RE: Linus about GPL x BSD(long)

> On Sat, 20 Jul 2002, Patrik Stridvall wrote:
> 
> > > You don't believe the GPL's viral mechanism would stand a court 
> > > challenge?
> > 
> > For the most part, no.
> 
> I guess we'll just have to see when a test case eventually 
> comes along.

Absolutely.
 
> As I understand it, the GPL is part copyright license, part 
> contract -- the 
> contract grants the license, and if you don't agree to the 
> contract, there 
> is no license.  Therefore, in theory, copying it is only 
> legal because of 
> that contract, and without the contract, copying is illegal.  
> (But I'm not 
> a lawyer, so I'm just judging from the explanations I've heard.)

That is the theory. The problem is that you have already given
everybody the right to download and use it freely so the starting
point is not that of a normal contract.
 
> Of course, a sticky point is that contracts normally require 
> consideration, 
> and since the author doesn't receive anything of tangible 
> value, it might 
> not be considered a valid contract.  (Perhaps this varies 
> from one state to 
> another.)

Even worse it varies from country to country. But I don't
consider this to be problem with the GPL.

> It would be rather bizarre if the contract is 
> ruled invalid in 
> general, and everyone following the GPL and using it as 
> intended suddenly 
> becomes guilty of copyright infringement!  (Hey, it could happen...)

I don't think that can happend. No sane court would rule that.

The problem with the GPL is not that it might not be valid in some
meaning. The problem is that tries to bend copyright law until
it squeeks to do something copyright never was designed to be used for.

In any case the end user is not really bound by the GPL both
because the GPL says so and also because of the limits of copyright,
like first sale which says the the copyright holder loses control
over the work after first sale.
 
> > I think the main issue is do you distribute the GPL:ed work in whole
> > or in part at all.
> 
> If it's only in part, it's possible that it could fall under 
> "fair use" and 
> be distributable without a license.  If it's a small enough part...

True.
 
> > Whether your code is meant to statically link or dynamically link or
> > interact with the GPL:ed work some other way is IMHO 
> opinion irrelevant.
> > They are all the same thing from an abstract point of view.
> 
> Your source code is no more or less derived from the GPL 
> code, regardless 
> of how it's linked.  I agree with that.

Good.
 
> > You will have to avoid that your code becomes a derived 
> work of course.
> > However that will IMHO in most cases be quite easy so that 
> wouldn't be
> > really be problem.
> 
> The FSF claims if you program to a unique API that only 
> exists in GPL code, 
> that makes your code "derived" from the GPL code.

Of course they do. The GPL would be close
to worthless if they didn't. 

> However, I 
> don't see how 
> this is conceptually any different from a clean-room 
> implementation where 
> someone has described the API, and someone else codes to that 
> description 
> without reference to the GPL code.  Somehow I doubt this 
> theory of source 
> code derivation due to API usage would hold up in court...

There are a few reverse engineering cases that strong hints that
it might not. Copyright doesn't protect functionallity.
No court have every ruled that.  In this particular area, a
ruling against the FSF is almost certain.
 
> > As I said, I think that as long as you doesn't actually distribute
> > the GPL work itself you are pretty safe. Just do as FreeBSD does
> > in it's port collection. Just provide an URL and a script that the
> > user can run so that it download and compiles everything.
> 
> Sure, that should be as safe as dynamic linking, and leaving 
> out the GPL 
> shared libraries from the distribution.  (Which isn't safe at 
> all, if the 
> FSF's API-derivation theory holds...)

The likelyhood that it will is as close to zero as any
legal theory can be without an actual court case.
 
> My point was that distributing a static binary is clearly 
> distributing the 
> GPL code, since it has been incorporated into the binary.  If 
> you choose to 
> distribute a static binary, you have to abide by the GPL to 
> benefit from 
> the copyright license in it -- then the contract provisions 
> in the GPL (if 
> it's a valid contract) would obligate you to release your 
> source -- even if 
> your sources aren't inherently "derived works" in a legal sense...

As I said the point is that the distribute the GPL:ed work at all.
Whether it is incorperated in the binary or in a seperate file to
be linked later is irrelevant.
 
> > If you actually distribute that GPL:ed work is some form that is
> > quite true. I wouldn't want to do that until the court 
> clear this up.
> 
> Well, if you're willing to follow the GPL's rules, it should 
> be safe enough 
> to distribute source and binary.  

Obviously.

> If you're trying to keep 
> your source as 
> closed as possible, you ought to avoid the GPL entirely until 
> it's actually 
> been tested in court.

Unless you wish to spend a lot of money in court, absolutely.
The FSF will most certainly sue you, regardless of their
actually chances of winning.
 
> > But then, with the Internet there is very little need to 
> actually do that.
> > The user can do that himself with the help of appropriate scripts...
> 
> Yes, this is easy enough.  Of course, the FSF has always 
> contended that 
> "user does the link" doesn't excuse you from the obligations 
> of the GPL.  

Of course they do. Otherwise the GPL would be close to meaningless.

> (This was one of the first ideas on how to circumvent the 
> GPL, after all.)

Sure. I don't claim to be orginator of that idea.
 
> Whether or not a court of law would agree is an open question.

Only in part. In any case as I said: You should definitely avoid
actually distributing the GPL work regardless. But then that is
not really nessarily in todays world with the Internet and all.