Fwd: Re: Questions about legal theory behind (L)GPL
On Thursday 20 January 2005 23:18, Michael K. Edwards wrote: > [snip] > > Whoa there, Tex. I disagree with some of the FSF's claims about the > legal interpretation of the GPL, and I think that crying "preliminary > injunction" is going to get them in trouble one of these days. But I > don't question their vision of using copyright license to create, and > encourage the expansion of, a software commons. I'm not anti-FSF, > just pro-the-relatively-sane-face-of-the-FSF (the one that says > "releasing part or all of your code under the GPL can be good for your > business model and your soul", not "everyone must be naked! caught > you linking to readline! take down your pants!"). thats nice to know, but let me deal with this one as well at the same time so far as i can [snip] >On Thursday 20 January 2005 19:47, Raul Miller wrote: > 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? I read the thread as being about some Questions about legal theory behind (L)GPL, so I think its fair to talk about a broad approach. What I found compelling in Michael's posts was the fact that he cited some law that seemed to have a bit more support than the usual drivel about some preliminary injunction in which nothing much was decided as a matter of law: the way i have been tackling this area in my thinking is by looking at the broader trends within society and law in the context of globalisation and the form of production that comes along with it - which is not industrial society but an immaterial/services society. From what I can see the FSF and others who support FS do so by planting themselves within the free speech rhetoric camp - that is you arrive at the proper interpretation of what copyright and a commons should be about by proceeding from a liberal rights interpretation. Free as in speech not beer sums it up. Lessigs arguments in Eldridge is another example. The Court said there that in effect the guiding principle in the interpretation of copyright (I am citing this from memory so give me some room on the wording) was the profit motive - profit created the innovation necessary for creativity. Well folks as a non yank it seems to me that if a grey area of law surrounding the GPL ever had to be decided this preference of US law and the Court for basing innovation and creativity in the profit motive doesn't hark to well for freedom. I am sure I will be howled down but i cant see when you start mixing freedom up with business models and profit how you have much freedom left over. Well if you only measure freedom within the bounds of profit and money maybe you can. But this too is another free software fudge - when necessary Moglen and RMS like to play their more libertarian "cyber communist" card to embellish their view of freedom - but when reality strikes the rhetoric gets tamed down to freedom within the US liberal capitalist view of the world. To some of us outside of the US thats is not a very convincing form of freedom. so my view of the trend of the law - although I could if i wanted to get bogged down in the minutiae of this and that line of authority comes from more looking at the general trends and trying to see how law is moving to keep pace with the demands and functionality of global immaterial capital production. It may be too post mod mod for debian but I hope I just dont get met by more stuff like this or worse: > post-post-modern. However, industrial societies that take up the war > cry of collective dignity over individual freedoms don't have a very > good track record. Maybe that was a bit harsh (ie my lead in there) but I think there is a wealth of economic, philosophical and political thinking these days that goes beyond the dialectic of individual v.s collective. This was the great dead end of modernity and industrial times and surely the new forms of networked organisation and production give rise to something a little more creative than this? Like the geeks trying to do the Lessig and say "we are not communists" like they fell over each other to do the other day when Gates made some such comment, legal theory and philosophy vis a vis open source seems to be stuck in a bit of a liberal v conservative view of the world. Anyway, I think my basic point or fear that when you tie up the opens source vision of copyright with a view of law that is pretty flimsy in terms of the trends that exist you end up on unstable ground. If copyright finds its basis and reason for being in the profit motive you seriously have to ask how free can it really be? That is in cases of possible TM or other conflicts, even SCO type situations, who in the end is going to be dominant - not the free as in speech view I seem to
Re: Questions about legal theory behind (L)GPL
On Thu, 20 Jan 2005 18:59:23 +0100, Martin Hardie <[EMAIL PROTECTED]> wrote: [snip] > 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. Whoa there, Tex. I disagree with some of the FSF's claims about the legal interpretation of the GPL, and I think that crying "preliminary injunction" is going to get them in trouble one of these days. But I don't question their vision of using copyright license to create, and encourage the expansion of, a software commons. I'm not anti-FSF, just pro-the-relatively-sane-face-of-the-FSF (the one that says "releasing part or all of your code under the GPL can be good for your business model and your soul", not "everyone must be naked! caught you linking to readline! take down your pants!"). > 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! Trademarks, in my opinion, don't in and of themselves restrict the important freedoms of open source. Over-zealous attempts to enforce trademark preemptively could, given that it is costly to be taken to court even when you've got a solid defense. So far I know of no case of genuine abuse of a trademark by the stewards of an open source project, except perhaps by RedHat, and I don't lose sleep over that one either. The conduct of certain branches of the US government with regard to cryptography has been regrettable (and at times a sort of black comedy), but what does this have to do with the freeness of licensing terms? > Anyway, has anyone here ever thought obout the way open source is produced and > organsied in terms of trusts or fiduciary obligations? > > I was in a series