Re: Is linux free
From: Peter T. Breuer (ptb_at_oboe.it.uc3m.es)
Date: 10/11/05
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Date: Tue, 11 Oct 2005 05:15:50 +0200
Rick Moen <rick@linuxmafia.com> wrote:
(of RH licence)
> As have I. My analysis has been on the Web for some years:
> http://linuxmafia.com/faq/RedHat/rhel-isos.html (better reachable via
> my knowledgebase index as "RHEL ISOs" on http://linuxmafia.com/kb/RedHat/)
I'll have a look.
> Peter T. Breuer <ptb@oboe.it.uc3m.es> wrote:
>> ...and in my opinion it was flat out in contradiction to the GPL ..
> Here you have triggered one of my personal peeves: People use terms
That was a summary. I specified below.
>> (http://www.redhat.com/licenses/rhel_us_3.html?country=United+States&)
> And here you see your first problem: These are the contractual terms
> for a _service agreement_.
That is your characterization. What it says it is is:
Subscription Agreement
This Subscription Agreement (the "Agreement") is between Red Hat,
Inc. ("Red Hat") and any purchaser or user ("Customer") of Red Hat
products and services that accepts the terms of this Agreement
("Customer").
So it is an "agreement", not a licence, in title. I agree. But one
concerning "products", as well as services, so I think it's not quite OK
to say it is (only) a "service" agreement, on the face of it. At any
rate, it is an agreement, hence you are bound by it, and it adds
restrictions to what you can do with GPLed software (which is the nub
of my argument), and I don't care whether you characterize it as a
licence or an agreement.
Moreover, the URL shows you it is in the RH LICENCES directory, so RH
seem to think it is a licence.
If you are tryingto say that it is really all about services, not about
installing software, well, groovy, that may be its intention but it
ain't what it says, if one looks, as I'll show below.
> If the customer doesn't meet those terms,
> then he/she doesn't lose entitlement to use the software in any way
> whatsoever; he/she merely loses service entitlement.
That's your characterization. The blurb actually says:
The term "Installed Systems" means the number of Systems on which
Customer installs or executes the Software.
(nothing about services). And
If Customer wishes to increase the number of Installed System, then
Customer will purchase from Red Hat additional Services for each
additional Installed System.
So if you agree to this agreement, then you can't install "the
Software" (whatever that is) on more systems without paying Geld
for a corresponding number of Services. That's an encumbrance on
your GPL-given right to copy "the Software" where you like.
Now, I grant you that looking at this "agreement" anew, it certainly
seems to have changed from the last time I looked at it,and to be more
obviously about services. As such, I feel that the penalty for
breaking the agreement must indeed be "loss of services" (I haven't
checked).
But that doesn't change the argument that the agreement limits what
you can do under the GPL - that it threatens you with something
silly (no services) as a penalty is neither here nor there.
> [quotations from the Service Agreement snipped]
>> Uh uh .. they just set "installs or executes" a sentence before. Now
>> they say "installed". Which is it? Does not compute. Error. Licence
>> void (IMO).
> Your error lies in assuming that what is limited is the service
> licensee's right to install the software. In fact, what is limited is
> the licensee's right to install it _with a support contract_.
Show me where it says that. I read the definitions and quited them. It
said "install the Software". Not "install the Software with a support
contract".
> But, of
> course, neither GPL nor any of the other constituent software's licences
> obliges RH, Inc. (or anyone else) to fulfill a service contract. So, RH
> declaring the customer to have voided his/her service entitlement
You are placing constructions on what they might have menat to have
said. They didn't say that. I agree they might have intended to, but
they didn't.
> doesn't constitute any sort of tort against copyright holders (what you
> misleadingly refer to as "infringing the GPL").
Those are the words I know. I vaguely recall that a tort is a major
class of legal infraction. If you want to call "infringing the GPL"
"a tort against the copyright holders", that is OK with me. What I see
is that it places restrictions on what can be done with GPL software
by the receiver of that software - it doesn't say that the penalty is
boo hoo we won't service your installation, it says you AGREE not to
do that.
>> Here's their GPL killer:
>>
>> 4. REPORTING AND AUDIT. If Customer wishes to increase the number
>> of Installed System, then Customer will purchase from Red Hat
>> additional Services for each additional Installed System.
>> Uh uh. That's limiting the customer's rights to INSTALL (or execute, on
>> one reading) the Software [...]
> Same erroneous analysis and conclusion.
Where is the error? It says what I said it says. Your claiming it does
NOT say that needs a supporting argument, which you have not supplied.
Instead you have _claimed_ that instead of forbidding the customer from
doing something allowed by the GPL, it "really" only says "if you do
that, then we won't service any of the extra copies you made". Well
tough - the Agreement does not say that. You need to argue it.
