Intellectual Property II

1 view
Skip to first unread message

CJohn Zammit

unread,
Dec 21, 2005, 11:28:09 AM12/21/05
to
In the seemingly never-ending "intellectual property" thread, prominent IP
law expert, Paul Tauger (poster Ptravel), asserts that, "A license that is
not a contract is an oxymoron."

Not being a lawyer, I'm still somewhat confused.

In its almost 3-page definition of "Contract," Black's Law Dictionary
doesn't mention, even once, the word "license."

But in its definition of "License," Black's states that, "A license is not a
contract ..."

I have deliberately cut short that sentence because, as a non-lawyer, I am
not sure whether it applies to strictly the context of the paragraph in
which it appears, or, to the entire definition of "license."

That said, what if, instead of affixing the standard copyright notice to a
work, the author were to declare, "I hereby waive all rights granted me by
copyright"?

Would that be a license?
Can it be considered a contract?

Lee Hollaar

unread,
Dec 21, 2005, 11:58:03 AM12/21/05
to
In article <tofqf.16920$eo....@read1.cgocable.net> "CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> writes:
>But in its definition of "License," Black's states that, "A license is not a
>contract ..."
>
>I have deliberately cut short that sentence because, as a non-lawyer, I am
>not sure whether it applies to strictly the context of the paragraph in
>which it appears, or, to the entire definition of "license."

It would be helpful if you did post the entire definition, or at least
the paragraph containing the phrase, so that one can see the context
in which it was used.

And also the edition of Black's that you are quoting. For example,
the Seventh Edition does not seem to have anything like that.

And, of course, one needs to understand that Black's in a dictionary
and not a complete discussion of a concept.

PTRAVEL

unread,
Dec 21, 2005, 12:51:21 PM12/21/05
to

"CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> wrote in message
news:tofqf.16920$eo....@read1.cgocable.net...

> That said, what if, instead of affixing the standard copyright notice to a
> work, the author were to declare, "I hereby waive all rights granted me by
> copyright"?

That is dedication to the public domain. It's not a license.

Arnoud Galactus Engelfriet

unread,
Dec 21, 2005, 2:22:04 PM12/21/05
to
In article <40tj0qF...@individual.net>,

I hereby grant to any person the unrestricted right to exercise
all rights concerning this work.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

PTRAVEL

unread,
Dec 21, 2005, 3:26:32 PM12/21/05
to

"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
news:doca0s$1994$1...@toad.stack.nl...

> In article <40tj0qF...@individual.net>,
> PTRAVEL <ptravel8...@yahoo.com> wrote:
> >
> >"CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> wrote in message
> >news:tofqf.16920$eo....@read1.cgocable.net...
> >
> >> That said, what if, instead of affixing the standard copyright notice
to a
> >> work, the author were to declare, "I hereby waive all rights granted me
by
> >> copyright"?
> >
> >That is dedication to the public domain. It's not a license.
>
> I hereby grant to any person the unrestricted right to exercise
> all rights concerning this work.

Practically, and probably legally, that would be dedication to the public
domain, as well.

Arnoud Galactus Engelfriet

unread,
Dec 21, 2005, 3:40:02 PM12/21/05
to
In article <40ts3qF...@individual.net>,

PTRAVEL <ptravel8...@yahoo.com> wrote:
>"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
>news:doca0s$1994$1...@toad.stack.nl...
>> I hereby grant to any person the unrestricted right to exercise
>> all rights concerning this work.
>
>Practically, and probably legally, that would be dedication to the public
>domain, as well.

Well, it's a permission from an authority to do something that
would otherwise be forbidden. As copyright holder, I'm the authority
and I permit you to do certain things. To me that fits the definition
of "license" as it occurs in Black's.

Maybe there's a terminology issue at work here. I've always seen
a patent license or copyright license as comparable to a fishing
license, driver's license, law license, radio frequency license.
It's the actual permission that the licensor grants the licensee.

The _grant_ of a license under patent or copyright is done in
a license contract. The grant of a driver's license or fishing
license is done through a different legal construct.

Does that make sense? It certainly would go a long way in making
sense of the statement "the GPL is a license, not a contract". By
itself, the GPL sums up a series of permissions granted by a
copyright holder, so it's a license. A contract is formed when
someone _accepts_ the GPL.

Lee Hollaar

unread,
Dec 21, 2005, 4:15:34 PM12/21/05
to
In article <docej2$1er6$1...@toad.stack.nl> gala...@stack.nl (Arnoud "Galactus" Engelfriet) writes:
> It certainly would go a long way in making
>sense of the statement "the GPL is a license, not a contract".

One can tie oneself in knots trying to make sense of the GPL and
the statements made about it. It ignores provisions of the copyright
statutes that allow the modification or redistribution of works
without permission of the copyright owner. It talks about "derived"
works which don't seem to be the same as "derivative works." And
the explanations from RMS and others often make little sense, as
in the case where something was a derived work until somebody wrote
a non-GPLed math library compatible with the GPLed one.

One has to ask oneself whether it makes any difference if the GPL
is a "contract" or not, keeping in mind that there hasn't been any
case where the FSF has sued anybody over the GPL. I suspect that
if they did sue somebody, they would throw in a breach of contract
claim just in case.

It will be interesting to see what the upcoming third version of
the GPL will be like, considering that it is being written by somebody
with legal knowledge, and not just RMS.

PTRAVEL

unread,
Dec 21, 2005, 4:32:10 PM12/21/05
to

"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
news:docej2$1er6$1...@toad.stack.nl...

> In article <40ts3qF...@individual.net>,
> PTRAVEL <ptravel8...@yahoo.com> wrote:
>>"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
>>news:doca0s$1994$1...@toad.stack.nl...
>>> I hereby grant to any person the unrestricted right to exercise
>>> all rights concerning this work.
>>
>>Practically, and probably legally, that would be dedication to the public
>>domain, as well.
>
> Well, it's a permission from an authority to do something that
> would otherwise be forbidden. As copyright holder, I'm the authority
> and I permit you to do certain things. To me that fits the definition
> of "license" as it occurs in Black's.

1. Black's is a legal dictionary, not an authority (this is why lay people
shouldn't argue law).

2. Unless you've reserved rights, it's not a license. In your
hypothetical, no rights are reserved. As such, it's dedication to the
public domain.


>


> Maybe there's a terminology issue at work here.

Perhaps from your perspective. Not from mine.

> I've always seen
> a patent license or copyright license as comparable to a fishing
> license, driver's license, law license, radio frequency license.
> It's the actual permission that the licensor grants the licensee.

That's how a lot of non-lawyers see it.

>
> The _grant_ of a license under patent or copyright is done in
> a license contract.

No one calls it a "license contract."

> The grant of a driver's license or fishing
> license is done through a different legal construct.
>
> Does that make sense?

Honestly? No. A license is a conveyence of rights. You seem to be making
a distinction between the piece of paper on which the conveyence is written
and some metaphysical act of "conveying." There is no such distinction, or
at least none that matters from a legal standpoint.

> It certainly would go a long way in making
> sense of the statement "the GPL is a license, not a contract".

Except that it has nothing to with law, and the statement is wrong and
remains wrong.

> By
> itself, the GPL sums up a series of permissions granted by a
> copyright holder, so it's a license. A contract is formed when
> someone _accepts_ the GPL.

A license is a conveyence of rights. A license is a contract. As with any
contract, unless there has been acceptance, no contract is formed. If the
contract in question is a license, if there has been no acceptance, there is
no license.

Rahul Dhesi

unread,
Dec 21, 2005, 4:54:36 PM12/21/05
to
hol...@antitrust.cs.utah.edu (Lee Hollaar) writes:

>One can tie oneself in knots trying to make sense of the GPL and
>the statements made about it. It ignores provisions of the copyright
>statutes that allow the modification or redistribution of works
>without permission of the copyright owner. It talks about "derived"
>works which don't seem to be the same as "derivative works." And
>the explanations from RMS and others often make little sense, as
>in the case where something was a derived work until somebody wrote
>a non-GPLed math library compatible with the GPLed one.

