from:"visionsofalice"

ide 
counsel to analyze the fact pattern. (And even then all they could come 
up with was statements using weasel words "may" etc: not even wanting to 
commit to their clearly-disingenuous publication)



(Note: If you would like to read a nice discussion on the topic, here is 
one http://illinoisjltp.com/journal/wp-content/uploads/2013/10/kumar.pdf 
)


On 2018-10-25 08:19, Greg Kroah-Hartman wrote:
On Thu, Oct 25, 2018 at 07:56:26AM +, visionsofal...@redchan.it 
wrote:

The linux devs can rescind their license grant.


No they can not, please do not keep spreading false information.

greg k-h




On 2018-10-29 22:31, Bradley M. Kuhn wrote:
On Thu, Oct 25, 2018 at 07:56:26AM +, visionsofal...@redchan.it 
wrote:

The linux devs can rescind their license grant.

Greg KH responded on Thu, 25 Oct 2018 09:19:11 +0100:

No they can not, please do not keep spreading false information.


I was explicitly cc'ed on this thread by visionsofalice.  I've read the
whole thread, and the only useful thing I can contribute here is to 
agree

with Greg and additionally provide some backup research on the point:
https://sfconservancy.org/news/2018/sep/26/GPLv2-irrevocability/

Software Freedom Conservancy engaged our legal counsel to write a new
section for the Copyleft Guide that further explains the irrevocability 
of
GPLv2.  We published this when others raised these specious claims back 
in

September.  Direct link to new section:
https://copyleft.org/guide/comprehensive-gpl-guidech8.html#x11-540007.4


HTH,

The CoC regime is a License violation - Additional restrictive terms


Version 2 of the GPL forbids the incorporation of additional
restrictive terms, relating to the distribution, modification, etc of
the article licensed under the terms.

Those that violate this section are declared, by operation of the
terms, to have their grant automatically revoked.

An additional term need-not be present in the same writing. Such terms
simply need to be present to or made known to the taker(sub-licensee) by
the distributor. They may be proffered in writing, orally, or
implied in the course of doing business dealings. They simply must
relate back or involve the article in question (the licensed code or
product.)

The proffering of additional restrictive terms is a violation of the
text of the license grant in and of itself.

Here we have a situation where an additional writing has been
proffered. The additional writing promises both in it's own text and
by implication consequences against those who violate the terms of
this additional writing.

The additional writing restricts those subject to it from expressing
certain views publicly - promising retribution against those who do.

No consideration is paid to those subject to the additional writing
for their assent; it is simply imposed unilaterally against the
subjects.

The violators of the additional writing are promised:
Additional, unwanted, public scrutiny (to which they were not subject
to prior)
Public ridicule.
Loss of public standing.
as-well as an implied loss of future income.

These are the enforcement mechanisms of the additional writing to
enforce its restrictions against those who publish derivative works of
the kernel.

The additional writing is activated when (with the prerequisite of
being a derivative work of the linux kernel) the work of a rights-holder
is incorporated into the kernel, when such a work is made known to the
kernel-team to exist where any one person on this earth has seen fit
to present it for inclusion, or by simple prior-inclusion into the
kernel.

Thus all current and past rights-holders who have code in, or have
published for distribution, derivative works of the kernel are subject
to the retributive promises made to them in the additional writing,
drafted to restrict their actions and utterances.

This is tantamount to an additional restrictive term regarding the
modification and distribution of works under the linux kernel license
grant.

It is a violation of the license terms of the rights-holders past
incorporated works in much the same way that GRSecurity's
Contributor Access Agreement was and is.

2 months and no response from Eben Moglen - Yes you can rescind your grant.


It has been 2 months. Eben Moglen has published no research.

Because there is nothing more to say: The GPLv2, as used by linux, is a 
bare license. It can be rescinded at the will of the grantor.


The regime that the FSF used, vis-a-vis the GPLv2, is essential: 
copyright transfers to a central repository entity that is sure not to 
rescind.


Linus chose not to adopt this regime.
He benefited by greatly increased developer contribution.
The price for that windfall was and is the retention of their 
traditional property rights by the property holders.


They can rescind at will.
They made no promise nor utterance to the contrary that can be relied 
upon.

They were paid no consideration.
There was no meeting of the minds.

Additionally the CoC regime itself is a license terms violation, being 
an additional restrictive term, as explained in the other analysis. 
(Similar to the GRSecurity license violation)


On 2018-10-26 18:31, Eben Moglen wrote:

On Friday, 26 October 2018, visionsofal...@redchan.it wrote:

  You are conflating case law dealing with commercial software and
  non-gratuitous licenses with the present situation, which would 
likely

  be a case of first-impression in nearly any jurisdiction.

I think the best procedure would be for me to publish my analysis and
for you then to tell me what is wrong with it.  What you say here
sounds like what a lawyer might say, but isn't.  I have been teaching
this stuff for about thirty years, so if I am conflating or confusing
anything I will be grateful for help in seeing my mistake.

  The rule for gratuitous licenses is that they are revocable at the 
will

  of the grantor.

That's not actually "the rule."  It sounds like it might be the rule,
but it so happens that it's not.  When I have given the explanation as
I have learned, taught and depended on it, you will be able to show me
what I am wrong about.

  Raymond Nimmer (God rest his soul) was in agreement on this point,
  vis-a-vis the GPL and similar licenses.

You have your Nimmers confused.  The primary author of the treatise
Nimmer on Copyright (a book about the law, not in itself an authority)
was Melville Nimmer.  The treatise is continued by his son, David, a
fine lawyer with whom I do from time to time politely disagree about
something.  Ray Nimmer is quite another person.

Eben

Reason for RedHat purchase 30 pct over market cap (and some thoughts on Bradly Kuhn's recent public denouncement of RMS)

Redhat has achieved "governance" over the Linux(TM), via systemd and the 
Code of Conduct.


You, contributors, are now treated as employees.

They are confident that you will not assert your property rights, since 
you attack those who do (See: Netfiter saga), and take it as an honour 
to sign documents pledging that you will not assert your property rights 
(prepared for you by your now-masters).


They know that you are psychologically bound to behave as hirelings - 
servants, and not as property owners.


