Re: Questions about legal theory behind (L)GPL
On Wed, 19 Jan 2005 18:18:55 -0500, Raul Miller [EMAIL PROTECTED] wrote: On Wed, Jan 19, 2005 at 10:09:02AM -0800, Michael K. Edwards wrote: But the FSF is going to lose a lot of credibility, even with the choir, if they wait until their noses are rubbed in it in the next lawsuit to admit that there isn't any universal law of license in the real world after all. Hint: it's not a coincidence that open source companies and foundations with their own lawyers to advise them are fortifying around trademark now. These two sentences don't seem to be related. They probably shouldn't be in the same paragraph. The subtext is that the FSF's credibility as an arbiter of compliance is already damaged among people who have been paying more attention that I have, who noticed at the time that MySQL won on trademark and lost on the GPL. (That's an oversimplification, since of course the court took into account that Progress had already largely capitulated on the substantive GPL issues before the hearing.) Maybe that's just post hoc, propter hoc; one would have to ask the pros in order to know for sure. Brand name recognition is not a concept invented by lawyers for open source companies. Agreed. But use of a brand name to attempt to stop other people from giving away the same thing you do under the same name is a bit of a novelty. Yet the logic of competition for mindshare is the same even where the profit-seeking is very indirect; the broader the appeal of a work, the more people rely on name recognition instead of critical evaluation. Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Thu, Jan 20, 2005 at 02:17:11AM -0800, Michael K. Edwards wrote: Agreed. But use of a brand name to attempt to stop other people from giving away the same thing you do under the same name is a bit of a novelty. Advertisers have been doing this for years, as have broadcasters. [There's ways of making money off free software that don't involve advetising (for example, when you have product A which is a complement to product B, increases in the supply of product A increases the demand for product B), but that's not a new idea either, but I've not done any research on branding history in that context.] -- Raul -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Thu, Jan 20, 2005 at 06:59:23PM +0100, Martin Hardie wrote: It's nice to see some FSF doubters (I have just been reading this thread in the archives) and questioning of their speech based copyright vision. I think I agree with Micahel that precedent is fairly against the FSF and Lessig views of the proper interpretation of copyright. You mean the mysql v progress precedent, where a judge apparently decided that the parties had mostly already settled and so there was no need for immediate action? Or do you mean the borland v lotus precedent where the only possible copyrighted material under consideration were the text (and arrangement) of menus? Anyways, from my point of view, the FSF would like to not have to worry about copyright at all. Every court decision weakening the ability of groups of people to use copyright to hoard software is in a very real sense something that the FSF is trying to achieve. Of course, copyright isn't going to go away, which is where licenses like the GPL have a part -- as a way of releasing something to the public, with fewer counterintuitive consequences than releasing it as Public Domain. [That said, copyright law is intricate enough that there are will probably always be some obscure issue which befuddles someone -- no matter which license or non-license is in use or is not in use.] Its also nice to see some people talking about how TMs and other things might restrict the freeness of open source. There has been too much junk said by people that it purely a licence issue and everything else including US Export Regulations dont interfere with the freedom of the licence! But I notice you using scare quotes. Anyways, freedom is a very broad issue, but the freedoms Debian is concerned about are rather specific kinds of freedom (especially those that allow us to distribute debian on multiple platforms, and those that allow us to fix bugs and security problems). tradition and internal protocols. A system of trust operates within the community of producers and users which is sufficently well known to bind third parties not to use the material in a manner inconsistent with the communities principles. The Social Contract, the DFSG and the GPL and many other such documents can be seen as concrete representations of some community principle -- Raul -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Thu, Jan 20, 2005 at 02:46:48PM -0500, Raul Miller wrote: I agree that I was tacitly assuming that I was writing for people who knew what debian is (a volunteer free-software group which helps coordinate -- and relies heavily on -- support from people who are not explicitly members of the group). Sure. The tendency a few people have these days of trying to push Debian's standards and scope of freedom to as low and narrow a focus as possible makes me a little wary when people understate that scope (but I don't think you're among them). -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Tue, Jan 18, 2005 at 05:54:40PM -0800, Michael K. Edwards wrote: In this context, I mean credible analysis of the legal issues. Eben Moglen and Bruce Perens were both publicly quoted in the lead-in to the MySQL trial as being confident that MySQL would win a preliminary injuction on the GPL issues. They didn't. There were several reasons for this, which mostly add up to the judge followed precedent in applying copyright law standards where they were appropriate and contract law standards where they were appropriate. Neither the FSF's subsequent public comments nor the correspondence I have had with [EMAIL PROTECTED] addresses this point, nor do they seem to be willing to adduce any modern legal precedent in any jurisdiction. From my point of view, the brief was trying to estalish that the GPL was protecting value in the case of mysql, and that violating the GPL took away from that value. But I think it wasn't really written for the judge, but was instead written for someone who was already convinced. I am far from being the first to make this criticism. See, for instance, the comments in http://www.oslawblog.com/2005/01/static-linking-gpl-and-lgpl.html by people who cite actual legal precedents. The emperor is a decent guy and usually on the side of the angels, but I'm sorry to say that he has no clothes. This is meta discussion about an oversimplification. It's basically correct, but I don't think the emperor is running around nude, even if that hat is a bit skimpy. -- Raul -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Wed, 19 Jan 2005 11:28:33 -0500, Raul Miller [EMAIL PROTECTED] wrote: [snip] This is meta discussion about an oversimplification. It's basically correct, but I don't think the emperor is running around nude, even if that hat is a bit skimpy. I don't think claiming that contract law has no role in the interpretation of the GPL is an oversimplification -- I think that, coming from the FSF's General Counsel, it's grossly irresponsible. They don't seem to have a shred of precedent to point to, and the FSF refuses inquiry on the point, nor can I find any indication that they are willing to argue, in court or out, the applicability of the GPL to the specifics of any set of facts and governing law. The MySQL affidavit isn't an anomaly -- it's characteristic. With that said, they do an excellent job of preaching to the choir, and the mere threat of preliminary injunction under copyright standards seems to work for them dozens of times a year. The one time the GPL was litigated (note, not by the FSF), the plaintiff won an injunction on trademark anyway. Why expose their reasoning to further scrutiny outside a courtroom? That would just embolden the evil software hoarders to do things that are legally permitted but contrary to the copyleft Manifest Destiny. But the FSF is going to lose a lot of credibility, even with the choir, if they wait until their noses are rubbed in it in the next lawsuit to admit that there isn't any universal law of license in the real world after all. Hint: it's not a coincidence that open source companies and foundations with their own lawyers to advise them are fortifying around trademark now. Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Mon, Jan 17, 2005 at 12:55:47PM -0800, Michael K. Edwards wrote: As I understand it, generally speaking, a contract has two parties -- offeror and offeree. On Mon, 17 Jan 2005 17:04:02 -0500, Raul Miller [EMAIL PROTECTED] wrote: Ok. However, it's worth noting that these parties are distinct each time the [implied] contract is executed. On Mon, Jan 17, 2005 at 10:53:58PM -0800, Michael K. Edwards wrote: That's one reason why I think the sublicensing interpretation is more natural. How is that a reason? In other words, I see multiple implied contracts, but each contract is between the original copyright holder and the recipient. I don't see any grounds for thinking that there's any sublicensing. For that matter, sublicensing might be seen as an attempt to circumvent the requirement that the original licensor grant the license to the recipient. There's some reason to this, especially in light of GPL section 4. But that would result in potential jeopardy for breach of contract between each licensee and every copyright holder. That has nasty consequences, which I wrote out in the draft I lost (don't use Google Search in the same tab as your GMail session!) but will summarize as both sides become vulnerable to expensive to defend, quasi-frivolous lawsuits in inappropriate jurisdictions. The doctrine of agency was created to avoid this kind of nastiness and make complex business relationships possible without an endless web of implied contracts. You've already got that with widespread distribution of popular programs. I'd need to see a pretty convincing precedent to imagine that this doctrine of agency has any relevence in the context of the GPL. To get the same effect with direct licensing, you'd have to read separate offers of contract from each copyright holder to the recipient into the single act of passing her a modified work, which is a little far-fetched. The way I read it, those offers of contract from each copyright holder to the recipient are made each time the program is redistributed. I don't see why this is far-fetched, and I don't see any reason to pretend that that's not what the license mandates. A mandate without an implementation is subject to construction. Construing agency to issue sublicenses leaves the contract between distributor and immediate recipient where it belongs, with subject matter being the entire contents of the offered blob of software. I still don't see how this sub-license construction satisfies the mandate that the recipient automatically receives a license from the original licensor... I think that's much cleaner as a basis for findings of fact than the contracts upon contracts construction, and does a better job of reaching the parties' intent, which is what judicial construction is supposed to do. Ok, I understand that you have some kind of personal preference which favors the sublicensing construct. I'm not convinced that your preference accuratly reflects how the law would treat this issue, but I do understand that that is your opinion. My guess (IANAL) is that a court would find that, when A offers Project X under the GPL, B modifies and distributes it, and C accepts license in the modified version, B and C have formed a contract and A's participation is limited to the agency for sub-licensing purposes implicit in the contract that it offered B. This is especially likely to hold in a situation where B is Debian, since most users deal directly with Debian for updates, bug reporting, etc., and can reasonably claim that as far as they are concerned their license came from Debian and the rest is between Debian and the upstream(s). I don't think a court case where this issue is relevant is likely. Suppose the FSF had gone beyond complaining and threatening when KDE used Qt under the QPL and proceeded to sue, say, IBM for bundling RedHat with some of their servers. Don't you think it would be relevant whether IBM could claim reliance on RedHat as the FSF's agent? I think I did more complaining on that one than the FSF. I maybe missed something, but I remember the FSF being fairly hands-off on that issue. But, that aside, I think suing IBM would be a dumb move. Talk about expensive lawsuits... Ok, if you've established sufficient precedent by suing other people on the same issue, maybe. [But in my experience, IBM has been pretty responsive to even rather tenuous lines of licensing reasoning -- so there probably wouldn't need to be any reason to take them to court.] But, that aside, if I recall your reasoning, this whole agency/ sublicensing thing seems to be specific to the GPL, and not specific to the whole of Debian's distribution. So if the precise character of this lawsuit were different, you seem to be saying that this issue of agency would not apply. Which means that the bit about since most users deal directly with Debian for
Re: Questions about legal theory behind (L)GPL