A lay person without any preconceived notions of what the law ought to
be typically has no problem understanding the GPL. For example, lay
folks have a pretty good idea of derived works are, even if they are not
sure where the exact boundary is between a derived work and a merely
inspired or merely aggregated work. Only those people who wish to take
advantage of GPL-licensed software while doing their best to avoid
actually conforming to the GPL actually care where the exact boundary
is.

Is it really a problem that there is not always an exact mapping between
clauses in the GPL and clauses in published court opinions? I think
courts are quite capable of taking something written in English and
mapping it to L-English, based on what the writer's obvious intent must
have been.

I think there are two main reasons why people criticize the GPL.

1. People who don't like the GPL wish to gain publicity points by trying
to cast doubt on the validity of the GPL. One strategy they use is to
allege a lack of clear mapping between the English used in the GPL and
the L-English used in many licenses and contracts.

2. People who like the GPL are sometimes concerned that it might not be
legally rigorous enough to prevent misuse of GPL-licensed software.

I think there are very few people who fit the description in item 2
above, and they don't seem to post to misc.int-property. The rest of
the people who criticize the GPL are really criticizing not its language
but its philosophy. If their real objection were to what they think is
its lack of rigor, they would keep silent on this isue quietly watch in
amusement as GPL licensors failed to enforce the GPL.

(I am not claiming that you necessarily fit either of the two categories
above.)
--
Rahul

Rahul Dhesi

unread,
Dec 21, 2005, 5:00:50 PM12/21/05
to
"PTRAVEL" <ptravel8...@yahoo.com> writes:

>Honestly? No. A license is a conveyence of rights. You seem to be making
>a distinction between the piece of paper on which the conveyence is written
>and some metaphysical act of "conveying." There is no such distinction, or
>at least none that matters from a legal standpoint.

I would have thought that the piece of paper (or electronic file)
doesn't become a conveyance until something is actually conveyed.

And it's not clear to me that there is any real conveyance occurring
when somebody merely copies GPL-licensed software, unless you actually
transfer the copyright to him too.
--
Rahul

Lee Hollaar

unread,
Dec 21, 2005, 5:43:00 PM12/21/05
to
In article <docius$hdp$1...@blue.rahul.net> c.c....@XReXXIntel.usenet.us.com (Rahul Dhesi) writes:
>A lay person without any preconceived notions of what the law ought to
>be typically has no problem understanding the GPL.

To the extent that the GPL is a political screed, that's all well and
good. But it is also a legal document, or at least tries to be, and
there it is subject to all the preconceived notions of what the law is.


>Is it really a problem that there is not always an exact mapping between
>clauses in the GPL and clauses in published court opinions? I think
>courts are quite capable of taking something written in English and
>mapping it to L-English, based on what the writer's obvious intent must
>have been.

The problem is that the mapping may not be what RMS intended, or what
a reasonable person being bound by the GPL thought. The courts have
enough problems interpreting statutes or contracts or patent claims
when the drafter wasn't using slightly different terms or ignoring
existing law.

PTRAVEL

unread,
Dec 21, 2005, 6:49:32 PM12/21/05
to

"Rahul Dhesi" <c.c....@XReXXIntel.usenet.us.com> wrote in message
news:docjai$itd$1...@blue.rahul.net...

> "PTRAVEL" <ptravel8...@yahoo.com> writes:
>
> >Honestly? No. A license is a conveyence of rights. You seem to be
making
> >a distinction between the piece of paper on which the conveyence is
written
> >and some metaphysical act of "conveying." There is no such distinction,
or
> >at least none that matters from a legal standpoint.
>
> I would have thought that the piece of paper (or electronic file)
> doesn't become a conveyance until something is actually conveyed.

It doesn't matter, as this is all semantic nonsense. The conveyence takes
place (unless otherwise provided) upon the excecution of the contract that
is the license.

> And it's not clear to me that there is any real conveyance occurring
> when somebody merely copies GPL-licensed software, unless you actually
> transfer the copyright to him too.

That would be an assignment, not a license. This is basic (very, very
basic) copyright law. A copyright can be viewed as a bundle of sticks, each
stick comprising a right that can be conveyed in a number of ways -- a right
can be licensed or, if the conveyence is total and permanent, it can be
assigned. Anything less than an assignment is a license.

As for what may or may not be clear re: the GPL, if rights in the subject
matter are retained and not assigned, then it is a license. I don't know
from memory all the provisions of the GPL. If it permits copying, then that
is a license. The GPL retains rights in the software so protected, so it is
not an assignment.

> --
> Rahul
>


Rahul Dhesi

unread,
Dec 21, 2005, 7:06:30 PM12/21/05
to
hol...@antitrust.cs.utah.edu (Lee Hollaar) writes:

>The problem is that the mapping may not be what RMS intended, or what
>a reasonable person being bound by the GPL thought. The courts have
>enough problems interpreting statutes or contracts or patent claims
>when the drafter wasn't using slightly different terms or ignoring
>existing law.

Are you sure that reasonable persons will be surprised by a court's
interpretation of the GPL with any greater likelihood that reasonable
persons are surprised by the way contracts written in L-English are
interpreted by courts? Licenses written in L-English are far more
difficult to understand by reasonable persons than the GPL is.

Let me give you an example of a license written in L-English that
surprises reasonable persons. Microsoft's typical license that
accompanies pre-installed Microsoft OSs tells the user that he may
return the software for a full refund. But reasonable persons have tried
to get the full refund and failed. A Google search should turn up some
stories. We seem to have here an example of an L-English license in
which "may return" apparently means "may not return".

Which portions of the GPL do you think are likely to be more surprising
to reasonable persons than the example above?
--
Rahul

PTRAVEL

unread,
Dec 21, 2005, 7:09:08 PM12/21/05
to

"Rahul Dhesi" <c.c....@XReXXIntel.usenet.us.com> wrote in message
news:docius$hdp$1...@blue.rahul.net...

> hol...@antitrust.cs.utah.edu (Lee Hollaar) writes:
>
> >One can tie oneself in knots trying to make sense of the GPL and
> >the statements made about it. It ignores provisions of the copyright
> >statutes that allow the modification or redistribution of works
> >without permission of the copyright owner. It talks about "derived"
> >works which don't seem to be the same as "derivative works." And
> >the explanations from RMS and others often make little sense, as
> >in the case where something was a derived work until somebody wrote
> >a non-GPLed math library compatible with the GPLed one.
>
> A lay person without any preconceived notions of what the law ought to
> be typically has no problem understanding the GPL.

Which gets to the heart of the matter. A lay person's understanding of the
GPL is (1) generally based on ignorance, and (2) almost certainly wrong.
I've seen similar lay arguments about Fair Use doctrine, i.e. "oh, there are
four factors in the statute, so as long as I come under one, e.g. my use is
educational, then it's fair use." Simple and easy? Yes. Correct?
Absolutely not.

> For example, lay
> folks have a pretty good idea of derived works are, even if they are not
> sure where the exact boundary is between a derived work and a merely
> inspired or merely aggregated work. Only those people who wish to take
> advantage of GPL-licensed software while doing their best to avoid
> actually conforming to the GPL actually care where the exact boundary
> is.

Only those trying to comply with GPL, or trying to enforce the GPL, care
where is the exact boundary. This is a critical question, and one that I
answer for my software clients on a regular basis. Their programmers don't
care. Their general counsel and officers and directors care very much
since, if their programmers are wrong (and they often are), the company can
lose huge amounts of money.

>
> Is it really a problem that there is not always an exact mapping between
> clauses in the GPL and clauses in published court opinions?

