Effect of transfer of copyright on free software licenses?
Tim Smith
Suppose I create a copyrighted work. I release it under a license such
as GPLv2. You use it, in a way that requires permission of the copyright
holder, but is in accord with GPLv2, so you are OK.
Suppose now that I transfer the copyright to someone else.
Do you now have something to worry about if the copyright assignee
wishes to stop you from copying, modifying, and distributing the
software?
The GPL is meant to be a bare license, not a contract, but doesn't that
mean it provides no protection if the ownership of the work changes?
--
--Tim Smith
John Hasler
> Do you now have something to worry about if the copyright assignee wishes
> to stop you from copying, modifying, and distributing the software?
A new owner can no more revoke the license than you could.
> The GPL is meant to be a bare license, not a contract, but doesn't that
> mean it provides no protection if the ownership of the work changes?
It is a license to do certain things with the work, not a contract with a
specific person.
If I sell you an easement permitting you to run a cable across my land and
then sell the land can the new owner tell you to take out your cable? Of
course not.
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA
Barry Margolin
Tim Smith <reply_i...@mouse-potato.com> wrote:
I don't think the GPL allows for retroactive changes to the terms. Once
the code is licensed to you, the terms of the GPL apply as long as you
meet your requirements.
--
Barry Margolin, bar...@alum.mit.edu
Arlington, MA
*** PLEASE post questions in newsgroups, not directly to me ***
*** PLEASE don't copy me on replies, I'll read them in the group ***
Rjack
You snooze, you lose:
"� 205. Recordation of transfers and other documents
(e) Priority between Conflicting Transfer of Ownership and
Nonexclusive License. � A nonexclusive license, whether recorded or
not, prevails over a conflicting transfer of copyright ownership if
the license is evidenced by a written instrument signed by the owner
of the rights licensed or such owner's duly authorized agent, and if
(1) the license was taken before execution of the transfer; or
(2) the license was taken in good faith before recordation of the
transfer and without notice of it."
The GPL is *not* a nonexclusive license signed by the owner.
Sincerely,
Rjack
Tim Smith
John Hasler <jo...@dhh.gt.org> wrote:
> > The GPL is meant to be a bare license, not a contract, but doesn't that
> > mean it provides no protection if the ownership of the work changes?
>
> It is a license to do certain things with the work, not a contract with a
> specific person.
>
> If I sell you an easement permitting you to run a cable across my land and
> then sell the land can the new owner tell you to take out your cable? Of
> course not.
Selling an easement involves a contract and a property interest in the
land, so it is not a good comparison. A more fitting analogy would be if
you gave your neighbor whose yard was not fenced permission to keep
their dog in your fenced yard when they are away during the day. A buyer
of your land would have no obligation to continue to allow that.
--
--Tim Smith
Tim Smith
Tim Smith <reply_i...@mouse-potato.com> wrote:
> Suppose I create a copyrighted work. I release it under a license such
> as GPLv2. You use it, in a way that requires permission of the copyright
> holder, but is in accord with GPLv2, so you are OK.
>
> Suppose now that I transfer the copyright to someone else.
>
> Do you now have something to worry about if the copyright assignee
> wishes to stop you from copying, modifying, and distributing the
> software?
Turns out there is something relevant, at least for people in the US, in
the copyright statute, in one of those boring parts most people
overlook. 17 USC 205(e):
Priority between conflicting transfer of ownership and nonexclusive
license. A nonexclusive license, whether recorded or not, prevails
over a conflicting transfer of copyright ownership if the license is
evidenced by a written instrument signed by the owner of the rights
licensed or such owner's duly authorized agent, and if--
(1) the license was taken before execution of the transfer; or
(2) the license was taken in good faith before recordation of the
transfer and without notice of it.
I wonder how many open source projects provide a written instrument
signed by the copyright owner?
--
--Tim Smith
Hyman Rosen
> I wonder how many open source projects provide a written instrument
> signed by the copyright owner?
The GPL <http://www.fsf.org/licensing/licenses/gpl.html> says
All rights granted under this License are granted for the term of
copyright on the Program, and are irrevocable provided the stated
conditions are met.
A court would be presented with evidence that it is industry practice
to distribute under such licenses without signatures, and given the
statement of irrevocable grant, would find that the nonexclusive
license prevails.
Tim Smith
Hyman Rosen <hyr...@mail.com> wrote:
Industry practice overrides a statutory requirement for a signature?
--
--Tim Smith
Hyman Rosen
There is nothing to worry about. Courts will be presented with evidence
that it is standard industry practice to distribute software using unsigned
non-exclusive licenses, and with evidence that (in the case of the GPL) the
copyright holders intend that the license be irrevocable (as stated by the
license itself).
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/97476c>
Thus, nonexclusive licenses are explicitly removed from the 204(a)
writing requirement.
...
Under federal law, nonexclusive copyright licenses can be granted orally
or implied from conduct.
...
The existence of either an exclusive or nonexclusive license creates an
affirmative defense to a claim of copyright infringement.
John Hasler
> Industry practice overrides a statutory requirement for a signature?
The USA has no such statutory requirement (I assume that by "signature" you
mean an autograph signature. One can make a legally-binding commitment
without putting pen to paper.)
Hyman Rosen
> Industry practice overrides a statutory requirement for a signature?
I think so. In any case, there is also 17 USC 203:
<http://www.copyright.gov/title17/92chap2.html#203>
(3) Termination of the grant may be effected at any time during
a period of five years beginning at the end of thirty-five years
from the date of execution of the grant; or, if the grant covers
the right of publication of the work, the period begins at the
end of thirty-five years from the date of publication of the work
under the grant or at the end of forty years from the date of
execution of the grant, whichever term ends earlier.
(4) The termination shall be effected by serving an advance notice
in writing, signed by the number and proportion of owners of
termination interests required under clauses (1) and (2) of this
subsection, or by their duly authorized agents, upon the grantee
or the grantee's successor in title.
(A) The notice shall state the effective date of the termination,
which shall fall within the five-year period specified by clause
(3) of this subsection, and the notice shall be served not less
than two or more than ten years before that date. A copy of the
notice shall be recorded in the Copyright Office before the
effective date of termination, as a condition to its taking effect.
(B) The notice shall comply, in form, content, and manner of service,
with requirements that the Register of Copyrights shall prescribe by
regulation.
So even if copyright of a GPLed work is transferred to a second party,
that second party is going to have a very long time to wait to rescind
the GPL, even assuming I'm wrong about the signature requirement being
waived.
Tim Smith
Hyman Rosen <hyr...@mail.com> wrote:
Section 203 really doesn't have anything to do with section 205. Section
203 describes a right that the author has to terminate a grant at the
specified time. Basically, if you, an author, license your work to
someone, or even sell the copyright outright to them, you eventually
have a right under section 203 to terminate that--even if you agreed not
to by contract.
The purpose of this, and similar provisions in early versions of the
copyright law, is to protect authors from bad deals when they are
unknown, and have little negotiating power.
The termination rights under 203 are only for the author, or if the
author his dead, his heirs. If the author sells his copyright to party
B, and party B sells the copyright to party C, party B would not be able
to use 203 to get the copyrights back after 35 years. The author could.
The use case for section 205 is something like this. Copyright owner A
assigns his copyright on his play to party B. A few days later, A gives
party C a non-exclusive license to stage a production of the play. Can C
stage the play? (It depends on whether B recorded the assignment before
A gave C the non-exclusive license. If B hadn't recorded, and C acted in
good faith, C's non-exclusive license stands).
--
--Tim Smith
Tim Smith
John Hasler <jo...@dhh.gt.org> wrote:
> Tim Smith writes:
> > Industry practice overrides a statutory requirement for a signature?
>
> The USA has no such statutory requirement (I assume that by "signature" you
> mean an autograph signature. One can make a legally-binding commitment
> without putting pen to paper.)
Well, what do you think "a written instrument signed by the owner of the
rights licensed", which is how the statute phrases it, means?
--
--Tim Smith
John Hasler
> The USA has no such statutory requirement (I assume that by "signature"
> you mean an autograph signature. One can make a legally-binding
> commitment without putting pen to paper.)
Tim Smith writes:
> Well, what do you think "a written instrument signed by the owner of the
> rights licensed", which is how the statute phrases it, means?
Here is 204 (a) in its entirety:
(a) A transfer of copyright ownership, other than by operation of law, is
not valid unless an instrument of conveyance, or a note or memorandum
of the transfer, is in writing and signed by the owner of the rights
conveyed or such owner's duly authorized agent.
Thus the requirement for a written instrument is for transfer of ownership
of rights, not licensing. In any case, "in writing and signed" does not
mean pen and ink under US law.
Tim Smith
John Hasler <jo...@dhh.gt.org> wrote:
> I wrote:
> > The USA has no such statutory requirement (I assume that by "signature"
> > you mean an autograph signature. One can make a legally-binding
> > commitment without putting pen to paper.)
>
> Tim Smith writes:
> > Well, what do you think "a written instrument signed by the owner of the
> > rights licensed", which is how the statute phrases it, means?
>
>
> Here is 204 (a) in its entirety:
Read 205(e). That's the statute we are talking about.
--
--Tim Smith
Tim Smith
Hyman Rosen <hyr...@mail.com> wrote:
>
> <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/9747
> 6c>
> Thus, nonexclusive licenses are explicitly removed from the 204(a)
> writing requirement.
> ...
> Under federal law, nonexclusive copyright licenses can be granted orally
> or implied from conduct.
> ...
> The existence of either an exclusive or nonexclusive license creates an
> affirmative defense to a claim of copyright infringement.
205(e) is the problematical section, not 204(a).
--
--Tim Smith
Alexander Terekhov
Tim Smith wrote:
[...]
> 205(e) is the problematical section, not 204(a).
http://en.allexperts.com/e/p/pu/public_domain.htm
"Simply because a friendly entity released a program under a license
does not mean that the friendly entity will continue to hold the
copyright in the future. In the well-known CyberPatrol case, the
defendants settled in part by transferring the offending program to a
hostile party. The hostile party immediately revoked the GPL license of
the program. Although non-lawyers on Slashdot opined that the revocation
was impossible, Free Software Foundation General Counsel Eben Moglen
privately admits that revocation is a problem, even for the GPL . (As a
general rule, licenses are revocable, and the GPL does not purport to be
perpetual.) His solution is to rely on 17 USC 205(e), which holds:
(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive
License.�" A nonexclusive license, whether recorded or not, prevails
over a conflicting transfer of copyright ownership if the license is
evidenced by a written instrument signed by the owner of the rights
licensed or such owner's duly authorized agent, and if�"(1) the license
was taken before execution of the transfer; or (2) the license was taken
in good faith before recordation of the transfer and without notice of
it.