On Tue, 18 Jan 2005 12:51:22 -0500, Raul Miller [EMAIL PROTECTED] wrote: I still don't see how this sub-license construction satisfies the mandate that the recipient automatically receives a license from the original licensor... On Tue, Jan 18, 2005 at 01:08:57PM -0800, Michael K. Edwards wrote: I think it's generally held that, say, a software retailer is moving around boxes containing both software and license (in the intangible sense, not just the paper with text on it), while a software publisher is exercising authority to sublicense when making, boxing, and distributing copies of the software. In either case, there's a license from the copyright holder being transferred, but the retailer isn't party to any contracts except in the most primitive sense of common-law contracts of sale. The retailer has common-law authority to transfer licenses around only as a component of the boxes he's moving. I think you're confusing EULA with Copyright License. With copyright, the copyright holder grants license to the publisher to make copies and that's usually the end of the story. There are exceptions, of course (developer tools being a fairly classic one -- developer tools usually grant unlimited redistribution rights to some of the contained content). End User License agreements are something different and seem to be based more on contract law than on copyright law. Anyways, in this context it does make sense to consider the distributor as an agent of the publisher -- because the distributor has no license from the copyright holder, while the publisher does. [In the classic commercial model, this is also the case for developer tools (while some of the content has an unlmited redistribution license, most of the content typically does not).] But under the GPL, the distributor gets a license from the copyright holder, so the distributor does not have to act as an agent for the publisher. In any event, the way I see it you're talking about traditions which were developed to deal with an issue which is not present in the context of the GPL. And, furthermore, the GPL seems to contain explicit language conflicting with this application of that tradition. In order for C to automatically receive a license under GPL from B along with the physical (electronic) copy of the subject matter, B has to have the authority to transfer license along with it. Ok... but let's first try to establish why C would need to receive it from B rather than from the original licensor (which is what the license says happens). So far you've only indicated that that's what happens with other licenses (which don't have this receives a license from the original licensor language). Given that B is doing the copying, it seems natural to me to put B in the position of the software publisher and to construe agency terms from A to B. Grammatically, this ties from the original licensor to the noun license (C has A's permission, which B has agency to grant) rather than the verb receives. I'm not following you here at all. A licensor is someone. But your grammatical argument seems to argue that the license is that someone. Is the license document (or legal abstraction) the agent now? You could argue that the recipient recieves the license from the original licensor via B, which makes B be an agent for the purpose of passing the license on. But the end result of that argument is still a license granted directly from A to C. I think that's much cleaner as a basis for findings of fact than the contracts upon contracts construction, and does a better job of reaching the parties' intent, which is what judicial construction is supposed to do. Ok, I understand that you have some kind of personal preference which favors the sublicensing construct. I'm not convinced that your preference accuratly reflects how the law would treat this issue, but I do understand that that is your opinion. It's not so much a personal preference as a guess. The commonly cited precedent on when and how a right to sublicense can be construed is Harris v. Emus Records 1984 (9th Circuit), but I haven't been able to find a URL for it (and don't have other resources handy). That case addressed a copyright under the 1909 act but is still cited for guidance under current law, often in the same breath with Herbert v. United States 1996 (Federal Claims Court), also hard to find. One thing I think you need to keep in mind: precedent is narrowly focussed on the issues of the case at hand. A judge might suggest some general principles, but different licenses are going to be interpreted differently. A judge isn't going to override the terms of the GPL just because some different license was handled differently. There has to be good reason for it. Realistically, I think this is the sort of thing where an appellate judge might argue it through both ways, reach the same conclusion on the facts of the case under
Re: Questions about legal theory behind (L)GPL
On Mon, 17 Jan 2005 22:53:58 -0800 Michael K. Edwards wrote: (don't use Google Search in the same tab as your GMail session!) Even better: don't use GMail at all, it has many privacy issues! -- Today is the tomorrow you worried about yesterday. .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpaKnpaxGFxx.pgp Description: PGP signature
Re: Questions about legal theory behind (L)GPL
On Mon, 17 Jan 2005 13:48:23 -0500, Raul Miller [EMAIL PROTECTED] wrote: The GPL is a license document, and automatically receives is a license grant. The GPL doesn't need to be law to grant license -- granting license is what copyright licenses do. On Sun, Jan 16, 2005 at 10:48:55PM -0800, Michael K. Edwards wrote: The GPL isn't law was in response to the GPL doesn't say this is an authorization to sublicense. Under US law as I understand it, there's no other way to implement the purported license grant indicated by automatically receives other than the sublicensing paraphrase that I gave. Why would direct licensing not work? As I understand it, generally speaking, a contract has two parties -- offeror and offeree. To the extent that it binds other persons or entities, it does so through the doctrine of agency -- either party A declares that non-party B will fulfill some of A's obligations as an agent of A, or A agrees, acting as an authorized agent of B, to commit to conduct on B's behalf. The GPL appears to me to fall under the latter, authorizing the licensee to offer a sub-license to all copyrights in the incoming GPL work. To get the same effect with direct licensing, you'd have to read separate offers of contract from each copyright holder to the recipient into the single act of passing her a modified work, which is a little far-fetched. [snip] IANAL, and I can't say for certain how a court would weigh the GPL drafters' intent (which I agree is reasonably clear on this particular point) against precedents like Everex v. Cadtrak -- especially if two copyright holders differ from one another on the interpretation. I imagine that (where two copyright holders differ from one another in their interpretation) the judge would look at the history of how these two copyright holders have acted. If one has recently changed their intent then the judge would need to consider their previously expressed intent. If there is no such change, then the judge would probably look at how the situation developed, to determine which parts of the copyrighted work belong to which party. On the question of sub-licensing, I doubt that you would be able to find evidence of either copyright holder's stance in advance, and it wouldn't matter much anyway, since as a matter of law (in the US) ambiguities in contracts must be construed against the offeror and there's no way to demonstrate the licensee's intent in a non-negotiated, standard form contract. (That isn't necessarily true if there's a history of correspondence between the parties and it can be demonstrated that both interpreted the contract in the same way.) My guess (IANAL) is that a court would find that, when A offers Project X under the GPL, B modifies and distributes it, and C accepts license in the modified version, B and C have formed a contract and A's participation is limited to the agency for sub-licensing purposes implicit in the contract that it offered B. This is especially likely to hold in a situation where B is Debian, since most users deal directly with Debian for updates, bug reporting, etc., and can reasonably claim that as far as they are concerned their license came from Debian and the rest is between Debian and the upstream(s). Suppose Ms. X contributes some code to Kaffe and then sues Debian for distributing Kaffe and Eclipse together. Then suppose that the FSF files an amicus brief saying that Debian is OK because GNU Classpath has a special linking clause and Ms. X's code is part of an interpreter, while the main copyright holder on Kaffe files an amicus brief saying that as far as he is concerned the GPL doesn't propagate across linking boundaries and that if Ms. X says different then she's failing to extend the same license to Debian that he extended to her. Whose interpretation wins? The answer could depend critically on what implicit terms the court construes in order to implement the implied authorization to sublicense -- or some other way around the problem that I'm not seeing. Most likely, the judge would say that Ms X doesn't have standing. How could that be? Factually, her copyright has been infringed unless Debian (reachable through SPI and/or as a list of named defendants plus a stack of Does and Roes) can demonstrate that it acted under license. Eclipse is not a module of Kaffe. I don't understand what legal significance you expect this to have in this situation. I have argued that no derivative work containing Eclipse and any part of Kaffe or Classpath is created at any stage, since a derivative work is by definition an original work unto itself, and the interpretation and linking processes don't create original works. But there is no question that both the Debian CD and the system on which Eclipse and Kaffe are installed infringe on Ms. X's copyright in the absence of a valid license to Kaffe. In the unlikely event that she did have standing,
Re: Questions about legal theory behind (L)GPL
I wrote: Suppose the FSF had gone beyond complaining and threatening when KDE used Qt under the QPL ... And negotiating effectively too, of course. I'm glad that Qt is now QPL/GPL dual licensed, and I prefer the GPL. I don't mean to sound quite so one-sided here; just because I think the FSF's legal stance on a few points is kind of wacked doesn't mean I don't appreciate their successes in their areas of competence. Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Sun, 16 Jan 2005 11:51:19 +0100, Francesco Poli [EMAIL PROTECTED] wrote: On Sat, 15 Jan 2005 21:54:29 -0800 Michael K. Edwards wrote: On Sat, 15 Jan 2005 19:27:26 +0100, Francesco Poli [...] wrote: [...] In my understanding sublicensing means redistributing under a different license, and that is what a copyleft license is supposed to not allow... If I'm wrong, then someone please explain me what's the meaning of sublicensing! A designates B as an agent to issue a license to C to use A's copyright material. The terms of that license can be specified in advance in the designation of agency. That's how I (IANAL) read the authorization to create derivative works and offer them under the GPL terms. IANAL either, but I disagree. Section 6. of GPLv2 states, in part: | 6. Each time you redistribute the Program (or any work based on the | Program), the recipient automatically receives a license from the | original licensor to copy, distribute or modify the Program subject to | these terms and conditions. Thus, when *you* distribute to *me* a work based on Linux-2.6.10, *I* automatically receive a license from the *original licensor* (the set of Linux-2.6.10 copyright holders) for Linux-2.6.10. In the meanwhile, *I* receive a license from *you* for *your modifications* to Linux-2.6.10 (I'm of course talking about a case in which *you* created the derived work, starting from Linux-2.6.10). I don't think there is any sublicensing here. The GPL isn't law, and its characterization of what's happening under law when you distribute a modified work is pretty bogus. (The recipient automatically receives?) I think it would be better written as (more or less): If you have received a work containing the copyright material of multiple authors, offered under the GPL, then each copyright holder offers license to his, her, or its contributions to this work, under the complete terms of the GPL. You may modify this work to create a new derivative work in which you hold copyright on your modifications. The only terms on which you may distribute this new work are those of the GPL, and the copyright holders grant you a limited agency to grant, solely on these terms, sublicenses to their copyright in portions of your modified work. In order to get past the Oddo v. Ries right to publish isn't right to sublicense for the purpose of publishing a modified version precedent, I think a court would have to find that the GPL as written is substantially equivalent to the above. [...] She has issued a promise not to pursue a copyright infringement claim(that's what a copyright license is, basically, at least in the case law I've read). I'm really surprised by your definition: in my understanding, a copyright license is a permission to perform copyright-restricted operations. [snip] In general, a license is a permission, not a promise not to punish forbidden actions... Same difference, legally. [...] a mere waiver of the right to sue [...] So you are saying that, when I copy and distribute a GPL'd program, I am violating the law and staying unpunished. In other words, I'm doing something illegal and the only reason why I am feeling safe is that the copyright holder has promised to close his/her eyes. If that were true, the entire concept of free software would be really in trouble: one of its strengths is that you can /legally/ copy and distribute it. Because you have permission to do so! Saying you don't have permission, but, nevermind!, the copyright holder won't sue you anyway doesn't sound good to me. It's not that what you are doing is illegal. That's not how this part of the law works. The legal remedy for copyright infringement (in a common law country) is to sue under tort law. The burden of proof starts on the plaintiff to demonstrate that the plaintiff has a valid copyright and that the defendant did something that the copyright holder has the right to veto. Then, the defendant can argue that it had a right to do what it did, either because of a license from the copyright holder or because of a recognized defense such as fair use. One of the reasons that I harp on the licenses are provisions in contracts theme is that mishandling this can screw up your case in court. If you're trying to pursue a copyright infringement claim in the presence of a license agreement, you have to prove breach of contract and rescission of the license before any copyright claim can succeed. That's because a (non-exclusive) license is legally equivalent to a promise not to sue for infringement, so until you demonstrate that you are no longer bound by that promise, you can't successfully sue. Again, Effects v. Cohen is a classic example of this chain of legal reasoning. As I said, copyright law grants the author the exclusive rights to do and to authorize others to do some operations. Once the author authorized me to do
Re: Questions about legal theory behind (L)GPL
