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On 5/20/05, Thomas Bushnell BSG <tb@becket.net> wrote:
> "Michael K. Edwards" <m.k.edwards@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.

> > 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.
> I see, so this is what you're claiming.  Since the proponents of the
> unilateral-grant-of-permission theory completely agree that contract
> law is the normal rule for the interpretation of such documents, there
> isn't any debate there.  If you only reason for invoking contract law
> is to say "the license must be interpreted in accord with the
> standards of contract construction", there is already broad agreement
> about that point.

Not from the "copyright-based license" crowd, who would have you
believe that contract law standards don't apply and the GPL has a fast
path to preliminary injunction under copyright infringement standards.
 It is, however, a blenderized equine on d-l, so there's no particular
need to continue it here.

> > 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".
> Yes, and we can simply make neither statement, but ask for the rider,
> make no statements to the FSF about whether our past actions were
> right or wrong, and if the rider is not granted, stop distributing
> (which we would do anyway).
> So this is a tempest in a silly teapot.  I'm happy to leave the thread
> here, since the upshot is a no-relevance-to-important-issues.

Fair enough; although you may find that not everyone agrees that "stop
distributing" is the right answer when we are talking dynamic linking
across one or more package boundaries.  Especially when the FSF is not
the sole copyright holder on the GPL'ed upstream, as in the case of
Quagga (now under discussion on d-l).

- Michael

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