just as the
CDDL is incompatible with GPLv2, so too is the GPLv3 incompatible with
GPLv2.  (It has to be; the whole point of the GPLv3 is to fix "bugs"
such as spiking out companies considered evil like Tivo.  If you're
going to make the argument that there are no differences and so the
GPLv2 and v3 are compatible, then why are we wasting all of this time
and money on GPLv3?)

And if there are additional restrictoins in GPLv3 (and I've never
heard Eben deny it), then there's nothing you can do in GPLv3 to fix
the compatibility problem, because GPLv3 has more restrictions than
GPLv2, and the GPLv2 prohibits additional restrictions.  So the
incompatibility is forced from the GPLv2 side, and no textual changes
in GPLv3 can possibly hope to fix things.  Hence, for userspace code
which is licensed under a GPLv2 only license, it must be strictly
incompatible with any GPLv3 shared library.

And given that Stallman has announced that the new LGPL will be (to
use programming terms) a subclass of GPLv3, it means that the LGPLv3
is by extension incompatible with the GPLv2.  So that means that there
will have to be two different versions of glibc (and every other
shared library) shipped with every distributions --- one which is
GPLv2, and one which is GPLv3.  And this fork is going to be forced by
the FSF!  

So that brings up an interesting question --- which fork is Uhlrich
Drepper going to continue to work on?  The GPLv2 or GPLv3 version?  :-)

						- Ted

P.S.  I guess there is another alternative, which is that all shared
libraries must be dual licensed under a "your choice of LGPLv2 or
LGPLv3".  Of course, then that won't prohibit CCE's (Companies
Considered as Evil) from using said code.  And certainly, for people
who care more about code reuse, I would urge them to dual license
their code, since otherwise GPLv2 and GPLv3 code will not be able to
coexist, and the FSF will be making the license fragmentation problem
even worse for everyone, just to pursue their political goals.
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From: Greg KH <g...@kroah.com>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 18:10:11 +0200
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On Tue, Sep 26, 2006 at 09:11:47PM -0400, Sergey Panov wrote:
> 
> The last Q. is how good is the almost forgotten Hurd kernel?

Note that Hurd has a lot of Linux driver code in it, which probably can
not be changed to GPLv3...

thanks,

greg k-h
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 19:10:15 +0200
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On Wed, 27 Sep 2006, Jan Engelhardt wrote:
> 
> If by operating system you mean the surrounding userland application, 
> then yes, why should there be a problem with a GPL2 kernel and a GPL3 
> userland? After all, the userland is not only GPL, but also BSD and 
> other stuff.

Indeed.

We have no trouble at all running programs with much worse licenses than 
the GPLv3 (ie commercial programs). There is no problem with user space 
being v3.

> >The last Q. is how good is the almost forgotten Hurd kernel?
> 
> Wild guess: At most on par with Minix.

...and here's a thing that most people forget: good code simply doesn't 
care about ideology, and ideology often does the wrong technical decisions 
because it's not about practical issues.

The watch-word in Linux development has been "pragmatism". That's probably 
part of what drives the FSF wild about Linux in the first place. I care 
about _practical_ issues, not about wild goose chases.

If I weren't into computers, I'd be in science. And the rules in science 
are the same: you simply can't do good science if you start with an 
agenda. If you say that you'll never touch high-energy physics because 
you find the atom bomb to be morally reprehensible, that's your right, but 
you have to also realize that then you can never actually understand the 
world, and do everything you may need to do.

I've often compared Open Source development vs proprietary development to 
science vs witchcraft (or alchemy).

In many ways, the GPLv3 is about "religion". They limit the technology 
because they are afraid of it. It's not that different from a religious 
standpoint that some research is "bad" - because it undermines the 
religious beliefs of the people. You'll find extremists in the US saying 
that things like evolution is an affront to very basic human morals, the 
exact same way that rms talks about DRM being "evil".

I want to be a "scientist". I want people to be able to repeat the 
experiments, logic, and measurements (that's very much what science is 
about - you don't just trust people saying that the world works some way), 
but being a scientist doesn't mean that you should let other scientists 
into your own laboratory or into your own home. That would be just crazy 
talk.

So as a "scientist", I describe in sufficient detail my theory and the 
results, so that anybody else in the world can replicate them. But they 
can replicate them in their _own_ laboratories, thank you very much.

That's what open source is all about. It's about _scientific_ ideals. 
It's not on a moral crusade, and it never has been. 

The point behind all this: even if the Hurd didn't depend on Linux code 
(and as far as I know, it does, but since I think they have their design 
heads firmly up their *sses anyway with that whole microkernel thing, I've 
never felt it was worth my time even looking at their code), I don't 
believe a religiously motivated development community can ever generate as 
good code except by pure chance.

				Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
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[ This is not so much really a reply to Alan, as a rant on some of the 
  issues that Alan takes up ]

On Wed, 27 Sep 2006, Alan Cox wrote:

> Ar Mer, 2006-09-27 am 10:58 +0200, ysgrifennodd Jan Engelhardt:
> > I think Linus once said that he does not consider the kernel to 
> > become part of a combined work when an application uses the kernel.
> 
> COPYING top of the kernel source tree.

Yes. But also somethign much more fundamental:

	Copyright Law - regardless of country

You can claim anything you damn well want in a license, but in the end, 
it's all about "derived works". If something is not a derived work, it 
doesn't matter _what_ ownership rights you have, it's simply not an issue.

So even if the kernel had a big neon sign that said "You're bound by this 
license in user space too!" (or, more likely, didn't have a sign at all, 
like was the case originally), that has absolutely _zero_ legal meaning 
for a copyright license. A license cannot cover something just because it 
"says so".

For example, I could write a copyright license that said

	"This license forbids you from ever copying the kernel, or any 
	work made by Leo Tolstoy, which is just a pseudonym for the
	easter bunny"

and the fact that the license claims to control the works of Leo "the 
easter bunny" Tolstoy, claiming so simply doesn't make it so.

And yes, the above is obviously ridiculous, but the point is, it's no more 
ridiculous than a license that would claim that it extends to programs 
just because you can run then on Linux.

In fact, it's also no more ridiculous than a license that claims it 
extends copyright the other way - to the hardware or platform that you run 
a program on. From a legal standpoint, such wording is just totally 
idiotic.

[ So the wording at the top of the license is a clarification of fact, not 
  really any kind of change of the license itself. It actually does have 
  some legal meaning (it shows "intent"), but most importantly it allows 
  people to not have to even worry about frivolous lawsuits. Nobody can 
  sue people for not running GPLv2 user-space through normal system calls, 
  because the statement of intent makes it clear that a judge would throw 
  out such a suit immediately.

  So I think the important thing here to take away is that "frivolous" 
  part of the lawsuit. The language doesn't actually _change_ the legal 
  meaning, but it protects against idiots. And a lot of lawyers worry 
  about idiots and money-grubbing douchebags *cough*SCO*cough*, and
  as such obvious clarifications _can_ be useful. ]

Another real-world example of this mis-understanding is that a lot of 
people seem to think that the GPLv2 disallows "linking" with non-GPLv2 
code. Almost everybody I ever meet say that, and the FSF has written long 
pieces on shared libraries etc.

People don't have a clue!

The GPLv2 never _ever_ mentions "linking" or any other technical measure 
at all. Doing so would just be stupid (another problem with the GPLv3, 
btw). So people who think that the GPLv2 disallows "linking" with 
non-GPLv2 code had better go back and read the license again.

Grep for it, if you want to. The word "link" simply DOES NOT EXIST IN THE 
LICENSE!

(It does exist at the end of the _file_ that contains the license, but 
that's not actually the license at all, it's just the "btw, this is how 
you might _use_ the license", and while legally that can be used to show 
"intent", it does not actually extend the copyright in the work in any 
way, shape, or form).

What the GPLv2 actually talks about is _only_ about "derived work". And 
whether linking (dynamically, statically, or by using an army of worker 
gnomes that re-arrange the bits to their liking) means something is 
"derived or not" is a totally different issue, and is not something you 
can actually say one way or the other, because it will depend on the 
circumstances.

I'm always surprised by how many people talk abut the GPLv2 (and, quite 
frankly, about the GPLv3 draft) without actually seemingly having ever 
read the damn thing, or, more likely, ever really understood any legal 
stuff what-so-ever, or the difference between the _use_ of a license, and 
the license itself.

For example, in the GPLv3 discussions, I've seen more than one person 
claim that I've used a special magic version of the GPLv2 that doesn't 
have the "v2 or any later" clause. Again, those people don't have a _clue_ 
about what they are talking about. They feel very free in arguing about 
other peoples copyrigted works, and the fact that I'm not a lawyer, but 
then they ignore the fact that I actually _do_ know what I'm talking 
about, and that they don't have a stinking clue.

> No. The definition of a derivative work is a legal one and not a
> technical one.

Exactly. A lot of people don't understand this, and a lot of people think 
that "derivative" means "being close". Linking doesn't make something 
derivative per se - the same way _not_ linking doesn't make it not be 
derivative.

Now, it is also indisputable that if you _need_ to "link", it's a damn 
good sign that something is _very_likely_ to be derivative, but as Alan 
points out, you could do the same thing with RPC over a socket, and the 
fact that you did it technically differently really makes no real 
difference. So linking per se isn't the issue, and never has been.

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 20:00:19 +0200
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On Wed, 27 Sep 2006, Nicolas Mailhot wrote:
> 
> It's not as if most (all?) widespread linux-embedded devices are not
> flashable nowadays. Factory recall everytime you need to fix a
> security/feature bug just costs too much

Side note: it's not even about factory recalls, it's that flash chips are 
literally cheaper than masked roms for almost all applications.

Mask roms are expensive for several reasons:

 - they force extra development costs on you, because you have to be 
   insanely careful, since you know you're stuck with it.

   So it's not even just the cost of the recall itself: it's the 
   _opportunity_ cost of having to worry about it which tends to be the 
   biggest cost by far. Most devices never get recalled, and when they do 
   get recalled, a lot of people never bother about it. So the real cost 
   is seldom the recall itself, it's just the expense of worrying about 
   it, and wasting time on trying to make things "perfect" (which never
   really works anyway)

 - during development, mask roms are a big pain in the ass, so you need to 
   build all your development boards (even the very final one! The one 
   that is supposedly identical to the released version!) with a flash 
   anyway, even if you can only program it by setting a magic jumper or 
   something.

   So using a mask rom means that your development platform pretty much 
   will never match the actual hw platform you sell. That's a DISASTER. 
   It's like always developing and testing with the compiler using the 
   "-g" flag, but then _shipping_ the binary with "-O". Nobody sane would 
   ever do that - it just means that all your verification was basically
   useless.

 - They force you to use a specialized chip. Mass production usually means 
   that in any kind of low volumes, specialized chips are always going to 
   be more expensive.

   People seem to sometimes still believe that we live in the 1980's. Mask 
   roms used to be relatively "cheaper", because it wasn't as much about 
   standardized and huge volumes of chips. These people should please 
   realize that technology has changed in the last quarter century, and 
   we're not playing "pong" any more.

[ Side note: is there a good "pong" box you can buy? I want pong and the 
  real asteroids - the one with vector graphics. And I realize I can't 
  afford the real asteroids, but dang, there should be a realistic pong
  somewhere? Some things are hard to improve on.. ]

So even if you don't actually want to upgrade the machine, it's likely to 
have a flash in it simply because it's often _cheaper_ that way. 

And it not at all uncommon to have a flash that simply cannot be upgraded 
without opening the box. Even a lot of PC's have that: a lot (most?) PC's 
have a flash that has a separate _hardware_ pin that says that it is 
(possibly just partially) read-only. So in order to upgrade it, you'd 
literally need to open the case up, set a jumper, and _then_ run the 
program to reflash it.

People do things like that for fail-safe reasons. For example, a portion 
of the flash is read-only, just so that if a re-flashing fails, you have 
the read-only portion that verifies the signature, and if it doesn't 
match, it contains enough basic logic that you can try to re-flash again.

Those kinds of fail-safes are absolutely _critical_, and I'm not talking 
about some "hypothetical" device here. I'm talking very much about devices 
that you and me and everybody else probably use every stinking day.

In fact, I can pretty much guarantee that pretty much everybody who is 
reading this is reading it on a machine that has an upgrade facility that 
is protected by cryptographic means. Your CPU. Most of the microcode 
updaters have some simple crypto in them (although sometimes that crypto 
is pretty weak and I think AMD relies more on just not documenting the 
format).

Look into the Linux kernel microcode updater code some day, and please 
realize that it talks to one of those evil "DRM-protected devices".

And dammit, this is all OK. If people want to write a GPL'd microcode 
update, they damn well should be able to. Oh, but the GPLv3 forbids them 
from doing that without giving out the keys used to sign the result.

	"But that's ok, because the FSF is looking out for all of us, and
	 we know mommy knows best."

So it's all good.

			Linus
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From: Theodore Tso <ty...@mit.edu>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 20:10:14 +0200
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On Wed, Sep 27, 2006 at 10:58:41AM +0200, Jan Engelhardt wrote:
> >... ???. I am not so sure. Kernel is really a small thing. The VMWare
> >proprietary hyper-visor was/is reusing Linux drivers with ease, why BSD or
> >Hurd can not do the same? As a former (Linux) driver writer I like to show the
> >following numbers to my friends:
> 
> Oh well I was rather interpreting the question as "What about Hurd?" and 
> my answer was the same from the Hurd page last time I read it.
> "It's not so complete to make up a production system." or similar.

Well, that will be very simple.  If the Hurd gets relicensed to be
GPLv3, it won't be able to use Linux kernel device drivers any more,
because they will be GPLv2, and the GPLv2 and GPLv3 licenses are
incompatible.  But that's the FSF's problem, not ours...

						- Ted

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From: Chase Venters <chase.vent...@clientec.com>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 20:40:08 +0200
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On Wed, 27 Sep 2006, Linus Torvalds wrote:

>
> For example, I could write a copyright license that said
>
> 	"This license forbids you from ever copying the kernel, or any
> 	work made by Leo Tolstoy, which is just a pseudonym for the
> 	easter bunny"
>
> and the fact that the license claims to control the works of Leo "the
> easter bunny" Tolstoy, claiming so simply doesn't make it so.
>
> And yes, the above is obviously ridiculous, but the point is, it's no more
> ridiculous than a license that would claim that it extends to programs
> just because you can run then on Linux.
>
> In fact, it's also no more ridiculous than a license that claims it
> extends copyright the other way - to the hardware or platform that you run
> a program on. From a legal standpoint, such wording is just totally
> idiotic.
>

The reason a clause such as that will work is that people have no natural 
right to redistribute Linux. To invoke the FSF's Tivo example, if the Tivo 
company wants to stamp out 5,000 Tivo boxes, they're going to make 5,000 
copies of Linux in the process. By default and by direct notice, the 
pieces that make up Linux, and the compilation of Linux itself, is 
copyrighted. This totally prohibits Tivo from making legal copies.