To do so, someone signs a license to a friendly party, like the FSF,
which, in his theory, preserves the GPL license to the world forever.
(He observes that under other federal law, this can be done
electronically, despite the language saying "written instrument
signed.") It is certainly possible that Eben Moglen's interpretation
would be upheld in court, but the case would be far from a slam-dunk,
especially in a case like CyberPatrol where the new copyright holder has
good reason to want the license revoked.
The problem with Eben Moglen's interpretation comes from the unique
construction of the GPL. The GPL purports to grant a new license from
the original grantor, rather than each succeeding author of a program
granting a sub-license to the next. By the very terms of the statute,
however, licenses from the original licensor are only protected if the
license was granted before executing the transfer. (New licenses from
the original licensor are not allowed, because the original licensor no
longer holds the copyright to the work.) Therefore, further distribution
of a GPL program is significantly limited after GPL is revoked. To be
precise, the current holders of the program are authorized to modify and
distribute the software, if they hold a "written instrument signed by
the [former] owner," but the recipients of the software may not further
redistribute it."
Man oh man, notice how GNU arch legal beagle Eben tries to turn 205(e)
on its head... LOL.
Here's more:
http://www.wired.com/techbiz/media/news/2000/03/35258?currentPage=2
"Unless Jansson and Skala formally -- using paper and pen and a
signature -- signed their rights over to the Free Software Foundation,
Mattel may be able to sue over a potential copyright violation.
The law requires "a written instrument signed by the owner of the rights
licensed."
"This is one of the reasons why the Free Software Foundation strongly
urges authors of free software to assign their rights to FSF. It does
them no harm and it provides us with precisely the signed instrument,"
said Eben Moglen, FSF general counsel and a law professor at Columbia
University.
"What has happened here is that these gentlemen [may have] left
themselves open ... because they made no signed assignment of their
rights under GPL to anybody," Moglen said.
But, obscure portions of copyright law being obscure portions of
copyright law, there seems to be an even more arcane loophole.
A programmer might be able to modify cphack and legally distribute the
substantially altered version as long as Mattel has not notified him of
the license change.
"New works made pursuant to the license at the time before Mattel
[acquired rights to cphack] present Mattel with other difficulties,"
Moglen said.
Eugene Volokh, a law professor at UCLA, said that Mattel might be able
to argue that the GPL is invalid because users don't pay for the free
software.
"Nonexclusive licenses given for free are generally revocable, even if
they purport to be irrevocable," Volokh said. "Even if the GPL license
in cphack is treated as signed and is covered by 205(e), it might still
be revocable by Mattel as the new owners of the cphack copyright."
"It is unfortunately not quite as solid a case for the good guys as the
GNU license theory would have at first led us to believe," he said."
regards,
alexander.
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
Alexander Terekhov
John Hasler wrote:
[...]
> of rights, not licensing. In any case, "in writing and signed" does not
> mean pen and ink under US law.
Do you mean
http://www.law.cornell.edu/uscode/15/usc_sec_15_00007001----000-.html
(The Electronic Signatures in Global and National Commerce Act)?
But the GPL licenses are signed in neither electronic nor paper form.
They are not signed at all.
Hyman Rosen
> Section 203 really doesn't have anything to do with section 205.
You expressed concern that the transfer of copyright to GPLed code
from one party to another could cause problems because of 205. Now
you say...
> The use case for section 205 is something like this. Copyright owner A
> assigns his copyright on his play to party B. A few days later, A gives
> party C a non-exclusive license to stage a production of the play. Can C
> stage the play? (It depends on whether B recorded the assignment before
> A gave C the non-exclusive license. If B hadn't recorded, and C acted in
> good faith, C's non-exclusive license stands).
...which makes sense - it means the term "conflicting" in the heading
<http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000205----000-.html>
(e) Priority Between Conflicting Transfer of Ownership
and Nonexclusive License.
refers to a case where the transfer and the license happen at roughly
the same time, and priority must be given to one. That means it doesn't
apply to licenses granted clearly before the copyright transfer, and so
your worry was groundless.
Section 203 allows an author to withdraw a grant, but only at times in
the distant future.
So do you agree that sections 203 and 205 should cause no worry to
users of GPLed code?
Hyman Rosen
> http://en.allexperts.com/e/p/pu/public_domain.htm
> (As a general rule, licenses are revocable, and the GPL does not
> purport to be perpetual.)
In fact, GPLv3 <http://www.fsf.org/licensing/licenses/gpl.html>
does purport to be perpetual and irrevocable:
All rights granted under this License are granted for the
term of copyright on the Program, and are irrevocable provided
the stated conditions are met.
GPLv2 did not contain any specification of term.
Courts have found (e.g., <http://altlaw.org/v1/cases/1101734>) that
for licenses where terms have not been specified, duration is not
controlled by section 203. Instead, state law is used to determine
what duration should be, and some states allow such indeterminate
licenses to be revoked immediately.
Anyway, there's very little precedent for these sorts of things,
so if it does come up, courts are going to have to blaze their way
through relatively unexplored territory. The Butthole Surfers court
above said in 1999:
Despite the fact that � 203 was enacted over 20 years ago as
part of the Copyright Act of 1976, there is very limited case
law on its interpretation. The only case from a court of appeals
is from the Ninth Circuit, Rano v. Sipa Press, 987 F.2d 580 (1993).
Alexander Terekhov
Hyman Rosen wrote:
[...]
> <http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000205----000-.html>
> (e) Priority Between Conflicting Transfer of Ownership
> and Nonexclusive License.
> refers to a case where the transfer and the license happen at roughly
> the same time, and priority must be given to one. That means it doesn't
> apply to licenses granted clearly before the copyright transfer, and so
> your worry was groundless.
Man oh man, "roughly the same time" and not "clearly before". LOL.
Hey Hyman, why did Eben Moglen want to (ab)use 205(e) in Cyber Patrol
incident, then?
http://en.allexperts.com/e/p/pu/public_domain.htm
http://www.wired.com/techbiz/media/news/2000/03/35258?currentPage=2
Tim Smith
Hyman Rosen <hyr...@mail.com> wrote:
> <http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000205----000-.html>
> (e) Priority Between Conflicting Transfer of Ownership
> and Nonexclusive License.
> refers to a case where the transfer and the license happen at roughly
> the same time, and priority must be given to one. That means it doesn't
> apply to licenses granted clearly before the copyright transfer, and so
> your worry was groundless.
Where does it say it only is for cases where the license and the
transfer happen at roughly the same time?
--
--Tim Smith
Rjack
Ahhhhh. Industry practice trumps laws passed by Congress! Since
Micro$oft dominates the industry, their practices trump the Copyright
Act. Hmmmmm.
Sincerely,
Rjack
John Hasler
> Where does it say it only is for cases where the license and the transfer
> happen at roughly the same time?
If they don't there is no conflict to resolve.
Alexander Terekhov
Hyman Rosen wrote:
[...]
> In fact, GPLv3 <http://www.fsf.org/licensing/licenses/gpl.html>
> does purport to be perpetual and irrevocable:
> All rights granted under this License are granted for the
> term of copyright on the Program, and are irrevocable provided
> the stated conditions are met.
That is not the law, silly. The GPL can certainly be revoked under 203
and its "... provided the stated conditions are met" passage is utter
nonsense in context given that failure to comply with "conditions"
results in no grant of a license at all and so there is nothing to
revoke. The GPL doesn't have any conditions precedent. It has only
subsequent licensee's obligations (contract performance obligations)
including unenforceable ones.
Hyman Rosen
> why did Eben Moglen want to (ab)use 205(e) in Cyber Patrol incident
He's also worried about the "receive a license from the
original licensors" clause creating a new license each
time the work is copied and transmitted, and those new
licenses being affected by the transfer. It's all going
to be really murky until some court decides a dispute.
Hyman Rosen
> Where does it say it only is for cases where the license and the
> transfer happen at roughly the same time?
That's what you used in your example. If you didn't think
so, why didn't you just use a simpler example?
Hyman Rosen
> That is not the law, silly.
It's the term of the license.
> The GPL can certainly be revoked under 203
35 years after the grant is made, and by the original
author and his heirs.
Alexander Terekhov
John Hasler wrote:
>
> Tim Smith writes:
> > Where does it say it only is for cases where the license and the transfer
> > happen at roughly the same time?
>
> If they don't there is no conflict to resolve.
The conflict to resolve arises when the alleged new copyright owner says
"No you can't do it because I've not allowed you to do it and I don't
allow you to do it" or some such.
Rjack
Uhhhh... what's murky?
"� 106. Exclusive rights in copyrighted works.
Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following: ... "
The terms "the owner" and "exclusive rights" aren't murky. It's
obvious *only* the owner (and no one else) can grant a new license.
If you transfer ownership, only the new owner is authorized by law to
issue a new license. No new forks or modifications allowed without
permission. I doubt any new owner would care about prior use of any
old licensed (but immutable) code.
Sincerely,
Rjack
Hyman Rosen
> Uhhhh... what's murky?
A rights holder can both have offered non-exclusive grants,
and subsequently transferred copyright ownership. How all of
this would interact with the world of open licenses, where
signed agreements are generally non-existent and works are
handed off from one third party to another with the licensed
consent of the author, is quite unclear.
As usual, you choose to claim that the outcome would be such
as to disfavor the intended operation of the GPL, but also as
usual, there is no reason to believe your claim.
Hallvard B Furuseth
> Suppose I create a copyrighted work. I release it under a license
> such as GPLv2. You use it, in a way that requires permission of the
> copyright holder, but is in accord with GPLv2, so you are OK.
>
> Suppose now that I transfer the copyright to someone else.
>
> Do you now have something to worry about if the copyright assignee
> wishes to stop you from copying, modifying, and distributing the
> software?
In practice I might have - over time:
The user community move away from the version I have. I no longer get
bugfixes and upgrades. Operating systems moves on, so eventually the
program may malfunction, dependent on obsolete features. Compilers get
more aggressive, optimizing code which "always worked before" but was
not actually correct. Eventually the program may not even compile.
Or maybe someone forks the program with the old licence, part of the
user community stays, and all is well.
So the answer depends on a lot of things, from timeframe to program
complexity and dependencies, to the quality of the code.
--
Hallvard
Rjack
As usual you choose to ignore clear statutory authority:
"� 106. Exclusive rights in copyrighted works.
Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following: ... "
You may cavalierly ignore the clear statutory wording of the Copyright
Act (the same as you do concerning 17 USC sec. 301) but it won't make
the statute go away. The federal courts will closely follow the
language of the copyright statutes. The meaning of "owner of
copyright" won't change nor will the meaning of "exclusive rights".
