GnuPG 1.0.4-1 + IDEA for Windows
Michael H. Warfield
Mon, 25 Dec 2000 01:30:36 -0500
Followup, after I reread the GPL yet AGAIN...
On Sun, Dec 24, 2000 at 05:16:21PM -0500, Michael H. Warfield wrote:
> The patents clause of the GPL is invalid simply because it doesn't
> address the issue of jurisdiction. With that clause in place, we either
> have software which is GPL in some countries and not in either, or we
> say that any patent anywhere applies which places the GPL hostage to
> any past, present or future patent scheme in any country in the world,
> or we say that one countrie's jurisdiction applies to the entire world.
> (The US applying to EC, yeah right... They'll be singing Jingle Bells
> in hades.)
Ok... I blew it. The GPL has specific provisions for distribution
in the case of patents enforced in certain geographical areas.
] 8. If the distribution and/or use of the Program is restricted in
] certain countries either by patents or by copyrighted interfaces, the
] original copyright holder who places the Program under this License
] may add an explicit geographical distribution limitation excluding
] those countries, so that distribution is permitted only in or among
] countries not thus excluded. In such case, this License incorporates
] the limitation as if written in the body of this License.
Ok... That sounds like a way out of the box, doesn't it. Add
a message stating the geographical distribution. Of course, the section
says "may add". That's interesting in that we now have a dilema. If
the GPL prohibits any and all patented technology, then this passage
is simply gibberish. You could never HAVE any such qualifying software,
if the very thing itself was prohibited. If it is NOT truely prohibited,
as section 8 implies, then the original copyright holder is only obligated
under a "may" and not even a "should" much less a "must". To use IETF
delineations of nominclature, "must" implies something that is required,
while "should" is something recommended and "may" is something permitted.
So section 8 of the GPL as it is included with GnuPG states that if a
program (implied to be under the GPL or why would we be discussing this)
is restricted by patents (implying that GPL software might be restricted
by patents) then the author is permitted (may) to add a restriction on
It would appear that sections 7 and 8 are in direct conflict
with each other. How can you even have section 8 if an allegation
of patent infringement means that you must refrain entirely from
distribution. Looks like we have an RMS paradox here.
It's pretty clear that if patents were excluded from GPL software,
section 8 would be superfluous. If section 8 is NOT superfluous, then
patents are permitted in GPL software (even patents without universally
free access as described elsewhere) and if the authors of the GPL had
meant to REQUIRE an author to restrict distribution, they would have
used other verbage in section 8. Section 8 exists and is worded "may".
BTW... We now have a problem. Since it has been insisted that
this can not be distributed because it contains the Idea algorithm and
that algorithm is patented, there is something else in GnuPG which is
patented. Hyperlinks. Yes folks, in case you have been living under
a rock recently, British Telecom not only claims to hold a patent on
Hyperlinking technology in general but they are also suing Prodigy
for infringing on that patent in the US. With any decent luck (and a
clueful judge) this will be thrown out for the rediculous non-sense that
it is. ITMT, however, GnuPG contains hyperlinks in its README files and
in the various html files and even in a few .c sources. Till it is thrown
out in court, we could be held to be infringing. Even the extreme
rediculous examples that people dream up can't hold a candle to reality. :-(
Under section 7, we now have an allegation of infringement of
the BT Hyperlink patent. Now we have a problem, even if all of us
AGREE that the patent is rediculous, since the GPL says explicitly, "or
allegation of patent infringement." You don't even have to be proven
to be infringing and it says nothing about the legitimacy or sanity
of the patent itself. It just says "or allegation". Under RMS writing,
we are guilty until proven innocent.
That's exactly what RMS is point out in this section of the GPL:
] Finally, any free program is threatened constantly by software
] patents. We wish to avoid the danger that redistributors of a free
] program will individually obtain patent licenses, in effect making the
] program proprietary. To prevent this, we have made it clear that any
] patent must be licensed for everyone's free use or not licensed at all.
Well... According to BT, hyperlinking is not free to use without
royalties (and they are hitting up several other ISP's for royalities
as well). They constitute some small subset of "everyone".
> > you want in it, and distribute it?
> He has meet the letter of the GPL as applied in the EC. If it
> doesn't apply in the US, fine. Distribute it from one of the .nl crypto
> sites. Replay changed names and is now what, zedz.net? Upload it to
> zedz.net and be done with it! What are you going to do then? It meets
> the full letter of the GPL. Idea is NOT patented in that jurisdiction.
Declare the distribution per the GPL and distribute it with that
statement. Question becomes, what consitutes an explicit geographical
distribution limitation? Obviously, a list of countries would qualify.
Would a statement that "can be distributed with no limitations in any
country where Idea is not patented" constitute an explicit geographical
limitation? In most cases, it would. It states a testable definitive
condition underwhich an explicit determination can be made. Works for me.
> > KR> Why can't we provide TWO versions and let the users decide
> > KR> which best meets there needs?
> > Well, at the very least, you're requiring some expensive lawyer time
> > to get you to do something that you know you're going to have to do
> > eventually. What good does that do?
Nope... Take the easy way out of the box. State the distribution
and let the users sort it out, just like they did with the original pgp
and the US export restrictions. Free for distribution in Europe and other
countries not encumbered by software patents. Right there in the GPL.
My 0.02 euro.
Michael H. Warfield | (770) 985-6132 | mhw@WittsEnd.com
(The Mad Wizard) | (678) 463-0932 | http://www.wittsend.com/mhw/
NIC whois: MHW9 | An optimist believes we live in the best of all
PGP Key: 0xDF1DD471 | possible worlds. A pessimist is sure of it!
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