Thus they can rest easy knowing the ground is, though made of sand, not 
in seeming danger of a tempest.


Because of you.
Because of your history of supplication.
Your enuich-like nature.

A nice example is Bradly Kuhn's recent blog posts 1) Excoriating RMS and 
2) showing how he himself is submissive to a woman he hired.


He's even angry that others still treat him with respect rather than 
transferring all the good will to the female figurehead everyone is 
supposed to now respect (for what reason? No, being an actual programmer 
is not required: sufficent is being a member of the "better" species 
that rules over the males under the anglo-american system that Bradly 
Kuhn and his kind uphold )


If I were them I would never donate another cent to the SFConservancy, 
and I would seek a claw-back of the funds that I did donate for improper 
use (yes this is possible under both California and New York law). 
Especially since they seem to have no in-house lawyers what-so-ever (so 
what is their purpose?).


We are supposed to be proud that his mind is as innocent as his visage 
(perhaps why he had to hire outside counsel to give him an incorrect and 
abundantly couched opinion)



[1] 
http://ebb.org/bkuhn/blog/2018/11/22/gnu-kind-communication-guidelines.html

[2] http://ebb.org/bkuhn/blog/2018/06/21/everyday-sexism.html

2 months and no response from Eben Moglen - Yes you can rescind your grant.

2018-12-22 Thread visionsofalice


It has been 2 months. Eben Moglen has published no research.

Because there is nothing more to say: The GPLv2, as used by linux, is a 
bare license. It can be rescinded at the will of the grantor.


The regime that the FSF used, vis-a-vis the GPLv2, is essential: 
copyright transfers to a central repository entity that is sure not to 
rescind.


Linus chose not to adopt this regime.
He benefited by greatly increased developer contribution.
The price for that windfall was and is the retention of their 
traditional property rights by the property holders.


They can rescind at will.
They made no promise nor utterance to the contrary that can be relied 
upon.

They were paid no consideration.
There was no meeting of the minds.

Additionally the CoC regime itself is a license terms violation, being 
an additional restrictive term, as explained in the other analysis. 
(Similar to the GRSecurity license violation)


On 2018-10-26 18:31, Eben Moglen wrote:

On Friday, 26 October 2018, visionsofal...@redchan.it wrote:

  You are conflating case law dealing with commercial software and
  non-gratuitous licenses with the present situation, which would 
likely

  be a case of first-impression in nearly any jurisdiction.

I think the best procedure would be for me to publish my analysis and
for you then to tell me what is wrong with it.  What you say here
sounds like what a lawyer might say, but isn't.  I have been teaching
this stuff for about thirty years, so if I am conflating or confusing
anything I will be grateful for help in seeing my mistake.

  The rule for gratuitous licenses is that they are revocable at the 
will

  of the grantor.

That's not actually "the rule."  It sounds like it might be the rule,
but it so happens that it's not.  When I have given the explanation as
I have learned, taught and depended on it, you will be able to show me
what I am wrong about.

  Raymond Nimmer (God rest his soul) was in agreement on this point,
  vis-a-vis the GPL and similar licenses.

You have your Nimmers confused.  The primary author of the treatise
Nimmer on Copyright (a book about the law, not in itself an authority)
was Melville Nimmer.  The treatise is continued by his son, David, a
fine lawyer with whom I do from time to time politely disagree about
something.  Ray Nimmer is quite another person.

Eben

Yes: The linux devs can rescind their license grant.

2018-12-22 Thread visionsofalice

ide 
counsel to analyze the fact pattern. (And even then all they could come 
up with was statements using weasel words "may" etc: not even wanting to 
commit to their clearly-disingenuous publication)



(Note: If you would like to read a nice discussion on the topic, here is 
one http://illinoisjltp.com/journal/wp-content/uploads/2013/10/kumar.pdf 
)


On 2018-10-25 08:19, Greg Kroah-Hartman wrote:
On Thu, Oct 25, 2018 at 07:56:26AM +, visionsofal...@redchan.it 
wrote:

The linux devs can rescind their license grant.


No they can not, please do not keep spreading false information.

greg k-h




On 2018-10-29 22:31, Bradley M. Kuhn wrote:
On Thu, Oct 25, 2018 at 07:56:26AM +, visionsofal...@redchan.it 
wrote:

The linux devs can rescind their license grant.

Greg KH responded on Thu, 25 Oct 2018 09:19:11 +0100:

No they can not, please do not keep spreading false information.


I was explicitly cc'ed on this thread by visionsofalice.  I've read the
whole thread, and the only useful thing I can contribute here is to 
agree

with Greg and additionally provide some backup research on the point:
https://sfconservancy.org/news/2018/sep/26/GPLv2-irrevocability/

Software Freedom Conservancy engaged our legal counsel to write a new
section for the Copyleft Guide that further explains the irrevocability 
of
GPLv2.  We published this when others raised these specious claims back 
in

September.  Direct link to new section:
https://copyleft.org/guide/comprehensive-gpl-guidech8.html#x11-540007.4


HTH,

Reason for RedHat purchase 30 pct over market cap

2018-12-22 Thread visionsofalice

Redhat has achieved "governance" over the Linux(TM), via systemd and the 
Code of Conduct.


You, contributors, are now treated as employees.

They are confident that you will not assert your property rights, since 
you attack those who do (See: Netfiter saga), and take it as an honour 
to sign documents pledging that you will not assert your property rights 
(prepared for you by your now-masters).


They know that you are psychologically bound to behave as hirelings - 
servants, and not as property owners.


Thus they can rest easy knowing the ground is, though made of sand, not 
in seeming danger of a tempest.


Because of you.
Because of your history of supplication.
Your enuich-like nature.

A nice example is Bradly Kuhn's recent blog posts 1) Excoriating RMS and 
2) showing how he himself is submissive to a woman he hired.


He's even angry that others still treat him with respect rather than 
transferring all the good will to the female figurehead everyone is 
supposed to now respect (for what reason? No, being an actual programmer 
is not required: sufficent is being a member of the "better" species 
that rules over the males under the anglo-american system that Bradly 
Kuhn and his kind uphold )


If I were them I would never donate another cent to the SFConservancy, 
and I would seek a claw-back of the funds that I did donate for improper 
use (yes this is possible under both California and New York law). 
Especially since they seem to have no in-house lawyers what-so-ever (so 
what is their purpose?).