No. "Published court opinions" have nothing to do with this. What do you
think the purpose of law is? (That's a rhetorical question, as I'm going to
answer it). The purpose of law is, among other things, to provide
predictability in human interactions. The purpose of contract law is, among
other things, to provide predictability in commercial interactions. That's
why construction of the GPL is critical -- any commercial enterprise
attempting to use software licensed under the GPL must be able to predict
whether (1) their use is lawful and in compliance with the GPL, and (2)
whether using GPL-licensed material will negatively effect their ability to
profit off the works that they produce. This may be a game to those without
an economic stake in the outcome, but it is certainly not a game to those
businesses whose very existence depends on their ability to derive profit
from the software that they produce. As a matter of law, and as with any
license, construction of the GPL is pursuant to standard contract
doctrine -- that's how the courts will look at it, and that's how I look at
it when I'm asked to evaluate an open source license for my clients. The
authors of the GPL can claim "it's not a contract" all they want -- calling
a horse a stripeless zebra doesn't make it one, and the court's will not
consider the parole statements of GPL proponents when it comes time to
enforce the GPL.

> I think
> courts are quite capable of taking something written in English and
> mapping it to L-English, based on what the writer's obvious intent must
> have been.

Except that isn't how courts construe contracts -- another example of why
lay understanding of these kinds of things is usually wrong and, for that
reason, meaningless. There are all sorts of doctrines of construction that
will control. For example, parole evidence is barred if the contract is
integrated, ambiguities are construed against the draftor, all terms will be
construed to give them meaning, etc., etc., etc. If you haven't studied
contract law, you won't know them and won't be able to predict how a court
will construe a license.

>
> I think there are two main reasons why people criticize the GPL.
>
> 1. People who don't like the GPL wish to gain publicity points by trying
> to cast doubt on the validity of the GPL. One strategy they use is to
> allege a lack of clear mapping between the English used in the GPL and
> the L-English used in many licenses and contracts.

Wrong. I don't like the GPL because its terms are incompatible with my
clients' business goals. I don't question whether the GPL is "valid,"
whatever that means in the context in which you've used the term. On the
contrary, I proceed on the assumption that it is valid and enforceable. It
is therefore critical to understand its terms if my clients are going to
incorporate software licensed under it.

>
> 2. People who like the GPL are sometimes concerned that it might not be
> legally rigorous enough to prevent misuse of GPL-licensed software.

I have no idea what "legally rigorous" means in any context. As I said, I
assume the GPL (and all other open source licenses) are valid and
enforceable. The GPL incorporates an _economic_ philosophy that is
incompatible with the business models employed by my clients. As such, they
don't use GPL-licensed software.

Incidently, my clients, on my recommendation, _have_ used some open source
products, usually in contexts in which the open source software is a tool
that produces an end result. Based on _my_ construction of the open source
license, use of the end product does not result in unacceptable obligations
on the part of my client, whereas incorporation of the code that produces
the end result would. My only concern is what obligation would my client
undertake if they employ licensed code (and that is true with respect to any
license, not just open source). I don't care about the relative "rigor" of
the license.


>
> I think there are very few people who fit the description in item 2
> above, and they don't seem to post to misc.int-property. The rest of
> the people who criticize the GPL are really criticizing not its language
> but its philosophy.

Exactly! The GPL is the expression of a particular economic theory. That
theory is _not_ compatible with the business models employed by my clients.
It's got nothing to do with whether I "like" the GPL or not. My only
concern is how it effects my clients.

> If their real objection were to what they think is
> its lack of rigor, they would keep silent on this isue quietly watch in
> amusement as GPL licensors failed to enforce the GPL.

I've never suggested the GPL is unenforceable, nor would I normally
recommend to a client that they proceed on the assumption that a license is
unenforceable. What do you think happens if a license is unenforceable?
(That's another rhetorical question.) It means that the use of the
expression protected by the license is unauthorized and unprivileged, i.e.
that use would constitute copyright infringement.

Isaac

unread,
Dec 21, 2005, 8:14:16 PM12/21/05
to
On Wed, 21 Dec 2005 14:15:34 -0700 (MST), Lee Hollaar
<hol...@antitrust.cs.utah.edu> wrote:
>
> One has to ask oneself whether it makes any difference if the GPL
> is a "contract" or not, keeping in mind that there hasn't been any
> case where the FSF has sued anybody over the GPL. I suspect that
> if they did sue somebody, they would throw in a breach of contract
> claim just in case.

I think one possible impact is that if the GPL is not a contract, it
probably could not be enforced in state court, and it might be
impossible to enforce the license against state government infringers.

Isaac

Isaac

unread,
Dec 21, 2005, 8:22:59 PM12/21/05
to
On Wed, 21 Dec 2005 21:54:36 +0000 (UTC), Rahul Dhesi
<c.c....@XReXXIntel.usenet.us.com> wrote:
>
> Is it really a problem that there is not always an exact mapping between
> clauses in the GPL and clauses in published court opinions? I think
> courts are quite capable of taking something written in English and
> mapping it to L-English, based on what the writer's obvious intent must
> have been.

If the GPL were a contract, then the provisions concerning
derived works would be on more solid ground. OTOH, if it is possible
to create derived works without infringing copyright, and if the GPL
is not a license, then the owner's definition of derived works may
not even be relevant in court. The FSF seeks to enforce limitations
on derived works in situations where creating them does not require
infringing any of the copyright holder's exclusive rights under the
law.

Isaac

Isaac

unread,
Dec 21, 2005, 9:08:04 PM12/21/05
to
On Wed, 21 Dec 2005 11:28:09 -0500, CJohn Zammit <cjohnz@==NOSpam==cogeco.ca>
wrote:

> In the seemingly never-ending "intellectual property" thread, prominent IP
> law expert, Paul Tauger (poster Ptravel), asserts that, "A license that is
> not a contract is an oxymoron."

One thing wrong with that statement is that there is a real property
concept called a license that refers to a grant of permission to make use
of property. A grant of permission to allow someone to pick apples from
a tree growing in your yard is a license in a real property sense, but it
is assuredly not a contract. For one thing, such a license is revocable.

> Not being a lawyer, I'm still somewhat confused.
>
> In its almost 3-page definition of "Contract," Black's Law Dictionary
> doesn't mention, even once, the word "license."

I wouldn't make much out of the omission.

> But in its definition of "License," Black's states that, "A license is not a
> contract ..."
>

Some context would be real helpful. There is the chance that Black's might
have something interesting to say here. I have to admit that I haven't looked
in my copy of Black's since I was a first year law student.

Isaac

PTravel

unread,
Dec 21, 2005, 9:14:24 PM12/21/05
to

"Isaac" <is...@latveria.castledoom.org> wrote in message
news:slrndqk2k4...@latveria.castledoom.org...

> On Wed, 21 Dec 2005 11:28:09 -0500, CJohn Zammit
<cjohnz@==NOSpam==cogeco.ca>
> wrote:
> > In the seemingly never-ending "intellectual property" thread, prominent
IP
> > law expert, Paul Tauger (poster Ptravel), asserts that, "A license that
is
> > not a contract is an oxymoron."
>
> One thing wrong with that statement is that there is a real property
> concept called a license that refers to a grant of permission to make use
> of property. A grant of permission to allow someone to pick apples from
> a tree growing in your yard is a license in a real property sense, but it
> is assuredly not a contract. For one thing, such a license is revocable.

That a license is revocable doesn't disqualify it from being a contract.
Why do you think that entry upon land by permission, i.e. a license, is not
also a contract?