The only thing unclear is your mind. If Congress would have wanted
third parties to "hand off" (authorize) copyright permissions it would
have made provision in the Copyright Act instead of using the words
"owner" and "exclusive".
Your denial runs as deep and is as futile as Eben Moglen's claims that
the GPL is not a contract despite rulings by the Supreme Court and all
Federal Circuits to the contrary.
Living in denial is not psychologically healthy Hyman. At some point
reality sets in.
Sincerely,
Rjack
�[A] copyright license is a contract like any other contract�.; Apple
Computer, Inc. v. Microsoft Corp., 717 F. Supp. 1428, 1432 (N.D. Cal.
1989)
Hyman Rosen
> Subject to sections 107 through 122, the owner of copyright under this
> title has the exclusive rights to do and to authorize any of the
> following: ... "
Of course. And that is the case when copyright owners use the GPL
to distribute their works. They grant non-exclusive, irrevocable,
and perpetual (<http://www.fsf.org/licensing/licenses/gpl.html>)
rights to third parties, as is their exclusive right. Once such
perpetual grants have been made, there are no "takebacks" except
as defined by the author termination clause in 17 USC 203.
This is clearly stated in 17 USC 205(e):
<http://www.copyright.gov/title17/92chap2.html>
e) Priority between Conflicting Transfer of Ownership and
Nonexclusive License. � A nonexclusive license, whether
recorded or not, prevails over a conflicting transfer of
copyright ownership if the license is evidenced by a
written instrument signed by the owner of the rights
licensed or such owner's duly authorized agent, and if
(1) the license was taken before execution of the transfer; or
(2) the license was taken in good faith before recordation of
the transfer and without notice of it.
So a new owner has no power over preexisting non-exclusive licenses
regardless of his newly acquired exclusive rights. The sticking point
in the case of open licenses might be the lack of a signed written
instrument. But given industry practice and the clear intent of the
copyright holder when distributing his content along with a license,
a court could very well agree that the signature requirement is not
binding under these circumstances.
A second sticking point in the case of the GPL might be the notion
that recipients of copies gain a license grant from the copyright
holder, and so a new holder might deny such licenses. I have no idea
how this would work out - I don't even know if the concept itself
has any actual legal meaning.
Rjack
> Rjack wrote:
>> Subject to sections 107 through 122, the owner of copyright under
>> this title has the exclusive rights to do and to authorize any
>> of the following: ... "
>
> Of course. And that is the case when copyright owners use the GPL
> to distribute their works. They grant non-exclusive, irrevocable,
> and perpetual (<http://www.fsf.org/licensing/licenses/gpl.html>)
> rights to third parties, as is their exclusive right.
Their exclusive rights to authorize are restricted to:
"� 106. Exclusive rights in copyrighted works.
Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission."
Do you see the phrase "... any of the following:" in the statute above
Hyman? The colon is followed by six numbered rights. Now which of
those six enumerated rights gives the copyright owner the exclusive
right to authorize third parties "to authorize"? You can dig your
heels in and deny "exclusive" means something other than exclusive --
just don't expect a federal judge to accept such nonsense.
> Once such perpetual grants have been made, there are no "takebacks"
> except as defined by the author termination clause in 17 USC 203.
Who gives a rat's ass about source code that is immutable and can't
be copied, modified and distributed? 17 USC sec. 205(e) clearly states
the GPL license isn't "perpetual" since it's an *unsigned* license.
>
> This is clearly stated in 17 USC 205(e):
> <http://www.copyright.gov/title17/92chap2.html> e) Priority between
> Conflicting Transfer of Ownership and Nonexclusive License. � A
> nonexclusive license, whether recorded or not, prevails over a
> conflicting transfer of copyright ownership
IF THE LICENSE IS EVIDENCED BY A WRITTEN INSTRUMENT SIGNED BY THE OWNER
> of the rights licensed or such owner's duly authorized agent, and
> if (1) the license was taken before execution of the transfer; or
> (2) the license was taken in good faith before recordation of the
> transfer and without notice of it.
>
> So a new owner has no power over preexisting non-exclusive licenses
> regardless of his newly acquired exclusive rights. The sticking
> point in the case of open licenses might be the lack of a signed
> written instrument.
Huh? Might be? MIGHT BE???????????????????????????
> But given industry practice and the clear intent of the copyright
> holder when distributing his content along with a license, a court
> could very well agree that the signature requirement is not binding
> under these circumstances.
>
> A second sticking point in the case of the GPL might be the notion
> that recipients of copies gain a license grant from the copyright
> holder, and so a new holder might deny such licenses. I have no
> idea how this would work out - I don't even know if the concept
> itself has any actual legal meaning.
It's legal gibberish.
Sincerely,
Rjack
Hyman Rosen
> Now which of those six enumerated rights gives the copyright owner
> the exclusive right to authorize third parties "to authorize"?
Who is trying to "authorize to authorize", that your question
would be relevant?
> Who gives a rat's ass about source code that is immutable and can't
> be copied, modified and distributed? 17 USC sec. 205(e) clearly states
> the GPL license isn't "perpetual" since it's an *unsigned* license.
17 USC 205(e) deals with conflicting transfers. There is no need for
a signed license in the absence of a conflicting transfer. GPLv3 is
perpetual because it says so, except for the author's 17 USC 203
termination rights, which cannot be disclaimed.
> Huh? Might be? MIGHT BE???????????????????????????
Yes. Might be. The notion of open licenses that allow downstream
copying and distribution of copyrighted works provided certain
conditions are met wasn't widespread when this law was written.
Judges have a habit of applying common sense interpretations to
circumstances. Your favorite but invalidly applied legal premise
of promissory estoppel may be relevant too. At this point, I think
the only safe conclusion is that no one knows what would happen.
We know what you would like to happen, but that doesn't matter.
John Hasler
> There is no need for a signed license in the absence of a conflicting
> transfer.
It is not at all clear that the GPL is not a signed license in the broad
sense in which judges often interpret "signed". "Signed written document"
does not necessarily mean a quill pen scratching on parchment. It merely
implies an individual's explicit agreement to a set of terms recorded in a
permanent medium.
Rjack
> Hyman Rosen writes:
>> There is no need for a signed license in the absence of a
>> conflicting transfer.
>
> It is not at all clear that the GPL is not a signed license in the
> broad sense in which judges often interpret "signed". "Signed
> written document" does not necessarily mean a quill pen scratching
> on parchment. It merely implies an individual's explicit agreement
> to a set of terms recorded in a permanent medium.
You're missing the point. The GPL's goal is to purportedly replicate
licenses "downstream" to all third parties. It is not possible for the
holder of a non-exclusive license (a non-owner) to grant a *new*
license downstream. You can't license what you don't own. Only the
*owner* of copyright may *authorize* permissions.
Sincerely,
Rjack
Rjack
> Rjack wrote:
>> Now which of those six enumerated rights gives the copyright
>> owner the exclusive right to authorize third parties "to
>> authorize"?
>
> Who is trying to "authorize to authorize", that your question would
> be relevant?
>
>> Who gives a rat's ass about source code that is immutable and
>> can't be copied, modified and distributed? 17 USC sec. 205(e)
>> clearly states the GPL license isn't "perpetual" since it's an
>> *unsigned* license.
>
> 17 USC 205(e) deals with conflicting transfers. There is no need
> for a signed license in the absence of a conflicting transfer.
> GPLv3 is perpetual because it says so, except for the author's 17
> USC 203 termination rights, which cannot be disclaimed.
>
>> Huh? Might be? MIGHT BE???????????????????????????
>
> Yes. Might be. The notion of open licenses that allow downstream
> copying and distribution of copyrighted works provided certain
> conditions are met wasn't widespread when this law was written.
> Judges have a habit of applying common sense interpretations to
> circumstances.
Activist federal judges who ignore Congress's clear statutory language
in favor of "common sense" have a habit of being quickly overturned on
appeal. You're tilting at windmills Hymen.
> Your favorite but invalidly applied legal premise of promissory
> estoppel may be relevant too. At this point, I think the only safe
> conclusion is that no one knows what would happen.
>
Promissory estoppel enforces existing promises it doesn't grant
enforcement of *new* promises. Silly Rabbit! Tricks are for kids.
> We know what you would like to happen, but that doesn't matter.
Sincerely,
Rjack
Hyman Rosen
> You're missing the point. The GPL's goal is to purportedly replicate
> licenses "downstream" to all third parties. It is not possible for the
> holder of a non-exclusive license (a non-owner) to grant a *new*
> license downstream.
<http://www.fsf.org/licensing/licenses/gpl.html>
Each time you convey a covered work, the recipient
automatically receives a license from the original
licensors, to run, modify and propagate that work,
subject to this License.
That's why we're discussing the effect of copyright transfer
to begin with.
Hyman Rosen
> Activist federal judges who ignore Congress's clear statutory language
> in favor of "common sense" have a habit of being quickly overturned on
> appeal.
Before the Betamax case, one would have thought that making
videotape copies of TV shows was prima facie copyright violation.
Don't be so sure over what happens on appeal. Remember Jacobson v.
Katzer.
Rjack
> Rjack wrote:
>> You're missing the point. The GPL's goal is to purportedly
>> replicate licenses "downstream" to all third parties. It is not
>> possible for the holder of a non-exclusive license (a non-owner)
>> to grant a *new* license downstream.
>
> <http://www.fsf.org/licensing/licenses/gpl.html> Each time you
> convey a covered work, the recipient automatically receives a
> license from the original licensors, to run, modify and propagate
> that work, subject to this License.
Just because you write something into a contract's terms doesn't
make it enforceable Hyman. Just because you say it is don't make it so.
Ummmmm... "automatic" future contract formation without privity that
is controlled by an existing "License" and its terms. That's just a
new copyright law. Dig deep in your rhetorical repertoire and dismiss
17 USC 301(a) and pretend that it's not Congress's unique prerogative
to write new copyright law.
If you can ignore 17 USC 301(a) why not also just ignore the rest of
the Copyright Act?
>
> That's why we're discussing the effect of copyright transfer to
> begin with.
17 USC 205 concerns *existing* non-exclusive licenses and not
purported future *new* licenses "downstream". Only the owner of
copyright can grant a new license -- it's an *exclusive* right.
The GPL is harmless (other than SFLC harassment) because it's legally
unenforceable. That's why Micro$oft is releasing code under the GPL.
The Vole is ROFL at "Free Software".
Embrace, Extend, Extinguish. Bye Bye.
