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Re: Microsoft needs a help strategy

From: amicus_curious
Subject: Re: Microsoft needs a help strategy
Date: Thu, 29 Jan 2009 09:06:55 -0500

"ZnU" <znu@fake.invalid> wrote in message">
In article <4980ee5f$0$21796$>,
"amicus_curious" <> wrote:

"ZnU" <znu@fake.invalid> wrote in message">
> In article <4980a453$0$21838$>,
> "amicus_curious" <> wrote:
>> "David Kastrup" <> wrote in message
>> 85bptrnsam.fsf@lola.goethe.zz">news:85bptrnsam.fsf@lola.goethe.zz...
>> >
>> > The recipient of GPLed software is free to declare the GPL void and
>> > revert to default copyright rules.
>> >
>> What is at issue today, though, is the nature of such "default >> copyright
>> rules".  If there is no fee charged to use the work or to redistribute
>> the
>> work, the copyright can be ignored unless the author can show some >> degree
>> of
>> harm to himself.
> If we're talking about Party A redistributing Party B's unmodified > GPL'd
> work without making the source available, this may be true. But this is
> trivial, since the source is available to anyone who wants it in this
> instance from Party B. If a court found against the GPL in a case along
> these lines, nothing substantial would change.
> If we're talking about Party A modifying Party B's GPL'd work and
> redistributing the modified software without making the source
> available, it seems fairly clear that Party B *has* been harmed in this
> transaction.
First off, that has not yet occurred in the SFLC lawsuits. They all turn, so far, on a company using some tiny Linux and BusyBox utilities on a single purpose device. There is nothing new to disclose, just one more mirror of
some version of BusyBox.

But if there ever were anything like that, it is not so clear that Party B
is harmed.  If Party B has no expectation of any gain financially, then
there can be no harm if he doesn't get any.  If the only benefit is some
form of publicity or such, that has to be evaluated.  Other third parties
may not benefit if the change is not disclosed, but they are not authors and
so harm to them is inconsequential to the issue.

I agree with you that harm to third parties is irrelevant as a legal

But Party B clearly is harmed, despite there being no money involved.

Say Party A and Party B both have an interest in having an Ostrich Farm
Management application developed, which they both intend to use. So they
sign a contract: Party B will write modules to keep track of issues
related to bird mating and feeding, Party A will write the module to
connect the application to the International Electronic Ostrich
Exchange, and and they'll all trade source code so they can
independently develop and maintain the entire application afterwards.

Party B finishes his modules first, and fires the source off to Party A.
When Party A finishes his modules, though, he refuses to share the
source with Party B.

No money has changed hands at all during this process. Yet Party A has
clearly violated the contract, and Party B has clearly been harmed as a

Not so clearly, I think. First, you ignore whether or not Party A is distributing the improved modules gratis. If so, Party B is receiving any benefit anticipated from the mutual effort. Is that an "irreperable harm"? The JMRI case has hinted that the SCOTUS has somehow established that there has to be real, not just statutory assumed, harm. If both parties have obtained what they expected, then where is that proof of actual harm?

The GPL's requirements to disclose the source for derivative works, and
to license those works such that they can be modified and redistributed
under the same terms as the original work, are fundamentally intended to
create a situation like the one above, but without requiring prior
arrangement between the involved parties. The harm is precisely as real.

But the presumed harmed party seems to have been made whole by giving back the right to use the subsequent modifications.

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