It's shitty, but I can't see any realistic way to close this loophole.
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?
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.
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 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?
The end result is the same.
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.
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?
giving certain users advantages over others isn't a violation of the license
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.
Edit: Fixed typo on how the current law works.
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.
>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).
Think for a moment. Race is a protected class. How does anyone stop doing business with anyone?
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.
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.
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 because they belong to a protected class
Everyone belongs to a protected class.
The code is all known, the patches are all known, but which patchsets did get into it is their business model.