David McNett

Date: Wed, 11 Jun 2003 13:00:01 -0500
From: David McNett 
To: Free Software Foundation 
Subject: Confusion over Red Hat additions to GPL covered code

In an effort to perform compatibility testing on a variety of GNU/Linux
based systems I have purchased a copy of Red Hat's Advanced Server 
version of GNU/Linux.  Along with this software I have encountered
an End User License Agreement which would appear to be at odds with the
also included GNU General Public License.

I'd like the benefit of the FSF's opinion on this matter, as I believe
these two documents to be conflicting and it is unclear to me which
constraints should take precedence.  I'll assume that you guys are
familiar with the txt of the GPL, so I won't bother to quote it in this
email.  :)  However, here are excerpts of the EULA[1] which is provided
with my copy of Red Hat Advanced Server.

"Red Hat Linux is a modular operating system made up of hundreds of
 individual software components, each of which was individually written
 and copyrighted. Each component has its own applicable EULA. The EULAs
 are located in the source code provided with the product. Throughout this
 document the components are referred to, individually and collectively,
 as the "Linux Programs." Most of the Linux Programs are licensed pursuant
 to a Linux EULA that permits you to copy, modify, and redistribute the
 software, in both source code and binary code forms."

"Red Hat Linux itself is a collective work under U.S. Copyright Law.
 Red Hat grants you a license in this collective work pursuant to the
 GNU General Public License."

From this it appears safe to assume that they are releasing their own
content as GPL-covered code and are not implying and modification to
the underlying licensing of the component software.  So far, so good...

However, the Red Hat Linux Advanced Server and Services Agreement[2]
is not in keeping with the EULA.  Specifically, it draws no distinction
between an installed copy of the GNU/Linux software and an instance
of the software which is participating in their paid services program.
In fact, the document appears to specifically deny the existince of such
a distinction, effectively binding me into purchasing their professional
services simply as an inherent byproduct of installing GNU/Linux.

Along these lines, simply installing GNU/Linux binds me to the following
"extensions" to the GPL:

"If Customer wishes to increase the number of Installed Servers, then
 Customer will purchase from Red Hat additional Services for each
 additional Installed Server."

"During the term of this Agreement and for one (1) year thereafter,
 Customer expressly grants to Red Hat the right to audit Customer's
 facilities and records from time to time in order to verify
 Customer's compliance with the terms and conditions of this Agreement"

The gross deviation from the spirit of the GPL notwithstanding, I do
not comrehend how such contractual burdens are not in conflict with
with item 4 and especially item 6 of the GPL.  I'm doubly confused 

when faced with the claim in the EULA that Red Hat is releasing all of
its own code as GPL'd code, so the restrictions in the agreement
can't even reasonably be construed as covering some non-specified
product of Red Hat which they have licensed under a non-Free license.

In seeking non-contractual but authoritative supplemental information
I also discovered a Red Hat published help site[3] which contained
the reaffirming text:

"This means that, like the Red Hat Linux products before it, the sources
 for the software comprising Advanced Server will be available to anyone
 wanting a copy. And -- as always -- any code written by Red Hat is
 GPL'ed, with the sources being freely available."

This reinforces my belief that Red Hat is claiming no license other than
the GPL for included code which they have created.

Can you please provide your perspective on which of the conflicting
documents takes precedence or if I am mistaken on the inherent conflict
between these two differing sets of obligations.

Thank you in advance.

-David McNett
 nugget@distributed.net
 +1-512-350-5038

[1] http://www.redhat.com/licenses/advancedservereula.html
[2] http://www.redhat.com/licenses/rhlas_us.html
[3] http://www.redhat.com/advice/ask_shadowman_may02.html




Subject: Re: [gnu.org #43886] Confusion over Red Hat additions to GPL covered code
From: "FSF General Contact Address via RT" 
To: nugget@distributed.net
Date: Thu, 12 Jun 2003 11:24:31 -0400

On Wed, Jun 11, 2003 at 02:01:57PM -0400, David McNett via RT wrote:
> In an effort to perform compatibility testing on a variety of GNU/Linux
> based systems I have purchased a copy of Red Hat's Advanced Server 
> version of GNU/Linux.  Along with this software I have encountered
> an End User License Agreement which would appear to be at odds with the
> also included GNU General Public License.
> 
> I'd like the benefit of the FSF's opinion on this matter, as I believe
> these two documents to be conflicting and it is unclear to me which
> constraints should take precedence.  I'll assume that you guys are
> familiar with the txt of the GPL, so I won't bother to quote it in this
> email.  :)  However, here are excerpts of the EULA[1] which is provided
> with my copy of Red Hat Advanced Server.

