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Comment by nocoiner | Hacker News Reader

In at least a couple places, the article says what Red Hat is doing is “technically legal” or “technically in compliance” with the GPL.

I don’t find it very useful or enlightening when people start talking about “intention” in this context. If you intend for some particular outcome to happen, you really need to make sure that it’s written into the license! That’s what licenses and contracts and every annoying legal-type thing that exists are for!

On a related topic: Taking a quick scan of GPLv2, this doesn’t even seem to grossly offend the principles or intent of the license - am I reading it wrong, or, when it comes to appropriately distributed software (i.e., bearing notice, license terms, copyright, disclaimer, etc.), it seems to say pretty clearly that source only need to be provided to recipients of the modified program? I guess there’s some ambiguity about what 2(b) could mean?

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>>I don’t find it very useful or enlightening when people start

Equally, I dont find it very useful or enlightening when people point out the obvious while ignoring intent completely.

While I agree with some of your premise, nothing is ever perfect, and the interpretation of legal agreements is why many lawyers make lots of money, and why we have 10's of thousands of people employed in the legal profession

So simply saying "will if you wanted X you should have written it down" is a simplistic take on a complex problem. If we could do that we would not have law suits debating the details of contract, nor would we have countless unintended consequences from various laws passed by the various legislative bodies

>Taking a quick scan of GPLv2, this doesn’t even seem to grossly offend the principles or intent of the license -

It does in fact offend the principles which si why GPLv3 was created, and AGPL and other versions of the license to counter some of the "holes" companies like RedHat exploit in GPLv2.

Linux however has always and likely always will resist moving to GPLv3

You're not reading it wrong. The popular understanding of the GPL vs. the actual text of the GPL are two extremely different things.

Red Hat is far from alone in this. If I'm not mistaken, there's a whole cottage industry of WordPress plugin and theme developers who use basically this model. The plugin or theme is GPL'ed because it depends on WordPress, which is GPLed. But they gate the software and require payment to get it. They may also have an agreement that sets out a limit on redistribution for access - if you buy the theme or plugin from them and then set about redistributing it, they're not going to take your money in the future.

I can't think of any good way to close the "loophole" here in a GPL-type license that doesn't essentially force a developer to distribute to anybody they've ever done business with, forever. Any language that would force Red Hat to keep its subscription with an "offending" customer would also tie their hands for cutting off access for other reasons -- because who wouldn't claim that the reason Red Hat cut the subscription was over distribution?

What's the loophole? This is working exactly as intended, no?

GPL is to grant the user of software freedoms. Free as in freedoms, not beer. It's origin was from the user of a printer driver being frustrated they couldn't debug and fix an issue.

The loophole is that as soon as you exercise your rights, you lose future access. So if you want access, you can't exercise your rights.

Except for how you literally can.

You have the right to do whatever you want with the software. You don't have the right to force someone else continue to work for you and provide you with updates.

I don’t understand why this isn’t blindingly obvious. A copyright holder releasing their software under an open license is a huge privilege given to their customer. It doesn’t matter what reading they are doing it - marketing, hoping for external contribution, goodwill, etc. - it is their right to choose a license. It is also their right to change their license at any time.

While I’ve not chosen RedHat for my own projects, I used it for nearly two decades at companies where it was already in place. Some of those had support contracts, others didn’t. Based on my experience, RedHat is one of the main reasons Windows didn’t completely take over backend systems. They offered a cohesive, supported server OS that could be run for less than the cost of Windows or Unix servers on nearly any hardware. I could enumerate the things I don’t like about RedHat Linux, but in an enterprise setting, the volumes of documentation, mature and complete set of repositories, and huge community essentially negate my own preferences.

Their new licensing may make them irrelevant going forward, but I’m thankful for all they’ve done overall… except for systemd, burn it with fire! ;-)

It’s not about forcing, it’s about someone threatening you with an unfavorable outcome if you exercise your rights. That is (as I said repeatedly) not against the letter of the GPL (IMO). But it’s a chilling effect on exercising your rights.

go with another distro then

red hat is about security and support

those customers will stay

i don't agree with it myself. i think 'go, debian!' but they have their niche, and that's ok. it's their bed. they're making it.

