the right to make a difference

Xen list at
Mon Jun 6 10:58:49 UTC 2016

Sam Bull schreef op 03-06-2016 12:02:
> On Thu, 2016-06-02 at 20:39 +0200, Xen wrote:
>> > This exactly has happened many times. If you take a proprietary
>> > piece
>> > of software, make changes and resell it (breaking the license
>> > agreement
>> > you received it under), then the original authors are perfectly in
>> > their rights to take away their livelihood, and this is no
>> > different
>> > with an GPL'd piece of software.
>> This is because that other person would not have the rights to the 
>> original material. It is not because the original authors would not
>> have the rights to the new material.
> Correct, and GPL'd software is no different, it is protected under the
> same copyright laws. You still do not have rights to the original
> software, it has copyright ownership just like the proprietary
> software. Even if you are releasing GPL'd derivatives, the copyright is
> not owned by the original author, it is simply that redistribution is
> subject to the conditions of the license (otherwise the original author
> could use your changes to create a proprietary version).

I have not responded to the other posts. I considered it wiser to shut 
my mouth for a while ;-). But you are kinda derailing the discussion.

The point is not that the copyright to the original material is owned by 
the original author; and that you own the copyright to your own 
material, the point is that the redistribution model in conjunction with 
group dynamics (in which the original author is often much better 
established than you are) causes the "effective" "ownership" to fall in 
the hands of the original author.

You say "otherwise the original author could use your changes to create 
a proprietary version" -- no, of course not, without GPL the original 
author could not do anything with it with "full rights reserved" as you 

You should stop comparing stuff to imaginary situations. This was about 
a real life case here. You keep bringing up points that have no relation 
to reality here. Some kind of "theoretical" discussion when it is about 
a very particular thing. You keep trying to talk about copyright 
exclusively and the idea of copyright.

But in this case that idea is embedded in a reality where there are 
several conditions:

- the work is widely available free of charge and the authors themselves 
(or someone they apparently trust) are causing this availability
- the work is often ubiquitous and intended for "viral" redistribution
- the work is often meant to be modified; but regardless; it has often 
attained indispensable infrastructure status, which is true for the 
linux kernel (do you notice how you try to refrain from naming 

You try to derail the discussion to prove your right by not talking 
about any specific elements, but trying to take the discussion as 
broadly as you can.

However in court a specific case will be judged on specific elements, 
not on general broad copyright terms.

Anything that is "generic" is less likely to be copyrightable, but this 
may also mean that any claims against it will be taken less seriously. 
The linux kernel is about as upstream as you can get, at least, as long 
as you don't count derivatives.

That doesn't mean it doesn't hold copyright; but it means it will likely 
be judged with more leniency when something tries to "link against" it 
or modify it indeed, even if it seems like a parasitic endeavour.

I'm not trying to win an argument here against you, I was just trying to 
elucidate what I think is going to be court reality, is going to be the 
legal reality of things.

You try to keep it related to copyright in essence, but it will not be 
judged solely on copyright as if that is a binary category; as if there 
is only the question of whom it belongs to and what license governs it. 
That is not the real case here.

So you can keep picking out isolated words of me and then making the 
debate about it as generic as you can get, but that won't work here.

Maybe you will win this "argument" but you won't win any case with that. 
I thought it was about that.

So it will just remain the case:

- the kernel is infrastructural and therefore rather generic in nature
- we are not talking about redistribution of the whole, only of patches 
against it
- if we were talking about redistribution of the whole, you would have a 
very strong case against it, because it would take away business 
potential for the whole
- since we are talking about something that could only be judged as a 
"derivative work" ADDON, it will be seen that it does not compete with 
the original product; it does not take away its market; or its market 
presence, since the addon still requires the original.

Because of that it will be judged according to cases such as:
- game genie vs nintendo
- artic vs midway
- formgen vs micro star

At least in the United States.

Now I believe in all of these cases market impact played a large role.