Dear David,

Red Hat is experimenting with virtually all business models that are
possible under the GNU General Public License.  We realize that some of
these models are skating the line of what is permitted by the terms of the
license.  We are consistently working with Red Hat to make sure they do not
violate the GNU GPL in any of their programs and distributions -- if they
do, we will treat them no differently than we do any other violator.  We
always diplomatically negotiate compliance with our licenses when possible.

Separately, we continue to urge Red Hat to stop shipping proprietary
software with their distributions.  While mere aggregation of proprietary
software on the same medium as Free Software is not a GPL violation, we
believe that it is bad for the Free Software community.

If you have further questions or concerns, please don't hesitate to contact
me.

Best regards,

-- 
Brett Smith, Free Software Foundation
Become a card-carrying member of FSF:
     http://member.fsf.org/
Help support our work for FSF and the GNU project:
     http://svcs.affero.net/rm.php?r=fsfinfo




Date: Thu, 12 Jun 2003 12:13:21 -0500
From: David McNett 
To: FSF General Contact Address via RT 
Subject: Re: [gnu.org #43886] Confusion over Red Hat additions to GPL covered code

On 12-Jun-2003, FSF General Contact Address via RT wrote:
> Red Hat is experimenting with virtually all business models that are
> possible under the GNU General Public License.  We realize that some of
> these models are skating the line of what is permitted by the terms of the
> license.  We are consistently working with Red Hat to make sure they do not
> violate the GNU GPL in any of their programs and distributions -- if they
> do, we will treat them no differently than we do any other violator.  We
> always diplomatically negotiate compliance with our licenses when possible.
> 
> Separately, we continue to urge Red Hat to stop shipping proprietary
> software with their distributions.  While mere aggregation of proprietary
> software on the same medium as Free Software is not a GPL violation, we
> believe that it is bad for the Free Software community.
> 
> If you have further questions or concerns, please don't hesitate to contact
> me.
>
> Brett Smith, Free Software Foundation

Thank you for the rapid response, Brett.

The specific part of RedHat's license which is confusing me is the mandate
that requires me to purchase a support contract for each installation
of the GPL'd software that I choose to perform.  This seems to be a clear
restriction on the use of the software, not different in any way from
(as an example) requiring me to donate money to a particular charity for
each copy of the software I use.  I don't understand how this is not
at odds with my rights to use the GPL'd software as granted by the GPL.

The Red Hat EULA tells me, in fact, that I must not use this software
if I do not agree to subscribe to their services.

I have great faith and confidence in the FSFs motivation and ability to
monitor other organization's compliance with the GNU GPL.  Moreover, my
inquiry is sincere -- I really do not know how to reconcile the rights
I am granted by the GPL with the conditions imposed by the Red Hat EULA.

Am I in fact allowed to install this software on multiple machines and use
it as I see fit when I have only purchased a single copy?  The two
licenses appear to disagree on this point.  If the GPL does not prevent
Red Hat from imposing this restriction on my use, then what other type
of restriction is not blocked by the GNU GPL?

Could I be required to donate money to a specific political party for
each copy of GNU/Linux I installed?

Could I be required to purchase a license for Microsoft Windows for
each copy of GNU/Linux I installed?  How does this differ from requiring
me to purchase a support agreement for each copy of GNU/Linux I install?

While I have no desire to prevent Red Hat from earning money by providing
service and support, I cannot fathom how they can coerce me into 
purchasing that support simply for using software which is licensed under
the GNU GPL.

