Copyleft may be invalid in some states
Dan Bernstein
In some states, such as New York, most contracts, licenses, etc. require
some compensation. The compensation doesn't have to be tangible, but the
traditional ``sold my house for a dollar'' avoids any legal problems.
A program placed under GNU Copyleft is licensed without compensation.
Hence there is an excellent chance that someone in these states could
successfully render Copyleft invalid in court. If the FSF continues
blacklisting companies that don't agree with its politics, I wouldn't
be surprised to see one of those companies using the compensation laws
to throw a wrench into the GNU operation.
RMS considers it ``useless'' to discuss this topic, and I can
understand his position: it's against his philosophy to receive
compensation. But there is a legal solution. Copyleft shouldn't be
a full copyright modified by a license; it should be a limited
copyright.
Most commercial software vendors use software licenses rather than
copyrights, since licenses allow arbitrary conditions and can provide
fine control over the use and distribution of programs. But unless FSF
is trying to exert that control, it should get rid of the extra
complexity and use limited copyrights---and thereby avoid questions
of compensation. I believe Columbia uses limited copyrights to protect
Kermit (quite successfully) for this reason.
---Dan Bernstein, brn...@acf10.nyu.edu, bern...@hpuxa.ircc.ohio-state.edu
Andrew Klossner
"A program placed under GNU Copyleft is licensed without
compensation. Hence there is an excellent chance that someone
in these states could successfully render Copyleft invalid in
court."
Utterly wrong. The copyleft is not a license, it is the terms of a
"publication" in the parlance of copyright law.
"What follow are my opinions; I'm not a lawyer."
I'm not either, but I've taken the trouble to research this law.
-=- Andrew Klossner (uunet!tektronix!frip.WV.TEK!andrew) [UUCP]
(andrew%frip.wv...@relay.cs.net) [ARPA]
Dan Bernstein
> Utterly wrong. The copyleft is not a license, it is the terms of a
> "publication" in the parlance of copyright law.
The GNU General Public License is, legally and obviously, a license.
Hence it must specify compensation.
Any pertinent comments?
---Dan Bernstein, brn...@acf10.nyu.edu, bern...@hpuxa.ircc.ohio-state.edu
Michael C. Berch
(Andrew Klossner) writes:
> []
> "A program placed under GNU Copyleft is licensed without
> compensation. Hence there is an excellent chance that someone
> in these states could successfully render Copyleft invalid in
> court."
>
> Utterly wrong. The copyleft is not a license, it is the terms of a
> "publication" in the parlance of copyright law.
>
> "What follow are my opinions; I'm not a lawyer."
>
> I'm not either, but I've taken the trouble to research this law.
I also disagree with the assertion inside the quote above, but do not
concur with Mr. Klossner's remarks. My analysis is as follows:
1. The Copyleft/GPL is unequivocally a license. The concept of a
license for copyrighted material is very well developed in copyright
case law, and there is nothing about the Copyleft/GPL that would render
it anything other than a license. There are many examples of public
licenses for copyrighted material; most of them simply add terms such
as requiring identification of the source of the material; forbidding
changes except for personal use (i.e., reserving from the license the
right to make derivate works); granting the right to copy for
noncommercial use only, etc. There is nothing in copyright case law
to suggest that these (public) licenses are invalid.
2. Under copyright case law, there is no requirement that a license of
copyright be supported by consideration (compensation). This is because
it is not a contract but a grant of property rights. Contracts
require consideration, but grants do not. This is an elementary and
well-settled principle of property law.
3. In the United States, the Copyright Act of 1976 pre-empts all state
law that previously dealt with intellectual property rights in the
matter subject to the Act (as defined in Sections 102 of the Act).
This was the explicit intent of Congress and has been repeatedly
upheld by the courts. Therefore, any pre-existing state law that
purported to modify the nature or terms of a license of copyright
would be pre-empted, and any subsequent state law that did likewise
would be inoperative. In either case, I doubt if the state law would
operate in any case to render the Copyleft/GPL unenforceable, because it
is a grant and not a contract.
I don't understand what Mr. Klossner means by "The copyleft is not a
license, it is the terms of a 'publication' in the parlance of
copyright law"; in copyright law, a work is either published or not
published, and if the work is not published, much of the Act does not
apply. However, there is no doubt that the GNU programs are published
within the meaning of the Act (section 101), so I don't know what the
concept of "terms" is supposed to refer to here.
I have been a frequent critic of FSF and the political and
philosophical underpinnings of Project GNU, and more recently of
Richard Stallman's attempts to use publicly-funded networks for
partisan political advocacy, but I find nothing in the GNU Public
License that would render it unenforceable under copyright law or
federal or state common law.
--
Michael C. Berch
Member of the California Bar
m...@tis.llnl.gov / uunet!tis.llnl.gov!mcb