Lee Hollaar

unread,
Dec 21, 2005, 9:18:04 PM12/21/05
to
In article <docqm6$p6l$1...@blue.rahul.net> c.c....@XReXXIntel.usenet.us.com (Rahul Dhesi) writes:
>Are you sure that reasonable persons will be surprised by a court's
>interpretation of the GPL with any greater likelihood that reasonable
>persons are surprised by the way contracts written in L-English are
>interpreted by courts? Licenses written in L-English are far more
>difficult to understand by reasonable persons than the GPL is.
>
>Let me give you an example of a license written in L-English that
>surprises reasonable persons.

I'll do you one better, and that's the difference between what an
exclusive license means under the law, and what most people think
it means.

Or, in a patent claim, what "consisting of" means and how it is
different from "comprising".

But patent claims and licenses and contracts are legal documents,
and are interpreted as such and not as what a layman would think.

Which is why, when you have a legal document written by somebody who
doesn't fully understand the law, it is difficult to predict how it
might be interpreted.

Isaac

unread,
Dec 21, 2005, 9:58:41 PM12/21/05
to

The offers involved with a contract are revocable, but once the contract
is formed it is not revocable unless the terms explicitly include a term
allowing it. A license to pick apples on the other hand can be revoked at
any time.

You're on pretty shakey ground here. The license in question is the
property right and not any surrounding agreement that could be a contract.
It's strictly a property concept.

Isaac

PTravel

unread,
Dec 21, 2005, 10:05:44 PM12/21/05
to

"Isaac" <is...@latveria.castledoom.org> wrote in message
news:slrndqk5j1...@latveria.castledoom.org...

The contract is, "You can enter on my land to pick apples, said license
revocable at any time."

It's not the contract that is revoked, but the license to enter granted by
it.

>
> You're on pretty shakey ground here. The license in question is the
> property right and not any surrounding agreement that could be a contract.
> It's strictly a property concept.

Sorry, I don't agree. Ever read the back of a movie ticket? It reserves
the right of the management to revoke the license to enter. Do you think
the ticket isn't a contract?

>
> Isaac
>


Isaac

unread,
Dec 21, 2005, 10:11:49 PM12/21/05
to
On Thu, 22 Dec 2005 03:05:44 GMT, PTravel <ptr...@travelersvideo.com> wrote:

> The contract is, "You can enter on my land to pick apples, said license
> revocable at any time."

If you believe that to be a contract, then I understand why we don't agree
What you have there is a simple grant of permission. It is not a contract.

Isaac

Arnoud Galactus Engelfriet

unread,
Dec 22, 2005, 3:28:57 AM12/22/05
to
In article <docius$hdp$1...@blue.rahul.net>,

Rahul Dhesi <c.c....@XReXXIntel.usenet.us.com> wrote:
>Only those people who wish to take
>advantage of GPL-licensed software while doing their best to avoid
>actually conforming to the GPL actually care where the exact boundary
>is.

That's an unfair characterization. There are many perfectly good
reasons to want to know exactly how far your obligations go.

For example, if our engineers consider using a piece of GPL software
in a product that uses third-party software as well, I need to know
our obligations. Do we need to acquire rights to release that
third-party software under GPL as well? Or should we go look for an
alternative to the GPL software?

This has nothing to do with "wanting to avoid the GPL".

Of course, you could say "just make your whole product GPL".
That nicely avoids the question, and probably would make RMS
very happy. But it's not practical.

>I think
>courts are quite capable of taking something written in English and
>mapping it to L-English, based on what the writer's obvious intent must
>have been.

True, _if_ the writer's intent is obvious. This is not true for
the GPL. The text contradicts itself in several places, which
makes it very difficult to determine what RMS meant when he
wrote it. And that in my opinion is more of a reason why people
argue over what it is supposed to mean.

Alexander Terekhov

unread,
Dec 22, 2005, 7:15:27 AM12/22/05
to

Lee Hollaar wrote:
[...]

> It will be interesting to see what the upcoming third version of
> the GPL will be like, considering that it is being written by somebody
> with legal knowledge, and not just RMS.

Oh yeah, I'm eagerly awaiting http://gplv3.fsf.org circus begin. Apart
from top notch entertainment value, don't hold your breath though. "The
GPL is the Constitution of the Free Software Movement", "The GPL is the
Literary Work of Richard M. Stallman ... to preserve its integrity as a
work representative of his intentions as any other author or creator"
(http://www.fsf.org/news/gpl3.html). See it's not about law (other than
GNU law). The FSF ignored problems with the GPL for years, and I just
can't believe that it will change.

http://www.stromian.com/Corner/Feb2005.html

<quote>

Rosen is too polite to call for replacing the FSF licenses with his own,
but in his Chapter 6: Reciprocity and the GPL, he makes many
observations, including:

1) The FSF’s refusal of outside improvements to the GPL and its
denunciation of them as "restrictions" handicaps the GPL in the courts:
"Their avoidance of restrictions has delayed the adoption of new and
useful licensing concepts for open source software." (p. 106). These
"restrictions" are actually items such as clear grants of patent
licenses and the like.

2) The FSF language about software "containing" GPL’d software tries to
turn collective works into derivative works, and is contrary to the
usual practice of copyright law (p. 114).

3) Further instances of unclear language that vary from simply untrue
(the GPL mandate that "you must give the recipients all the rights that
you have," says Rosen, "is unnecessarily frightening and is not true"--
because you still have the right to give the work to others, p. 111) to
inept (the provisions for linking to LGPL’d code is "an impenetrable
maze of technobabble," p. 124).

4) The FSF’s ideas about linking to GPL’d software (see 2) and 3) above)
conflict with copyright law and practice to the extent that there is no
need for the LGPL because a user who does not modify a GPL’d work of
software, but simply incorporates it into a collective work and
distributes it, is well within copyright law. This means, simply, that
one can link to GPL’d software and distribute the collective work. If
the software has a use, simply using it is permitted under copyright
law.

The problems resulting from the FSF’s unwillingness or inability to
bring their GPL/LGPL licensing into conformity with copyright law, and
with modern software licensing practice under that law, will lead it
into eventual disrepute. So far the FSF has been scrupulous about
avoiding court, relying on quiet persuasion that moves over to loud
public indignation and pressure on the infringer from many quarters,
and it has been successful so far. But its reputation for ferocious
fanaticism frightens away not only those who would abuse the GPL, but
also those who can’t come to terms with the FSF’s interpretation of
its licenses. By holding the opinion that a collective work is
actually a derivative work (and therefore violates the GPL) the FSF
invites gradual and then wholesale violations of the GPL, and
increasing difficulty in determining which cases will be defensible
and which will have to be ignored in order not to expose the FSF’s
interpretations to adjudication.

In cases in which the FSF is not the copyright holder, and therefore
lacks standing in court, the actual copyright holders will have to
reach the same decision about bringing an infringement suit. The
worst case would be that of distributing binary-only software linked
to unmodified GPL’d software. A good prediction of the outcome would
be that the GPL will be found invalid in some way. First, for its
ambiguities: courts decide in favor of licensees if the licensor has
not written a clear license. Second, for its clear misinterpretations
of copyright law. Rosen believes that the courts will favor the GPL’s
restrictions on derivative works, but not on collective works. Beyond
this fairly clear risk is any additional court finding concerning the
GPL, for no one ever really knows what a court will decide.

In any case the GPL will have been exposed as a paper tiger, the
result of a too-wide stretching to achieve the death of proprietary
software. No one in the Open Source world wants a public and legal
repudiation of an archetypal Open Source license. The sensible thing
would be for the FSF to adopt Rosen’s Open Source License, and for
everyone who has put out software under the GPL to relicense it under
the OSL.

</quote>

regards,
alexander.

Rahul Dhesi

unread,
Dec 22, 2005, 8:07:19 AM12/22/05
to
hol...@antitrust.cs.utah.edu (Lee Hollaar) writes:

>I'll do you one better, and that's the difference between what an
>exclusive license means under the law, and what most people think it

>means....