In general I feel that no matter what circumstances may exist in the 
legal stuff, in the end what it does to (business) interests has a large 
impact on the verdict.

Mainly, then, also those of the original copyright holder.

In Formgen vs. Micro Star the case was judged primarily by saying that 
the redistribution of user generated levels (map files) would take away 
sequel priority for Formgen. A commercial distribution of user generated 
map files would compete with Formgen (the original author), hence it was 

The court argued towards that conclusion, but in many cases people try 
to argue for a conclusion they already believe in in advance; from my 
perspective their reasoning was flawed, because references to art does 
not constitute art in itself; the way references to notes (in sheet 
music) are not about the notes; but about the reference, and the notes 
themselves are not copyrightable.

So by that reasoning in fact the new references (which were in that 
sense original) should not have been seen as a derivative work; however 
it was also judged that the new levels "continued the story" in which 
case, well, the previous judgement was necessary (see how they reason 
towards a desired conclusion).

In Artic vs. Midway (I prefer to start case names with the defendant) 
Artic modified a circuit board; or distributed an addon circuit board 
that could be installed in existing hardware (arcade games). Again, the 
new circuit board affected the display of images; even though it only 
referred to it; they were altered, in the sense of speeding up the game 

So it was suggested that any generative routine that changes the images 
being displayed by the device is infringing on its own because it links 
"to" those images; and the images themselves are perhaps also generated; 
so that a different generation will result in different images; and that 
the generation itself, or the description thereof, is therefore also 
copyrightable; because it constitutes a form of mapping such as between 
sheet music and a musical performance of that work.

By altering this "sheet" music the addon circuit infringed upon the 
(audiovisual) copyright of the game.

I believe it basically also copied this generation routine; it really 
distributed modified roms, apparently, which would constitute modified 
code as well.

At least that is what the legal article that was referred to, holds.

In Game Genie vs. Nintendo (Galoob) it was suggested that audiovisuals 
were not impacted, or changed, but only meaningless values. Furthermore 
it was said that the addon did not incorporate anything from the 
original system.

These three cases seem to suggest that would be judged against 

However the verdict in Midway was extremely odd because it was said that 
the addon of Artic would take away business potential for Midway; 
indeed, if Midway wanted to, they could also distribute that 
modification of their own; hence it is competition.

So basically the question of "competition" seems to be at the heart of 
the discussion.

I will leave it to you to suggest whether GRsecurity competes with the 
Linux kernel proper.

It is extremely similar to Artic vs. Midway.

> The thing you seem to be failing to grasp is that this software is NOT
> in the public domain, nor is it under a CC 0 type license. If you
> consider public domain to be anything can be done with a work, and full
> rights reserved allows you no rights. You should default to full rights
> reserved, then these authors have explicitly given you some additional
> rights under a set of conditions.

Perhaps you should consider human notions for a while, instead of "make 
up" legal notions.

Redistributing the work and distributing it to every corner that you 
can, is in itself a statement of your desires for the thing.

Even if the license indicated that you could not even use the software; 
under any conditions; that license would probably be void.

Anybody would say: if you don't want it to be used, don't put it out 

Inconsistencies and contradictions in the license (we say one thing, but 
do another) do not really make your voice more agreeable.

Even if this work was distributed without a license; and even though 
copyright defaults legally apparently to full rights reserved, the very 
act of distributing it would probably incite courts to presume 
agreeability of use, but not necessarily modification and 
redistribution; until the original author makes a claim; but if he/she 
doesn't, then use and redistribution for personal reasons will be 
allowed, but commercial... or inclusion of work into something else that 
could be considered commercial, etc., would not.

When I spoke of something "you get your hands on" I was talking about 
physical stuff as an example; a local copy, as it were.

And I said that the license itself states "you can do everything, except 
..." in which case "you can do everything" is more prominent than the 
"except ...".

It does not say "All rights reserved, except ..." so by its very own 
nature, the limitations are the exception, and not the normal, contrary 
to the position you hold above.

