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Re: [WASTE-dev-public] Do not package WASTE! UNAUTHORIZED SOFTWARE [Was: Re: Questions about waste licence and code.]

On 5/18/05, Roberto C. Sanchez <roberto@familiasanchez.net> wrote:
> Point taken.  However, the GPL clearly states the conditions in
> section 6:
>   6. Each time you redistribute the Program (or any work based on the
> Program), the recipient automatically receives a license from the
> original licensor to copy, distribute or modify the Program subject to
> these terms and conditions.  You may not impose any further
> restrictions on the recipients' exercise of the rights granted herein.
> You are not responsible for enforcing compliance by third parties to
> this License.
> To me, that says "Once the cat is out, it's out for good."  So,
> if you as the author of GPL software, try to restrict someone that
> has already received your software under the terms of the GPL, then
> you violate the license.  Since you are the author, it doesn't
> affect you so much, since you are also the copyright holder.

And what, exactly, is the licensee's recourse if the licensor
"violates the license" in this way?  Are you mistaking the GPL for a

The law about whether a license without an explicit term can be
revoked at will varies from one contract law jurisdiction to another. 
See Walthal v. Corey Rusk at
http://caselaw.lp.findlaw.com/data2/circs/7th/981659.html -- and
observe that appeals courts sometimes screw up too (note the scathing
commentary regarding the Ninth Circuit's opinion in Rano v. Sipa
Press).  Even in the Ninth, you probably wouldn't want to be using
Rano as a central part of the argument in a case today.

> The only other alternative is that the GPL is not enforceable.
> That would probably call into question the validity of all software
> licenses.  However, I am not lawyer (I'm sure you guessed that by
> now), so I will refrain from speaking further on this subject.

IANAL either, but this sweeping statement is obviously nonsense.  The
typical EULA is a dog's breakfast of enforceable and unenforceable
constraints, but there's getting to be quite a bit of statute and case
law about how to construe a EULA under any given jurisdiction's
contract law.  A court of fact's analysis of the GPL terms would in
any case have no value as precedent in a later court of fact where
some EULA (or for that matter the GPL) is under discussion.

The GPL is anomalous in that the drafter has published a widely
believed, but patently false, set of claims about its legal basis in
the "FSF FAQ".  Yet in many ways the actual GPL text, properly
construed, is sounder than the typical EULA.  I don't believe that it
bans all of the things that the FSF says it does (notably dynamic
linking GPL and non-GPL code).  But the only thing I can see that
might jeopardize its validity with respect to real derivative works is
the difficulty of construing a legitimate implementation of that
"automatically receives" language in Section 6, which a court would
have to construe in terms of conventional rules of agency to

> Incidentally, if there was so much controversy about this and the
> origins and rights to the code have been in question, why has
> SourceForge let the project continue for 2 years?  I imagine that
> it is not their responsibility that to comb through every piece
> of code housed on their servers.  However, I would imagine that
> it would be part of their due diligence to verify whether a project
> like this can even exist on their servers in the first place.

SourceForge is not the tightest run ship on the planet.  They are
probably not protected by any kind of "common carrier" exemption, but
they also probably figure they can wait until they get a "cease and
desist" letter.  In the real world, most violations of the law go
unpunished unless they involve major bodily harm, justify a claim for
large monetary damages, run afoul of the ascendant political agenda,
or really piss someone off.

- Michael

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