Sincerely,
Rjack
Rjack
How are the facts of Betamax similar to GPL questions? Sony was about
contributory infringement.
"The judiciary's reluctance to expand the protections afforded by the
copyright without explicit legislative guidance is a recurring
theme."; SONY CORP. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S. 417 (1984).
That doesn't bode well for "copyleft" does it Hyman?
Sincerely,
Rjack
Hyman Rosen
> Just because you write something into a contract's terms doesn't
> make it enforceable
It's not a contract, it's a license. If I want to write a license
for my work that says that I give a non-exclusive grant to persons
to whom I distribute, and to persons to whom they further distribute,
provided they meet my conditions, the exclusive rights to authorize
given to me by 17 USC 106 allow me to do this.
> 17 USC 301(a)
As usual, your irrational fixation on federal preemption of state
copyright laws makes no sense.
> 17 USC 205 concerns *existing* non-exclusive licenses and not
> purported future *new* licenses "downstream". Only the owner of
> copyright can grant a new license -- it's an *exclusive* right.
Yes. That's why we're discussing the transfer issue. It's possible
that a transfer of copyright to a GPL-hostile entity could cause
downstream distribution to be disallowed. That's a good argument
for assigning copyrights to an organization like the FSF.
> The GPL is harmless (other than SFLC harassment) because it's legally
> unenforceable.
Once this is said by a court rather than by a fool on Usenet,
I'll get back to you.
John Hasler
> That's why we're discussing the transfer issue. It's possible that a
> transfer of copyright to a GPL-hostile entity could cause downstream
> distribution to be disallowed.
Well, there is promissory estoppel, of course. I would also argue that the
downstream licenses are not new licenses granted at the time of acquisition
of copies but prospective licenses granted by the author to everyone who
ever might receive a copy. I argue that I can grant you a license now to
my work which you may exercise any time in the future should you come into
possession of a copy of a copy. Since I, the current copyright owner, am
granting you a license now, the possibility that someone else might acquire
the copyright between now and the time that you acquire a copy of the work
is irrelevant.
Tim Smith
Hyman Rosen <hyr...@mail.com> wrote:
> Rjack wrote:
> > You're missing the point. The GPL's goal is to purportedly replicate
> > licenses "downstream" to all third parties. It is not possible for the
> > holder of a non-exclusive license (a non-owner) to grant a *new*
> > license downstream.
>
> <http://www.fsf.org/licensing/licenses/gpl.html>
> Each time you convey a covered work, the recipient
> automatically receives a license from the original
> licensors, to run, modify and propagate that work,
> subject to this License.
That license comes from the copyright owner, not the non-exclusive
licensee who conveys the work. That's why only the copyright owner has
standing to sue over a GPL violation.
--
--Tim Smith
Rjack
> Rjack wrote:
>> Just because you write something into a contract's terms doesn't
>> make it enforceable
>
> It's not a contract, it's a license. If I want to write a license
> for my work that says that I give a non-exclusive grant to persons
> to whom I distribute, and to persons to whom they further
> distribute, provided they meet my conditions, the exclusive rights
> to authorize given to me by 17 USC 106 allow me to do this.
>
>> 17 USC 301(a)
>
> As usual, your irrational fixation on federal preemption of state
> copyright laws makes no sense.
17 USC 301(a) frightens you doesn't it? That what you dismiss it
instead of addressing it.
Sincerely,
Rjack
Tim Smith
John Hasler <jo...@dhh.gt.org> wrote:
> Hyman Rosen writes:
> > That's why we're discussing the transfer issue. It's possible that a
> > transfer of copyright to a GPL-hostile entity could cause downstream
> > distribution to be disallowed.
>
> Well, there is promissory estoppel, of course. I would also argue that the
Promissory estoppel only works against those who make promises to you.
> downstream licenses are not new licenses granted at the time of acquisition
> of copies but prospective licenses granted by the author to everyone who
> ever might receive a copy. I argue that I can grant you a license now to
> my work which you may exercise any time in the future should you come into
> possession of a copy of a copy. Since I, the current copyright owner, am
> granting you a license now, the possibility that someone else might acquire
> the copyright between now and the time that you acquire a copy of the work
> is irrelevant.
What about people who were not born at the time you made this license
grant to everyone?
Also, note that GPL talks about acceptance of the license. It could be
quite reasonably argued that what you are doing is making an OFFER to
everyone, which they accept by actually acquiring a copy of your
software (or, more likely, by distributing it or modifying it).
--
--Tim Smith
Hyman Rosen
> 17 USC 301(a) frightens you doesn't it?
Huh? Why would it frighten me? Quite the contrary, it makes
it easier to talk about copyright because it usually limits
the laws involved to only 17 USC, instead of having to look
for various separate state laws. It doesn't require addressing
in the context of the GPL because it has nothing to do with
copyright licenses.
Rjack
Nothing to do with copyright licenses eh?
You've gone off the deep end in denial Hyman. Try googling
["copyright license" "court of appeals" "preempted" decided] and read
a few of the 1170 hits.
Are you in the Obama "birthers" movement with the wingnuts?
Sincerely,
Rjack
Alexander Terekhov
Hyman Rosen wrote:
>
> Rjack wrote:
> > Just because you write something into a contract's terms doesn't
> > make it enforceable
>
> It's not a contract, it's a license.
Stop being utter idiot, Hyman.
http://www.krsaborio.net/research/1980s/89/890725_b.htm
(APPLE COMPUTER, INC., Plaintiff, v. MICROSOFT CORPORATION and
HEWLETT-PACKARD COMPANY, Defendants)
"A copyright license is a contract like any other contract"
Read it ten times Hyman.
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
"A copyright license is a contract like any other contract"
regards,
Hyman Rosen
> Nothing to do with copyright licenses eh?
> You've gone off the deep end in denial Hyman. Try googling
> ["copyright license" "court of appeals" "preempted" decided]
> and read a few of the 1170 hits.
OK, let's do that....
For people who don't want to slog through to the end,
my conclusion is that it is more obvious than ever that
preemption has nothing to do with the GPL, and that your
fixation on it is irrational.
The first return is the Butthole Surfers case,
<http://ngro_obsrvr.tripod.com/articles/decision.html>,
which has already come up in this discussion. The issue
was whether a non-exclusive license that had no term
specified must remain in effect for 35 years, as per
17 USC 203. The appeals court said that it did not, that
preemption did not mean that state law on termination
of contracts of unspecified duration would not be followed.
This has nothing to do with the GPL in the normal course of
events - it could affect GPLv2-licensed code if the copyright
were transferred to a GPL-hostile party.
The second return is about Jacobson v. Katzer, the model
railroad case. The only mention of preemption is that the
court decided that federal copyright law preempts claims
for breach of contract. This has nothing to do with the GPL,
since the GPL is a copyright license and claims are made for
copyright violation, not breach of contract.
The third return is
<http://www.google.com/url?sa=t&source=web&ct=res&cd=3&url=http%3A%2F%2Fwww.cohenmusiclaw.com%2FValente-Kritzer%2520Video%2520v%2520Pinckney.pdf&ei=Y3BoStenIN_ktgeS9uXECw&usg=AFQjCNEIWKSJOfRydSLUpTY9wPBErouY4w&sig2=If4PC0-GOIr0EuMPKJe0ag>,
a case where the court decided that claims of fraud are not
preempted by the federal statute.
The fourth and fifth are duplicates.
The sixth is
<http://www.google.com/url?sa=t&source=web&ct=res&cd=6&url=http%3A%2F%2Fentertainmentlawreporter.carolon.net%2FArchive%2Fv28n01%2FLaws.htm&ei=Y3BoStenIN_ktgeS9uXECw&usg=AFQjCNGW47P_44qPcPw-D_iYiMt1ImrQMw&sig2=thulUU2g2HWaWmOnr3VXgw>,
where a court decides that California's "right of publicity"
law is preempted by copyright when it involves using music
samples. This has no application to the GPL.
The seventh is a duplicate.
The eighth, <http://williampatry.blogspot.com/2006/06/right-of-indemnification-for_15.html>
is a discussion of whether indemnification should be preempted
or not. This has nothing to do with the GPL.
I decided to stop here, since it is more obvious than
ever that preemption has nothing to do with the GPL,
and that your fixation on it is irrational.
Hyman Rosen
> "A copyright license is a contract like any other contract"
We say that open licenses are not contracts because their
distinguishing feature is that they are a one-way grant from the
copyright holder to anyone who wishes to meet the conditions of
the license, and unlike contracts, there is no negotiated agreement
between the parties.
The case you cite involves a negotiated copyright license between
Microsoft and Apple. Of course that kind of a license is the same
as a contract. But that's different, and the appeals court in
Jacobson v. Katzer understood this and made the distinction in its
findings: <http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
Having determined that the terms of the Artistic License are
enforceable copyright conditions...
Your incessant quoting of "A copyright license is a contract like
any other contract" is as stupid and meaningless as trying to win
an argument by citing a dictionary definition of a word. The context
which led to the court saying this makes all the difference.
Alexander Terekhov
Hyman Rosen wrote:
[...]
> Jacobson v. Katzer understood this and made the distinction in its
> findings: <http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
> Having determined that the terms of the Artistic License are
> enforceable copyright conditions...
CAFC totally screwed up California *CONTRACT* law regarding "provided
that" wording (in addition to confusing conditions precedent to grant
of rights with scope-of-use limitations on grant of rights).
�Under California contract law, �provided that� typically denotes a
condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911)�
The CAFC further ruled:
�The choice to exact consideration in the form of compliance with the
open source requirements of disclosure and explanation of changes...�
How on earth can �disclosure and explanation of changes� come before
(be a condition precedent) to the license grant?
As discussed by The Supreme Court of California, the term �provided�
may or may not indicate a condition, noting that ��there is no magic
in the term [�provided�], and the clause in a contract is to be
construed from the words employed and from the purpose of the parties,
gathered from the whole instrument.�� Diepenbrock v. Luiz, 115 P. 743,
744 (Cal. 1911) (quoting Boston Safe Dep. and Trust Co. v. Thomas, 53
P. 472 (Kan. 1898) (finding that, based on a reading of an entire
provision, a clause containing �provided, that� was not a condition)).
�It is undoubtedly true, as claimed by appellant, that stipulations in
a contract are not construed as conditions precedent unless that
construction is made necessary by the terms of the contract. ( Deacon
v. Blodget, 111 Cal. 418, [44 Pac. 159]; Antonelle v. Lumber Co., 140
Cal. 318, [73 Pac. 966].) There are also well considered cases holding
that provided does not necessarily impose a condition. In Hartung v.