-- 
 ________________________________________________________________________
|David McNett          |To ensure privacy and data integrity this message|
|nugget@distributed.net|has been encrypted by using dual rounds of ROT-13|
|Austin, TX USA        |finger nugget@distributed.net for my news and pgp|





Subject: Re: [gnu.org #43886] Confusion over Red Hat additions to GPL covered code
From: "FSF General Contact Address via RT" 
To: nugget@distributed.net
Date: Tue, 17 Jun 2003 09:44:12 -0400

On Thu, Jun 12, 2003 at 01:19:43PM -0400, David McNett via RT wrote:
> The specific part of RedHat's license which is confusing me is the mandate
> that requires me to purchase a support contract for each installation
> of the GPL'd software that I choose to perform.  This seems to be a clear
> restriction on the use of the software, not different in any way from
> (as an example) requiring me to donate money to a particular charity for
> each copy of the software I use.  I don't understand how this is not
> at odds with my rights to use the GPL'd software as granted by the GPL.

Dear David,

The difference between a license like you describe and Red Hat's license
lies in what is restricted.  Red Hat's license does not say "You must
purchase a support contract for each copy of the software you wish to
install, or else you cannot use the software at all;" rather, it says "You
must purchase a support contract for each copy of the software you wish to
install, or else we will not provide you with any support."  With the
assistance of our legal counsel, we have come to the conclusion that these
terms do not violate the GNU General Public License.  Red Hat does not
attempt to prohibit you from exercising the rights granted to you by the
GNU GPL and other Free Software licenses.  It does, however, discourage you
from taking advantage of those rights, by revoking your support contract if
you use them.

We at FSF view any practice that discourages people from sharing software
-- as is their legal right under the GNU GPL -- as, at best, ethically
questionable.  There are many service and support models (e.g., charging by
the hour for services performed) that actually flourish when users exercise
their freedoms to share software licensed under the GNU GPL.  We urge Red
Hat and others to choose those sorts of business models.

Again, I'm happy to discuss this further with you if you would like.

Best regards,

-- 
Brett Smith, Free Software Foundation
Become a card-carrying member of FSF:
     http://member.fsf.org/
Help support our work for FSF and the GNU project:
     http://svcs.affero.net/rm.php?r=fsfinfo





Date: Tue, 17 Jun 2003 09:27:32 -0500
From: David McNett 
To: FSF General Contact Address via RT 
Subject: Re: [gnu.org #43886] Confusion over Red Hat additions to GPL covered code

On 17-Jun-2003, FSF General Contact Address via RT wrote:
> The difference between a license like you describe and Red Hat's license
> lies in what is restricted.  Red Hat's license does not say "You must
> purchase a support contract for each copy of the software you wish to
> install, or else you cannot use the software at all;" rather, it says "You
> must purchase a support contract for each copy of the software you wish to
> install, or else we will not provide you with any support."

Brett --

Thanks again for helping work through my confusion on this issue.  At best
these documents are simply unclear to me and at times they even seem
contradictory.  I'm sure glad most source code isn't this hard to parse.

I am not sure I understand your rephrasing of the Red Hat Advanced Server
and Services Agreement document which is the primary source of my confusion.
Although the words "Services Agreement" do appear in the title of the
document I do not understand the document to refer only to a Services
arrangement with Red hat.  Rather, phrases like:

  "By *using* or purchasing Red Hat Linux Advanced Server *or* Services,
   Customer signifies its assent to this agreement."
   (Emphasis added)

and

  "If customer does not accept the terms of this agreement, then *do not
   use* or purchase Red Hat Linux Advanced Server or Services"
   (Emphasis added)

I'm not sure how that isn't telling me that I cannot use the software at
all if I do not agree to purchase a services agreement for any and each
installation.

Additionally, the agreement (which I must agree to if I wish to use the
software) goes much further than simply allowing Red Hat to deny support
but rather gives Red Hat the authority to bill me for any servers which
I have installed in violation of the agreement:

  "If Customer is found to have underreported the number of Installed Server
   by more than five percent (5%), Customer shall, in addition to the annual
   fee for Service per Installed Server, pay a penalty equal to twenty percent
   (20%) of the underreported fees."

I'm sure you will agree that this is a weightier obligation than simply 
losing provided support.  At risk is not simply the revocation of a support
contract.

> We at FSF view any practice that discourages people from sharing software
> -- as is their legal right under the GNU GPL -- as, at best, ethically
> questionable.  There are many service and support models (e.g., charging by
> the hour for services performed) that actually flourish when users exercise
> their freedoms to share software licensed under the GNU GPL.  We urge Red
> Hat and others to choose those sorts of business models.

