Linked by Thom Holwerda on Mon 12th Oct 2009 18:25 UTC
Legal Now that all the nastiness of the discovery phase is behind us in the Apple vs. Psystar case, both parties are trying to get the case settled before it goes to court, much like the recent Vernor vs. Autodesk case. Both Apple and Psystar have filed motions asking for a summary judgement.
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RE[9]: OSNews legal analysis
by lemur2 on Tue 13th Oct 2009 10:02 UTC in reply to "RE[8]: OSNews legal analysis"
lemur2
Member since:
2007-02-17

So now I'm sure you're going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I'll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said "[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles."


You are wrong here. One cannot "violate" the GPL.

This is because the GPL is not a contract, it is merely a license.

A license is defined as: "a legal document that gives you permission to do something".

That is it. Period. That is all there is to it.

http://www.google.com.au/search?q=define%3A+license&ie=utf-8&oe...

So, by definition, you cannot violate the GPL. It is simply not possible.

If you have the GPL in hand, and you do some things that the GPL gives you permission to do, then you have permission, so it is OK.

If you don't have the GPL in hand, then you don't have any permission it grants. If you do some things that the GPL doesn't give permission for, then once again you don't have any permission.

Now if copyright law says that you need permission, and you don't have it ... then you violate copyright law. You clearly don't "violate the GPL" however.

This is why the GPL is not a contract.

Reply Parent Score: 2

RE[10]: OSNews legal analysis
by Bounty on Tue 13th Oct 2009 16:52 in reply to "RE[9]: OSNews legal analysis"
Bounty Member since:
2006-09-18

"So now I'm sure you're going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I'll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said "[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles."
You are wrong here. One cannot "violate" the GPL. This is because the GPL is not a contract, it is merely a license. A license is defined as: "a legal document that gives you permission to do something". That is it. Period. That is all there is to it. http://www.google.com.au/search?q=define%3A+license&ie=utf-... So, by definition, you cannot violate the GPL. It is simply not possible. If you have the GPL in hand, and you do some things that the GPL gives you permission to do, then you have permission, so it is OK. If you don't have the GPL in hand, then you don't have any permission it grants. If you do some things that the GPL doesn't give permission for, then once again you don't have any permission. Now if copyright law says that you need permission, and you don't have it ... then you violate copyright law. You clearly don't "violate the GPL" however. This is why the GPL is not a contract. "

huh? So what about distributing modified software w/o giving the source?

Reply Parent Score: 2

Thom_Holwerda Member since:
2005-06-29

huh? So what about distributing modified software w/o giving the source?


Then you violate copyright. Yes, it's complicated, but that's how it is.

Reply Parent Score: 1

RE[10]: OSNews legal analysis
by rhavyn on Tue 13th Oct 2009 17:30 in reply to "RE[9]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

"So now I'm sure you're going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I'll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said "[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles."


You are wrong here. One cannot "violate" the GPL.
"

The armchair lawyering on this site is getting to new lows. That comment makes no sense. Of course you can violate the GPL.

This is because the GPL is not a contract, it is merely a license.

A license is defined as: "a legal document that gives you permission to do something".


And that document, if it gets litigated gets treated as ... a contract!

That is it. Period. That is all there is to it.


Except, it isn't.

So, by definition, you cannot violate the GPL. It is simply not possible.


Again, that simply doesn't make sense. You could similarly say you can't violate a contract you [fill in the blank here] where you fill in the blank with something which causes a law to be broken.

If you have the GPL in hand, and you do some things that the GPL gives you permission to do, then you have permission, so it is OK.

If you don't have the GPL in hand, then you don't have any permission it grants. If you do some things that the GPL doesn't give permission for, then once again you don't have any permission.


Correct

Now if copyright law says that you need permission, and you don't have it ... then you violate copyright law. You clearly don't "violate the GPL" however.

This is why the GPL is not a contract.


Incorrect. The GPL is a grant of rights. People can and do disagree on what the GPL says. All the linking clauses for example, it is very unclear whether or not you are linking by the definition in the GPL or not in certain programming languages. You could be sure you are in the right and the copyright holder can be sure you aren't. So you go to court. The license is treated as a contract in court. The language will be litigated and a judge will decided who is right. If you are wrong then you violated the GPL and by violating the GPL you have lost your distribution rights.