Witte, 59 Wis. 285, [18 N. W. 177], it is said: �But the words, �upon
the express condition,� as here used, or the words �if it shall so
happen� or �provided however� and the like do not always make a
condition, and it is often a nice question to determine whether it is
a condition or a covenant and courts always construe similar clauses
in a deed as covenants rather than as conditions, if they can
reasonably do so.� (2 Washburn on Real Property, 4.)
�In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared that
�The word provided though an appropriate word to constitute a common
law condition does not invariably and of necessity do so. On the
contrary, it may give way to the intent of the party as gathered from
an examination of the whole instrument, and be taken as expressing a
limitation in trust.�
�Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6, 1 L.
R. A. 380], it is said: �While the words �provided nevertheless� and
�upon the following conditions� are appropriate words to create a
condition, they do not of necessity create such an estate. They and
similar words, will give way when the intention of the grantor as
manifested by the whole deed, is otherwise, and they have frequently
been explained and applied as expressing simply a covenant or a
limitation in trust.�
�Indeed, the decisions are uniform to the point that, while ordinarily
the word �provided� indicates that a condition follows, as expressed
in Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac. 472], �there is
no magic in the term, and the clause in a contract is to be construed
from the words employed and from the purpose of the parties, gathered
from the whole instrument.�
The Restatement (Second) of Contracts Article 224 states:
�Condition Defined:
A condition is an event, not certain to occur, which must occur,
unless its non-occurrence is excused, before performance under a
contract becomes due.�
Obviously an �event� that depends on performance of a contract cannot
occur *before* performance of the contract becomes due. This result is
called an impossible condition in contract construction and is
strictly construed *against* the drafter.
The ruling of the CAFC reminds me of this limerick ridiculing the
theory of special relativity:
There was a young lady named Bright,
Whose speed was far faster than light.
She went out one day,
In a relative way
And returned the previous night!
- Arthur Reginald Buller
See also
http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936
http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15939
Hyman Rosen
> CAFC totally screwed up
As usual, I am offered the choice of accepting the opinions
of actual appeals court judges or the opinions of a crank on
Usenet who has had his pet theories discomfited by that court.
Gee, let me see. OK, got it. The court, not the crank.
Alexander Terekhov
Hyman Rosen wrote:
[...]
> Gee, let me see. OK, got it. The court, not the crank.
Stop being utter idiot Hyman.
http://lists.debian.org/debian-legal/2005/05/msg00462.html
-------
On 5/20/05, Thomas Bushnell BSG <t...@becket.net> wrote:
> "Michael K. Edwards" <m.k.edwa...@gmail.com> writes:
>
> > Sorry about that; I skipped a step or two. Your "unilateral grant of
> > permission" is not in fact a recognized mechanism under law for the
> > conveyance of a non-exclusive copyright license.
>
> I'm sorry, can you point me to the statute here? The US statute
> simply prohibits copying without permission. It says nothing about
> how permission is granted. Can you point me to a court case which
> said "that grant of permission is not contractual, and therefore no
> permission has been granted"?
You might read the Jacob Maxwell v. Veeck case, in which the defendant
argued exactly that (because by law an exclusive license must be a
written contract). The court agreed that federal law didn't permit
the finding of an exclusive license under the circumstances, discussed
exactly what a non-exclusive license is, and proceeded to construe and
interpret one under the applicable state contract law. Honest to
Murgatroyd, "copyright (and patent, etc.) licenses are [terms in]
contracts" is a principle that long predates modern copyright statutes
and you're not going to find any counter-examples.
> We aren't concerned with a browsewrap or shrinkwrap license; all the
> cases you point to are about that. Those are about licenses which
> attempt to take away rights that a person would have had if they had
> never agreed to the license. Since the GPL only gives you new rights,
> never taking away any, it's not clear how objections to those kinds of
> licenses would matter.
That argument simply doesn't hold water. Covenants to offer source
code in this and such a way are not "scope of license", they're return
consideration. The GPL is a true offer of bilateral contract. And
yes, I've read lots of unfounded assertions from the FSF and others on
the subject, and this and other arguments have been made with a
reasonable degree of skill on debian-legal, and I see no reason to
repeat them on d-d.
-------
Here's more:
http://lkml.org/lkml/2007/2/19/264
-------
On 2/19/07, linux-os (Dick Johnson) <linux...@analogic.com> wrote:
> FWIW. A license is NOT a contract in the United States, according to
> contract law. A primary requirement of a contract is an agreement. A
> contract cannot, therefore, be forced. Licenses, on the other hand,
> can be forced upon the user of the licensed material.
Wrong. Acceptance through conduct has been integral to contract law
in common-law countries since the days of writs in Chancery, and is
part of the codification of the difference between contracts "in
personam" and "in rem". Allow me to recommend Kevin Teeven's "A
History of the Anglo-American Common Law of Contract". It is settled
law throughout the Western world that non-exclusive licenses of
copyright need not be formalized, or even put in writing. Licenses
cannot in any sense be forced on anyone; they are simply a defense
against an action for tort, a conditional waiver of the right to sue,
and cannot even be introduced as evidence by a plaintiff.
> A license is a document that states the conditions under which an
> item may be used. A prerequisite of the licensor is that he/she/they
> have a legal right to control the thing being licensed. When a licensed
> item has its license modified by a party, not the original licensor,
> it is quite possible that such attempts to control the item are
> invalid (moot). Lawyers like this because it gives them work since
> the final resolution of such a action can old be determined by a
> court!
Wrong again. A copyright license is a term in an otherwise valid
written, oral, or implied offer of contract, with certain limitations
of scope and certain conditions and covenants of return performance,
waiving the right to sue for the statutory tort of copyright
infringement. Read Nimmer on Copyright, or follow the links in this
paragraph (another self-quotation from two years ago,
http://lists.debian.org/debian-legal/2005/01/msg00621.html):
<old>
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.
</old>
Please do not bother to trot out Webster's definition or medieval uses
of the word "license", or the theory of unilateral license with regard
to trespass and third-party beneficiaries. These are concepts
different from "license" as used in the phrase "non-exclusive
copyright license", and just happen to be spelled the same.
Cheers,
- Michael
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-------
I'll quote Jacob Maxwell v. Veeck in full for your convenience.
-------
United States Court of Appeals,
Eleventh Circuit.
No. 96-2636.
JACOB MAXWELL, INCORPORATED, Plaintiff-Counter-Defendant-Appellant,
Cross-Appellee,
v.
Michael VEECK, Individually and as General Partner of the Fort Myers
Miracle Baseball Club Partnership, et al., Defendants,
John Kuhn, Movant,
Marvin Goldclang, Individually and as General Partner of the Fort Myers
Miracle Baseball Club Partnership, Greater Miami Baseball Club Limited
Partnership, Defendants-Appellees, Cross-Appellants,
Baseball Company of America, a Florida Limited Partnership, Baseball
Corp. of America, Inc., a New Jersey Corporation,
Defendants-Counter-Claimants-Appellees, Cross-Appellants.
April 18, 1997.
Appeal from the United States District Court for the Middle District of
Florida. (No. 93-372-CIV-FTM-24D), Susan C. Bucklew, Judge.
Before CARNES, Circuit Judge, CAMPBELL [*] and CLARK, Senior Circuit
Judges.
LEVIN H. CAMPBELL, Senior Circuit Judge:
This appeal concerns an unhappy dispute between the composer of a song
entitled "Cheer! The Miracle Is Here" and a minor league baseball team,
known as the Miracle, for whose promotion the song was written. After
the parties' relations turned sour, the composer sued the Miracle
claiming that its playing of the song at games had been a breach of
copyright. Rejecting that contention, the district court awarded summary
judgment to the Miracle and ruled that the Miracle had received an oral
nonexclusive license authorizing the use that it made of the copyrighted
song, and that the composer's remedy, if any, lay in a state court
contract action for payment and damages. The composer has appealed, and
the Miracle has cross-appealed from the district court's denial of its
request for attorney's fees.
I.
We state the facts in the light most favorable to the non-moving party,
Plaintiff-Appellant Jacob-Maxwell, Inc. ("JMI").
In the spring of 1993, James Albion, president of JMI, agreed to write a
team song for the Miracle, a minor league baseball team. Albion agreed
to write the song free of charge, to provide the Miracle with the
Digital Audio Tape master, and to grant the Miracle an exclusive
license. In return, Albion asked only that the Miracle pay his
out-of-pocket production costs and that the team credit him as the
author any time the song was played at games or distributed on cassette
tapes. Albion told Michael Veeck, the Miracle's Executive Director, that
his production costs would be somewhere between $800 and $1100.
Albion wrote and produced the song, incurring production expenses of
$1050, and assigned ownership rights to JMI. He delivered a master tape
(though not the Digital Audio Tape master) to John Kuhn, the Miracle's
Director of Marketing and Promotion, on July 2, 1993, and requested
payment. Kuhn told him he could not issue a check immediately but asked
if he could play the song at the next day's game regardless. Albion
agreed.
Over the course of the summer, the Miracle played the song many times at
games, never giving Albion the promised authorship credit. Albion was
present at many of these games. Albion repeatedly demanded payment, and
once communicated his expectation that the lyrics and credits would be
handed out to the fans, but did not withdraw his permission to play the
song at games. To the contrary, in July 1993, Albion wrote to Kuhn
urging the Miracle to continue to perform the song publicly.
On August 9, Albion provided the Miracle with a written invoice. On
August 30, the Miracle tendered Albion a check for $500, telling him the
rest would be handled later. Because the check was not marked "partial
payment," Albion refused to accept it. On September 21, 1993, JMI
formally registered the song with the United States Copyright Office,
and on October 12th JMI's attorney wrote to the Miracle, notifying the
team that its use of the song constituted copyright infringement. The
team last played the song on August 27, 1993.
JMI sued the owners and operators of the Miracle Baseball Club of Ft.
Myers, Florida, alleging copyright infringement and breach of contract.
The district court granted the defendants' motion for summary judgment
on the copyright claim, holding that Albion had, by his conduct, granted
the Miracle a nonexclusive license to play the song at the times it did.
The court dismissed the pendent state law breach of contract claim
without prejudice. [1]
II.
On appeal, JMI argues that because the oral agreement had been for an
exclusive license, the district court erred in finding an implied
nonexclusive license.
The Copyright Act provides, "A transfer of copyright ownership, other
than by operation of law, is not valid unless an instrument of
conveyance, or a note or memorandum of the transfer, is in writing and
signed by the owner of the rights conveyed or such owner's duly
authorized agent." 17 U.S.C. � 204(a). It is undisputed that any
arrangement between the parties for granting an exclusive license to the
Miracle was never written down and that, therefore, no valid transfer to
the team of copyright ownership under the Copyright Act took place.
