Message-Id: <200706142237.31289.dhazelton@enter.net>
Date:	Thu, 14 Jun 2007 22:37:30 -0400
From:	Daniel Hazelton <dhazelton@...er.net>
To:	Alexandre Oliva <aoliva@...hat.com>
Cc:	Linus Torvalds <torvalds@...ux-foundation.org>,
	Adrian Bunk <bunk@...sta.de>,
	Alan Cox <alan@...rguk.ukuu.org.uk>, Greg KH <greg@...ah.com>,
	debian developer <debiandev@...il.com>, david@...g.hm,
	Tarkan Erimer <tarkan@...one.net.tr>,
	linux-kernel@...r.kernel.org,
	Andrew Morton <akpm@...ux-foundation.org>, mingo@...e.hu
Subject: Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

On Thursday 14 June 2007 21:43:07 Alexandre Oliva wrote:
> On Jun 14, 2007, Daniel Hazelton <dhazelton@...er.net> wrote:
> > On Thursday 14 June 2007 14:35:29 Alexandre Oliva wrote:
> > <snip>
> >
> >> > So let's look at that "section 6" that you talk about, and quote the
> >> > relevant parts, will  we:
> >> >
> >> > 	You may not impose any further restrictions on the recipients'
> >> > 	exercise of the rights granted herein.
> >> >
> >> > and then let's look at Red Hat sending me a CD-ROM or a DVD.
> >> >
> >> > Now, Red Hat clearly *did* "further restrict" my rights as it pertains
> >> > TO THAT COPY ON THE CD-ROM! I cannot change it! Waa waa waa! I'll sue
> >> > your sorry ass off!
> >>
> >> Red Hat is not stopping you from making changes.  The media is, and
> >> that's not something Red Hat can control.
> >
> > TiVO isn't stopping you from making changes - the *media* is.
>
> TiVO made it so, that's the difference.
>
> I'll give you that it's not so much about making changes per se, or
> even installing them, as it is about running the modified versions for
> any purpose.

Artificial distinction on your part.

> >> Compare this with the TiVO.  TiVO *designs* the thing such that it can
> >> still make changes, but customers can't.
> >>
> >> That's the difference.
> >
> > No, it isn't. Look at any motherboard. The Bios on the last three or four
> > motherboards I've purchased check for a digital signature on the Bios
> > updates. The motherboard manufacturer can make changes, but the customer
> > can't. Is there any difference? Nope.
>
> Is the BIOS code under the GPL?

By your reasoning it doesn't even matter. I own the hardware, I should be able 
to change the BIOS to *any* chunk of code I want.

Do you see the fallacy here? You're making an artificial distinction based on 
whether the *SOFTWARE* has a certain license or not.

> > The fact is that claiming it was "the spirit" doesn't matter at all
> > - this isn't philosophy you're arguing, its *LAW*, and in law, if it
> > isn't clearly spelled out, it doesn't exist.
>
> That's exactly what makes for the difference between the spirit and
> the precise legal terms, and why GPLv3 is fixing these divergences.

And the reason behind this is all "ethics and morals". In other words, you are 
forcing those "ethics and morals" on others and hiding it by giving it a 
different name.

Wasn't it Shakespear who said: "What is in a name? A Rose by any other name 
would smell as sweet"

> > And where does it say that you even have the right to run the "work based
> > on the Program", or even a self-compiled copy of the "verbatim copy of
> > the code" on any given piece of hardware?
>
> It doesn't.  The license can't demand the software, or modified
> versions thereof, to run.  The only thing it can demand is that
> licensees don't impose restrictions on others' abilities to do so.

No, it doesn't. There is no requirement in the license in question that makes 
a persons ability to run the program on any given piece of hardware. What it 
does say is you can't stop someone from *TRYING* to do that.

> >> > But by "the software", the license is not talking about a particular
> >> > *copy* of the software, it's talking about the software IN THE
> >> > ABSTRACT.
> >>
> >> Please read it again.
> >
> > Done.
>
>   2. You may modify your copy or copies of the Program or any portion
>   of it                  ^^^^
>
> > If this has been the "intent and spirit" of the license from the
> > beginning, it should be there somewhere.
>
> I think you're missing what 'spirit' means.  It's guidance, it's not
> the legal terms.  And it's precisely because the implementation (the
> legal terms) failed to meet that design (the spirit, encoded in the
> preamble) that the license needs patching.

If the intent of a law (or license) is to do A but it doesn't say that, then 
how is the intent to be known? Your answer: Ask the author. Question: how can 
we be absolutely certain that the authors intent *hasn't* changed since the 
law (or license) was written? *ONLY* answer: It is impossible. Conclusion: 
Unless the intent is clearly spelled out at the time the law (or license) is 
written, or is available in other writings by the author of the law/license 
from the same time period as the law/license then it is impossible.

Question: How do you know what the "spirit" of a license is?
Your Answer: Ask the author.
Question: How do we know that the Author hasn't changed their mind about 
the "spirit" of the license since it was written?
*ONLY* Answer: See the answer to the parallel question about "intent".

Now that I've knocked down your "Intent" and "Spirit" straw-men you have no 
way to argue that the GPLv3 is written with the same "spirit" as the GPLv2. 

DRH

-- 
Dialup is like pissing through a pipette. Slow and excruciatingly painful.
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