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Re: Questions about legal theory behind (L)GPL

Sorry this is so long and meandering...

I wrote:
> There's a reason I used the analogy of "You may walk on my property,
> provided you walk barefoot".  It's different from "You may walk on my
> property, provided you give me five dollars".  Despite the formulation,
> it actually amounts to "You may walk barefoot on my property."

Michael Edwards wrote:
>That's a poor analogy.  It's more like "drink all the water you can
>hold, wash your face, cool your feet; but leave a bottleful for
>others, thank you kindly, Desert Pete"
Well, I don't quite understand the details of your analogy (dangers of using 
song lyrics), but it appears flawed.  It looks like you would have to get a 
bottle, fill it, and leave it, in order to satisfy the license.  If it 
doesn't mean that :-), and instead means "you may take water, any amount such 
that there is less than 1 liter left", then it is the same as my analogy.  
(Well, for purposes of analysis.)

There's absolutely nothing wrong with my analogy.  :-)  Please look at the 
GPL's restrictions carefully; essentially every one is a restriction on 
something which you are simply not permitted to do without the GPL's license 
grant.  (For purposes of argument, ignore 3b and 3c, which are clearly 
contract-forming; 3a is considered to be the DFSG-free option.)

My analogy is perfectly correct.  However, I really don't know whether "You 
may walk barefoot on my property" forms a contract.  It might, under certain 

>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.
This is interesting.  However, the cases you have cited do not appear to 
address situations like the GPL directly.
(1) How does this analysis apply to people who do *not* distribute?  They have 
few to no conditions on their behavior.
(2) People are only granted permission to distribute source code by the 
license.  Given that, how do restrictions on the nature of the distribution 
allowed (source code or binary + source only; legal notices included; copy of 
GPL included; etc.) constitute consideration?
(3) People are only granted permission to create derivative works by the 
license.  Given that, how do restrictions on the nature of those derivative 
works constitute consideration?
(4) People are only granted permission to distribute derivative works by the 
license.  Given that, how do restrictions on the nature of the distribution 
allowed constitute consideration?

(Perhaps the consideration is the agreement on the part of the licensee not to 
break the law?  Can that really constitute consideration?)

>I have cited cases elsewhere which
>demonstrate, at least to my satisfaction with regard to US precedent,
>that the GPL is an ordinary bilateral contract, not some sort of
>unilateral gift of gerrymandered copyright territory.
Unfortunately, none of the cases you've cited appear to address these points 
directly, or indeed at all.  :-(  Perhaps you could point to specific sections 
if you think they really do prove that there is consideration in such 

>The offer of license is, prima facie, adequate 
>consideration from licensor to licensee.

Yes, clearly.

It seems pretty clear that the licensee is bound no matter what.  Either the 
licensee is in a contract, or the licensee is the recipient of a limited gift 
of permissions; either way, the licensee can't exceed those permissions.

The question of whether the licens*or* can unilaterally cancel permission is 
the interesting one.  If it's a contract, the licensor can't.  If it's a 
promise of a gift, it's a contract (note what was said on Groklaw about 
promising money to charities).

>To the extent that it purports to restrict the behavior of the
>offeree, it can be another thing: an "illusory contract" and hence
>unenforceable on the offeree.  That's the conclusion that courts
>usually reach when consideration is not found.  In any case, a gift is
>a transfer of ownership, and a non-exclusive copyright license is not;
Isn't it?  :-/  A non-exclusive license is still an item of value.  Is there 
some precedent that such an issuance is not a gift?

>courts in the US have consistently declined to find implicit transfers
>of ownership
...of the copyright, which is not the same thing...
>or of the right to sub-license, 
Some licenses explicitly grant the right to sub-license.  Would that make a 

>and only a valid contract 
>can bind a copyright holder to issue a license.
The question of unilaterally terminable licenses is an interesting and 
potentially worrisome one.

(It's worth noting that in civil-law countries, contracts apparently don't 
require consideration.)

For instance this...
>also Walthal v. Corey Rusk 1999 (
>http://laws.lp.findlaw.com/7th/981659.html ), in which the Seventh
>Circuit found that a grant of license with no explicit term was
>terminable at will under Illinois law, in contradiction to the Ninth
>Circuit's ruling in Rano v. Sipa Press 1993.
Hmm. That appears to apply directly to the GPL.  And it doesn't seem to matter 
whether it's a contract or not; if it's a contract, it's a contract to grant 
a terminable license.  :-P

What, however, if the license explicitly specifies "perpetual and 
irrevocable"?  I don't think the state law affects that.  The GPL probably 
should specify, as many licenses do.

...and this...
>he misses, however, the fact that copyright
>licenses in the US can't be made perpetual.  17 USC 203 says that the
>copyright holder can terminate a non-exclusive license after 35 years,
(Actually, this is incorrect; the interest is held by the author or his/her 
personal heirs, *not* the copyright holder, and applies only to works not 
made for hire).
>even if the ostensible term of the license was longer (or perpetual);
(This particular law is also not a problem because the notice requirements 
would be prohibitive for a general public license; notices must be served 
individually on each grantee.)
>different jurisdictions disagree on whether state contract law can set
>a shorter term in the absence of any termination clause, as discussed
However, see also
where gmp wrote:
"Another case at the district court level in New York, TV Globo v. Brazil 
Up-Date Weekly (1999), held that copyright licenses that do not specify a 
duration are effective for the remainder of the copyright term of the work. 
This case is interesting because under New York law contracts of unspecified 
duration are terminable at will. The judge in TV Globo held that a different 
rule applies for copyright licenses than for contracts, and cites tons of 
precedent for that view."

How much are we actually worried about copyright holders revoking their 
licenses?  :-P  Debian pulls stuff if the author asks Debian to, even if the 
license says otherwise.  I suppose we're more worried about successor or  
corporate copyright holders.

Furthermore, the unilateral revocability question weighs much heavier on 
MIT/X11 and BSD licenses, with their weak and negative conditions, than it 
does on the GPL -- and code under those licenses is all over the free 
software world, including many GPL'ed works.  So, frankly, the revocability 
of the GPL by the licensor is not worth worrying about until the question of 
the revocability of BSD and X11 licenses is dealt with!

>With all due respect to you and to the FSF, trying to situate the
>(L)GPL outside the realm of ordinary bilateral contract doesn't
>simplify our lives.
Unfortunately, this is a real question of fact and law.  We don't get to 
decide the nature of the beast, judges do.

>Where precedents are thin on the ground, a court
>has more scope to create novel law by reaching past the letter of a
>statute or an agreement to find legislative intent or a principle of
I would really expect there to be a lot of precedents regarding "gratuitous 
licenses" under common law; such licenses have existed as long as the law 
has, in both written and oral forms, and are a common source of disputes.  
I'm quite sure I remember something about them normally being revocable, but 
not necessarily revocable when people reasonably relied on them.  
Unfortunately, I simply don't know these precedents offhand.

I think the principles of equity are on the side of enforcing the license 
against the licensor if necessary: because a very large number of people will 
have come to depend on their licenses -- and legitimately believed them to be 
licenses they could rely on -- and a great deal of hurt would be caused to 
them; while the copyright holder is attempting to back out on a promise which 
he made with full understanding of the consequences, or in the case of 
successors, is attempting to collect a windfall based on no work.

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