If Tivo wants to redistribute Linux, they need a license. That license is 
GPLv2, but let us assume for a moment that rms spiked the punch at OLS and 
the kernel became GPLv3. If GPLv3 says "You may not make copies of the 
covered work unless you agree to these terms", and one term says, "You 
must not use technological means to override a stated license freedom", 
then Tivo redistributes Linux anyway inside a device that uses 
technological means (signed code, for instance) to override a stated 
freedom, Tivo is breaking the law, unless every Linux copyright holder 
agreed to give Tivo a special exception (aka license).

So regardless of whether or not you think such a term is ridiculous, it is 
enforceable. The only place I am aware that law might deliberately reduce 
the scope of a license's requirements is to uphold fair use rights, or 
along the same lines, to ensure fair treatment of a consumer that has paid 
money for something and is being subjected to unreasonable coercion by the 
copyright holder of what they have paid for.

If you haven't paid for a copyrighted work, and the copies you want to 
make do not fall under fair use ("we needed a cheap and good operating 
system for our embedded device" is not in that category), you need to obey 
the license or find something else to copy.

I don't want to get ensnared in another licensing debate about code I have 
no moral or legal claim to, but I do want to thank those of you behind the 
position statement. I'm not sure I agree with your points but I think the 
dialogue itself is important.

The last thing that I want to say is that I wish people wouldn't imply to 
the press (wink wink, nudge nudge, Linus) that the FSF is evil. I've heard 
at various times the following things in the press:

1. "The FSF is not going to listen to anyone about GPLv3"
2. "The FSF is not listening to anyone about the GPLv3"
3. "I don't want to participate in the GPLv3 process"
4. "The FSF knows my views because I have carbon-copied them"

...meanwhile, the FSF is allegedly trying to open up a dialogue. I think 
the important distinction is that the FSF will listen to anything the 
kernel people (or anyone else for that matter) say, but whatever is said 
will be interpreted and balanced in the context of the FSF's original 
goals of the license, Freedoms 0-3, and most certainly what they believe 
those Freedoms to be.

I think one thing that should have happened a _lot_ sooner is that you and 
others should have made clear to the startled community that you object 
precisely to the anti-Tivoization clause, not because of any technical 
reason or interpretation but because you don't see anything wrong with 
Tivo's use of Linux. It would have been nice but totally optional to 
engage in dialogue with the FSF. But slandering them about their license 
development process, or their intentions with regard to using Linux as 
leverage, is counterproductive whether true or not.

I'm one of those lefty "free software" types, though I don't disbelieve 
in "open source" either. At this point, I consider it likely that I'll use 
the GPLv3 for any software I independently develop, and I'll continue to 
be damn thankful that I have the best operating system kernel ever in 
history to freely run that code on. When I submit a patch to Linux, I'll 
happily do so knowing that it will be licensed underneath the wonderful 
GPLv2.

The reason I wrote this long message is that despite having never met any 
of you, I consider you all friends. We're software developers working for 
a common good, even if we see it a different way. I hope that's enough to 
make me your friends as well. If that is the case, and we're all friends 
here, let's be fair to the FSF even if we don't agree with them, and even 
if some of their members haven't been fair to us in the past.

Thanks,
Chase Venters
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 21:20:09 +0200
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On Wed, 27 Sep 2006, Chase Venters wrote:
> 
> The reason a clause such as that will work is that people have no natural
> right to redistribute Linux.

Right. Any copyright license will basically say

	"You can distribute this assuming you do so-and-so"

and a contract can actually extend on that and also limit you in other 
ways than just distribution, ie you can sat

	"You can buy this, but you cannot legally benchmark it"

However, none of that actually extends your "derived work" in any way.

		Linus
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From: Krzysztof Halasa <k...@pm.waw.pl>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 22:40:17 +0200
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I generally agree with you, but...

Linus Torvalds <torva...@osdl.org> writes:

> And it not at all uncommon to have a flash that simply cannot be upgraded 
> without opening the box. Even a lot of PC's have that: a lot (most?) PC's 
> have a flash that has a separate _hardware_ pin that says that it is 
> (possibly just partially) read-only. So in order to upgrade it, you'd 
> literally need to open the case up, set a jumper, and _then_ run the 
> program to reflash it.

I think this is history. Yes, late 486s and Pentiums (60 and 66?)
had a jumper protecting the flash. It's not true since ca. "Pentium 75+"
days - while many boards use "bootblock" chips, it's (almost?) always
unprotected (at most it just requires setting some GPIO pin(s)). The
rest of flash obviously has to be R/W to support the ESCD etc.

I think there are systems with 2 copies of the whole BIOS, and the
user selects the copy with a jumper (probably connected directly to
the most significant address line of the flash IC) - the second
copy might theoretically use a R/O bootblock but I've never checked it.

Most VGAs, disks, PCI cards etc. have flash chips with no protection
either, and I have to say I felt much better when they used (EP)ROMs.

I think almost all hardware manufacturers use a blank flash chips,
programming them "in system" with things like JTAG.
-- 
Krzysztof Halasa
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Wed, 27 Sep 2006 22:50:08 +0200
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On Wed, 27 Sep 2006, Krzysztof Halasa wrote:
> > And it not at all uncommon to have a flash that simply cannot be upgraded 
> > without opening the box. Even a lot of PC's have that: a lot (most?) PC's 
> > have a flash that has a separate _hardware_ pin that says that it is 
> > (possibly just partially) read-only. So in order to upgrade it, you'd 
> > literally need to open the case up, set a jumper, and _then_ run the 
> > program to reflash it.
> 
> I think this is history. Yes, late 486s and Pentiums (60 and 66?)
> had a jumper protecting the flash. It's not true since ca. "Pentium 75+"
> days - while many boards use "bootblock" chips, it's (almost?) always
> unprotected (at most it just requires setting some GPIO pin(s)). The
> rest of flash obviously has to be R/W to support the ESCD etc.

You're probably right. The pin still exists on the flash chips, but most 
of the time on PC's at least the writability is software-controlled.

I think the hatred of pins became so high that it became almost 
unacceptable for motherboard designers to add them on PC's. Nobody wants 
to open their case any more ;)

But the whole point was to just show how silly the whole "upgradable" vs 
"not upgradable" discussion is. We're literally talking about something 
where apparently it matters to the GPLv3 whether a pin on a chip is 
connected to software or hardware (or not at all). Is that sane?

So if it's "hardware-controlled", it would be ok (because it's not meant 
to be upgraded at all)? But if it's software-controlled it is not? A set 
of rules that require this kind of nitpicking is just broken.

			Linus
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From: Alan Cox <a...@lxorguk.ukuu.org.uk>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 00:40:20 +0200
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Ar Mer, 2006-09-27 am 13:41 -0700, ysgrifennodd Linus Torvalds:
> I think the hatred of pins became so high that it became almost 
> unacceptable for motherboard designers to add them on PC's. Nobody wants 
> to open their case any more ;)

Actually some of the smarter ones wired it to the SMM indications in the
chipset so that only BIOS controlled SMM management code can do the
update and that does checksumming or basic very crude crypto type
checks.

Fortunately the thought of a slammer equivalent that erases the firmware
isn't something most vendors want to risk their stock price and business
on.

Alan

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From: Theodore Tso <ty...@mit.edu>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 01:00:14 +0200
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On Wed, Sep 27, 2006 at 01:37:37PM -0500, Chase Venters wrote:
> I think one thing that should have happened a _lot_ sooner is that you and 
> others should have made clear to the startled community that you object 
> precisely to the anti-Tivoization clause, not because of any technical 
> reason or interpretation but because you don't see anything wrong with 
> Tivo's use of Linux. It would have been nice but totally optional to 
> engage in dialogue with the FSF. But slandering them about their license 
> development process, or their intentions with regard to using Linux as 
> leverage, is counterproductive whether true or not.

This has been made clear to Eben and the FSF, for a long time.  The
FSF has simply chosen not to listen to Linus and other members of the
kernel community.  In fact, I've never seen any interest in a
dialogue, just a pseudo-dialogue where "input is solicited", and then
as near as far as I can tell, at least on the anti-Tivo issue, has
been simply ignored.  But in any case, it should not have come as a
surprise and should not have startled anyone.

Regards,

					- Ted
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 01:10:10 +0200
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On Thu, 28 Sep 2006, Alan Cox wrote:
> 
> Actually some of the smarter ones wired it to the SMM indications in the
> chipset so that only BIOS controlled SMM management code can do the
> update and that does checksumming or basic very crude crypto type
> checks.
> 
> Fortunately the thought of a slammer equivalent that erases the firmware
> isn't something most vendors want to risk their stock price and business
> on.

Amen to that. 

I'm pretty convinced that some companies sometimes go to unreasonable 
lengths in their fear of liability suits (but in their defense, it's not 
like the US legal environment isn't encouraging it), but I think a lot of 
people end up doing things like that our of very basic prudence.

Not because they are "evil" or even mean anything bad at all, but simply 
because they have their own reasons to believe strongly that people must 
not upgrade their hardware.

Most technology people may _want_ to upgrade their hardware, but when you 
look at all the spyware "upgrades" people get on their windows boxes, you 
can certainly understand why there are reasons for things like strong 
crypto upgrades with secret keys even quite apart from anything like the 
RIAA.

		Linus
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From: Chase Venters <chase.vent...@clientec.com>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 01:20:06 +0200
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On Wed, 27 Sep 2006, Theodore Tso wrote:

> On Wed, Sep 27, 2006 at 01:37:37PM -0500, Chase Venters wrote:
>> I think one thing that should have happened a _lot_ sooner is that you and
>> others should have made clear to the startled community that you object
>> precisely to the anti-Tivoization clause, not because of any technical
>> reason or interpretation but because you don't see anything wrong with
>> Tivo's use of Linux. It would have been nice but totally optional to
>> engage in dialogue with the FSF. But slandering them about their license
>> development process, or their intentions with regard to using Linux as
>> leverage, is counterproductive whether true or not.
>
> This has been made clear to Eben and the FSF, for a long time.  The
> FSF has simply chosen not to listen to Linus and other members of the
> kernel community.  In fact, I've never seen any interest in a
> dialogue, just a pseudo-dialogue where "input is solicited", and then
> as near as far as I can tell, at least on the anti-Tivo issue, has
> been simply ignored.  But in any case, it should not have come as a
> surprise and should not have startled anyone.

Perhaps I came off too strong, but I meant what I said, and I'm not only
talking about things being made clear with Eben and the FSF. Frankly, I 
don't know what did or did not happen behind closed doors and it would be 
wrong of me to make assumptions about that.

What I was really addressing here is that the whole F/OSS community 
exploded over the news that Linux was not adopting the GPLv3. I think it's 
fair to say that the reason why Linux is not adopting GPLv3 (aside from 
the very practical matter of gaining the consensus of copyright holders)
is that Linus and other top copyright holders don't think what Tivo is 
doing is wrong. But when that statement first came out, it was almost lost 
in the noise of "The FSF is not going to listen to us, and what about 
encryption keys?" The former probably has no place outside of LKML; the 
latter is the sort of thing you'd bring up at gplv3.fsf.org if you wanted 
to participate in the process.

So a lot of people spent a lot of time thinking Linus was just confused 
about the license and its intentions and that if they could just show him 
why he was reading it wrong he'd change his mind. The point I'm trying 
to make here about what _should_ have happened a lot sooner is that the 
problem should have been defined in the simplest possible terms: "We don't 
want to cut off Tivo. We don't think they are in the wrong." Then it boils 
down to a simple difference in philosophy and everyone can move on.

> Regards,
>
> 					- Ted

Thanks,
Chase Venters
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 02:20:05 +0200
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On Wed, 27 Sep 2006, Chase Venters wrote:
> On Wed, 27 Sep 2006, Theodore Tso wrote:
> > 
> > This has been made clear to Eben and the FSF, for a long time.  The
> > FSF has simply chosen not to listen to Linus and other members of the
> > kernel community.  In fact, I've never seen any interest in a
> > dialogue, just a pseudo-dialogue where "input is solicited", and then
> > as near as far as I can tell, at least on the anti-Tivo issue, has
> > been simply ignored.  But in any case, it should not have come as a
> > surprise and should not have startled anyone.
> 
> Perhaps I came off too strong, but I meant what I said, and I'm not only
> talking about things being made clear with Eben and the FSF. Frankly, I don't
> know what did or did not happen behind closed doors and it would be wrong of
> me to make assumptions about that.

I think a lot of people may be confused because what they see is

 (a) Something that has been brewing for a _loong_ time. There has been 
     the FSF position, and there has been the open source position, and 
     the two have been very clearly separated.

     At the same time, both camps have been trying to be somewhat polite, 
     as long as the fact that the split does clearly exist doesn't 
     actually _matter_.

     So, for example, the GPLv2 has been acceptable to all parties (which 
     is what I argue is its great strength), and practically you've not 
     actually had to care. In fact, most programmers _still_ probably 
     don't care. A lot of people use a license not because they "chose" 
     it, but because they work on a project where somebody else chose the 
     license for them originally.

     This, btw, is probably why some things matter to me more than many 
     other kernel developers. I'm the only one who really had an actual 
     choice of licenses. Relatively, very few other people ever had to 
     even make that choice, and as such, I suspect that a number of people 
     just feel that it wasn't their choice in the first place and that 
     they don't care that deeply.

     Ted is actually likely one of the very few people who were actually 
     involved when the choice of GPLv2 happened, and is in the almost 
     unique situation of probably having an email from me asking if he was 
     ok with switching from my original license to the GPLv2. Ted?

     So we have something that has been going on for more than a decade 
     (the actual name of "Open Source" happened in 1998, but it wasn't 
     like the _issues_ with the FSF hadn't been brewing before that too), 
     but that has mostly been under the surface, because there has been no 
     _practical_ reason to react to it.

 (b) This tension and the standpoints of the two sides has definitely 
     _not_ been unknown to the people involved. Trust me, the FSF knew 
     very well that the kernel standpoint on the GPLv2 was that Tivo was 
     legally in the right, and that it was all ok in that sense.