In contrast to an exclusive license, a nonexclusive license to use a
copyright " "may be granted orally, or may even be implied from
conduct.' " Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558 (9th
Cir.1990) (quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright �
10.03[A], at 10-36 (1989)), cert. denied sub nom. Danforth v. Cohen, 498
U.S. 1103 , 111 S.Ct. 1003, 112 L.Ed.2d 1086 (1991). This is true
because 17 U.S.C. � 101 excludes the assignment of nonexclusive licenses
from the definition of "transfer of copyright ownership."
The district court, relying on the Ninth Circuit's decision in Effects
Associates, determined that Albion had impliedly granted the Miracle a
nonexclusive license by initially giving permission to play the song at
games and by failing to object despite his knowledge that the team was
continuing to play the song publicly. In Effects Associates, the Ninth
Circuit held that a special effects company had granted a movie producer
an implied nonexclusive license to use the special effects footage it
had created. The court reasoned that because the special effects company
had "created a work at defendant's request and handed it over, intending
that defendant copy and distribute it," it had impliedly granted the
defendant a nonexclusive license. Id.
Similarly, in this case Albion created the song at the Miracle's request
and handed a master tape over, intending that the Miracle play the song
at its games. But, JMI sees an important distinction between this case
and Effects Associates. There, "no one said anything about who would own
the copyright in the footage," id. at 556, but here the plaintiff orally
indicated an intention to grant to the defendant an exclusive license.
JMI argues that under Florida contract law, [2] it was error for the
court to infer the creation of a nonexclusive license from the parties'
conduct when they had explicitly agreed, albeit in an unenforceable oral
exchange, to an exclusive license. See Excelsior Insurance Company v.
Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979) (holding
that courts may not "rewrite contracts, add meaning that is not present,
or otherwise reach results contrary to the intentions of the parties");
Rigel v. National Casualty Company, 76 So.2d 285, 286 (Fla.1954)
(holding that courts should not add a meaning to clear contract
language); Indian Harbor Citrus, Inc. v. Poppell, 658 So.2d 605, 606
(Fla. 4th Dist.Ct.App.) (holding that custom or usage cannot be used to
contradict an express contract), review denied, 666 So.2d 144
(Fla.1995); Flagship National Bank v. Gray Distribution Systems, Inc.,
485 So.2d 1336, 1340 (Fla. 3d Dist.Ct.App.1986) (holding that when the
express terms of a contract conflict with the practice of the parties,
the express terms of the contract control), review denied, 497 So.2d
1217 (Fla.1986).
We do not find these cases controlling here. They either involve
situations where parties seek to modify fully enforceable contracts by
reference to the rule of interpretation which holds that an ambiguity in
a contract is to be construed against the drafter or deal with attempts
by a party to modify a clear contract term by reference to the parties'
course of dealings or other extrinsic matters. This case does not
present an analogous situation. Here federal copyright law renders the
parties' oral agreement unenforceable insofar as it provided for the
transfer of an exclusive copyright. In these circumstances, a court has
no choice but to look at alternatives beyond the parties' intended
arrangement.
Like the district court, we conclude that while it may well be that the
parties in their initial negotiations contemplated an exclusive license,
JMI cannot reasonably deny, given its subsequent conduct here, that it
granted to the Miracle the sort of lesser, nonexclusive license to play
the piece during the summer of 1993 that federal law recognizes may
result from a purely oral transaction.
Albion's approving conduct-his granting of permission to the Miracle on
July 2, 1993 to play his song at the next day's game even though he had
not yet been paid, his attendance without demur at subsequent games at
which the song was played, his letter to Kuhn urging the Miracle to
continue to play the song at games, and his failure to withdraw
permission until October-clearly expressed Albion's permission for the
Miracle to play the song when it did. Implicit in that permission was a
promise not to sue for copyright infringement-a promise that at least
one court has found to be the essence of a nonexclusive license. See In
re CFLC, Inc., 89 F.3d 673, 677 (9th Cir.1996) ("[A] nonexclusive patent
license is, in essence, "a mere waiver of the right to sue' the licensee
for infringement.") (quoting De Forest Radio Telephone & Telegraph Co.
v. United States, 273 U.S. 236, 242 , 47 S.Ct. 366, 368, 71 L.Ed. 625
(1927)). We think it follows that until permission was withdrawn in
October, JMI granted to the Miracle a nonexclusive license to play the
song at games.
In so saying, we do not suggest that Albion and JMI waived their rights
to be compensated by the Miracle in accordance with their oral
understanding. What they waived was any right to sue for breach of
copyright on account of the playing of the song while the license was in
effect. As discussed in the following section, the Miracle's failure to
provide the agreed quid pro quo could not, on the facts of this case,
invalidate the legal effect of Albion's permission to play.
III.
JMI argues that even assuming it gave the Miracle an oral, nonexclusive
license to play the song, that right should be treated as having been
cancelled in its entirety by the Miracle's material breach of their oral
understanding when it failed both to reimburse JMI's costs and publicly
to acknowledge Albion at games as the song's creator. But even assuming
arguendo that the Miracle's conduct constituted a material breach of the
parties' oral understanding, this fact alone would not render the
Miracle's playing of the song pursuant to JMI's permission a violation
of JMI's copyright. Such a breach would do no more than entitle JMI to
rescind the agreement and revoke its permission to play the song in the
future, actions it did not take during the relevant period. One party's
breach does not automatically cause recision of a bilateral contract.
See Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th
Cir.1996) (recognizing "the rule applied in other circuits that once a
non-breaching party to an express copyright license obtains and
exercises a right of rescission by virtue of a material breach of the
agreement, any further distribution of the copyrighted material would
constitute infringement") (emphasis added); Hyman v. Cohen, 73 So.2d
393, 397 (Fla.1954) (" "A material breach, as where the breach goes to
the whole consideration of the contract, gives to the injured party the
right to rescind the contract or to treat it as a breach of the entire
contract....' ") (quoting 12 Am.Jur. Contracts � 389) (emphasis added);
3 M. Nimmer & D. Nimmer, Nimmer on Copyright � 10.15[A], at 10-125-126
(1996) (" Upon such rescission, the assignment or license is terminated
and the copyright proprietor may hold his former grantee liable as an
infringer for subsequent use of the work.") (emphasis added).
Since Albion on July 2, 1993 expressly gave his permission to the
Miracle to play his song at the next game, renewed this permission by
letter that same month, and did not thereafter withdraw permission until
some time after the Miracle had last played the song publicly, the
Miracle never played the song without permission and is not liable for
copyright infringement.
This is not a case where payment of JMI's costs and public recognition
of authorship were made conditions precedent to the granted right to
play. See Restatement (Second) of Contracts � 225 (1981). In such a
case, absent performance of the conditions, the "license" would not have
issued and the Miracle's public performances of the song would have
violated JMI's copyright. See Fantastic Fakes, 661 F.2d at 483; 3 M.
Nimmer & D. Nimmer, Nimmer on Copyright � 10.15[A], at 10-121 (1996).
But Albion did not make payment and recognition conditions precedent to
the permission he gave to play the song. "A condition is an event, not
certain to occur, which must occur, unless its non-occurrence is
excused, before performance under a contract becomes due." Restatement
(Second) of Contracts � 224 (1981). "Conditions precedent are disfavored
and will not be read into a contract unless required by plain,
unambiguous language." Effects Associates, 908 F.2d at 559 n. 7. On July
2, 1993, JMI, through its president, Albion, expressly granted the
Miracle permission to play the song before payment was tendered or
recognition received. Thereafter, Albion did not withdraw permission
although he attended many games and heard the song played, still without
payment or recognition, on various occasions. Indeed, he wrote to Kuhn
encouraging the Miracle to continue to play the song. Under these
circumstances, we cannot say that JMI's permission to play was
conditioned on prior payment and public recognition.
IV.
While for the above reasons, JMI cannot recover breach of copyright
damages from the Miracle for the latter's playing of the song, this does
not end the matter.
JMI asserts that the Miracle made and broke its promise to pay JMI's
expenses and to give public recognition and credit to the song's
composer. While payment and recognition were not conditions precedent to
playing the song, the district court recognized that JMI may be entitled
to recover in a state action its damages from the Miracle's failure to
perform these promises. Nothing herein is intended to suggest that the
Miracle's treatment of JMI and Albion was either legally correct or such
as to shield them from liability for their conduct. The only issue
before the district court was JMI's right to recover under federal law
for copyright infringement.
V.
In its cross-appeal, the Miracle contends that the district court abused
its discretion in declining to award it attorney's fees under 17 U.S.C.
� 505. That section states, in relevant part, "Except as otherwise
provided by this title, the court may also award a reasonable attorney's
fee to the prevailing party as part of the costs." Under this statute,
attorney's fees are at the court's discretion. Fogerty v. Fantasy, Inc.,
510 U.S. 517, 534 , 114 S.Ct. 1023, 1033, 127 L.Ed.2d 455 (1994).
The Supreme Court has provided a nonexclusive list of factors which
district courts may take into account when determining whether or not to
award a prevailing party attorney's fees under � 505. "These factors
include "frivolousness, motivation, objective unreasonableness (both in
the factual and in the legal components of the case) and the need in
particular circumstances to advance considerations of compensation and
deterrence.' " Id. (quoting Lieb v. Topstone Industries, Inc., 788 F.2d
151, 156 (3d Cir.1986)). After considering these factors, we are unable
to say that the district court abused its discretion in refusing to
award attorney's fees.
AFFIRMED.
-------
Hyman Rosen
> http://lists.debian.org/debian-legal/2005/05/msg00462.html
What about it? Bushnell discusses Jacob Maxwell v. Veeck, where
a court found that an implied nonexclusive license had been granted
by the rights holder due to his various failures to object to
infringing behavior. That's another case where there were direct
negotiations and unclear oral agreements between the parties. It
has nothing to do with the GPL, which spells out requirements for
the non-exclusive license in great detail, including termination
of all rights if copying and distribution is done in violation of
those requirements.
He also says
"Acceptance through conduct has been integral to contract law
in common-law countries since the days of writs in Chancery"
which is exactly what the GPL says - you demonstrate that you accept
it by your conduct in copying and distributing works in accordance
with its conditions.
None of this counters the appeals court finding open license
requirements are enforceable copyright conditions.
Rjack
> Alexander Terekhov wrote:
>> "A copyright license is a contract like any other contract"
>
> We say that open licenses are not contracts because their
> distinguishing feature is that they are a one-way grant from the
> copyright holder to anyone who wishes to meet the conditions of the
> license, and unlike contracts, there is no negotiated agreement
> between the parties.