We are supposed to be proud that his mind is as innocent as his visage 
(perhaps why he had to hire outside counsel to give him an incorrect and 
abundantly couched opinion)

The CoC regime is a License violation - Additional restrictive terms


Version 2 of the GPL forbids the incorporation of additional
restrictive terms, relating to the distribution, modification, etc of
the article licensed under the terms.

Those that violate this section are declared, by operation of the
terms, to have their grant automatically revoked.

An additional term need-not be present in the same writing. Such terms
simply need to be present to or made known to the taker(sub-licensee) by
the distributor. They may be proffered in writing, orally, or
implied in the course of doing business dealings. They simply must
relate back or involve the article in question (the licensed code or
product.)

The proffering of additional restrictive terms is a violation of the
text of the license grant in and of itself.

Here we have a situation where an additional writing has been
proffered. The additional writing promises both in it's own text and
by implication consequences against those who violate the terms of
this additional writing.

The additional writing restricts those subject to it from expressing
certain views publicly - promising retribution against those who do.

No consideration is paid to those subject to the additional writing
for their assent; it is simply imposed unilaterally against the
subjects.

The violators of the additional writing are promised:
Additional, unwanted, public scrutiny (to which they were not subject
to prior)
Public ridicule.
Loss of public standing.
as-well as an implied loss of future income.

These are the enforcement mechanisms of the additional writing to
enforce its restrictions against those who publish derivative works of
the kernel.

The additional writing is activated when (with the prerequisite of
being a derivative work of the linux kernel) the work of a rights-holder
is incorporated into the kernel, when such a work is made known to the
kernel-team to exist where any one person on this earth has seen fit
to present it for inclusion, or by simple prior-inclusion into the
kernel.

Thus all current and past rights-holders who have code in, or have
published for distribution, derivative works of the kernel are subject
to the retributive promises made to them in the additional writing,
drafted to restrict their actions and utterances.

This is tantamount to an additional restrictive term regarding the
modification and distribution of works under the linux kernel license
grant.

It is a violation of the license terms of the rights-holders past
incorporated works in much the same way that GRSecurity's
Contributor Access Agreement was and is.

Bruce Perens, inconsistent statements regarding Copyright, GPL, Open Source Security.

In a prior public statement, Bruce Perens put forth a legal theory where
users of a certain piece of Software would be liable for contributory
copyright infringement*[1]. This statement, specifically the
pronouncement of such damages reachable, is predicated on a pure
copyright License theory regarding the grant under-which the Linux
Kernel is distributed and modified.

*
(https://perens.com/2017/06/28/warning-grsecurity-potential-contributory-infringement-risk-for-customers/
)

As we all know, under a contract theory, damages are quite limited
regarding opensource licenses** (See the initial district court
determination of Jacobsen v. Katzer) and the legal theory published by
Bruce Perens, if analyzed under a contract theory regarding the GPL
would become a less-than-likely scenario.

** (For this very reason, the FSF specifically drafted version 2 of the
GPL to avoid language that would tend to induce a contract reading
rather than a bare license construction. The FSF has maintained for
decades that the GPL is a bare license and is not a contract)

It is just that utterance, added by Bruce Perens, regarding contributory
copyright infringement damages reachable vis a vis the GPL version 2,
that induced upwards of 70 of Open Source Security's clients to cease
their business dealings with Open Source Security.

Bruce Perens has recently made known, publicly, that he currently
believes in a Contract theory regarding the GPL version 2, specifically
regarding the Linux Kernel. He has stated that he, infact, in the past
has supplied expert testimony praying to the court for it to find that
the GPL is, in fact, a contract (and not a bare (copyright) license). He
has stated that the court has indeed relied on his testimony in various
pleadings. ***[3]

Here, (
https://developers.slashdot.org/comments.pl?sid=12767438=57489528 )
Bruce Perens argues that case law has overridden the esteemed Raymond
Nimmer's opinion that the GPL is not a contract and is, at best, a
failed contract, and likely a bare license akin to a property license.
Bruce Perens further clarifies that it was his very own testimony that
has convinced the court that the GPL is in-fact not a bare license and
is instead a contract.

If these pleadings were to have occurred prior to the theory published
regarding Open Source Security and its Contributor Access Agreement,
that would put the lie to any suggestion that Bruce Perens in fact
believed in the theory that he published at the time of publication and
would instead suggest that rather than proffering his opinion regarding
a matter - he was instead intentionally publishing a theory he believed
to be a lie in-order to harm Open Source Security - A goal that has
indeed been effected (specifically by the "Contributory Copyright
Infringement" addendum).

*[1]
---
https://perens.com/2017/06/28/warning-grsecurity-potential-contributory-infringement-risk-for-customers/
Posted on June 28, 2017 by Bruce
Warning: Grsecurity: Potential contributory infringement and breach of
contract risk for customers

***[3]
---
https://developers.slashdot.org/comments.pl?sid=12767438=57489528
---

Re:Who gives a FUCK about Nimmer? (Score:2)
by Bruce Perens ( 3872 ) on Tuesday October 16, 2018
@09:10PM (#57489528) Homepage Journal

If lawyers were never wrong, we'd have no need for courts. Which means
they're wrong half the time, or at least the adopt unsupportable
arguments half of the time.

Case law has overridden him on the GPL question, thanks in part to my
pro-bono testimony. But courts and lawyers still take him seriously. And
me, sometimes.

In response to:

Who gives a FUCK about Nimmer? (Score:0)
by Anonymous Coward on Tuesday October 16, 2018 @08:30PM (#57489396)

Who gives a FUCK about Nimmer?

He said the GPLv2 was "not a contract" - was "at best" "a failed
contract" - "has no consideration" - and thus it is a bare license
revocable by >the grantor.

Free Software has REJECTED this CLOWN Nimmer.
Thus he is wrong.

http://illinoisjltp.com/journal/wp-content/uploads/2013/10/kumar.pdf
http://oxwugzccvk3dk6tj.onion/tech/res/987076.html
...

