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Destroying the GPL from the inside
How to destroy the GPL?Honestly I don't think it will be done, but there is a way. Simply put the GPL is a copyright license, which is it's strength and it's achillies heel. For years publishing companies, our friends at the RIAA and MPAA among others have pushed for longer and longer copyright terms so that they can reap the rewards from other people's work for a longer period of time. So why not turn things on their heads a bit? Actually, what I'm talking about has already been proposed. Step 1: Categorize copyrights. Say into Functional (someone else's term) for things like code. A good name since what the code does is function as a human readable version of what software will do. The second category Non-Functional, for things like books, works of art, movies, etc. In other words things that are nice but in and of themselves do or produce nothing. Step 2: Remove copyright protection from functional copyrights or set the term on them to some ridiculously short period of time, say two or three years. The media moguls wont object to this as it touches none of their core business. They have the money and the lobbying power to fend off any such attempts to remove their privileges. Who would benefit from this? At first glance from the proposal I read, it would be open source itself because the code that went into a multitude of projects would land fully in the lap of public domain. Nice thought, but nothing could be further from the truth. So lets ask again, who would benefit from this? The same people who already have the money and lobbying power to accomplish the deed, Microsoft, Sun, Apple, and any number of other closed source companies. GPL'd code would also land in public domain free and clear of any license encumberments. Everyone's code would be public domain, free to use, modify, and redistribute which has been the goal of the free software movement all along, so it must be a good thing right? Wrong! There is nothing that says that even though the copyright on proprietary code could come to term that any company HAS to release it. As a matter of fact, it would most likely get shoved under the rug as a “Trade Secret” like the recipe for a certain soft drink that comes in a red can with a white swoosh. There is no lifetime on Trade Secrets and even if it got leaked somehow and you got your hands on it, its still illegal to use. So what do we have now? GPL'd code that is free and clear for any proprietary software company in the world to use. Nothing need be returned or documented, nor would there be any legal recourse to stop the use of or recover the rights to any of that source code. Ouch!, that's going to hurt. A quick recap: We have a company with associates who actually have the money to pay for a serious run at making it happen. The other major players in the copyright field wouldn't be affected one bit and therefor are not very likely to fight it. Some of those other major players may even toss their hats into the ring in approval of it considering the many connections proprietary software companies have. We would have then have lost all our rights and any control to all code covered by any open source license, with nothing to show for it in return. We would still be able to use a lot of code that is out there and it would certainly end the debate concerning GPL/BSD/MIT/etc. license rights because they would all be capable of being mixed and matched, but that doesn't do anyone any real good in the end. Does this seem like a nice little conspiracy theory to you yet? Think I need to be fitted with a tin foil beanie and/or a straight jacket? Well I'm just talking about it, the idea is most certainly not mine. You can find the source for my maunderings on the FSF's website where you can ask the author of the idea why he thinks gutting the GPL is such a good idea. |
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Comments (25)
Which of us has overlooked something?
I'm not sure how important it is that 3 year old versions of GPLed programs could be incorporated into proprietary programs -- if this really is critical, please explain why.
If the release of code into public domain had been the intent of the developers in the first place, one would think that that is exactly what they could have done. Being four or five years old does not mean that the code is stale or outdated and taking such a simplistic look on it as being "bitrotten" falls well short of reality. One of the basic tenets of Open Source is that you can use it and change it, but if it is anything short of a change to a personal copy then one MUST share that code. RMS's take on copyright if made by anyone else would be immediately called an attack on open source.
and to answer your own question, which you seperated, I had no wish to name RMS specifically in the article.
Link for the coy reference to "the source"
I wish you would have linked it, or at least referred to it specifically, rather than being coy. This is the net; refusing to link is never effective for very long -- all your allusions are belong to us.
Binary copies are copyrighted too.
That would mean that two or three years after release, it would become legal to make as many copies as you wanted of Microsoft binary-only code (which would surely be categorised as functional), such as Windows or MS Office install CDs.
Microsoft are hardly going to agree to let that happen. People would never buy new software, they would just run the two-year-old free version.
Hence, no such law will be enacted. Hence, no problem.
If legal, I don't think many proprietary vendors will be too thrilled about the prospect of having their semi-recent code reverse engineered.
Yup. Public domain is public domain, and anything goes.
It is not a sin to share software
That is correct; the derivates of free software would potentially be non-free. Without any legal obligation to share back changes to the community, many software proprietors would probably take code, change it and not share the modified code when the binary is distributed.
> In other words kiss the 4 freedoms good bye. The four freedoms could *potentially* be lost on the *derivatives* of free software. The software that is already free will always remain free.
So what would be the good thing about this? The software black market will cease to exist. It would be legal to share copies of Microsoft Windows XP, Adobe Photoshop or any computer game that is past the copyright term. It would be completely legal to start a software distribution service - that is you get paid for sharing someone else's work.
