the right to make a difference

[Xen]

concernedfossdev at teknik.io schreef op 01-06-2016 16:00:

> You are not permitted to erect barriers in the way of sublicencees
> making use of their right to redistribute, a right that is granted by
> the original rights-holder.

First you must convince a court that these rights have any merit in 
reality. Something can also be in violation of common law and common 
principles. The right to redistribute, after all, you might say, becomes 
slightly weaker every time it goes away from the original copyright 
holders. After all, are you violating the original author's right to 
redistribute? Not really. So how important are those rights of those 
sublicensees? Do they have any commercial interest in doing so? Any 
other personal interest that is important to them, in a real sense, that 
an average person will recognise?

> That is called bad faith on your part and your rights to the
> copyrighted work are dissolved since you have acted in bad faith
> towards the agreement you have with the original rightsholder
> (who has stipulated that sublicensees may redistribute at will: a
> purpose you are attempting (and succeding at) frustrating).
> It does not matter what form these barriers take.

Then the original authors (or rightsholders) must make a statement 
saying that they consider this use unwanted and that they want it to 
stop. No one else can say anything about this.

They may have a fair case without much further ado. It would probably be 
considered that these rightsholders would do what is best.

The question is also whether they would want that in the first place. If 
they have this case, which I feel they should have at least slightly, 
they might come in the position to negotiate the terms under which those 
patches are offered to others. I do feel they should have a say about 
that. But after all, you may not be that person.

So considering that you may make the case (as the rightsholder) that the 
defendant's actions actually impedes the viability, the success, the 
reputation, the image, the whatever, of Linux, as a /real/ issue or 
interest, not something imagined or dreamt up (pardon the allusion) - 
then you have a case.

I still hold as in the other email that you must have a real issue and a 
real case about real harm being done to interests of real parties.

> The original licensor has a claim against you, then, for copyright 
> infringement.
> The sublicensees have tort claims such as tortious interference (with
> their quazi-contactual business relationship with the original
> licensor).
> The original licensor has the same such tort claim.

That's all well but you must still show how this harms them.

> The only way around this is to argue that a patch to the linux kernel
> is not a derivative work.
> Which is a claim that some people make.

Which is a claim you can make about any patches, often, usually. But 
this is why I wanted to reply here: I am not sure that the courts agree 
with the broader definition that the GPL (or FSF) has of the term 
"derivative work". This term is clearly in the terms, but it may not 
agree with copyright. According to GPL, the right to modify is only 
granted if the new work has the same license. The license only comes 
into play when you distribute it, but the terms /of/ the license make 
use of this broader term. Then, or thence, it follows, or might follow, 
that even the act of modification is not allowed, ceasing any 
possibility of legally distributing patches OF that work; regardless of 
whether those patches are GPL or not, and regardless of whether they are 
derivative works or not.

Simply because your choice to not (intend to) distribute under GPL 
already violates the license when you modify it; except that the GPL FAQ 
does not agree with this, and modification and redistribution are 
actually different things.

I don't know if it will ever pass that private modification is not 
allowed if intended with any (commercial, or redistributary) interest in 
advance; since the GPL specifically allows for it; and that the acts of 
modification and redistribution must be combined in essence as if to 
form some atomic operation that in itself, is a violation. I don't think 
this is common sense.

I don't think you can take away the rights of modification just BECAUSE 
some person doing it intends to not distribute under GPL.

Regardless, that is the only way in which the broader terms of the GPL 
/immediately/ apply to the patches without having to pass the (common 
copyright law) "derivative works" test. (Because you can apparently also 
make demands or claims on the limitation of modification, in the first 
place).


> In which case any "share alike" type license is essentially
> meaningless when it comes to software (as a patch can always be
> distributed rather than a complete work incorporating the original)

In case you can automate the assembly of separately distributed 
components, yes.

But this gives rise to the broader question of whose interests are at 
stake here, because any such form of distribution will still require the 
distribution of the original copyrighted material, never superseding, or 
supplanting, the work being done by that other person.

And, at which point, it becomes the question of how "fair" it would be 
if you were to provide copies of that original work, and become a 
distributor of that yourself. See, in a general conclusion, your ability 
to distribute your work, must not impede on their ability to distribute 
theirs.

Even if, according to the rules in your license, anyone should be 
allowed to distribute, does not mean your interests may not be harmed if 
someone is going to do it in order to supplant you.

So, even though you may have given those rights in your license, in all 
fairness, no one is going to be happy, people are not going to be happy 
if you use it as a leverage against the original copyright holders. If 
copyright is intended to protect rights, you must conclude that any 
"liberalness" in those licensees to do with your work what they want, 
must also mean you can do with your work what you want, including the 
preventing of a loss of business opportunity, or popularity.