of Aboriginal art acses in Australia. the last one the court > found that "the traditional owners of the corpus of ritual knowledge" from > which an artwork was derived painter and sold by an artist from their group > had an equitable right to restrain 3rd parties. > > I have done a bit of thinking trying to think of another way of looking at > open source other than straight copyright/contract law and it seems to have > similarities with this Aboriginal situation - their is a community of > knowledge producers who produce in common the stuff of their life, they are > all able subject to certain internal protocols to distribute, sell, produce > and reproduce, but equity restrains them or any third party (even with only > implied notice) from using the knowledge in a manner inconsistent with their > 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. Very interesting. It sounds to me like that would fit into an expanded definition of "moral rights of the author" -- a sort of "moral rights of the giants on whose shoulders we stand". Very post-post-modern. However, industrial societies that take up the war cry of collective dignity over individual freedoms don't have a very good track record. I think I'll stick with the rights of the author over the the rights of the techno-tribe. 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 02:46:48PM -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 Thu, Jan 20, 2005 at 01:47:46PM -0500, Raul Miller wrote: > > 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). On Thu, Jan 20, 2005 at 02:08:54PM -0500, Glenn Maynard wrote: > ... and that allow users to make whatever modifications they want (even > those that have nothing to do with bugs or security), and to redistribute > those modifications without onerous restrictions. Sure, because in the general case, whether something is a bug or not depends on what people want. For that matter, whether or not someone is a part of Debian, or not, also depends on what people want. Most major corporations are a part of Debian, in some sense or another -- the free software community which Debian is a part of (and depends on) is extremely extensive. > Your "especially" is true in that it's what Debian needs to exist as > a Linux distribution (this applies to all distributions, regardless > of social contracts), but the SC places equal importance on guaranteeing > users freedoms beyond bugfixing--so I disagree with "especially". But there are some freedoms which Debian (or at least the Social Contract) doesn't express any particular views on. For example: the freedom to carry weapons. I'm thinking your objection is basically centered around the issue of "what is Debian" (or "what Debian isn't"). 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). Thanks, -- 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 01:47:46PM -0500, Raul Miller wrote: > 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). ... and that allow users to make whatever modifications they want (even those that have nothing to do with bugs or security), and to redistribute those modifications without onerous restrictions. Your "especially" is true in that it's what Debian needs to exist as a Linux distribution (this applies to all distributions, regardless of social contracts), but the SC places equal importance on guaranteeing users freedoms beyond bugfixing--so I disagree with "especially". -- 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 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 Thursday 20 January 2005 17:38, Raul Miller wrote: > 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. > Hi I just signed up to this list today, a discussion somewhere else about Debian and trademarks led me here. 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. 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! Anyway, has anyone here ever thought obout the way open source is produced and organsied in terms of trusts or fiduciary obligations? I was in a series of Aboriginal art acses in Australia. the last one the court found that "the traditional owners of the corpus of ritual knowledge" from which an artwork was derived painter and sold by an artist from their group had an equitable right to restrain 3rd parties. I have done a bit of thinking trying to think of another way of looking at open source other than straight copyright/contract law and it seems to have similarities with this Aboriginal situation - their is a community of knowledge producers who produce in common the stuff of their life, they are all able subject to certain internal protocols to distribute, sell, produce and reproduce, but equity restrains them or any third party (even with only implied notice) from using the knowledge in a manner inconsistent with their 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. I am not sure if that is food for thought or not. I can go on, but maybe thats enough to say hello. martin -- "the riddle which man must solve, he can only solve in being, in being what he is and not something else" http://auskadi.tk -- 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 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 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. Brand name recognition is not a concept invented by lawyers for open source companies. -- 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 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 00:27:08 +0100, Francesco Poli <[EMAIL PROTECTED]> wrote: > 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! It's free-as-in-beer, takes no IT effort on my part, and once in a while actually points me to a non-obvious resource. (But then, I'm the kind of guy that reads trade rags mostly for the ads and goes to the primary literature for anything resembling facts.) I don't do important, private stuff in cleartext on a Net-attached computer anyway. But you'd be surprised how little I consider both important and private. 