     Now, a number of people didn't necessarily _like_ what Tivo does or 
     how they did it, but the whole rabid "this must be stopped" thing was 
     from the FSF side. 

> What I was really addressing here is that the whole F/OSS community 
> exploded over the news that Linux was not adopting the GPLv3.

Not really. It wasn't even news. The kernel has had the "v2 only" thing 
explicitly for more than half a decade, and I have personally tried to 
make it very clear that even before that, it never had anything else (ie 
it very much _had_ a specific license version, just by including the damn 
thing, and the kernel has _never_ had the "v2 or any later" language).

So legally, Linux has generally been v2-only since 1992, and just to head 
off any confusion, it's even been very explicit for the last five years.

So what's the "news" really?

I'll tell you what the news is: the FSF was going along, _as_if_ they had 
the support of not just their own supporters, but the OSS community too, 
even though they knew _full_well_ what the differences were.

In fact, a lot of people have felt that they've been riding of the 
coat-tails of Linux - without ever realizing that one of the things that 
made Linux and Open Source so successful was exactly the fact that we did 
_not_ buy into the rhetoric and the extremism.

Claiming that the FSF didn't know, and that this took them "by surprise" 
is just ludicrous. Richard Stallman has very vocally complained about the 
Open Source people having "forgotten" what was important, and has talked 
about me as if I'm some half-wit who doesn't understand the "real" issue.

In fact, they still do that. Trying to explain the "mis-understanding". 

It was _never_ a mis-understanding. And I think the only surprise here was 
not how the kernel community felt, but the fact that Richard and Eben had 
probably counted on us just not standing up for it.

THAT is the surprise. The fact that we had the _gall_ to tell them that 
we didn't agree with them.

The fact that we didn't agree was not a surprise at all.

> I think it's fair to say that the reason why Linux is not adopting GPLv3 
> (aside from the very practical matter of gaining the consensus of 
> copyright holders) is that Linus and other top copyright holders don't 
> think what Tivo is doing is wrong.

Well, I personally believe that Tivo did everything right, but in the 
interest of full disclosure, sure, some people even _do_ belive that what 
Tivo is doing is wrong, but pretty much everybody agrees that trying to 
stop them is _worse_ than the thing it tries to fix.

Because the even _deeper_ rift between the FSF and the whole "Open Source" 
community is not over "Tivo" or any particular detail like that, but 
between "practical and useful" and "ideology".

And no, it's not a black-and-white issue. There are all kinds of shades of 
gray, and "practical" and "ideology" aren't even mutually incompatible! 
It's just that sometimes they say different things.

And yes, I personally exploded, but hey, it's been brewing for over a 
decade. Let me over-react sometimes. I'm still always right ;)

			Linus
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From: Alan Cox <a...@lxorguk.ukuu.org.uk>
Newsgroups: fa.linux.kernel
Subject: Re: GPLv3 Position Statement
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Ar Mer, 2006-09-27 am 17:18 -0700, ysgrifennodd Linus Torvalds:
>      _not_ been unknown to the people involved. Trust me, the FSF knew 
>      very well that the kernel standpoint on the GPLv2 was that Tivo was

s/kernel/Linus and some other copyright holders/

I reserve the right some day to attempt to sue the ass of people who
tivo-ise my code. Hey I might lose but I reserve the right to.

That said the FSF DRM clause is problematic, the GPLv2 leaves things in
a slightly woolly situation with regards to keys in terms of whether
they are part of the scripts etc (for the benefit of anyone's corporate
lawyers: I think they usually are and I've said so in public). That
vagueness is actually a good thing because it lets the legal system
interpret the intent of the license and the situation at hand. Lawyers
generally don't like vaguenesses of course and the GPLv3 draft tries to
be non-vague. It's also flawed as a result precisely because it has to
cover every imaginable case in one paragraph.

There are lots of problems with the current v3 draft

1.	"anything users can regenerate automatically" is horribly vague.
Automatically *how* - with a $25,000 proprietary tool for example ....

2.	Section 3 is US specific and doesn't really work. In some parts of
the world breaking a technological protection seems to be a criminal
matter and you can't waive the criminal law.

3.	Additional terms is a license explosion and the interactions between
them will get ugly.

4.	The geographical clause still has the same bug as GPLv2. Who is the
"original author" and what happens when I write a new OS and import 90%
of Linux into it - am I the original author now ?


Some of this is quite fixable - the "regenerate automatically" for
example and the glitches in the patent clauses are just a matter of a
little more lawyering, others like the DRM clauses don't work and also
don't really address rented equipment for example.

Personally I'm still hopeful the final GPLv3 will fix at least the
majority of problems. I'm not sure it ultimately matters for the kernel
whether it does or not, but for the general case of free software it is
clearly important to get it right.

Alan

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From: "Patrick McFarland" <diabl...@gmail.com>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 03:00:14 +0200
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On Wednesday 27 September 2006 20:18, Linus Torvalds wrote:
> I think a lot of people may be confused because what they see is
>
>  (a) Something that has been brewing for a _loong_ time. There has been
>      the FSF position, and there has been the open source position, and
>      the two have been very clearly separated.

But whats wrong with that? The FSF is a "project" (or really, a group
of projects, because some FSF projects don't agree with the FSF
position either), it isn't them official voice of the community.

The open source community (which, of course, the FSF hates the term
"open source" because it undermines their authority) is made up of
many projects, each with their own official line. RMS has his, you
have yours, GNOME has theirs, KDE has theirs, and so on.

>      At the same time, both camps have been trying to be somewhat polite,
>      as long as the fact that the split does clearly exist doesn't
>      actually _matter_.

I agree. It doesn't matter because everyone is free to use whatever
version they want of the GPL. Of course, people do also recognize that
the GPL2 vs GPL3 argument is just a more subtle version of whats been
going on for years with BSD vs GPL.

>      So, for example, the GPLv2 has been acceptable to all parties (which
>      is what I argue is its great strength), and practically you've not
>      actually had to care. In fact, most programmers _still_ probably
>      don't care. A lot of people use a license not because they "chose"
>      it, but because they work on a project where somebody else chose the
>      license for them originally.

Programmers don't care because we aren't lawyers. I mean, few things
are stated so simply, but lets face it, law is boring to quite a few
geeks, and the intersection between geeks who code and geeks who law
is very small.

>  (b) This tension and the standpoints of the two sides has definitely
>      _not_ been unknown to the people involved. Trust me, the FSF knew
>      very well that the kernel standpoint on the GPLv2 was that Tivo was
>      legally in the right, and that it was all ok in that sense.
>
>      Now, a number of people didn't necessarily _like_ what Tivo does or
>      how they did it, but the whole rabid "this must be stopped" thing was
>      from the FSF side.

Which is why I said above, the FSF is not the official voice of the
community, but instead one of many, and also no longer one of the
loudest.

> > What I was really addressing here is that the whole F/OSS community
> > exploded over the news that Linux was not adopting the GPLv3.
>
> Not really. It wasn't even news. The kernel has had the "v2 only" thing
> explicitly for more than half a decade, and I have personally tried to
> make it very clear that even before that, it never had anything else (ie
> it very much _had_ a specific license version, just by including the damn
> thing, and the kernel has _never_ had the "v2 or any later" language).

Wasn't that just to prevent the FSF from going evil and juping all your code?

> In fact, a lot of people have felt that they've been riding of the
> coat-tails of Linux - without ever realizing that one of the things that
> made Linux and Open Source so successful was exactly the fact that we did
> _not_ buy into the rhetoric and the extremism.

The only problem is that, alternatively, the FOSS movement was so
strong because of RMS's kool-aid everyone drank. The community has
teeth, and this is in partly because of the actions of the FSF. We
defend ourselves when we need to.

Its just that, at least with the Tivo case, that the defense went a tad too far.

> Claiming that the FSF didn't know, and that this took them "by surprise"
> is just ludicrous. Richard Stallman has very vocally complained about the
> Open Source people having "forgotten" what was important, and has talked
> about me as if I'm some half-wit who doesn't understand the "real" issue.

The real issue, in my opinion, is that RMS found out that he no longer
leads the community, and his power base is a lot smaller than it used
to be. The FSF itself is a lot less relevant than it was 10 years ago.

> In fact, they still do that. Trying to explain the "mis-understanding".

Ego does wonders.

> Because the even _deeper_ rift between the FSF and the whole "Open Source"
> community is not over "Tivo" or any particular detail like that, but
> between "practical and useful" and "ideology".

I agree. I totally agree. The rift exists _not_ because the OSS
community wants to do its own thing, but because the FSF are no longer
the overlords of the Bazaar that they thought they were.

> 			Linus

Also, I expect to get flamed for what I've written above, especially
from RMS in some form or another. Thats fine. The FSF has given the
community a lot, and us, the community, has given a lot in return.

That doesn't, however, give RMS the right to be some sort of King. The
OSS community, instead, is a form of a democracy, and you vote with
your code.

Linus, you voted with your code.

-- 
Patrick McFarland || http://AdTerrasPerAspera.com
"Computer games don't affect kids; I mean if Pac-Man affected us as kids,
we'd all be running around in darkened rooms, munching magic pills and
listening to repetitive electronic music." -- Kristian Wilson, Nintendo,
Inc, 1989
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 05:20:09 +0200
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On Wed, 27 Sep 2006, Patrick McFarland wrote:
> On Wednesday 27 September 2006 20:18, Linus Torvalds wrote:
> > I think a lot of people may be confused because what they see is
> > 
> >  (a) Something that has been brewing for a _loong_ time. There has been
> >      the FSF position, and there has been the open source position, and
> >      the two have been very clearly separated.
> 
> But whats wrong with that? The FSF is a "project" (or really, a group
> of projects, because some FSF projects don't agree with the FSF
> position either), it isn't them official voice of the community.

Right, I'm not saying that there is anything wrong with having two 
positions.

In many ways, I'm saying the opposite. I'm saying that we should _expect_ 
people to have different opinions. Everybody has their own opinion anyway, 
and expecting people not have different opinions (especially programmers, 
who are a rather opinionated lot in the first place) is just not 
realistic.

There's absolutely nothing wrong with having a very wide consensus among a 
very varied developer base. In fact, I think that's _great_.

And the reason I'm speaking out against the GPLv3 is that it is trying to 
"sort the chaff from the wheat". The FSF is apparently not happy with a 
wide community appeal - they want _their_ standpoint to be the one that 
matters.

I have all through the "discussion" tried to explain that the great thing 
about the GPLv2 is that it allows all these people with totally different 
ideals to come together. It doesn't have to be "perfect" for any 
particular group - it's very perfection comes not from it's language, but 
the very fact that it's _acceptable_ to a very wide group.

When the FSF tries to "narrow it down", they kill the whole point of it. 
The license suddenly is not a thing to get around and enjoy, it's become a 
weapon to be used to attack the enemy.

Here in the US, the only watchable TV news program is "The Daily Show" 
with Jon Stewart. One of his fairly recurring themes is about how US 
politics is destroyed by all these passionate and vocal extremists, and he 
asks whether there can ever be a really passionate moderate. "Can you be 
passionate about the middle road?"

Dammit, I want to be a "Passionate Moderate". I'm passionate about just 
people being able to work together on the same license, without this 
extremism.

So here's my _real_ cry for freedom:

 "It's _ok_ to be commercial and do it just for money. And yes, you can 
  even have a FSF badge, and carry Stallmans manifesto around everywhere 
  you go. And yes, we accept people who like cryptography, and we accept 
  people who aren't our friends. You don't have to believe exactly like we 
  believe!"

And for fifteen years, the GPLv2 has been a great umbrella for that. 

The FSF is throwing that away, because they don't _want_ to work with 
people who don't share their ideals. 

> >      At the same time, both camps have been trying to be somewhat polite,
> >      as long as the fact that the split does clearly exist doesn't
> >      actually _matter_.
> 
> I agree. It doesn't matter because everyone is free to use whatever
> version they want of the GPL. Of course, people do also recognize that
> the GPL2 vs GPL3 argument is just a more subtle version of whats been
> going on for years with BSD vs GPL.

That's part of what really gets my goat. I spent too much time arguing 
with crazy BSD people who tried to tell me that _their_ license was "true 
freedom". The FSF shills echo those old BSD cries closely - even though 
they are on the exact opposite side of the spectrum on the "freedom" part. 

I hated BSD people who just couldn't shut up about their complaining about 
my choice of license back then (the good old BSD/MIT vs GPL flamewars). 

> >                      In fact, most programmers _still_ probably
> >      don't care. A lot of people use a license not because they "chose"
> >      it, but because they work on a project where somebody else chose the
> >      license for them originally.
> 
> Programmers don't care because we aren't lawyers. I mean, few things
> are stated so simply, but lets face it, law is boring to quite a few
> geeks, and the intersection between geeks who code and geeks who law
> is very small.

I think a _lot_ of programmers care very deeply indeed about the licenses. 
I certainly do. I wouldn't want to be a lawyer, but I care about how my 
code gets used.

That said, I don't care how everybody _elses_ code gets used, which is 
apparently one of the differences between me and rms.

> > Not really. It wasn't even news. The kernel has had the "v2 only" thing
> > explicitly for more than half a decade, and I have personally tried to
> > make it very clear that even before that, it never had anything else (ie
> > it very much _had_ a specific license version, just by including the damn
> > thing, and the kernel has _never_ had the "v2 or any later" language).
> 
> Wasn't that just to prevent the FSF from going evil and juping all your code?

Well, initially it wasn't even a conscious "I don't trust the FSF" thing. 
But when I chose the GPL (v2, back then) I chose _that_ license. There was 
absolutely no need for me to say "or later". If the GPLv2 ever really 
turns out to be a bad license, we can re-license _then_.

Yes, it would be really really painful, but I think the "or later" wording 
is worse. How can you _ever_ sign anything sight unseen? That's just 
stupid, and that's totally regardless of any worries about the FSF.

Later, when I did start having doubts about the FSF, I just made it even 
more clear, since some people wondered.

> The only problem is that, alternatively, the FOSS movement was so
> strong because of RMS's kool-aid everyone drank. The community has
> teeth, and this is in partly because of the actions of the FSF. We
> defend ourselves when we need to.
> 
> Its just that, at least with the Tivo case, that the defense went a tad too
> far.

I think the FSF has always alienated as many (or more) people as they 
befriended, but maybe that's just me. I was looking for old newsgroup 
threads about this earlier in the week, and noticed somebody in the BSD 
camp saying that I was using the GPL, but that I wasn't as radical as rms. 
And iirc, that was from 1993, when Linux was virtually unknown.

