GPL really free was Re: [Fsfe-ie] 1-page letter, faxes at the ready (IFSO, irish org)

[David Golden]

On Sat 27 Sep 2003 18:44, Niall Douglas wrote:
> For example I personally would say that proprietary code can use a
> GPL library if it's in a DLL and no GPL code found its way into the
> proprietary binary so long as the proprietary work is a work in its
> own right.
>

IANAL, TDNCLA, blah blah.
 That in "its own right" is the kicker, really.  

> But GNU disagrees in its GPL FAQ. Legal opinion appears to be very
> divided on this one. If you apply the AFC test for determining
> copyright derivationness, I think I'm right for most binaries. I'm
> currently arguing this one with a fellow on fsfeurope actually.
>

AFAIK, there's definite doubt over whether the AFC test is generally valid or 
just constitutes a *possible* procedure for determining derivation. AFC 
testing (not really a "test" as a software developer used to concrete 
yes-or-no testing would understand it, more of a set of guidelines for best 
practices for doing a similarity assessment, AFAIK) would be a proposal that 
might be made in a particular case for reaching resolution - it would be a 
foolish court indeed that just accepted a pre-prepared AFC analysis by one or 
the other party. who would of course cherry-pick the (essentially 
near-arbitrary, IMHO) choices for abstraction and filtration to their 
advantage, all that sort of thing would have to be agreed between both 
parties.

I also don't like aspects of the AFC-test like things to date - seems to me 
that they could turn copyrights into pseudopatents very handily, because at a 
sufficient levels of abstraction and lumped-approximation, almost any program 
doing the same thing as another could be considered "the same", which is 
another argument for both parties and the court having to agree what 
abstractions and filtrations are valid on a case-by-case basis.

There's certainly a (valid, IMHO, on reading the GPL, but again IANAL) 
position that consideration of derivation alone is *simply not enough* to 
decide the applicability of the GPL, and intent would have to be considered.

All in all I'd say it's not going to be sorted out without going to court, and 
then the most likely result is that derivation will continue to be decided on 
a case-by-case basis, perhaps slowly building up a bank of precedents on what 
filtrations and abstractions are "right" - the lawyers get richer that way 
anyway :-)

Shades of grey instead of black and white, and the "you win, you lose, you 
lose, you lose" effect will continue to put paid to most possible cases 
before they ever reach court.

See long and boring threads on 
http://www.mail-archive.com/license-discuss@opensource.org/thrd5.html#05876


Conspiracy theory #15741 is the IBM have engineered the SCO suit and their 
countersuit to set precedent for a few precise limitations on what does and 
does not constitute derived work of GPL software.