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Re: Contracts and licenses

"Lex Spoon" <lex@cc.gatech.edu> writes:

> Brian Thomas Sniffen <bts@alum.mit.edu> wrote:
>> > Yes, but that is a nitpick IMHO.  What good is an offer that you never
>> > plan to use?  If you prefer, call the relevent clause of GPL to be an
>> > offer of a contract, instead of being a contract itself.  It doesn't
>> > seem to change the essence of the debate.
>> A whole bunch of your argument was balanced on the claim that one had
>> to accept the GPL in order to receive the licenses it offers, because
>> it's a contract, and that it had to be a contract, because one had to
>> accept it to receive certain benefits.
>> I don't think either of those is true, and this is a good example of
>> why I think that.  Calling it a nitpick doesn't make it less of a
>> counterexample to your claims.
> That is not exactly my argument:  I think you have to agree to a license
> agreement before you gain the included license, and I also think a
> license agreement can perfectly well make requirements on both parties
> while still being a license agreement.  A license agreement thus has the
> same properties as a contract in general.

You're imagining some class of document or deed called "license
agreement" into existence.  I grant that this is not a wholly original
imagination, but it is fantasy nonetheless.

Is the MIT/X11 license grant one of these license agreements, or
something else?

> The nitpick is on whether the obligations of GPL kick in immediately
> upon accepting it or only after accepting it and further deciding to
> actually use one of the granted licenses.  Nitpick aside, the point is
> that there is not a pure grant here and further the grantee has some
> obligations.

There is a pure grant of some conditional licenses.  These are
continuations which happen to, when evaluated, apply some conditionals.

>> > This is uncalled for.  You know that I am talking about Clause 3b
>> > because you referred to it above.
>> But you're not talking about anything like 3b.  I've written code and
>> licensed it under the GPL.  It incorporated other GPL'd works.  I
>> distributed it under 3b.  I do not expect to ever give the source to
>> anyone.  It would violate the contract under which I wrote and
>> licensed that code for me to post the source anywhere.
> Thus, you have disagreed with 3b of GPL, correct?  3b clearly says you
> must make the source available  I don't see how what you have done is
> legal, unless you have some other license agreement *other than* GPL.

I don't think you've read the GPL very recently.  Here, I'll excerpt
that part for you:

    b) Accompany it with a written offer, valid for at least three
    years, to give any third party, for a charge no more than your
    cost of physically performing source distribution, a complete
    machine-readable copy of the corresponding source code, to be
    distributed under the terms of Sections 1 and 2 above on a medium
    customarily used for software interchange; or,

Please show me the parts where 3b clearly says I must make the source
available to you.  A written offer, as described here, has been given
to the company which received the code.

> Interpreting GPL as a full, unfettered grant seems to me, at the very
> least, a questionable interpretation that is not widely shared.  Most
> people seem to think that you do, in fact, have to redistribute source
> code when you redistribute a GPL'ed work.

I do not believe that most people think that.  In truth, most people
do not know what the GPL is.  Most people educated on the subject are
somewhere else doing something more important than arguing with either
of us.

>> The one and only party to whom the binaries have been distributed has
>> that offer, and will likely never exercise it.  So I certainly haven't
>> agreed to post the source code somewhere or anywhere.
> Apparently you have not, but failing such agreement, I don't see how you
> gain the right to redisribute binaries or code or to even *use* the code
> in question.

I have the first rights from the licenses granted me in the GPL, and
the last from US copyright law.

>> > Right, but I was just objecting to saying that a license agreement is
>> > different from a contract.  I agree that a license is different from a
>> > license agreement, but what we are usually talking about on debian-legal
>> > are the agreements, not the licenses granted in those agreements.
>> No, actually, I'm usually talking about the licenses.
> That is unusual.  Right now, for example, I see a thread stating "MPL is
> non-free".  It does not state "the license granted by MPL is non-free". 
> Moreover, I hardly ever see anyone talking like that.
> (And I don't think they should!)

Indeed, we're talking about the license granted by that document over
there.  The license is called the MPL.  The document is a deed, a
grant of license.

>> > In general, license agreements are really the same thing as contracts,
>> > even though in practice there is a big issue in determining whether both
>> > parties have really agreed.  GPL not only flat out states that you must
>> > agree to it before you can use it, but it includes paths that incur
>> > obligations on the receiver (posting source) even after they have
>> > stopped using the granted right (distributing binaries).
>> I don't think anything before the word "but" is true.
> You even disagree about GPL saying you have to accept it?  Here is
> clause 5:
>   5. You are not required to accept this License, since you have not
> signed it.  However, nothing else grants you permission to modify or
> distribute the Program or its derivative works.  These actions are
> prohibited by law if you do not accept this License.  [...]
> RMS and his lawyers seem to really think you have to agree to GPL.

No, they do not.  I have received the GPL -- many copies, many times,
with application to many works.  I take advantage of the licenses it
grants.  But I have no more agreed to it than I have to obey a sign
which reads, "No trespassing.  Visitors welcome if they don't bring
dogs!" by walking onto the property.  If I do so carrying a dog, the
owner sues me for trespass.  If I do so otherwise, I'm operating
within the bounds of the license he granted me.  It's between me and
God whether I agree with that license: the courts don't care.

>> And I'll continue to argue that a license granted only by contract is
>> non-free.  To the extent that applies to the MPL, it's certainly
>> relevant.
> This is getting towards the really important matter, but because of the
> way you describe it I am not sure what you are getting at.  What do you
> mean by "only by contract"?  Suppose I do have a written agreement with
> the author that I may use and redistribute a work in any way whatsoever
> and that anyone I distribute it to gains those rights as well; does that
> make the software non-free?  I think not.

That's not a contract in the US.  You haven't given him anything.

> Besides being an odd place to draw the line, there are other problems
> with this contract vs. non-contract discussion:
> 	1. There aren't so many real lawyers, if any, on debian-legal.  We are
> the last people that should be standing on very fine shades of legal
> terms.
> 	2. Not everyone on the list is under US jurisdiction, and thus the
> meanings of the terms will shift somewhat in other countries.
> I am sure people are getting at an important matter, and so I would like
> if people can find a way to state it clearly.  I am not certain I agree
> with the proposal, but before I can properly debate it I have to know
> what people are in fact talking about. 

I'll look for a way to describe this more clearly.  I think it's
self-evidently true when expressed properly, which I'm apparently not

If everyone receiving a license has to pay for it, it isn't free.
Payment takes many forms.  The GPL, MIT/X11, and other free licenses
require no payment at all.

Brian Sniffen                                       bts@alum.mit.edu

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