On Sun, 16 Jan 2005 18:21:19 -0500, Raul Miller [EMAIL PROTECTED] wrote: On Sun, Jan 16, 2005 at 02:09:09PM -0800, Michael K. Edwards wrote: The GPL isn't law, and its characterization of what's happening under law when you distribute a modified work is pretty bogus. (The recipient automatically receives?) The GPL is a license document, and automatically receives is a license grant. The GPL doesn't need to be law to grant license -- granting license is what copyright licenses do. The GPL isn't law was in response to the GPL doesn't say this is an authorization to sublicense. Under US law as I understand it, there's no other way to implement the purported license grant indicated by automatically receives other than the sublicensing paraphrase that I gave. The only thing needed to make sense of section 6 for the case where there are multiple copyright holders is recognition of the original licensor and the recipient both apply under the scope of section 6's Each time. Since the terms are the same, regardless of the copyright holder and regardless of the recipient, there is no ambiguity here. This is sort of a recursive closure argument, which is reasonable as a way to understand the drafter's intent, but doesn't guarantee that a court will find that the license language accomplishes that intent. It frequently happens that contract provisions are modified or struck during interpretation by a judge because they conflict with statute. US copyright statute, as interpreted by appeals courts to date, appears to me to require that authorization to sublicense be pretty explicit in a written contract. IANAL, and I can't say for certain how a court would weigh the GPL drafters' intent (which I agree is reasonably clear on this particular point) against precedents like Everex v. Cadtrak -- especially if two copyright holders differ from one another on the interpretation. Suppose Ms. X contributes some code to Kaffe and then sues Debian for distributing Kaffe and Eclipse together. Then suppose that the FSF files an amicus brief saying that Debian is OK because GNU Classpath has a special linking clause and Ms. X's code is part of an interpreter, while the main copyright holder on Kaffe files an amicus brief saying that as far as he is concerned the GPL doesn't propagate across linking boundaries and that if Ms. X says different then she's failing to extend the same license to Debian that he extended to her. Whose interpretation wins? The answer could depend critically on what implicit terms the court construes in order to implement the implied authorization to sublicense -- or some other way around the problem that I'm not seeing. Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
Michael Edwards wrote: Sorry, I'll try to be clearer. Even if the return performance is impossible without exercising rights only available under the license, it's still performance. Right, this was the very specific question we were getting to. :-) In determining the DFSG-freeness of a license, we seem to have decided essentially that requiring action or forbearance regarding activities outside the scope of the rights granted in the license renders a license non-free. Of course, that has nothing to do with whether other requirements (dependent on the license) are consideration under the law! The fact that the GPL licensee's obligations are, in some sense, impossible to perform without use of the granted license doesn't change this logic. It just contributes to the evidence that the licensee knowingly accepted the terms of the GPL. OK, that's convincing. :-) If you can find it, check out Mattei v. Hopper 1958 (California Supreme Court, referenced in Fosson and in many law course syllabi, such as http://www.google.com/search?q=cache:-_YxUolMHUwJ:community.washburnlaw.edu/aalsa/outlines/contracts-pierce.doc+mattei+v.+hopper+1958 ). Couldn't find it immediately; I hope to eventually. The description in the syllabus is Rule: a promise that is conditional on the promisor's satisfaction with a related matter is enforceable. Unfortunately, I don't quite grok what the promisor's satisfaction with a related matter means! It sounds like it refers to the kind of question we're discussing here though. If it does, that would be the case answering the question which started the thread. :-) -- Another points I found interesting about the syllabus was the section on Reliance as a basis of enforecement (with cases dating to 1898). Reliance by the promisee is a separate and distinct basis for the enforcement of promises... A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise... Promissory estoppel is a substitute for consideration... *This* was the part I was vaguely remembering. Users of GPL-licensed software, BSD-licensed software, etc. -- and particularly creators of derived works -- quite definitely rely on the promises of the licensor to license under those terms, and take actions based on them, and those actions would be deeply to their detriment (and to the detriment of third parties!) if the promise is broken. Furthermore, the person issuing software under the GPL should reasonably expect (even desire) these actions. Injustice will be clearly caused to everyone downstream if the promise is broken. Another case quoted in that syllabus leapt out at me (this under the consideration section!): Feinberg v. Pfeiffer Co (Mo. 1959) (Gratuitous pension plan) Rule: a gratuitous pension plan is enforceable if the promisee retires in reliance on continued payments. Promissory estoppel is now a recognized species of consideration I think that the reliance of the recipients of the GPL-licensed works on the license is likely to be useful in proving that there is an enforceable contract. This was also interesting: The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person This tends to indicate that the licensing requirements given by the GPL -- and, indeed, the notice requirements in the BSD license -- can constitute consideration even though they are not given directly to the licensor. Various stuff also links in interestingly to what you say here: For what it's worth, the case law I've read (I don't have Nimmer or the like handy) points out that a copyright license is really just an enforceable promise not to pursue an infringement claim under certain circumstances. I guess I'm convinced. :-) -- Nathanael Nerode neroden at gcc.gnu.org US citizens: if you're considering voting for Bush, look at these first: http://www.misleader.org/ http://www.cbc.ca/news/background/arar/ http://www.house.gov/reform/min/politicsandscience/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
Actually, Effects v. Cohen is a prime example of implied license as an implied provision in the existing contract: quote section=FN1 The district court initially dismissed the suit, holding that it was primarily a contract dispute and, as such, did not arise under federal law. In an opinion remarkable for its lucidity, we reversed and remanded, concluding that plaintiff was master of his claim and could opt to pursue the copyright infringement action instead of suing on the contract. Effects Assocs., Inc. v. Cohen, 817 F.2d 72, 73 (9th Cir.1987). We recognized that the issue on remand would be whether Effects had transferred to Cohen the right to use the footage. Id. at 73 n. 1, 74. /quote The court ruled for Cohen after finding exactly such an implied license provision in the contract, and hence no copyright infringement; Effects should have sued for breach of contract (Cohen didn't pay the full agreed price). Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
Scripsit Michael K. Edwards [EMAIL PROTECTED] On Thu, 13 Jan 2005 07:46:18 -0500, Nathanael Nerode I guess I'm convinced. :-) That the GPL is legally an offer of contract? If so, it's good to know that the substance of my argument is persuasive to at least one person besides myself. :-) I got lost somewhere along the way: Why is it important to you whether the GPL is a contract or not? You don't have to convince me - in my home jurisdiction it is beyond dispute that application of the GPL would be a matter for our contract law, and I won't aspire to claim anything about how it works in a common-law system. But the heat of the debate nevertheless leaves me wondering what it's for. Does it make any difference, and if so, what? -- Henning Makholm Larry wants to replicate all the time ... ah, no, all I meant was that he likes to have a bang everywhere. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Thu, 13 Jan 2005 22:00:05 +, Henning Makholm [EMAIL PROTECTED] wrote: I got lost somewhere along the way: Why is it important to you whether the GPL is a contract or not? To me, personally? It bugs me to see needless conflicts within the Free Software world caused by GPL interpretations that have no foundation in law. IANAL, but I've been following the relevant case law on and off for years, as a matter of self-defense, and the FSF's positions on this and other issues look to me to be increasingly untenable and major obstacles to the very ideals of programmer freedom they profess. It's a sad way for a formerly admirable and effective organization to devolve, and I hope that it's reversible through reasoned argument. I have no axe to grind here, and I'm perfectly content not to use FSF copyright material in ways the FSF doesn't intend. I got into the whole topic again when the Linux Core Consortium proposal came up, and the (L)GPL is not a contract fiction was raised to justify why the LGPL fails to ban de facto consecration of golden binaries. The other issues in play -- whether drivers containing firmware download mechanisms have to go into contrib, whether GPL-incompatible Java code can be run on a GPL JVM, etc. -- have kept me engaged longer, and brought up more precedents, than I originally intended. You don't have to convince me - in my home jurisdiction it is beyond dispute that application of the GPL would be a matter for our contract law, and I won't aspire to claim anything about how it works in a common-law system. But the heat of the debate nevertheless leaves me wondering what it's for. Does it make any difference, and if so, what? In US jurisdictions very different standards apply to actions under contract and under tort, and in particular under the tort of copyright infringement. If a plaintiff can demonstrate a likelihood of success on the facts of copyright infringement, then he is entitled to an automatic presumption that irreparable harm will come of allowing the defendant to continue publishing the infringing work while the case is fully argued, and that presumption is quite hard to rebut. That's the big stick that the FSF tries to wave over those who misuse (in their opinion) GPL material -- disruption of their business through preliminary injunction while the case grinds its way through court. The FSF's position would be subject to much closer scrutiny under contract law in other respects as well. As a matter of law, ambiguities in a contract have to be construed against the offeror, because it is presumed that the offeror could have written the terms of the contract to be as favorable to himself as the offeree would tolerate. Statutory overrides and principles of equity may be used to alter the contract provisions and find additional implied provisions during the court's interpretation of its text. And the remedies applied are subject to pragmatic tests such as the balance of harms and reasonable standards of cure of breach. Under either legal standard, I don't believe that linking GPL and non-GPL material creates a derivative work in violation of the actual terms of the GPL. But that's another debate. Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
Michael Edwards wrote: Sorry, I'll try to be clearer. Even if the return performance is impossible without exercising rights only available under the license, it's still performance. Right, this was the very specific question we were getting to. :-) In determining the DFSG-freeness of a license, we seem to have decided essentially that requiring action or forbearance regarding activities outside the scope of the rights granted in the license renders a license non-free. Of course, that has nothing to do with whether other requirements (dependent on the license) are consideration under the law! The fact that the GPL licensee's obligations are, in some sense, impossible to perform without use of the granted license doesn't change this logic. It just contributes to the evidence that the licensee knowingly accepted the terms of the GPL. OK, that's convincing. :-) If you can find it, check out Mattei v. Hopper 1958 (California Supreme Court, referenced in Fosson and in many law course syllabi, such as http://www.google.com/search?q=cache:-_YxUolMHUwJ:community.washburnlaw.edu/aalsa/outlines/contracts-pierce.doc+mattei+v.+hopper+1958 ). Couldn't find it immediately; I hope to eventually. The description in the syllabus is Rule: a promise that is conditional on the promisor's satisfaction with a related matter is enforceable. Unfortunately, I don't quite grok what the promisor's satisfaction with a related matter means! It sounds like it refers to the kind of question we're discussing here though. If it does, that would be the case answering the question which started the thread. :-) -- Another points I found interesting about the syllabus was the section on Reliance as a basis of enforecement (with cases dating to 1898). Reliance by the promisee is a separate and distinct basis for the enforcement of promises... A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise... Promissory estoppel is a substitute for consideration... *This* was the part I was vaguely remembering. Users of GPL-licensed software, BSD-licensed software, etc. -- and particularly creators of derived works -- quite definitely rely on the promises of the licensor to license under those terms, and take actions based on them, and those actions would be deeply to their detriment (and to the detriment of third parties!) if the promise is broken. Furthermore, the person issuing software under the GPL should reasonably expect (even desire) these actions. Injustice will be clearly caused to everyone downstream if the promise is broken. Another case quoted in that syllabus leapt out at me (this under the consideration section!): Feinberg v. Pfeiffer Co (Mo. 1959) (Gratuitous pension plan) Rule: a gratuitous pension plan is enforceable if the promisee retires in reliance on continued payments. Promissory estoppel is now a recognized species of consideration I think that the reliance of the recipients of the GPL-licensed works on the license is likely to be useful in proving that there is an enforceable contract. This was also interesting: The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person This tends to indicate that the licensing requirements given by the GPL -- and, indeed, the notice requirements in the BSD license -- can constitute consideration even though they are not given directly to the licensor. Various stuff also links in interestingly to what you say here: For what it's worth, the case law I've read (I don't have Nimmer or the like handy) points out that a copyright license is really just an enforceable promise not to pursue an infringement claim under certain circumstances. I guess I'm convinced. :-) -- Nathanael Nerode neroden at gcc.gnu.org US citizens: if you're considering voting for Bush, look at these first: http://www.misleader.org/ http://www.cbc.ca/news/background/arar/ http://www.house.gov/reform/min/politicsandscience/
Re: Questions about legal theory behind (L)GPL
Michael K. Edwards wrote: As far as I can tell, the only mechanism for conveying such an implied license is an implied contract, and when there is a written agreement involved, a court will only find an implied license as an implied provision in that agreement. As I wrote before, if anyone can cite legal precedent to the contrary EFFECTS ASSOCIATES, INC. v. Larry Cohen, et. al. http://www.kentlaw.edu/e-Ukraine/copyright/cases/effects_v_cohen.html perhaps.