Bruce Perens, inconsistent statements regarding Copyright, GPL, Open Source Security. (Edit: PDF attached)

*
(https://perens.com/2017/06/28/warning-grsecurity-potential-contributory-infringement-risk-for-customers/
)

***[3]
---
https://developers.slashdot.org/comments.pl?sid=12767438=57489528
---

Re:Who gives a FUCK about Nimmer? (Score:2)
by Bruce Perens ( 3872 ) on Tuesday October 16, 2018
@09:10PM (#57489528) Homepage Journal

If lawyers were never wrong, we'd have no need for courts. Which means
they're wrong half the time, or at least the adopt unsupportable
arguments half of the time.

Case law has overridden him on the GPL question, thanks in part to my
pro-bono testimony. But courts and lawyers still take him seriously. And
me, sometimes.

---

In response to:

Who gives a FUCK about Nimmer? (Score:0)
by Anonymous Coward on Tuesday October 16, 2018 @08:30PM (#57489396)

Who gives a FUCK about Nimmer?

He said the GPLv2 was "not a contract" - was "at best" "a failed
contract" - "has no consideration" - and thus it is a bare license
revocable by >the grantor.

Free Software has REJECTED this CLOWN Nimmer.
Thus he is wrong.

http://illinoisjltp.com/journal/wp-content/uploads/2013/10/kumar.pdf
http://oxwugzccvk3dk6tj.onion/tech/res/987076.html
...

perens-endorses-gpl-contract-theory-rejects-bare-license.pdf
Description: Adobe PDF document

Additional restrictive terms - The CoC regime is a License violation


Version 2 of the GPL forbids the incorporation of additional
restrictive terms, relating to the distribution, modification, etc of
the article licensed under the terms.

Those that violate this section are declared, by operation of the
terms, to have their grant automatically revoked.

An additional term need-not be present in the same writing. Such terms
simply need to be present to or made known to the taker(sub-licensee) by
the distributor. They may be proffered in writing, orally, or
implied in the course of doing business dealings. They simply must
relate back or involve the article in question (the licensed code or
product.)

The proffering of additional restrictive terms is a violation of the
text of the license grant in and of itself.

Here we have a situation where an additional writing has been
proffered. The additional writing promises both in it's own text and
by implication consequences against those who violate the terms of
this additional writing.

The additional writing restricts those subject to it from expressing
certain views publicly - promising retribution against those who do.

No consideration is paid to those subject to the additional writing
for their assent; it is simply imposed unilaterally against the
subjects.

The violators of the additional writing are promised:
Additional, unwanted, public scrutiny (to which they were not subject
to prior)
Public ridicule.
Loss of public standing.
as-well as an implied loss of future income.

These are the enforcement mechanisms of the additional writing to
enforce its restrictions against those who publish derivative works of
the kernel.

The additional writing is activated when (with the prerequisite of
being a derivative work of the linux kernel) the work of a rights-holder
is incorporated into the kernel, when such a work is made known to the
kernel-team to exist where any one person on this earth has seen fit
to present it for inclusion, or by simple prior-inclusion into the
kernel.

Thus all current and past rights-holders who have code in, or have
published for distribution, derivative works of the kernel are subject
to the retributive promises made to them in the additional writing,
drafted to restrict their actions and utterances.

This is tantamount to an additional restrictive term regarding the
modification and distribution of works under the linux kernel license
grant.

It is a violation of the license terms of the rights-holders past
incorporated works in much the same way that GRSecurity's
Contributor Access Agreement was and is.

The CoC regime is a License violation - Additional restrictive terms


Version 2 of the GPL forbids the incorporation of additional
restrictive terms, relating to the distribution, modification, etc of
the article licensed under the terms.

Those that violate this section are declared, by operation of the
terms, to have their grant automatically revoked.

An additional term need-not be present in the same writing. Such terms
simply need to be present to or made known to the taker(sub-licensee) by
the distributor. They may be proffered in writing, orally, or
implied in the course of doing business dealings. They simply must
relate back or involve the article in question (the licensed code or
product.)

The proffering of additional restrictive terms is a violation of the
text of the license grant in and of itself.

Here we have a situation where an additional writing has been
proffered. The additional writing promises both in it's own text and
by implication consequences against those who violate the terms of
this additional writing.

The additional writing restricts those subject to it from expressing
certain views publicly - promising retribution against those who do.

No consideration is paid to those subject to the additional writing
for their assent; it is simply imposed unilaterally against the
subjects.

The violators of the additional writing are promised:
Additional, unwanted, public scrutiny (to which they were not subject
to prior)
Public ridicule.
Loss of public standing.
as-well as an implied loss of future income.

These are the enforcement mechanisms of the additional writing to
enforce its restrictions against those who publish derivative works of
the kernel.

The additional writing is activated when (with the prerequisite of
being a derivative work of the linux kernel) the work of a rights-holder
is incorporated into the kernel, when such a work is made known to the
kernel-team to exist where any one person on this earth has seen fit
to present it for inclusion, or by simple prior-inclusion into the
kernel.

Thus all current and past rights-holders who have code in, or have
published for distribution, derivative works of the kernel are subject
to the retributive promises made to them in the additional writing,
drafted to restrict their actions and utterances.

This is tantamount to an additional restrictive term regarding the
modification and distribution of works under the linux kernel license
grant.

It is a violation of the license terms of the rights-holders past
incorporated works in much the same way that GRSecurity's
Contributor Access Agreement was and is.

Re: The linux devs can rescind their license grant.

ide 
counsel to analyze the fact pattern. (And even then all they could come 
up with was statements using weasel words "may" etc: not even wanting to 
commit to their clearly-disingenuous publication)



(Note: If you would like to read a nice discussion on the topic, here is 
one http://illinoisjltp.com/journal/wp-content/uploads/2013/10/kumar.pdf 
)


On 2018-10-25 08:19, Greg Kroah-Hartman wrote:
On Thu, Oct 25, 2018 at 07:56:26AM +, visionsofal...@redchan.it 
wrote:

The linux devs can rescind their license grant.


