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To: David Schwartz <davids@webmaster.com>
Cc: Linux Kernel Mailing List <linux-kernel@vger.kernel.org>
Subject: Re: Monta Vista software license terms 
In-Reply-To: Your message of "Tue, 11 Feb 2003 11:39:57 PST."
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Date: Tue, 11 Feb 2003 21:42:29 +0100
From: Horst von Brand <brand@jupiter.cs.uni-dortmund.de>
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David Schwartz <davids@webmaster.com> said:
> On Tue, 11 Feb 2003 08:42:26 +0100, Horst von Brand wrote:
> >>On Mon, 10 Feb 2003 11:42:45 -0600, Oliver Xymoron wrote:

> >>>I certainly agree, but the problem is the NDA puts the shoe on the
> >>>other foot and now it's the customer that has to consult a lawyer
> >>>or risk a nuisance suit before proceeding. So while it may not
> >>>forbid, it certainly discourages and impedes. Let me point out that
> >>>I never saw the NDA in question but said coworker was sufficiently
> >>>intimidated by it that he was unwilling to give me a copy of the
> >>>kernel and gcc sources because of it.

> >> I believe such a provision would, unfortunately, by considered
> >>legally enforceable. The rationale would be that the rights you (the
> >>recipient of the derived work) have under the GPL would only apply if
> >>the distributor were bound by the GPL. The only way the distributor
> >>could be bound by the GPL was if he or she did something that he
> >>didn't have the right to do without the GPL to give him or her such a
> >>right.

> >The GPL gives me the right to distribute modified versions _only if >I
> >comply with the GPL_. And GPL forbids further restrictions when
> >distributing.

> 	I realize that. But that has nothing to do with what I said, which 
> analyzes only those rights you have without agreeing to the GPL by 
> virtue of the fact that you possess the work and were not subject to 
> any restrictions in the process of acquiring and using it.

I just don't get it. If I get sources to foo under the GPL, I can spindle
and mutilate them to my heart's content at home. But as soon as I do
distribute it, the GPL is in force. There is no "not bound by the GPL
because I'm not doing ..." and then distributing "and I wasn't bound by
GPL, so..."

> >If your bizarre interpretation was right, no software licence at all
> >would have any validity. In particular, I'd be more than very surprised
> >if the GPL was so sloppily written. It was written with the input of
> >eminent lawyers, after all.

> 	Your generalization doesn't apply because of several major 
> differences between most software licenses and the GPL:
> 
> 	1) Most software licenses do not grant everyone the right to use the 
> work covered.

Irrelevant.

> 	2) Most software licenses do not grant anyone the right to create 
> derived works.

Irrelevant.

> 	3) Most software licenses require your assent before you can use the 
> covered work, in fact, most require your assent before you have the 
> right to possess the covered work.

Don't see the relevance here. Besides, you never "possess" anything, you
are just given permision to use.

> 	However, one sticky point is that the GPL talks about 'modifying' a 
> work. You can create derived works without modifying the original 
> work and the GPL is unclear in this respect.

Right. If I take gcc and make a C# compiler based on it, it is also GPL as
far as it is derived (i.e., a substantial ammount of code was pilfered from
gcc). No change to gcc needed, just what constitutes a derivative work.
-- 
Dr. Horst H. von Brand                   User #22616 counter.li.org
Departamento de Informatica                     Fono: +56 32 654431
Universidad Tecnica Federico Santa Maria              +56 32 654239
Casilla 110-V, Valparaiso, Chile                Fax:  +56 32 797513