At 12:21 AM 2/10/2002, Anthony Taylor wrote:
Sir,
You have made this claim many times, and asserted various lawyers have told you it is true. Please explain the details.
I've already done so in an earlier message, and don't want to clutter the list. But because this is an important issue, I'll give a more detailed explanation below.
The GPL and LGPL specifically cover source code, * not* algorithms. How can the act of reading *GPL source code expose you to liability, any more than reading a novel can prevent you from writing your own?
For the same reason that George Harrison was convicted for writing a song ("My Sweet Lord") that was similar, but not identical, to one he'd once heard, even though he was not conscious of doing any copying. For the same reason that the engineers who write the re-engineered code during "clean room" reverse engineering must never have seen the original code. (The engineers who implemented the Phoenix BIOS, for example, had never even programmed the x86 family of processors before. This was a specific requirement; anyone who had written a line of 8088 assembler was rejected for the job.) And for the same reason that movie producers such as George Lucas and Steven Spielberg will not read unsolicited scripts that are sent to them. (Lucas has been sued at least once by writers who claimed that elements of Star Wars -- such as the Ewoks -- were derived from scripts that had been submitted to him in the past.)
J.K. Rowling, author of the Harry Potter books, was recently sued and accused of copying specific elements of other children's books. The books she was accused of copying are quite different from hers in most respects. However, it was pointed out that she used the same made-up word -- "muggles" -- in the same way and to mean the same thing. The court took the claim very seriously, because the odds of such a thing happening by accident are minuscule. Rowling may, in fact, have copied completely unconsciously, but this doesn't matter from the standpoint of copyright law.
Having seen the original code (or heard the original song, or read the original book) whose copyright you have been accused of infringing can give rise to a claim that your work is a derivative of the original. Under copyright law, the burden is on you to prove that you didn't -- consciously or even unconsciously -- derive any part of your work from the original material.
Copyright doesn't cover algorithms, but it does cover their expression as source code. If you implement an algorithm that appeared in the original code, and your implementation looks enough like it, it can be claimed that you're copying some or all of the way that the original author expressed the algorithm.
What happens if you're accused? If you're a large, rich corporation, you may be able to defend the claim. But if you're an individual, or the owner or employee of a small company, the suit itself can be devastating. It's a good thing for J.K. Rowling that she made lots of money from her books, because if she were less successful she might well have been bankrupted by the costs of the lawsuit. And you MUST defend yourself. Copyright infringement isn't just a civil offense; it's a criminal offense. And the penalties are extraordinarily steep -- thousands of dollars per infringing copy. You can take a big hit even if the accusation is frivolous.
This is why the FSF has been able to force people and small companies to back down when there's a mere accusation of violating the GPL or LGPL. People can't afford the disruption to their lives and businesses -- not to mention the cost -- of being sued. While the FSF gets free legal services from Eben Moglen and others, you'll have to pay hundreds of dollars per hour. If you're an individual programmer or a small business, it's easy to be wiped out.
That's why there's such a danger here... and why we won't read GPLed or LGPLed code. We can't afford the accusation -- much less to be convicted.
The MIT and BSD licenses, on the other hand, give you permission to derive code from the original and use it for any purpose. Thus, all of these issues do not come up. You can proceed with absolute confidence. You do not have to worry about being sued, or about possible ways in which a court might interpret the arcane legalese of the GPL or LGPL.
So, you can see why, as programmers who don't want to wind up in court or be distracted by legal worries, we will not so much as read GPLed or LGPLed code. The only simple and sure way to avoid these potential problems is to stick with code that's licensed under what I call a truly free (TF) license.
The definition of a truly free license is simple. A truly free license does not limit what you may do with the source code. The only thing it can limit is what you may do TO the author. It may, for example, prohibit you from using the author's trademarks (the Apache and Artistic licenses have this restriction) and/or from failing to give the author some credit for his or her work (the BSD license does this). And, like the WINE license, it may prohibit you from suing the author for damages if there are bugs. But it can't keep you from reading, using, learning from, or deriving something new from the original code. It thus has a property that the FSF's licenses do not: freedom from FUD. The current WINE License is truly free, and that is a very good thing for everyone.
--Brett