From: zeleny@husc10.harvard.edu (Mikhail Zeleny)
Newsgroups: gnu.misc.discuss,talk.philosophy.misc,misc.legal
Subject: Re: Fund raising at the FSF
Date: 9 Jan 93 03:28:47 GMT
Article-I.D.: husc3.1993Jan8.222849.19131
Organization: The Phallogocentric Cabal

In article <C0K4xx.Cos@news.udel.edu> 
johnston@me.udel.edu (Bill Johnston) writes:

>In article <1993Jan8.143028.19112@husc3.harvard.edu>
>zeleny@husc10.harvard.edu (Michael Zeleny) writes:

>>In article <C0Jtvr.Bsr@news.udel.edu> 
>>johnston@me.udel.edu (Bill Johnston) writes:

MZ:
>>Note that "Paragraph 5", as distinct from "paragraph 5", refers to the
>>corresponding item of the Terms and Conditions, rather than the
>>Preamble.

>[...]

MZ:
>>________________________________
>>
>>	5.  You may not copy, modify, sublicense, distribute or transfer
>>	the Program except as expressly provided under this General
>>	Public License.   .....
>>
>>________________________________

BJ:
>This statement expresses one of several "terms and conditions 
>for copying, distribution and modification" set forth by the 
>"licensor" (aka "owner", or "copyright holder")  which describe 
>and limit the rights of licensees.  It does not describe or limit 
>the rights of the licensor.

This would have been a good distinction, had it been borne out by the
text of the GPL.  Alas, it is not.  While the term "licensor" occurs
in the statement of Version 1, Paragraph 7, the text does not in any
way suggest that the right of the licensor is in any way different
from the right of the licensee, as constrained by Paragraph 5.

RJ:
>Moreover, it is made in the name of the "copyright holder"/owner
>by virtue of the fact that said individual "owns" the code;
>if this were not so, the licensor would have no right or
>power to set "terms and conditions" in the first place.

Not so fast.  The copyright owner's right *before* licensing his work
under the GPL, does not have to remain unrestricted by the licensing,
so as to remain the same afterwards.  In fact, all evidence I have
adduced so far, suggests that this is not the case.

MZ:
>>>>The
>>>>question is precisely, to what extent the GPL attempts to supersede the
>>>>legal ownership rights attached to the copyright; I shall not presume to
>>>>judge the extent of its success in this attempt.

BJ:
>>>The answer, precisely, is "none".

MZ:
>>Nonsense.  Insofar as, under Paragraph 3 of the selfsame GPL, "the
>>Program" clearly covers the derived works, which may be copyrighted in
>>their author's name, the answer is "conclusively and irrevocably".
>>Please read the text more carefully next time.

BJ:
>Whether or not a "derived work" is copyrighted in the name of 
>the original author, or jointly in the names of each individual
>who contributes a snippet, is a matter separate from the question
>of licensing.  The GPL requires only that derived works be 
>licensed under the same terms as the original. 

So far, so good.

BJ:
>						 It does not
>require that any author surrender ownership in the portion of
>the work that he or she contributes.  

Not so.  Insofar as Paragraph 3 of the GPL explicitly regulates the
terms of *all* copying and modification, and insofar as the selfsame
license fails to make an exception from its provisions for the
copyright owner, his ownership is abrogated precisely to the extent
rights are regulated along with everyone else.  The sole exception to
this regulation is, unsurprisingly, constituted by the FSF, which in
accordance with the Paragraph 8, is allowed to modify the GPL at will.

BJ:
>For example, I can modify emacs, and attach a copyright notice 
>to the source code snippet that is my contribution, provided 
>that I license my modified emacs under the GPL if I choose to
>distribute copies to others.  Furthermore, I can distribute 
>the aggregate with an overall copyright notice that says:
>
>    Bill's Modified Emacs
>    (c)  Free Software Foundation  19xx
>    Portions (c)  Bill Johnston  19yy
>
>etc.
>
>The inclusion of the word "Portions" in the above would only
>reflect modesty about the extent of my contribution.  I could 
>say the same about the "portion" copyrighted by FSF.
>
>My right as copyright holder to separately release my original
>code under my own terms is unaffected by the GPL.  

Note that, so far, all the evidence you have adduced in support of
this claim, has been limited to pronouncements made on your own
authority, and not in any way related to the text of the GPL.

BJ:
>>>To paraphrase two earlier bits from Mr. Zeleny's contribution
>>>to this discussion:
>>>
>>> 1)  Now would be a good time for Mr. Zeleny to admit his error.
>>>
>>> 2)  Are you going to be a man or a mouse about it, Mr. Zeleny?
>>>
>>>Please note that I am not accusing you Mr. Zeleny of "prevaricating" 
>>>in repeatedly making false statements about the GPL;  I merely
>>>point out his error.  Readers can draw their own conclusions.

MZ:
>>It looks like your strategy backfired once again.  The error is yours;
>>will you admit it?  Note that this time I am not accusing you of lying,
>>but assuming that you are merely being careless.

BJ:
>My only error was in guessing what you meant by "Paragraph 5",
>which has more to do with your failure to be explicit - despite
>repeated invitations from others to do so - than it does with
>carelessness on my part.

My reference was made in accordance with the conventions used within
the text of the GPL.  How much more explicit do you want it to be?

BJ:
>The remainder of my argument in <<C0Jtvr.Bsr@news.udel.edu> offered
>sufficient proof -- which you did not attempt to refute except by 
>irrelevant counter-example -- that the application of the the GPL to 
>one's work does not result in transfer of ownership of said work 
>to the Free Software Foundation.  Period.

Sorry, but I do not find proof by appeal to your own authority to be
terribly convincing, particularly in this case.

BJ:
>Now you have yet another sufficient demonstration of your error. 

Clearly, our standards of sufficient warrant differ.  I am happy to
note that my own assertions are made in accordance with the commonly
accepted practices of textual analysis.  However, as I said on several
past occasions, I am prepared to stand corrected by a legal scholar,
or even another conscientious reader.  Alas, you fail to make the
grade on either count.

>-- 
>-- Bill Johnston (johnston@me.udel.edu)
>-- 38 Chambers Street; Newark, DE 19711; (302)368-1949

cordially,
mikhail zeleny@husc.harvard.edu
"Les beaulx bastisseurs nouveaulx de pierres mortes ne sont escriptz
en mon livre de vie.  Je ne bastis que pierres vives: ce sont hommes."
Xref: sparky gnu.misc.discuss:4430 talk.philosophy.misc:3281 misc.legal:22421