But you didn't do me one better.

You had asserted that the GPL might not mean what reasonable persons
thought it meant. I countered by saying that licenses written in
L-English are far more difficult for reasonable persons to understand
than the GPL is. I provided a specific example: A license written in
L-English in which "may return" apparently means "may not return". I
asked a fairly specific question: "Which portions of the GPL do you


think are likely to be more surprising to reasonable persons than the

example above?" You followed up to my posting but you did not answer
the question. How is not answering the question doing me "one better"?

By the way, the GPL does not use the word 'exclusive', so what people
think 'exclusive' means does not affect the meaning of the GPL.

I feel I'm arguing with PTRAVEL! :-)
--
Rahul

Alexander Terekhov

unread,
Dec 22, 2005, 8:29:08 AM12/22/05
to

Rahul Dhesi wrote:
[...]

> I feel I'm arguing with PTRAVEL! :-)

Hey, <http://gplv3.fsf.org/suggest-a-shirt>.

Be a good GNUtian.

regards,
alexander.

Alexander Terekhov

unread,
Dec 22, 2005, 8:36:33 AM12/22/05
to

Alexander Terekhov wrote:
>
> Rahul Dhesi wrote:
> [...]
> > I feel I'm arguing with PTRAVEL! :-)
>
> Hey, <http://gplv3.fsf.org/suggest-a-shirt>.
>
> Be a good GNUtian.

"The intellectual property be damned, long live GPL software" must be
it.

regards,
alexander.

Alexander Terekhov

unread,
Dec 22, 2005, 10:03:15 AM12/22/05
to

Lee Hollaar wrote:
[...]

> It talks about "derived"
> works which don't seem to be the same as "derivative works." And
> the explanations from RMS and others often make little sense, as
> in the case where something was a derived work until somebody wrote
> a non-GPLed math library compatible with the GPLed one.

No. GPL "derived" works means "derivative under GNU law" works.

http://web.novalis.org/talks/compliance-for-developers/slide-49.html

[begin textual copying]

July 27, 2004 GPL Compliance for Software Developers Legal notes
----------------------------------------------------------------

Legal notes

Static linking creates a derivative work through textual copying

Most dynamic linking cases involve distributing the library

Still a derivative work:

Dynamic linking

Distributing only the executable (testtriangle)

Still a derivative work:

Distributing the source code of software which links to a library

when that library is the only software to provide that interface

-----------------------------------------------------------------
Copyright Š 2004, Free Software Foundation. Verbatim copying
permitted provided this notice is preserved.

[end textual copying]

Everything on your computer "as a whole" is now a derivative
work of FSF's "legal notes" -- you've created it "through
textual copying" by loading this message. All your base are
belong to the GNU Republic, you know.

regards,
alexander.

Alexander Terekhov

unread,
Dec 22, 2005, 11:21:19 AM12/22/05
to

Lee Hollaar wrote:

>
> In article <tofqf.16920$eo....@read1.cgocable.net> "CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> writes:
> >But in its definition of "License," Black's states that, "A license is not a
> >contract ..."
> >
> >I have deliberately cut short that sentence because, as a non-lawyer, I am
> >not sure whether it applies to strictly the context of the paragraph in
> >which it appears, or, to the entire definition of "license."
>
> It would be helpful if you did post the entire definition, or at least
> the paragraph containing the phrase, so that one can see the context
> in which it was used.

A permit, granted by an appropriate governmental
body, generally for a consideration, to a person, firm,
or corporation ... to carry on some business subject to
regulation under the police power. A license is not a
contract between the state and the licensee, but is a
mere personal permit. Neither is it property or a
property right.

I suppose.

And in the GNU Republic... distributing software is permitted
under the GPL and only the GPL. Of course it is neither a
property nor a property right. It's quite simple, really. The
GPL is not a contract, indeed. In the GNU Republic, that is.

regards,
alexander.

CJohn Zammit

unread,
Dec 22, 2005, 3:00:07 PM12/22/05
to
Thank you, all, for your posts, with special thanks to Mr. Tauger, for
straightening me out.

Dedication to the public domain might be something that the folks at FSF
should consider ... if they are really serious about "free" software.

All the best for the Holiday Season.


Roger Schlafly

unread,
Dec 22, 2005, 6:41:34 PM12/22/05
to
"CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> wrote:
> Dedication to the public domain might be something that the folks at FSF
> should consider ... if they are really serious about "free" software.

No, that is not what they want. They want "free" as in
free speech, not free beer.

If my explanation doesn't make any sense to you, then
you'll have to read some of RMS's rants.


CJohn Zammit

unread,
Dec 22, 2005, 9:58:35 PM12/22/05
to
"Roger Schlafly" <roge...@mindspring.com> wrote in message
news:b152a$43ab39b0$943f91b6$24...@STARBAND.NET...
RMS makes as much sense as your explanation.


Alexander Terekhov

unread,
Dec 23, 2005, 4:34:20 AM12/23/05
to

CJohn Zammit

unread,
Dec 23, 2005, 9:57:26 AM12/23/05
to
"Alexander Terekhov" <tere...@web.de> wrote in message
news:43ABC49C...@web.de...

From the first link:
"Stallman as the founder of Software Anarchism"

[Yawn]

From the second link:
"Readers with strong allergy to spelling and grammar errors are advised to
avoid reading of this draft."

I'd say that, readers with even an ounce of functioning brain-cells ought
not read this crap-posing-as-intellectual-discourse.

Nah, I take that back ... it's good for a laugh!


Josh Dougherty

unread,
Dec 23, 2005, 10:26:00 AM12/23/05
to
"CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> wrote in message
news:bBDqf.11213$ph....@read2.cgocable.net...

The FSF is apparently interested in every user having the freedom to copy,
use and change the software. The GPL is so that when they release a piece
of software, Microsoft or some such doesn't just make some incompatible
change to it, and/or change it and patent it, and then take those freedoms
away from every subsequent user of the software, which is what would be the
case if it was put in the public domain.

Without copyright or patent law there's no GPL, but then not much need for
it either. It seems like a good compromise given the existence of such
laws, as it would seem to provide for more freedom for more people, denying
only the "freedom" to make a change and then take all the freedoms away from
everyone else thereafter.

Alexander Terekhov

unread,
Dec 23, 2005, 10:36:37 AM12/23/05
to

CJohn Zammit wrote:
[...]

> From the first link:
> "Stallman as the founder of Software Anarchism"

http://emoglen.law.columbia.edu/my_pubs/anarchism.html
(Anarchism Triumphant: Free Software and the Death of Copyright)

----
The spread of the Linux operating system kernel has directed
attention at the free software movement. This paper shows why
free software, far from being a marginal participant in the
commercial software market, is the vital first step in the
withering away of the intellectual property system.
----

regards,
alexander.

Alexander Terekhov

unread,
Dec 23, 2005, 11:09:18 AM12/23/05
to

Josh Dougherty wrote:
[...]

> Without copyright or patent law there's no GPL, but then not much need for
> it either.

Nah. In the GNU Republic there's GNU law -- distributing software under
any agreement other than the GPL (hint: it's not a contract or a property
right in the GNU Republic) or "GPL compatible" agreement (but that's for
extra fee) is a felony.

regards,
alexander.

Josh Dougherty

unread,
Dec 23, 2005, 11:16:23 AM12/23/05
to
"Alexander Terekhov" <tere...@web.de> wrote in message
news:43AC212E...@web.de...

Perhaps you should be posting in rec.arts.sf.misc.


