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Re: Questions about legal theory behind (L)GPL

On Sun, 16 Jan 2005 11:51:19 +0100, Francesco Poli <frx@firenze.linux.it> wrote:
> On Sat, 15 Jan 2005 21:54:29 -0800 Michael K. Edwards wrote:
> > On Sat, 15 Jan 2005 19:27:26 +0100, Francesco Poli [...] wrote:
> [...]
> > > 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.
> IANAL either, but I disagree.
> Section 6. of GPLv2 states, in part:
> |   6. Each time you redistribute the Program (or any work based on the
> | Program), the recipient automatically receives a license from the
> | original licensor to copy, distribute or modify the Program subject to
> | these terms and conditions.
> Thus, when *you* distribute to *me* a work based on Linux-2.6.10, *I*
> automatically receive a license from the *original licensor* (the set of
> Linux-2.6.10 copyright holders) for Linux-2.6.10.
> In the meanwhile, *I* receive a license from *you* for *your
> modifications* to Linux-2.6.10 (I'm of course talking about a case in
> which *you* created the derived work, starting from Linux-2.6.10).
> I don't think there is any "sublicensing" here.

The GPL isn't law, and its characterization of what's happening under
law when you distribute a modified work is pretty bogus.  (The
recipient "automatically receives"?)  I think it would be better
written as (more or less):

"If you have received a work containing the copyright material of
multiple authors, offered under the GPL, then each copyright holder
offers license to his, her, or its contributions to this work, under
the complete terms of the GPL.  You may modify this work to create a
new derivative work in which you hold copyright on your modifications.
 The only terms on which you may distribute this new work are those of
the GPL, and the copyright holders grant you a limited agency to
grant, solely on these terms, sublicenses to their copyright in
portions of your modified work."

In order to get past the Oddo v. Ries "right to publish isn't right to
sublicense for the purpose of publishing a modified version"
precedent, I think a court would have to find that the GPL as written
is substantially equivalent to the above.

> [...]
> > > > 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.
> > >
> > [snip]
> > >
> > > In general, a "license" is a "permission", not a "promise not to
> > > punish forbidden actions"...
> >
> > Same difference, legally.
> > [...] "a mere waiver of the right to sue" [...]
> So you are saying that, when I copy and distribute a GPL'd program, I am
> violating the law and staying unpunished.
> In other words, I'm doing something illegal and the only reason why I am
> feeling safe is that the copyright holder has promised to close his/her
> eyes.
> If that were true, the entire concept of free software would be really
> in trouble: one of its strengths is that you can /legally/ copy and
> distribute it. Because you have permission to do so!
> Saying "you don't have permission, but, nevermind!, the copyright holder
> won't sue you anyway" doesn't sound good to me.

It's not that what you are doing "is illegal".  That's not how this
part of the law works.  The legal remedy for copyright infringement
(in a common law country) is to sue under tort law.  The burden of
proof starts on the plaintiff to demonstrate that the plaintiff has a
valid copyright and that the defendant did something that the
copyright holder has the right to veto.  Then, the defendant can argue
that it had a right to do what it did, either because of a license
from the copyright holder or because of a recognized defense such as
"fair use".

One of the reasons that I harp on the "licenses are provisions in
contracts" theme is that mishandling this can screw up your case in
court.  If you're trying to pursue a copyright infringement claim in
the presence of a license agreement, you have to prove breach of
contract and rescission of the license before any copyright claim can
succeed.  That's because a (non-exclusive) license is legally
equivalent to a promise not to sue for infringement, so until you
demonstrate that you are no longer bound by that promise, you can't
successfully sue.  Again, Effects v. Cohen is a classic example of
this chain of legal reasoning.

> As I said, copyright law grants the author the exclusive rights to do
> and to authorize others to do some operations. Once the author
> authorized me to do one operation, I have his/her permission and can do
> it legally, no matter what he/she says afterwards.

Yes to the first, no to the second.  The authorization can be
conditional on X, Y, and Z -- as it is in the GPL -- and so it can be
rescinded if you don't do X, Y, and Z.  Also, in the absence of a
legally valid "term and termination" clause, the licensor may have the
right to withdraw the authorization at any time, depending on the
version of contract law that governs.  Contract law is much more local
and variable than copyright, so I can understand why an open source
licensor might want to dodge contract law issues and go straight to
copyright; but the real world just doesn't work that way.

- Michael

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