Re: [License-discuss] linking exception in OpenJDK

[Thufir]

Whoops, I listened again, and Bradley does later mention that Google
could use the classpath exception, at the very end.
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Re: [License-discuss] linking exception in OpenJDK

[Patrice-Emmanuel Schmitz]

As we periodically return to this famous discussion on "Linking requesting
a specific license exception or a permission from the author", I just
remind once again that - at least according to EU legislation, the "linking
exception" is - under specific conditions -  a rule that is not depending
on any license (even the GPL).
Directive 2009/24 EC - section (15) states: "the necessary information to
achieve the interoperability of an independently created program with other
programs can be reproduced by or on behalf of a person having a right to
use a copy of the program. This is legitimate and compatible with fair
practice and must therefore be deemed not to require the authorisation of
the rightholder. The objective of this exception is to make it possible to
connect all components of a computer system, including those of different
manufacturers, so that they can work together. Such an exception to the
author's exclusive rights may not be used in a way which prejudices the
legitimate interests of the rightholder or which conflicts with a normal
exploitation of the program."

For more detail on this, see "Why viral licensing is a ghost" - published
on Joinup -
https://joinup.ec.europa.eu/community/eupl/news/why-viral-licensing-ghost

Kind regards,
P-E

2015-11-15 20:59 GMT+01:00 Thufir :

> Bradley said that all android applications would now have to be GPL were
> Google to put Android under the GPL in the last few minutes of this podcast:
>
> 0x44: Oracle v. Google Federal Appeals Court Decision
> 05/13/2014 07:33 AM
> http://faif.us/feeds/cast-mp3/
>
>
> When I read the wikipedia articles about OpenJDK and IcedTea, they don't
> mention this notion.
>
> A GPL linking exception modifies the GNU General Public License (GPL) in a
> way that enables software projects which provide library code to be "linked
> to" the programs that use them, without applying the full terms of the GPL
> to the using program. Linking is the technical process of connecting code
> in a library to the using code, to produce a single executable file. It is
> performed either at compile time or run-time in order to produce functional
> machine-readable code. There is a public perception, unsupported by any
> legal precedent or citation, that without applying the linking exception,
> code linked with GPL code may only be done[clarification needed] using a
> GPL-compatible license.[1] The license of the GNU Classpath project
> explicitly includes a statement to that effect.
>
> -Wikipedia
>
> Wikipedia says that On 13 November 2006, the HotSpot JVM and the JDK were
> licensed[12] under the GPL version 2. This is the code that became part of
> Java 7 (codename Dolphin[13]).  I believe that IcedTea ultimately uses the
> HotSpot JVM, which comes from OpenJDK. In any event, they all have this
> linking exception in their license.
>
>
>
>
> Two questions:
>
> 1.)  There seems no technical problem in running proprietary binaries on
> IcedTea and HotSpot in Ubuntu, which is what I use.  Is there a legal
> prohibition or problem in doing so?  I think not, because of the linking
> exception.
>
> 2.)  Were, or had, Google forked OpenJDK and IcedTea, and kept the GPL,
> would Bradley be correct in stating that all Android apps would then have
> to be licensed under the GPL?  I think not, there's a linking exception in
> the license...
>
>
>
> thanks,
>
> Thufir
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Re: [License-discuss] linking exception in OpenJDK

[Joshua Gay]

P-E,

Thank you for sharing this legal information. I have a bunch of
questions and would appreciate help in understanding this further.

Is section 15 part of the actual directive, or is it simply part of the
rationale that helps explain the intent behind the 12 articles that
follow? If the articles are the actual directive, might those be more
narrowly interpreted and more narrowly applicable than the general
rationale cited? And also, its hard for me to see which articles relate
to section 15 as it would apply to linking to a library. If I understand
this correctly, an EU directive was an agreement amongst member states
to uphold or create local laws. Do all EU member states have laws for
this particular directive, and if so, does the same rationale described
in paragraph 15 apply to all of those laws in each of the respective
member states?

Sorry I know that is a lot of questions, but, I am genuinely trying to
make sense of how this EU directive works and how it applies to the
licenses my org publishes and provides educational materials on.

