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List:       kde-licensing
Subject:    Re: Proposed QPL mods - 3rd try
From:       Andreas Pour <pour () mieterra ! com>
Date:       1998-12-01 9:25:52
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Joseph Carter wrote:

> [liberal use of paragraph reformatting ahead...]
>
> On Mon, Nov 30, 1998 at 08:47:47PM -0600, Andreas Pour wrote:
> > >    1. License cannot control distribution of independant patches.  In
> > >       order to have any binding control over the license of a patch, it
> > >       has to be applied to the source.  If someone didn't want Troll
> > >       Tech to use their patch, they will be able to make sure they
> > >       can't, regardless of what any of us do.
> >
> > I don't understand this.  It is of course true that Qt cannot control the
> > license which anyone uses on their own work.  But why can't they say, you
> > may not create a derivative work of Qt (or distribute it, of course)
> > unless all of the source code is licensed as follows . . . , which is
> > essentially what the GPL does.
>
> The GPL talks about it as a modified version of the program.  I'm talking
> about a patch file.  At that point, they are two seperate works.  (Some
> people disagree with this, but they were the people saying KDE source code
> can't be distributed because it was written so that it worked with Qt..
> They were wrong then and now)  They are seperate works until they are
> combined.

I realize that; my more specific point is that if the Qt license says you cannot
combine this code with any other code to create a derivative work unless that other
code is licensed so-and-so, then no on could ever use code that is not so-and-so;
or, you could say.  While people could create patch files that weren't licensed
so-and-so, but what would be the point if nobody can use it (well, sure, there is
the fair use exception, but that is only per user, you could still control
distribution).

> The lines blur a bit with unidiff and the like which include parts of the
> original to make the patch, I really didn't even want to mess with that so I
> opted not to at all since there didn't seem to be a need.
>
> > Thus, you can't control the license of the patch, but you can make the
> > patch utterly useless (i.e., nobody will be able to apply it to the Qt
> > source) unless it complies with the license you want it to have.  And this
> > "required license" can have a provision giving the original copyright
> > holder a royalty-free license to use and distribute the patch.  What am I
> > missing?
>
> Exactly, you can't control license on the patch, but you can make it so
> nobody can apply it and distribute the results.  The original QPL didn't
> allow that anyway.
>
> > [ ... ]
> >
> > >    3. Code released under the QPL as a mod to Qt will be considered fair
> > >       game for Troll Tech to be able to sell under their professional
> > >       license.  The user gets a promise that a free version will still be
> > >       available in exchange for this.  Troll Tech can incorporate your patch
> > >       as long as the result is still available.  It's more or less what
> > >       Netscape wanted with Mozilla so it's not new.
> > >
> >
> > This is a bit vague tro me -- "will be considered fair game"?
>
> Troll Tech is allowed to license the code however they wish if the mod is
> QPL licensed.  I explain that down just a bit..  (the license was clearer
> than my explanation I think)

Yeah, but why would anyone license their patch that way?  There appears to be no
incentive, is there?

> > This needs to be clear -- if Troll Tech is wrong, all distributions of Qt
> > will violate copyright law and this will really hurt Qt (and Troll Tech).
> > Obviously Qt will need to have experienced copyright lawyers in the major
> > countries look at this license (hint, hint).  There certainly should not
> > be any cloud over whether or not anything can be incorporated.  This
> > relates to the point above, about whether or not one can control the
> > licensing of the patch.  Perhaps I am not reading this right; my only
> > point is that Qt *will* have to control the licensing of patches so it can
> > be sure it has a clean, enforceable license to distribute the patch under
> > its two licensing schemes.
>
> What I was trying to do was say pretty much that if you release your mod for
> Qt as QPL, you're giving Troll Tech permission to use it however they want.
> They will keep the free version around if they do (which they plan to do
> anyway)
>
> > One other point worth mentioning, over and over again, is that Qt needs
> > experienced legal counsel to draft its license.  No offense intended, but your
> > comment that "You can't prevent use with a llicense, only distribution" (in
> > your draft qpl-mod-v3) is sheer nonsense, of course you can limit use with a
> > license (have you never seen the one-user vs. multiple-user/networked
> > licenses?), you can limit whatever you want, within certain bounds (think about
> > a license to see a soccer match -- can the stadium owners not control your
> > behavior while in the stadium?).  Also, IMHO Qt cannot afford to have a license
> > as poorly drafted as the GPL, and I really hope that precedent of
> > debate/controversy-generating text is not repeated.
>
> You can't.  Note the GPL and other free licenses don't describe use, only
> distribution.  That's what Copyright is.  Applying patches and the like for
> your own personal use is considered "fair use" provided you obtained the
> original legally.

The "fair use" doctrine is quite varied and complex.  However, I think it applies
principally to making copies of a work "for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use), scholarship,
or research", not for general use, and in any event I am not at all sure it permits
you to create derivative works.  Just b/c the GPL does not govern use does not mean
use is exempt from copyright law.  Do you think you can take a song you like and
broadcast it on a radio frequency?  That's only a "use", right?  Well, that's a
"use" that violates copyright law.

> Besides, you don't want to control and restrict users,
> you want to make sure that developers don't distribute non-free software
> without a professional edition license.  That's fine since non-free software
> is a derived work of both the person's software and qt (once compiled at
> least)  Of course the QPL does allow commercial free software.
>
> Many people have said that shrinkwrap licenses on the vast majority of
> non-free software are illegal, point is that usually these companies are US
> based and in the US whether or not you win in court is directly proportional
> to how well you pay your lawyers and how many you have.  You vs. Microsoft,
> who is going to win?

Clearly there is uncertainty in many areas of copyright law.

> > While the free software community can give Qt advice on the substantive points
> > to include in the license, I think it is a huge mistake to have computer
> > programmers draft legal agreements/licenses.  Huge mistake.  Huge.
>
> I'm not completely ignorant of Copyright law...  I was actually considering
> seriously at one point going into law and specializing in computer-related
> law.  People talked me out of it, no money in it they said.  Do you know how
> much computer law specialists MAKE these days??  FWIW, one of the people who
> is looking over the license is a 3rd year law student.  Hopefully he'll have
> some constructive thoughts on it.  Said he'd probably take a few days doing
> a little bit of research on the matter so he can make an informed opinion.

Pleeease.  Tell me you are joking.

> I don't know about you, but I'm anxious to hear what he says.  He may not be
> a lawyer yet, but he's the closest thing I can find and he's willing to
> provide his opinion without being handed a large sum of money.  Perhaps he
> may not be a lawyer, but he's doing his homework with it (quite literally I
> suppose) and if he comes back with a serious correction, there will be a v4
> I promise.  This proposal may be nearly complete or very incomplete.  I
> haven't proposed it yet because I'm not done with it yet.  It's here for
> people's opinions.  I've noted yours and am considering it.

Well, all I can say is, if Troll Tech relies on a 3d year law student on advice for
drafting the license that will govern their principal product, then, well, as the
saying goes, "You get what you pay for."

Regards,

Andreas Pour
pour@mieterra.com

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