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, 18 Jan 2005 17:04:09 -0500, Raul Miller <[EMAIL PROTECTED]> wrote: [snip] > 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. All copyright licenses are provisions in contracts, according to the US case law that I have read. My reading of Canada and UK case law, and comments and citations from Batist in Belgium and Henning in Germany (both civil law countries), seem to agree. The existence of a valid license is an affirmative defense against a claim of copyright infringement, which is a statutory tort. But the standards applied in evaluating the validity of the license are those of applicable contract law. Fancy dancing in the preamble and citation of the Statute of Anne don't get around this fact. > 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. I think there's a case that software ought to be protected by a different kind of statutory intangible property right from those now in existence (copyright, patent, and trademark). (Trade secret law is often spoken of in the same breath, but it doesn't create an intangible property right.) There are some jurisdictions in which such statutes have been passed (Virginia and Maryland have enacted UCITA). So far, I would not say that they improve the situation. Elsewhere, one is obliged to apply the traditional legal mechanisms, and that means finding a legal theory which fits one's intent. It's normal for contract language to do an imperfect job and for a court to have to construe something legally possible that fits the parties' intent, modifying and striking passages that can't be conformed to statute and precedent. This has been used to convert oral exclusive licenses (prohibited by statute) to non-exclusive licenses and to detect "implied agency" (a separate theory from "apparent agency"; see http://www.ihatoday.org/public/mangcare/petrovich.htm ) in HMO-physician relationships, real estate agencies, and partnership agreements. But I seem to have been wrong that implied agency to sublicense is construable, at least under Ninth Circuit authority. Gardner v. Nike 2002 declined to read an authority to sublicense into the part of the 1976 Act governing exclusive licenses, and concluded that "explicit contractual language" was required to create authority to sublicense without the copyright holder's consent. On review, I don't think the passive "automatically receives" language is strong enough to pass this threshold. > > 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? No, I'm just distinguishing "license from the licensor" (a permission which an agent might have an authority to grant) from "receives from the licensor" (implying more strongly that the licensor is doing the giving directly). But if Gardner controls then it doe
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 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
Re: Questions about legal theory behind (L)GPL
On Tue, 18 Jan 2005 12:51:22 -0500, Raul Miller <[EMAIL PROTECTED]> wrote: > On Mon, Jan 17, 2005 at 12:55:47PM -0800, Michael K. Edwards wrote: [snip] > > 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 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. 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. 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 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. 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 discussion, and decline to establish a precedent on which is the correct construction. Sneaky, those judges. :) [snip] > > 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? [snip] > So... yeah, I guess I still think that kind of lawsuite is pretty > unlikely. Mind you, I'm not saying it's impossible. I think a lawsuit like it is going to happen, sooner or later. The facts in MySQL v. Progress Software didn't quite fit this scenario, because Progress's subsidiary NuSphere was doing the integrating, and hence MySQL went after them directly. The GPL issues didn't get settled because Progress capitulated after a preliminary injunction for trademark infringement, granted largely because they had a previous negotiated trademark license for which NuSphere was paying real money. Take the trademark issue away so that the GPL has to be fully litigated, put the bundling at arms' length from the authoring, and change the names -- voila! my scenario. > [standing] > > None of this has anything to do with whether Ms. X has "standing" -- > > that became undeniable once copyrightability, copyright ownership, > > and "copying" were demonstrated. > > Hmm... ok, chalk that one up to my ignorance of the terminology. > > What I meant to say is that there hasn't been any infringement of the > copyright because nothing has happened which violate the terms of the > license. > > What I probably should have said instead was that that hypothetical > situation wasn't interesting to me because I didn't see that we had any > grounds for discussing it. Fair enough. :) [snip] > My position is that the details of what's being linked, and why, is > important. My position is that information about linking is relevant > when determining the scope of the work, but that its mere presence or > absence isn't enough information to make this determination. > > So I'm going to ignore details o
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
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
[routed back to debian-legal; I accidentally replied directly to Raul] On Mon, 17 Jan 2005 17:04:02 -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. > > > On Mon, 17 Jan 2005 13:48:23 -0500, Raul Miller <[EMAIL PROTECTED]> wrote: > > > Why would direct licensing not work? > > 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. > > Ok. However, it's worth noting that these parties are distinct each > time the [implied] contract is executed. That's one reason why I think the sublicensing interpretation is more natural. > > 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. > > Until you've established that the GPL binds third parties through any > means other than direct execution of the [implied] contract, this is > begging the question. This statement was about the general reach of contracts purporting to bind third parties, not about the GPL text. > > 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. > > I disagree. > > The GPL states > >Each time you redistribute the Program (or any work based on the >Program), the recipient automatically receives a license from the >original licensor to ... > > This is very clearly a license from the original licensor (whoever that > is) to the licensee. > > Of course a Program might have multiple copyrights, but the GPL has > required (under section 2) that the people who have added such material > have made it available under the GPL terms. > > 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. > > 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 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. > ... > > > 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. > ... > > > 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