So what will happen to free software? Free code will be used in non-free programs and then it will become non-free. But that's alright, free code will still remain free. Open source development would work like how the BSD projects are working.
Dino would probably know more about this subject than I do.
If I steal a car and then sell or give it away. The recipient of it is still in possesion of stolen property and retains no rights to if found out, even if they could prove that they alteast were acting in good faith during the transaction. They still dont own the car, and may themselves be subject to criminal charges.
*side note* A great example of loss of control is happening right now. http://www.theinquirer.net/gb/inquirer/news/2008/01/05/mcafe... , if the copyright were ammended to disallow or limit time for functional works the only answer could be made would be ... oh well, that whacky company got us again. ZERO protection.
Sorry, but no.
If somebody misappropriates -- ie taken by illegal means or in violation of a duty to protect the secret -- a trade secret, they are liable for the misappropriation itself. People who knowingly participate in the misappropriation can be liable for spreading the secret.
However, if the secret gets out to others, it's not a secret any more. That's why we have things like copyrights, patents, and trademarks. There are variations in state laws -- for example, I seem to remember California having a rather odd law,l though I can't remember why -- but, by and large, once the cat's out of the bag, there's not point in trying to chase it.
Thanks Dino. That was my understanding.
Azerthoth, a car is not a trade secret. The two cannot be reasonably compared.
The GPL is a license. I think it stands independent of copyright legislation, even if it falls under copyright _right_now_, since copyright law preceded the GPL.
One reason that California laws have been different was to protect the movie industry, to avoid all those pesky patents and "trade secrets" that Edison had on motion pictures. That's why they moved from the East coast, and their big markets, to settle in L.A.
*edit* I meant "independent of copyright law", I hope that was clear from context.
Quoting:Trade secret rights can also be lost through publication of the information, including the posting of confidential information via modern mass communications systems, such as the Internet or intranets. Anonymous postings, even if available for only a very short period of time, can destroy trade secret status because millions of people could have accessed the information even if few people in fact saw it.
From this .pdf file http://www.fenwick.com/docstore/Publications/IP/Trade_Secret... , which is a good read for basic overview of trade secrets and protection of them. Included in it is a comment that computer programs can indeed be classified as trade secrets.
However the car analogy still stands pretty well, if not in the way I stated it. If there is a reasonable consideration that the information was misappropriated then the recipient can still be held accountable for being in possession of stolen property, and the fun bits that go along with that. There are other odds and ends that can get tossed into the mix as well, up to and including the inclusion of the RICO act.
Quoting:Information that qualifies as a trade secret is subject to legal protection (against theft and misappropriation) as a form of valuable property--but only if the owner has taken the necessary steps to preserve its secrecy. If the owner has not diligently tried to keep the information secret, courts will usually refuse to extend any help to the trade secret owner if others learn of the information.
Some activities that the courts will commonly treat as trade secret theft--which means the owner will be afforded some judicial relief, such as damages or an order preventing use of the stolen information--are:
* disclosures by key employees (current and former managers, scientists and others occupying positions of trust) in violation of their duty of trust toward their employer * disclosures by employees (current and former) in violation of a confidentiality agreement entered into with their employer * disclosures by suppliers, consultants, financial advisors or others who signed nondisclosure agreements with the trade secret owner, promising not to disclose the information * industrial espionage, and * disclosures by any person owing an implied duty to the employer not to make such disclosure, such as directors, corporate offices and other high-level salaried employees.
When a disclosure is considered wrongful, the courts may also consider use of the information wrongful and issue an order (injunction) preventing its use for a particular period of time.
excerpted from http://www.marketingtoday.com/legal/tradesec.htm
But the injunction will apply only to the wrongdoers. Innocent members of the public (or competition) are not constrained to pretend they don't know.
That makes sense. Imagine a classic 1 person tells 2 people tell 2 people each fan-out...
The law could never keep up. Not only that, none of those innocent spreaders of the secret would have broken any law.
Quoting:But the injunction will apply only to the wrongdoers. Innocent members of the public (or competition) are not constrained to pretend they don't know.
Are you sure? It would make sense that a court would order that, after someone steals the coca cola formula, it orders that nobody can use the leaked recipe for the next X years.
Seems like it, but how do you prove that someone is using the leaked formula?
Remember -- no patent issue, so two people could actually come up with the same formula.
As a practical matter, there is no way to protect a trade secret beyond those who can be identified as having dirty hands.
KFC denies that the recipe is actually theirs, of course, but they've also apparently threatened couple with legal action, which sort of belies their claim. If it actually is the recipe, and the couple chooses to publish it, there's little KFC can do, and their trade secret is gone.
Potential for abuse/skew
Ugh! Loopholes.
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Or perhaps this was known and meant to be implied, but was overlooked in a bout of fear mongering...