I know the "rules" do not state that. But that is what copyright is 
actually about.

In the eyes of any observer, any other party engaging in such tactics, 
in order to compete with you, combat you, or try to take your market 
away from you, will also invalidate their claims that they have a right 
to use your product.

I feel that that is what this should really be about: fairness.

So, perhaps, why not debate fairness before you debate ways to attack 
someone? Why not state /why/ you feel something has been unfair, or even 
"unappropriate" before saying that the rules have been broken (but 
without saying why it matters to you?). Violation of GPL is not in 
itself the great determiner of all things unholy, the determiner of all 
things bad.

GPL in itself is also only a tactic employed within the restraints and 
constraints of copyright law. Some call it a way to turn copyright 
against itself.

So if your only argument is "the GPL has been broken, and that is a 
violation in itself" then you do not stand strongly in your argument, at 
least not with me. Because you must first explain why you want to 
utilize the terms of the GPL in this case to attack this person.

In other words, you can speak of the "spirit" of GPL, but the spirit of 
GPL also has a spirit itself, which is fairness.

And this fairness is about being able to do with the work of others what 
you want, without hurting their interests.

It is about the freedom to create creative works much like a "mashup" of 
art or music. But it does not say anything about what you can do with 
that. And clearly, your rights to create are greatly impeded if giving 
away everything for free, that you do, is your only option when you 
create.

Because this does not answer any question about actual interests, or 
rights, of the one doing the creation, while these interests and rights 
were at the very core of why GPL was created in the first place?

So how can you say someone has the right to modify but not the right to 
choose what next to do with it?

That means ALL rights of ALL modifiers are impeded. This is not a 
balanced situation.

So the actual terms of the GPL cannot be holy in itself, because they do 
not actually achieve the true goal for which it set out. Which was 
freedom of individual people, mostly, and perhaps small groups as well.

Or bigger groups or collections of those small people. It was really 
about the rights of the individual, not of larger entities, in first 
instance.

A right to modify is one thing. A right to always have access to the 
work is another. And I feel that, in GPL, or in people dealing with it, 
or advocating it, often a desire is inherent.

And this desire is the free access (free as in beer) to any work done by 
anyone ever.

This desire is called freeloading by itself.

The desire is often not being able to modify something. The desire is 
having access to it.

After all, if you were just allowed to modify GRsecurity in this sense, 
sure you could. You could then distribute your patches to anyone already 
using it.

Why would you need to have a need to distribute the entire thing on your 
own terms? Is that fairness? Is that something you need to do, 
regardless of what harm you may do with it, just because you feel you 
have a right to make money (or whatever) based on it yourself?

The /TRUE/ spirit of GPL is violated, in my opinion, if the users (and I 
guess, clients) of GRsecurity were NOT allowed to modify that thing, and 
distribute their changes OF that.

So I feel GPL should be about the right to distribute diffsets. You must 
be allowed to create based on the work of another, without supplanting 
that other in a real sense.

If that is not enough, you can create additional terms. (Including some 
GPL component is not really modification).

But you really don't need the right to distribute anything you get your 
hands on, modified or not.

A person may be allowed to control what goes where.

It is /modifications/ that should be your own domain. All of life 
modifies itself, and propagate changes based on that. You could not do 
anything in life unless you were to base yourself on the work of others, 
and many great people have gone before us, and maybe you can be the 
next. Or I. :p. But. The important thing to realize is that your work, 
and your life, is based so greatly on what others have done before you, 
that the idea of "owning" the entire thing including any right to never 
having it see changed, is just weird considering how life works.

Basing yourself on the works of others is like the first imperative.

And GPL is about THIS freedom really.

It is about the freedom to take something you already have, and do 
something with it. It is not about the freedom to get your hands on 
anything you like.

Provided there is some fairness involved in the cost of acquiring it, in 
the first place.

And in that case there is no tort, but extortion. And maybe this is the 
case today, someone obtained some form of a monopoly position, and then 
changed the terms of acquiring the product by making it necessary to pay 
vastly more money than before. That is something else, not about 
copyright (in the first place) but about some devious business practice 
that the original copyright holders should be allowed to have a say 
about, perhaps.

But what I see being done here today, is being voiced in the language of 
free as in beer, not anything else.


> The only way Spengler gets away with this, if he is sued, is if he
> convinces the court that a patch describing all the changes he made to
> the linux kernel is not a derivative work.

Please explain why someone would need to do the suing and for what 
reason.


I want to add in conclusion.

That it should be. About.

The right. To make a difference.


It should be about the right to make a difference. The most important 
right is the right to make a difference ;-).

Regards, and kudos, and good luck.

"Xen".