The following is part of an exchange between Richard Stallman and
Professor Micheal Davis of Clevland State University Law School:
******************************************************************
Richard Stallman wrote:
>
> i'm not a lawyer, but i fail to understand whether the GPL is a
> contract or not.
>
> The GPL is not a contract; it is a unilateral grant of permission
> to do certain things that copyright law normally prohibits.
>
>
Once again, I feel that there is another agenda at work here, but the
legalities are crystal clear. A unilateral grant of permission is a
contract; we even have a legal term for such a situation and it is,
unsurprisingly, called a unilateral contract. A contract is an
agreement--which need not be express, but can be implicit, or even an
imposed legal result upon a relationship--binding on both parties. The
only way, therefore, that this mysterious "unilateral grant of
permission" would not be a contract is if it had no legal effect. I
assume, however, that at least some people want the GPL to be
binding--nothing can make it binding except a claim of contract.
There are situations in which people tend to use other words to avoid
the word contract: permission to enter somebody's land, or business,
say, is sometimes referred to as a mere "license," often to avoid
contractual implications. But when these cases are decided, only two
results occur: either they are found unenforceable, in which case
there was no contract in the first place (and thus no enforceable
license), or they are enforceable in which it is inescapable that the
terms of the license and the parties' obligations are addressed. If
those terms are enforceable, they are the product of the contract
between the parties--even if it is only unilateral in nature.
So. Why is this an issue? To allow the GPL legal effect but to avoid
some real or imagined consequences of it being treated as a contract
by the law? I'm afraid you can't have one without the other; to
repeat, if it's enforceable, it is, in essence, and in the end, a
contract.
Mickey Davis
**********************************************************************
http://lists.essential.org/upd-discuss/msg00131.html
Dig your heels in Hyman and stay in denial -- it will ward off reality
untill it comes crashing down around you.
Sincerely,
Rjack
Rjack
Where in it's utterly *non-precendental* and erroneous decision did
the CAFC state that *all* open license requirements are enforceable
copyright conditions? The CAFC ruled on the terms of the *Artistic
License* as to whether certain terms were conditions limiting the
scope of the grant or "conditions precendent". The CAFC contradicted
itself when it cited Diepenbrock v. Luiz, 159 Cal. 716 (1911).
I am beginning to suspect that Free Softare advocates are
intellectually incapable of grasping the difference between
a permitted scope of use condition and a condition precedent in
a copyright license. One restricts the *scope* of the rights grant,
the other establishes the *existence* of the rights grant. The
distinction seems to exceed the GNUtians cognitive abilities.
Sincerely,
Rjack
Hyman Rosen
> Professor Micheal Davis of Clevland State University Law School:
> legal term for such a situation and it is, unsurprisingly, called
> a unilateral contract.
Wikipedia says
<http://en.wikipedia.org/wiki/Unilateral_contract#Bilateral_v._unilateral_contracts>
In a unilateral contract, only one party to the contract
makes a promise.
...
An offer of a unilateral contract may often be made to many
people (or 'to the world') by means of an advertisement. In
that situation, acceptance will only occur on satisfaction
of the condition.
...
In unilateral contracts, the requirement that acceptance be
communicated to the offeror is waived. The offeree accepts by
performing the condition, and the offeree's performance is
also treated as the price, or consideration, for the offeror's
promise.
Which all sounds just like the GPL. We call the GPL a license to
emphasize its unilateral nature.
Hyman Rosen
> Where in it's utterly *non-precendental* and erroneous decision did
Oops, it's court vs. crank again!
> the CAFC state that *all* open license requirements are enforceable
> copyright conditions?
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
Copyright holders who engage in open source licensing have the
right to control the modification and distribution of copyrighted
material.
...
Copyright licenses are designed to support the right to exclude;
money damages alone do not support or enforce that right. The
choice to exact consideration in the form of compliance with the
open source requirements of disclosure and explanation of changes,
rather than as a dollar-denominated fee, is entitled to no less
legal recognition.
...
The clear language of the Artistic License creates conditions
to protect the economic rights at issue in the granting of a
public license. These conditions govern the rights to modify
and distribute the computer programs and files included in the
downloadable software package.
Rjack
Which all sounds just like the GPL is indeed a contract doesn't it
Hyman? Perhaps you could deny this fact and call the GPL a
non-contractual contract.
Sounds good in theory.
Sincerely,
Rjack
Alexander Terekhov
Hyman Rosen wrote:
>
> Alexander Terekhov wrote:
> > http://lists.debian.org/debian-legal/2005/05/msg00462.html
>
> What about it? Bushnell discusses Jacob Maxwell v. Veeck, where
> a court found that an implied nonexclusive license had been granted
> by the rights holder due to his various failures to object to
> infringing behavior. That's another case where there were direct
> negotiations and unclear oral agreements between the parties. It
> has nothing to do with the GPL, which spells out requirements for
Stop being utter idiot Hyman.
http://www.businessdictionary.com/definition/non-negotiable.html
-----
Not open to negotiation. "The terms of this contract are absolutely
non-negotiable; the company will not budge."
-----
http://www.articlealley.com/article_580896_18.html
-----
In law of business, the Standard Form Contract is one of its main
topics. A standard form contract is a contract between two parties that
does not allow for negotiation, or more commonly defined as the �take
it, or leave it�.
It is often a contract that is entered into between unequal bargaining
partners, such as when an individual is given a contract by the
salesperson of a multinational corporation.
As a general rule, the common law treats standard form contracts as any
other contract."
-----
It is also known as "contract of adhesion", silly.
http://www.mail-archive.com/debian...@lists.debian.org/msg30311.html
-----
It's very useful as a propaganda device to make it appear that there
is some rich vein of unmined law in this area, and therefore some
difficulty in applying the mountain of case law relevant to any given
fact pattern involving the GPL. But the truth as I see it (and I am
not alone) is that the GPL is a somewhat unconventionally drafted but
otherwise completely routine contract of adhesion.
Rjack
You truncated my response Hyman.
Are you seriously suggesting that the "clear language" of the Artistic
License represents *all* open source licenses?
Sincerely,
Rjack
Hyman Rosen
> Which all sounds just like the GPL is indeed a contract
Sure. It seems to fit the definition of a unilateral contract. So?
When a store offers to send you some money after you buy a certain
item, they do not say they are offering you a unilateral contract.
They say they are offering you a rebate. When a store offers to buy
back an item you purchase if you do not like it, they do not say
they are offering you a unilateral contract. They say they are
offering you a money-back guarantee.
Software universally comes with license agreements, so the GPL is
a license.
Hyman Rosen
> As a general rule, the common law treats standard form contracts as any
> other contract."
And what meaning do you glean from all this?
Hyman Rosen
> Are you seriously suggesting that the "clear language" of the
> Artistic License represents *all* open source licenses?
It represents all open source licenses with clear language.
Fortunately, the GPL is such a license. In fact, it is much
clearer than the Artistic License.
Alexander Terekhov
The GPL is as "unilateral" as Stallman is a sane person.
"A bilateral contract, is an agreement in which each of the parties to
the contract makes a promise or promises to the other party. For
example, in a contract for the sale of a home, the buyer promises to pay
the seller $200,000 in exchange for the seller's promise to deliver
title to the property."
In GPL case the promise on the licensor's side is the grant of rights
which is a promise not to sue for copyright infringement. The promise on
the licensee side is compliance with contractual requirements (aka
contractual "covenants") stated in the license contract.
In contrast,
"In a unilateral contract, only one party to the contract makes a
promise. A typical example is the reward contract: A promises to pay a
reward to B if B finds A's dog. B is not obliged to find A's dog, but A
is obliged to pay the reward to B if B finds the dog. "
In other words, party B (the offeree) can't possibly BREACH the contract
since where is no obligation to perform for party B.
Constrast it with the GPL where the offeree may well breach the
contract.
See IBM's SIXTH COUNTERCLAIM against SCO and
http://www.groklaw.net/pdf/MySQLcounterclaim.pdf
"COUNT VIII Breach of Contract (GPL License)".
Alexander Terekhov
Hyman Rosen wrote:
>
> Rjack wrote:
> > Which all sounds just like the GPL is indeed a contract
>
> Sure. It seems to fit the definition of a unilateral contract. So?
> When a store offers to send you some money after you buy a certain
> item, they do not say they are offering you a unilateral contract.
Buying an item is a bilateral agreement irrespective of a rebate credit
note or some such, silly.
Hyman Rosen
> Buying an item is a bilateral agreement irrespective of a rebate credit
> note or some such
Which has nothing to do with the rebate.
Hyman Rosen
> The promise on the licensee side is compliance with contractual
> requirements (aka contractual "covenants") stated in the license
> contract.
There is no promise on the licensee side. There is only a
unilateral grant of permission to do certain actions in a
certain way. If the licensee does the actions in that way,
the licensor carries out his promise not to sue.
John Hasler
> And what meaning do you glean from all this?
He wants to pretend that the special scrutiny applied to contracts of
adhesion should apply to the GPL. This is nonsense, of course, as a
licensee can be no worse off for having accepted the GPL since it only
grants rights otherwise denied him by law.
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA
Hyman Rosen
> Hyman Rosen writes:
>> And what meaning do you glean from all this?
>
> He wants to pretend that the special scrutiny applied to contracts of
> adhesion should apply to the GPL. This is nonsense, of course, as a
> licensee can be no worse off for having accepted the GPL since it only
> grants rights otherwise denied him by law.
Got it. There really is no end to their twisting and spinning.
Alexander Terekhov
Providing rebate is an obligation on the seller's side in that contract,
silly.
Ha!
"Example: Customizing a contract (Rebate scenario) (Business Edition)"
Hth, Hyman.
Alexander Terekhov
You both need to go to doctor.
Alan Mackenzie
Rjack <us...@example.net> wrote:
> Where in it's utterly *non-precendental* and erroneous decision did
> the CAFC state that *all* open license requirements are enforceable
> copyright conditions? The CAFC ruled on the terms of the *Artistic
> License* as to whether certain terms were conditions limiting the
> scope of the grant or "conditions precendent". The CAFC contradicted
> itself when it cited Diepenbrock v. Luiz, 159 Cal. 716 (1911).
> I am beginning to suspect that Free Softare advocates are
> intellectually incapable of grasping the difference between
> a permitted scope of use condition and a condition precedent in
> a copyright license.
This Free Software advocate could grasp the difference if he wanted, but
really doesn't give a damn. It really isn't all that important. It's
been sorted out by lawyers, and they'll have done their job right. When
an error surfaces, they'll correct it.
