From marc_schwartz at me.com  Fri Apr 24 14:07:17 2009
From: marc_schwartz at me.com (Marc Schwartz)
Date: Fri, 24 Apr 2009 07:07:17 -0500
Subject: [Rd] Closed-source non-free ParallelR ?
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On Apr 23, 2009, at 6:21 PM, Stavros Macrakis wrote:

> I said:
>>> ...The GPL FAQs are the FSF's interpretation.  The R Foundation is  
>>> not
>>> obliged to have the same interpretation, and of course the FSF  
>>> cannot
>>> enforce licenses given by the R Foundation....
>
> On Thu, Apr 23, 2009 at 5:34 PM, Marc Schwartz  
> <marc_schwartz at me.com> wrote:
>> Underlying all of your comments seems to be a presumption that the R
>> Foundation can disentangle themselves from the FSF vis-a-vis the GPL.
>> Keep in mind that it is the FSF that is the copyright holder of the  
>> GPL.
>
> Yes. The GPL itself is copyrighted.
>
>> The R Foundation may be the copyright holder to R, but they are  
>> distributing
>> it under a license which they did not write.
>
> Yes. They chose to use a certain license.
>
>> Thus, I cannot envision any reasonable circumstances under which  
>> the R
>> Foundation would place themselves in a position of legal risk in  
>> deviating
>> from the interpretations of the GPL by the FSF. It would be insane  
>> legally
>> to do so.
>
> I don't follow you here.  If the R Foundation chose not to enforce a
> provision of the license in the way that the FSF thinks it ought to be
> enforced, what exactly could the FSF do about it?  As far as I can
> tell, the GPL does not make the FSF a party in licenses executed under
> the GPL.
>
>> The key issue is the lack of case law relative to the GPL and that  
>> leaves
>> room for interpretation. One MUST therefore give significant weight  
>> to the
>> interpretations of the FSF as it will likely be the FSF that will be
>> involved in any legal disputes over the GPL and its application.  
>> You would
>> want them on your side, not be fighting them.
>
> You are discussing the courts' interpretation of the GPL, which is not
> what I'm questioning here.
>
> Let me give an analogy.  Suppose I buy a piece of property using a
> standard form contract written by (and copyright by) my local real
> estate agents' association (a common practice).  I then discover that
> the seller had done something which according to the real estate
> agents' association's interpretation of the contract entitled me to
> $10000 damages, but that seems unreasonable to me.  The particular
> clause has never been litigated.  You seem to be claiming that (a) the
> real estate agents' association's interpretation of the contract has
> more weight than my interpretation of it and (b) that they can somehow
> oblige me to sue for the $10000 damages.  Now let's say someone else
> goes to court and (with the legal support of the real estate agents'
> association) prevails on that clause.  Now it is clear that the real
> estate agents' association's interpretation can be enforced.  But I
> still don't think it's reasonable to enforce it, and still don't
> choose to sue.  You are claiming that they somehow can force me to?
> Of course, it would be different if a real estate agent were also
> party to the contract, and would be owed 20% of the $10000.  But that
> is not the case.
>
>> Unfortunately, we have no such archive of case law yet of the GPL.  
>> Thus at
>> least from a legally enforceable perspective, all is grey and the  
>> FSF has to
>> be the presumptive leader here.
>
> Whether the FSF's interpretation is legally enforceable or not, it is
> the copyright holder who choses whether to sue, not the FSF.

We are getting into a lot of hypotheticals here which is going to be a  
problem due to the lack of clear precedence. The other problem is that  
we are considering hypotheticals in a vacuum and not in the context of  
the current political environment vis-a-vis the GPL and FOSS.

Under any circumstances, it is up to the R Foundation to pursue or not  
to pursue legal action against any party that it feels has violated  
it's copyright and the associated licensing.

If it chooses to not pursue that recourse however, it may be setting a  
precedent for future litigation, placing future actions and decisions  
at risk. A court may decide that prior inaction in a certain situation  
is evidence that is relevant to a future case. "You failed to enforce  
your legal rights previously in a 'similar' situation, thus you lose  
that right now." Not only that, but such inaction could then be used  
to define the parameters around other legal decisions involving the  
GPL and how it may be interpreted. That is always a risk that one has  
to consider and should be the basis of ensuring that all such  
considerations have a wide angle lens.

The FSF would not be in a position to compel the R Foundation to  
pursue any legal action. However, the political reality at this early  
stage of the game is that the FSF may very well have a legal interest  
in a particular situation if it feels that any legal action or lack of  
legal action by the R Foundation were to be inconsistent with the  
FSF's own strategic positions and goals. That would require a  
discussion between the R Foundation and the FSF and they would have to  
reconcile those differences. Whether the FSF might make the decision  
to provide legal and financial resources to the R Foundation to assist  
in such a venture or even pursue independent legal action would be up  
to them.

My point in raising the issues above, is principally that if the R  
Foundation were to, as you and Ian seem to be asking for, come out  
with some type of non-binding guidance document relative to R and the  
GPL, the technical and legal basis of any such guidance would need to  
be consistent with the interpretations offered by the FSF. The  
guidance could not materially deviate from the information available  
from the FSF or the R Foundation would only serve to confuse the  
situation further or worse, put itself at legal risk. In addition, in  
the presence or absence of offering specific legal guidance, it is  
still up to the third party to seek definitive legal guidance before  
proceeding.

There are specific FSF FAQs that cover particular situations and there  
are others that clearly leave the door open to future legal  
precedents. The FAQ on the "Aggregation" of both GPL and Proprietary  
software is one example providing both:

   http://www.gnu.org/licenses/gpl-faq.html#MereAggregation

How does one decide if the programs are separate and therefore can be  
bundled under differing licenses, or they are not and the viral part  
of the GPL kicks in? The FAQ covers some reasonable aspects of that  
but clearly leaves the door open for future litigation. It is a FAQ  
however that is highly relevant to the topic that started this whole  
discussion, which is the bundling of closed source proprietary  
software along with R.

Is the R Foundation in a position to offer something quite different  
or more definitive than that? I would highly doubt it.

This is why I think the greater and appropriate burden is on the third  
party that wishes to construct AND DISTRIBUTE any application that is  
in some fashion dependent upon R to function. It is up to them to seek  
appropriate legal guidance on the basis of their specific  
circumstances. It is the third party whose actions may result in a  
successful venture (financially or otherwise) or leave itself open in  
a future legal battle.

I do not speak for or on behalf of the R Foundation, but can only  
offer what I feel to be reasonable points for discussion. I have been  
involved in several startup companies over the past 20+ years  
including my own, also involving joint ventures and intellectual  
property discussions. The result of which is spending a lot of time  
with lawyers in the drafting of contracts and similar legal documents.  
I am not a lawyer, do not play one on TV and I did not sleep at a  
Holiday Inn Express last night.  However, their manner of thinking has  
rubbed off on me (for better or worse). The result of which is a  
certain level of caution in these matters and to consider in the  
broadest terms, not the narrowest, one's actions and decisions. You  
start with a broad perspective and then narrow that perspective to  
your specific circumstances as the law and legal precedent provide for  
those parameters. In the absence of such, your legal counsel engage in  
their best efforts to interpret the available data. In these  
situations, there is a clear risk/benefit process in place and any  
third party that moves forward with such activities must recognize  
that in the absence of clear decisions, they are taking a risk and as  
a consequence, may face future litigation over their decisions and  
actions.
In any business venture, it is not the marriage that is the typical  
source of the problems, but the failure to anticipate and plan for the  
divorce.

Regards,

Marc Schwartz



[Rd] Closed-source non-free ParallelR ?
Marc Schwartz