Message-ID: <20181026155001.GA6327@thyrsus.com>
Date:   Fri, 26 Oct 2018 11:50:01 -0400
From:   "Eric S. Raymond" <esr@...rsus.com>
To:     Eben Moglen <moglen@...umbia.edu>
Cc:     gregkh@...uxfoundation.org, visionsofalice@...chan.it,
        linux-kernel@...r.kernel.org, rms@....org, bruce@...ens.com,
        bkuhn@...onservancy.org, editor@....net, neil@...wn.name,
        labbott@...hat.com, torvalds@...ux-foundation.org,
        ksummit-discuss@...ts.linuxfoundation.org, tglx@...utronix.de,
        olof@...om.net, clm@...com, mishi@...ux.com,
        linux-kernel-owner@...r.kernel.org
Subject: Re: The linux devs can rescind their license grant.

Eben Moglen <moglen@...umbia.edu>:
>  reputational damage is *specifically* recognized as grounds for relief.
>   
> No.  Reputational damage is not mentioned at all, let alone
> specifically recognized.

I have no difficulty in finding the word "reputation" in the brief in
in proximity with the phrase "increasing [the programmer's] recognition in
his profession". In fact the brief notes " The Eleventh Circuit has
recognized the economic motives inherent in public licenses, *even
where profit is not immediate*" (Emphasis mine.)

And "The attribution and modification transparency requirements
directly serve to drive traffic to the open source incubation page and
to inform downstream users of the project, which is a significant
economic goal of the copyright holder *that the law will enforce.*"
(Emphasis mine.)

You seem to be denying that the brief says what it actually says.  It
not only qualifies reputational gain as a kind of economic
gain - and thus losses as damage - but cites the Eleventh Circuit as a
previous authority for the proposition, and affirms that these gains
and losses can be a matter for the law.

This disinclines me to trust the rest of your analysis or assertions.
I think you are advocating for your interest in the perceived
irrevocability of the GPL, and where this implies being less than fully
forthcoming about the actual risks in *this* situation you are committing
something perilously close to suppressio veri.  This is not helpful.

I've lived with a practising attorney since about the time she was one
of the first-line legal reviewers for the original GPL back in the
1980s - we probably still have the draft printout with her scribbled
annotations on it somewhere.  "Only lawyers can interpret this voodoo"
is not a good line to pull on me when it comes to open-source
licensing; I don't buy it and she wouldn't either.


Here's another sentence from the brief that I had forgotten:
"Copyright holders who engage in open source licensing have the right
to control the modification and distribution of copyrighted material."
- a particularly telling sentence in regard to the current
controversy, and one I had forgotten.

That there could be enough to win the day for the license
revokers - they don't actually have to revoke, just assert that
control.  Pretty much equivalent to what the the Berne Convention's
moral-rights provision does in Europe - they could claim that the
CoC is a defacement of their work to which they refuse assent
and have a case.

I am not at all doubtful that the dissidents know these things; some
of the language in the broadsides to lkml so indicates.  Which is why
I'm trying to get the kernel leadership to repair its unnecessarily
high-handed behavior before somebody gets pissed off enough to
actually drop a bomb.
-- 
		<a href="http://www.catb.org/~esr/">Eric S. Raymond</a>

My work is funded by the Internet Civil Engineering Institute: https://icei.org
Please visit their site and donate: the civilization you save might be your own.

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