So I think that not being too extreme is a _good_ thing. It's how you can 
get more people involved.

So everybody - join the "Passionate Moderate" movement, even if you're not 
in the US. We're not passionate about any of the issues, we are just 
_really_ fed up with extreme opinions! And we're not afraid to say so!

[ The really sad part is: that was only _somewhat_ in jest. Dammit, 
  sometimes I think we really need that party! ]

			Linus
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From: Sergey Panov <si...@sipan.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 05:50:08 +0200
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On Wed, 2006-09-27 at 20:15 -0700, Linus Torvalds wrote:
> So everybody - join the "Passionate Moderate" movement, even if you're not 
> in the US. We're not passionate about any of the issues, we are just 
> _really_ fed up with extreme opinions! And we're not afraid to say so!

I hope you understand that "Passionate Moderate" is an oxymoron. And I
do not believe RMS is a commie! To me he is quite a moderate figure
(very strong principals and no diplomatic skills at all, but it does not
mean he is an extremist).


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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 06:20:07 +0200
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On Wed, 27 Sep 2006, Sergey Panov wrote:
> 
> I hope you understand that "Passionate Moderate" is an oxymoron.

No. It's a joke.

But it's a sad, serious, one. You really don't want it explained to you. 
It's too painful.

> And I do not believe RMS is a commie!

Ehh. Nobody called him a commie.

I said he was an extremist (and tastes differ, but I think most people 
would agree). And he _has_ written a manifesto. I'm not kidding. Really. 

  "How soon they forget.."

One thing that I have realized during some of these discussions is that a 
_lot_ of people have literally grown up during all the "Open Source" 
years, and really don't know anything about rms, GNU, or the reason Open 
Source split from Free Software.

I'm feeling like an old fart, just because I still remember the BSD 
license wars, and rms' manifesto, and all this crap.

For you young whippersnappers out there, let me tell you how it was when I 
was young..

We had to walk uphill both ways

 [ "In snow! Five feet deep!"
   "No! Ten feet!"
   "Calm down boys, I'm telling the story" ]

And we had all these rabid GPL haters that were laughing at us, and 
telling us you could never make software under the GPL because none of the 
commercial people would ever touch it and all programmers need to eat and 
feed their kids..

 [ "Tell them about when you killed a grizzly bear with your teeth, 
    gramps!"

   "Shh, Tommy, that's a different story, shush now" ]

And Richard Stallman wrote a manifesto.

Thank God we still have google. "GNU manifesto" still finds it.

> To me he is quite a moderate figure

I'd hate to meet the people you call extreme.

> (very strong principals and no diplomatic skills at all, but it does not
> mean he is an extremist).

I have nothing funny to say here.

I was going to make a joke about the principals, but that's just low. It's 
"principle". A "principal" is something totally different.

Anyway, I'd clearly in need of a drink, as all my "mad debating skillz" 
are clearly leaving me, and I just find myself making all these silly 
comments.

		Linus
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From: Chase Venters <chase.vent...@clientec.com>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 06:50:04 +0200
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On Wednesday 27 September 2006 22:46, Sergey Panov wrote:
> On Wed, 2006-09-27 at 20:15 -0700, Linus Torvalds wrote:
> > So everybody - join the "Passionate Moderate" movement, even if you're
> > not in the US. We're not passionate about any of the issues, we are just
> > _really_ fed up with extreme opinions! And we're not afraid to say so!
>
> I hope you understand that "Passionate Moderate" is an oxymoron. And I
> do not believe RMS is a commie! To me he is quite a moderate figure
> (very strong principals and no diplomatic skills at all, but it does not
> mean he is an extremist).

After lots of careful consideration, I think it is fair to say that Stallman 
vigorously and extremely promotes and stands by his ideals, but the ideals he 
stands for aren't all that radical or extreme. That is the difference, isn't 
it? Wouldn't we all love free software running on free hardware, supporting 
free culture and talking over free spectrum? The biggest difference I've seen 
in the movements is that one aims to strike a conservative and functional 
balance while the other is always trying to push the envelope.

I sympathize with Richard on his avoidance of "open-source". I don't 
necessarily take the same view, but I understand that his big concern is that 
the message he feels is important will be lost. I also think some of the 
things I've heard from the "open-source" side are too extreme - take, for 
instance, ESR's idea that we don't need the GPL license at all. That sounds 
like a nice world he's living in, but I'm not sure we're all on the same 
planet yet.

The final GPLv3 may indeed go too far for many open-source supporters. But 
then again, it is the FSF's license, and it should at least not surprise 
anyone if they are more concerned with the ideals of the license rather than 
current market realities. Market conditions change; ideals generally don't.

And I think society needs both kinds of people. We need strong leaders like 
Linus to coordinate the effort of moving solar systems and strong idealists 
like Richard to inspire minds. I'm not sure Linus or Richard would admit 
this, but I speculate that in a world where only one of them existed, this 
community would have accomplished far less than the one in which they both 
act.

This is really why I got upset when I saw all the crap in the press over the 
last few days. I think both sides have pissed the other off to the point that 
some of us are actively forgetting that we're just, as Eben once 
said, "singing slightly different lyrics to slightly different music, and 
it's dissonant, and it jars us..."

Some amount of contention is naturally good, so long as it does not undermine 
the great ends both movements are achieving. When our flamewars spill out 
into the industry press, it's just likely to make both sides look crazy. I 
wish that most people who choose to take sides could see (and acknowledge!) 
the real value the other side has, even if they don't agree with the approach 
or phraseology. And I wish that more of us wouldn't pick sides; that we'd be 
those "Passionate Moderates" Linus just invented. But we do need loud voices!

Thanks,
Chase Venters
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From: Jan Engelhardt <jeng...@linux01.gwdg.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 10:10:10 +0200
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>People don't have a clue!
>
>The GPLv2 never _ever_ mentions "linking" or any other technical measure 
>at all. Doing so would just be stupid (another problem with the GPLv3, 
>btw). So people who think that the GPLv2 disallows "linking" with 
>non-GPLv2 code had better go back and read the license again.
>
>Grep for it, if you want to. The word "link" simply DOES NOT EXIST IN THE 
>LICENSE!

Hah then read LICENSE.LGPL!

"""Most GNU software, including some libraries, is covered by the
ordinary GNU General Public License.  This license, the GNU Lesser
General Public License, applies to certain designated libraries, and
is quite different from the ordinary General Public License.  We use
this license for certain libraries in order to permit linking those
libraries into non-free programs."""

If the GPL does not mention linking at all, and therefore does not
really forbid it, why do we need an LGPL to allow linking then?

>What the GPLv2 actually talks about is _only_ about "derived work". And 
>whether linking (dynamically, statically, or by using an army of worker 
>gnomes that re-arrange the bits to their liking) means something is 
>"derived or not" is a totally different issue, and is not something you 
>can actually say one way or the other, because it will depend on the 
>circumstances.

I would be of the opinion that dynamic linking does not make it a
derived work, because neither the ld program nor the ld-linux.so
dynamic linker knows whether -lfoo is actually GPL or not.

>> No. The definition of a derivative work is a legal one and not a
>> technical one.

And that is a major problem IMHO. If there is no definitive
[technical] answer to what constitues a derived work, and it leaves
you at risk to lose a case in court while it is a gray area.

Oh well back on the topic: A userspace app just is not a derivate
work of the kernel, for me at least.


>Now, it is also indisputable that if you _need_ to "link", it's a damn 
>good sign that something is _very_likely_ to be derivative, but as Alan 
>points out, you could do the same thing with RPC over a socket, and the 
>fact that you did it technically differently really makes no real 
>difference. So linking per se isn't the issue, and never has been.

Jan Engelhardt
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From: =?iso-8859-1?Q?J=F6rn?= Engel <jo...@wohnheim.fh-wedel.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 11:50:10 +0200
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On Wed, 27 September 2006 17:18:42 -0700, Linus Torvalds wrote:
> 
>      In fact, most programmers _still_ probably 
>      don't care. A lot of people use a license not because they "chose" 
>      it, but because they work on a project where somebody else chose the 
>      license for them originally.

s/most programmers/some programmers/

While I can only speak for myself, I definitely had to make a decision
a couple of times without starting a kernel myself.  Red Hat wanted me
to sign a piece of small-font paper assigning my copyright to JFFS2
over to them.  My thoughts at the time were along the lines of "What
the fuck!!" and I had a lot of thinking to do, but didn't sign it.

My graph traversion code I did for my thesis should have been merged
into gcc, but I didn't even bother sending a patch.  Copyright assign
my ***, thank you very much.

And that is in fact the primary reason, hacking gcc has been fun and I
would like to do more, from a purely technical point of view.  But
having to sign a large amount of legalese is the kind of thing I may
have to do for a job, and they pay me for it.  It is not the kind of
thing I do for fun.  No fun, no money - hell, why should I do
something like that?!?

Thank you for not requiring copyright assignments, Linus.

Jörn

-- 
People will accept your ideas much more readily if you tell them
that Benjamin Franklin said it first.
-- unknown
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From: Jeff Garzik <j...@garzik.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 12:00:18 +0200
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Jörn Engel wrote:
> My graph traversion code I did for my thesis should have been merged
> into gcc, but I didn't even bother sending a patch.  Copyright assign
> my ***, thank you very much.

hehe

For the miniscule patches I have contributed to gcc, I donated them to 
the public domain...


> Thank you for not requiring copyright assignments, Linus.

Indeed.

	Jeff



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From: Lennart Sorensen <lsore...@csclub.uwaterloo.ca>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 16:00:25 +0200
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On Wed, Sep 27, 2006 at 11:39:04PM -0500, Chase Venters wrote:
> This is really why I got upset when I saw all the crap in the press over the 
> last few days. I think both sides have pissed the other off to the point that 
> some of us are actively forgetting that we're just, as Eben once 
> said, "singing slightly different lyrics to slightly different music, and 
> it's dissonant, and it jars us..."
> 
> Some amount of contention is naturally good, so long as it does not undermine 
> the great ends both movements are achieving. When our flamewars spill out 
> into the industry press, it's just likely to make both sides look crazy. I 
> wish that most people who choose to take sides could see (and acknowledge!) 
> the real value the other side has, even if they don't agree with the approach 
> or phraseology. And I wish that more of us wouldn't pick sides; that we'd be 
> those "Passionate Moderates" Linus just invented. But we do need loud voices!

I wonder if perhaps the solution should be that the GPLv3 draft should
be renamed to something else to allow RMS to create his new license that
does exactly what he wants it to do, without hijacking existing GPLv2
code using a license that in many people's opinion is NOT in the spirit
of the GPLv2 (which it could be argued overrides the "or later" part of
the license).  The current GPLv3 draft may be in the spirit of what RMS
intended the GPLv2 to be, but it isn't in the spirit of what the GPLv2
says and does.

No one has a problem with people making new licenses.  People have a
problem with people making new licenses and wanting to retroactively
replace existing licenses with a new and very different license.

Now what would be a good name for the GPLv3?  GRLv1 (GNU Restricted
License v1) perhaps. :)  That is essentially what it is doing.
Restricting what you can do with the code.

--
Len Sorensen
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From: DervishD <l...@dervishd.net>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 16:30:18 +0200
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    Hi Lennart :)

 * Lennart Sorensen <lsore...@csclub.uwaterloo.ca> dixit:
> I wonder if perhaps the solution should be that the GPLv3 draft
> should be renamed to something else to allow RMS to create his new
> license that does exactly what he wants it to do, without hijacking
> existing GPLv2 code using a license that in many people's opinion
> is NOT in the spirit of the GPLv2 (which it could be argued
> overrides the "or later" part of the license).

    That's quite curious, because my wife (who doesn't have a great
software background and that knows FOSS and GPL through me) said
exactly the same when I told her yesterday the problem that people
like me, who has released code under GPLv2, may face if GPLv3 is
applied retroactively to every software that says "or any later
version". She said that of course anybody has the right of making new
licenses, but that, as far as she could tell, the new license
shouldn't be named "GPL" because it was very different from what we
now call "GPL". Of course her vision may be highly biased by what I
told her, but since I still don't have a clear position about all
this GPLv2 vs. GPLv3 issue, I don't think that the bias is so high.

    Probably the renaming is just common sense and will avoid ALL
problems. People like me are concerned only because all GPLv2 that
doesn't state otherwise will be released automagically under GPLv3 as
soon as the latest draft is made the official version. Otherwise, I
wouldn't give a hump about any new license until I have the time to
read it and see if I like it.

    Raúl Núñez de Arenas Coronado

-- 
Linux Registered User 88736 | http://www.dervishd.net
It's my PC and I'll cry if I want to... RAmen!
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 16:50:07 +0200
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On Thu, 28 Sep 2006, Jeff Garzik wrote:
> 
> For the miniscule patches I have contributed to gcc, I donated them to the
> public domain...

Btw, I tried that wit the code I had, it didn't work. It might depend on 
the person you're working with. I was told "We need your assignment on 
file". Some maintainers might be more careful.

I have been told that legally, "putting something in the public domain" 
isn't actually really possible in the US, but maybe that is something that 
lawyers disagree about.

You can assign or transfer your copyrights (in writing, on real paper 
only!) or you can license it, but "public domain" seems to be hard. Unless 
you just want to wait for several decades after your death (and that's 
hoping that Disney doesn't extend it even more after you die).

		Linus
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From: =?iso-8859-1?Q?J=F6rn?= Engel <jo...@wohnheim.fh-wedel.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
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On Thu, 28 September 2006 16:19:32 +0200, DervishD wrote:
> 
>     Probably the renaming is just common sense and will avoid ALL
> problems. People like me are concerned only because all GPLv2 that
> doesn't state otherwise will be released automagically under GPLv3 as
> soon as the latest draft is made the official version. Otherwise, I
> wouldn't give a hump about any new license until I have the time to
> read it and see if I like it.

In my very uninformed opinion, your problem is a very minor one.  Your
"v2 or later" code won't get the license v2 removed, it will become
dual "v2 or v3" licensed.  And assuming that v3 only adds restrictions
and doesn't allow the licensee any additional rights, you, as the
author, shouldn't have to worry much.

The problem arises later.  As with BSD/GPL dual licensed code, where
anyone can take the code and relicense it as either BSD or GPL, "v2 or
v3" code can get relicensed as v3 only.  At this point, nothing is
lost, as the identical "v2 or v3" code still exists.  But with further
development on the "v3 only" branch, you have a fork.  And one that
doesn't just require technical means to get merged back, but has legal
restrictions.

