Message-ID: <m3ir68sw4z.fsf@maximus.localdomain>
Date:	Tue, 18 Sep 2007 01:35:40 +0200
From:	Krzysztof Halasa <khc@...waw.pl>
To:	davids@...master.com
Cc:	"Theodore Tso" <tytso@....edu>, "Adrian Bunk" <bunk@...nel.org>,
	"Can E. Acar" <can.acar@...-g.com.tr>, <misc@...nbsd.org>,
	<linux-kernel@...r.kernel.org>,
	"Daniel Hazelton" <dhazelton@...er.net>,
	"Eben Moglen" <moglen@...twarefreedom.org>,
	"Lawrence Lessig" <lessig_from_web@...ox.com>,
	"Bradley M. Kuhn" <bkuhn@...twarefreedom.org>,
	"Matt Norwood" <norwood@...twarefreedom.org>
Subject: Re: Wasting our Freedom

"David Schwartz" <davids@...master.com> writes:

> My point is that you *cannot* prevent a recipient of a derivative work from
> receiving any rights under either the GPL or the BSD to any protectable
> elements in that work.

Of course you can.
What rights do you have to BSD-licenced works, made available
(under BSD) to MS exclusively? You only get the binary object...

You know, this is quite common practice - instead of assigning
copyright, you can grant a BSD-style licence (for some fee,
something like "do what you want but I will do what I want with
my code").

>> If A sold a BSD licence to B only and this B sold a proprietary
>> licence (for a derived work) to C, C (without that clause) wouldn't
>> have a BSD licence to the original work. This is BTW common scenario.
>
> C most certainly would have a BSD license, should he choose to comply with
> terms, to every protectable element that is in both the original work and
> the work he received.

But he may have received only binary program image - or the source
under NDA.
Sure, NDA doesn't cover public information, but BSD doesn't mean public.
Now what?

> C has no right to license any protectable element he did not author to
> anyone else. He cannot set the license terms for those elements to C.

Sure, the licence covers the >>>entire work<<<, not some "elements".

> Neither the BSD nor the GPL ever give you the right to change the actual
> license a work is offered under by the original author.

Of course, that's a very distant thing.

>> BTW: a work by multiple authors is a different thing than a work
>> derived from another.
>
> In practice it doesn't matter.

Of course it does. Only author of a (derived) work can licence
it, in this case he/she could change the licence back to BSD,
or sell it to MS (if not based on GPL etc).

> Would you argue that I can license Disney's "The Lion King" movie to you if
> I promise not to sue you over any (no) rights that I possess to it?

Sure you can :-) that doesn't mean it would protect me from Disney,
but you can.

> You are confusing licenses of two very different types. The BSD and GPL
> licenses only cover modification and distribution, two rights you do not get
> to MS Windows at all. *Use* is not restricted under copyright.

I'm told in the USA use = copying from disk to RAM = distribution,
isn't it true? :-)
It doesn't matter of course.

> There is simply nothing remotely comparable to the BSD or GPL license in the
> case of MS Windows. There is no grant of additional rights beyond those you
> get automatically with lawful possession (such as use).

I don't compare them (though you can). You don't get a licence for
"original elements" in MS-Windows, do you?

> If MS wished to grant someone the right to modify or redistribute Windows,
> that person would also need to obtain the right to modify or distribute
> protectable elements not authored by Microsoft. The only way they could
> obtain those rights, assuming Microsoft didn't have written relicensing
> agreements, is from the original author under the original licenses.

Yes, but it isn't automatic. Imagine you have received something
from MS, under more permissive licence (I think such things did
happen). How do you, for example, recognice boundaries of the
elements, IOW what additional rights do you have to each line in
the code or pixel in the font?

The file itself only states:
(C) MS
portions (C) e.g. Bitstream
licenced under their special agreement

What extra rights do you receive from Bitstream? Perhaps you should
ask them if they have given you some licence? :-)

Or another example, redistributable runtime libraries. What extra
rights do you have?

What you write is true for GPL, but it doesn't mean it's true
everytime. It's just that clause in the GPL.
-- 
Krzysztof Halasa
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