No they can not, please do not keep spreading false information.

greg k-h




On 2018-10-29 22:31, Bradley M. Kuhn wrote:
On Thu, Oct 25, 2018 at 07:56:26AM +, visionsofal...@redchan.it 
wrote:

The linux devs can rescind their license grant.

Greg KH responded on Thu, 25 Oct 2018 09:19:11 +0100:

No they can not, please do not keep spreading false information.


I was explicitly cc'ed on this thread by visionsofalice.  I've read the
whole thread, and the only useful thing I can contribute here is to 
agree

with Greg and additionally provide some backup research on the point:
https://sfconservancy.org/news/2018/sep/26/GPLv2-irrevocability/

Software Freedom Conservancy engaged our legal counsel to write a new
section for the Copyleft Guide that further explains the irrevocability 
of
GPLv2.  We published this when others raised these specious claims back 
in

September.  Direct link to new section:
https://copyleft.org/guide/comprehensive-gpl-guidech8.html#x11-540007.4


HTH,

Re: The linux devs can rescind their license grant. - Analysis published?


Has the analysis been published yet?

I have been away on an artistic sabbatical, but I don't see it in the 
inbox using searches, this was the last mail I received on the subject.


On 2018-10-26 18:31, Eben Moglen wrote:

On Friday, 26 October 2018, visionsofal...@redchan.it wrote:

  You are conflating case law dealing with commercial software and
  non-gratuitous licenses with the present situation, which would 
likely

  be a case of first-impression in nearly any jurisdiction.

I think the best procedure would be for me to publish my analysis and
for you then to tell me what is wrong with it.  What you say here
sounds like what a lawyer might say, but isn't.  I have been teaching
this stuff for about thirty years, so if I am conflating or confusing
anything I will be grateful for help in seeing my mistake.

  The rule for gratuitous licenses is that they are revocable at the 
will

  of the grantor.

That's not actually "the rule."  It sounds like it might be the rule,
but it so happens that it's not.  When I have given the explanation as
I have learned, taught and depended on it, you will be able to show me
what I am wrong about.

  Raymond Nimmer (God rest his soul) was in agreement on this point,
  vis-a-vis the GPL and similar licenses.

You have your Nimmers confused.  The primary author of the treatise
Nimmer on Copyright (a book about the law, not in itself an authority)
was Melville Nimmer.  The treatise is continued by his son, David, a
fine lawyer with whom I do from time to time politely disagree about
something.  Ray Nimmer is quite another person.

Eben

Re: The linux devs can rescind their license grant.

Lawrence Rosen is also in agreement on this point (regarding the GPL v2 
specifically).

It is revocable at the will of the grantor, at any time.
(He writes that if a licensee-contributor was to sue a grantor, then 
would be a good time to unilaterally rescind: disposing of the matter 
entirely)


The contention that a copyright license is only terminable is 
traditionally usually true in practice; but not because such is declared 
by the Copyright Statute (such is not). It is because, in practice, 
those terms are supported by consideration. Thus the licensee has payed 
the grantor for those very terms to be in effect.


In the case of most users and most developers of the linux-kernel this 
is not the case.


In-fact The very principal that, in the real world, precipitated the 
widespread adoption of linux:

that no consideration is paid for receipt of the program.

The GPL v2 is not supported by consideration.
This is its strength.
And it is not something that can be disclaimed after the fact.

The drafter of version 2 of the GPL did, indeed, make an error in 
drafting. He was, perhaps, familiar mostly with commercial copyright 
licenses.
The foundation of the GPL does not rest on any contemplation of 
quid-pro-quo or contract theories however;
it is on the simple declaration in the Copyright Statute that copyright 
is alienable in all ways property is.
The GPL v2 is similar to a property license, and not a traditional 
commercial copyright license.


On 2018-10-26 18:31, Eben Moglen wrote:

On Friday, 26 October 2018, visionsofal...@redchan.it wrote:

  You are conflating case law dealing with commercial software and
  non-gratuitous licenses with the present situation, which would 
likely

  be a case of first-impression in nearly any jurisdiction.

I think the best procedure would be for me to publish my analysis and
for you then to tell me what is wrong with it.  What you say here
sounds like what a lawyer might say, but isn't.  I have been teaching
this stuff for about thirty years, so if I am conflating or confusing
anything I will be grateful for help in seeing my mistake.

  The rule for gratuitous licenses is that they are revocable at the 
will

  of the grantor.

That's not actually "the rule."  It sounds like it might be the rule,
but it so happens that it's not.  When I have given the explanation as
I have learned, taught and depended on it, you will be able to show me
what I am wrong about.

  Raymond Nimmer (God rest his soul) was in agreement on this point,
  vis-a-vis the GPL and similar licenses.

You have your Nimmers confused.  The primary author of the treatise
Nimmer on Copyright (a book about the law, not in itself an authority)
was Melville Nimmer.  The treatise is continued by his son, David, a
fine lawyer with whom I do from time to time politely disagree about
something.  Ray Nimmer is quite another person.

Eben

Re: The linux devs can rescind their license grant.

Lawrence Rosen is also in agreement on this point (regarding the GPL v2 
specifically).

It is revocable at the will of the grantor, at any time.
(He writes that if a licensee-contributor was to sue a grantor, then 
would be a good time to unilaterally rescind: disposing of the matter 
entirely)


The contention that a copyright license is only terminable is 
traditionally usually true in practice; but not because such is declared 
by the Copyright Statute (such is not). It is because, in practice, 
those terms are supported by consideration. Thus the licensee has payed 
the grantor for those very terms to be in effect.


In the case of most users and most developers of the linux-kernel this 
is not the case.


In-fact The very principal that, in the real world, precipitated the 
widespread adoption of linux:

that no consideration is paid for receipt of the program.

The GPL v2 is not supported by consideration.
This is its strength.
And it is not something that can be disclaimed after the fact.

The drafter of version 2 of the GPL did, indeed, make an error in 
drafting. He was, perhaps, familiar mostly with commercial copyright 
licenses.
The foundation of the GPL does not rest on any contemplation of 
quid-pro-quo or contract theories however;
it is on the simple declaration in the Copyright Statute that copyright 
is alienable in all ways property is.
The GPL v2 is similar to a property license, and not a traditional 
commercial copyright license.