Any and all help is appreciate.

Thanks,

Josh
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Licensing & Compliance Manager  
Free Software Foundation
GPG key ID: 8DA625BBWhat's a GPG key ID?
See our Email Self-Defense Guide:

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Re: [License-discuss] linking exception in OpenJDK

[Patrice-Emmanuel Schmitz]

Josh,


A lot of difficult questions indeed.


The Directive is translated in 23 EU languages (
http://eur-lex.europa.eu/legal-content/FR/TXT/?uri=celex:32009L0024 ) and
implemented in the various national laws. The first version (91/250/EEC)
had to be implemented on 31/12/1992 latest.  I am afraid that it could take
a lot of time to trace all implementations in the various Member States,
therefore I just assume that they have done it.

In general, implementation is the reproduction of the articles of the
Directive (in each relevant national language) into some articles of the
national “Code for intellectual property”. For example in Belgium, you will
find a reproduction of the French and Dutch version under Article XI.300 of
the Code (last published version in the Belgian Official Journal
12.06.2014).


Recital (15) of the Directive is part of it as “rationale”, not as
“article”. Therefore this part is normally not implemented as such in
national legislation. However in case of hypothetic litigation, chances are
high that the Court of Justice of the European Union will be requested to
clarify (by preliminary rulings), and in such case the rationale (15) will
be visited by the Court.


Case law related to the Directive and its implementation is extremely rare:
it was said that Case 406/10 SAS vs WPL of May 2, 2012 (involving two
proprietary software vendors) was a premiere, more than 20 years after the
publication of the Directive). Based on the rationale (15) and on this
case, it is a “reasonable opinion” as European lawyer that in case of
litigation on linking, the Court – if requested by the national judge to
provide some preliminary rulings, and after hearing the opinion of Advocate
General - would declare that linking done through a “reproduction of the
program code that is indispensable to achieve interoperability” is
authorised as an exception to general copyright rules.


Although representing the Commission as guardian of the Treaties in
preliminary ruling cases (the Legal Service routinely intervenes as amicus
curiae / friend of the court – similar to an expert witness giving a Court
the benefit of his advice), it is uncertain that the Commission itself
could ask for such preliminary rulings. This specific case is not foreseen
by the Treaties. Commission may act as plaintiff or defendant. Therefore we
have to wait for some hypothetical national litigation or some action
against the Commission as software licensor.


One could not exclude either that in case of linking between a GPL-covered
program and a proprietary program, the Court may consider that distributing
the linked work under a proprietary license would* “**prejudices the
legitimate interests of the rightholder**” *because the protection of free
software is a fundamental interest for the free software movement. But the
same prejudice would not exist when linking two F/OSS programs (i.e. in
case their F/OSS licenses have incompatible copyleft provisions)*.*


*Best regards,*

*P-E*

2015-12-01 23:12 GMT+01:00 Joshua Gay :

> P-E,
>
> Thank you for sharing this legal information. I have a bunch of
> questions and would appreciate help in understanding this further.
>
> Is section 15 part of the actual directive, or is it simply part of the
> rationale that helps explain the intent behind the 12 articles that
> follow? If the articles are the actual directive, might those be more
> narrowly interpreted and more narrowly applicable than the general
> rationale cited? And also, its hard for me to see which articles relate
> to section 15 as it would apply to linking to a library. If I understand
> this correctly, an EU directive was an agreement amongst member states
> to uphold or create local laws. Do all EU member states have laws for
> this particular directive, and if so, does the same rationale described
> in paragraph 15 apply to all of those laws in each of the respective
> member states?
>
> Sorry I know that is a lot of questions, but, I am genuinely trying to
> make sense of how this EU directive works and how it applies to the
> licenses my org publishes and provides educational materials on.
>
> Any and all help is appreciate.
>
> Thanks,
>
> Josh
> --
> Joshua Gay
> Licensing & Compliance Manager  
> Free Software Foundation
> GPG key ID: 8DA625BBWhat's a GPG key ID?
> See our Email Self-Defense Guide:
> 
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-- 
Patrice-Emmanuel Schmitz
pe.schm...@googlemail.com
tel. + 32 478 50 40 65
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