Re: Questions about legal theory behind (L)GPL
Actually, Effects v. Cohen is a prime example of implied license as an implied provision in the existing contract: quote section=FN1 The district court initially dismissed the suit, holding that it was primarily a contract dispute and, as such, did not arise under federal law. In an opinion remarkable for its lucidity, we reversed and remanded, concluding that plaintiff was master of his claim and could opt to pursue the copyright infringement action instead of suing on the contract. Effects Assocs., Inc. v. Cohen, 817 F.2d 72, 73 (9th Cir.1987). We recognized that the issue on remand would be whether Effects had transferred to Cohen the right to use the footage. Id. at 73 n. 1, 74. /quote The court ruled for Cohen after finding exactly such an implied license provision in the contract, and hence no copyright infringement; Effects should have sued for breach of contract (Cohen didn't pay the full agreed price). Cheers, - Michael
Re: Questions about legal theory behind (L)GPL
On Thu, 13 Jan 2005 07:46:18 -0500, Nathanael Nerode [EMAIL PROTECTED] wrote: Michael Edwards wrote: Sorry, I'll try to be clearer. Even if the return performance is impossible without exercising rights only available under the license, it's still performance. Right, this was the very specific question we were getting to. :-) In determining the DFSG-freeness of a license, we seem to have decided essentially that requiring action or forbearance regarding activities outside the scope of the rights granted in the license renders a license non-free. Of course, that has nothing to do with whether other requirements (dependent on the license) are consideration under the law! That makes perfect sense. That's the interpretation that makes GPL v2 DFSG-free, which is of course the right outcome, without misinterpreting its legal nature. [snip] Couldn't find [Mattei] immediately; I hope to eventually. The description in the syllabus is Rule: a promise that is conditional on the promisor's satisfaction with a related matter is enforceable. Unfortunately, I don't quite grok what the promisor's satisfaction with a related matter means! It sounds like it refers to the kind of question we're discussing here though. If it does, that would be the case answering the question which started the thread. :-) This means that the person on the other end of the contract (promisee) can't succeed on a claim that the contract is invalid because the promisor's obligation (an otherwise valid promise made conditional) is too weak. The factual situation in Mattei was that A agreed to sell some land to B, and B agreed to buy conditional on B succeeding in finding lessees for the building B intended to build. When B came back and said OK, we've found enough lessees and we want to go forward with the purchase, A tried to back out, and claimed that the contract was no good because B had reserved the right to back out at B's discretion. The court ruled in favor of B, saying that B's conditional promise was sufficient consideration to bind A to the agreed contract terms. [An abridged Mattei opinion is available at http://www.scu.edu/law/FacWebPage/Neustadter/e-books/abridged/main/cases/mattei.htm ] [snip] I think that the reliance of the recipients of the GPL-licensed works on the license is likely to be useful in proving that there is an enforceable contract. That's probably also a valid argument, but I don't think it's needed, and I expect that standards of reliance vary more from jurisdiction to jurisdiction and are harder to demonstrate in the context of a preliminary injunction proceeding (IANAL). This was also interesting: The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person This tends to indicate that the licensing requirements given by the GPL -- and, indeed, the notice requirements in the BSD license -- can constitute consideration even though they are not given directly to the licensor. I think that statement has mostly to do with consideration that comes from one of the main parties' agents-in-fact (e. g., I authorize my insurance company to give you an annuity if you waive the right to sue me for your injury) rather than the less common case of an unrelated third-party beneficiary. Various stuff also links in interestingly to what you say here: For what it's worth, the case law I've read (I don't have Nimmer or the like handy) points out that a copyright license is really just an enforceable promise not to pursue an infringement claim under certain circumstances. I guess I'm convinced. :-) That the GPL is legally an offer of contract? If so, it's good to know that the substance of my argument is persuasive to at least one person besides myself. :-) Cheers, - Michael
Re: Questions about legal theory behind (L)GPL
Scripsit Michael K. Edwards [EMAIL PROTECTED] On Thu, 13 Jan 2005 07:46:18 -0500, Nathanael Nerode I guess I'm convinced. :-) That the GPL is legally an offer of contract? If so, it's good to know that the substance of my argument is persuasive to at least one person besides myself. :-) I got lost somewhere along the way: Why is it important to you whether the GPL is a contract or not? You don't have to convince me - in my home jurisdiction it is beyond dispute that application of the GPL would be a matter for our contract law, and I won't aspire to claim anything about how it works in a common-law system. But the heat of the debate nevertheless leaves me wondering what it's for. Does it make any difference, and if so, what? -- Henning Makholm Larry wants to replicate all the time ... ah, no, all I meant was that he likes to have a bang everywhere.
Re: Questions about legal theory behind (L)GPL
On Thu, 13 Jan 2005 22:00:05 +, Henning Makholm [EMAIL PROTECTED] wrote: I got lost somewhere along the way: Why is it important to you whether the GPL is a contract or not? To me, personally? It bugs me to see needless conflicts within the Free Software world caused by GPL interpretations that have no foundation in law. IANAL, but I've been following the relevant case law on and off for years, as a matter of self-defense, and the FSF's positions on this and other issues look to me to be increasingly untenable and major obstacles to the very ideals of programmer freedom they profess. It's a sad way for a formerly admirable and effective organization to devolve, and I hope that it's reversible through reasoned argument. I have no axe to grind here, and I'm perfectly content not to use FSF copyright material in ways the FSF doesn't intend. I got into the whole topic again when the Linux Core Consortium proposal came up, and the (L)GPL is not a contract fiction was raised to justify why the LGPL fails to ban de facto consecration of golden binaries. The other issues in play -- whether drivers containing firmware download mechanisms have to go into contrib, whether GPL-incompatible Java code can be run on a GPL JVM, etc. -- have kept me engaged longer, and brought up more precedents, than I originally intended. You don't have to convince me - in my home jurisdiction it is beyond dispute that application of the GPL would be a matter for our contract law, and I won't aspire to claim anything about how it works in a common-law system. But the heat of the debate nevertheless leaves me wondering what it's for. Does it make any difference, and if so, what? In US jurisdictions very different standards apply to actions under contract and under tort, and in particular under the tort of copyright infringement. If a plaintiff can demonstrate a likelihood of success on the facts of copyright infringement, then he is entitled to an automatic presumption that irreparable harm will come of allowing the defendant to continue publishing the infringing work while the case is fully argued, and that presumption is quite hard to rebut. That's the big stick that the FSF tries to wave over those who misuse (in their opinion) GPL material -- disruption of their business through preliminary injunction while the case grinds its way through court. The FSF's position would be subject to much closer scrutiny under contract law in other respects as well. As a matter of law, ambiguities in a contract have to be construed against the offeror, because it is presumed that the offeror could have written the terms of the contract to be as favorable to himself as the offeree would tolerate. Statutory overrides and principles of equity may be used to alter the contract provisions and find additional implied provisions during the court's interpretation of its text. And the remedies applied are subject to pragmatic tests such as the balance of harms and reasonable standards of cure of breach. Under either legal standard, I don't believe that linking GPL and non-GPL material creates a derivative work in violation of the actual terms of the GPL. But that's another debate. Cheers, - Michael
Re: Questions about legal theory behind (L)GPL
On Tue, 11 Jan 2005 10:49:08 +0100, Batist Paklons [EMAIL PROTECTED] wrote: On Mon, 10 Jan 2005 21:02:35 -0800, Michael K. Edwards [EMAIL PROTECTED] wrote: The exoneration precedent (no penetrating the veil of agency via tort if there's contract language to cover the conduct) is very interesting. It suggests that anyone who accepts copyright license under the GPL is bound by the no warranty clause, unless it's overridden by statutory fair trade provisions. Right? You are right, but the 'no warranty clause' is somewhat obnoxious as an example, because it will be overridden. Under Belgian civil law it is not possible to exonerate for every liability. You cannot exonerate for intentional damage (for instance a program released under GPL that intentional causes damage). And then there is some special consumer protection and product liability in Europe that even goes further[1]. That's the kind of statutory provision I had in mind -- implicit limitations on what terms a contract may contain. As I understand you, contract terms can't be used to extract impunity for malicious conduct or some kinds of product liability. So it's not that the veil of agency is penetrated, it's that conduct outside the contract (after it is implicitly edited by statute) doesn't count as agency. But the more interesting aspect of the veil of agency (I like that term - it is quite close to how we call it), is that someone who is not the copyright holder, but worked on the software (e.g. outsourcing with a clause that transfers all economic authorship rights to the contractor), cannot be sued for liability under the GPL. Instead the copyright holder must be sued, and will not be held liable insofar as he is legally allowed. If, of course, the GPL is a contract between copyright holder(s) and licensee. :) Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Tue, 11 Jan 2005 10:49:08 +0100, Batist Paklons [EMAIL PROTECTED] wrote: On Mon, 10 Jan 2005 21:02:35 -0800, Michael K. Edwards [EMAIL PROTECTED] wrote: The exoneration precedent (no penetrating the veil of agency via tort if there's contract language to cover the conduct) is very interesting. It suggests that anyone who accepts copyright license under the GPL is bound by the no warranty clause, unless it's overridden by statutory fair trade provisions. Right? You are right, but the 'no warranty clause' is somewhat obnoxious as an example, because it will be overridden. Under Belgian civil law it is not possible to exonerate for every liability. You cannot exonerate for intentional damage (for instance a program released under GPL that intentional causes damage). And then there is some special consumer protection and product liability in Europe that even goes further[1]. That's the kind of statutory provision I had in mind -- implicit limitations on what terms a contract may contain. As I understand you, contract terms can't be used to extract impunity for malicious conduct or some kinds of product liability. So it's not that the veil of agency is penetrated, it's that conduct outside the contract (after it is implicitly edited by statute) doesn't count as agency. But the more interesting aspect of the veil of agency (I like that term - it is quite close to how we call it), is that someone who is not the copyright holder, but worked on the software (e.g. outsourcing with a clause that transfers all economic authorship rights to the contractor), cannot be sued for liability under the GPL. Instead the copyright holder must be sued, and will not be held liable insofar as he is legally allowed. If, of course, the GPL is a contract between copyright holder(s) and licensee. :) Cheers, - Michael
Re: Questions about legal theory behind (L)GPL
