Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

[Florin Malita <fmalita@gmail.com>]

On 06/14/2007 05:39 PM, Alexandre Oliva wrote:
> On Jun 14, 2007, Florin Malita <fmalita@gmail.com> wrote:
>   
> > No, it's not: replacing does not create derivative
> > work. Modification does.
> >     
>
> Thanks.  Good point.  This convinces me that this doesn't work as a
> legal argument under copyright.
>
> I still stand by my understanding that this restriction violates the
> spirit of the license.
>   

But since this elusive "spirit" is subject to everybody's interpretation 
of the preamble, you must surely admit that it remains just a matter of 
opinion ;)

> > It seems pretty obvious that the only right Tivo is withholding is the
> > right to install new versions on the device
> >     
>
> Actually, no.  They withhold the right to run versions that they don't
> authorize themselves.
>   

On that particular piece of hw, yes. But who's granted you the right to 
*run* your modified copy *there* in the first place? GPLv2 explicitly 
steers clear of anything "other than copying, distribution and 
modification".

> Back when GPLv2 was written, the right to run was never considered an
> issue.  It was taken for granted, because copyright didn't control
> that in the US (it does in Brazil), and nobody had thought of
> technical measures to stop people from running modified copies of
> software.  At least nobody involved in GPLv2, AFAIK.
>   
> The landscape has changed, and GPLv3 is meant to defend this freedom
> that was taken for granted.
>   

Then you agree that GPLv2 does not protect your freedom (taken for 
granted) to run a modified copy on any particular device, or am I 
misreading?

> > > What do you think you do when you save a modified source file in your
> > > editor?
> > >       
>
>   
> > Don't skip the part where the in-memory version started as an exact
> > copy of the original being replaced. Notice the difference? ;)
> >     
>
> Sorry, I really don't follow.  Both versions of the kernel binary also
> started from a common source ancestor.  Were you trying to make a
> distinction on these grounds?
>   

Exactly: they have a common ancestor, they are both derived from it. But 
there's no ancestry relationship *between* them (unlike your edited file 
example) so you cannot argue that one is a modification of the other. 
Hence, Tivo is not really *modifying* the copies it distributes with the 
device - they're *installing* brand new copies instead. They also choose 
not to offer everybody the same privilege :-|

Does this go against the intent of the GPLv2 authors? Probably. Does it 
go against the letter of GPLv2? Apparently not. Does it go against 
your/some people's interpretation of the GPL "spirit"? Obviously. Does 
it go against everybody's interpretation? Obviously not.

---
fm
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