Re: Questions about legal theory behind (L)GPL
On Mon, Jan 17, 2005 at 05:41:26PM -0500, Glenn Maynard wrote: > Well, by the nature of free software, I can incorporate code into my > program from yours (or into a friend's program, eg. writing a patch for > lftp incorporating code from wget), without you necessarily being made > aware of it at all. It's not hard for an original author to legitimately > not become aware of such reuse for a long time. The "contributor" > of code isn't necessarily the copyright holder. True. Though I imagine a judge would be rather at amused some contributor who thought they could sue someone else for copyright violation for running a program that incorporated their GPLed code. -- 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 Mon, Jan 17, 2005 at 05:04:02PM -0500, Raul Miller wrote: > > > 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. > ... > > I'm thinking that there will typically have been a history of > correspondence between the parties. Most likely: an email archive, > the changelog, release announcements, etc. > > And the basic question is: why was the material contributed in the > first place? > > As a general rule, if someone had an objection to their content being > distributed, they would speak up shortly after they find out about > the issue. If some extended period of time has passed (for example: > the time between Debian Stable releases), there's a very real question > as to why the issue wasn't raised earlier. Well, by the nature of free software, I can incorporate code into my program from yours (or into a friend's program, eg. writing a patch for lftp incorporating code from wget), without you necessarily being made aware of it at all. It's not hard for an original author to legitimately not become aware of such reuse for a long time. The "contributor" of code isn't necessarily the copyright holder. -- 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
> > > > 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. > On Mon, 17 Jan 2005 13:48:23 -0500, Raul Miller <[EMAIL PROTECTED]> wrote: > > Why would direct licensing not work? 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. Ok. However, it's worth noting that these parties are distinct each time the [implied] contract is executed. > 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. Until you've established that the GPL binds third parties through any means other than direct execution of the [implied] contract, this is begging the question. > 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. I disagree. The GPL states Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to ... This is very clearly a license from the original licensor (whoever that is) to the licensee. Of course a Program might have multiple copyrights, but the GPL has required (under section 2) that the people who have added such material have made it available under the GPL terms. 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. > 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. ... > > 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. ... > 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.) I'm thinking that there will typically have been a history of correspondence between the parties. Most likely: an email archive, the changelog, release announcements, etc. And the basic question is: why was the material contributed in the first place? As a general rule, if someone had an objection to their content being distributed, they would speak up shortly after they find out about the issue. If some extended period of time has passed (for example: the time between Debian Stable releases), there's a very real question as to why the issue wasn't raised earlier. This issue, in concert with testimony about informal communication between the parties, should be sufficient in most if not all cases of "some free software developer decides to litigate about some old code". Of course, if the code has just recently been added, then the right thing to do when someone complains is remove the code. However, if someone is pulling an SCO, the right thing to do is document what really happened. > 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 pa
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 absen
Re: Questions about legal theory behind (L)GPL
> > 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? > > 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. As a general rule, there are no guarantees about what a court will find. > It frequently happens that contract provisions are modified or struck > during interpretation by a judge because they conflict with statute. Yep. Of course, it also frequently happens that contract provisions stand, unmodiied. > 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. First, let's here why you think direct licensing isn't granted -- the clause appears to be stated rather clearly to grant licensing directly. I'll grant you that the GPL is a license which is unprecedented in many respects. But that doesn't make it invalid -- just different. > 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. > 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. Eclipse is not a module of Kaffe. In the unlikely event that she did have standing, I'm sure the judge would ask her what she thought people would use Kaffe for, and why she contributed the code. [Also, if the FSF did get involved, I imagine they'd be able to cover a lot more ground in that brief -- I don't think they'd limit the scope to classpath.] -- 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 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
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 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. -- 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 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
Re: Questions about legal theory behind (L)GPL
