[nzlug] Re: M$ is targeting YOU

[Simon Bridge]

On Thu, 2007-03-29 at 21:38 +1200, Jasper Bryant-Greene wrote:
> On Thu, 2007-03-29 at 21:34 +1200, Simon Bridge wrote:
> > So it is entirely possible that a free licence such as the GPL could
> > well exist without the foundation of copywrite law.
> 
> It would be somewhat different. The GPL only works because the copyright
> holder has a right to enforce a license on the use of their work.
> Without some form of copyright, there is no such legal right and
> therefore the GPL can't be enforced.
> 
Actually - not *only* due to the force of law. 
The desire to comply is not just due to the threat of enforcement.

It would actually be quite difficult to detect/demonstrate a GPL
non-compliance as the offending code would be secret. (In fact, proving
the non-compliance may involve acts which are forbidden in some licence
- like decompiling a binary - and thus illegal.) Keeping code secret is
accepted practise, so is not in itself suspicious. Further, the penalty
for non-compliance is usually restricted to a requirement that the
offending code be removed... so a party may well weigh the risk of
exposure against the possible material gains in using the code
proprietorially and decide against compliance.

I have also noticed, however, that GPL has been strong in court whenever
it has been tested. Actual court transcripts are interesting in that it
appears that the judges *like* the GPL. They seem impressed by the
sincerity of the plaintif and the modesty of the damages being claimed.
They seem, emotionally, to *want* to be able to rule in favour of the
GPL. This is very powerful.

(I know, lots of lawyers try to tell me that judges have to follow the
law as well, regardless of their personal leanings. But I assert, there
is plenty of room in law for personal feelings to affect judgements...
otherwise there would be no dispute. And would you *really* want judges
to be so inhuman?)

GPL and EULA (often compared) are both well written as legal documents.
However, the GPL is better written in terms of the moral underpinnings
we claim for our society and our laws. It is scrupulously fair and
honest. It is written in plain language. The intended consequences are
spelled out in the document, in context, in plain language. There is not
the slightest hint of anything being hidden or intended to be hidden
(one reason proprietary-minded folk have trouble with it: they are so
used to there being a hidden agenda in a contract that they assume the
agenda in the GPL is merely "well hidden" when it is spelled out in the
preamble.)

It is also possible to have binding agreements in law, without invoking
copyright law. There are also forms of enforcement which are legal, yet
do not require intervention by an official judicial agency. However, I
think we are drifting from GPL/Linux and straying into the field of
legal/social philosophy.

I agree that the GPL would be different without copyright law. It would
exclude all the references to copyright law for a start :) However, it
is always possible to write a contract which will bind the parties even
in the absence of the force of law in that binding. You don't need the
threat of legal action to keep you word do you? Or do you? <hard look>