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Fwd: Re: Questions about legal theory behind (L)GPL

On Thursday 20 January 2005 23:18, Michael K. Edwards wrote:
> [snip]
> Whoa there, Tex.  I disagree with some of the FSF's claims about the
> legal interpretation of the GPL, and I think that crying "preliminary
> injunction" is going to get them in trouble one of these days.  But I
> don't question their vision of using copyright license to create, and
> encourage the expansion of, a software commons.  I'm not anti-FSF,
> just pro-the-relatively-sane-face-of-the-FSF (the one that says
> "releasing part or all of your code under the GPL can be good for your
> business model and your soul", not "everyone must be naked!  caught
> you linking to readline!  take down your pants!").

thats nice to know, but let me deal with this one as well at the same time so
far as i can


>On Thursday 20 January 2005 19:47, Raul Miller wrote:
> You mean the mysql v progress precedent, where a judge apparently decided
> that the parties had mostly already settled and so there was no need
> for immediate action?
> Or do you mean the borland v lotus precedent where the only possible
> copyrighted material under consideration were the text (and arrangement)
> of menus?

I read the thread as being about some Questions about legal theory behind
(L)GPL, so I think its fair to talk about a broad approach. What I found
compelling in Michael's posts was the fact that he cited some law that seemed
to have a bit more support than the usual drivel about some preliminary
injunction in which nothing much was decided as a matter of law: the way i
have been tackling this area in my thinking is by looking at the broader
trends within society and law in the context of globalisation and the form of
production that comes along with it - which is not industrial society but an
immaterial/services society.

From what I can see the FSF and others who support FS do so by planting
themselves within the free speech rhetoric camp - that is you arrive at the
proper interpretation of what copyright and a commons should be about by
proceeding from a liberal rights interpretation. Free as in speech not beer
sums it up. Lessigs arguments in Eldridge is another example. The Court said
there that in effect the guiding principle in the interpretation of copyright
(I am citing this from memory so give me some room on the wording) was the
profit motive  - profit created the innovation necessary for creativity. Well
folks as a non yank it seems to me that if a grey area of law surrounding the
GPL ever had to be decided this preference of US law and the Court for basing
innovation and creativity in the profit motive doesn't hark to well for

I am sure I will be howled down but i cant see when you start mixing freedom
up with business models and profit how you have much freedom left over. Well
if you only measure freedom within the bounds of profit and money maybe you
can. But this too is another free software fudge - when necessary Moglen and
RMS like to play their more libertarian "cyber communist" card to embellish
their view of freedom - but when reality strikes the rhetoric gets tamed down
to freedom within the US liberal capitalist view of the world. To some of  us
outside of the US thats is not a very convincing form of freedom.

so my view of the trend of the law - although I could if i wanted to get
bogged down in the minutiae of this and that line of authority comes from
more looking at the general trends and trying to see how law is moving to
keep pace with the demands and functionality of global immaterial capital

It may be too post mod mod for debian but I hope I just dont get met by more

stuff like this or worse:
> post-post-modern.  However, industrial societies that take up the war
> cry of collective dignity over individual freedoms don't have a very
> good track record.

Maybe that was a bit harsh (ie my lead in there) but I think there is a
 wealth of economic, philosophical and political thinking these days that
 goes beyond the dialectic of individual v.s collective. This was the great
 dead end of modernity and industrial times and surely the new forms of
 networked organisation and production give rise to something a little more
 creative than this?

Like the geeks trying to do the Lessig and say "we are not communists" like
they fell over each other to do the other day when Gates made some such
comment,  legal theory and philosophy vis a vis open source  seems to be
stuck in a bit of a liberal v conservative view of the world.

Anyway, I think my basic point or fear that when you tie up the opens source
vision of copyright with a view of law that is pretty flimsy in terms of the
trends that exist you end up on unstable ground. If copyright finds its basis
and reason for being in the profit motive you seriously have to ask how free
can it really be?

That is in cases of possible TM or other conflicts, even SCO type situations,
who in the end is going to be dominant - not the free as in speech view I
seem to think.

So in this way I see for example TMs as being potentially a restriction on
open source - the current discussion re AbiWord and Mozilla are just little
sign posts of something larger that maybe looms ahead.

> The conduct of certain branches of the US government with regard to
> cryptography has been regrettable (and at times a sort of black
> comedy), but what does this have to do with the freeness of licensing
> terms?

well if you think the world exists or freedom is only judged  within the
bounds of the licence nothing - but if the licence exists in the real world
its hypocritical to say its free but only to those who the US Government says
are part of the free world. The licence is not the be all and end all of
reality and freedom.

> > Anyway, has anyone here ever thought obout the way open source is
> > produced and organsied in terms of trusts or fiduciary obligations?

Raul at least accepts that Debian might be construed as a community of sorts
which is composed by some sort of trust relationship - the example I was
talking about wasn't a situation of the collective outweighing the author -
the relation was very balanced (and just to make people feel warm - quite
open to business application).The point i think i was trying to pursue might
be that a community of Open source producers and users do so for a very
special reason - we believe that the right to use these things should be open
and not constrained by commodification and propertisation. This reason for
production or purpose of production gives rise to a trust/fiduciary
relationship, maybe one that arises out of the licence or what that
presupposes the licence (at the moment i tend to favour the latter). Other
producers and users in the network, the community, have an obligation to use
open source in a particular way.

Now I was thinking - when would e.g Mozilla have an action against e.g.
 Debian for some TM infringement (if you accept that the licence terms
 include the sort of "freezilla based on Mozilla TM statement" - what could
 give rise to a situation where the TM owner thought the OS project was
 somehow diminishing their standard within the community or market? When
 would passing off or defamation flow from some action?

In the Aboriginal case this was sort of termed as when would a party be using
the copyrighted material or an aspect of the community produced knowledge in
a manner inconsistent with the principles or tradition of the community. In
the TM case maybe - when is an open source community using a TM in a manner
inconsistent with the "project" of the TM holder?

Turn it around though - if a community of producers makes software with the
intention of it being free and without IP law restrictions on sharing in what
circumstances then can then someone commodify that software or aspects of
that code by imposing a TM and then turn around and ask the community from
which the production originates to impose restrictions or whatever to protect
their brand name and commodity?

You can only ask these questions if you think about it by breaking down some
of the fences created by IP law ie between patents. TM and licences. If you
accept licences dont live in a vacuum you have to think about these things
dont you?

I realise these sorts of questions  call into question the whole open source
business model to some extent but as I saw greycat say the other day on
irc..#debian Debian is not a product .... ie not a commodity.

Maybe you guys don't want to think about these things. maybe you think I am
raving - I like FS or OS or FLOSS but I don't think in the long run it is
possible to sustain as an alternative model of production that is not
constrained by various other bits of law and policy without thinking about
some of these things.

I have written some stuff about all of this - but oh so very pomo; so if you
want I can show you, if you think I am some sort of "modern day communist"
and that stuff doesn't happen here let me know. I even might find some

take care and I think its good to have discussions rather than taking sides
and engaging in defences of this or that group but my experience has been
that too many OS people just like to read the bible and when challenged
repeat the GPL's list of freedoms and dismiss everything else as not a
licence question.


like i said take care
and if this thread is about legal theory maybe i am not in the wrong place


"the riddle which man must solve, he can only solve in being,
in being what he is and not something else...."




"the riddle which man must solve, he can only solve in being,
in being what he is and not something else...."


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