On 2018-10-26 18:31, Eben Moglen wrote:

On Friday, 26 October 2018, visionsofal...@redchan.it wrote:

  You are conflating case law dealing with commercial software and
  non-gratuitous licenses with the present situation, which would 
likely

  be a case of first-impression in nearly any jurisdiction.

I think the best procedure would be for me to publish my analysis and
for you then to tell me what is wrong with it.  What you say here
sounds like what a lawyer might say, but isn't.  I have been teaching
this stuff for about thirty years, so if I am conflating or confusing
anything I will be grateful for help in seeing my mistake.

  The rule for gratuitous licenses is that they are revocable at the 
will

  of the grantor.

That's not actually "the rule."  It sounds like it might be the rule,
but it so happens that it's not.  When I have given the explanation as
I have learned, taught and depended on it, you will be able to show me
what I am wrong about.

  Raymond Nimmer (God rest his soul) was in agreement on this point,
  vis-a-vis the GPL and similar licenses.

You have your Nimmers confused.  The primary author of the treatise
Nimmer on Copyright (a book about the law, not in itself an authority)
was Melville Nimmer.  The treatise is continued by his son, David, a
fine lawyer with whom I do from time to time politely disagree about
something.  Ray Nimmer is quite another person.

Eben

Re: The linux devs can rescind their license grant.


Al: the FSF was so insistent on the adoption of the GPL version 3
because the GPL version 2 is not operative against the grantor.

This deficiency was, in their eyes, so fatal to the purposes that they
envisioned that they, as you have pointed out, elected to employ
enhanced means of converting projects to version 3.

Eben Moglen's contention that the GPL 3 exists to internationalize the
GPL is a lie of omission.

It is true that that is a partial reason-to-be for the GPL version 3
but it is not the main nor most important reason for the insistence on
version 3 or "v2 or any later version".

The very heart of the GPLv3 is the addition of the "irrevocable by
grantor" clause and the "term of years" clause.

Additionally the contention by the FSF and, as I recall, Eben Moglen
that the reason the FSF only accepts code where the copyright is
transferred to the FSF - is so they may have standing to sue - is
another lie by omission.

Yes, standing to sue is vital, if you are going to sue.
But the real beating heart of the copyright assignment policy is to
prevent a programmer from rescinding license-to-use regarding his
freely given code.

Without copyright assignment, any contributor to the GNU project could
elect to rescind the gratis license grant at his pleasure, at any
time, as of right.

Without an "irrevocable by grantor" clause (as seen in the GPL version
3, but omitted in GPL version 2 due to a mis-assumption on the part
of the drafter) there is not even an affirmative defense of promissory
estoppel.

We come to lie number three. (Neccecitated by:)
The incorrect assumption made by the
drafter of version 2 of the GPL and memorandized by Eben Moglen in
this very thread in an attempt to protect the error in drafting.
Lie number three: If terms regarding termination are proffered in a
copyright license they are the only means of termination.

This is true... If those terms are supported by bargained-for
consideration.
That is: the words Eben Moglen wrote were true; as regards to
commercial software, where the licensee has paid valuable
consideration for the terms offered.

The drafter of version 2 of the GPL was familiar with such commercial
licensing agreements. He failed in his due-diligence if RMS did
indeed request an irrevocable-by-grantor license. The drafter stopped
his research at the typical copyright license stage, and did not
research further into what underlays the construction there-of.

And thus we have the lie of omission number 3.

(All, naturally, to protect Eben Moglen's former client and to
discourage litigation where there is, indeed, good and sufficient
cause for such litigation) (Which is all part of an attorney's
duties, I can assure you)


On 2018-10-25 23:06, Al Viro wrote:

On Thu, Oct 25, 2018 at 05:41:23PM -0400, Eric S. Raymond wrote:


I do not have any facts with which to dispute this specific claim.
However, I do notice that a significant number of long-time
contributors have put themselves in the anti-CoC camp. I note Al Viro
as a recent example.


*snort*

For the record:
* CoC is a piss-poor match for the structure of community
* Linus had essentially tossed a live grenade into an outhouse on
his way to vacation, with quite predictable results - all kinds of
interesting coprophagous fauna dropping by to feed, including 
cartooneys

of the sort I hadn't seen since NANAE days.
* As idiotic gambits go, "try and revoke the license on my
contributions, so that they'll have to revoke CoC" is... impressive.
Sadly, my command of English has turned out to be woefully inadequate,
and I can't even blame that on not being a native speaker; I'm just as
incapable of producing a coherent (let alone printable) description of
that cunning plan in any language, Russian included.  I've tried.  
Really.

* in case it needs to be spelled out: I am not at all interested
in that kind of stunts.  One of the reasons I thoroughly despise RMS
and his bunch is the leverage game they tried to play with GPLv3;
damned if I'm going to lower myself to their level.

Re: The linux devs can rescind their license grant.


Al: the FSF was so insistent on the adoption of the GPL version 3
because the GPL version 2 is not operative against the grantor.

This deficiency was, in their eyes, so fatal to the purposes that they
envisioned that they, as you have pointed out, elected to employ
enhanced means of converting projects to version 3.

Eben Moglen's contention that the GPL 3 exists to internationalize the
GPL is a lie of omission.

It is true that that is a partial reason-to-be for the GPL version 3
but it is not the main nor most important reason for the insistence on
version 3 or "v2 or any later version".

The very heart of the GPLv3 is the addition of the "irrevocable by
grantor" clause and the "term of years" clause.

Additionally the contention by the FSF and, as I recall, Eben Moglen
that the reason the FSF only accepts code where the copyright is
transferred to the FSF - is so they may have standing to sue - is
another lie by omission.

Yes, standing to sue is vital, if you are going to sue.
But the real beating heart of the copyright assignment policy is to
prevent a programmer from rescinding license-to-use regarding his
freely given code.

Without copyright assignment, any contributor to the GNU project could
elect to rescind the gratis license grant at his pleasure, at any
time, as of right.

Without an "irrevocable by grantor" clause (as seen in the GPL version
3, but omitted in GPL version 2 due to a mis-assumption on the part
of the drafter) there is not even an affirmative defense of promissory
estoppel.