I, too, would encourage Red Hat to embrace licensing terms which were more
clear and equitable.  I also still believe that their current licensing is
at odds with both the letter and intent of the GNU GPL.

> Again, I'm happy to discuss this further with you if you would like.

Thank you again for continuing to assist me.

-- 
 ________________________________________________________________________
|David McNett          |To ensure privacy and data integrity this message|
|nugget@distributed.net|has been encrypted by using dual rounds of ROT-13|
|Austin, TX USA        |finger nugget@distributed.net for my news and pgp|




Subject: Re: [gnu.org #43886] Confusion over Red Hat additions to GPL covered code
From: "FSF General Contact Address via RT" 
To: nugget@distributed.net
Date: Tue, 08 Jul 2003 13:48:06 -0400

On Thu, Jul 03, 2003 at 10:22:23AM -0400, David McNett via RT wrote:
> I am not sure I understand your rephrasing of the Red Hat Advanced Server
> and Services Agreement document which is the primary source of my confusion.
> Although the words "Services Agreement" do appear in the title of the
> document I do not understand the document to refer only to a Services
> arrangement with Red hat.  Rather, phrases like:
> 
>   "By *using* or purchasing Red Hat Linux Advanced Server *or* Services,
>    Customer signifies its assent to this agreement."
>    (Emphasis added)
> 
> and
> 
>   "If customer does not accept the terms of this agreement, then *do not
>    use* or purchase Red Hat Linux Advanced Server or Services"
>    (Emphasis added)
> 
> I'm not sure how that isn't telling me that I cannot use the software at
> all if I do not agree to purchase a services agreement for any and each
> installation.

Dear David,

I am very sorry for the late response to this message.  Since we are a
non-profit with very limited resources, messages to this address often get
backlogged, and we are always struggling to catch up.

Red Hat may choose to offer copies of their distribution, Red Hat Linux
Advanced Server, only to those who purchase support from them, just as they
may provide their boxed desktop distribution only to customers who pay
$39.95.  So long as such agreements do not limit users' rights under the
GNU General Public License, there is no conflict of licenses.  We have an
opinion from our legal counsel that this EULA does not override those
rights (section 3 is of particular interest in this regard); it does,
however, provide disincentives from exercising those rights.  Again, while
we are unhappy with such disincentives to exercising freedom, they are not
incompatible with the GNU GPL.

Best regards,

-- 
Brett Smith, Free Software Foundation
Become a card-carrying member of FSF:
     http://member.fsf.org/
Help support our work for FSF and the GNU project:
     http://svcs.affero.net/rm.php?r=fsfinfo


Date: Tue, 8 Jul 2003 14:20:04 -0500
From: David McNett 
To: FSF General Contact Address via RT 
Subject: Re: [gnu.org #43886] Confusion over Red Hat additions to GPL covered code

On 08-Jul-2003, FSF General Contact Address via RT wrote:
> On Thu, Jul 03, 2003 at 10:22:23AM -0400, David McNett via RT wrote:
> > I am not sure I understand your rephrasing of the Red Hat Advanced Server
> > and Services Agreement document which is the primary source of my confusion.
> > Although the words "Services Agreement" do appear in the title of the
> > document I do not understand the document to refer only to a Services
> > arrangement with Red hat.  Rather, phrases like:
> > 
> >   "By *using* or purchasing Red Hat Linux Advanced Server *or* Services,
> >    Customer signifies its assent to this agreement."
> >    (Emphasis added)
> > 
> > and
> > 
> >   "If customer does not accept the terms of this agreement, then *do not
> >    use* or purchase Red Hat Linux Advanced Server or Services"
> >    (Emphasis added)
> > 
> > I'm not sure how that isn't telling me that I cannot use the software at
> > all if I do not agree to purchase a services agreement for any and each
> > installation.
> 
> Dear David,
> 
> I am very sorry for the late response to this message.  Since we are a
> non-profit with very limited resources, messages to this address often get
> backlogged, and we are always struggling to catch up.
> 
> Red Hat may choose to offer copies of their distribution, Red Hat Linux
> Advanced Server, only to those who purchase support from them, just as they
> may provide their boxed desktop distribution only to customers who pay
> $39.95.  So long as such agreements do not limit users' rights under the
> GNU General Public License, there is no conflict of licenses.  We have an
> opinion from our legal counsel that this EULA does not override those
> rights (section 3 is of particular interest in this regard); it does,
> however, provide disincentives from exercising those rights.  Again, while
> we are unhappy with such disincentives to exercising freedom, they are not
> incompatible with the GNU GPL.