Alexander Terekhov

unread,
Dec 23, 2005, 11:50:11 AM12/23/05
to

Well take this, Josh.

http://www.gnu.org/philosophy/copyright-versus-community.html

<quote>

RMS: Right. There would have also to be a condition, a law that
to sell copies of the software to the public the source code must
be deposited somewhere ... So it could be deposited say, with the
library of congress in the US, and I think other countries have
similar institutions where copies of published books get placed,
... And of course, if the source code didn't correspond to the
executable that would be fraud, and in fact if it really
corresponds then they ought to be able to check that very easily
when the work is published initially so you're publishing the
source code and somebody there says alright "dot slash configure
dot slash make" and sees if produces the same executables and uh.

So you're right, just eliminating copyright would not make
software free.

AM5: Um libre

RMS: Right.

</quote>

regards,
alexander.

Josh Dougherty

unread,
Dec 23, 2005, 12:25:12 PM12/23/05
to
"Alexander Terekhov" <tere...@web.de> wrote in message
news:43AC2AC3...@web.de...

He's not actually talking about a copyright free world here, despite saying
"eliminating" at the end. The preceding discussion was entirely about a
world with shorter copyrights: "RMS: ... For example, maybe some aspects of
copyright for movies should last for longer ... Meanwhile for software, I
suspect that a three year copyright would be enough...".

And the question preceding the answer above is:
"AM4: The problem with this change in the copyright laws for three [year
copyrights] would be that you wouldn't get the sources."

So this isn't anything I was talking about. The law he's proposing for his
copyright world though seems reasonable enough, and far less oppressive and
far more free, as instead of millions or billions of downstream users being
restrained from using, copying and changing the software, one user is
restrained from making a change and then using a law to deny all those
freedoms to subsequent millions or billions of users. If that seems less
free or more oppressive to you, you're smoking crack, or you're the _one
user_, and you're pissed that you won't be allowed to use copyright law to
take away the freedoms of those millions or billions of users for your
personal financial gain.

I don't think such a law is necessary in a copyright free world however.


Alexander Terekhov

unread,
Dec 23, 2005, 1:53:47 PM12/23/05
to

Josh Dougherty wrote:
[...]

> He's not actually talking about a copyright free world here, despite saying
> "eliminating" at the end. The preceding discussion was entirely about a
> world with shorter copyrights: "RMS: ... For example, maybe some aspects of
> copyright for movies should last for longer ... Meanwhile for software, I
> suspect that a three year copyright would be enough...".

Yeah.

"if we had to wait three years in some cases for programs to
become free... well, that's no disaster. To be using three
years old software is not a disaster."

It IS a copyright free world in the RMS's village were using
less than three years old software is a felony.

Oh, BTW, it reminds me of...

http://www.libertarian.co.uk/lapubs/libhe/libhe023.pdf

<quote>

Tucker – amongst others – remarked upon something very
strange about intellectual property as the concept was oper-
ationalised: it tended to be of only a limited duration with
the legal protection of a copyright or patent being only for a
finite number of years. He argued that it would seem very
odd indeed if, by some legitimate means, one acquired title
to an item of mundane property only for the State, enforced
if necessary by its agencies, to decree that after an arbitrary
number of years anyone could come along and use it. If
property rights could be said to inhere at all to intellectual
property then, to be consistent with mundane property, they
ought to be of unlimited duration until title is voluntarily
relinquished in some manner, the new owner then gaining
enduring property rights identical to those of the former
owner.

In addition, Tucker noted that, whereas the thieves of mun-
dane property were considered criminals and often jailed,
the ‘thieves’ of intellectual property were only arraigned in
civil courts, often with much difficulty, and even if found
guilty only punished by fines.

Tucker suggested that this limited duration feature of intel-
lectual property, and the very different punishment meted
out to those who transgressed it, suggested that many of
those who publicly upheld the notion were, at least intui-
tively, in fact unsure as to its validity.

(To show that the debate over the legitimacy of intellectual
property was to be found even amongst the individualist an-
archists, a frequent contributor to Liberty, Victor Yarros,
having for various reasons decided that intellectual property
was a legitimate concept, then agreed with Tucker on this
^^^^^^^^^^^^^^^^^^^^^^
particular element of the issue and declared that such rights
as protected by patents and copyright should indeed be per-
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
manent. This, of course, meant that Yarros’s conclusions on
^^^^^^
the subject ended up as the exact inversion of Tucker’s. See
Brooks (1994: pp. 165-180) for more details.)

</quote>

;-)

[... distributing software in the GNU Republic and felony ...]

> I don't think such a law is necessary in a copyright free world however.

"RMS: ... the source code might not be available or they might
try to use contracts to restrict the users instead. So making
software free is not as simple as ending copyright on
software: it's amore complex situation than that. In fact, if
copyright were simply abolished from software then we would
no longer be able to use copyleft to protect the free status
of a program but meanwhile the software privateers could use
other methods--contracts or withhlding the source to make
software proprietary. So what would mean is, if we release a
free program some greedy bastard could make a modified
version and publish just the binaries and make people sign
non-disclosure agreements for them. We would no longer have
a way to stop them."

And what say you?

regards,
alexander.

CJohn Zammit

unread,
Dec 23, 2005, 3:39:23 PM12/23/05
to
"Josh Dougherty" <jdoc1...@comcast.net> wrote in message
news:t-2dnbXj35N...@comcast.com...
This is so hilarious! Must be the season to be jolly!
The spirits of the Sophists must be having a ball in their graves. Such
muddled reasoning makes them proud.


Josh Dougherty

unread,
Dec 23, 2005, 4:39:59 PM12/23/05
to
"Alexander Terekhov" <tere...@web.de> wrote in message
news:43AC47BB...@web.de...

>
> Josh Dougherty wrote:
> [...]
> > He's not actually talking about a copyright free world here, despite
saying
> > "eliminating" at the end. The preceding discussion was entirely about a
> > world with shorter copyrights: "RMS: ... For example, maybe some
aspects of
> > copyright for movies should last for longer ... Meanwhile for software,
I
> > suspect that a three year copyright would be enough...".
>
> Yeah.
>
> "if we had to wait three years in some cases for programs to
> become free... well, that's no disaster. To be using three
> years old software is not a disaster."
>
> It IS a copyright free world in the RMS's village were using
> less than three years old software is a felony.
>
> Oh, BTW, it reminds me of...
>
> http://www.libertarian.co.uk/lapubs/libhe/libhe023.pdf
>
> <quote>
>
> Tucker - amongst others - remarked upon something very

I'm not sure what the point of this quotation is. What is the relevance of
Yarros thinking, unlike Tucker, that such rights are legitimate and thereby
inverting Tucker's views? Who cares? Two guys disagreeing about the issue
doesn't seem very remarkable to me.

> [... distributing software in the GNU Republic and felony ...]
>
> > I don't think such a law is necessary in a copyright free world however.
>
> "RMS: ... the source code might not be available or they might
> try to use contracts to restrict the users instead. So making
> software free is not as simple as ending copyright on
> software: it's amore complex situation than that. In fact, if
> copyright were simply abolished from software then we would
> no longer be able to use copyleft to protect the free status
> of a program but meanwhile the software privateers could use
> other methods--contracts or withhlding the source to make
> software proprietary. So what would mean is, if we release a
> free program some greedy bastard could make a modified
> version and publish just the binaries and make people sign
> non-disclosure agreements for them. We would no longer have
> a way to stop them."
>
> And what say you?

I say what I said before.

First of all, I'm not some kind of Stallman disciple. In my whole life I've
only read a few of his articles and listened to a couple of his speeches
online. I didn't know who Eben Moglen was until you mentioned him a week
ago, though I think I had read something of his before without knowing who
he was or remembering. If my views are somehow different than Stallman's or
Moglen's, I don't care. I'd happily disagree, or I'd consider their views
and change my mind if I agree with their argument, but I'm not here to
defend any particular proposal of theirs. I'm also not a software expert.
I'm a musician, and if any particular area of IP has informed my views, it's
in the world of music, not software.

