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Re: Questions about legal theory behind (L)GPL

On Sat, 15 Jan 2005 19:27:26 +0100, Francesco Poli <frx@firenze.linux.it> wrote:
> On Mon, 10 Jan 2005 16:11:21 -0800 Michael K. Edwards wrote:
> > 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.
> But that is not what "sublicensing" means, at least AFAIK.
> In my understanding "sublicensing" means redistributing under a
> different license, and that is what a copyleft license is supposed to
> not allow...
> If I'm wrong, then someone please explain me what's the meaning of
> "sublicensing"!

A designates B as an agent to issue a license to C to use A's
copyright material.  The terms of that license can be specified in
advance in the designation of agency.  That's how I (IANAL) read the
authorization to create derivative works and offer them under the GPL
terms.  Here's a quote from Effects v. Cohen describing Oddo v. Ries
1984, in which an implied license was found to publish certain
copyright material but not to sublicense it:

FN5. Oddo did nevertheless prevail, but on other grounds. Ries was unhappy with 
Oddo's manuscript and hired another writer to do the job right. This
writer added
much new material, but also used large chunks of Oddo's manuscript, thereby 
incorporating portions of Oddo's pre-existing articles. 743 F.2d at 632. By 
publishing the other writer's book, Ries exceeded the scope of his
implied license
to use Oddo's articles and was liable for copyright infringement. Id. at 634.

(I haven't found a URL for the Oddo decision itself.  Anyone?)

The history of the problem of sublicenses in the US is discussed in
Gardner v. Nike 2002.  Basically, under the 1909 Copyright Act,
licenses were as a matter of law not transferable or sublicensable
without express authorization from the copyright holder.  Gardner v.
Nike extended that interpretation to the 1976 Act as well, even as
regards exclusive licensees.  So if the GPL is valid, part of what
it's granting is the right to sublicense additional copies (modified
or not) to other parties -- whether or not it uses the word

I don't think there was any question of whether non-exclusive licenses
are transferable without explicit authorization (generally, they're
not) until software cases arose in which vendors tried to get around
the doctrine of first sale using copyright law.  Courts have generally
held that the sort of copying and deriving from copyright material
that takes place during normal use of software isn't copyright
infringement, and therefore retail sale of packaged software includes
a common-sense right to copy during use (just like reading a book --
you don't violate copyright by making copies on your retinas) and to
resell on the used market, as long as you don't keep a copy for your
continued use.

> > 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).
> I'm really surprised by your definition: in my understanding, a
> copyright license is a permission to perform copyright-restricted
> operations.
> In general, a "license" is a "permission", not a "promise not to punish
> forbidden actions"...

Same difference, legally.  Non-exclusive license has a longer history
in patent cases than in copyright, and copyright cases frequently
point to patent cases as precedent.  The commonly cited Supreme Court
precedent that a non-exclusive patent license is "a mere waiver of the
right to sue" is a 1927 case (De Forest Radio Telephone v. United
States, http://laws.findlaw.com/us/273/236.html ), which in turn cites
Robinson on Patents -- so it was evidently already well established by
then, at least with respect to patents.  Everex Systems v Cadtrak (aka
in re CFLC) 1996, for instance, cites De Forest in concluding that
such a license constitutes significant continuing performance
(settling, as far as I am concerned, the question about whether GPL
release is a "one-shot" act with no continuing performance -- it's
not).  For an example that all this applies to copyright, see Jacob
Maxwell v. Veeck 1997 ( http://laws.findlaw.com/11th/962636opa.html ),
which brings in re CFLC over to the copyright arena.

> [...]
> > 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.
> [...]
> I do not think Italian "diritto d'autore" and U.S. copyright laws differ
> in a significant manner, as long as what we are now discussing is
> concerned.
> I mean: there *are* differences (such as moral rights...), but they do
> not have significant influence on the answer of the question "what is a
> copyright license?".

Now that I think about it, it's not so much the different copyright
regime that matters -- both systems nowadays have been conformed to
the Berne Convention, so the historical differences have largely been
reconciled (although there are optional provisions in the Berne
Convention that recognize the divergence on the question of "moral
rights of the author" separate from economic rights).  But common law
and civil law countries have some significant divergences in the
interpretation of contracts, and (as I keep repeating) a copyright
license is a contract provision, not something to be interpreted
solely in the context of copyright law.

- Michael

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