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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.

> On Mon, 17 Jan 2005 13:48:23 -0500, Raul Miller <moth@debian.org> wrote:
> > Why would direct licensing not work?

On Mon, Jan 17, 2005 at 12:55:47PM -0800, Michael K. Edwards wrote:
> As I understand it, generally speaking, a contract has two parties --
> offeror and offeree.

Ok.  However, it's worth noting that these parties are distinct each
time the [implied] contract is executed.

> To the extent that it binds other persons or entities, it does so
> through the doctrine of agency -- either party A declares that non-party
> B will fulfill some of A's obligations as an agent of A, or A agrees,
> acting as an authorized agent of B, to commit to conduct on B's behalf.

Until you've established that the GPL binds third parties through any
means other than direct execution of the [implied] contract, this is
begging the question.

> The GPL appears to me to fall under the latter, authorizing the licensee
> to offer a sub-license to all copyrights in the incoming GPL work.

I disagree.

The GPL states 

   Each time you redistribute the Program (or any work based on the
   Program), the recipient automatically receives a license from the
   original licensor to ...

This is very clearly a license from the original licensor (whoever that
is) to the licensee.

Of course a Program might have multiple copyrights, but the GPL has
required (under section 2) that the people who have added such material
have made it available under the GPL terms.

In other words, I see multiple implied contracts, but each contract
is between the original copyright holder and the recipient.  I don't
see any grounds for thinking that there's any sublicensing.  

For that matter, sublicensing might be seen as an attempt to circumvent
the requirement that the original licensor grant the license to the

>  To get the same effect with "direct licensing", you'd have to read
> separate offers of contract from each copyright holder to the recipient
> into the single act of passing her a modified work, which is a little
> far-fetched.

The way I read it, those offers of contract from each copyright holder
to the recipient are made each time the program is redistributed.

I don't see why this is "far-fetched", and I don't see any reason to
pretend that that's not what the license mandates.

> > 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.

> On the question of sub-licensing, I doubt that you would be able to
> find evidence of either copyright holder's stance in advance, and it
> wouldn't matter much anyway, since as a matter of law (in the US)
> ambiguities in contracts must be construed against the offeror and
> there's no way to demonstrate the licensee's intent in a
> non-negotiated, "standard form" contract.  (That isn't necessarily
> true if there's a history of correspondence between the parties and it
> can be demonstrated that both interpreted the contract in the same
> way.)

I'm thinking that there will typically have been a history of
correspondence between the parties.  Most likely: an email archive,
the changelog, release announcements, etc.

And the basic question is: why was the material contributed in the
first place?

As a general rule, if someone had an objection to their content being
distributed, they would speak up shortly after they find out about
the issue.  If some extended period of time has passed (for example:
the time between Debian Stable releases), there's a very real question
as to why the issue wasn't raised earlier.

This issue, in concert with testimony about informal communication
between the parties, should be sufficient in most if not all cases of
"some free software developer decides to litigate about some old code".

Of course, if the code has just recently been added, then the right thing
to do when someone complains is remove the code.  However, if someone
is pulling an SCO, the right thing to do is document what really happened.

> My guess (IANAL) is that a court would find that, when A offers
> Project X under the GPL, B modifies and distributes it, and C accepts
> license in the modified version, B and C have formed a contract and
> A's participation is limited to the agency for sub-licensing purposes
> implicit in the contract that it offered B.  This is especially likely
> to hold in a situation where B is Debian, since most users deal
> directly with Debian for updates, bug reporting, etc., and can
> reasonably claim that as far as they are concerned their license came
> from Debian and the rest is between Debian and the upstream(s).

I don't think a court case where this issue is relevant is likely.

I think that, if there were such a court case, that the court would
rule that C has a license from A (because the GPL says that C has such
a license).

However, it's never wise to think that you know how a judge will decide,
so I will admit that there is some small chance that a judge would rule
the way you've outlined.

> > Most likely, the judge would say that Ms X doesn't have standing.
> How could that be?  Factually, her copyright has been infringed unless
> Debian (reachable through SPI and/or as a list of named defendants
> plus a stack of Does and Roes) can demonstrate that it acted under
> license.

I already answere that:

> > Eclipse is not a module of Kaffe.

> I don't understand what legal significance you expect this to have in
> this situation.

Eclipse doesn't hae a GPL notice on it.

Kaffe does.

However, the GPL states that mere aggregation is not restricted
by the GPL.

So for Kaffe's license to matter for Eclipse, you'd have to have some
other reason for thinking that the GPL would restrict this case.  That
leaves us with:

Maybe Eclipse contains code from Kaffe.  [But that's not the case, as far
as I can see -- they are related at runtime.  If Kaffe was used to build
the Eclipse byte code, there might be some questions about classpath,
but there's already an explicit exception for that, and you did not
specify that Ms. X contributed specifically to classpath.]

Maybe Eclipse falls under the following requirement for Kaffe:

   For an executable work, complete source code means all the source code
   for all modules it contains, plus any associated interface definition
   files, plus the scripts used to control compilation and installation
   of the executable.

But Eclipse is not a module of Kaffe.  Eclipse is not an associated
interface definition file for Kaffe.  Eclipse is not a script used to
control compilation and installation of Kaffe.

Instead, Eclipse is merely aggregated with Kaffe, and one of the ways
of running Kaffe runs Eclipse (but running Kaffe is not restricted by
the GPL).

> I have argued that no derivative work containing Eclipse and any part
> of Kaffe or Classpath is created at any stage, since a "derivative work"
> is by definition an "original work" unto itself, and the interpretation
> and linking processes don't create "original works".

And I agree with you on this point.

> But there is no question that both the Debian CD and the system on
> which Eclipse and Kaffe are installed infringe on Ms. X's copyright
> in the absence of a valid license to Kaffe.

Yes there is.  I've asked questions about the reason someone might make
such a claim numerous times over the last week.  So far, no one has
provided a credible answer.

I see no valid reason for such a claim.

> > 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.
> Why would that matter?  But suppose she did, and Ms. X answered that
> it was her understanding that her contributions could only be used by
> GPL applications, based on an argument similar to Grzegorz's.  I think
> that the defendants could successfully argue that they relied on the
> actual text of the license, with its use of terms with a definite
> meaning in copyright law, and a reasonable review of the relevant case
> law, to conclude that the GPL doesn't cross published API boundaries
> irrespective of the technical details of linking, interpreter
> internals, etc.

If Ms. X is going to refer to the text of the GPL as the basis for this
expectation, please spell out the reasoning for thinking that people
could not run Kaffe to run Eclipse.

> For the record, that's how I approach the issue -- relying on license
> text and law, not the FSF's FAQ or the opinion of any particular
> copyright holder -- and that's the defense that I think I would offer
> if I were ever in the defendants' position.

That's fine.

Just spell out the reasoning.  Don't say it's obvious, because it's not.

> > [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.]
> Read the FSF's brief in MySQL v. Progress Software -- if you ask me,
> it is less than scintillating as an exposition of the legal foundation
> for their position.

Can you point me at this?  I can find the eldred brief, but haven't
found that one.



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