On Apr 23, 2009, at 6:21 PM, Stavros Macrakis wrote:
I said:
...The GPL FAQs are the FSF's interpretation. The R Foundation is
not
obliged to have the same interpretation, and of course the FSF
cannot
enforce licenses given by the R Foundation....
On Thu, Apr 23, 2009 at 5:34 PM, Marc Schwartz
<marc_schwa...@me.com> wrote:
Underlying all of your comments seems to be a presumption that the R
Foundation can disentangle themselves from the FSF vis-a-vis the GPL.
Keep in mind that it is the FSF that is the copyright holder of the
GPL.
Yes. The GPL itself is copyrighted.
The R Foundation may be the copyright holder to R, but they are
distributing
it under a license which they did not write.
Yes. They chose to use a certain license.
Thus, I cannot envision any reasonable circumstances under which
the R
Foundation would place themselves in a position of legal risk in
deviating
from the interpretations of the GPL by the FSF. It would be insane
legally
to do so.
I don't follow you here. If the R Foundation chose not to enforce a
provision of the license in the way that the FSF thinks it ought to be
enforced, what exactly could the FSF do about it? As far as I can
tell, the GPL does not make the FSF a party in licenses executed under
the GPL.
The key issue is the lack of case law relative to the GPL and that
leaves
room for interpretation. One MUST therefore give significant weight
to the
interpretations of the FSF as it will likely be the FSF that will be
involved in any legal disputes over the GPL and its application.
You would
want them on your side, not be fighting them.
You are discussing the courts' interpretation of the GPL, which is not
what I'm questioning here.
Let me give an analogy. Suppose I buy a piece of property using a
standard form contract written by (and copyright by) my local real
estate agents' association (a common practice). I then discover that
the seller had done something which according to the real estate
agents' association's interpretation of the contract entitled me to
$10000 damages, but that seems unreasonable to me. The particular
clause has never been litigated. You seem to be claiming that (a) the
real estate agents' association's interpretation of the contract has
more weight than my interpretation of it and (b) that they can somehow
oblige me to sue for the $10000 damages. Now let's say someone else
goes to court and (with the legal support of the real estate agents'
association) prevails on that clause. Now it is clear that the real
estate agents' association's interpretation can be enforced. But I
still don't think it's reasonable to enforce it, and still don't
choose to sue. You are claiming that they somehow can force me to?
Of course, it would be different if a real estate agent were also
party to the contract, and would be owed 20% of the $10000. But that
is not the case.
Unfortunately, we have no such archive of case law yet of the GPL.
Thus at
least from a legally enforceable perspective, all is grey and the
FSF has to
be the presumptive leader here.
Whether the FSF's interpretation is legally enforceable or not, it is
the copyright holder who choses whether to sue, not the FSF.
We are getting into a lot of hypotheticals here which is going to be a
problem due to the lack of clear precedence. The other problem is that
we are considering hypotheticals in a vacuum and not in the context of
the current political environment vis-a-vis the GPL and FOSS.
Under any circumstances, it is up to the R Foundation to pursue or not
to pursue legal action against any party that it feels has violated
it's copyright and the associated licensing.
If it chooses to not pursue that recourse however, it may be setting a
precedent for future litigation, placing future actions and decisions
at risk. A court may decide that prior inaction in a certain situation
is evidence that is relevant to a future case. "You failed to enforce
your legal rights previously in a 'similar' situation, thus you lose
that right now." Not only that, but such inaction could then be used
to define the parameters around other legal decisions involving the
GPL and how it may be interpreted. That is always a risk that one has
to consider and should be the basis of ensuring that all such
considerations have a wide angle lens.
The FSF would not be in a position to compel the R Foundation to
pursue any legal action. However, the political reality at this early
stage of the game is that the FSF may very well have a legal interest
in a particular situation if it feels that any legal action or lack of
legal action by the R Foundation were to be inconsistent with the
FSF's own strategic positions and goals. That would require a
discussion between the R Foundation and the FSF and they would have to
reconcile those differences. Whether the FSF might make the decision
to provide legal and financial resources to the R Foundation to assist
in such a venture or even pursue independent legal action would be up
to them.
My point in raising the issues above, is principally that if the R
Foundation were to, as you and Ian seem to be asking for, come out
with some type of non-binding guidance document relative to R and the
GPL, the technical and legal basis of any such guidance would need to
be consistent with the interpretations offered by the FSF. The
guidance could not materially deviate from the information available
from the FSF or the R Foundation would only serve to confuse the
situation further or worse, put itself at legal risk. In addition, in
the presence or absence of offering specific legal guidance, it is
still up to the third party to seek definitive legal guidance before
proceeding.
There are specific FSF FAQs that cover particular situations and there
are others that clearly leave the door open to future legal
precedents. The FAQ on the "Aggregation" of both GPL and Proprietary
software is one example providing both:
http://www.gnu.org/licenses/gpl-faq.html#MereAggregation
How does one decide if the programs are separate and therefore can be
bundled under differing licenses, or they are not and the viral part
of the GPL kicks in? The FAQ covers some reasonable aspects of that
but clearly leaves the door open for future litigation. It is a FAQ
however that is highly relevant to the topic that started this whole
discussion, which is the bundling of closed source proprietary
software along with R.
Is the R Foundation in a position to offer something quite different
or more definitive than that? I would highly doubt it.
This is why I think the greater and appropriate burden is on the third
party that wishes to construct AND DISTRIBUTE any application that is
in some fashion dependent upon R to function. It is up to them to seek
appropriate legal guidance on the basis of their specific
circumstances. It is the third party whose actions may result in a
successful venture (financially or otherwise) or leave itself open in
a future legal battle.
I do not speak for or on behalf of the R Foundation, but can only
offer what I feel to be reasonable points for discussion. I have been
involved in several startup companies over the past 20+ years
including my own, also involving joint ventures and intellectual
property discussions. The result of which is spending a lot of time
with lawyers in the drafting of contracts and similar legal documents.
I am not a lawyer, do not play one on TV and I did not sleep at a
Holiday Inn Express last night. However, their manner of thinking has
rubbed off on me (for better or worse). The result of which is a
certain level of caution in these matters and to consider in the
broadest terms, not the narrowest, one's actions and decisions. You
start with a broad perspective and then narrow that perspective to
your specific circumstances as the law and legal precedent provide for
those parameters. In the absence of such, your legal counsel engage in
their best efforts to interpret the available data. In these
situations, there is a clear risk/benefit process in place and any
third party that moves forward with such activities must recognize
that in the absence of clear decisions, they are taking a risk and as
a consequence, may face future litigation over their decisions and
actions.
In any business venture, it is not the marriage that is the typical
source of the problems, but the failure to anticipate and plan for the
divorce.
Regards,
Marc Schwartz
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