Re: Questions about legal theory behind (L)GPL
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.
On Mon, 17 Jan 2005 17:04:02 -0500, Raul Miller <email@example.com> wrote:
> > Ok. However, it's worth noting that these parties are distinct each
> > time the [implied] contract is executed.
On Mon, Jan 17, 2005 at 10:53:58PM -0800, Michael K. Edwards wrote:
> That's one reason why I think the sublicensing interpretation is
> more natural.
How is that a reason?
> > 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
> > recipient.
> There's some reason to this, especially in light of GPL section 4.
> But that would result in potential jeopardy for breach of contract
> between each licensee and every copyright holder. That has nasty
> consequences, which I wrote out in the draft I lost (don't use Google
> Search in the same tab as your GMail session!) but will summarize as
> "both sides become vulnerable to expensive to defend, quasi-frivolous
> lawsuits in inappropriate jurisdictions". The doctrine of agency was
> created to avoid this kind of nastiness and make complex business
> relationships possible without an endless web of implied contracts.
You've already got that with widespread distribution of popular programs.
I'd need to see a pretty convincing precedent to imagine that this
doctrine of agency has any relevence in the context of the GPL.
> > > 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.
> A mandate without an implementation is subject to construction.
> Construing agency to issue sublicenses leaves the contract between
> distributor and immediate recipient where it belongs, with subject
> matter being the entire contents of the offered blob of software.
I still don't see how this sub-license construction satisfies the mandate
that "the recipient automatically receives a license from the original
> I think that's much cleaner as a basis for findings of fact than the
> "contracts upon contracts" construction, and does a better job of
> reaching the parties' intent, which is what judicial construction is
> supposed to do.
Ok, I understand that you have some kind of personal preference which
favors the sublicensing construct. I'm not convinced that your preference
accuratly reflects how the law would treat this issue, but I do understand
that that is your opinion.
> > > 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.
> Suppose the FSF had gone beyond complaining and threatening when KDE
> used Qt under the QPL and proceeded to sue, say, IBM for bundling
> RedHat with some of their servers. Don't you think it would be
> relevant whether IBM could claim reliance on RedHat as the FSF's
I think I did more complaining on that one than the FSF. I maybe missed
something, but I remember the FSF being fairly hands-off on that issue.
But, that aside, I think suing IBM would be a dumb move. Talk about
expensive lawsuits... Ok, if you've established sufficient precedent
by suing other people on the same issue, maybe. [But in my experience,
IBM has been pretty responsive to even rather tenuous lines of licensing
reasoning -- so there probably wouldn't need to be any reason to take
them to court.]
But, that aside, if I recall your reasoning, this whole agency/
sublicensing thing seems to be specific to the GPL, and not specific to
the whole of Debian's distribution. So if the precise character of this
lawsuit were different, you seem to be saying that this issue of agency
would not apply. Which means that the bit about "since most users deal
directly with Debian for updates, bug reporting, etc." is could easily
So... yeah, I guess I still think that kind of lawsuite is pretty
Mind you, I'm not saying it's impossible.
> None of this has anything to do with whether Ms. X has "standing" --
> that became undeniable once copyrightability, copyright ownership,
> and "copying" were demonstrated.
Hmm... ok, chalk that one up to my ignorance of the terminology.
What I meant to say is that there hasn't been any infringement of the
copyright because nothing has happened which violate the terms of the
What I probably should have said instead was that that hypothetical
situation wasn't interesting to me because I didn't see that we had any
grounds for discussing it.
> > 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).
> ACK, although I think it's considered factually debatable whether any
> given technique of execution creates infringing copies along the way.
> That isn't purely a technical question, especially considering the
> criteria for "fair use" -- which also vary quite a bit by
I'm ignoring "fair use" issues.
> > 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.
> Er, I'm not the best person to spell this out, since I disagree
> strongly with this interpretation of the GPL text. Remember, I'm the
> one who thinks that the GPL as written doesn't prohibit uses such as
> dynamic linking GPL and non-GPL code, or even static linking as long
> as the works don't become practically inseparable and hence a sort of
> de facto derivative work instead of a compilation.
I agree with your second sentence, for some but not all cases.
My position is that the details of what's being linked, and why, is
important. My position is that information about linking is relevant
when determining the scope of the work, but that its mere presence or
absence isn't enough information to make this determination.
So I'm going to ignore details of arguments for or against the "linking
is ok/isn't ok" positions, unless they're accompanied by specific reasons
why the position is or is not relevant in that specific case.
> > > 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.
> It's not obvious at all -- that's why I've been citing case law out
> the yin-yang. :)
> > > > [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.
You're right -- this does not seem to be written as an exposition of
the legal foundations for the GPL.