We come to lie number three. (Neccecitated by:)
The incorrect assumption made by the
drafter of version 2 of the GPL and memorandized by Eben Moglen in
this very thread in an attempt to protect the error in drafting.
Lie number three: If terms regarding termination are proffered in a
copyright license they are the only means of termination.

This is true... If those terms are supported by bargained-for
consideration.
That is: the words Eben Moglen wrote were true; as regards to
commercial software, where the licensee has paid valuable
consideration for the terms offered.

The drafter of version 2 of the GPL was familiar with such commercial
licensing agreements. He failed in his due-diligence if RMS did
indeed request an irrevocable-by-grantor license. The drafter stopped
his research at the typical copyright license stage, and did not
research further into what underlays the construction there-of.

And thus we have the lie of omission number 3.

(All, naturally, to protect Eben Moglen's former client and to
discourage litigation where there is, indeed, good and sufficient
cause for such litigation) (Which is all part of an attorney's
duties, I can assure you)


On 2018-10-25 23:06, Al Viro wrote:

On Thu, Oct 25, 2018 at 05:41:23PM -0400, Eric S. Raymond wrote:


I do not have any facts with which to dispute this specific claim.
However, I do notice that a significant number of long-time
contributors have put themselves in the anti-CoC camp. I note Al Viro
as a recent example.


*snort*

For the record:
* CoC is a piss-poor match for the structure of community
* Linus had essentially tossed a live grenade into an outhouse on
his way to vacation, with quite predictable results - all kinds of
interesting coprophagous fauna dropping by to feed, including 
cartooneys

of the sort I hadn't seen since NANAE days.
* As idiotic gambits go, "try and revoke the license on my
contributions, so that they'll have to revoke CoC" is... impressive.
Sadly, my command of English has turned out to be woefully inadequate,
and I can't even blame that on not being a native speaker; I'm just as
incapable of producing a coherent (let alone printable) description of
that cunning plan in any language, Russian included.  I've tried.  
Really.

* in case it needs to be spelled out: I am not at all interested
in that kind of stunts.  One of the reasons I thoroughly despise RMS
and his bunch is the leverage game they tried to play with GPLv3;
damned if I'm going to lower myself to their level.

Re: The linux devs can rescind their license grant. - Additional restrictive terms


Version 2 of the GPL forbids the incorporation of additional
restrictive terms, relating to the distribution, modification, etc of
the article licensed under the terms.

Those that violate this section are declared, by operation of the
terms, to have their grant automatically revoked.

An additional term need-not be present in the same writing. Such terms
simply need to be present to or made known to the taker(sub-licensee) by
the distributor. They may be proffered in writing, orally, or
implied in the course of doing business dealings. They simply must
relate back or involve the article in question (the licensed code or
product.)

The proffering of additional restrictive terms is a violation of the
text of the license grant in and of itself.

Here we have a situation where an additional writing has been
proffered. The additional writing promises both in it's own text and
by implication consequences against those who violate the terms of
this additional writing.

The additional writing restricts those subject to it from expressing
certain views publicly - promising retribution against those who do.

No consideration is paid to those subject to the additional writing
for their assent; it is simply imposed unilaterally against the
subjects.

The violators of the additional writing are promised:
Additional, unwanted, public scrutiny (to which they were not subject
to prior)
Public ridicule.
Loss of public standing.
as-well as an implied loss of future income.

These are the enforcement mechanisms of the additional writing to
enforce its restrictions against those who publish derivative works of
the kernel.

The additional writing is activated when (with the prerequisite of
being a derivative work of the linux kernel) the work of a rights-holder
is incorporated into the kernel, when such a work is made known to the
kernel-team to exist where any one person on this earth has seen fit
to present it for inclusion, or by simple prior-inclusion into the
kernel.

Thus all current and past rights-holders who have code in, or have
published for distribution, derivative works of the kernel are subject
to the retributive promises made to them in the additional writing,
drafted to restrict their actions and utterances.

This is tantamount to an additional restrictive term regarding the
modification and distribution of works under the linux kernel license
grant.

It is a violation of the license terms of the rights-holders past
incorporated works in much the same way that GRSecurity's
Contributor Access Agreement was and is.

Re: The linux devs can rescind their license grant. - Additional restrictive terms


Version 2 of the GPL forbids the incorporation of additional
restrictive terms, relating to the distribution, modification, etc of
the article licensed under the terms.

Those that violate this section are declared, by operation of the
terms, to have their grant automatically revoked.

An additional term need-not be present in the same writing. Such terms
simply need to be present to or made known to the taker(sub-licensee) by
the distributor. They may be proffered in writing, orally, or
implied in the course of doing business dealings. They simply must
relate back or involve the article in question (the licensed code or
product.)

The proffering of additional restrictive terms is a violation of the
text of the license grant in and of itself.

Here we have a situation where an additional writing has been
proffered. The additional writing promises both in it's own text and
by implication consequences against those who violate the terms of
this additional writing.

The additional writing restricts those subject to it from expressing
certain views publicly - promising retribution against those who do.

No consideration is paid to those subject to the additional writing
for their assent; it is simply imposed unilaterally against the
subjects.

The violators of the additional writing are promised:
Additional, unwanted, public scrutiny (to which they were not subject
to prior)
Public ridicule.
Loss of public standing.
as-well as an implied loss of future income.

These are the enforcement mechanisms of the additional writing to
enforce its restrictions against those who publish derivative works of
the kernel.

The additional writing is activated when (with the prerequisite of
being a derivative work of the linux kernel) the work of a rights-holder
is incorporated into the kernel, when such a work is made known to the
kernel-team to exist where any one person on this earth has seen fit
to present it for inclusion, or by simple prior-inclusion into the
kernel.

Thus all current and past rights-holders who have code in, or have
published for distribution, derivative works of the kernel are subject
to the retributive promises made to them in the additional writing,
drafted to restrict their actions and utterances.

This is tantamount to an additional restrictive term regarding the
modification and distribution of works under the linux kernel license
grant.

It is a violation of the license terms of the rights-holders past
incorporated works in much the same way that GRSecurity's
Contributor Access Agreement was and is.

Re: The linux devs can rescind their license grant.