And I assume (careful, I'm _really_ uninformed here) the FSF is well
aware of that and wants a one-way compatibility between v2 and v3.
Any v2 code can be picked up by a v3 project, but not the other way
around.  v3 projects have a clear evolutionary advantage over v2.

And here the kernel wording with "v2 only" in the kernel is
interesting.  It turns a one-way compatibility into no compatibility
at all.  So the evolutionary advantage is lost, as it only exists
through the "v2 or later" term.

Jörn

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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 16:50:11 +0200
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On Thu, 28 Sep 2006, Jörn Engel wrote:
> 
> My graph traversion code I did for my thesis should have been merged
> into gcc, but I didn't even bother sending a patch.  Copyright assign
> my ***, thank you very much.

Yeah, I don't see why the FSF does that. Or I kind of see why, but it has 
always struck me as
 (a) against the whole point of the license
and
 (b) who the F*CK do they think they are?

I refuse to just sign over any copyrights I have. I gave you a license to 
use them, if you can't live with that, then go fish in somebody elses 
pond.

I had some code I tried to give to glibc back when I was doing Linux/axp, 
since glibc was really in pretty sad shape in some areas. I think I had a 
integer divide routine that was something like five times faster than the 
one in glibc, and about a tenth of the size. Things like that. So I wanted 
to give things back, but ended up just throwing in the towel and said "ok, 
if they don't want the code, whatever..".

If somebody pays me real bucks, I'll work for them, and I'm perfectly ok 
with letting them own copyright in the end result (ie I've done commercial 
software too, and I think it's only reasonable that since I did it for 
pay, I don't own that software myself). But copyright assignments "just 
because we want to control the end result"? No thank you.

> And that is in fact the primary reason, hacking gcc has been fun and I
> would like to do more, from a purely technical point of view.  But
> having to sign a large amount of legalese is the kind of thing I may
> have to do for a job, and they pay me for it.  It is not the kind of
> thing I do for fun.  No fun, no money - hell, why should I do
> something like that?!?
> 
> Thank you for not requiring copyright assignments, Linus.

I _hate_ copyright assignments. Maybe it's a European thing.

Of course, I also hate paperwork, so maybe it's just a "lazy" thing.

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 17:10:18 +0200
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On Thu, 28 Sep 2006, Jörn Engel wrote:
> 
> And I assume (careful, I'm _really_ uninformed here) the FSF is well
> aware of that and wants a one-way compatibility between v2 and v3.
> Any v2 code can be picked up by a v3 project, but not the other way
> around.  v3 projects have a clear evolutionary advantage over v2.

A _real_ v2 project doesn't have that problem. In fact, I'm a huge 
believer in evolution (not in the sense that "it happened" - anybody who 
doesn't believe that is either uninformed or crazy, but in the sense "the 
processes of evolution are really fundamental, and should probably be at 
least _thought_ about in pretty much any context").

And I think the v2 is actually _more_ stable in an evolutionary sense 
(look up Maynard Smith and "ESS" - "Evolutionarily Stable Strategy" - for 
more ideas about the biological evolution case) exactly because it's more 
inclusive - it handles more cases.

The GPLv3 is a dead end in some areas, exactly because it limits how the 
project can be used, and as such will automatically limit itself away from 
some niches. Also, because I believe that it's less "universally 
acceptable", it has a harder time competing anyway.

And the GPLv2 and GPLv3 really _are_ mutually incompatible. There is 
absolutely nothing in the GPLv2 that is inherently compatible with the 
GPLv3, and the _only_ way you can mix code is if you explicitly 
dual-license it.

Ie, GPLv2 and GPLv3 are compatible only the same way GPLv2 is compatible 
with a commercial proprietary license: they are compatible only if you 
release the code under a dual license. 

The whole "or later" phrase is legally _no_ different at all from a dual 
licensing (it's just more open-ended, and you don't know what the "or 
later" will be, so you're basically saying that you trust the FSF 
implicitly).

> And here the kernel wording with "v2 only" in the kernel is
> interesting.

No. I _really_ want to clarify this, because so many people get it wrong. 
Really.

The "GPLv2 only" wording is really just a clarification. You don't need it 
for the project to be "GPLv2 only".

If a project says: "This code is licensed under this copyright license" 
and then goes on to quote the GPLv2, then IT IS NOT COMPATIBLE WITH THE 
GPLv3!

Or if you just say "I license my code under the GPLv2", IT IS NOT 
COMPATIBLE WITH THE GPLv3.

Really. There is zero inherent compatibility. The GPLv2 is written (on 
purpose) to not be compatible with _anything_ but itself. If you want your 
code to be compatible with anything else, you have to explicitly say so. 
In other words, you have to dual-license it, and _keep_ it dual-licensed.

> So the evolutionary advantage is lost, as it only exists through the "v2 
> or later" term.

Exactly. The GPLv3 can _only_ take over a GPLv2 project if the "or later" 
exists.

It should also be pointed out that even a "GPLv2 or later" project can be 
forked two different ways: you can turn it into a "GPLv3" (with perhaps a 
"or later" added too) project, but you can _equally_ turn it into a "GPLv2 
only" project.

In other words, even if the license says "GPLv2 or later", the GPLv3 isn't 
actually "stronger". The original author dual-licensed it, and expressly 
told you that he's ok with any GPL version greater than or equal to 2.

			Linus
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From: =?iso-8859-1?Q?J=F6rn?= Engel <jo...@wohnheim.fh-wedel.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 17:30:11 +0200
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On Thu, 28 September 2006 08:04:13 -0700, Linus Torvalds wrote:
> 
> No. I _really_ want to clarify this, because so many people get it wrong. 
> Really.
> 
> The "GPLv2 only" wording is really just a clarification. You don't need it 
> for the project to be "GPLv2 only".
> 
> If a project says: "This code is licensed under this copyright license" 
> and then goes on to quote the GPLv2, then IT IS NOT COMPATIBLE WITH THE 
> GPLv3!
> 
> Or if you just say "I license my code under the GPLv2", IT IS NOT 
> COMPATIBLE WITH THE GPLv3.

And this is an area where I slightly disagree with you.  While I would
hope that you were right, I can easily imagine a judge ruling that "v2
or later" in the preamble means that the project just signed a blank
license of the FSF's discretion.

I can just as easily imagine a judge ruling that "simply copying the
GPL license verbatim and not removing the 'or later'" clause is does
not sufficiently demonstrate the authors intent to dual-license the
code.

And the likelihood of either ruling will depend on many things, but
will never reach 0 or 1.  It is a gray area where your legal advice is
just as bad as mine and your "GPLv2 only" clarification may in fact be
a fork I was talking about.  We just don't know until this has been
tested in court, which hopefully never happens.

Jörn

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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 17:30:18 +0200
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On Thu, 28 Sep 2006, Linus Torvalds wrote:
> 
> It should also be pointed out that even a "GPLv2 or later" project can be 
> forked two different ways: you can turn it into a "GPLv3" (with perhaps a 
> "or later" added too) project, but you can _equally_ turn it into a "GPLv2 
> only" project.

Btw, it should be stated here: I'm not advocating either of the above. If 
a license says "v2 or later", anybody who removes an explicit right 
granted by the people who originally wrote and worked on the code is just 
being a total a-hole.

Quite frankly, if the FSF ever relicenses any of their projects to be 
"GPLv3 or later", I will hope that everybody immediately forks, and 
creates a GPLv2-only copy (and yes, you have to do it immediately, or 
you're screwed forever). That way the people involved can all vote with 
their feet.

I think the same is true of code that is licensed "GPL or BSD dual 
licensed". If I notice a patch that removes the BSD dual-license for a 
file, I won't apply it to the kernel I maintain unless there is some 
really pressing reason that I can't even think of off-hand (of course, 
that doesn't mean it can't have happened - if it came through a 
sub-maintainer I would likely never even have noticed).

Or, indeed, as in the case of the reiserfs code: it's dual-licensed "GPLv2 
or any other license as per Hans Reiser".

Btw, I have always found it funny how some people have no problem at all 
with "GPLv2 or later", but then complain about reiserfs: it is _exactly_ 
the same dual-license, it's just that a different legal entity controls 
the other yet-to-be-determined license.

The only _real_ difference is that in the case of reiserfs, the "other 
entity" is actually the original author of the code, so I _personally_ 
actually very strongly feel that the reiserfs case is _better_ than "GPLv2 
or later". In the reiserfs case, the person who does the relicensing is 
actually the same people who wrote the original code and maintained it. 

That's how it should be (of course, I think Reiser isn't actually 
actively maintaining reiserfs any more, so at some point his "moral 
rights" do end up weakening, but in the absense of any big rewrites, I 
don't think that has happened yet in this example - I just wanted to 
point out that things aren't "black-and-white" and "original author" 
only gets you so far if you then leave the project).

I know certain people don't like the reiserfs license - they've complained 
to me. At the same time, I know some of those same people themselves 
expressly use "GPLv2 or later". I think those people have a serious 
disconnect in their logic.

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 17:40:07 +0200
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On Thu, 28 Sep 2006, Lennart Sorensen wrote:
> 
> I wonder if perhaps the solution should be that the GPLv3 draft should
> be renamed to something else to allow RMS to create his new license that
> does exactly what he wants it to do, without hijacking existing GPLv2
> code using a license that in many people's opinion is NOT in the spirit
> of the GPLv2 (which it could be argued overrides the "or later" part of
> the license).

I've argued that in the past, and so have others. 

I think the GPLv3 could well try to stand on its own, without being 
propped up by a lot of code which was written by people who may or may not 
agree with the changes.

The whole "in the spirit of" thing is very much debatable - the FSF will 
claim that it's in _their_ spirit, but the whole point of the language is 
not to re-assure _them_, but others, so the argument (which I've heard 
over and over again) that _their_ spirit matters more is somewhat dubious.

I would personally think that a much less contentious thing would have 
been to make a future "GPL" only happens if some court of law actually 
struck down something, or some actual judge made it clear that something 
could be problematic. In other words, it shouldn't extend on the meaning 
of the license, it should be used to _fix_ actual problems. Not imagined 
ones.

Instead, so far, every single lawsuit about the GPLv2 has instead 
strengthened the thing. NONE of the worries that people have had 
(language, translation, whatever) have actually been problems. The GPLv2 
is stronger today than it was 15 years ago!

But there are certainly tons of non-legal reasons why the FSF doesn't want 
to go that way.

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 17:40:10 +0200
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On Thu, 28 Sep 2006, Jörn Engel wrote:
> 
> And this is an area where I slightly disagree with you.  While I would
> hope that you were right, I can easily imagine a judge ruling that "v2
> or later" in the preamble means that the project just signed a blank
> license of the FSF's discretion.

I think a judge could rule on almost anything, almost any way. Some judges 
seem to have less sense than a well-trained rabbit (see the lawsuit about 
"The Wind Done Gone", where at least one judge blocked it.

Judges are just people, after all.

So yes, clarifications are good. No question about that. There's a reason 
I added mine. Just to tell everybody else, and to make sure there's as 
little gray area in that place as humanly possible.

So I'm not saying that "v2 only" language is _bad_. I'm just saying that 
it shouldn't matter. It's technically enough to just say "GPLv2", and you 
don't really have to say anything else.

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 20:40:14 +0200
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On Wed, 27 Sep 2006, Chase Venters wrote:
> 
> After lots of careful consideration, I think it is fair to say that Stallman 
> vigorously and extremely promotes and stands by his ideals, but the ideals he 
> stands for aren't all that radical or extreme. That is the difference, isn't 
> it?

I would disagree.

What you talk about is "idealism". You can be idealistic about anything. I 
agree that rms is also idealistic, but that's not what makes him 
extremist. There are a lot of idealistic people who aren't extreme.

Extremism has nothing to do with _what_ the ideal is, but with how you 
state them. That's not just my interpretation, I can back it up with 
actual meaning of the word. 

	S: (n) extremism (any political theory favoring immoderate 
		uncompromising policies)

That's from wordnet.princeton.edu.

Note the "ANY" in "any political theory".

And that "immoderate" and "uncompromizing" is rms to a T.

So please, if you want to argue semantics, at least look up the word 
first. When I said extremist, I didn't use that word in the wrong way.

For example, the difference between a "deeply religious person" and an 
"extremist religious person" is not in their depth or trueness of their 
beliefs. It's in whether they want to allow other people to believe 
otherwise and can compromize when dealing with those other people.

		Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Thu, 28 Sep 2006 22:50:13 +0200
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On Thu, 28 Sep 2006, Jan Engelhardt wrote:

> 
> >People don't have a clue!
> >
> >Grep for it, if you want to. The word "link" simply DOES NOT EXIST IN THE 
> >LICENSE!
> 
> Hah then read LICENSE.LGPL!

Thank you for proving my point.

The part you quote aren't part of the license. They're in the same file, 
but they are separate from the actual text of the license. It's called the 
"preamble", and you should really realize what it means. 

The _license_ is the legal part. It's the thing between "terms and 
conditions" and "end of terms and conditions".

I like being right, but I hate being proven right quite so quickly.

(Btw, the license you quoted wasn't even the GPL. The LGPL - which is a 
totally different thing - _does_ indeed talk about "linking", but the part 
you quoted wasn't even _in_ that license, so it was kind of doubly silly 
to bring that part up, now wasn't it?)

> If the GPL does not mention linking at all, and therefore does not
> really forbid it, why do we need an LGPL to allow linking then?

Where did you learn logic?

The GPL doesn't mention linking, because the GPL only talks about derived 
works. The LGPL talks about linking, because it wants to _narrow_ its 
scope from "derived works" to something smaller, and makes it clear that 
even within a derived work, the technical thing of "linking" actually 
consitutes a license boundary.

However, the fact IN NO WAY logically implies the reverse is true. The 
fact that you link (or not) _in_itself_ does not necessarily imply a 
boundary of derived works.

Your logic is so horribly flawed that it's not even funny. It's the same 
thing as if you said

  - Aristotle is a man
  - I am not Aristotle
  - Therefore I am not a man

Please take a course in Logic 101.

		Linus

PS. Just so that you don't confuse things _again_, I'd like to repeat: 
pretty much everybody would agree that linking is often a damn strong 
reason to believe the things are related and probably derived works. But 
it's not at all a logical conclusion, and it's not at all necessarily 
always right. "Derived work" is a lot more complicated than that.

Linking with a GPL'd version of a standard C library (ie a non-GPL'd 
version would have worked equally well, and you just did it becasue you 
didn't think) would be very possibly (even likely) not be considered to be 
a "derived work", but "mere aggregation".

