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Re: Questions about legal theory behind (L)GPL

> > 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.

On Sun, Jan 16, 2005 at 10:48:55PM -0800, Michael K. Edwards wrote:
> "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.

Why would direct licensing not work?

> > 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. 

As a general rule, there are no guarantees about what a court will find.

> It frequently happens that contract provisions are modified or struck
> during interpretation by a judge because they conflict with statute. 


Of course, it also frequently happens that contract provisions stand,

> 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.

First, let's here why you think direct licensing isn't granted -- the
clause appears to be stated rather clearly to grant licensing directly.

I'll grant you that the GPL is a license which is unprecedented in 
many respects.  But that doesn't make it invalid -- just different.

> 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.

I imagine that (where two copyright holders differ from one another in
their interpretation) the judge would look at the history of how these two
copyright holders have acted.  If one has recently changed their intent
then the judge would need to consider their previously expressed intent.

If there is no such change, then the judge would probably look at how
the situation developed, to determine which parts of the copyrighted
work belong to which party.

> 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.

Most likely, the judge would say that Ms X doesn't have standing.

Eclipse is not a module of Kaffe.

In the unlikely event that she did have standing, I'm sure the judge
would ask her what she thought people would use Kaffe for, and why she
contributed the code.

[Also, if the FSF did get involved, I imagine they'd be able to cover
a lot more ground in that brief -- I don't think they'd limit the scope
to classpath.]


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