On 2018-10-26 13:15, Eben Moglen wrote:

They can do neither.  There is no "doctrine established in Jacobsen."
The license terms of the GPLv2, GPLv3, and all related licenses
provide a mode of termination---for imposition of additional
restrictions or violation of other terms.  This termination provision,
being explicit, is therefore the sole form of termination recognized
under the terms of the Copyright Act.


Incorrect. This rule is only valid for bargained-for copyright licenses 
supported by consideration.

The GPLv2 is not such a situation for most licensees.

You are conflating case law dealing with commercial software and 
non-gratuitous licenses with the present situation, which would likely 
be a case of first-impression in nearly any jurisdiction.


The rule for gratuitous licenses is that they are revocable at the will 
of the grantor.
Raymond Nimmer (God rest his soul) was in agreement on this point, 
vis-a-vis the GPL and similar licenses.

Re: The linux devs can rescind their license grant.


On 2018-10-26 13:15, Eben Moglen wrote:

They can do neither.  There is no "doctrine established in Jacobsen."
The license terms of the GPLv2, GPLv3, and all related licenses
provide a mode of termination---for imposition of additional
restrictions or violation of other terms.  This termination provision,
being explicit, is therefore the sole form of termination recognized
under the terms of the Copyright Act.


Incorrect. This rule is only valid for bargained-for copyright licenses 
supported by consideration.

The GPLv2 is not such a situation for most licensees.

You are conflating case law dealing with commercial software and 
non-gratuitous licenses with the present situation, which would likely 
be a case of first-impression in nearly any jurisdiction.


The rule for gratuitous licenses is that they are revocable at the will 
of the grantor.
Raymond Nimmer (God rest his soul) was in agreement on this point, 
vis-a-vis the GPL and similar licenses.

Re: The linux devs can rescind their license grant.


Yes they can, greg.

The GPL v2, is a bare license. It is not a contract. It lacks 
consideration between the licensee and the grantor.


(IE: They didn't pay you, Greg, a thing. YOU, Greg, simply have chosen 
to bestow a benefit upon them where they suffer no detriment and you, in 
fact, gain no bargained-for benefit)


As a bare license, (read: property license), the standard rules 
regarding the alienation of property apply.


Therein: a gratuitous license is revocable at the will of the grantor.

The licensee then may ATTEMPT, as an affirmative defense against your 
as-of-right action to claim promissory estoppel in state court, and 
"keep you to your word". However you made no such promise disclaiming 
your right to rescind the license.


Remeber: There is no utterance disclaiming this right within the GPL 
version 2. Linus, furthermore, has chosen both to exclude the "or any 
later version" codicil, to reject the GPL version 3, AND to publicly 
savage GPL version 3 (he surely has his reasons, perhaps this is one of 
them, left unstated). (GPLv3 which has such promises listed (not to say 
that they would be effective against the grantor, but it is an attempt 
at the least)).





The Software Freedom Conservancy has attempted to mis-construe clause 4 
of the GPL version 2 as a "no-revocation by grantor" clause.


However, reading said clause, using plain construction, leads a 
reasonable person to understand that said clause is speaking 
specifically about the situation where an upstream licensee loses their 
permission under the terms due to a violation of the terms; in that case 
the down-stream licensee does not in-turn also lose their permission 
under the terms.


Additionally, clause 0 makes it crystal clear that "You" is defined as 
the licensee, not the grantor. Another issue the SFConservancy's public 
service announcement chooses to ignore.


Thirdly, the SFConservancy banks on the ignorance of both the public and 
the developers regarding property alienation. A license does not impinge 
the rights of the party granting the license in a quid-pro-quo manner 
vis a vis the licensee's taking. A license merely grants permission, 
extended from the grantor, to the licensee, regarding the article of 
property that is being impinged. A license is NOT a full nor is it a 
permanent alienation of the article(property) in question. The impinged 
property, being under a non bargained-for temporary grant, can be taken 
back into the sole dominion of the owner - at his election to do so.




Now as to the 9th circuit appellate court's decision in Jacobsen v. 
Katzer . While the court waxes eloquently about opensource licenses, 
even mentioning the word "consideration" in it's long dicta, when it 
comes time to make the binding decision the court found that the lower 
(district) court was in _ERROR_ regarding the application of 
contract-law principals to the Artistic License, regarding the case, and 
instructed the lower court to instead construe said license as a 
Copyright License.


The SFConservancy, and Bruce Perens have chosen to:
1) Rely on the dicta. (non-binding - "some things could be contracts - 
opensource is great")
2) Ignore the actual ruling. (Binding - Copyright License - Not 
Contract)

3) Ignore that this case was about the AL, not the GPLv2
4) Ignore the existence of different jurisdictions.
(Why file in the roll-the-dice 9th district if you can file in a 
district that has personal-juristicion over the defendant and is much 
more consistent in it's rulings?)
5) Ignore all established law regard property licensing, contract 
formation, meeting of the minds, what consideration is etc.


Which is not surprising considering the desire of people like Bruce 
Perens is to rob MEN of EVERY benefit of their Labour and every speck of 
happiness in life and to transfer those benefits to WOMEN and those who 
support women.


(This is why people who are like Bruce Perens, the SFConservancy 
menbers, and the CoC supporters, banned men from taking female children 
as brides: in contrivance to the law of YHWH (Devarim chapter 22 - - 
verse 28 (na'ar (LXX: padia)), and continue to uphold that ban 
world-wide, and seek to destroy ALL cultures that do no bend to their 
will who are not idolators of Women)





Look, you may love your users, you may love the people who edit your 
code in their home or office; but the fact of the matter is...


They have done nothing for you, they have promised nothing to you. They 
CANNOT hold YOU.


You have the right to rescind at any time, and remove your work from any 
future versions of Linux. And you might consider doing so if YOU are 
done harm.


Don't let the insatiable, never-satisfied, public fool you into thinking 
otherwise.


And, yes, I am a lawyer.
And, no, unlike the SFConservancy, I did not have to call upon outside 
counsel to analyze the fact pattern. (And even then all they could come 
up with was statements using weasel words "may" etc: not

Re: The linux devs can rescind their license grant.