On Mon, 10 Jan 2005 21:02:35 -0800, Michael K. Edwards [EMAIL PROTECTED] wrote: The exoneration precedent (no penetrating the veil of agency via tort if there's contract language to cover the conduct) is very interesting. It suggests that anyone who accepts copyright license under the GPL is bound by the no warranty clause, unless it's overridden by statutory fair trade provisions. Right? You are right, but the 'no warranty clause' is somewhat obnoxious as an example, because it will be overridden. Under Belgian civil law it is not possible to exonerate for every liability. You cannot exonerate for intentional damage (for instance a program released under GPL that intentional causes damage). And then there is some special consumer protection and product liability in Europe that even goes further[1]. But the more interesting aspect of the veil of agency (I like that term - it is quite close to how we call it), is that someone who is not the copyright holder, but worked on the software (e.g. outsourcing with a clause that transfers all economic authorship rights to the contractor), cannot be sued for liability under the GPL. Instead the copyright holder must be sued, and will not be held liable insofar as he is legally allowed. Kind regards batist [1] two European directives that, each in their way, can cause liability: directive n° 374 of 1985 on liability for defective products: if the software is incorporated in a tangible product directive n° 44 of 1999 on the sale of consumer goods, insofar as the software isn't of the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect (off course, the low price for open source software does lead to lower expectations). both can easily be found on http://europa.eu.int/eur-lex
Re: Questions about legal theory behind (L)GPL
Brian Thomas Sniffen [EMAIL PROTECTED] wrote: Michael K. Edwards [EMAIL PROTECTED] writes: The only form in which the GPL can be read as requiring any conduct from licensees (such as the provision of copies of source code on demand and the extension of the GPL to the licensee's copyright in derived works) is as an offer of (bilateral) contract, duly accepted by the licensee, in return for valid consideration. If anyone can cite legal precedent to the contrary, now would be a good time to mention it; [EMAIL PROTECTED] doesn't seem to have any to offer. Fortunately, the set of GPL provisions we use don't require any conduct from licensees. The GPL unilaterally grants licenses to perform certain conduct. For example, it grants the right to derive new works which contain changelogs. It grants the right to distribute binaries with source code. None of its behaviors are demanded of licensees -- they merely grant privileges to which the licensee would not otherwise have access. I have, in fact, heard this argument. I just don't buy it in the absence of specific legal precedent -- and honestly, I've looked. Offering the licensee's modifications under the GPL, and making and fulfilling offers to distribute source code, are obligations agreed to by the licensee, and the fact that they are only triggered in conjunction with exercise of rights granted by the licensor doesn't make them any less so. Some of the cases I cited go into detail about the precedent for conditional promises being adequate consideration to form a contract. The two cases I have found in which the GPL is mentioned (one appellate, one district) apply standards which are, at least to my untutored eye, obviously those of contract and commerce rather than copyright law. [a quote from Nathanael Nerode, not myself] However, if the contract formed in the GPL isn't such an exchange, then it can only be one thing: a promise to make a gift. And presumably one of a variety which is an enforceable contract. Or it can be just a gift, with no promises or contracts involved. It's a gift of an intangible, so the only way you can see that it's there is by words which themselves are actions -- just like I invite you into my home is a gift of privilege to enter. It doesn't grant you the privilege to enter, say, the shed out back -- even though that might be part of the same property. Just so, the rights reserved to the author by copyright law may be parceled out as separate gifts. Yes, by means of one or more contracts. Case law appears to me to be clear that such a gift is only enforceable when interpreted as an implied contract-in-fact. When there's a written offer of contract, then prima facie its terms apply; even under the character of a unilateral license, the GPL would be governed by contract law. In any case, a gift is a transfer of ownership Really? What is it when I invite you into my home? An invitation. A grant of license, if you like, at least in the non-legal sense of license (permission) -- but not a gift, as no property right is on offer. and a non-exclusive copyright license is not; courts in the US have consistently declined to find implicit transfers of ownership or of the right to sub-license, and only a valid contract can bind a copyright holder to issue a license. But in the case of the GPL, he's not bound. It's just that he's already issued the license -- or are you talking about some case other than an author releasing his own works under the GPL? The GPL purports to bind the licensor to issue a perpetual (barring breach) license to copy, sublicense, etc. That implies a contract without termination (although there is a statutory right to terminate, e. g., in the US after 35 years). It's a nice theory that releasing software under the GPL is a one-shot action, complete as of the moment that a licensee receives the tarball, but it just ain't true, at least under US law. I have cited cases elsewhere which demonstrate, at least to my satisfaction with regard to US precedent, that the GPL is an ordinary bilateral contract, not some sort of unilateral gift of gerrymandered copyright territory. Then what's the BSD license? Still going to claim it's a contract, and not what it plainly is: a license? IANAL, but I would venture to say that the BSD license is just a copyright notice and notice of unilateral grant with extra disclaimer verbiage. Perhaps the licensor can enforce that the notice remain unaltered, warranty disclaimer and all, as a precaution against misrepresentation of the scope of the grant, without claiming to have formed a valid contract. I think acceptance through conduct could still be demonstrated, but the BSD license doesn't contain any return obligations with regard to the software to which it applies, so none of the arguments about consideration in the GPL fit. To find an obstacle to rescission of the grant by the copyright
Re: Questions about legal theory behind (L)GPL
On Mon, 10 Jan 2005 23:41:16 +0100, Francesco Poli [EMAIL PROTECTED] wrote: On Mon, 10 Jan 2005 10:32:02 -0800 Michael K. Edwards wrote: The GPL purports to bind the licensor to issue a perpetual (barring breach) license to copy, sublicense, etc. ^^ I don't see where the GPL permits me to sublicense... I think it's implicit in granting the right to distribute a modified work, since that usually requires permission from the copyright holder on the original work even if one is already licensed to copy and distribute the original. That suggests that the grant of license extends to authority to sublicense subject to the stated constraints. But I haven't looked up the law on that, and it's not essential to any argument I've made. That implies a contract without termination (although there is a statutory right to terminate, e. g., in the US after 35 years). It's a nice theory that releasing software under the GPL is a one-shot action, complete as of the moment that a licensee receives the tarball, but it just ain't true, at least under US law. I'm not convinced by your arguments: I still can't see where the licensor is bound to do something. Suppose Jessica F. Hacker wrote a program and followed the instructrions she found at the end of the GPLv2 text. Then she uploaded the source tarball to Savannah and disappeared (in the sense that nobody ever heard of her anymore). What are her obligations? I fail to see any... She has issued a promise not to pursue a copyright infringement claim (that's what a copyright license is, basically, at least in the case law I've read). The only basis on which that promise is enforceable on her is that she has made, and the recipient has accepted, an offer of contract, and the term of that contract has not expired. It's not like I'm making this stuff up. The law on copyright could have been different, given a different history; and for all I know, it may be different in Italy. But I think many people rely for their understanding on the FSF's exegesis, the FSF is based in the US, and their stance on the existence of a non-contract license is, as far as I can tell, systematically contradicted by US case law, of which the cases I've cited are just the tip of the iceberg. Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Sat, 8 Jan 2005 06:04:36 -0500, Nathanael Nerode [EMAIL PROTECTED] wrote: Sorry this is so long and meandering... By comparison with some of the things I write, it's a model of linearity. :) But my response is necessarily long as well. I wrote: There's a reason I used the analogy of You may walk on my property, provided you walk barefoot. It's different from You may walk on my property, provided you give me five dollars. Despite the formulation, it actually amounts to You may walk barefoot on my property. Michael Edwards wrote: That's a poor analogy. It's more like drink all the water you can hold, wash your face, cool your feet; but leave a bottleful for others, thank you kindly, Desert Pete Well, I don't quite understand the details of your analogy (dangers of using song lyrics), but it appears flawed. It looks like you would have to get a bottle, fill it, and leave it, in order to satisfy the license. If it doesn't mean that :-), and instead means you may take water, any amount such that there is less than 1 liter left, then it is the same as my analogy. (Well, for purposes of analysis.) Sorry, I'll try to be clearer. Even if the return performance is impossible without exercising rights only available under the license, it's still performance. It's not a limitation on the scope of the grant, like you are permitted to copy verbatim, but not to take excerpts or you are permitted to copy in writing, but not to perform publicly. There's absolutely nothing wrong with my analogy. :-) Please look at the GPL's restrictions carefully; essentially every one is a restriction on something which you are simply not permitted to do without the GPL's license grant. (For purposes of argument, ignore 3b and 3c, which are clearly contract-forming; 3a is considered to be the DFSG-free option.) For what it's worth, the case law I've read (I don't have Nimmer or the like handy) points out that a copyright license is really just an enforceable promise not to pursue an infringement claim under certain circumstances. In most causes of action involving a claim of license violation, a court has to evaluate the facts under contract standards first (was there a breach on the licensee's part that triggered rescission of the grant of license? did the licensee's conduct exceed the scope of the grant?) before any standard appropriate to copyright law becomes relevant. Sun v. Microsoft is a good example -- the appeals court vacated the injunction against Microsoft, and sent the case back to the district court, precisely because the district court had failed to follow this procedure. The fact that the GPL licensee's obligations are, in some sense, impossible to perform without use of the granted license doesn't change this logic. It just contributes to the evidence that the licensee knowingly accepted the terms of the GPL. My analogy is perfectly correct. However, I really don't know whether You may walk barefoot on my property forms a contract. It might, under certain circumstances! Not as far as I know (IANAL). It's not enforceable on you in any ongoing way; you can come up, rip up the sign, and say get lost. The sign's having been present previously would be evidence of innocent intent in defending against a trespassing charge, but that's about it. No. I'm claiming that both licensor and licensee are bound by the terms of the contract once it is accepted. I cited the obligations to distribute source code to recipients of binaries and to offer copyright license in derivative works if they are distributed as examples of conditional promises made by the licensee, amply sufficient to form consideration in that direction according to the cases I have cited. This is interesting. However, the cases you have cited do not appear to address situations like the GPL directly. (1) How does this analysis apply to people who do *not* distribute? They have few to no conditions on their behavior. That's what Specht v. Netscape seems to say; anything you could do to your copy of a free newspaper without violating the copyright holder's rights, you can do to freely distributed software. Whether that extends to modifying it and using it locally, perhaps integrated with non-free code, I don't know; the case law I have found on misuse of licensed software didn't suffer from lack of a valid contract. (2) People are only granted permission to distribute source code by the license. Given that, how do restrictions on the nature of the distribution allowed (source code or binary + source only; legal notices included; copy of GPL included; etc.) constitute consideration? The precedent isn't perfect on consideration, as I said, but the Planetary Motion opinion was eloquent on the subject of the advantages of having one's code distributed under the GPL, even without considering the two obligations of specific performance I named (making and fulfilling offers to distribute the