From the GPL v3 section 3

However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.


At that point you have not committed copyright infringement. You would only commit copyright infringement if you continue to redistribute the software after your rights under the GPL have been terminated.

Reply Parent Score: 2

RE[11]: OSNews legal analysis
by lemur2 on Wed 14th Oct 2009 00:50 in reply to "RE[10]: OSNews legal analysis"
lemur2 Member since:
2007-02-17

"You are wrong here. One cannot "violate" the GPL.
The armchair lawyering on this site is getting to new lows. That comment makes no sense. "

Of course it makes sense. How can you "violate" something that merely gives you some permissions?

Mum: "Sure Johnny, you can go outside if you want to".

Naughty Johnny: "No way! I am going to violate that by ..." ????

Little Johnny is going to have a very hard time "violating" his Mum's permission, isn't he? Try as he might, there is just no way to do it. If he goes outside, he has permission. If he doesn't go outside ... he is allowed to do that, too.

GPL: "Sure, you can run this software on as many machines as you like."

GPL recipient: "No way. I am going to violate that by ..." ???

Doing what, exactly?

Of course you can violate the GPL.


No, you can't. The GPL gives you some permissions to do some things. I dare you to try to find a way to violate it.

You cannot "violate" a permission. The very idea makes no sense.

"This is because the GPL is not a contract, it is merely a license. A license is defined as: "a legal document that gives you permission to do something".
And that document, if it gets litigated gets treated as ... a contract! "

No, it isn't. How can you litigate against a document that says "here, you have my permission to do the following things".

Litigation against such a grant of permission makes no sense at all.


"That is it. Period. That is all there is to it.
Except, it isn't. "

Yes, it is. That is all that the GPL is. It is a license, and a license only. With it you have permission to do some things, without it you don't.

The thing that says that you don't have permission is copyright law, not the GPL. If you do something that violates copyright law, then you can be prosecuted for violating copyright law ... but you cannot be prosecuted for violating the GPL. That is because you can't violate the GPL. That in turn is so because the GPL has no clauses that forbid you to do something, it only grants permissions.

"So, by definition, you cannot violate the GPL. It is simply not possible.
Again, that simply doesn't make sense. "

Yes, it does. Again if I say to you ... here, you can read this paper I have if you want to ... then how are you going to "violate" that? Please explain?

You simply can't "violate" a permission to do something. The concept makes no sense.

You could similarly say you can't violate a contract you [fill in the blank here] where you fill in the blank with something which causes a law to be broken.


No, a contract is a contract. The GPL is a license, not a contract. Why are you confusing the two?

"If you have the GPL in hand, and you do some things that the GPL gives you permission to do, then you have permission, so it is OK. If you don't have the GPL in hand, then you don't have any permission it grants. If you do some things that the GPL doesn't give permission for, then once again you don't have any permission.
Correct "

Great. We agree.

"Now if copyright law says that you need permission, and you don't have it ... then you violate copyright law. You clearly don't "violate the GPL" however. This is why the GPL is not a contract.
Incorrect. The GPL is a grant of rights. People can and do disagree on what the GPL says. All the linking clauses for example, it is very unclear whether or not you are linking by the definition in the GPL or not in certain programming languages. You could be sure you are in the right and the copyright holder can be sure you aren't. So you go to court. "

None of this case would be a violation of the GPL. The only thing that can be argued in such a case is whether or not there has been a violation of copyright law.

Sheesh!

The license is treated as a contract in court. The language will be litigated and a judge will decided who is right. If you are wrong then you violated the GPL and by violating the GPL you have lost your distribution rights. From the GPL v3 section 3 [q]However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.


No, this is not a contract. This is merely a condition of the grants of permission.

At that point you have not committed copyright infringement.


Technically, you have. You have copied the authors works without permission. This clause in the GPL is a relaxation ... it says the copyright holder will not worry about the copyright violations you have already comitted.

You would only commit copyright infringement if you continue to redistribute the software after your rights under the GPL have been terminated.


No, the clause you are reading says that the copyright holder would only seek to uphold his/her copyrights in the work and seek compensation (as they are entitled to do under copyright law) if you continue to redistribute the software after your rights under the GPL have been terminated.

Edited 2009-10-14 00:59 UTC

Reply Parent Score: 2