The license itself reverses copyright law, in that sense. So in the 
context of the license, and the motives the people have for designing 
and using that license, it must be held that their doctrine is "first 
agree it is acceptable" and then "but check these and these things 
anyway" and not the other way around.

So the statements you hold above are in direct contradiction to GPL 

So what do you want to do, build a car that explicitly states it is no 

Sometimes the writing is on the wall, or as we say in Dutch, on your 

If a person comes out saying he is not doing a certain thing, but his 
"forehead" says he is, people will look at the forehead, not at the 
stuff that comes out of his mouth.

Maybe look at what the GPL actually does, instead of what it says, and 
then you will see the contradictions.

I thought we were talking about GPL, but you appear to want to be 
talking about copyright law only.

>> That is an illusion you make up. You can download a copy without 
>> accepting the license.
> If you have not seen and accepted a license, then you must consider the
> work you received to be full rights reserved, this is no different to
> proprietary software. Copyright law states that any work is full rights
> reserved by default, if you have not seen a license or anything to
> suggest you have more rights, then why do you suddenly think you have
> all the rights to someone else's work?

Whoever ever said I thought I had all the rights?

This case was only about modification of it and then distributing a 
changeset or patchset, or diffset.

It was never about anything else. You keep trying to broaden the scope 
to prove your point, but it was only about the distribution of a 
patch-set, and nothing else.

It is pretty remarkable, I must sincerely say, that a statement like 
"the right to make a difference" falls on deaf ears in an industry when 
differences (the diff command) is the primary mode of operation and the 
GPL itself is spirited in a way to allow or promote the making of such 

You are basically arguing against the GPL with your words.

You keep trying to talk about copyright law exclusively basically as a 
way to hold back on having to give a personal opinion, it seems. If you 
can just relate the words of others you consider more knowledgeable, and 
whose words are set in stone, then clearly they cannot suddenly make 
statements about something you haven't read from them.

But you could, and only you.

The spirit of GPL is to guarantee that people hold custody over their 
own software, the software they use on their own systems.

Modifying it and having the source available to it, is one category that 
is most important for that.

"Getting your work rewarded by getting the subsequent work of others for 
free" is a trade agreement that was attributed to it later on.

The primary goal is freedom of people over their own systems.

In practice what GPL does by people who are using it for their nefarious 
purposes, is to /lessen/ the ability people have to modify their 
systems, because in practice its result is that "project maintainers" 
hold complete dominion on the primary distribution channel, and most 
people are not capable of doing the modifications themselves. Also, 
information is often held back if you are trying to do something they 
don't agree with. So yes, you can modify, but, sorry, we won't tell you 
how; find out for yourself.

This is why documentation is often non-existent and especially modifying 
the kernel; have you actually read how much documentation is in it 
itself? Absolutely almost zero. There is virtually no documentation in 
the Linux source tree (apart from separate files). The code itself, is 
its own documentation, in that sense.

So now people "can" modify but they cannot, but they don't have the 
skill. What did they gain exactly?

However, producing quality code including great documentation and value 
added features, is not rewarded by GPL. Producing such code agrees with 
having commercial interests of some sort, and it agrees with trying to 
keep your code proprietary (if not closed source) because the Linux 
realm does not reward such work in itself; doing the "polishing" work is 
seen as an ungrateful task.

You can answer for yourself what would happen to the ordinary user if 
people actually trying to enhance software for their benefit are not 
capable of distributing it the way they want, and if people's power over 
their systems would increase or lessen, if they had people available 
willing to do those modifications for them (by distributing them to 
them) and when those people, that were willing to do it; were prevented 
from doing so.

If you were only allowed to distribute something you do by effectively 
giving up your rights to it, and seeing it assimilated in some main 
branch by some main distributor who holds all the power over that 
distribution, but according to their ideas and wishes.

Do we not speak of subjugation now?

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