Re: Questions about legal theory behind (L)GPL
Thanks, Batist; it's good to hear how this works in a civil law system. I didn't think it likely that licenses came in a non-contract form there either. Judging from your comments and from http://www.unesco.org/culture/copy/copyright/belgium/page1.html , it sounds like copyright licenses are standard written contracts interpreted under the Civil Code, according to whatever standards of acceptance and consideration prevail there. The exoneration precedent (no penetrating the veil of agency via tort if there's contract language to cover the conduct) is very interesting. It suggests that anyone who accepts copyright license under the GPL is bound by the no warranty clause, unless it's overridden by statutory fair trade provisions. Right? Cheers, - Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
Brian Thomas Sniffen [EMAIL PROTECTED] wrote: Michael K. Edwards [EMAIL PROTECTED] writes: The only form in which the GPL can be read as requiring any conduct from licensees (such as the provision of copies of source code on demand and the extension of the GPL to the licensee's copyright in derived works) is as an offer of (bilateral) contract, duly accepted by the licensee, in return for valid consideration. If anyone can cite legal precedent to the contrary, now would be a good time to mention it; [EMAIL PROTECTED] doesn't seem to have any to offer. Fortunately, the set of GPL provisions we use don't require any conduct from licensees. The GPL unilaterally grants licenses to perform certain conduct. For example, it grants the right to derive new works which contain changelogs. It grants the right to distribute binaries with source code. None of its behaviors are demanded of licensees -- they merely grant privileges to which the licensee would not otherwise have access. I have, in fact, heard this argument. I just don't buy it in the absence of specific legal precedent -- and honestly, I've looked. Offering the licensee's modifications under the GPL, and making and fulfilling offers to distribute source code, are obligations agreed to by the licensee, and the fact that they are only triggered in conjunction with exercise of rights granted by the licensor doesn't make them any less so. Some of the cases I cited go into detail about the precedent for conditional promises being adequate consideration to form a contract. The two cases I have found in which the GPL is mentioned (one appellate, one district) apply standards which are, at least to my untutored eye, obviously those of contract and commerce rather than copyright law. [a quote from Nathanael Nerode, not myself] However, if the contract formed in the GPL isn't such an exchange, then it can only be one thing: a promise to make a gift. And presumably one of a variety which is an enforceable contract. Or it can be just a gift, with no promises or contracts involved. It's a gift of an intangible, so the only way you can see that it's there is by words which themselves are actions -- just like I invite you into my home is a gift of privilege to enter. It doesn't grant you the privilege to enter, say, the shed out back -- even though that might be part of the same property. Just so, the rights reserved to the author by copyright law may be parceled out as separate gifts. Yes, by means of one or more contracts. Case law appears to me to be clear that such a gift is only enforceable when interpreted as an implied contract-in-fact. When there's a written offer of contract, then prima facie its terms apply; even under the character of a unilateral license, the GPL would be governed by contract law. In any case, a gift is a transfer of ownership Really? What is it when I invite you into my home? An invitation. A grant of license, if you like, at least in the non-legal sense of license (permission) -- but not a gift, as no property right is on offer. and a non-exclusive copyright license is not; courts in the US have consistently declined to find implicit transfers of ownership or of the right to sub-license, and only a valid contract can bind a copyright holder to issue a license. But in the case of the GPL, he's not bound. It's just that he's already issued the license -- or are you talking about some case other than an author releasing his own works under the GPL? The GPL purports to bind the licensor to issue a perpetual (barring breach) license to copy, sublicense, etc. That implies a contract without termination (although there is a statutory right to terminate, e. g., in the US after 35 years). It's a nice theory that releasing software under the GPL is a one-shot action, complete as of the moment that a licensee receives the tarball, but it just ain't true, at least under US law. I have cited cases elsewhere which demonstrate, at least to my satisfaction with regard to US precedent, that the GPL is an ordinary bilateral contract, not some sort of unilateral gift of gerrymandered copyright territory. Then what's the BSD license? Still going to claim it's a contract, and not what it plainly is: a license? IANAL, but I would venture to say that the BSD license is just a copyright notice and notice of unilateral grant with extra disclaimer verbiage. Perhaps the licensor can enforce that the notice remain unaltered, warranty disclaimer and all, as a precaution against misrepresentation of the scope of the grant, without claiming to have formed a valid contract. I think acceptance through conduct could still be demonstrated, but the BSD license doesn't contain any return obligations with regard to the software to which it applies, so none of the arguments about consideration in the GPL fit. To find an obstacle to rescission of the grant by the copyright
Re: Questions about legal theory behind (L)GPL
On Mon, 10 Jan 2005 10:32:02 -0800 Michael K. Edwards wrote: The GPL purports to bind the licensor to issue a perpetual (barring breach) license to copy, sublicense, etc. ^^ I don't see where the GPL permits me to sublicense... That implies a contract without termination (although there is a statutory right to terminate, e. g., in the US after 35 years). It's a nice theory that releasing software under the GPL is a one-shot action, complete as of the moment that a licensee receives the tarball, but it just ain't true, at least under US law. I'm not convinced by your arguments: I still can't see where the licensor is bound to do something. Suppose Jessica F. Hacker wrote a program and followed the instructrions she found at the end of the GPLv2 text. Then she uploaded the source tarball to Savannah and disappeared (in the sense that nobody ever heard of her anymore). What are her obligations? I fail to see any... Anyone who downloads this initial version has some rights (create and distribute GPL'd modified versions, for instance), but not other ones (create and distribute proprietary modified versions, for instance). Note that (as has already been pointed out) none of these rights would hold if Jessica didn't authorize those operations (and Jessica authorized the former, but not the latter ones). I don't know if the GPL is a contract or some other thing (it mainly depends on the definition of the term contract, which in turn depends on the jurisdiction...). But it smells like a unilateral and asymmetrical thing: I cannot see how it could be considered a bilateral contract or bilater something... The licensor grants some permissions and the licensee gets them without losing any rights he/she had before... -- Today is the tomorrow you worried about yesterday. .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpdXhHNEDf3E.pgp Description: PGP signature
Re: Questions about legal theory behind (L)GPL
On Mon, 10 Jan 2005 23:41:16 +0100, Francesco Poli [EMAIL PROTECTED] wrote: On Mon, 10 Jan 2005 10:32:02 -0800 Michael K. Edwards wrote: The GPL purports to bind the licensor to issue a perpetual (barring breach) license to copy, sublicense, etc. ^^ I don't see where the GPL permits me to sublicense... I think it's implicit in granting the right to distribute a modified work, since that usually requires permission from the copyright holder on the original work even if one is already licensed to copy and distribute the original. That suggests that the grant of license extends to authority to sublicense subject to the stated constraints. But I haven't looked up the law on that, and it's not essential to any argument I've made. That implies a contract without termination (although there is a statutory right to terminate, e. g., in the US after 35 years). It's a nice theory that releasing software under the GPL is a one-shot action, complete as of the moment that a licensee receives the tarball, but it just ain't true, at least under US law. I'm not convinced by your arguments: I still can't see where the licensor is bound to do something. Suppose Jessica F. Hacker wrote a program and followed the instructrions she found at the end of the GPLv2 text. Then she uploaded the source tarball to Savannah and disappeared (in the sense that nobody ever heard of her anymore). What are her obligations? I fail to see any... She has issued a promise not to pursue a copyright infringement claim (that's what a copyright license is, basically, at least in the case law I've read). The only basis on which that promise is enforceable on her is that she has made, and the recipient has accepted, an offer of contract, and the term of that contract has not expired. It's not like I'm making this stuff up. The law on copyright could have been different, given a different history; and for all I know, it may be different in Italy. But I think many people rely for their understanding on the FSF's exegesis, the FSF is based in the US, and their stance on the existence of a non-contract license is, as far as I can tell, systematically contradicted by US case law, of which the cases I've cited are just the tip of the iceberg. Cheers, - Michael
Re: Questions about legal theory behind (L)GPL
Thanks, Batist; it's good to hear how this works in a civil law system. I didn't think it likely that licenses came in a non-contract form there either. Judging from your comments and from http://www.unesco.org/culture/copy/copyright/belgium/page1.html , it sounds like copyright licenses are standard written contracts interpreted under the Civil Code, according to whatever standards of acceptance and consideration prevail there. The exoneration precedent (no penetrating the veil of agency via tort if there's contract language to cover the conduct) is very interesting. It suggests that anyone who accepts copyright license under the GPL is bound by the no warranty clause, unless it's overridden by statutory fair trade provisions. Right? Cheers, - Michael
Re: Questions about legal theory behind (L)GPL
On Thu, 6 Jan 2005 23:55:25 -0800, Michael K. Edwards [EMAIL PROTECTED] wrote: I've cited cases about implied licenses under both the 1909 and 1976 Copyright Acts (in the US). As far as I can tell, the only mechanism for conveying such an implied license is an implied contract, and when there is a written agreement involved, a court will only find an implied license as an implied provision in that agreement. As I wrote before, if anyone can cite legal precedent to the contrary (I don't claim to have made more than the most cursory search of law outside the US, and IANAL in any jurisdiction), now would be a good time to mention it. As for Belgian jurisdiction (which would be quite similar to other European continental systems) according to the authorship act (I'm not using copyright, Belgium is a so called 'droit d'auteur' system): Economic authorship rights can be transferred, either in license or as a whole (moral rights cannot be transferred). Those economic rights are considered as an intangible good, and transfer happens according to civil law code as any other good. Some differences though: to enforce rights from the author (which would be the licensor), the contract must be written; interpretation is restrictive, and to the advantage of the author; the author cannot transfer all his rights, namely not those on techniques of exploitation that do not exist yet; the exploitation technique, scope, duration and renumeration of the transfer must be explicitly mentioned; fair economic customs and usages must be followed; transfer of economic rights on future works is limited. Otherwise civil code applies. (this is the authorship act - case precedents do not have force of law) On to implied licenses then. Because of the many restrictions - the written contract, the mentioning of duration and so on - little room is left for any implied license terms (an implied license is out of the question). If there are any implied terms, those should be within reason, and part of fair economic trade usages. These economic trade usages are not many - but a long term relationship between the parties can convey trade usages between those parties. As to the infringement. There is an important case (here we do have some case precedent law) of our supreme court that says that one cannot claim damages outside a contract if there is a contract (Alice has a transport of goods contract with Bob, Bob has a contract with Charlie to move the goods from the shore to the ship. Charlie damages the goods. Alice cannot sue Bob, because he has lawfully exonerated himself from fault from third parties. Alice cannot sue Charlie, because she has a contractual relation on the goods with Bob). Thus any infringement procedure must come from the license contract itself, and every term that is infringed must be part of that contract. Thus even less room for implied terms (they cannot be based on the general fault tort - a bit like the tort of negligence but broader). So conclusively there are little odds an implied license, or implied terms of the license, will ever hold legal force in Belgian jurisdiction. It is more probable that explicit terms will be adjusted to conform to fair trade usages - or the whole contract made void. I believe this is what you needed to know, if there are further questions just shoot. Kind regards tist