> > Same difference, legally. > > [...] "a mere waiver of the right to sue" [...] On Sun, Jan 16, 2005 at 11:51:19AM +0100, Francesco Poli wrote: > So you are saying that, when I copy and distribute a GPL'd program, I am > violating the law and staying unpunished. No, you're not violating the law. You have a waiver that shows that you're not. But some of the things you are doing within the permissions indicated on that waiver might have been legal anyways. I think his point was more on the other side of the fence -- that there are cases which are legal even without an explicit license, and that having a copyright license is a way of proving that you're legal. For example, when someone sends an email message they're implicitly granting permission for the relaying systems to distribute copies of that message. This is particularly significant when a message is sent to a mailing list. For example, when someone puts something up on a web site, they're implicitly granting permission for browser users to generate local copies when they visit the site. For example, while there might be explicit published permissions for game modders to work with Duke Nukem, there are a variety of other games out there where modders are working with tacit permission from the copyright holders rather than explicit permission. For example, Dan Berstein seems to delight in providing statements on his web site which do not have the appearance or character of a copyright license, granting various forms of permission to copy his work. For example, producers of VCRs, and other analogous technologies (products like tivo, and producers of recording media -- dvdrw, hard disks, photocopier paper, etc.) to some degree depend on a legal climate where copying is allowed. Especially in the context of the DMCA. Anyways, the copyright holder can choose to not press charges against some people who copy without a license, without weakening the strength of their copyright. -- 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 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. [...] > > > 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. 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 one operation, I have his/her permission and can do it legally, no matter what he/she says afterwards. -- 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 pgpX4bU7Ohhh8.pgp Description: PGP signature
Re: Questions about legal theory behind (L)GPL
On Sat, 15 Jan 2005 19:27:26 +0100, Francesco Poli <[EMAIL PROTECTED]> wrote: > On Mon, 10 Jan 2005 16:11:21 -0800 Michael K. Edwards wrote: [snip] > > 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. > > But that is not what "sublicensing" means, at least AFAIK. > 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. Here's a quote from Effects v. Cohen describing Oddo v. Ries 1984, in which an implied license was found to publish certain copyright material but not to sublicense it: FN5. Oddo did nevertheless prevail, but on other grounds. Ries was unhappy with Oddo's manuscript and hired another writer to do the job right. This writer added much new material, but also used large chunks of Oddo's manuscript, thereby incorporating portions of Oddo's pre-existing articles. 743 F.2d at 632. By publishing the other writer's book, Ries exceeded the scope of his implied license to use Oddo's articles and was liable for copyright infringement. Id. at 634. (I haven't found a URL for the Oddo decision itself. Anyone?) The history of the problem of sublicenses in the US is discussed in Gardner v. Nike 2002. Basically, under the 1909 Copyright Act, licenses were as a matter of law not transferable or sublicensable without express authorization from the copyright holder. Gardner v. Nike extended that interpretation to the 1976 Act as well, even as regards exclusive licensees. So if the GPL is valid, part of what it's granting is the right to sublicense additional copies (modified or not) to other parties -- whether or not it uses the word "sublicense". I don't think there was any question of whether non-exclusive licenses are transferable without explicit authorization (generally, they're not) until software cases arose in which vendors tried to get around the doctrine of first sale using copyright law. Courts have generally held that the sort of copying and deriving from copyright material that takes place during normal use of software isn't copyright infringement, and therefore retail sale of packaged software includes a common-sense right to copy during use (just like reading a book -- you don't violate copyright by making copies on your retinas) and to resell on the used market, as long as you don't keep a copy for your continued use. > > 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. Non-exclusive license has a longer history in patent cases than in copyright, and copyright cases frequently point to patent cases as precedent. The commonly cited Supreme Court precedent that a non-exclusive patent license is "a mere waiver of the right to sue" is a 1927 case (De Forest Radio Telephone v. United States, http://laws.findlaw.com/us/273/236.html ), which in turn cites Robinson on Patents -- so it was evidently already well established by then, at least with respect to patents. Everex Systems v Cadtrak (aka in re CFLC) 1996, for instance, cites De Forest in concluding that such a license constitutes significant continuing performance (settling, as far as I am concerned, the question about whether GPL release is a "one-shot" act with no continuing performance -- it's not). For an example that all this applies to copyright, see Jacob Maxwell v. Veeck 1997 ( http://laws.findlaw.com/11th/962636opa.html ), which brings in re CFLC over to the copyright arena. > [...] > > 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. > [...] > > I do not think Italian "diritto d'autore" and U.S. copyright laws differ > in a significant manner, as long as what we are now discussing is > concerned. > I mean: there *are* differences (such as moral rights...), but they do > not have significant influence on the answer of the question "what is a > copyright license?". Now that I think about it, it's not so much the different copyright regime that matters -- bot
Re: Questions about legal theory behind (L)GPL
On Mon, 10 Jan 2005 16:11:21 -0800 Michael K. Edwards wrote:
> 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.
