[LUAU] critique of old emails

[Jim Thompson]

On Dec 21, 2006, at 10:59 PM, Jimen Ching wrote:

>> In reviewing parts of the archive, I also see that you are  
>> confused about the terms of the GPL.
>> http://lists.hosef.org/pipermail/luau/2003-October/014441.html
>>
>> Point in fact, if you distribute binaries of **unmodified** code  
>> covered by the GPL, then you *must* either distribute the source  
>> code *with* the binaries, or make a written offer,
>> such that **anyone** can get them for the cost of distribution.
>
> I re-read this email, and I didn't see any statement that says  
> anything to the contrary.  Which passage are you refering to?

You said: " You can develop a product from GPL code unmodified.  Then  
you have nothing to contribute back. "

But if you distribute the binaries from this (unmodified, or not) GPL  
code, you MUST comply with the GPL, (which, incidentally, says  
nothing about having "to contribute back".)

You said: "The people who will use the source code are developers who  
want to enhance or modify the source code."

Many businesses find that having control of or even access to the  
source code for their misison-critical systems is of paramount import.
If the source code is proprietary, then a "source code escrow" is  
often the solution.

I could explain at least three other examples where non-developers  
care.   My point is, Its *not* *just* *programmers* who care.

You said: "This has always been the case with free software."

But it hasn't been.   Free software is about driving a lack of  
scarcity in society, not about "sharing source code among  
developers".   Free Software is about Freedom and Liberty,
not about "source code". What you describe is much closer to "open  
source" than Free Software.

You said, "You can knowingly allow someone to violate your patent for  
years and then only file a suit after a lot of money has been made  
from the patent.  This is usually how patents
are used."

First, IANAL.  (and yes, I know the joke.)

Second, Patents are a negative right.   They are used to prevent  
someone from doing something.

Third, Knowingly allowing infringement in order to maximize one's  
reward may subject one to a procedural lache (an equitable defense),  
where one looses any right to recovery.

Essentially, coaxing or allowing a delay in enforcing one's rights  
may cause the rights to be lost.   In general, both parties must act  
to minimize their damages, or be subjected to
less than impartial treatment at the hands of the law.

In law school, they teach, Vigilantibus non dormientibus æquitas  
subvenit.
'Equity aids the vigilant, not the negligent (that is, those who  
sleep on their rights).'

You said, "For trademark violations, if you don't protect it, you  
lose it."

In general, this is true, but one can loose a trademark for any  
number of reasons.   You appear to be referencing trademark dilution  
or genericide here, however, mere non-use (abandonment) is enough to  
get your trademark canceled. (And you're talking to someone who  
defended "Netgate" against AT&T over a protracted, 5 year legal battle.)

You said, "I'm not sure about copyrights.  I think it falls somewhere  
in the middle."

This is incorrect.   You don't have to defend your copyright (unless  
it is called into question), you merely file the infringement  
action.  Equitable latches still apply, and you may
be subject to compulsory licensing, depending on the media in which  
your works take place.

>
>> The FSF only pursues GPL violators where they hold (have been  
>> assigned) the copyright.
>
> Again, I didn't say anything that would contradict this.

The original reads:
	>And so the FSF pretty much has to go after anybody they know who  
violates
	>the GPL, in order to maintain it's validity?

	I don't know if they have to.  But I know they do...  Each time I see
	someone mentioning a GPL violation, I see the FSF immediately going  
after
	the violators.

I made a correction.  The FSF does not, for example "go after" GPL  
violators where they don't hold the copyright.   Linux is one example.
uclibc is another.

>> Its also interesting to see how Scott has changed his tune over  
>> the years: http://lists.hosef.org/pipermail/luau/2003-October/ 
>> 014452.html
>
> I re-read this email, and I don't see what tune Scott has changed.   
> But I haven't read much from Scott about the GPL lately.  So I'll  
> have to take your word for it.

Scott said: " If one wishes to differentiate his product with coding  
expertise, then starting with less restrictive code is probably the  
better idea."
I don't think he would advance this position any longer.   Its a  
common mistake.  Bruce Perens and esr both make it, but its incorrect.

You make a similar mistake here: http://lists.hosef.org/pipermail/ 
luau/2003-October/014465.html, though overall, I agree with your  
position .vs Wayne, but my take is that the GPL is nothing like a  
shrink wrap license (for reasons a lot like what Warren mentioned.)

Legally, the FSF has no standing without the copyright assignment.   
This is why they've insisted on assignment since the beginning of  
project GNU.
Its also one of the places where linux went a bit wrong.

Jim