Re: Questions about legal theory behind (L)GPL
Michael K. Edwards [EMAIL PROTECTED] writes: The only form in which the GPL can be read as requiring any conduct from licensees (such as the provision of copies of source code on demand and the extension of the GPL to the licensee's copyright in derived works) is as an offer of (bilateral) contract, duly accepted by the licensee, in return for valid consideration. If anyone can cite legal precedent to the contrary, now would be a good time to mention it; [EMAIL PROTECTED] doesn't seem to have any to offer. Fortunately, the set of GPL provisions we use don't require any conduct from licensees. The GPL unilaterally grants licenses to perform certain conduct. For example, it grants the right to derive new works which contain changelogs. It grants the right to distribute binaries with source code. None of its behaviors are demanded of licensees -- they merely grant privileges to which the licensee would not otherwise have access. However, if the contract formed in the GPL isn't such an exchange, then it can only be one thing: a promise to make a gift. And presumably one of a variety which is an enforceable contract. Or it can be just a gift, with no promises or contracts involved. It's a gift of an intangible, so the only way you can see that it's there is by words which themselves are actions -- just like I invite you into my home is a gift of privilege to enter. It doesn't grant you the privilege to enter, say, the shed out back -- even though that might be part of the same property. Just so, the rights reserved to the author by copyright law may be parceled out as separate gifts. In any case, a gift is a transfer of ownership Really? What is it when I invite you into my home? and a non-exclusive copyright license is not; courts in the US have consistently declined to find implicit transfers of ownership or of the right to sub-license, and only a valid contract can bind a copyright holder to issue a license. But in the case of the GPL, he's not bound. It's just that he's already issued the license -- or are you talking about some case other than an author releasing his own works under the GPL? I have cited cases elsewhere which demonstrate, at least to my satisfaction with regard to US precedent, that the GPL is an ordinary bilateral contract, not some sort of unilateral gift of gerrymandered copyright territory. Then what's the BSD license? Still going to claim it's a contract, and not what it plainly is: a license? With all due respect to you and to the FSF, trying to situate the (L)GPL outside the realm of ordinary bilateral contract doesn't simplify our lives. Where precedents are thin on the ground, a court has more scope to create novel law by reaching past the letter of a statute or an agreement to find legislative intent or a principle of equity. Precedents regarding licenses and grants can hardly be scarce. I'm not a lawyer, and I don't have the research skills you so masterfully demonstrate so I don't have an example to hold up. -Brian -- Brian Sniffen [EMAIL PROTECTED]
Re: Questions about legal theory behind (L)GPL
On Sat, Jan 08, 2005 at 04:21:32PM -0500, Brian Thomas Sniffen wrote: But in the case of the GPL, he's not bound. It's just that he's already issued the license -- or are you talking about some case other than an author releasing his own works under the GPL? I don't think he's claiming that the GPL itself is a contract. I think he's saying that it constitutes an offer of a contract. More specifically, it offers an exchange: A person is granted the right to copy and distribute derived works based on the GPL'd Program if the person releases any added material under compatible terms. Then again, it seems to me that you're saying that since all offers to release derived works are only valid if the terms of added material are compatible with the terms of the original, which is probably also correct. Anyways, near as I can piece together, here's the exchange in value that Michael K. Edwards is talking about: Licensee: gains the right to distribute derived works based on the GPL'd program (and I have no argument -- this is valuable) Licensor: gains ... this is where I have a problem seeing his argument. And, without some benefit to the Licensor, the contract is unilateral, benefiting only the Licensee. The Licensor is asking that the new materials be released under compatible terms, but that's a public benefit and needn't benefit the Licensor at all. I suppose you could claim that this makes the resulting contract trilateral (with the public as the third party, and good will being the thing of value received by the Licensor from the public). But I'd be hard-pressed to find any contract law precedent for this line of thought. -- Raul
Re: Questions about legal theory behind (L)GPL
Raul Miller wrote: [snip] Are you saying that copyright law is always equivalent to a bilateral contract? Far from it. I am saying that: the legally recognized mechanism for granting a copyright license, in any jurisdiction I have heard named, is a contract; there is ample precedent, at least under US law, for finding such a contract in the terms of the GPL; in the presence of such a contract, the contract terms must be demonstrably breached before recourse to copyright law is available; and the only form of binding unilateral copyright license for which I have been able to find the weakest of precedents doesn't fit the GPL, so either it's a valid bilateral contract (subject to standards of acceptance and consideration) or it has no legal force at all. I've cited cases about implied licenses under both the 1909 and 1976 Copyright Acts (in the US). As far as I can tell, the only mechanism for conveying such an implied license is an implied contract, and when there is a written agreement involved, a court will only find an implied license as an implied provision in that agreement. As I wrote before, if anyone can cite legal precedent to the contrary (I don't claim to have made more than the most cursory search of law outside the US, and IANAL in any jurisdiction), now would be a good time to mention it. Are you saying that there are no precedents in copyright law for conditions being imposed on secondary publishers? Secondary publication, as I understand it, refers to a separate non-exclusive license granted by an author to a second publisher after initial publication, usually in a journal or other periodical. Academic journals often require that secondary publication be free of charge, and periodicals of all kinds frequently require a minimum waiting period between initial and secondary publication, as well as an explicit mention in the secondary publication of the periodical in which it was first published. Other business arrangements are common in other publication channels. None of these conditions exist in copyright law; they are common provisions in contracts in which a non-exclusive copyright license is part of the value exchanged, and may be interpreted in a court of fact as conditions of license or as separate covenants in the agreement. In channels where agreements have traditionally been oral (such as freelance writing for magazines in the US and Canada), there are ongoing, acrid legal disputes -- about what terms regarding secondary publication should be read into those oral agreements. None of this seems relevant to the GPL. [snip] I claimed that the person holding copyright is not bound by the GPL. You're counter-claiming that the licensee, as a non-copyright holder is bound. I don't see the contradiction. No. I'm claiming that both licensor and licensee are bound by the terms of the contract once it is accepted. I cited the obligations to distribute source code to recipients of binaries and to offer copyright license in derivative works if they are distributed as examples of conditional promises made by the licensee, amply sufficient to form consideration in that direction according to the cases I have cited. The offer of license is, prima facie, adequate consideration from licensor to licensee. Now, it is true that in a collaborative project, where there are multiple copyright holders, and the copyright holder accepts contributions without having them signed over to the copyright holder, that a condition of contract exists in the context of that software. However, that's not the only way the GPL is used. For example, last time I checked, the FSF requires that people contributing software to one of their projects provides paperwork signing rights to those contributions over to the FSF (and they also require proof that you're legally allowed to do so). If the GPL purported only to grant a non-exclusive license to a sole author's copyright material, without return obligations, and didn't attempt to reach the licensee's copyright in derivative works, then a court might rule that it's an illusory contract and the sole author can't be held to the offer it contains. (I don't even think that's likely in the absence of a different valid contract between the parties, given a competent lawyer in a US jurisdiction -- the Planetary Motion case found GPL distribution to be of enough value to the author to constitute use in commerce without discussing any constraint placed on recipients, albeit in a trademark context.) But, given the return obligations placed on licensees, the GPL appears to me to be clearly binding on both parties if acceptance can be established (unlikely for end users who never exercise any right to redistribute, given Specht v. Netscape, but very likely in the context of commercial modification and redistribution). This holds true irrespective of whether one copyright holder or several are involved on the licensor end. Cheers, -
Re: Questions about legal theory behind (L)GPL
Raul - With regard to secondary publication, if you had in mind sublicensing by the licensee, I know of no case in which a right to sublicense was found without reference to a valid bilateral contract. (The Effects case comes closest, if you buy Kozinski's argument and read a form of implied license under copyright law into the appellate decision; but even so it doesn't reach sublicensing, and the court in Gardner v. Nike found that the right to sublicense isn't implied even in an exclusive license unless it's in the written agreement.) And by the way, I'm sorry if my response to your first message seemed curt; I didn't spend enough time editing it for context. I'm getting a bit impatient with other persons (not on this list) who have repeatedly evaded requests for valid precedents. I had no business transferring that impatience to your argument, which I think was incorrect but not unreasonable. Cheers, - Michael
Re: Questions about legal theory behind (L)GPL