But that is not what "sublicensing" means, at least AFAIK.
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"!
[...]
> > 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).
I'm really surprised by your definition: in my understanding, a
copyright license is a permission to perform copyright-restricted
operations.
Quoting from http://www.copyright.gov/circs/circ1.html#wci
| Section 106 of the 1976 Copyright Act generally gives the owner of
| copyright the exclusive right to do and to authorize others to do the
| following: ^
[list of restricted operations follows]
And (after a "dict license"):
| From WordNet (r) 2.0 [wn]:
|
| license
|n 1: a legal document giving official permission to do
|something [syn: {licence}, {permit}]
In general, a "license" is a "permission", not a "promise not to punish
forbidden actions"...
[...]
> 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.
[...]
I do not think Italian "diritto d'autore" and U.S. copyright laws differ
in a significant manner, as long as what we are now discussing is
concerned.
I mean: there *are* differences (such as moral rights...), but they do
not have significant influence on the answer of the question "what is a
copyright license?".
--
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
pgpikkKSABP9R.pgp
Description: PGP signature
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 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
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
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 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
Actually, Effects v. Cohen is a prime example of "implied license as an implied provision in the existing contract": 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. 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 -- 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": 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. 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
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
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 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. -- 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 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
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 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 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
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
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 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 sp
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
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 sp
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
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 -- 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, 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 pgpw77dG2Jnxh.pgp Description: PGP signature
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 consi
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 consi
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
"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
Sorry this is so long and meandering... 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.) 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.) 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! >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. (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? (3) People are only granted permission to create derivative works by the license. Given that, how do restrictions on the nature of those derivative works constitute consideration? (4) People are only granted permission to distribute derivative works by the license. Given that, how do restrictions on the nature of the distribution allowed constitute consideration? (Perhaps the consideration is the agreement on the part of the licensee not to break the law? Can that really constitute consideration?) >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. Unfortunately, none of the cases you've cited appear to address these points directly, or indeed at all. :-( Perhaps you could point to specific sections if you think they really do prove that there is consideration in such situations? >The offer of license is, prima facie, adequate >consideration from licensor to licensee. Yes, clearly. It seems pretty clear that the licensee is bound no matter what. Either the licensee is in a contract, or the licensee is the recipient of a limited gift of permissions; either way, the licensee can't exceed those permissions. The question of whether the licens*or* can unilaterally cancel permission is the interesting one. If it's a contract, the licensor can't. If it's a promise of a gift, it's a contract (note what was said on Groklaw about promising money to charities). >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; Isn't it? :-/ A non-exclusive license is still an item of value. Is there some precedent that such an issuance is not a gift? >courts in the US have consistently declined to find implicit transfers >of ownership ...of the copyright, which is not the same thing... >or of the right to sub-license, Some licenses explicitly grant the right to sub-license. Would that make a difference? >and only a valid contract >can bind a copyright holder to issue a license. The question of unilaterally terminable licenses is an interesting and potentially worrisome one. (It's worth noting that in civil-law countries, contracts apparently don't require considerati
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
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
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 licens
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
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
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. 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 u
