An IP lawyer was kind enough to take the time to share some knowledge with me. I was quite impressed with the way he boiled this down to something I could understand.
Here is a transcript:
Lawyer: Ok, first of all. The GPL is just a contract. It says if you do X (publish any modified code) I will not sue you. It is a contract between the licensor (Mambo coders) and you. UNLESS it has been assigned to someone else (like the FSF)
Lawyer: for example, Linus has assigned copyright in the kernel to the FSF, so if you violate the copyright on it, the FSF can sue you for infringement
Lawyer: So, in most projects the coders assign to a “project.” I don’t know if Mambo does this. If they do, then the copyright belong to the “project.” Otherwise each coder has rights in code he made
Lawyer: Therefore, if Mambo says in their FAQ that you can distribute your extensions under whatever license you want (and they own the copyright), then you are free to do so — they have modified their contract with you (the GPL)
Alex: ok, this makes sense
Lawyer: Second, the real big issue is the applicability of the GPL to extensions for interpreted languages.
Lawyer: The FSF is probably right about extensions to compiled languages … In copyright lingo you make a deritive work when you link (in the coding sense of the work, like ll) your extension with their
project …
Lawyer: For a “work” (in the copyright sense of the term) to be made it must be “fixed in a tangible medium.”
Alex: so if I don’t distribute it, I can’t “catch GPL”?
Lawyer: Basically, if you don’t distribute your extension on the same medium (like a cd) as a GPL’ed work you will definitely be fine (in my view).
Lawyer: Whats bad about this is that there is NO (0) caselaw on this issue
Lawyer: I can cite alot of analogous cases
Alex: wow, interesting… are there cases pending?
Lawyer: Nope.
Lawyer: Thats why the FSF GPL FAQ is so damaging. I know its wrong, other lawyers know its wrong (on this point), but there is no case on point.
Lawyer: Well, the last hope was the linksys incident
Lawyer: most cases are really straightforward wholesale copying of compiled code
Lawyer: Intrepreted code is a whole new game (in terms of law).
Lawyer: Its pretty intersting actually, I guess it has been less than a decade since intrepred code was a commercially viable option
Alex: Thanks, I really appreciate you taking the time to explain this to me.
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Gabe adds this Comment:
Yeah that’s what weirded me out about the whole FAQ quote is that it is implicitly referring to compiled languages where you have certain natural divisions that don’t exist in interpreted code. It gets even weirder considering that programs written in interpreted languages automatically are distributed with the source code so you can’t distinguish between source and binary.
It’s always refreshing to hear a lawyer who’s clued into the technical aspects.
July 9th, 2004 at 11:35 am
Carthik adds this Comment:
Interesting, especially the part about there being no precedents.
Also :
Lawyer: Therefore, if Mambo says in their FAQ that you can distribute your extensions under whatever license you want (and they own the copyright), then you are free to do so — they have modified their contract with you (the GPL)
If I were the author of a module, I would make it a point to ask Mambo to put the special exclusion clause in their license document, especially since there is no precedent, and you never know which way the axe will fall.
July 9th, 2004 at 2:13 pm
Carthik adds this Comment:
Alex, you might want to read this post, especially the comments by danyl.
July 9th, 2004 at 10:15 pm
vruz adds this Comment:
WRONG !!! WRONG !! WRONG !!
1) The Linux Kernel IS NOT under the GPL.
2) A Contract is NOT a license, ask a decent lawyer
3) There doesn’t have to be ANY caselaw for a LICENSE to work, if you are the copyright owner of your creation, YOU can GRANT any rights you see fit to your licencees.
4) You can distribute any GPL code as long as you make the sources of that GPL code available, it doesn’t have to be in the same CD, it can be online too or upon request, and your code doesn’t “catch” GPL because of it residing on the same disc/disk drive, suggesting that is hilarious.
Triple check your sources, this lawyer is clueless.
If you feel like learning from
Eben Moglen, the Harvard PHd. behind the FSF knows a bit or two about the GPL, at least more than “Lawyer”.
best,
vruz
July 12th, 2004 at 10:27 am
Alex adds this Comment:
Perhaps you mean ‘a license is not a contract’? No one claimed that a contract is a license.
July 12th, 2004 at 10:32 am
Lawyer adds this Comment:
1) True.
2) A license is a contract. There is another kind of “license” in the real property sense that is not necessarly
3) Yes. You can only grant rights for actions that you have the right to exclude under law.
4) The GPL become applicable to any code that is a “derivative work” of the GPL’ed work. Personally, I do not think that distribution on the same medium makes your work a derivative work of the GPL’ed work. Separate distribution does not even allow this question to arise.
Eben Moglen is a very smart lawyer, but may be a bit biased when it comes to the GPL.
July 12th, 2004 at 1:14 pm
stani adds this Comment:
Hi,
I’m interested, how this story finish? Will you adapt your code to mambo?
We are now in similar situation (in fact - opposite as our code is GPLed) : someone ask to adapt it, we read the mambo faq, …
November 22nd, 2004 at 9:30 am
Alex adds this Comment:
I don’t have any plans to create a Mambo module at this time. If someone wanted to fund the development, I’d probably start looking into it again.
November 22nd, 2004 at 9:38 am