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Re: software licensing

john@dhh.gt.org writes:
> But the GPL does not and cannot affect the conditions of employment of my
> employees.  Assume that I acquire a piece of BSD code, modify it, and give
> copies to my employees, telling them that they are not make any copies or
> give it to anyone else.  One of them does so, gets caught, and I fire him.
> I can now sue him and any one he gave copies to and force them to destroy
> the illegal copies.  If the same happens with GPL code, I can still fire
> the employee, but I can do nothing about the copies.

If this argument is valid, I could also just as easily say "the GPL
does not and cannot affect my trigger finger on this gun pointed at
your head"; after all, I can still shoot the poor guy who copies my
software, but since I can't do anything about the copies it's not a
violation of the GPL.  The hypothetical employer is applying force to
prevent the application of the GPL; how is that not a violation of the
GPL?  Employees may have no right to work, but that does not mean that
firings or threats of firings cannot have any consequences at all.

There are two contracts being offered by the employer: the employment
contract, which says "don't distribute the software", and the GPL (in
force because the employees have been given the code) which says "do
distribute the software".  They cannot be satisfied simultaneously, so
one of them must effectively lose a term in order to satisfy the

The employer has the power to modify the employment contract, either
by explicitly allowing the employees to redistribute or, at worst, by
simply looking the other way when it happens.  However, the employer
has no power to modify the GPL -- either it applies in full, or they
have no permission to make copies.  Sure, they can fire an employee
for distributing GPLed software... but the firing itself is evidence
of a copyright violation, and might serve as such when the owner of
the GPLed code sues (and, I'm guessing, wins).

Mind you, I'm not a contract lawyer.  However, given that it *is*
impossible on its face to meet the terms of both the GPL and the
employment contract, and that it is the employer which is creating the
contradiction, it seems obvious that the employer must intend one or
the other to, in effect, be modified in practice.  They cannot do this
to the GPL without violating it, and if they violate the GPL they
violate copyright by distributing the software to the employees.
Sure, they can fire the employee for redistributing their GPLed code,
but the firing itself is evidence of an intent to violate copyright...

(It's sort of like firing whistleblowers... everyone does it, it's
even legal most of the time, but all it ultimately does is draw
attention to whatever it was the whistleblower was complaining about.
Which is worse: adhering to the GPL, or bad publicity and a possible

Hopefully, this situation is still hypothetical.  However, I think
that even if it never happens, it is imporant to discourage the
violation of the spirit (not to mention the letter) of the GPL, and
show that it is easier and safer, not to mention more satisfying, to
support free software instead of undermining it.  It is also important
to encourage people to understand the effects of the licenses on the
software they use, and which they put on their software.

A lot of people talk about how the GPL scares commercial interests
away, for fear that everything they do will become infected... I say
"good for the GPL", because that appears to be exactly what it was
intended to do.  If a company isn't willing to follow the GPL, it
*should* be scared of GPLed code, and avoid it.


Rob Tillotson  N9MTB  <rob@io.com>

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