That said, I tend to disagree with RMS' proposal as I currently understand
it, though again, I have not read an entire argument for it. I, first of
all, don't necessarily think it's a huge problem to have some proprietary
software exist, or to not have every bit of software be free software.
Without copyright law, this would only take place through trade secrets, and
I don't really mind people keeping secrets. I think most software in such a
world would be free software, but there might be some proprietary in cases
where trade secrets were maintained. This doesn't seem like a very big deal
to me, or that it would be anything but a marginal phenomenon.

If this is at all a problem, I don't think you need his law. Just eliminate
state protection of trade secrets, which should be eliminated alongside
copyright law anyway. Then all you have is an individual trying to keep a
secret, and if it leaks it leaks. That doesn't seem like a big problem to
me, even if some people manage to succeed in keeping secrets. It may not be
morally correct, as Stallman argues, but I don't think law needs to enforce
every aspect of morality.

It seems to me that most such problems could be addressed by dropping laws
that uphold proprietary software, not adding laws to enforce free software.
For instance, if non-disclosure agreements or contracts were a problem, then
Stallman might say we should make a law suppressing non-disclosure
agreements and contracts. Before bothering with something like that, I'd
say why not just say the state will not enforce any such agreements with
software, just as it would not enforce any contract where someone signed
themselves into slavery? Problem solved. In the end though, Stallman's
proposal is still less oppressive than current copyright law, for the
reasons I outlined, even though it would not be my proposal.


Josh Dougherty

unread,
Dec 23, 2005, 4:41:16 PM12/23/05
to
"CJohn Zammit" <cjohnz@==NOSpam==cogeco.ca> wrote in message
news:YfZqf.11486$ph....@read2.cgocable.net...

Brilliant argument CJohn.


Bruce Hayden

unread,
Dec 23, 2005, 11:58:44 PM12/23/05
to
Alexander Terekhov wrote:
> A permit, granted by an appropriate governmental
> body, generally for a consideration, to a person, firm,
> or corporation ... to carry on some business subject to
> regulation under the police power. A license is not a
> contract between the state and the licensee, but is a
> mere personal permit. Neither is it property or a
> property right.

Well, that is one type of license. But that is not what we
are talking about with GNU, etc. That is not a license from
the state to someone else, but is rather a license from someone
like the Free Software Foundation to some other party.

> I suppose.
>
> And in the GNU Republic... distributing software is permitted
> under the GPL and only the GPL. Of course it is neither a
> property nor a property right. It's quite simple, really. The
> GPL is not a contract, indeed. In the GNU Republic, that is.

I agree with GNU. The GPL is a contract.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden www.softpats.com
Dillon, Colorado bha...@ieee.org
Phoenix, Arizona bha...@highdown.com

Bruce Hayden

unread,
Dec 24, 2005, 12:27:07 AM12/24/05
to
Isaac wrote:
> On Wed, 21 Dec 2005 14:15:34 -0700 (MST), Lee Hollaar
> <hol...@antitrust.cs.utah.edu> wrote:
>
>>One has to ask oneself whether it makes any difference if the GPL
>>is a "contract" or not, keeping in mind that there hasn't been any
>>case where the FSF has sued anybody over the GPL. I suspect that
>>if they did sue somebody, they would throw in a breach of contract
>>claim just in case.
>
> I think one possible impact is that if the GPL is not a contract, it
> probably could not be enforced in state court, and it might be
> impossible to enforce the license against state government infringers.

But it is a contract. It just is a somewhat ambiguous contract.
If it is not a contract, then it is not a license, and if it
is not a license, then using the software protected by it would
be infringement. The only reason that you aren't infringing
by using GPL protected software is that the GPL grants you
the right to use the software under specific circumstances.

Bruce Hayden

unread,
Dec 24, 2005, 12:28:58 AM12/24/05
to
Arnoud Galactus Engelfriet wrote:
> In article <docius$hdp$1...@blue.rahul.net>,
> Rahul Dhesi <c.c....@XReXXIntel.usenet.us.com> wrote:
>
>>Only those people who wish to take
>>advantage of GPL-licensed software while doing their best to avoid
>>actually conforming to the GPL actually care where the exact boundary
>>is.
> That's an unfair characterization. There are many perfectly good
> reasons to want to know exactly how far your obligations go.

Which is why there are attorneys.

> For example, if our engineers consider using a piece of GPL software
> in a product that uses third-party software as well, I need to know
> our obligations. Do we need to acquire rights to release that
> third-party software under GPL as well? Or should we go look for an
> alternative to the GPL software?

You need to have your attorney determine at least the legal
side of this.

> This has nothing to do with "wanting to avoid the GPL".
>
> Of course, you could say "just make your whole product GPL".
> That nicely avoids the question, and probably would make RMS
> very happy. But it's not practical.

I have given precisely this legal advise.

>>I think
>>courts are quite capable of taking something written in English and
>>mapping it to L-English, based on what the writer's obvious intent must
>>have been.

> True, _if_ the writer's intent is obvious. This is not true for
> the GPL. The text contradicts itself in several places, which
> makes it very difficult to determine what RMS meant when he
> wrote it. And that in my opinion is more of a reason why people
> argue over what it is supposed to mean.

Yes, there are inconsistencies. But overall, it is fairly
straight forward. Yes, it would have been better if it had
been written by an attorney. But we deal with this sort
of ambiguity all the time. There are innumerable implied and
semi-implied copyright, etc. contracts/licenses out there
that are more ambiguous than that, and we do just fine,
most of the time.

Bruce Hayden

unread,
Dec 24, 2005, 12:56:23 AM12/24/05
to
Bruce Hayden wrote:
>> And in the GNU Republic... distributing software is permitted under
>> the GPL and only the GPL. Of course it is neither a property nor a
>> property right. It's quite simple, really. The GPL is not a contract,
>> indeed. In the GNU Republic, that is.
>
> I agree with GNU. The GPL is a contract.

Let's start with the basics. 17 USC 106 lays out the
exclusive rights of a copyright holder. They include the
right to make copies and to authorize others to do so.
If the copyright owner doesn't grant you the right to make
copies, and you make them, then you are infringing unless
your use falls under an exception, such as Fair Use (17 USC 107).
Most of the copying, distribution, etc. of GPL protected
software would not be allowed as Fair Use, and, in particular,
if done by companies, such as IBM, trying to make a profit
off of it.

So, absent authorization, most copying, distribution, etc.
of GPL protected software would be infringing. Since those
interested in copying, etc., are not the copyright owner,
how do they get authorization? Via the GPL. But it states
fairly explicitly, if you do this, you are authorized to
copy, etc., the software. If you do that, you aren't.

That is a contract. The owner of the software is making an
offer. If you want his authorization to copy, distribute,
etc., then you have to agree to his terms. This is called
a unilateral contract. And the GPL states that by copying,
etc., you agree to the terms, and that if you don't agree
to the terms, you cannot copy, etc. the software.

Beating a dead horse, but let's call the party owning the
copyright to the software A, and the party wanting to use
the software B. B's consideration is the authorization to
copy, distribute, etc. the software. A's consideration for
allowing this is B's agreement to conform to the the
requirements of the GPL. Hence, mutual consideration.
A makes a unilateral offer, and B accepts through his
action of copying, etc. the software. We have offer and
acceptance, and mutual consideration.

Bruce Hayden

unread,
Dec 24, 2005, 12:58:44 AM12/24/05
to
Lee Hollaar wrote:
> One has to ask oneself whether it makes any difference if the GPL
> is a "contract" or not, keeping in mind that there hasn't been any
> case where the FSF has sued anybody over the GPL. I suspect that
> if they did sue somebody, they would throw in a breach of contract
> claim just in case.

If it is not a contract, then those copying, distributing, etc.
the GPL protected software would be infringing the copyright
to the software. No one wants that.

