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Re: Questions about legal theory behind (L)GPL

Raul Miller wrote:
> Are you saying that copyright law is always equivalent to a bilateral
> contract?

Far from it.  I am saying that:
    the legally recognized mechanism for granting a copyright license,
in any jurisdiction I have heard named, is a contract;
    there is ample precedent, at least under US law, for finding such
a contract in the terms of the GPL;
    in the presence of such a contract, the contract terms must be
demonstrably breached before recourse to copyright law is available;
    the only form of binding unilateral copyright license for which I
have been able to find the weakest of precedents doesn't fit the GPL,
so either it's a valid bilateral contract (subject to standards of
acceptance and consideration) or it has no legal force at all.

I've cited cases about implied licenses under both the 1909 and 1976
Copyright Acts (in the US).  As far as I can tell, the only mechanism
for conveying such an implied license is an implied contract, and when
there is a written agreement involved, a court will only find an
implied license as an implied provision in that agreement.  As I wrote
before, if anyone can cite legal precedent to the contrary (I don't
claim to have made more than the most cursory search of law outside
the US, and IANAL in any jurisdiction), now would be a good time to
mention it.

> Are you saying that there are no precedents in copyright law for
> conditions being imposed on secondary publishers?

Secondary publication, as I understand it, refers to a separate
non-exclusive license granted by an author to a second publisher after
initial publication, usually in a journal or other periodical. 
Academic journals often require that secondary publication be free of
charge, and periodicals of all kinds frequently require a minimum
waiting period between initial and secondary publication, as well as
an explicit mention in the secondary publication of the periodical in
which it was first published.  Other business arrangements are common
in other publication channels.

None of these conditions exist in copyright law; they are common
provisions in contracts in which a non-exclusive copyright license is
part of the value exchanged, and may be interpreted in a court of fact
as conditions of license or as separate covenants in the agreement. 
In channels where agreements have traditionally been oral (such as
freelance writing for magazines in the US and Canada), there are
ongoing, acrid legal disputes -- about what terms regarding secondary
publication should be read into those oral agreements.  None of this
seems relevant to the GPL.

> I claimed that the person holding copyright is not bound by the GPL.
> You're counter-claiming that the licensee, as a non-copyright holder
> is bound.  I don't see the contradiction.

No.  I'm claiming that both licensor and licensee are bound by the
terms of the contract once it is accepted.  I cited the obligations to
distribute source code to recipients of binaries and to offer
copyright license in derivative works if they are distributed as
examples of conditional promises made by the licensee, amply
sufficient to form consideration in that direction according to the
cases I have cited.  The offer of license is, prima facie, adequate
consideration from licensor to licensee.

> Now, it is true that in a collaborative project, where there are multiple
> copyright holders, and the copyright holder accepts contributions without
> having them signed over to the copyright holder, that a condition of
> contract exists in the context of that software.
> However, that's not the only way the GPL is used.  For example, last time
> I checked, the FSF requires that people contributing software to one of
> their projects provides paperwork signing rights to those contributions
> over to the FSF (and they also require proof that you're legally allowed
> to do so).

If the GPL purported only to grant a non-exclusive license to a sole
author's copyright material, without return obligations, and didn't
attempt to reach the licensee's copyright in derivative works, then a
court might rule that it's an illusory contract and the sole author
can't be held to the offer it contains.  (I don't even think that's
likely in the absence of a different valid contract between the
parties, given a competent lawyer in a US jurisdiction -- the
Planetary Motion case found GPL distribution to be of enough value to
the author to constitute "use in commerce" without discussing any
constraint placed on recipients, albeit in a trademark context.)

But, given the return obligations placed on licensees, the GPL appears
to me to be clearly binding on both parties if acceptance can be
established (unlikely for end users who never exercise any right to
redistribute, given Specht v. Netscape, but very likely in the context
of commercial modification and redistribution).  This holds true
irrespective of whether one copyright holder or several are involved
on the licensor end.

- Michael

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