Linux developers threaten to pull “kill switch”

[Thomas1965]

Linux powers the internet, the Android in your pocket, and perhaps even some of your household appliances. A controversy over politics is now seeing some of its developers threatening to withdraw the license to all of their code, potentially destroying or making the whole Linux kernel unusable for a very long time.

https://lulz.com/linux-devs-threaten-killswitch-coc-controversy-1252/

[Duthomhas]

People be stuupid.

Fortunately, there do exist reasonable people and laws that might help out — something along the lines of "revocation OK, but due to the public infrastructure, people have N years to replace your code."


Now, I’m not saying Torvaldes and Stallman aren’t A-class A-holes, because they are. And we do know what happens when women try to work on the Linux kernel...

That said, the new CoC crap looks a lot like Ministry of Magic Educational Decrees.

[helios]

What really baffles me about all this is that I've learned there's people out there who think meritocracies are a bad thing. I would really like to know what their proposed alternative it. Probably something that artificially puts men, white people, and straight people at a disadvantage.

[tition]

The original post and web address somehow does not appear legit to me.

[helios]

Well, the news was real, if that's what's concerning you. Both ESR and RMS commented on it.

[lastchance]

Duthomas wrote:

People be stuupid.

You'd be amazed! Rather too close to home:
https://www.bbc.co.uk/news/uk-england-manchester-45717841
Sadly, these undo the hard work and cause public ridicule for many people who have done a lot to promote the institution on legitimate educational grounds. (As well as shooting themselves in the foot for their genuinely blind colleagues.)

As for the kernel contributors, I'm not going to comment on their concerns (knuckles rapped in the forum recently!), but I'm not sure that they have any legal basis. They don't seem to be able to cite an actual comparable copyright case as Case Law. It will cost them quite a lot of money and I don't know who they would actually sue. And it would probably promote counter-sueing for any business losses due to bugs or vulnerabilities in the linux kernel.

A few contributions to the forum suggest that some aspects of the linux kernel might benefit from enforced re-writing.

[helios]

It will cost them quite a lot of money and I don't know who they would actually sue.

Anyone distributing compilations containing the relevant pieces of code. For example, RedHat, Canonical, the Debian Project, etc.

[tition]

RMS' comment is not very serious, but Eric Raymond (ESR) is more relevant:

First, let me confirm that this threat has teeth. I researched the
relevant law when I was founding the Open Source Initiative. In the
U.S. there is case law confirming that reputational losses relating to
conversion of the rights of a contributor to a GPLed project are
judicable in law. I do not know the case law outside the U.S., but in
countries observing the Berne Convention without the U.S.'s opt-out of
the "moral rights" clause, that clause probably gives the objectors an
even stronger case.

However, I would not qualify the threat as existential to Linux.

There's another reason to downplay the threat. Say that this threat leads to some legal action enforcement in the US. This will most likely cost millions of dollars of business.

At the same time, any country where the threat is not in accordance with the law will suffer no consequences. So, should this threat be enforced, a simple remedy would be for developers to move their servers/operations outside of the US. This seems to be against the economic interests of the US.

While I am not a lawyer*, I don't see wanting to withdraw your license as a clear win in a courtroom ...

*However, I have eyes and brain of my own and can (and occasionally have) read the law when it concerns me.

[helios]

So, should this threat be enforced, a simple remedy would be for developers to move their servers/operations outside of the US.

My understanding is that existing users wouldn't need to do anything. They were licensed to copy and use the software when they installed their systems.

While I am not a lawyer*, I don't see wanting to withdraw your license as a clear win in a courtroom

I don't know. If I invite you into my home, am I implicitly inviting you to move in? Am I never allowed to revoke that permission? If I can, then why shouldn't I be able to relicense some piece of software I own?

[tition]

I don't know. If I invite you into my home, am I implicitly inviting you to move in? Am I never allowed to revoke that permission? If I can, then why shouldn't I be able to relicense some piece of software I own?

Nope, if we are talking about your home, "licensing"/renting rules are quite different. Of course, homes and source code have important differences. For example: I can make an exact copy of a software repository in a few seconds, whereas I can't replicate your home without significant time and money. Another difference: my use of a piece of software does not interfere with your use of that software. On the other hand, my presence in your home would interfere with your use. By the way, the above two arguments are due to Richard Stallman (the wording is mine).



The way I see the current dispute:

1. "I give you permission to copy and modify my code (under the GPL)"
2. two years later:
"I changed my mind and no longer like you. You must erase all code you copied from me. If you made changes to my code, tough luck".
That argument does not pass my smell test.

From what I understood, the legal threat arises from the fact that in the above statement,

"I no longer like you"

is replaced with

"Your use of my code is defamatory to my reputation and hence infringes on my rights due to laws outside of the "narrow" scope of copyright".

From what I understood, Raymond was arguing that the above argument may or may not actually hold in court (Raymond calls is "judicable" - i.e., the argument has sufficient merit to be presented in court but may not be found to hold). I have my doubts however that you will be able to convince a US jury that source code is "defamatory". From what I understood, the "defamatory" part is a certain code of conduct, which likely is kept in a separate file and not directly in the source code that has the names of people who claim that their names are tarnished.


