Re: Questions about legal theory behind (L)GPL
Brian Thomas Sniffen <bts@alum.mit.edu> wrote:
> "Michael K. Edwards" <m.k.edwards@gmail.com> writes:
>
> > The only form in which the GPL can be read as requiring any conduct
> > from licensees (such as the provision of copies of source code on
> > demand and the extension of the GPL to the licensee's copyright in
> > derived works) is as an offer of (bilateral) contract, duly accepted
> > by the licensee, in return for valid consideration. If anyone can
> > cite legal precedent to the contrary, now would be a good time to
> > mention it; licensing@fsf.org doesn't seem to have any to offer.
>
> Fortunately, the set of GPL provisions we use don't require any
> conduct from licensees. The GPL unilaterally grants licenses to
> perform certain conduct. For example, it grants the right to derive
> new works which contain changelogs. It grants the right to distribute
> binaries with source code.
>
> None of its behaviors are demanded of licensees -- they merely grant
> privileges to which the licensee would not otherwise have access.
I have, in fact, heard this argument. I just don't buy it in the
absence of specific legal precedent -- and honestly, I've looked.
Offering the licensee's modifications under the GPL, and making and
fulfilling offers to distribute source code, are obligations agreed to
by the licensee, and the fact that they are only triggered in
conjunction with exercise of rights granted by the licensor doesn't
make them any less so.
Some of the cases I cited go into detail about the precedent for
conditional promises being adequate consideration to form a contract.
The two cases I have found in which the GPL is mentioned (one
appellate, one district) apply standards which are, at least to my
untutored eye, obviously those of contract and commerce rather than
copyright law.
> [a quote from Nathanael Nerode, not myself]
> >> However, if the contract formed in the GPL isn't such an "exchange",
> >> then it can only be one thing: a promise to make a gift. And presumably
> >> one of a variety which is an enforceable contract.
>
> Or it can be just a gift, with no promises or contracts involved.
> It's a gift of an intangible, so the only way you can see that it's
> there is by words which themselves are actions -- just like "I invite
> you into my home" is a gift of privilege to enter. It doesn't grant
> you the privilege to enter, say, the shed out back -- even though that
> might be part of the same property.
>
> Just so, the rights reserved to the author by copyright law may be
> parceled out as separate gifts.
Yes, by means of one or more contracts. Case law appears to me to be
clear that such a gift is only enforceable when interpreted as an
implied contract-in-fact. When there's a written offer of contract,
then prima facie its terms apply; even under the character of a
unilateral "license", the GPL would be governed by contract law.
> > In any case, a gift is a transfer of ownership
>
> Really? What is it when I invite you into my home?
An invitation. A "grant of license", if you like, at least in the
non-legal sense of "license" (permission) -- but not a gift, as no
property right is on offer.
> > and a non-exclusive copyright license is not; courts in the US have
> > consistently declined to find implicit transfers of ownership or of
> > the right to sub-license, and only a valid contract can bind a
> > copyright holder to issue a license.
>
> But in the case of the GPL, he's not bound. It's just that he's
> already issued the license -- or are you talking about some case other
> than an author releasing his own works under the GPL?
The GPL purports to bind the licensor to issue a perpetual (barring
breach) license to copy, sublicense, etc. That implies a contract
without termination (although there is a statutory right to terminate,
e. g., in the US after 35 years). It's a nice theory that "releasing"
software under the GPL is a one-shot action, complete as of the moment
that a licensee receives the tarball, but it just ain't true, at least
under US law.
> > 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.
>
> Then what's the BSD license? Still going to claim it's a contract,
> and not what it plainly is: a license?
IANAL, but I would venture to say that the BSD license is just a
copyright notice and notice of unilateral grant with extra disclaimer
verbiage. Perhaps the licensor can enforce that the notice remain
unaltered, warranty disclaimer and all, as a precaution against
misrepresentation of the scope of the grant, without claiming to have
formed a valid contract. I think acceptance through conduct could
still be demonstrated, but the BSD license doesn't contain any return
obligations with regard to the software to which it applies, so none
of the arguments about consideration in the GPL fit. To find an
obstacle to rescission of the grant by the copyright holder, I think
you would have to argue "people have relied on this in good faith"
rather than trying to find a contractual obligation.
> > 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. 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
> > equity.
>
> Precedents regarding licenses and grants can hardly be scarce.
>
> I'm not a lawyer, and I don't have the research skills you so
> masterfully demonstrate so I don't have an example to hold up.
Thanks for the compliment, but it's just Google and FindLaw. The fact
that I haven't succeeded in finding a corpus of law on licenses
separate from that on contracts doesn't prove much; but the fact that
every authority I've read (of which I have cited several) treats a
license as a subspecies of contract has to count for something.
In writing "every authority", I am excluding the FSF and its General
Counsel, who seem to have a different notion of "copyright license";
but I followed Professor Moglen's advice to ask licensing@fsf.org, and
they didn't seem to have any law to cite. I am of course open to
other evidence.
Cheers,
- Michael
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