> It will be interesting to see what the upcoming third version of
> the GPL will be like, considering that it is being written by somebody
> with legal knowledge, and not just RMS.

Hopefully, more legal, less RMS.

Alexander Terekhov

unread,
Dec 24, 2005, 7:04:27 AM12/24/05
to

Bruce Hayden wrote:
>
> Bruce Hayden wrote:
> >> And in the GNU Republic... distributing software is permitted under
> >> the GPL and only the GPL. Of course it is neither a property nor a
> >> property right. It's quite simple, really. The GPL is not a contract,
> >> indeed. In the GNU Republic, that is.
> >
> > I agree with GNU. The GPL is a contract.

Then you disagree with GNU.

>
> Let's start with the basics. 17 USC 106 lays out the
> exclusive rights of a copyright holder. They include the
> right to make copies and to authorize others to do so.
> If the copyright owner doesn't grant you the right to make
> copies, and you make them, then you are infringing unless
> your use falls under an exception, such as Fair Use (17 USC 107).
> Most of the copying, distribution, etc. of GPL protected
> software would not be allowed as Fair Use, and, in particular,
> if done by companies, such as IBM, trying to make a profit
> off of it.

IBM contributes to some GPLed projects, but it's no secret that
IBM's policy is to not distribute any GPL/LGPL code that IBM
doesn't hold copyrght to.

>
> So, absent authorization, most copying, distribution, etc.
> of GPL protected software would be infringing.

One can download GPLed object code without "I agree" and resell
those copies under any terms. First sale.

regards,
alexander.

Alexander Terekhov

unread,
Dec 24, 2005, 7:27:30 AM12/24/05
to

Bruce Hayden wrote:
[...]

> Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
> My work may be copied in whole or part, with proper attribution,
> as long as the copying is not for commercial gain.

Wanna see a CD with collection of your postings under this license on
ebay? I can arrange it. I gather that you don't seem to grok first
sale just like GNUtians.

regards,
alexander.

Alexander Terekhov

unread,
Dec 24, 2005, 7:45:33 AM12/24/05
to

Bruce Hayden wrote:
[...]

> The only reason that you aren't infringing
> by using GPL protected software is that the GPL grants you
> the right to use the software under specific circumstances.

Or perhaps because the GPL is invalid on the grounds of copyright
misuse.

regards,
alexander.

Alexander Terekhov

unread,
Dec 24, 2005, 7:56:46 AM12/24/05
to

Just to clarify, I meant impunity to infringe.

regards,
alexander.

Bruce E. Hayden

unread,
Dec 24, 2005, 7:20:59 PM12/24/05
to
Alexander Terekhov wrote:
>
>>So, absent authorization, most copying, distribution, etc.
>>of GPL protected software would be infringing.
>
> One can download GPLed object code without "I agree" and resell
> those copies under any terms. First sale.

Nope. First Sale applies to specific copies.
You can't install software on a computer without
making additional copies, and you can't run it
without making more copies. None of those copies
would be covered by First Sale.

Each time you write a copy of software to disk,
whether to install it, to cache, it, etc., it
constitutes making a copy. Every time you load
software into memory, you are making additional
copies. And, no, I am not making this up.

There is a limited provision under 17 USC 117
for some limited copying in order to run a copy
of a program - if you have a legal copy in
the first place. But you can't keep one copy
and sell or transfer others.

In any case, why do you think that it is legal
to download GPL software without agreeing to
the GPL in the first place?

Bruce E. Hayden

unread,
Dec 24, 2005, 7:47:50 PM12/24/05
to
Alexander Terekhov wrote:
>>Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
>>My work may be copied in whole or part, with proper attribution,
>>as long as the copying is not for commercial gain.
>
> Wanna see a CD with collection of your postings under this license on
> ebay? I can arrange it. I gather that you don't seem to grok first
> sale just like GNUtians.

I grok First Sale just fine. You don't, esp. in view of the
case law applying copyright law to computers. In particular,
you seem to be missing the fact that every time you make a
copy of a work, you are, well, making a "copy", which is
"reproduction" under 17 USC 106.

Let's do this slowly, since you seem to misunderstand copyright law
as it is defined in the United States (and thus, applies to ebay).

The exclusive rights of a copyright holder are defined in 17 USC 106:
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.

A "copy" is defined in 17 USC 101 as:
“Copies” are material objects, other than phonorecords, in which a work
is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term “copies”
includes the material object, other than a phonorecord, in which the
work is first fixed.

Courts have defined copying to include every time that a
work is written to disk, CD, etc., as well as every time
software (or other works) is loaded in memory. Each time
you write a work to disk, CD, etc., you create another
"copy" or "phonorecord".

Combining all this, every time you make a "copy" or a
"phonorecord", you are engaging in "reproduction".
And, for it to be non-infringing, you either need to
be the copyright owner, or be authorized by him to make
the copy or phonorecord.

There are a couple of exceptions to this, notably Fair
Use under 17 USC 107 and running computer programs that
you own under 17 USC 117, neither of which is applicable
here.

Which brings us to First Sale, defined under 17 USC 109:
(a) Notwithstanding the provisions of section 106 (3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord...

Nowhere in that statute is there any right granted to make
additional "copies" or "phonrecords". None. Zip. Zero. Nada.

Also note that the statute further provides:
(d) The privileges prescribed by subsections (a) and (c) do not, unless
authorized by the copyright owner, extend to any person who has acquired
possession of the copy or phonorecord from the copyright owner, by
rental, lease, loan, or otherwise, without acquiring ownership of it.


--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.

Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.

Bruce E. Hayden

unread,
Dec 24, 2005, 7:50:35 PM12/24/05
to
Alexander Terekhov wrote:

And what is the legal basis for this statement?

Besides, if the GPL is invalid, then by necessity,
all copies you make of the software are infringing
because they aren't authorized. It is the GPL that
"authorizes" your making of copies (see 17 USC 106).

Isaac

unread,
Dec 24, 2005, 7:52:03 PM12/24/05
to
On Sat, 24 Dec 2005 17:20:59 -0700, Bruce E. Hayden <bha...@ieee.org> wrote:
> Alexander Terekhov wrote:
>>
>>>So, absent authorization, most copying, distribution, etc.
>>>of GPL protected software would be infringing.
>>
>> One can download GPLed object code without "I agree" and resell
>> those copies under any terms. First sale.
>
> Nope. First Sale applies to specific copies.
> You can't install software on a computer without
> making additional copies, and you can't run it
> without making more copies. None of those copies
> would be covered by First Sale.

Title 17 says that First Sale applies to lawfully made copies, and that
owners of copies can do the copying and adapting necessary to run their
software without any further authorization from the copyright holder.

> In any case, why do you think that it is legal
> to download GPL software without agreeing to
> the GPL in the first place?

I think this is the real obstacle to carrying on as Mr. Terekhov's describes.

I also think that the question of whether a copy is lawfully made does not
end with looking at the circumstances only of the initial making of the copy.
For example a copy made under circumstances that constitute fair use might
not continue to be fair if months later the decision is made to sell the
copy at a flea market or to display the copy publicly.

Isaac

Bruce E. Hayden

unread,
Dec 24, 2005, 7:57:02 PM12/24/05
to
Alexander Terekhov wrote:
>>>The only reason that you aren't infringing
>>>by using GPL protected software is that the GPL grants you
>>>the right to use the software under specific circumstances.
>>
>>Or perhaps because the GPL is invalid on the grounds of copyright
>>misuse.
> Just to clarify, I meant impunity to infringe.

Ok, do you have any case law to back this up?
Where the GPL was determined to be copyright misuse,
and thus, anyone who wanted to could infringe their
copyrights at will? I would be very interested in it.

Otherwise, I am left with the impression that you
think that because you don't like the GPL, you can
rip off software protected by it at will.

Isaac

unread,
Dec 24, 2005, 7:54:27 PM12/24/05