Now if you say that the argument here is that you revoke your license for any **future** code changes you make, I don't see that contradicting GPL (**so long as you don't sell/sub-license the resulting software). Furthermore, it is very easy to enforce (just don't publish your changes). Alternatively, if you want your code kept in an accessible place, you can make a plain copyright license along the lines of

"all rights reserved".

[helios]

I can make an exact copy of a software repository in a few seconds, whereas I can't replicate your home without significant time and money. Another difference: my use of a piece of software does not interfere with your use of that software.

I don't see how either of these is relevant.
First, if you don't have my permission to copy my software, then *legally* for you it's infinitely difficult to copy it. Second, the question isn't whether you're using my software, but whether you're distributing it. If you're just using my software, it might or might not affect me, but if you make copies of it and distribute it, it may very well affect me, because I may for instance want to restrict who I want to give access to it. That's the entire point of copyright: to have a limited monopoly on distribution rights. If I GPL my work without transferring ownership (as in the case of the Linux kernel) I'm not giving up my rights to it; there's no reason why I shouldn't be able to relicense it under different terms later on.

1. "I give you permission to copy and modify my code (under the GPL)"
2. two years later:
"I changed my mind and no longer like you. You must erase all code you copied from me. If you made changes to my code, tough luck".

No. You can keep my code, I already gave it to you. I'm simply exercising my rights as an author and revoking your permission to give it to other people. If you give it to other people anyway I might sue you.
This exactly how copyright works for anything else. If you publish a book you give a publisher permission to make copies of your book, without extending that permission to your readers. If you later revoke that publisher's permission your readers are not obligated to burn their copies (nor the publisher; they're just not allowed to distribute the unsold copies).

[tition]

I'm simply exercising my rights as an author and revoking your permission to give it to other people.

But in the GPL, you already gave me permission to give it to other people. I wouldn't have used your code if you didn't give me that right (instead, I would have used someone else's).

So, revoking your permission is breaking your promise: that you gave me permission to copy and distribute.

You gave me that promise in writing (the GPL license).



Can I sell you a car and then revoke your permission to drive it, by say, disabling electronically your car key (let's suppose that manufacturers can do that, which is most likely the case).

Now, selling a car is not the same as licensing software (cars can't be copied the same way as software, have safety issues, etc.). But revoking the terms of the GPL has similarities to breaking a regular contract (such as that for a car or house sale).

I'm simply exercising my rights as an author and revoking your permission to give it to other people.

Say I sold my author rights to a publisher. However, then I changed my mind and decided I want to get my copyright back. Can I just revoke the sale of the copyright? How is that different from me revoking the GPL?

[helios]

But in the GPL, you already gave me permission to give it to other people.

And I can likewise revoke that permission, just like I can kick you out of my house after inviting you in.

I wouldn't have used your code if you didn't give me that right (instead, I would have used someone else's).

If my new licensing terms are unsuited for you, you're free to do that.

Can I sell you a car and then revoke your permission to drive it, by say, disabling electronically your car key (let's suppose that manufacturers can do that, which is most likely the case).

Depending on jurisdiction, a contract or some kind of ownership deed is involved when the ownership of a vehicle is transferred. If you arbitrarily disable a car that is legally mine, our lawyers will have to have a talk.

Now, selling a car is not the same as licensing software (cars can't be copied the same way as software, have safety issues, etc.). But revoking the terms of the GPL has similarities to breaking a regular contract (such as that for a car or house sale).

A license is not a bilateral agreement comparable to a contract related to an exchange of goods or services. The author is granting someone else permission to use and distribute under whatever terms they please, without getting anything in return (other than maybe reputation). Since the author doesn't get any new rights, such as remuneration, they also don't get any new obligations.

[tition]

And I can likewise revoke that permission, just like I can kick you out of my house after inviting you in.

Not clear.

If you gave me a permission to come to your house, you can kick me out (since it is your house). In this case, the notary document that says you own the house would be similar to an "all rights reserved" license.

If you gave me right to see you in a concert by giving me a ticket for free you can't just kick me out. A ticket for free would be the equivalent of a "freeware" license. However, you can stop me from inviting more people at the concert. They'd have to get a ticket from you, and you may choose to impose arbitrary restrictions for the subsequent tickets you issue.

Say now there is a public square and you are performing an instrument. Furthermore you've signed an agreement with the local authorities that you cannot restrict anyone from coming to the public square. This agreement would be the analogue to the GPL license. Now suppose I listen to your playing and I call my friends to invite them over. I think in this case you have no right to kick them out. You can stop playing your instrument (the equivalent of you stopping to contribute to GPL).

Since the author doesn't get any new rights

Now it's my turn to say that it is irrelevant whether the author gets any rights. Whether the GPL compensated you for your efforts or not is your problem. You gave me rights to redistribute your code under the GPL, like it or not.