I use Arch and Debian, I never touched any red hat distro IIRC.

They are providing the source as required. However, a key part of the GPL is that RH's customers should also be able to redistribute the source to anyone else, and RH is preventing that through contract law.

They are, of course, always free to distribute the source to anyone else. RedHat cannot stop that. But if they do distribute the source to anyone else, RedHat is free to stop taking their money and not provide the software and source code to them in the future.

It's shitty, but I can't see any realistic way to close this loophole.

GPL says that you can't impose further restrictions on the people you distribute GPL software to. Everybody should receive the entire set of freedoms unfeterred.

Using contract law (or using blackmail, or using anything else) to restrict redistribution of the source appears to not be in compliance of GPL to me. I can't see how a judge might find otherwise.

The problem is, who has standing here? The Red Hat customer or the copyright holder?

How about we use a different analogy. Google, Facebook, Amazon, Microsoft - they all have patches to the linux kernel which they do not always open source. And nothing in the GPL compels them to open source them so long as they aren't distributed outside the company, and are only used on internal systems.

Let's say an employee with access to those internal kernels, who is under an employment contract and non-disclosure agreement, releases the kernel source code with those patches included. Would the GPL prevent that employee from being fired and/or sued for violation of NDA?

Nope.

>GPL says that you can't impose further restrictions on the people you distribute GPL software to.

That's just the thing. Red Hat does not impose any further restrictions on the software that has been distributed to you. You can continue using RHEL, in theory, even with an expired license. There is no "kill switch".

But Red Hat is not obligated to continue providing you with access to their services, including their software update repositories.

>>Would the GPL prevent that employee from being fired and/or sued for violation of NDA?

That is not even close to being an analogy. In that case the Code, copyright, was not transferred to the employee, They are not operating under the conditions of the GPL at all. As an employee I am not given a "license" to the code as I would be as a customer or licensee of the code.

As such violation of the NDA would have nothing to do with the GPL at all.

> In that case the Code, copyright, was not transferred to the employee, They are not operating under the conditions of the GPL at all.

In this scenario let's say that the patches are GPLv2 licensed and apply to a larger GPLv2 codebase, as opposed to something like a separate kernel module. So the code is, indeed, GPL, and both the built kernels and the source itself are unambiguously a derivative work of GPL code.

And this code is distributed to you as part of your job. It wasn't stolen, it was provided to you with specific terms of use, namely that it only be used within the company.

Is your argument that there can be no legal constraints beyond what "the GPL says" in this situation? That those constraints shouldn't apply, because they infringe your GPL-provided rights?

As the GPL FAQ says, distribution between employees of the same company may not even be considered "distribution" depending on the region. The analogy is stretching this too far.

Fine - so make them third party contractors instead of employees of the same company.

The end result is the same.

No, it's not. Even if they were employees of a different company that is a subcontractor, the jurisprudence is not clear at all.

This is basically the "museum argument" which is quite old. It's an entire different story if you do distribute the software to your subcontractors for their use.

it's not a restriction if they're never forced to agree to it

giving certain users advantages over others isn't a violation of the license

What customers have bought is a support contract, which includes distribution of software under the GPL.

What Red Hat is threatening to do is to stop allowing customers to renew the support contract, and stop allowing customers from buying a new support contract.

The GPL does not (outside of a couple of small details for how to get access to the source) require a software distributor to provide continuing services.

Otherwise you get into all sorts of strange cases, like Alice and Bob are friends working on a GPL project, Bob sends a copy to Eve, who collaborates with Bob. But Alice hates Eve, so stops working with Bob on the project.

The GPL does not prevent that sort of retaliation for redistributing software. If it does, where? Why should forcing continued collaboration be part of freedoms of the GPL?

Switching away from the analogy, where does the GPL say there's a difference if money is involved?

So while I strongly believe this violates the spirit, I disagree about this violating the letter. You are free to distribute, all that will happen is that you lost future access. Trust sounds like a full legal loophole.

Would the copyright holder (GPL'd software) have standing to sue for Tortious interference, being that the GPL is a contract between the copyright holder and end user?