Think about that for a moment.

And realize that the reason people then use the LGPL is that with that 
license, the question above never even comes up. So you're on much safer 
ground, and you don't have to worry about crazy people suing you.

A lot of legal stuff is not just to avoid illegal things, but to 
_obviously_ avoid them. You never really want to be even close to the 
edge.
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From: Neil Brown <ne...@suse.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 02:30:16 +0200
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On Thursday September 28, torva...@osdl.org wrote:
> 
> 
> On Thu, 28 Sep 2006, Linus Torvalds wrote:
> > 
> > It should also be pointed out that even a "GPLv2 or later" project can be 
> > forked two different ways: you can turn it into a "GPLv3" (with perhaps a 
> > "or later" added too) project, but you can _equally_ turn it into a "GPLv2 
> > only" project.
> 
> Btw, it should be stated here: I'm not advocating either of the above. If 
> a license says "v2 or later", anybody who removes an explicit right 
> granted by the people who originally wrote and worked on the code is just 
> being a total a-hole.

But isn't that the whole point - to replace v2 by v3?
As v3 is almost uniformly more restrictive than v2, anyone having the
option of choosing v2 or v3 would naturally choose v2.
If there is to be no removal of the v2 license from "v2 or later"
code, then there is absolutely no point in the new license being a new
version of the GPL.  Rather it is a totally new license.
Now I know that is what you would prefer, but it seems obvious that it
isn't what the new FSF wants.
I would be very surprised if new versions of any FSF-control code is
available under v2 more than a few months after v3 becomes final.

> 
> Quite frankly, if the FSF ever relicenses any of their projects to be 
> "GPLv3 or later", I will hope that everybody immediately forks, and 
> creates a GPLv2-only copy (and yes, you have to do it immediately, or 
> you're screwed forever). That way the people involved can all vote with 
> their feet.

I don't see the urgency.  Why are you "screwed forever"?  You can
always take the last version that was available under a suitable
license and fork from there, just like OpenSSH did.

Sure: the longer you leave it the harder it will be to get critical
mass, but I don't see the need for it to be done immediately.

NeilBrown
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> Thanks for posting this. It's obviously had a lot of thought go into
> it.

You're welcome ... sorry it took me a while to find this ... I'm not
subscribed to lkml, so if I'm not cc'd on the mail, I don't see the
reply (until I trawl one of the consolidator websites)

> I do think there are a few flaws in the arguments however. The biggest
> one for me can be summed up in the question "which license better
> represents the intention of the GPLv2 in the current world?"

Really, that's not a flaw.  Some people like GPLv2 purely on its
practical effect; others because of its political statements.  I think
Linus has summed it up much better that I can here:

http://marc.theaimsgroup.com/?l=linux-kernel&m=115915241428792

However, the true strength of GPLv2 was that we could all unite around
it, even if we had different beliefs (as in Free Software vs Open
Source).

> When the GPLv2 was drafted it wasn't a legal document in a vacuum. It
> came with a preamble that stated its intentions, and it came with
> someone who toured the world explaining the intentions and
> motivations. There were even plenty of repeat performances for anyone
> who wanted to attend :-)

> I think the GPLv3 does a better job of expressing legally those
> intentions than GPLv2 did. In particular this part of the v2 preamble:

>   "For example, if you distribute copies of such a program, whether
>    gratis or for a fee, you must give the recipients all the rights
>    that you have."

but the preamble isn't part of the actual licence.  Additionally, if you
see the rights framed in terms of access to modifications, then GPLv3 is
different.

> I think that recent developments (such as TiVo v2) have shown that
> companies have found ways to give recipients less rights then they
> have themselves. 

I agree they've found ways of restricting how their hardware is used,
yes.  However, I tried to give a rationale of why this isn't necessarily
bad for the open source ecosystem as a whole here:

http://marc.theaimsgroup.com/?l=linux-kernel&m=115920543731682

> So I think the parts of the position statement that talk about the
> importance of the 'development contract as expressed/represented by
> GPLv2' and the implication that this contract would be violated by the
> current GPLv3 draft are not accurate. That development contract came
> with a clear explanation (or at least it seems clear to me).
> 
> Similarly, the position statement states:
> 
>   "This in turn is brought about by a peculiar freedom enshrined in the
>   developer contract as represented by GPLv2, namely the freedom from
>   binding the end use of the project."
> 
> but I think this particular 'freedom' comes more from the development
> conventions of the Linux kernel community than from the GPLv2. I don't
> see anything in the GPLv2 that actually tried to enshrine that
> particular freedom. That doesn't mean it isn't a worthwhile thing to
> enshrine, I just think it is inaccurate to claim that the GPLv2
> attempts in any way to enshrine it.

Actually, no, it's enshrined in GPLv2 in clause 0:

"Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope.  The act of
running the Program is not restricted, and the output from the Program
is covered only if its contents constitute a work based on the
Program (independent of having been made by running the Program).
Whether that is true depends on what the Program does."

It's the "act of running the program is not restricted".

This is really the crux of the argument with the FSF over the DRM
clauses.  If you take the position (as the people who signed the
discussion paper do) that embedded Linux constitutes an end use, then
this freedom from restriction of running the programme is compromised in
GPLv3, and hence is against the spirit of GPLv2 (and thus violates
clause 9 of GPLv2).

To go after Tivo (and not violate GPLv2 clause 9), the FSF has to take
the position that what Tivo is doing is not use, but is distribution.
This is a dangerous shift in precedent because it applies to every
embedded use of Linux (or any other GPL licensed programme).

> > As drafted, this currently looks like it would potentially jeopardise the
> > entire patent portfolio of a company simply by the act of placing a GPLv3
> > licensed programme on their website.
> 
> I can't see anything in the current GPLv3 draft which would do
> that. Could you explain how that comes about?

That's clause 11 of the current v3 Draft2:

"If you convey a covered work, you similarly covenant to all recipients,
including recipients of works based on the covered work, not to assert
any of your essential patent claims in the covered work."

This means that if you host a GPLv3 covered programme on your website
for instance (even if you didn't produce it or modify it in any way),
you licence any patent you hold covering it.

HP is already on record as objecting to this as disproportionate.

James


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Subject: Re: GPLv3 Position Statement
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James,

 > > I do think there are a few flaws in the arguments however. The biggest
 > > one for me can be summed up in the question "which license better
 > > represents the intention of the GPLv2 in the current world?"
 > 
 > Really, that's not a flaw.  Some people like GPLv2 purely on its
 > practical effect; others because of its political statements.  I think
 > Linus has summed it up much better that I can here:

I probably didn't make myself clear enough. I'm not disagreeing with
the conclusion Linus has come to. I don't have enough copyright
remaining in the Linux kernel to consider trying to influence that
decision.

I am however disagreeing with the justification given in the position
statement. The position statement implies that the FSF may be in
breach of contract, at least morally, by trying to release a version
of the GPL that is not in keeping with previous versions. I think the
preamble of the GPLv2 and the explanations given of the FSF intentions
over the years are completely consistent with the GPLv3 current draft.

As Linus has said in another thread, the FSF has been arguing this
position for many years. Their position on DRM is entirely consistent
with the original motivations for starting the GNU project, especially
when you think of the original printer story that inspired it all.

At the same time, the position Linus has taken is consistent with his
past attitude towards similar issues. I don't think it is entirely
consistent with the COPYING file that has been distributed with the
kernel all these years (especially the preamble), but thats probably
debatable.

 > but the preamble isn't part of the actual licence.  Additionally, if you
 > see the rights framed in terms of access to modifications, then GPLv3 is
 > different.

The GPLv3 is certainly different, otherwise there isn't much point in
an update. 

I would argue that the GPLv3 current draft is more consistent with the
aims of the GPLv2, as given in the preamble of the GPLv2 in numerous
speeches by Richard and other FSF members, than the GPLv2 license text
is.

So I think that the FSF have done nothing morally wrong. Whether Linus
or anyone else prefers the GPLv2 license text or the GPLv3 license
text is an entirely separate issue and not something that I have
commented on. 

 > I agree they've found ways of restricting how their hardware is used,
 > yes.  However, I tried to give a rationale of why this isn't necessarily
 > bad for the open source ecosystem as a whole here:
 > 
 > http://marc.theaimsgroup.com/?l=linux-kernel&m=115920543731682

I am not trying to argue if its good or bad for the open source
ecosystem, at least as regards the Linux kernel. I am trying to ensure
that yourself and others understand that your criticisms of the
consistency of the FSF position are not correct.

For my own code, I think GPLv3 is a better choice. This is largely
because I have been through the pain of enforcement of GPLv2 a number
of times, and I can see that GPLv3 should make it easier, at least for
me. The language is clearer, which means less time spent on pointless
copyright law debates with various vendors. 

For other projects the relative benefits of v2 versus v3 may be
different, but I at least hope that project leaders will look at GPLv3
and make an informed decision. I think the errors in the position
statement may lead to people making incorrect judgements.

 > Actually, no, it's enshrined in GPLv2 in clause 0:
 > 
 > "Activities other than copying, distribution and modification are not
 > covered by this License; they are outside its scope.  The act of
 > running the Program is not restricted, and the output from the Program
 > is covered only if its contents constitute a work based on the
 > Program (independent of having been made by running the Program).
 > Whether that is true depends on what the Program does."
 > 
 > It's the "act of running the program is not restricted".

ok, lets take a really obvious example. Say that HP decided to
incorporate modified parts of the Linux kernel in HPUX on in their
printers. HP would be distributing the resulting image for people to
use. The fact that people are 'using' it in the end does not alter the
fact that HP would be in violation of the GPL during the act of
distribution.

So what clause 0 is saying is two things:

 1) its a basic statement of copyright law, at least in the US

 2) if someone distributes in violation of the GPL, you should go
    after the distributor, not the end users.

So as a TiVo owner, I am not in violation of the GPL. But TiVo can be
in violation for selling me something based on Linux which does not
follow the GPL.

I actually think they were already in violation with TiVo version 1,
as they were using binary kernel modules. Although it is possible to
have a kernel module which is not a derivative work of the kernel (as
address space and linking concerns are only "rules of thumb", not true
tests for a derivative work), I think that their modules were in fact
pretty clearly derived works. I can say this partly because I have
disassembled a few of them and looked at them in great detail.

 > This is really the crux of the argument with the FSF over the DRM
 > clauses.  If you take the position (as the people who signed the
 > discussion paper do) that embedded Linux constitutes an end use, then
 > this freedom from restriction of running the programme is compromised in
 > GPLv3, and hence is against the spirit of GPLv2 (and thus violates
 > clause 9 of GPLv2).

"embedded Linux constitutes end use" as a statement by itself makes no
sense. Are you really trying to argue that all embedded system vendors
get a "get out of jail free" card with regard the GPLv2?

When an embedded system vendor ships Samba as part of their system
they are very clearly distributing Samba. That has been proven time
and again in legal disputes with regards the GPL that I and others have
been involved with. The ones I have been involved with didn't end up
in court, as the lawyers and managers for these companies realised
they were wrong and quickly gave up. 

 > To go after Tivo (and not violate GPLv2 clause 9), the FSF has to take
 > the position that what Tivo is doing is not use, but is distribution.
 > This is a dangerous shift in precedent because it applies to every
 > embedded use of Linux (or any other GPL licensed programme).

No, the FSF doesn't need to take a position like that. 

A copyright license can put almost any burden it likes on a
distributor. I could have put a license on Samba saying it may not be
distributed with hardware that has more than 7pins on the main CPU. It
would have been an idiotic restriction, but it would also have been
enforceable, and vendors would have had to use a different software
package instead of Samba.

The FSF is using the DRM terms in GPLv3 to try to enforce their
original intentions, as they have explained those intentions for many
years. That is not a shift in what they have been doing for years
anyway, but the new language does make it clearer, and thus less time
consuming to enforce.

 > That's clause 11 of the current v3 Draft2:
 > 
 > "If you convey a covered work, you similarly covenant to all recipients,
 > including recipients of works based on the covered work, not to assert
 > any of your essential patent claims in the covered work."

yes, and in GPLv2, in the preamble we have:

   Finally, any free program is threatened constantly by software
 patents.  We wish to avoid the danger that redistributors of a free
 program will individually obtain patent licenses, in effect making
 the program proprietary.  To prevent this, we have made it clear that
 any patent must be licensed for everyone's free use or not licensed
 at all.

and in the main license text of GPLv2 we have:

  For example, if a patent license would not permit royalty-free
  redistribution of the Program by all those who receive copies
  directly or indirectly through you, then the only way you could
  satisfy both it and this License would be to refrain entirely from
  distribution of the Program.

Many company lawyers have objected to those terms in GPLv2 over the
years, for much the same reason you object to the patent terms in
GPLv3. I think the GPLv3 license text is a better match for the
intentions of GPLv2 (as given in the above preamble excerpt) than the
GPLv2 text is.

I also think it is worth noting that GPLv3 is arguably better for
companies with patent portfolios than GPLv2. The reason is that the
exact match for the excerpt I gave above in GPLv3 is this:

  For example, if you accept a patent license that prohibits
  royalty-free conveying by those who receive copies directly or
  indirectly through you, then the only way you could satisfy both it
  and this License would be to refrain entirely from conveying the
  Program.

Note the change from "if a patent license" to "if you accept a patent
license" ? 

That should to make life easier for companies who might be
accidentally in violation of the GPLv2 patent provisions. The "accept"
part arguably implies that you have to knowingly be in violation. The
old wording could be argued to mean you are in trouble even for
accidental violation (as can easily happen via bulk cross-licensing
deals).

 > This means that if you host a GPLv3 covered programme on your website
 > for instance (even if you didn't produce it or modify it in any way),
 > you licence any patent you hold covering it.

Many (most?) lawyers think this is already true for GPLv2, due to the
clause I quoted above.

Either way, this is very different from the statement made in the
position statement. In this position statement it said:

  As drafted, this currently looks like it would potentially
  jeopardise the entire patent portfolio of a company simply by the
  act of placing a GPLv3 licensed programme on their website

If the "entire patent portfolio" consists of a small group of patents
which specifically deal with what the code has been posted by the
company deals with, then sure. But as written the position statement
is sensationalist and very misleading, especially when the current
GPLv2 requirements regarding patents are taken into account.

 > HP is already on record as objecting to this as disproportionate.

