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Re: Debian Package for Phylip

On 22 Nov 2001, Henning Makholm wrote:

> Hm, as far as I can see from the list archives, you posting was a very
> hard-to-read one (no introduction to the problem, lots of badly
> formatted quotes before any real text begins, etc.). Perhaps if you
> repeated your question more concisely somebody would be interested
> in writing an ansver?
Thanks for the hint, I´ll try again:

I had a converstion with the author of Phylip Joe Felsenstein

I´m quoting from the Debian copyright file, because there is no such
file explicitely in the upstream source:

(This was checked by Dr. Guenter Bechly <gbechly@debian.org> and
 Stephane Bortzmeyer <bortzmeyer@debian.org>, the former maintainers
 and I verified, that the author did not changed his mind.)

No explicit licence. Put in non-free for the following reasons:

Not to be sold so you cannot put it on a commercial CDROM :-(
(Checked with the author.)

Quoting the source files:

/* version 3.56c. (c) Copyright 1993 by Joseph Felsenstein.
   Written by Joseph Felsenstein, Akiko Fuseki, Sean Lamont, and Andrew Keeffe.
   Permission is granted to copy and use this program provided no fee is
   charged for it and provided that this copyright notice is not removed. */


Now I quote from some e-Mail from me with Joe:
I used the following notation:

   AT>> Joe quoted from my first mail
   JF>  I quoted Joe
        my response to Joe to get you informed what I tried to convince him

Moreover I cleaned up the lines a little bit.  Sorry for the inconvience
and the long posting.

On Wed, 24 Oct 2001 joe@evolution.genetics.washington.edu wrote:

AT>> there are many changes.  Perhaps you have a look at the diffs.
AT>> The problem
AT>> of the drawtree.c and drawgram.c patches is describet in the Debian
AT>> bug tracking system at the URL I mentioned in my last posting.

JF> I will be doing that.  Yes, no point in applying the patches directly.

See below about patches ...

AT>> Just to understand this right:  Do they actually pay you or are you just
AT>> in the process to convince them to pay you?
JF> In the process of convincing them, if necessary by threatening legal
JF> action. They seem willing to pay in principle, but do not want to pay
JF> much.

AT>> If I understand your lizense right they are not allowed to make money
AT>> off of selling PHYLIP.  If they do so in my opinion GPL would be
AT>> apropriate for this case because GPL explicitely forbids including a
AT>> programm as a part of a commercial package.  Only if you want to earn
AT>> money by providing your package for royalties for this company you
AT>> can't apply the GPL.

JF> That is the problem.  We are happy to have them use PHYLIP as long as they
JF> don't want an exclusive license and as long as they give us credit and pay
JF> a percentage to our University.

JF>>> From the point of view of our lab, the GPL would have the
JF>>> effect that any big company could take our code, make millions of
JF>>> dollars off of it, and all we could do was smile.

AT>> This is wrong! They are not allowed to make millions of dollars! To
AT>> prevent this GPL was invented! Your statement applies to BSD lizense
AT>> which allows to do *anything*.  GPL allows to take a small fee to
AT>> get your effort for copying, say 1$ maximum for burning a CD.

JF> I'm not sure you are right.  From www.gnu.org/philosophy/selling.html:
JF> "Actually we encourage people who redistribute free software to charge
JF> as much as they wish or can."
JF> and ...
JF> "Except for one special situation, the GNU General Public License
JF>  (20k characters) (GNU GPL) has no requirements about how much you can
JF>  charge for distributing a copy of free software. You can charge
JF>  nothing, a penny, a dollar, or a billion dollars. It's up to you,
JF>  and the marketplace, so don't complain to us if nobody wants to
JF>  pay a billion dollars for a copy."
JF> Actually, since the company in question wouldn't redistribute the
JF> code, just use it and sell access to their computers that run it,
JF> I think the controls on them would even be less. The Gnu GPL FAQ
JF> says really nothing about that.

Well, I´m no legal expert but I forward this mail to debian-legal.  May be
they could give you some hint.
Regarding to the question if the GPL allows to make billions of dollars I
can only say:  The GPL requires to include the license text.  People who
are able to read and pay a billion dollars anyway are worth that the
will go bankrott.  I consider the GPL statement more or less in this sense,
that the customer pays what he wants to pay.  If the price is to high he can
feel free to look after a different vendor who ships it for a fair price.

