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Re: Questions about legal theory behind (L)GPL

On Sun, 16 Jan 2005 18:21:19 -0500, Raul Miller <moth@debian.org> wrote:
> On Sun, Jan 16, 2005 at 02:09:09PM -0800, Michael K. Edwards wrote:
> > 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"?)
> The GPL is a license document, and "automatically receives" is a
> license grant.  The GPL doesn't need to be law to grant license --
> granting license is what copyright licenses do.

"The GPL isn't law" was in response to "the GPL doesn't say this is an
authorization to sublicense".  Under US law as I understand it,
there's no other way to implement the purported license grant
indicated by "automatically receives" other than the sublicensing
paraphrase that I gave.

> The only thing needed to make sense of section 6 for the case where
> there are multiple copyright holders is recognition of "the original
> licensor" and "the recipient" both apply under the scope of section 6's
> "Each time".  Since the terms are the same, regardless of the copyright
> holder and regardless of the recipient, there is no ambiguity here.

This is sort of a "recursive closure" argument, which is reasonable as
a way to understand the drafter's intent, but doesn't guarantee that a
court will find that the license language accomplishes that intent. 
It frequently happens that contract provisions are modified or struck
during interpretation by a judge because they conflict with statute. 
US copyright statute, as interpreted by appeals courts to date,
appears to me to require that authorization to sublicense be pretty
explicit in a written contract.  IANAL, and I can't say for certain
how a court would weigh the GPL drafters' intent (which I agree is
reasonably clear on this particular point) against precedents like
Everex v. Cadtrak -- especially if two copyright holders differ from
one another on the interpretation.

Suppose Ms. X contributes some code to Kaffe and then sues Debian for
distributing Kaffe and Eclipse together.  Then suppose that the FSF
files an amicus brief saying that Debian is OK because GNU Classpath
has a special linking clause and Ms. X's code is part of an
interpreter, while the main copyright holder on Kaffe files an amicus
brief saying that as far as he is concerned the GPL doesn't propagate
across linking boundaries and that if Ms. X says different then she's
failing to extend the same license to Debian that he extended to her. 
Whose interpretation wins?  The answer could depend critically on what
implicit terms the court construes in order to implement the implied
authorization to sublicense -- or some other way around the problem
that I'm not seeing.

- Michael

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