Could you point me at their statement? I suspect it didn't use the
same words used in the position statement :-)

Cheers, Tridge
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From: Jan Engelhardt <jeng...@linux01.gwdg.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 08:30:09 +0200
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>
>And the GPLv2 and GPLv3 really _are_ mutually incompatible. There is 
>absolutely nothing in the GPLv2 that is inherently compatible with the 
>GPLv3, and the _only_ way you can mix code is if you explicitly 
>dual-license it.
>
>Ie, GPLv2 and GPLv3 are compatible only the same way GPLv2 is compatible 
>with a commercial proprietary license: they are compatible only if you 
>release the code under a dual license. 
>
>The whole "or later" phrase is legally _no_ different at all from a dual 
>licensing (it's just more open-ended, and you don't know what the "or 
>later" will be, so you're basically saying that you trust the FSF 
>implicitly).

So what would happen if I add an essential GPL2-only file to a "GPL2
or later" project? Let's recall, a proprietary program that
combines/derives with GPL code makes the final binary GPL (and hence
the source, etc. and whatnot, don't stretch it). Question: The Linux
kernel does have GPL2 and GPL2+later combined, what does this make
the final binary?

(Maybe you implicitly answered it by this already, please indicate): 
>Exactly. The GPLv3 can _only_ take over a GPLv2 project if the "or later" 
>exists.
From that I'd say it remains GPL2 only.


Thanks for the clarification (though I know we're all IANALs.)

Jan Engelhardt
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 08:30:08 +0200
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On Fri, 29 Sep 2006, Neil Brown wrote:
> On Thursday September 28, torva...@osdl.org wrote:
> > 
> > Btw, it should be stated here: I'm not advocating either of the above. If 
> > a license says "v2 or later", anybody who removes an explicit right 
> > granted by the people who originally wrote and worked on the code is just 
> > being a total a-hole.
> 
> But isn't that the whole point - to replace v2 by v3?

I'm sure it's the point for the FSF. Is it really the point for anybody 
else? Everybody else is better off with the more permissive license..

> Now I know that is what you would prefer, but it seems obvious that it
> isn't what the new FSF wants.
> I would be very surprised if new versions of any FSF-control code is
> available under v2 more than a few months after v3 becomes final.

I suspect the FSF might well be _very_ careful here. If they move to "v3 
or later", they had better be damn sure somebody won't license-fork that 
project, or they'll be left with nothing at all.

So I would not be entirely surprised if projects remain "v2 or later" just 
because it's to nobodys advantage to play chicken.

But who knows..

> I don't see the urgency.  Why are you "screwed forever"?  You can
> always take the last version that was available under a suitable
> license and fork from there, just like OpenSSH did.
> 
> Sure: the longer you leave it the harder it will be to get critical
> mass, but I don't see the need for it to be done immediately.

It obviously doesn't have to be, but it gets a lot harder to do later, if 
the project has any appreciable amount of real development.

Of course, a lot of projects probably don't have that much. I haven't 
followed, but I don't get the feeling that bash or fileutils have a huge 
amount of constant changes..

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 09:10:07 +0200
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On Fri, 29 Sep 2006, Jan Engelhardt wrote:
> 
> So what would happen if I add an essential GPL2-only file to a "GPL2
> or later" project? Let's recall, a proprietary program that
> combines/derives with GPL code makes the final binary GPL (and hence
> the source, etc. and whatnot, don't stretch it). Question: The Linux
> kernel does have GPL2 and GPL2+later combined, what does this make
> the final binary?

The final is always the most restricted license (or put another way: it's 
the "biggest possible license that can be used for everything", but in 
practice it means that non-restrictive licenses always lose out to their 
more restrictive brethren).

This is, btw, why BSD code combined with GPL code is always GPL, and never 
the other way. It's not a "vote" depending on which one has more code. And 
it's not a mixture.

The GPLv2 is very much designed to always be the most restricted license 
in any combination - because the license says that you cannot add any 
restrictions (so if there _was_ a more restricted license, it would no 
longer be compatible with the GPLv2, and you couldn't mix them at all in 
the first place).

So any time you have a valid combination of licenses, if anything is 
"GPLv2 only", the final end result is inevitably "GPLv2 only".

[ Btw, the same is true of the GPLv3 - very much by design in both cases. 
  This is why you can _never_ combine a "GPLv2" work with a "GPLv3" work. 

  They simply aren't compatible. One or both must accept the others 
  license restrictions, and since neither does, and the restrictions 
  aren't identical, there is no way to turn one into the other, or turn 
  them both into a wholly new "mixed" license. 

  So this is why the _only_ way you can mix GPLv2 and GPLv3 code is if the 
  code was dual-licensed, ie we have the "v2 or later" kind of situation. ]

Basic rule: licenses are compatible only if they are strict subsets of 
each other, and you can only ever take rights _away_ when you relicense 
something. You can never add rights - if you didn't get those rights in 
the first place with the original license, they're simply not yours to 
add.

Otherwise, we could all buy the latest CD albums, and then relicense them 
with more rights than you got (or we could take GPLv3 code and remove the 
restrictions, and relicense it as BSD).

So the reason you can't re-license the CD albums is that you don't even 
have any license to re-distribute them at all, and as such there is 
nothing for you to sublicense further. And the reason you cannot relicense 
the GPLv2 is that it tells you that you can't add any new restrictions 
when you re-distribute anything, and you obviously can't add any rights 
that you didn't have.

And, as usual: IANAL. But none of this is really even remotely 
controversial.

			Linus
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From: tri...@samba.org
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 10:00:17 +0200
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Linus,

> Quite frankly, if the FSF ever relicenses any of their projects to be
> "GPLv3 or later", I will hope that everybody immediately forks, and
> creates a GPLv2-only copy (and yes, you have to do it immediately, or
> you're screwed forever). That way the people involved can all vote with
> their feet.

I do hope your either joking about this, or that you would consult
with the major contributors to the project before doing this. In past
postings you have expressed strong support for "authors rights", which
includes the idea of not using someones code if they don't want you to
use it, even if it might be legal to do so.

I'm also a strong proponent of "authors rights", and I would consider
it very nasty if someone took one of my projects and decided to fork
it to be GPLv2 only, deliberately going against my intention. They
might have a legal right to do so but it would clearly be against my
wishes.  I'm not even 100% certain it would be legal.

The "any later version" words I have put on all my projects are there
quite deliberately.

Cheers, Tridge
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From: Helge Hafting <helge.haft...@aitel.hist.no>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 12:20:05 +0200
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Thomas Gleixner wrote:
> On Mon, 2006-09-25 at 12:31 +0100, Alan Cox wrote:
>   
>> The GPLv3 rewords it in an attempt to be clearer but also I think rather
>> more over-reaching. It's not clear what for example happens with a
>> rented device containing GPL software but with DRM on the hardware.
>> Thats quite different to owned hardware. GPLv2 leaves it open for the
>> courts to make a sensible decision per case, GPLv3 tries to define it in
>> advance and its very very hard to define correctly.
>>     
>
> Also the prevention of running modified versions is not only caused by
> economic interests and business models. There are also scenarios where
> it is simply necessary:
>
> - The liability for damages, where the manufacturer of a device might
> be responsible in case of damage when he abandoned the prevention. This
> applies to medical devices as well as to lasers, machine tools and many
> more. Device manufacturers can not necessarily escape such liabilities
> as it might be considered grossly negligent to hand out the prevention
> key, even if the user signed an exemption from liability.
>   
This seems silly to me.  Sure, lasers and medical equipment is
dangerous if used wrong.  When such equipment is
controlled by software, then changing that software brings
huge responsibility.  But it shouldn't be made impossible.

They can provide the key, with the warning that _using_ it
means you are on your own and take all responsibility.

I can take the covers off a cd player and let the laser
shine into the room.  Nothing prevents me from doing
that, it isn't welded shut or anything.  And it might
be useful if I ever need a laser beam.  Of course I am
then responsible if I take someone's eye out.  CD players
have warning labels about this.  And the same can be done
for the keys to dangerous software.
> - Regulations to prevent unauthorized access to radio frequencies, which
> is what concerns e.g. cellphone manufacturers.
>   
Unauthorized use is illegal and easy enough to track down.
No special protection is needed.  And it cannot be enforced
by making the phones har to modify - any radio amateur knows
how to build from scratch a transmitter to jam the GSM bands
if he should be inclined to do so. Anyone can look this up in
books too.

Helge Hafting
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 16:40:10 +0200
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On Fri, 29 Sep 2006, tri...@samba.org wrote:
> 
> > Quite frankly, if the FSF ever relicenses any of their projects to be
> > "GPLv3 or later", I will hope that everybody immediately forks, and
> > creates a GPLv2-only copy (and yes, you have to do it immediately, or
> > you're screwed forever). That way the people involved can all vote with
> > their feet.
> 
> I do hope your either joking about this, or that you would consult
> with the major contributors to the project before doing this.

I very much mean "major contributors".

Quite frankly, the FSF isn't actually doing any of the work for any of the 
tools it maintains any more. And hasn't for a long while.

Hint: look up the glibc maintainers opinions on some of these same issues 
in the past. They had reason to clash with the FSF over a _much_ smaller 
license change (LGPL 2 -> 2.1).

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 19:00:15 +0200
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On Fri, 29 Sep 2006, Helge Hafting wrote:
>   
> This seems silly to me.  Sure, lasers and medical equipment is
> dangerous if used wrong.  When such equipment is
> controlled by software, then changing that software brings
> huge responsibility.  But it shouldn't be made impossible.

It may be "silly", but hey, it's often a law. 

Also, even if it wasn't about laws, there is a very valid argument that 
you should be able to be silly. There's a reason people don't get locked 
up in prisons just for being silly or crazy - sometimes something that 
seems silly may turn out to be a great idea. 

And people seem to totally ignore that there is no correct answer to "who 
may do software updates?". People rant and rave about companies that stop 
_you_ from making software updates, but then they ignore the fact that 
this also stops truly bad people from doing it behind your back.

Quite frankly, in many situations, I'd sure as hell be sure that any 
random person with physical access to a machine (even if it was mine, and 
even if I'm _one_ of them) could not just upgrade a piece of software.

Sometimes you can make those protections yourself (ie you add passwords, 
and lock down the hardware - think of any University student computer 
center or a library or something), but what a lot of people seem to 
totally ignore is that often it's a hell of a lot more convenient for 
_everybody_ if the vendor just does it.

And no, the answer is not "just give the password to people who buy the 
hardware". That requires individualized passwords, probably on a 
per-machine basis. That's often simply not _practical_, or is just much 
more expensive. It's quite natural for a vendor in this kind of situation 
to just have one very secret private key per model or something like that.

In other words, these secret keys that people rant against JUST MAKE 
SENSE. Trying to outlaw the technology is idiotic, and shortsighted.

If you don't want a machine that is locked down, just don't buy it. It's 
that simple. But don't try to take the right away from others to buy that 
kind of convenience.

And yes, Tivo is exactly such a situation. It's damn convenient. I've got 
two Tivo's myself (and yes - I actually paid full price for them. I was 
given one of the original ones, but that's long since scrapped, and even 
that one I paid the subscription fee myself). But you don't have to buy 
them. You can build your own at any time, and it will probably be more 
powerful.

So people are trying to claim that something is "wrong", even though it 
clearly is. The people arguing for "freedom" are totally ignoring my 
freedom to buy stuff that is convenient, and ignore real concerns where 
things like TPM etc actually can make a lot of sense.

Can it be used for bad things? Sure. Knives are dangerous too, but that 
doesn't make them "wrong" or something you shouldn't allow.

			Linus
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From: Alan Cox <a...@lxorguk.ukuu.org.uk>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 19:30:12 +0200
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Ar Gwe, 2006-09-29 am 09:51 -0700, ysgrifennodd Linus Torvalds:
> If you don't want a machine that is locked down, just don't buy it. It's 
> that simple. But don't try to take the right away from others to buy that 
> kind of convenience.

That cuts both ways

"If you don't want to use all this handy free code then don't lock your
 system down or go use OpenBSD"

Alan

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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 20:00:18 +0200
Message-ID: <70uOK-2XV-25@gated-at.bofh.it>
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On Fri, 29 Sep 2006, Alan Cox wrote:
> 
> That cuts both ways
> 
> "If you don't want to use all this handy free code then don't lock your
>  system down or go use OpenBSD"

That's a fallacious argument for two reasons:

 - the GPLv2 allows usage in any circumstances except the geographical 
   limitation that can be forced on it by other laws. No serious lawyer I 
   have ever met is even ambiguous about this. There's just no question - 
   people may not be happy about it, and iirc the FSF at some point tried 
   to claim somethign else, but this really isn't all that controversial.

   So the whole "If you don't want to use all this handy free code" 
   argument is simply WRONG. It's based on a premise that just isn't true. 
   All that handy free code is perfectly usable for things like a secure 
   terminal or something else that doesn't allow you to change its 
   behaviour because of some load-time consistency check.

   You cannot make a logical argument that as it's axiom takes something 
   that is patently false. It may still be "logically consistent", but it 
   has no _relevance_, since it has nothing to do with reality.

 - It tries to equate the word "free" (which means so many things that it 
   almost lacks meaning) with "not able to authenticate". Which is just 
   one of hundreds of ways to read it, and it is extremely irritating how 
   the FSF thinks that _its_ definition of the word free somehow trumps 
   everybody elses.

   We already had that discussion ten years ago, and it's why people who 
   want to be clear in their speaking (and thinking) use the term "Open 
   Source". Because the OSI rules generally speak about concrete things 
   that mean only one thing, which means that they actually have a 
   well-defined _meaning_ in any discussion between two parties.

A lot of people seem to think that the problem with "free" was just the 
confusion between "no cost" and "freedom". Those people seemed to never 
really understand an even deeper problem in the whole FSF language use.

In other words: anybody who wants to have a logical argument about the 
real world needs to start with (a) acknowledging facts and (b) avoid using 
words that may mean something else to the other side.

			Linus
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From: Alan Cox <a...@lxorguk.ukuu.org.uk>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 20:10:08 +0200
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Ar Gwe, 2006-09-29 am 10:49 -0700, ysgrifennodd Linus Torvalds:
>    All that handy free code is perfectly usable for things like a secure 
>    terminal or something else that doesn't allow you to change its 
>    behaviour because of some load-time consistency check.

If you provide the neccessary information so the user can replace it and
it still works. Even with GPLv2. Thats the information I was given,
thats the interpretation that the lawyers I've talked to consider
reasonable and likely court enforcable, thats the interpretation that
has been accepted several times in out of court GPL violation
settlements.