RedHat cannot choose to stop doing business with someone because they belong to a protected class, so we have already set the standard that government can force someone to do business with someone else. We can consider 'being forced to follow the contract you agreed to' as an invalid reason to stop doing business. Sure, it'll take a bit more work to get out the kinks compared to the 2 minutes of effort I put into it, but it shows a realistic way to limit this loophole. As with any law, not everyone will follow it, but that is rarely used as a reason to dismiss a law.

Edit: Fixed typo on how the current law works.

> cannot choose to stop doing business with someone belonging to a protected class

Think for a moment. Race is a protected class. How does anyone stop doing business with anyone?

Redhat can absolutely stop doing business with someone in a protected class. They can stop doing business with anyone in any protected class.

What they can't do is stop doing business with someone because they belong to a protected class.

You would have to argue that support of the GPL was a religious belief to gain such protections.

That's not relevant to the point, since it's analogous to them choosing not to do business with someone because they redistributed the software. The motivation is not a point that's in question.

That was a typo on my part. I've corrected it.

>You would have to argue that support of the GPL was a religious belief to gain such protections.

Under the current law I don't think there is a path to allow this. I'm suggesting a new law. The reason for the new law would be to close a loophole which lets megacorporations skip having to follow contracts (or even laws, as there is a similar problem there).

> we have already set the standard that government can force someone to do business with someone else

You really don't want to go there. There's no reason to single out civil rights law when there are all sorts of other examples which are less contentious and less narrowly focused.

For example, common carriers provide a "service to the general public without discrimination" (quoting Wikipedia), where "discriminate" has a far broader meaning than a dozen or so protected classes of most civil rights laws.

Like, the phone company can't restrict people from having a conversation in ancient Egyptian, because they lack a compelling reason.

And common carrier law has existed for centuries.

But that's beside the point. Quoting https://www.ftc.gov/advice-guidance/competition-guidance/gui... :

] In general, a seller has the right to choose its business partners. A firm's refusal to deal with any other person or company is lawful so long as the refusal is not the product of an anticompetitive agreement with other firms or part of a predatory or exclusionary strategy to acquire or maintain a monopoly. This principle was laid out by the Supreme Court more than 85 years ago

The example is almost directly relevant:

] Q: I own a small clothing store and the maker of a popular line of clothing recently dropped me as an outlet. I'm sure it's because my competitors complained that I sell below the suggested retail price. The explanation was the manufacturer's policy: its products should not be sold below the suggested retail price, and dealers that do not comply are subject to termination. Is it legal for the manufacturer to cut me off?

] A: Yes. ...

You wrote "being forced to follow the contract you agreed to".

That makes it sound like you know little about B2B contracts.

The law right now says forces you "to follow the contract you agreed to." You can be taken to civil court if you do not. So you proposal doesn't change things.

Further, literally every contract I've signed has a termination policy describing how either side, at their own discretion, can terminate the contract.

All Red Hat needs to do is terminate the existing contract and offer a new one. Those that don't want the new contract no longer have a contract. Totally legit.

>For example, common carriers provide a "service to the general public without discrimination" (quoting Wikipedia), where "discriminate" has a far broader meaning than a dozen or so protected classes of most civil rights laws.

Why would this be a better example, as this would mean having to argue a similarity for all businesses to be treated as common carriers, or else the new law would be limited only to some businesses which isn't the intent.

The example I gave shows that, with justifiable reasons, the government can limit the ability of any business to refuse service. Now it becomes a question of if working around contracts is a justifiable reason or not.

>The law right now says forces you "to follow the contract you agreed to."

For certain definitions of 'follow'.

>All Red Hat needs to do is terminate the existing contract and offer a new one. Those that don't want the new contract no longer have a contract. Totally legit.

And I'm suggesting a change in the law which expands the reasoning that such decision might be deemed to not be totally legit, just like they can't do so for certain reasons already as we have decided the social good of banning those reasons is worth the government having such power.

> Why would this be a better example

Because it doesn't specifically deal with members of a protected class, and follow-on discussion about which classes should have protection, nor real-world issues like how private clubs and religious organizations can legally discriminate against those protected classes, or how theater and movie productions can require an actor to be of a certain race (a Bona Fide Occupational Qualification).

> the government can limit the ability of any business to refuse service

It's very well understood that the government has that ability. The government can also force a business to allow someone in who is (or is not) not wearing an N95 mask, and also force a business to allow someone in who is exercising open carry.