> One restricts the *scope* of the rights grant,
> the other establishes the *existence* of the rights grant. The
> distinction seems to exceed the GNUtians cognitive abilities.
<Yawn>.
> Sincerely,
> Rjack
--
Alan Mackenzie (Nuremberg, Germany).
Hyman Rosen
> Providing rebate is an obligation on the seller's side in that contract
It's a unilateral contract. The seller says that if the buyer
buys an item and sends in a coupon, he will send the buyer
some money.
In any case, this is called a "rebate". That's the point -
that unilateral contracts are known by different names in
different circumstances.
Hyman Rosen
> Providing rebate is an obligation on the seller's side in that contract
If you're so hung up on the simultaneity, imagine a case
where a business advertises that any customer who purchased
more than $100 of merchandise in the previous year may come
in to the store and get a free toy penguin.
Oddly enough, the store does not promote this as a unilateral
contract, but as a "reward for our loyal customers".
Alexander Terekhov
And what is the GPL licensee supposed to do voluntarily BEFORE the grant
of rights comes into effect, Hyman?
Purchase more than $100 of http://shop.fsf.org/category/gnu-gear/ LOL?
Alexander Terekhov
Hyman Rosen wrote:
[...]
> that unilateral contracts are known by different names in
> different circumstances.
If the GPL would state something along the lines of
"Terms and conditions. All rights under 17 USC 106 are granted to you
for 1 (one) year provided that you purchase more than $100 of
http://shop.fsf.org/category/gnu-gear/ goodies in the previous year. End
of Terms and Conditions."
THAT WOULD BE A *UNILATERAL* CONTRACT.
Got it now, Hyman?
Rjack
> Rjack wrote:
>> Which all sounds just like the GPL is indeed a contract
>
> Sure. It seems to fit the definition of a unilateral contract. So?
I believe you raised the issue of "license not a contract" in the
context of your denial concerning 17 USC 301(a). Remember when I cited
Professor Davis from CSU Law School:
"Once again, I feel that there is another agenda at work here, but the
legalities are crystal clear...
So. Why is this an issue? To allow the GPL legal effect but to avoid
some real or imagined consequences of it being treated as a contract
by the law? I'm afraid you can't have one without the other; to
repeat, if it's enforceable, it is, in essence, and in the end, a
contract."
http://lists.essential.org/upd-discuss/msg00131.html
The "agenda" for the GPL is to deny it's a contract (which are
enforced under color of state common law). 17 USC 301(a) preempts
copyright contracts whose terms attempt to regulate copyrights outside
of contractual privity -- that is to say contracts that attempt to
regulate "all third parties".
You may deny the effect of 17 USC 301(a) the same way that RMS denies
that the GPL is a contract but eventually reality will intrude.
> When a store offers to send you some money after you buy a certain
> item, they do not say they are offering you a unilateral contract.
> They say they are offering you a rebate. When a store offers to buy
> back an item you purchase if you do not like it, they do not say
> they are offering you a unilateral contract. They say they are
> offering you a money-back guarantee.
>
> Software universally comes with license agreements, so the GPL is a
> license.
Your babbling Hyman. Come on Hyman -- rejoin reality.
Sincerely,
Rjack
Alexander Terekhov
Alexander Terekhov wrote:
>
> Hyman Rosen wrote:
> [...]
> > that unilateral contracts are known by different names in
> > different circumstances.
>
> If the GPL would state something along the lines of
>
> "Terms and conditions. All rights under 17 USC 106 are granted to you
> for 1 (one) year provided that you purchase more than $100 of
> http://shop.fsf.org/category/gnu-gear/ goodies in the previous year. End
> of Terms and Conditions."
>
> THAT WOULD BE A *UNILATERAL* CONTRACT.
http://www.enotes.com/wests-law-encyclopedia/unilateral-contract
"In a unilateral, or one-sided, contract, one party, known as the
offeror, makes a promise in exchange for an act (or abstention from
acting) by another party, known as the offeree. If the offeree acts on
the offeror's promise, the offeror is legally obligated to fulfill the
contract, but an offeree cannot be forced to act (or not act), because
no return promise has been made to the offeror. After an offeree has
performed, only one enforceable promise exists, that of the offeror."
Alexander Terekhov
Rjack wrote:
[...]
> > they are offering you a unilateral contract. They say they are
> > offering you a money-back guarantee.
> >
> > Software universally comes with license agreements, so the GPL is a
> > license.
>
> Your babbling Hyman. Come on Hyman -- rejoin reality.
Perhaps Hyman could explain the following babbling:
http://www.fsf.org/news/microsoft_response
"Microsoft cannot by any act of anticipatory repudiation divest itself
^^^^^^^^^^^^^^^^^^^^^^^^
of its obligation to respect others' copyrights. If Microsoft
distributes our works licensed under GPLv3, or pays others to distribute
them on its behalf, it is bound to do so under the terms of that
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
license. It may not do so under any other terms; it cannot declare
itself exempt from the requirements of GPLv3."
In light of
http://en.wikipedia.org/wiki/Anticipatory_repudiation
"Anticipatory repudiation, also called an anticipatory breach, is a term
in the law of contracts that describes a declaration by the promising
party to a contract, that he or she does not intend to live up to his or
her obligations under the contract."
http://legal-dictionary.thefreedictionary.com/Anticipatory+Repudiation
"The unjustifiable denial by a party to a contract of any intention to
perform contractual duties, which occurs prior to the time performance
is due.
This form of breach, also known as anticipatory breach of contract,
occurs when one party positively states that he or she will not
substantially perform a contract."
LOL.
Rjack
Ouch.
"However, anticipatory repudiation only applies to a bilateral
executory contract with non-performed duties on both sides."
http://en.wikipedia.org/wiki/Anticipatory_repudiation
It seems that IBM is claiming that the GPL is a bilateral
executory contract...
Since the copyright permissions to create a derivative work
must be granted *prior* to the distribution of a derivative work
(except in the land of GNU where time machines are commonplace),
the GPL cannot be a bilateral executory contract with non-performed
duties on both sides. Thus it is not subject to anticipatory breach.
This is all based arguendo on the fact that the GPL is a legal,
binding contract -- which it isn't.
Sincerely,
Rjack
Hyman Rosen
> And what is the GPL licensee supposed to do voluntarily
> BEFORE the grant of rights comes into effect
Nothing. That's why it's unilateral.
Hyman Rosen
> If the GPL would state something along the lines of
> "Terms and conditions. All rights under 17 USC 106 are granted to you
> for 1 (one) year provided that you purchase more than $100 of
> http://shop.fsf.org/category/gnu-gear/ goodies in the previous year. End
> of Terms and Conditions."
> THAT WOULD BE A *UNILATERAL* CONTRACT.
> Got it now, Hyman?
No.
Hyman Rosen
> 17 USC 301(a) preempts copyright contracts whose terms attempt to
> regulate copyrights outside of contractual privity -- that is to
> say contracts that attempt to regulate "all third parties".
Fortunately, the GPL does not attempt to regulate all
third parties. 17 USC 301 is completely irrelevant to
the operation of the GPL, since the GPL is simply a
copyright license, functioning solely under copyright
law.
Hyman Rosen
>> If the GPL would state something along the lines of
OK, so now you're saying the GPL is not a contract?
Alexander Terekhov
How did you come to that idea, silly?
The GPL is a contract (partly invalid/unenforceable).
Alexander Terekhov
Go to doctor Hyman.
Alexander Terekhov
Okay Hyman, let's dissect it:
"All rights under 17 USC 106 are granted to you"
this is a grant of rights,
"for 1 (one) year"
this a scope-of-use limitation (only one year),
"provided that you purchase more than $100 of
http://shop.fsf.org/category/gnu-gear/ goodies in the previous year"
this is an act by which the grant comes into effect and from thereon
(for one year) you may enforce it against the offeror if it dares to sue
you for copyright infringement -- you will simply move the court to
dismiss the case with prejudice and award you attorney fees.
The above is a unilateral contract.
Hyman Rosen
> Okay Hyman, let's dissect it:
> "All rights under 17 USC 106 are granted to you"
> this is a grant of rights,
> "for 1 (one) year"
> this a scope-of-use limitation (only one year),
> "provided that you purchase more than $100 of
> http://shop.fsf.org/category/gnu-gear/ goodies in the previous year"
> this is an act by which the grant comes into effect and from thereon
> (for one year) you may enforce it against the offeror if it dares to sue
> you for copyright infringement -- you will simply move the court to
> dismiss the case with prejudice and award you attorney fees.
> The above is a unilateral contract.
And what is it if you leave out the "provided that" part?
Alexander Terekhov
"Terms and conditions. All rights under 17 USC 106 are granted to you
for 1 (one) year. End of Terms and Conditions."
Right?
See
http://legallynoted.com/show_pdf.php?pdf_filename=PROMISSORY-ESTOPPEL-RULES-OF-LAW1240444486.doc
"PROMISSORY ESTOPPEL RULES OF LAW:
A promise which the promisor should reasonably expect to induce action
or forebeaance on the
part of the promisee or a 3rd person and which does induce such action
or forbearance is binding
if injustice can be avoided only by enforcement of the promise.
Remedy may be limited as justice requires.
**A charitable subscription/marriage settlement binding without proof
that the promise induced
action/forbearance.
1. Promisor makes a promise he reasonably expects promisee to rely on
2. Promisee in fact reasonably relies on to his detriment.
3. Promise must be enforced to avoid injustice.
First party should be estopped from denying promise because of the
reasonable reliance and a
change of position of the promisee.
A person without any senses because of an accident or disease may be
held liable for the
necessaries frnished to him in good faith while in that unfortunate and
helpless position
regardless of the outcome.
2 Theories:
Promissory estoppel fills in for consideration and creates a binding
contract (contract damages)
Creates only a quasi contract, Reliance Damages.
When a reasonable person relis on a promise to his detriment the
promisee is entitled to the
enforcement of such promise
When a promisor makes a promise knowing that the promisee will rely on
it, the promise must
be enforced.
EQUITABLE ESTOPPEL:
Used to prevent a liar from saying something to represent what exists."
Hth, Hyman.
Hyman Rosen
> "Terms and conditions. All rights under 17 USC 106 are granted to you
> for 1 (one) year. End of Terms and Conditions."
>
Of course the GPL does not say the former, so the latter is
irrelevant. The GPL says that you are authorized to perform
certain actions otherwise reserved to the rights holder if
you perform them in a certain way.
Alexander Terekhov
Go to doctor Hyman.
Alexander Terekhov
Rjack wrote:
[...]
> > http://www.fsf.org/news/microsoft_response
[...]
> It seems that IBM is claiming ...
It seems that FSF is claiming ...