JF> But if I am wrong about that I was perhaps thinking of "public
JF> domain".  I've had people say that it is wonderful that PHYLIP
JF> is in the public domain, and that gets a big reaction out of me.

Public domain is not good.  Everybody can do with your software what he
wants.  GPL saves your rights.

AT>> To make millions of dollars
AT>> they would have to make much advertising for PHYLIP to sell millions of
AT>> CDs for just one dollar.  Hmmm, I do not see the point why any vendor
AT>> should not have the right to make your fine program this popular?

JF> The company in question is not selling CDs anyway, but computer use on
JF> their machines.
As I said, this is a different case.

JF>>> Bortzmeyer got quite mad at me that it wasn't "free", but as
JF>>> I have spent years mailing packages with PHYLIP
JF>>> to parts of the world where they did not have money to buy
JF>>> programs, I feel wy have made it pretty free.  I have the
JF>>> staple scars on my thumb to prove we have gone to a lot of
JF>>> effort to make it available to everyone.

AT>> In my opinion this is a very big misunderstanding og GPL.  Just save
AT>> your time when mailing the package to anyone.  Let it be done by
AT>> software vendors if they like to do it.  They are not allowed to
AT>> make much money from it.

JF> You need to persuade me where in the GPL it says that.
Well they are not allowed might be incorrect, but they *are not able*
(see above) would be the right term.

AT>> But distributing also costs money and they should be allowed to
AT>> get back their costs.

JF> There have been a few inquiries about redistributing.  We would have
JF> set a very low royalty.  Actually we might have charged only on the
JF> part of their price that was above a reasonable minimum.  The
JF> inquiries came to nothing, because they didn't want even to think
JF> about that.  But there are some places on the web, aside from my
JF> server, where you can download it yourself.

AT>> If you *really* want to have your program distributed into the
AT>> latest corner of the world you have to enable other people with
AT>> a good distribution facility to do it for you, because you are busy
AT>> programming.  Moreover, nobody with net access has to pay.  He could
AT>> download for free.

JF> They are doing that, and I have over 10,000 registered users.  There are
JF> probably about as many who didn't bother to register (they don't have to
JF> legally).  So it is hard for me to see that we haven't *already*
JF> reached the farthest corners of the world.  For example PHYLIP is the
JF> standard phylogeny program in Russia, widely used also in China,
JF> Argentina, Brazil.  We are still sending diskette copies to some
JF> parts of Africa where they don't have the Internet.

AT>> With your current license vendors of Debian distribution are not
AT>> allowed to include your program.  I do not see the point in how
AT>> far this helps people which have no money to buy programs.
AT>> There are vendors which ship Debian CDs for about 5$.  If PHYLIP
AT>> would estimate the price for PHYLIP by the relation of lines of
AT>> code od PHYLIP to the number of all lines
AT>> of code on such a CD I guess the money they *make* whith PHYLIP is
AT>> nearly zero.  Even if they sell Debian bundled with a book for 50$
AT>> they do not make real money from PHYLIP.

JF> If Debian wanted to license PHYLIP for sale on a CD we would be most
Debian is no vendor! (See http://www.debian.org)  We do not sell any
CD and we will never license any program for sale.  There are vendors
which sell the Debian GNU/Linux distribution.  You would have to do
license agreements with those vendors but I doubt they would care about
a single package.

The profit you get from Debian is a broad user base which has a good
response in the bug tracking system.  This is why I marked your quote
about patches with "see below".  Debian just helps users in building
a good quality software distribution and gives back response to the
authors.  Debian lives from volunteers.  If a volunteer (like me) needs
a program (like your Phylip) he can package it and include it into
the distribution.  But Debian as a whole does not need those software.
If it can´t be included for some reasons (for instance the well known
image viewer xv was removed recently from Debian) it is no harm for
Debian.  People who would really need software which is not included
into Debian could use their lokal copy.  But the author of the program
lacks two important advantages:  publicity and response via bug tracking
system.  So it is also in your interest (and in the interest of UW which
contributes to the free software world) to enhance the quality of your
software.  You will get no money from Debian but co-workers.

JF> merciful in what we charged, probably charging nothing as long as the
JF> price of the CD's is low.  BUT ... we wouldn't be allowing it to be
JF> under the GPL
We do not care about the price vendors will offer Debian CDs and we will
not include any software, which makes its distribution dependend from
the price it is offered for.  This would not fit DFSG.

JF> for the reasons I have mentioned, unless you can clear up the issue of
JF> reselling prices, and charges for running it.

