[Asterisk-Users] SysMaster and GPL Violation

[Joe Greco]

> On Sat, 2004-11-13 at 06:03, Joe Greco wrote:
> [SNIP]
> > However, the specific item that stopped me was the second paragraph of
> > the short disclaimer, because our lawyers would never allow signing of
> > a blanket statement such as "and will do nothing to undermine it in the 
> > future".  (As it was, the remainder of that paragraph would have had to
> > have been sent off to the lawyers, as I don't really have a grasp on how
> > much legal territory that might cover).
> > 
> > That sent me off to look at the long disclaimer, at which point it 
> > eventually became apparent what you were actually trying to accomplish.
> [SNIP]
> 
> So you have read both disclaimers. Yet you state:
> 
> [SNIP]
> > Digium is making people sign a draconian agreement that gives up rights
> > to patches and features that are integrated into Asterisk, by signing
> > rights over to Digium.
> [SNIP]
> 
> Which is definatly the wrong way to see it, because the first disclaimer
> says, that you disclaim all rights, but not that you pass them over to
> Digium. In fact you make your source public domain.

You didn't read the second paragraph, did you.

If making changes public domain was all that would be required, there would
be no need for that second paragraph.  Or, for that matter, for the first.
Merely placing "This source code is in the public domain." within the code
in question is sufficient for the purpose, though it may be easier for
Digium to work that out out-of-band, in which case a first-paragraph-only
agreement would make sense.

Interestingly enough, placing something in the public domain is potentially
riskier than providing it under either the BSD or GPL licenses, because
both licenses provide a strong no-warranty clause.

There are a number of competing theories on whether or not the author of a
public domain bit of code could be liable, with varying amounts of case law,
as I understand it:

1) One theory is that you may place code in the public domain, with explicit
   no-warranty disclaimers (this seems sensible to me).

2) Another theory says that such disclaimers are not legally binding, and
   that you would need to embed it within a license, copyright agreement, 
   contract, or something like that to prohibit use of the code in the 
   event that the recipient did not agree.

3) Another theory says that liability is only a concern where money has
   changed hands.

There are apparently some finer-grained distinctions in there somewhere.

I don't know if I'd want to submit major changes to a project and open
myself up to the possibility of having to legally test whether or not a
no-warranty clause on a public domain code contribution could be enforced.

> The second one does neither state, that you sign your copyrights over to
> Digium. It gives Digium a non-exclusive, non-revocable right to use your
> changes. That's it.

I'd check with our IP lawyer if I really cared.  However, it looks a bit
more sweeping than that.  Even though I'm not a lawyer, I can disprove your
statement:  if I sign this agreement *and don't even contribute anything*,
but were to purchase ownership of a patent covering something that
conflicts with Asterisk, this agreement grants Digium rights that you 
haven't acknowledged.

See, that's the ugly thing about legal documents.  There are endless things
to consider.  We can of course agree that it ought not work that way, but
that's just pie-in-the-sky.

> > Now, that's all well and fine, you obviously /can/ do it, but what most
> > disturbs me is that people might sign the short form agreement without
> > understanding exactly what it is that they're agreeing to.
> > 
> > If someone believes that they are contributing software to a GPL'd
> > software project, and does not realize that the nature of your disclaimer
> > allows Digium to release their changes under a non-GPL'd license, then
> > that is breaking with the spirit of the GPL.  
> 
> It has never been a hidden fact, that Digium runs Asterisk under a Dual
> License. Digiums Website (http://www.digium.com -> Software Products)
> states: 
> ......
> Digium™ specializes in the production of Open Source telecommunications
> software to accompany our hardware offerings. Most Digium software is
> licensed under GNU GPL, but may also be licensed commercially from
> Digium.
> 
> And then a listing of software, including Asterisk.
> ......
> The README states:
> * LICENSING
>   Asterisk is distributed under GNU General Public License.  The GPL
> also must apply to all loadable modules as well, except as defined
> below.
> 
>   Digium, Inc. (formerly Linux Support Services) retains copyright to
> all of the core Asterisk system, and therefore can grant, at its sole
> discretion, the ability for companies, individuals, or organizations to
> create proprietary or Open Source (but non-GPL'd) modules which may be
> dynamically linked at runtime with the portions of Asterisk which fall
> under our copyright umbrella, or are distributed under more flexible
> licenses than GPL.  
> ......
> 
> Which contributor should not be aware of the fact, that Digium has the 
> right to relicense his changes ? 

The one who's looked at the Asterisk web site, has gone to the bugs link,
and is then confronted by the short form disclaimer, and doesn't really
know or care about Digium, or that there was some requirement that s/he
become intimately familiar with some "evil company" (and be aware that some
GPL advocates view companies thusly) and all of the above.

Or, to turn this around:  What harm would there be in outlining this 
explicitly within the agreement itself?

> > Yet no matter how much I don't care for the GPL, I find myself believing
> > contributors who don't fully understand the disclaimer merely to be naive,
> > but Digium looking a bit unscrupulous in this regard.
> 
> Only if they haven't read the essential Documentation (Read README) and
> the disclaimer before they sign it.

I read the essential Documentation.  A year ago.  I've long since forgotten
most of it, as would most people without a photographic memory.

> Where i come back to:
> [SNIP]
> > Digium is making people sign a draconian agreement that gives up rights
> > to patches and features that are integrated into Asterisk, by signing
> > rights over to Digium.
> [SNIP]
> 
> How can you come up with such a claim, that has no base whatsoever ?

All right, I concede that the rights aren't being signed over to Digium.
That wasn't really the point, and was an error on my part.

Please delete everything after that comma, which edits it into a claim
that does have a base.

What rights, you ask?  Why, one comes immediately to mind:  the right to
distribute a change exclusively under the GPL, in the contributor's name.
This is commonly done, and is functionally what most contributors to a
free software project would expect to happen with contributed changes.

... JG
-- 
Joe Greco - sol.net Network Services - Milwaukee, WI - http://www.sol.net
"We call it the 'one bite at the apple' rule. Give me one chance [and] then I
won't contact you again." - Direct Marketing Ass'n position on e-mail spam(CNN)
With 24 million small businesses in the US alone, that's way too many apples.