Open source, closed source, and the value of code

Richard Gaskin ambassador at fourthworld.com
Thu Mar 3 21:07:19 CET 2016


Robert Mann wrote:

 > GPL is a very special kind of automatic contract that is attached
 > to a piece of work and which describes what the receiver of that
 > piece of work can or not do with it.
 >
 > As such it is a very special contract in the world of contracts
 > because it does not require the agreement of the receiver, which
 > is "implied" by the act of receiving.

All works, software or otherwise and regardless whether the license is 
open source or proprietary, must include its license terms if the person 
distributing it wants others to use it at all.

The only safe interpretation of a work distributed with no license is 
that it has no license.

Software under proprietary license includes a license, as does software 
under open source license.

There's nothing all that special about the GPL in this regard, nor are 
its terms merely "implied".  The recipient has the license with the 
software, and it's a good idea to read it, as is expected with any 
software, even proprietary packages.



As for the rest of your post, I'm not an attorney.  And while my own 
layman's understanding of GPL terms more closely reflects Mark Wilcox's, 
I've been unable to convince anyone at Drupal, Wordpress, Joomla, or the 
FSF that all of them are wrong with regard to their common 
interpretation of "derived works".

As I wrote here back in Dec of '13 and have referred to since, a clear 
definition distinguishing "derivative work" from "mere aggregation" is, 
in the words of the FSF themselves, "a legal question, which ultimately 
judges will decide."

And given the vast and ever-growing variety of ways code can co-mingle, 
a single definition for all possible cases may even elude a judge if 
this definition is ever needed in court.

It's more than I could claim to offer legally-binding advice to others 
on. "I'm just a humble caveman programmer.  The ways of your attorneys 
frighten and confuse me." :)

So for myself, I tend to interpret all licenses, GPL, proprietary, or 
any other, in the narrowest terms which limit my rights as severely as 
could be reasonably interpreted, so that the odds of my running afoul of 
any possible future definition are as narrowly contained as they can 
practically be.

If I need something that isn't clear, I'll sometimes write the creator 
of the work to have them clarify their intentions in writing. And other 
times I just write my own code.  I made my own CMS because Drupal offers 
no way to deliver proprietary plugins without annoying that community. I 
like Drupal folks; it does me no good to annoy them.

This is just my personal policy, but it lets me get a day's work done 
and sleep at night.

Others may have different goals.  It's possible to spend one's time 
poking and prodding around the edges of what's written to find out where 
the boundaries might be, how much we might be able to get away with even 
if it differs from what we know the author intended.   We can choose to 
spend our time lots of ways.

I'm not an attorney and can offer no legal advice, and unless someone 
here is licensed to practice law in your jurisdiction and willing to do 
so, your query may be best taken up with a lawyer licensed as such in 
your area.

-- 
  Richard Gaskin
  Fourth World Systems
  Software Design and Development for the Desktop, Mobile, and the Web
  ____________________________________________________________________
  Ambassador at FourthWorld.com                http://www.FourthWorld.com




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