[OT] some weird GPL licensing questions

[Andreas Pour]

Olaf Jan Schmidt wrote:
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> [Andreas Pour, Sa 14.02. 2004 23:01:23]
> > I could not disagree more with that, but you can take the legal risk.
> 
> I don't have a company, so I won't take that risk. I also don't think that
> internal use should be allowed by the GPL, but according to the FSF, it
> is.

[ Note: this will be my last post on this thread as it gets off-topic ]

Of course what the FSF thinks is about as important as what I think - their
opinion is their opinion and if it ever goes to court they will perhaps have the
opportunity to argue it, perhaps not, but that's all the weight it carries.  (To
the extent they are the copyright holder it might carry more weight.)

It is not part of the license - indeed many parts (if not all) of their FAQ was
published years after the GPL (in 1991) and even if you agree that their opinion
outside the scope of the actual document matters, surely you do not think they
can retroactively change the meaning of a written license at any time . . . .
 
> > For example, if you work for Company X, and I give you a gift, the gift
> > is legally yours, regardless of what the company thinks (of course it
> > can fire you for accepting the gift, but the gift is not legally the
> > company's property).
> 
> Sure.
> 
> But to slightly change your example:
> If you are the agent of a charity foundation, and I give you a gift for
> the foundation, then you cannot claim ownership of the gift because I
> physically handed it to you. 

But you aleady said in your predicate that you are giving the gift to the
foundation.  When it is your property you can give it to whoever you please. 
The terms of the GPL, however, are not as you please, and according to those the
rights attach to the *recipient*, not to the "recipient's employer".  In that
way the GPL is more like my example.

> I am sure you wouldn't call this slavery.

There are times in the principal-agent relation when the agent (employee)
actions are for the principal (employer) and this area of law is fairly complex
when you get into details.  But that is not important here b/c when you grant
rights to someone it is the grantor that decides who gets the rights, not the
grantee.  Just like you said with the gift:  it is the gift-giver who decides
whose property the gift is (the worker's or the foundation's).

In the case of the GPL the choice was made:  the *recipient* gets the rights. 
And the meaning of recipient is also quite clear, try dict:recipient,
dict:receiver and dict:receive in your Konqi and you will see what I mean. 
There is no reasonable interpretation of that word which results in the company
getting rights and the employee not getting rights.  Indeed the meaning of
"receiver" includes receiving things in fiduciary capacities (such as a trustee
or tax collector).  Of course when you pay taxes you do not say, this money is
for the *receiver*, you say I am giving it to the receiver for the benefit of
the government.  I hope you see the difference :-).

> If my gift is a software license, and the license is the GPL, and the
> foundation is a company, then you do call this slavery. This is
> inconsistent.

The difference is, you cannot give the GPL program away as you please; you give
it away the way the license says you can.  And what the license says is once you
redistribute to someone, that someone (the recipient) has the rights under the
GPL.  If you would instead like that someone's employer and not that someone to
have those rights, then I suggest you write a new license that does this.  I for
one will not be releasing *any* code under that license :-).

> Claiming that a GPLed software would need to be additionally licensed to
> at least one agent of the company is identical to claiming that no
> company can ever receive a complete and valid license for a GPLed
> software. But I am not aware of any passages in the GPL special-casing
> companies or foundations. This is why your arguments do not convince me,
> even if I would be very happy to discover that you are right.

There is no need for a company to have a license.  The whole GPL paradigm works
fine without it.

There is no special-casing of corporations per se, but there is the provision
saying rights go to the *recipient* and for the corporation to receive a copy it
must be the "recipient".  Now one might cosider the case where you are to
transfer the program to be and I say, "I wish to receive this specifically for
the benefit of the corporation" and in that way it might work, but as I noted I
don't think that is necessary.

One of the first things you look at in a contract / license, is who has rights
under it.  This is a very important step when drafting a license.  If you look
at any EULA you will see this person defined very specifically and with a great
deal of effort and thought.  So is the case in the GPL.  That person is the
*recipient* of the code.  I do not know how it can be any clearer.  Tell me, if
you indeed wanted the actual person to have the rights, and not the company, how
would you write it differently?

> > To take a sky view picture:  corporatism is a nasty trend in the world
> > in which fictional legal entities get ever more rights and powers while
> > humans continue to lose them.
> 
> I agree that this is a negative development. I am not in favour of
> corporatism, and I would like a software license that indeed clearly fits
> to your understanding of the GPL.

If you leave out the FSF FAQ, I think the GPL does this.  The FSF FAQ to me is
worthless; I don't care one iota what the FSF thinks about the meaning of the
GPL, the GPL speaks for itself and I can read.  The FSF is not some executive
agency that decides what license everyone has granted whenever it feels like it
(indeed even the government in most cases cannot alter the meaning of a law
simply by publishing a "FAQ" about it on their website, that is just not how
things work).

If the FSF wanted this special role as arbiter of what the license means, it
should have put a provision in the GPL making it clear that it has the authority
to make clarifying amendments to the GPL.  Oh, wait, they did that! but it's
optional to subscribe to that, and it requires following a certain procedure -
namely, issuing a new version of the license (see Section 9).  Publishing a FAQ
does not do that.

I am not saying no court will look to this FAQ for guidance; and perhaps even
some court will look to it as authoritative.  But I hope and expect that is not
the case.

Ciao,

Dre

-- 
None are more hopelessly enslaved than those who falsely
believe they are free.
  -- Johann Wolfgang von Goethe