The only form in which the GPL can be read as requiring any conduct from licensees (such as the provision of copies of source code on demand and the extension of the GPL to the licensee's copyright in derived works) is as an offer of (bilateral) contract, duly accepted by the licensee, in return for valid consideration. If anyone can cite legal precedent to the contrary, now would be a good time to mention it; [EMAIL PROTECTED] doesn't seem to have any to offer. Nathanael Nerode [EMAIL PROTECTED] wrote: [snip] I noticed something interesting on groklaw the other day (in http://www.groklaw.net/article.php?story=20041221062757984 ): In law school, first-year law students are taught that a contract is an exchange of promises: a promise for a promise ...As stated above, a contract is an exchange of promises. A glaring exception is gifts. Often, a promise to make a gift, with no return obligation whatsoever, is an enforceable contract. I think this clarifies the issue here. What we have been saying about not a contract was based on a, shall we say, first-year understanding of the law. The GPL is not necessarily an exchange of promises -- it may not have consideration. Perhaps, but the Groklaw article doesn't have much to say about this; it talks about donee beneficiaries as a category of third-party beneficiary, which doesn't apply to the parties to the GPL (presuming that acceptance is established). However, if the contract formed in the GPL isn't such an exchange, then it can only be one thing: a promise to make a gift. And presumably one of a variety which is an enforceable contract. To the extent that it purports to restrict the behavior of the offeree, it can be another thing: an illusory contract and hence unenforceable on the offeree. That's the conclusion that courts usually reach when consideration is not found. In any case, a gift is a transfer of ownership, and a non-exclusive copyright license is not; courts in the US have consistently declined to find implicit transfers of ownership or of the right to sub-license, and only a valid contract can bind a copyright holder to issue a license. As with most contracts, the terms of a non-exclusive license may be implied by conduct in the absence of a clear written agreement (see, e. g., Foad v. Musil Govan Azzalino at http://caselaw.lp.findlaw.com/data2/circs/9th/9856017p.pdf ), or where the wording of the agreement is in conflict with principles of equity. However, at least in the US, transfer of copyright ownership is unusual in that it can only be done in writing and undivided, per courts' interpretation of the Copyright Act of 1976. (There was a doctrine of informal assignment under the 1909 Act -- see Self-Realization v. Ananda Church at http://laws.lp.findlaw.com/9th/9717407.html -- but the Ninth Circuit found in Effects v. Cohen that the 1976 Act required written assignment.) (Interestingly, the Foad v. Musil decision contains an opinion by Kozinski, concurring in the result but not in the reasoning, which comes closer to articulating a form of copyright license not governed by state contract law than anything else I have read. Unfortunately for the FSF, the authority cited by Kozinski (Corbin on Contracts) defines this type of implied contract as created otherwise than by assent and without any words or conduct that are interpreted as promissory -- hardly applicable to the GPL. Kozinski reads this type of implied license into the Effects v. Cohen decision, but only as a matter of opinion and not of precedent.) For a case in which the court further limited the scope of implicitly granted rights, finding that an exclusive license does not automatically convey the full ownership rights associated with a copyright assignment, see Gardner v. Nike 2002 ( http://caselaw.lp.findlaw.com/data2/circs/9th/0056404p.pdf ) and the Second Circuit's similar decision in Morris v. Business Concepts 2001 ( http://caselaw.lp.findlaw.com/data2/circs/2nd/007509.html ; subsequently modified in http://caselaw.lp.findlaw.com/data2/circs/2nd/007509v2.html ). See also Walthal v. Corey Rusk 1999 ( http://laws.lp.findlaw.com/7th/981659.html ), in which the Seventh Circuit found that a grant of license with no explicit term was terminable at will under Illinois law, in contradiction to the Ninth Circuit's ruling in Rano v. Sipa Press 1993. [snip] If you do X (distribute binaries) you must do Y (redistribute source) seems like a fairly normal conditional-promise formula to me. It may look like it, but it really has an odd difference. If you do X (which I am giving you a license to do, and you may not do otherwise), you must also do Y (which I am giving you a license to do, and you may not do otherwise). There's a reason I used the analogy of You may walk on my property, provided you walk barefoot. It's different from You may walk on my property, provided you give me five dollars. Despite the formulation, it actually
Re: Questions about legal theory behind (L)GPL
On Thu, Jan 06, 2005 at 05:19:04PM -0800, Michael K. Edwards wrote: The only form in which the GPL can be read as requiring any conduct from licensees (such as the provision of copies of source code on demand and the extension of the GPL to the licensee's copyright in derived works) is as an offer of (bilateral) contract, duly accepted by the licensee, in return for valid consideration. If anyone can cite legal precedent to the contrary, now would be a good time to mention it; [EMAIL PROTECTED] doesn't seem to have any to offer. While there are elements of this argument which are jurisdictional in nature, it's false for many jurisdictions. More specifically, the GPL doesn't impose any restrictions on the actions of the copyright holder. You'd have to conflate copies of the program with the copyright holder to imagine that the GPL had anything to say about what the copyright holder will do. At the point which someone else has received a legal copy of some GPLed software, they have received all the GPL rights. No further action is required on the part of the copyright holder, unless it's something built into the copyright law for the jurisdiction in question. -- Raul
Re: Questions about legal theory behind (L)GPL
Michael K. Edwards wrote: On Mon, 20 Dec 2004 14:46:43 -0500, Nathanael Nerode [EMAIL PROTECTED] wrote: Warning: IANAL. IANAL either. Just interested (at least in the non-legal sense). 1) The (L)GPL is legally an offer of contract, right? It was claimed during the debian-devel discussion that the LGPL is somehow a unilateral grant of rights under some legal theory other than contract, which doesn't make sense to me. If you agree to the GPL (or LGPL), you do not lose any rights you would have had if you hadn't agreed to it. It strictly increases the things you are legally allowed to do. This is what we meant when we said that the GPL is not a contract. [snip] The GPL is more of an *offer* than a contract in itself. In the only case I know of where the GPL was tested in court (Progress Software vs. MySQL, http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf ), the court of fact is clearly applying contract standards, not copyright. This isn't as strong a precedent as an appellate court's ruling on issues of law, but it is perhaps indicative of judicial attitudes on non-contract licenses, especially since Professor Moglen argued the case for copyleft in his affidavit (http://www.fsf.org/press/mysql-affidavit.html ). I noticed something interesting on groklaw the other day (in http://www.groklaw.net/article.php?story=20041221062757984 ): In law school, first-year law students are taught that a contract is an exchange of promises: a promise for a promise ...As stated above, a contract is an exchange of promises. A glaring exception is gifts. Often, a promise to make a gift, with no return obligation whatsoever, is an enforceable contract. I think this clarifies the issue here. What we have been saying about not a contract was based on a, shall we say, first-year understanding of the law. The GPL is not necessarily an exchange of promises -- it may not have consideration. However, if the contract formed in the GPL isn't such an exchange, then it can only be one thing: a promise to make a gift. And presumably one of a variety which is an enforceable contract. So in some regards the presence or absence of consideration may not matter; it appears to be governed by contract law either way. snip Ah, but the nature of the conditional promises in the case of the GPL is rather interesting; essentially all of them constitute restrictions on the granted permissions. They do not restrict any behavior which would have been allowed if they GPL had not been agreed to. This is the rather interesting point which has been noticed. [snip] If you do X (distribute binaries) you must do Y (redistribute source) seems like a fairly normal conditional-promise formula to me. It may look like it, but it really has an odd difference. If you do X (which I am giving you a license to do, and you may not do otherwise), you must also do Y (which I am giving you a license to do, and you may not do otherwise). There's a reason I used the analogy of You may walk on my property, provided you walk barefoot. It's different from You may walk on my property, provided you give me five dollars. Despite the formulation, it actually amounts to You may walk barefoot on my property. There is also case law establishing that redistribution itself is of value to the copyright holder. Planetary Motion v. Techplosion 2001 (http://www.law.emory.edu/11circuit/aug2001/00-10872.man.html ) found that the intangible benefits of releasing software under the GPL were sufficient for a software developer not to be an eleemosynary individual (charitably motivated) even in the absence of an immediate profit motive. Very interesting. Note that this isn't quite the same thing as proving consideration, Based on the bit I quoted above, consideration may actually turn out to be irrelevant for most purposes. Which would simplify our lives. :-) and no copyright issue associated with the GPL material arose -- except that GPL release was judged not to be release into the public domain, which is good to have on the appellate record. Planetary Motion had purchased the GPL author's rights in order to strengthen an unrelated trademark case. (Amusingly, the appellate court decision was a Pyrrhic victory for Planetary Motion -- the district court's permanent injunction against Techplosion's use of the trademark was upheld, but the award of $275,508 in attorneys' fees was vacated.)
Re: Questions about legal theory behind (L)GPL
Warning: IANAL. 1) The (L)GPL is legally an offer of contract, right? It was claimed during the debian-devel discussion that the LGPL is somehow a unilateral grant of rights under some legal theory other than contract, which doesn't make sense to me. If you agree to the GPL (or LGPL), you do not lose any rights you would have had if you hadn't agreed to it. It strictly increases the things you are legally allowed to do. This is what we meant when we said that the GPL is not a contract. -- If you want to get really technical about it, I suppose you could say that the GPL offers you the opportunity to enter into one or more of several contracts -- certainly in the very broad German sense of contract (which doesn't require consideration). Contract (1) is in clause 1 (You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you...), contract (2) is in clause 2 (You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:...), and contract (3) is in clause 3 (You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:...). The GPL also grants certain rights without restriction: The act of running the Program is not restricted, You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. (Incidentally, GPL clause 5 contains an outright lie. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Of course, there are fair use/fair dealing/library privilege/interoperability rights/etc./etc./etc.) The GPL is more of an *offer* than a contract in itself. This opinion seems to make it clear that conditional promises constitute sufficient consideration to form a contract. Ah, but the nature of the conditional promises in the case of the GPL is rather interesting; essentially all of them constitute restrictions on the granted permissions. They do not restrict any behavior which would have been allowed if they GPL had not been agreed to. This is the rather interesting point which has been noticed. This raises an interesting question regarding the nature of consideration, which the cited case does *not* address. I would expect it to be addressed by cases in matters such as trespassing or fishing licenses. (Suppose I put up a sign saying No trespassing. But you may come in provided you walk barefoot. This would be a similar type of license. And I suppose there is a contract in there, in some sense. But in another sense, there's no consideration there.) If anyone has references to such cases clarifying these issues, I'd be very interested. Or is there really some other way besides a contract to extend a non-exclusive copyright license to those parties which comply with particular obligations? That would be a unilateral but restricted license grant. A partial copyright license, you might say. From what little I can tell, the law of unilateral license grants on which people rely -- the category I'd put the GPL in -- appears to be really very similar to the law of contracts. So I'm not sure how much it matters. The differences would be interesting, if there are any lawyers who know. I seem to recall something about unilateral license grants being constructed in favor of the licensor in cases of doubt (because of the lack of consideration), unlike ordinary contracts, or unilateral contracts (which are constructed against the contract-writer). I also seem to recall that it's much easier for the licensor to unilaterally revoke a unilateral license than a contract (but not necessarily when people are relying on the license). Am I completely off my rocker? Does someone actually know about this area of law?... As I understand it, GNU licenses make no attempt to bind the receiver upon receipt of software (as the Netscape license attempted to do). They impose conditions which the distributor must satisfy in order to accept an offer of contract and receive an automatic license from the copyright holder, and the distributor can't claim I didn't consent and I have a license at the same time. You have the idea. You *never* sue someone for violating the terms of the GPL; you always sue them for copyright infringement. If they say I had permission, you say What permission? If they say The GPL, you say It granted you permission to distribute only under certain conditions, and you distributed
