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Re: KDE not in Debian?

Marc van Leeuwen wrote:

> > David Welton <davidw@master.debian.org> wrote
> > On Fri, Jan 28, 2000 at 03:00:40AM -0500, Andreas Pour wrote:
> >
> > > Errh, I keep hearing this misconception that BSD code can be
> > > relicensed as GPL code, but can not figure out where it comes from.
> > > How can you re-license BSD *source code* as GPL code?

OK, my last round, gotta do real work . . .

> IMHO it is a misconception to think that a distribution licence is
> indissoluably attached to some work (be it source or binary code). What is
> attached and will remain so in all copies/modifications is the copyright. The
> licence is just a statement from the copyright holder conditionally lifting
> the default prohibition of copying of copyrighted material (I would like to
> note that in the relevant sections of the US code I found no mention
> whatsoever of the possibility to give a distribution licence, contrary for
> instance to the possibility to transfer (part of) the copyrights; this would
> imply that the legal status of licences is vague at least).

Not at all.  Copyright law creates a property right -- much like your property
right in your car or house.  Just like you can license someone to use your
physical property -- like a car or house --  you can license them to use your
intellectual property -- like your patent, copyright or trademark.

> The copyright
> owner may at any time decide to redistribute with a different licence; what
> is not entirely clear to me is if somebody making a derived work has the right
> to give a it a new licence (or no licence at all, meaning no redistribution is
> allowed) when this is not explicitly forbidden by the licence attached to the
> original work.

Hmm.  I don't know, the BSD license says you can modify the source code, it does
not permit you to modify the license.  The copyright holder still holds the
copyright to every copy of the work that is created.  And this owner has indicated
that the copy comes under the BSD license.  The fact that you, and not he, makes
the copy, does not change the license he gives to the copies.  I mean, maybe you
would have an argument that, the one copy that he gave you, that you can change
the license on that.  But how can you change the license on a copy someone else
makes?  I mean, if code B is BSD, and you add code G which is GPL to it, and then
you distribute B+G to me, when I make a copy of B+G, how can you say your license
applies to the B part, when the copyright holder of B says a different license
applies to it?

> What does seem clear is that (1) GPL explicitly forbids
> distributing derived works in any other way that licensed under GPL (its
> "viral clause") (2) the BSD licence does not do so.

Does it have to?  If I buy a book it does not say I cannot make a copy, but it
does not have to, b/c copyright law says I cannot.  Now, when someone releases
code under BSD, they say, despite what copyright law says, you can copy and
distribute this code all you want, with these minor conditions.  He is not
transferring to you the copyright, however; he is only giving you a license to
copy.  So, I would think that his license prevails over any license you might want
to introduce. But I am not aware that this particular issue has been decided by
the Supreme Court, so in the US at least it appears to be an open question.  What
I do think is pretty clear is that it is not certain you can do it, much like you
may argue it is not certain that KDE/Qt is OK.  But since everyone does BSD/GPL
and thinks that is OK, I'm not sure why people object to KDE/Qt.

> The relevant phrase in the
> BSD licence is "Redistribution and use in source and binary forms, with or
> without modification, are permitted provided that the following conditions are
> met:" where the following conditions do _not_ mention that the cited phrase
> (the actual licence to freely redistribute) must be applied to (modified)
> copies; it does state that the copyright notice must be retained.

Well, I'll make it a bit more difficult for you.  Look at the XFree license.
Clearly even RMS and his followers think it's OK to link GPL with XFree code
(think of the Gimp, and GTK, and . . . the list is miles long).  The license for
XFree says (http://www.xfree86.org/3.3.4/COPYRIGHT1.html#1):

    Copyright (C) 1994-1999 The XFree86 Project, Inc. All Rights Reserved.

    Permission is hereby granted, free of charge, to any person
    obtaining a copy of this software and associated documentation
    files (the "Software"), to deal in the Software without
    restriction, including without limitation the rights to use,
    copy, modify, merge, publish, distribute, sublicense, and/or
    sell copies of the Software, and to permit persons to whom the
    Software is furnished to do so, subject to the following conditions:

    The above copyright notice and this permission notice shall be
    included in all copies or substantial portions of the Software.

So, on the one hand it permits "sublicensing" of the code, so it may seem to be an
easier case than BSD.  But wait -- it does not say you can sublicense under any
terms of your choosing, it only says you can sublicense.  If you dig a bit deeper,
in the third paragraph it says, "The above copyright notice *and this permission
notice* shall be included in all copies . . . of the Software".  It's obvious what
the copyright notice is -- the first paragraph.  Well, what it the permission
notice?  It is the second paragraph, which says "Permission is hereby granted .  .
.".  So, you include paragraphs 1 and 2 in the copies of the Software, that means
any third party that gets the software gets it subject to that license.  And that
license says "any person" can deal with the Software "without restriction".  This
is incompatible with the GPL, under your reading of the GPL, since the GPL does
add restrictions to the X code (remember, under your reading the GPL has to apply
to the "whole", which includes, in cases like GTK and many others, the
*unmodified* XFree source code that it links to -- yes, that's right, the X code
is unmodified, so there is no "code mingling" argument to make here).  So it seems
that the sublicensing means, Person A can license it to Person B, but that the
third paragraph says, the license must be on the same terms as the original

Incidentally, you can see here that X takes a different approach to sublicensing
than GPL.  For a third party to get a license, he must have someone who has
granted him the license.  Under X, it is the intermediary, b/c the X license says
you can sublicense.  Well, sublicensing has its problems in law, so the GPL took a
different route:  in Section 6 the original author grants a license directly to
the third party, thereby (hopefully) circumventing the need for an intermediary to
sublicense to the third party.  How BSD does it, well, I don't think they thought
about their license much at all :-{.

Now, commercial X server companies get around the XFree license by not
distributing the source code at all.  (The license does not require you to include
the copyright notice and permission notice if you distribute a derived work of the
Software, which is what a binary server is).  However, GTK and company can't take
that "out", b/c the GPL requires them to distribute the source code to X (since it
is linked to GTK binaries).  But XFree says you must permit redistribution w/out
restriction.  How can that possibly be legal, then?

I think if you think about this closely you will see that I am probably the last
"muddled" person discussing these issues on this list (not to say a court won't
disagree with my interpretations, just that my interpretation makes sense out of
this X/BSD/Qt thing quite nicely, and your interpretation has a bunch of
problems).  Under my interpretation, all GPL requires is that the combined work be
available at no charge to third parties, and that the source code to the entire
combined work be available for free.  Each component of the modified work can be
under its own license, as long as those two conditions are satisfied.  With that
interpretation, it is OK to mix GPL code with NPL (IIRC), BSD, XFree and QPL code

> This may
> seem legal nitpicking, but it is the only way I can see that BSD code could
> legally have been incorporated into proprietary software, which clearly seems
> to have been done (see the examples given by David Welton). I also believe
> that the GPL was written precisely to forbid such use of free software.

> >From this it follows that (unless explicit permission is given by the relevant
> copyright owners) a work derived both from BSD code and from GPL code
> cannot be legally redistributed under any other licence than GPL.

Under your reading I fear it cannot be legally redistributed at all.  And the case
is even clearer with X code.  And then you have the question of Artistic code --
ahh, I'll skip it.

[ ... ]



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