[linux-audio-user] Just look at what you have done!

[Rob]

On Thu August 24 2006 15:53, Lee Revell wrote:
> Yes, it is open source (the source is avaliable - QED).  It's
> not GPL or free software.

1. Linuxsampler is not "open source" any more than Microsoft's 
"shared source" initiative releases "open source" software.  The 
term "open source" is a trademark of the Open Source Initiative, 
and as regards software licenses, it may only be used to refer 
to licenses conforming to the Open Source Definition created by 
OSI.  Linuxsampler doesn't conform, because of section 6 in the 
OSD:

"The license must not restrict anyone from making use of the 
program in a specific field of endeavor. For example, it may not 
restrict the program from being used in a business, or from 
being used for genetic research."

So if they are calling themselves open source (note: I don't 
think they are) then they would be violating the trademark of 
Eric Raymond and his buddies.  On the other hand, I have no idea 
whether the OSI has gone after violators of its trademark the 
way the FSF has gone after GPL violations on software to which 
it holds the copyright.  Trademarks can be diluted, as you just 
did ever-so-slightly with your assertion above.

2. The GNU GPL itself, meaning the actual text of the license, is 
not in the public domain.  While Linuxsampler is probably not 
itself violating the GPL (assuming they either wrote all their 
own code or got all contributors to sign off on the license 
change.... if it's your code, even RMS will say you can license 
it however you want), they are, to all appearances, violating 
the FSF's copyright on the text of the GPL itself.  

I just grabbed a copy of their source and the COPYING file is an 
untouched copy of the GPL, which is fine, but then in their 
README they just have an additional sentence saying it may not 
be used commercially.  If the README can't be considered part of 
the license, then Linuxsampler is being distributed under the 
GPL no matter what their intent.  (See also: SCO.)

On the other hand, if the README *can* be considered part of the 
GPL, it sure looks like they're violating the FSF's terms of use 
on the GPL (as opposed to the terms of the GPL):

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

"You can use the GPL terms (possibly modified) in another license 
provided that you call your license by another name and do not 
include the GPL preamble, and provided you modify the 
instructions-for-use at the end enough to make it clearly 
different in wording and not mention GNU (though the actual 
procedure you describe may be similar)."

Note that the above isn't any sort of official license to the 
GPL: officially, the only way to use the GPL as your program's 
license is verbatim without any additional restrictions, though 
you can make exceptions that give the licensees additional 
freedoms.  I read the above FAQ entry as a "we won't sue you 
if....." sort of thing.

I know this has been discussed on the list previously, but I 
searched the archive for mentions of these two specific issues 
and there were none.  I have an actual lawyer for when my 
understanding of licenses like this will impact my business.  I 
don't care about Linuxsampler enough to spend the money and ask 
him about this, especially when someone's bound to bump into 
Larry Lessig or someone someday and ask him for free, but I feel 
pretty confident about what I've said.  

Confident enough that if I were working on a Linux-based hardware 
DAW to sell commercially, I would probably take my chances and 
just use Linuxsampler.  I'd be more afraid of the mysterious 
gag-order-inducing entity that started all of this than of the 
Linuxsampler guys.  If it was, as some people have supposed, a 
patent infringement situation, Linuxsampler can't be 
redistributed under the GPL by anyone knowing about the patent 
in the first place, regardless of any attempts to add additional 
restrictions.

Rob