Alan

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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 20:20:12 +0200
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<6Z1c9-1an-73@gated-at.bofh.it> <70nDn-1Qp-7@gated-at.bofh.it> 
<70tSD-56-5@gated-at.bofh.it> <70ulC-1v2-7@gated-at.bofh.it> 
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On Fri, 29 Sep 2006, Linus Torvalds wrote:
>
>  - the GPLv2 allows usage in any circumstances except the geographical 
>    limitation that can be forced on it by other laws. No serious lawyer I 
>    have ever met is even ambiguous about this. There's just no question - 
>    people may not be happy about it, and iirc the FSF at some point tried 
>    to claim somethign else, but this really isn't all that controversial.

Btw, clearly the GPLv2 requirements do say that the use may have to be 
done certain ways. For example, if you actually embed keys in the binary 
itself, that almost certainly means that they keys are part of the source, 
and as such you need to make the keys available through other means and 
rely on the "mere aggregation" clause.

The same thing goes for things like signed images. It you sign an 
individual binary, it can be argued that the private key was part of the 
build process. It's really a pretty weak argument, but the whole point is 
made moot by the fact that you don't actually _need_ any keys: you can 
just control the bootloader instead.

That one not a derived work, and is quite often even on a totally 
different media: flash vs disk or similar. And once you have it do a 
consistency check by just verifying the SHA1 of the aggregate media 
separately, you don't actually have any keys to release, because there 
simply _is_ no key that actually covers any GPLv2'd code.

You can try to take it to some (il)logical extreme, and ask yourself 
whether just even holding a 128-bit hash is a "derived work"?

But I not only think you'd be laughed out of court on that one if you 
claimed it was, I _really_ don't think you want to go there anyway. 
Because if you think it is, then you're violating copyright law every time 
you look up a CD in CDDB/fredb/whatever-it's-called-now, or any number of 
other things. You don't want to try to strengthen copyrights to insane 
levels (you'd also be getting rid of "fair use" if you do).

In other words, if you _really_ care about "freedom" (just about any kind) 
you should be _damn_ careful not to try to extend those copyright claims 
of "derived work" too far. Because quite frankly, YOU are going to lose on 
that one, and the RIAA is going to laugh at your sorry ass for helping 
them prove their nonexistent point, and you would end up losing a lot 
more "freedoms" than the ones you thought you were fighting for.

So the point is, there's no reasonable disagreement what-so-ever that you 
can use GPLv2 code for anything you damn well want, including secure 
lock-down. I think the FSF has even said so in public. You have to release 
_source_code_, but the GPLv2 never controlled the environment it was used 
in.

Of course, a lot of people who have played games with these kinds of 
issues also did other things very wrong. So a number of vendors that did 
something fishy have gotten nailed for real copyright infringement due to 
the _other_ things they did.

[ I'd also not be surprised if companies would decide to settle just to 
  avoid a lawsuit - especially one that made it clear that they were 
  sleazy even if they weren't perhaps actually doing anything actively 
  illegal. So there's a damn good reason why companies often don't want to 
  even toe _close_ to the line, and we should be happy about that. But we 
  shouldn't try to claim rules that simply never existed. ]

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 20:30:19 +0200
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<6Z1c9-1an-73@gated-at.bofh.it> <70nDn-1Qp-7@gated-at.bofh.it> 
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On Fri, 29 Sep 2006, Alan Cox wrote:
>
> thats the interpretation that has been accepted several times in out of 
> court GPL violation settlements.

I think you can push that angle, and a lot of the time it will work in 
practice - because the companies involved are really not "evil", and most 
often they simply want to avoid any trouble. 

At the same time, in many cases the settlements seem to be very much about 
real issues, like not actually following the GPLv2 (giving no credit, not 
mentioning the license, not making sources available). Rather than about 
any imagined or real lock-down issues.

There's certainly a _correlation_ between "locking down" and "being sleazy 
in general", but I don't think it's necessarily a causal relationship. 

			Linus
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 20:50:17 +0200
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<6YWlY-6l3-1@gated-at.bofh.it> <6YWvB-6VA-5@gated-at.bofh.it> 
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On Fri, 29 Sep 2006, Linus Torvalds wrote:
> 
> I think you can push that angle, and a lot of the time it will work in 
> practice - because the companies involved are really not "evil", and most 
> often they simply want to avoid any trouble. 

Btw, I'd also like to say that not only am I not a lawyer, I also think 
that it's perfectly fine for people to disagree with me and decide to sue 
somebody they really really dislike. I'm not giving legal advice, and am 
just stating my own standpoint.

I think people (especially in the US) tend to be way too lawsuit-happy 
anyway, but I'm in no way trying to discourage people who feel they want 
to assert rights that I personally don't think _I_ have. People differ in 
their opinions of the rights they hold. That's ok.

The way things _really_ get decided is not on the kernel mailing list, or 
even by asking a lawyer, but by people who decided that some company or 
other just simply crossed the line and did something illegal. My opinion 
simply doesn't _matter_ in that sense.

For example, when I say that I think it would be totally insane to think 
that a 128-bit hash of a binary is a "derived work", I say that as a 
concerned citizen. I think a world where real lawyers would say that would 
be a _horrible_ world. And I don't think it makes sense. But sadly, until 
I'm elected(*) life-time President and King of the World, what I think 
doesn't actually change anything.

			Linus

(*) Hah. Who do I think I'm kidding? The revolution will be bloody and 
brutal, and you're not going to get the choice to "elect" me except in the 
history books written by yours truly.
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From: Theodore Tso <ty...@mit.edu>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Fri, 29 Sep 2006 23:30:13 +0200
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One of the things which I'm fond of pointing out is that all of the
freedoms people would have to hack MacOS, especially MacOS 9, where
all of the various "Mac Extensions" which changed and extended the UI
of the Macintosh, would have completely disappeared if the FSF's idea
of "derived works" was in fact the law of the land.  That's because
(a) Apple hated the fact that people dared to think that the UI has
handed down on the stone tablets inscribed by Steve Jobs could be
improved upon, and (b) the way those changes were made by patching
jump tables so that code to extend the UI could be patched into the OS
--- in effect, a dynamic link.

Now, because Apple hated the fact that people dared to think they
could improve on Apple's UI design, they frequently changed the jump
table interfaces, forcing the people who wrote the "Mac Hacks" to
follow a rapidly changing code stream --- much like what the Linux
kernel does with its device driver interfaces.  But Apple has *never*
said that just because you dynamically link with MacOS, that instantly
makes your MacOS a derived work, and so therefore as the copyright
holder of MacOS, Apple could therefore have the right to control how,
or even whether or not the Macintosh Extensions could ever exist.

Thanks goodness, no sane court has ever ruled that the various
Macintosh Extensions were a derived work, just because they lived in
the same address space as MacOS and dynamically linked with MacOS, and
in fact were **designed** only to work with MacOS, and very often used
header files shipped by the Macintosh Programmer's Workbench.

So don't be too quick to wish that the courts will use the FSF's pet
definition of what derived works mean ---- you may find that in the
end, you end up losing far more freedoms than you expect.

						- Ted
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From: Andrea Arcangeli <and...@suse.de>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Sat, 30 Sep 2006 17:50:06 +0200
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Hello,

On Fri, Sep 29, 2006 at 05:48:17PM +1000, tri...@samba.org wrote:
> wishes.  I'm not even 100% certain it would be legal.

How can you not be sure that it would be legal? If you didn't want to
allow forking, you shouldn't have released the code as GPL. See qmail
and pine for example of slightly different licenses in terms of forking.

The basic logic of the GPL and open source as well, is that anyone is
legally allowed to fork away your code as much as they want as long as
the result is still using the same license. Oh well, if even this
_basic_ legal point is not clear, then I'm not surprised there's lots
of confusion about the rest...

IMHO GPL is _all_ about _freedom_ of usage in any shape and form, and
most important about _sharing_ of the resulting/modified code. GPL has
_never_ been about restricting usage. Infact it apparently even allows
you to do whatever you want with it as long as you do it behind the
corporate firewall and you don't redistribute the code itself, but
only the result of the computations of the code.

If there's something to work on for GPLv3 it is _not_ about
restricting usage. It's about forcing _more_ sharing even behind the
corporate firewall! In the ideal world that should be the only
priority in FSF minds and I think they're still in time to change
their focus on what really matters.

My ideal GPLv3 would be that if you modify a GPLv3 project and you
have a _third_party_ using in any way (think a web application running
behind the corporate firewall), you would be required to release your
GPLv3 source code to the third party that is using the GPLv3 code on
your servers, even if you never redistributed the code itself (nor in
source nor in binary form). Now I clearly don't know for sure if this
is enforceable, but I think this is the only point where the GPLv2
could be improved.

Nothing would change if the user of the code isn't a third party, so
for example you can still pick your preferred webmail for your
intranet, improve it, and release nothing back as long as it's never
used by third parties living outside the corporate firewall. But if
you start shipping the service to third parties as a webapplication
through the internet, my ideal GPLv3 would give the third parties the
right to see the modifications you did.

Creating a GPLv3 that restricts usage is not going to work. They think
the worst usage possible is DRM, I disagree, the DRM certainly
wouldn't be at the top of my priority of the worst possible usage of
my GPL code. Restricting usage is something where there cannot be a
real agreement on what should be forbidden, and as such it should be
avoided. If RMS has to choose which usage to forbid in GPLv3 he
apparently goes after DRM which sounds fair from his point of
view. Now if a greenpeace activist would have to choose he would
probably instead go after usage inside nuclear reactors which sounds
fair enough again from his point of view. I would go after different
things that sounds fair enough to me. If we keep focusing on
"forbidding what is unethical" eventually GPLv4 will forbid making too
much money off the software too ;). This is why there should be not be
any restriction on usage at all, so everyone can agree to giveup his
small wish for the common good. And if somebody really wants to add up
any exceptional restriction on usage on top of the GPL, that should be
up to the copyright holder to decide, not a job for the GPLv3 authors.

The worry that open source will eventually die with the advent of DRM
and trusted computing because no kernel will boot anymore, is
baseless. Who says something on those lines, probably doesn't
understand how the economy works (and most certainly they don't
understand how trusted computing works). To make an example if some
hardware vendor is not allowing to replace kernels, and I want to be
allowed to do that, I simply decided to buy my new htpc from
linuxtechtoys instead. It's truly as simple as that. And regardless,
even if they would be right about trusted computing going to kill open
source (again a baseless claim IMHO), it certainly wouldn't be the
GPLv3 DRM clause that could save us.

To make an example: I truly hope Microsoft will use trusted computing
to make the windows genuine update program totally unbreakable and to
force 100% of their users to pay. They can easily do that. There are
many more positive things around trusted computing that are never
being mentioned.

About the patent claims I also didn't see anything that would
invalidate the entire patent portfolio of any company (well, unless
the linux kernel already infringe on the whole patent portfolio of
said company, but I doubt that's what they meant ;). To me it looked
like v3 made explicit what was already implicit with v2 (i.e. when you
release patented software under GPLv2, you already implicitly allow
anybody to run your patented idea as long as the code is still under
the GPLv2). I didn't think there was any need to make it explicit, but
anyway I can't see a big difference.
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From: Linus Torvalds <torva...@osdl.org>
Newsgroups: linux.kernel
Subject: Re: GPLv3 Position Statement
Date: Sat, 30 Sep 2006 19:10:11 +0200
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On Sat, 30 Sep 2006, Andrea Arcangeli wrote:
> 
> If there's something to work on for GPLv3 it is _not_ about
> restricting usage. It's about forcing _more_ sharing even behind the
> corporate firewall!

In many ways, I agree. The FSF seems to be barking up the wrong tree, the 
real problem is not things like Tivo (who already _do_ give source back), 
but the whole "we don't give source back because we're just exporting the 
results", aka the "ASP problem".

>		 In the ideal world that should be the only
> priority in FSF minds and I think they're still in time to change
> their focus on what really matters.

While I agree with you, I think one of the reasons that the FSF hasn't 
gone that way is that while in many cases it would make sense, it's 
actually even more controversial. The "Tivo" issue is a populist issue, 
and trying to solve the "ASP problem" is actually seriously more 
problematic.

First off, the ASP issue, while not in any way limiting "use" (you could 
still _use_ things as you see fit, you just have to give sources out: I 
think that's much more "in the spirit" than the current GPLv3 ever is), 
would actually require that in order to enforce it, such a license would 
clearly have to be a _contract_. If it's not distributed, it's not a 
matter of copyright any more, it's very obviously a matter of mutual 
agreement: "we give you source, you give us source back".

Secondly, a lot of people use GPL code privately, with private 
modifications, and you would see a lot more screaming than about the 
current GPLv3 draft. So I think the FSF (correctly) decided that they 
simply cannot do it.

In fact, it's one of the very traditional ways of making money for some 
Free Software projects: the whole way Cygnus supported itself was largely 
to make "private" branches of GCC for various commercial vendors, and 
while the vendors had the _right_ to distribute the sources, they also had 
the right not to (and since they didn't want to, they wouldn't be 
distributed).

Does that sound against the spirit of "give back source"? Sure does. But 
it's one of those things that the FSF has always supported, so they don't 
see it as a huge problem, and since they don't want to limit _that_ kind 
of usage, they automatically also cannot limit the ASP kind of usage which 
really is exactly the same thing.

So I actually think that an ASP clause would be totally unacceptable to a 
lot of people, even more so than the stupid anti-Tivo clauses. And I think 
the FSF realized that, and didn't even push it, even though they have been 
talking about the "ASP hole" when they don't like it.

So it really does boil down to a very simple end result (which is the 
exact same deal that I think the whole anti-DRM problem has been about):

 - Not everybody agrees about the current GPLv2

 - But trying to extend the reach of it just causes more (fundamental) 
   problems than the problems such extensions would try to fix.

So I'd like to repeat: the reason the GPLv2 is wonderful is exactly the 
fact that it's so widely applicable, and useful for such a wide audience. 
That _does_ mean that it will inevitably have to accept a certain level of 
bad behaviour by selfish people, but since you can't distribute the 
derived work without distributing the source code, you're guaranteed that 
the bad behaviour cannot "procreate". 

In other words: if you think of open source development as a kind of 
"sexual reproduction" (it really does have a lot of analogies - it's a 
"memetic recombination and survival of the fittest"), any "bad use" by 
definition is a dead end. You can be bad, but a bad use is always a 
eunuch, and as such doesn't matter in the long run. The only way you can 
actually make a _difference_ is by participating constructively.

In other words: I do agree that the "ASP hole" is a hole, but exactly as 
with all the Tivo issues, it's a hole that needs to be there simply 
because trying to plug it would cause disaster.

			Linus
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