Re:

["Michael K. Edwards" <m.k.edwards@gmail.com>]

On 5/19/05, Thomas Bushnell BSG <tb@becket.net> wrote:
> "Michael K. Edwards" <m.k.edwards@gmail.com> writes:
> 
> > At this point, there seem to be quite a
> > few people who agree that the FSF's stance ("copyright-based license")
> > and the far-from-novel one that you advance ("unilateral license /
> > donee beneficiaries") are untenable in the jurisdictions with whose
> > law they are to some degree familiar.
> 
> You are choosing to post on three different forums.  Having made that
> choice, it is your obligation to make your comments relevant to them
> all; you cannot post on debian-devel, and then insist that your
> interlocutors there read a different list.

Oh, nuts.  I didn't realize this thread was still copied to hell and
gone.  I'll try to summarize briefly, and would the next person please
cut d-d and waste-public off if appropriate?

> Please don't put words into my mouth.  The quotes you give are not my
> words; I have not spoken of a "unilateral license / donee
> beneficiaries", though you words suggest I have.

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.  In common law
systems, the mechanism that does exist is called a "contract".  :-) 
This horse has been beaten to a pulp on debian-legal, and I think even
my esteemed fencing parter Raul is approaching convinced; if you want
one case law citation on the topic, try Effects Associates v. Cohen
from the Ninth Circuit.  Apparently quite firmly established in
various civil law systems as well.  (IANALIAJ.)

There is such a thing as a unilateral contract, also sometimes called
a "defective contract", which can't be held to its full ostensible
extent against the drafter by "donee beneficiaries" for lack of
evidence of acceptance and/or return consideration.  That doesn't
apply in the case of the GPL; acceptance through conduct is quite
sufficient, and the various obligations accepted by the licensee
(especially the offer of source code) are in fact return
consideration, not a limitation on the scope of license.

Specht v. Netscape is sometimes cited as an obstacle to finding
acceptance of a "browse-wrap" license.  But it doesn't even contain
the word "copyright", and boils down to this analogy (quoted from the
opinion):  "From the user's vantage point, SmartDownload could be
analogized to a free neighborhood newspaper, readily obtained from a
sidewalk box or supermarket counter without any exchange with a seller
or vender."  As I wrote in the thread I cited, "picking up a free
newspaper doesn't grant you copyright license on its contents."

A better parallel may be found in Jacob Maxwell v. Veeck, in which the
court used evidence of an oral exclusive license agreement to construe
a non-exclusive copyright license and then applied contract law to
establish whether and when it was terminated.  Oral evidence of intent
to offer an exclusive license -- something that by law must be in
writing -- is hardly less valid an offer of contract than a document
whose drafter professes to believe ought to be interpreted under some
other legal theory.  As for consideration, see Fosson v. Palace
Waterland and the cases involving the GPL itself that have been
discussed ad nauseam on d-l.

These and other equines are nearing a blenderized condition on d-l,
whether or not a consensus comes out of it.  I am omitting the rest of
the mountain of case law that has been cited there; persons who wish
pointers to specific topics within that discussion are welcome to ask
there, but let's spare d-d.

> You have not explained here (on debian-devel, that is) at all why we
> should disgregard the actual success of the license in convincing
> reluctant people to comply with its provisions.  Indeed, to date there
> is nobody who is willing to risk a lawsuit due to noncompliance with
> the GPL when the FSF's compliance folks have come after them.  This in
> itself suggests very strongly that those who have money to lose on the
> question think the GPL is binding
> 
> And you haven't answered my question.  Please explain how the
> difference in legal theory here affects the bindingness of the GPL on
> those who choose to distribute GPLd software.

There's no question in my mind that the GPL is "binding", i. e., a
valid offer of contract that licenses various rights to a given work. 
There are some grounds to worry that Section 6 is hard to implement in
at least some jurisdictions, for reasons having to do with the
doctrine of agency and how strong a form of agreement is needed in
order to construe agency to sub-license; but that's unlikely ever to
be litigated, and if it is we can hope that an appeals court can find
a way around it.

There's also no question that the GPL is enforceable (and has been
successfully enforced by Harald Welte in Deutschland) using a "breach
of contract" theory against people who don't release source code to
GPL works when they modify and distribute them.  But applying contract
law standards of construction against the offeror, notice and cure of
breach, grounds for preliminary injunction, and all that -- together
with a correct reading of phrases like "derivative work under
copyright law" and "mere aggregation" -- results in a GPL whose
utility as a club against the Wicked Linker is greatly weakened and
possibly (IANALIAJ) zero.  Which is, in my personal view, as it should
be.

> >> And finally, for Debian's purposes, it's even more irrelevant.  Our
> >> standing policy is that if there is doubt about the force or intention
> >> of a license, we err on the side of simply doing what the licensor
> >> demands.
> >
> > Which is great, until you find yourself estopped from arguing
> > otherwise in a courtroom.  It matters both what you do and why you say
> > you do it.
> 
> Please be specific.  Where are we hurting ourselves?  (Or, if we are
> not, then why is this relevant?)

There's a world of difference between "we can't link Quagga against an
OpenSSL-enabled NetSNMP because it's illegal; whoops, we already did
so (and a thousand similar things), which means we have to beg the FSF
to un-automatically-terminate all of our GPL rights" and "as a matter
of courtesy to the FSF, we usually make a reasonable effort to obtain
OpenSSL 'exemption riders' where their FAQ recommends them,
irrespective of whether the assertions in their FAQ and related
statements are legally valid".

Cheers,
- Michael

P. S.  The legal status of WASTE looks pretty sketchy to me, given the
circumstances of its "publication"; but IANAL, IANADD, and it's not my
problem.  :-)