There are many such examples.

Given that, why single out civil rights law and its associated sets of who may be discriminated against (discrimination against Jets fans is usually not illegal) and explicitly allowing discrimination, along with a dedicated federal agency (the EEOC) to interpret and enforce the law, along with equivalents at the state level?

Is it because you think your proposed changes requires that level of enforcement bureaucracy, and can't be handled by the current criminal or civil code?

> For certain definitions of 'follow'.

The legal definition is all that matters. Give a relevant counter-example.

> I'm suggesting a change in the law which expands the reasoning that such decision might be deemed to not be totally legit

And I pointed you to a Supreme Court interpretation which says that law will be found unconstitutional. United States v. Colgate & Co., 250 U.S. 300 (1919). https://supreme.justia.com/cases/federal/us/250/300/

Your law, should it somehow pass, would be knocked down by the courts. You need a constitutional amendment to justify this level of restraint of free trade.

Civil rights law says that restraint of free trade is possible because there is a tension between the exercise of free trade and the Equal Protection Clause of the 14th amendment, and Congress has the power to find that balance.

Requiring customers to open carry, or to wear (or not wear) a mask are also based in interpretations of constitutionally allowed powers.

Your proposal does not give any similar justification for restraining free trade.

> RedHat cannot choose to stop doing business with someone belonging to a protected class

RedHat cannot choose to stop doing business with someone because they belong to a protected class

Everyone belongs to a protected class.

I think it is exactly as intended. As a developer of an open source project, you are not required to give your source code and _any other derivative of that code_ to _all users_. You are only required to give _each_ user the source code for what has been distributed to them.

Any user is free to turn around and _redistribute_ or modify anything that has already been distributed to them. The user is not required to distribute modified derivative source back to the original developer, unless the user has distributed a running copy of the derivative.

The license says nothing about not being able to _charge_ users for the original executable software. It says nothing about guaranteeing delivery of executable derivatives made by the original author in perpetuity.

In this way, the incentives are aligned to:

1. Produce useful running software that is of the same scale of usefulness and complexity of things such as Chrome and Windows, because these complex software packages have enormous value and cost time and money to make and should be profitable for the maker. 2. Also produce useful running software that the user is allowed to fix or build new, useful derivatives upon through receiving the source. For which they can then charge. Doing so, the original author may decide to not deliver any further derivative executables to the user, meaning that the user is no longer entitled to source code. The user now bears the maintenance burden for their entire product -- which, when distributed, must come with a copy of the source.

I think this allows for users to generate their own commercial value streams from the originator while protecting the originator's ability to make money, and I think it is a good thing. Open source work need not be volunteer work. You want updates, you comply with the terms of the license. You want to make a derivative work for your own profit and redistribute it, fine, but you'll have to renegotiate the price for the originator's updates to get the updates and the corresponding source updates.

Sounds like an excellent way for open-source devs to actually get paid for maintenance work, IMHO. It need not be free as in beer to provide value, and freedom, to users.

The key is not the source code RHEL ships, the key is the list of names of patches RHEL takes from Centos Stream/Fedora to get to a stable LTE environment.

The code is all known, the patches are all known, but which patchsets did get into it is their business model.

It's because when writing a contract, you can't consider all of the corner cases like you might be able to with code. The intention is that to be sharing stuff, where "sharing" and "stuff" is, unfortunately, poorly defined. The feeling is that Red Hat is going against the spirit of the GPLv2 because they're penalizing people for sharing.

Yes, the legal system involves a bunch of minutiae so that a good contract would define "sharing" and "stuff" explicitly but for people that don't want to be lawyers, it is an "annoying legal-type thing" that they really don't want to deal with. It forms opinions for people about the law when the law clashes with the intention of it, so it's useful for others.

The intention is explicitly and obviously that additional restrictions not be placed on these downstream users. The fact that you are only required to transmit to the entire universe is merely limiting the burden placed upon you not delineation of the limit of who can access the source.

If you can't explicitly tell foo they can't do bar but you ensure for practical purposes that they can't use the the expensive thing they paid for and must incur potentially millions in migration costs you are at least in violation of the spirit of the license.

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