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Re: Questions about legal theory behind (L)GPL

On Mon, 10 Jan 2005 23:41:16 +0100, Francesco Poli <frx@firenze.linux.it> wrote:
> On Mon, 10 Jan 2005 10:32:02 -0800 Michael K. Edwards wrote:
> > The GPL purports to bind the licensor to issue a perpetual (barring
> > breach) license to copy, sublicense, etc.
>                            ^^^^^^^^^^
> I don't see where the GPL permits me to sublicense...

I think it's implicit in granting the right to distribute a modified
work, since that usually requires permission from the copyright holder
on the original work even if one is already licensed to copy and
distribute the original.  That suggests that the grant of license
extends to authority to sublicense subject to the stated constraints. 
But I haven't looked up the law on that, and it's not essential to any
argument I've made.

> >  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'm not convinced by your arguments: I still can't see where the
> licensor is bound to do something.
> Suppose Jessica F. Hacker wrote a program and followed the instructrions
> she found at the end of the GPLv2 text.
> Then she uploaded the source tarball to Savannah and disappeared (in the
> sense that nobody ever heard of her anymore).
> What are her obligations? I fail to see any...

She has issued a promise not to pursue a copyright infringement claim
(that's what a copyright license is, basically, at least in the case
law I've read).  The only basis on which that promise is enforceable
on her is that she has made, and the recipient has accepted, an offer
of contract, and the term of that contract has not expired.

It's not like I'm making this stuff up.  The law on copyright could
have been different, given a different history; and for all I know, it
may be different in Italy.  But I think many people rely for their
understanding on the FSF's exegesis, the FSF is based in the US, and
their stance on the existence of a "non-contract license" is, as far
as I can tell, systematically contradicted by US case law, of which
the cases I've cited are just the tip of the iceberg.

- Michael

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