[helios]

If you gave me right to see you in a concert by giving me a ticket for free you can't just kick me out.

Wrong. You can be kicked out of a venue even if you payed for admittance. For example, if you're being disorderly. Ultimately, regardless of whether you paid to get in, when you enter private property you're a guest there and can be removed at any time for any reason.

Say now there is a public square and you are performing an instrument. Furthermore you've signed an agreement with the local authorities that you cannot restrict anyone from coming to the public square. This agreement would be the analogue to the GPL license. Now suppose I listen to your playing and I call my friends to invite them over. I think in this case you have no right to kick them out. You can stop playing your instrument (the equivalent of you stopping to contribute to GPL).

So, the GPL has two parties: the licensor, and the licensee. The licensor grants to the licensee certain rights.
In your analogy, the licensor is the state, and the licensee is the artist. The right being granted is the permission to occupy some portion of the square for some period of time. The audience who may gather to listen to the artist is not a party to this agreement; the artist doesn't have the right to kick anyone out, but they can ask the police to do so (like in any other public space. Other members of the audience can also do this). The state can also void the agreement if the event causes disturbances etc.

Now it's my turn to say that it is irrelevant whether the author gets any rights. Whether the GPL compensated you for your efforts or not is your problem.

My point is that the agreement is unilateral. A GPL licensor doesn't take on any new obligations.

[tition]

In your analogy, the licensor is the state, and the licensee is the artist.

This is not a correct analogy with the GPL. The GPL grant any recipient of the code and the license with the rights to redistribute. To cite the GPL (v2):

This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".

I think it can be readily defended in court - I am sure RMS would agree here - that anybody who has the text of the GPL and source code covered by it is automatically a licensee. That is simply implied by the meaning of the English word you. In addition, this is clearly stated as a design goal in the preamble of the GPL.

So in the concert analogy, every person listening to the concert is assumed (explicitly by the meaning of the word "you") to be a licensee, if they so choose to accept.

You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works.

Having a file with non-fraudulent statement that it's licensed to me under the GPL, published in a non-fraudulent way, automatically grants me the right to be a licensee, should I choose to be so.

Speaking of which, perhaps I could write an email to RMS to ask him to support (or dispute) my interpretation of the text of the GPL. I am sure he has plenty of information on the matter.

[helios]

This is not a correct analogy with the GPL. [...] I think it can be readily defended in court - I am sure RMS would agree here - that anybody who has the text of the GPL and source code covered by it is automatically a licensee.

Yep, I agree with this interpretation. But that just means your analogy about someone playing in a public square is bad.

So in the concert analogy, every person listening to the concert is assumed (explicitly by the meaning of the word "you") to be a licensee, if they so choose to accept.

No, that's wrong. There's an artist playing in a public space and there's passersby passing through (or stopping in) the public space. There's no agreement between these two parties and neither has any special rights or obligations towards the other. The artist can play whatever they want and stop playing at any time, and the audience can arrive and leave as they please. The only agreement is between the local authorities and the artist, whereby the artist gets exclusive use of the premises for the allotted time.

If you think the artist is a licensor and each member of the audience is a licensee, then please explain what permission the artist is granting. Permission to listen? No. It's a public space. The artist has no right to bar entrance.

[keskiverto]

If you think the artist is a licensor and each member of the audience is a licensee, then please explain what permission the artist is granting.

Redistribute? Grants the audience has right to record or stream the live performance to other people elsewhere, who thus become members of the audience and can re-tweet further?

The artist could revoke that and forbid further recording.
Can she also send take down notices to social media sites to erase the already recorded part of the performance?
Can the artist request that the audience wipes their memories?

What can the artist do, if another artist makes a cover of the already seen piece?

[helios]

Redistribute?

Well, the example is geared towards the right to be in a place after being invited. For example, when a friend invites you to their place, or when you buy admittance to a venue.

The right to record and distribute the recording exists regardless of the presence of the artist, because the event is taking place in a public space. You're pointing a camera in a given direction and recording. The presence or absence of something interesting in the direction your pointing the camera has no bearing on your right to do that.

The artist could revoke that and forbid further recording.

Not in a public space.

Can she also send take down notices to social media sites to erase the already recorded part of the performance?

When you ask if they could do that, are you asking whether they could do it and succeed in getting it taken down, or are you asking whether they're in their right to do it?
The former, yes, probably. The latter, I'm unsure.

Can the artist request that the audience wipes their memories?

Obviously not, but the right to make memories in one's brain exists everywhere. It's not a right granted specially by the performance.

What can the artist do, if another artist makes a cover of the already seen piece?

Well, that's a question unrelated to the live performance. Just because a piece was performed live, for free, in a public space, with unrestricted access to the performance, doesn't mean that the artist is giving up the right to charge royalties for making copies/covers of the piece. If Metallica played Blackened in a public square, it would have no effect on your right to distribute free copies of the album version of that song.

[Repeater]

What really baffles me about all this is that I've learned there's people out there who think meritocracies are a bad thing.

I note that when the word was coined, it wasn't meant as a good thing. It was meant as a bad thing.