JF>>> The PHYLIP license may not comply with someone else's standard,
JF>>> but it complies with our feeling that the software should be
JF>>> free to individuals and even to companies, but when it is
JF>>> resold or access to it is sold, we should get a royalty.
JF>>> I don't know of any GNU license that allows us this.

AT>> If you really want to make money this way (which would be perfectly
AT>> OK in my opinion!) GPL is not the right thing for you.  That´s true.
AT>> I´m no lizense expert, but if you want *this* I could foreward your
AT>> question to debian-legal list.  There are experts.
AT>> But if you want to *prevent* people from making money with *your*
AT>> product, than GPL is the thing which was made for people like you :).

JF> We don't want to prevent anyone making money, as long as we get a fair
JF> cut of it, and it isn't restricted.  If the Debian experts can
JF> suggest some version of GPL (say GPG, which might stand for
JF> "GPG's not GPL") then they can do so and I will pass the information
JF> on the UW's Intellectual Property Office.

JF>>> If you know of one, do let me know.  If it has to be put in the
JF>>> "non-free" section of Debian, well maybe the Debian folks should
JF>>> think of splitting that section and renaming parts of it, because
JF>>> right now the ridiculous situation exists where one has to say
JF>>> that it is available for free from the non-free section!
JF>>> However that is a terminology problem Debian has to consider on
JF>>> its own.

AT>> The Debian sense of "free" includes the freedom of the vendor to
AT>> distribute (well Debian is a *distribution*) in the sense of
AT>> letting the vendor live.
AT>> There are other cases of non-free software in Debian:

JF> Again, we are happy to let them live as long as they grease our palms
JF> in the appropriate way.
As I said: For greasing your palms are two ways: Spending money or
offering some work.  We offer testers and bugfixes.

AT>> - pine:  You are not allowed to distribute changed binary versions,
AT>>          but Debian has to change some pathes.  So pine is
AT>>          distributed as source package and users have to build
AT>>          the Debian package themselves which just prevents the
AT>>          average user from using pine and this is sad.

JF> Interestingly, Pine is owned by the same people who now own PHYLIP:
JF> our University.
O dear.  The Debian legal team would have a hard fight ;-)).

AT>> - former versions of remind:  This program is GPL with exception that
AT>>   nobody is allowed to port it to M$-windows and people from company
AT>>   xyz (there was a certain company named, my be they fired the
AT>>   author ;-))? ) are not allowed to use it.  Strange lizense but
AT>>   it discriminates persons (porters and people of the named
AT>>   company) and so it conflicts  with item 5 of DFSG:
AT>>     No Discrimination Against Persons or Groups
AT>>     The license must not discriminate against any person or group of
AT>>     persons.
AT>>   If you ask me this is a really hard point but I would really like to
AT>>   prevent fascists or terrorists from using my software, but it is hard
AT>>   to differentiate and moreover the bad people would ignore such
AT>>   statements anyway.

JF> I agree.  Up until 1993 I refused to distribute PHYLIP to the Republic of
JF> South Africa or to support it there.  This was dropped in version 3.5c
JF> as it was clear that the boycotts of SA were about to end.  Probably the
JF> UW who now own it would not agree to such a restriction. Actually I
JF> did not try to restrict them from getting a copy, I just refused to
JF> help.  The South Africans do get it now but some of them are still
JF> mad at me.

AT>> So the term *free* in the Debian sense is well defined and very
AT>> strict. It preserves the freedom of authors and distributors.
AT>> The GPL is more strict:  It prevents that distributors become
AT>> rich and that code can be stolen by other people.

JF> I wonder whether it prevents the distributors from charging a high
JF> price.
I repeat. Everybody who can read the GPL has the ability to pay the price
or just look for another vendor / website.  I see no real chance to get
rich by selling GPL software.

AT>> Anyway it would help if there would be an extra Lizense file in the
AT>> package which belongs to all files I could quote in the Debian
AT>> package.  I could offer help of our license people if you are
AT>> not sure, if it is DFSG free and perhaps they are able to suggest
AT>> you a license which is DFSG free and fits your intention more
AT>> than GPL.

JF> I would be happy to hear of this. We are undoubtable going to have a
JF> more complete license file in the final 3.6 version.
JF> Thanks for your efforts on this.  Will try to be responsive to any
JF> questions.
Well, see the debian-legal list CCed and people from debian-legal please
CC me and Joe because we are not subscribed to this list.

Kind regards


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