Brett --

On re-reading your most recent response to me, I am now even more
confused.  Your response appears to have no bearing on my inquiry.  The
point of the RedHat EULA which I believe to be incompatible with the
GNU GPL is not related to RedHat's ability to refuse sale to only
purchasers of a support agreement, nor has that aspect of the EULA
been the substance of my previous questions to you.

Rather, my point is that the RedHat EULA does indeed deny me the rights
granted by the GNU GPL by preventing me from freely installing the
GPL-covered components of RedHat Advanced Server on machines.  I refer
you again to the quoted portions of the license which I pointed out
above.

Am I or am I not allowed to install GPL'd software on more than one 
machine?  The RedHat license says no, and the GPL says yes.

-- 
 ________________________________________________________________________
|David McNett          |To ensure privacy and data integrity this message|
|nugget@distributed.net|has been encrypted by using dual rounds of ROT-13|
|Austin, TX USA        |finger nugget@distributed.net for my news and pgp|




Subject: Re: [gnu.org #43886] Confusion over Red Hat additions to GPL covered code
From: "FSF General Contact Address via RT" 
To: nugget@distributed.net
Date: Tue, 08 Jul 2003 22:12:54 -0400

On Tue, Jul 08, 2003 at 03:24:04PM -0400, David McNett via RT wrote:
> Rather, my point is that the RedHat EULA does indeed deny me the rights
> granted by the GNU GPL by preventing me from freely installing the
> GPL-covered components of RedHat Advanced Server on machines.  I refer
> you again to the quoted portions of the license which I pointed out
> above.
> 
> Am I or am I not allowed to install GPL'd software on more than one 
> machine?  The RedHat license says no, and the GPL says yes.

Dear David,

Red Hat's license does not say "You may not copy software released under
the GNU GPL," but rather "You may copy software released under the GNU GPL,
but if you do, we will terminate your support contract and take other
action."  See section B.3; note the last sentence in particular:

   All of the Software Programs provided by means of the RHN Service (the
   "Software Programs") are individually written and copyrighted, and are
   subject to individual end user license Agreements (each, a "EULA") that
   are applicable to the Software Programs. Customer agrees to review, and
   that it is subject to, each such EULA. All EULAs pertaining specifically
   to Red Hat Linux Advanced Server permit Customer to copy, modify and
   redistribute Red Hat Linux Advanced Server, in both source code and
   binary code forms. Nothing in this Agreement limits Customer's rights
   under, or grants Customer rights that supersede, any applicable EULA.

The sentences you quoted earlier appear to apply to the entire Red Hat
Linux Advance Server product as distributed by Red Hat itself.  For it to
apply to specific pieces of software, Red Hat would be claiming that you
must enter a service contract with them for using any program they
distribute with Red Hat Linux Advance Server.  Given section B.3, this does
not appear to be Red Hat's intent.

I hope this clears up any remaining confusion.  Please note that this is
not legal advice.  If you need legal advice, please consult a lawyer.

Best regards,

-- 
Brett Smith, Free Software Foundation
Become a card-carrying member of FSF:
     http://member.fsf.org/
Help support our work for FSF and the GNU project:
     http://svcs.affero.net/rm.php?r=fsfinfo




From: Richard Stallman 
To: David McNett 
Subject: Re: I would appreciate your opinion on this license confusion
Date: Wed, 09 Jul 2003 19:48:12 -0400

As I understand the Red Hat EULA, it only requires you to pay for
support in accord with the number of machines you run it on.  That
doesn't violate the GPL, it just determines how much you have to pay
for support.  You can still redistribute the free software, etc.

I believe it also explicitly says that you can use the GPL-covered
programs in any way that the GPL permits.

This is what I remember from after I read that license.  It takes
time to do that, and I'd rather not study it again.