> Now, you _might_ try to convince a judge that RH, Inc. had violated the
> copyrights of Torvalds, Cox, Miller, Stallman, et alii, if you could
> show that RH, Inc. had at some point had hauled a licensee into court on
> that sort of contract-violation tort charge and successfully got
> monetary damages
So they actually have to sue somebody before they can be sued back?
Well, so if upholding the terms of their agreement in court makes them
liable for a court action, it seems to me that they are in the wrong
with regard to their agreement!
> -- on a rather thin theory that substantively RH had
> failed to pass on rights they'd promised upstream copyright holders to
> transmit to any recipient.
That "thin theory" is based on the fact that the agreement says they
can't install the software again without paying for each extra copy.
Your argument is presumably that the penalty for tossing their agreement
into the bin and going ahead anyway is that they won't service any of the
extra copies you make, but that isn't a barrier, simply a choice they
offer you, and a very reasonable one.
I agree - put that way, it looks as though the agreement is really
only meant to limit RHs duties in regard to servicing installations of
RHEL. The trouble is "it doesn't say that".
> Your lesser obstacle would be the complete and total lack of any
> such tort case.
Why is it not enough that the agreement limits your rights to install
the software (lterally, never mind that you claim they intended to say
"and still have it serviced by us") for their right to distribute the
software under GPL to be abrogated? Thus putting them in breach f
copyright against the originall authors.
> Your bigger obstacle would be that neither GPLv2 nor any of the other
> copyleft licenses you might wish to cite at this point actually say
> anything about guaranteeing recipients the right to _use_ software.
It doesn't matter since INSTALLATION and COPYING is the issue, not USE.
I haven't mentioned use at all (except to note that the RH definitions
at one stage use "install or execute" and at another use only
"install").
> According to the Wall Street Journal, an attorney for SCO, Mark Heise,
> said the company would contest that the users and distributors of GPL
> licensed software were permitted to make copies. He based this on a
> reading of the Copyright Act which allows licensees of computer
> software to make one copy for backup or archival purposes.
> "It seemed to me," Moglen told us on Saturday, "the responsible thing
> is to ask if he'd even said such a thing." Moglen says he emailed Heise
> to check if he had been misquoted. Why?
> "It's moonshine! The Copyright Act doesn't set limitations on what the
> copyright holder can do. But because you can make one copy, that
> doesn't mean there's no way you can make multiple copies. The wording is
> crystal clear. It is not an infringement."
I understand none of this. It appears to me that there is a missing
NOT in the statement by Heise, as the simplest repair required to make
sense. Or maybe "contest" does not mean "oppose" in your language!
Perhaps Moglen is pointing out that "permitted to make one" does not
say "prohibited to make more than one". And perhaps Heise is saying
"permitted to make one" is "not permitted to make many". That all makes
sense too.
>> 3. You may copy and distribute the Program (or a work based on it,
>> under Section 2) in object code or executable form ...
>>
>> and the GPL also says that you (RH) can't abridge those rights:
> And apparently you haven't noticed that the Service Agreement doesn't
> anywhere purport to abridge those rights.
I quoted it to you. You can't say it didn't. If you make such an
outlandish statement you must take the quote I quoted and show how it
does not say what I said it said.
> Quod erat demonstrandum.
You cannot argue like this! To prove something you have to move in
logical steps from a hypothesis to a conclusion. You cannot state your
conclusion without the steps and say "QED"!
>> Hence I would say that RH licence is in violation of GPL in respect of
>> the GPL parts of their distribution.
> I'd say your logic has holes big enough to drive a lorry through.
I'd say that it doesn't. If there are holes, point to them. I quoted
the evidence and gave the reasoning. Now you get to either contradict
the evidence or the reasoning. You haven't.
>> Maybe. I don't know. But Bill can argue if you ask him to. I suspect
>> that his contention is that everything on the distro "fits together
>> specially", rather like Microsoft argued that IE was integral to their
>> distro.
> If he does, then he faces the horrendous problem that he's just alleged
> that all Linux distributions with old-BSD or MPLed or ASL-licensed
> software has been in a state of licence conflict since day one. Which
> is absurd.
That doesn't follow - many distros are just selections, without
special alterations. Slackware, for example.
>>> For the salient caselaw in the USA court system (if interested), see
>>> Feist v. Rural Telephone.
>>
>> Oh, I agree. But is the compilation GPLed!
> <sigh> That happens to be irrelevant to the discussion
It's relevant to Bill's argument, as it's a stage in his argument.
> "compilation" is a separate copyright property distinct from the
> components within it -- but, in the case of RH's distributions since
> early days, yes, they have always put a statement in the root directory
> that they are licensing whatever compilation property they own under
> GPLv2 terms.
Aha. I wonder what the source is.
Peter
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