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Re: Questions about legal theory behind (L)GPL

On Tue, 18 Jan 2005 12:51:22 -0500, Raul Miller <moth@debian.org> wrote:
> On Mon, Jan 17, 2005 at 12:55:47PM -0800, Michael K. Edwards wrote:
> > 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
> licensor..."

I think it's generally held that, say, a software retailer is moving
around boxes containing both software and license (in the intangible
sense, not just the paper with text on it), while a software publisher
is exercising authority to sublicense when making, boxing, and
distributing copies of the software.  In either case, there's a
license from the copyright holder being transferred, but the retailer
isn't party to any contracts except in the most primitive sense of
common-law contracts of sale.  The retailer has common-law authority
to transfer licenses around only as a component of the boxes he's

In order for C to "automatically receive" a license under GPL from B
along with the physical (electronic) copy of the subject matter, B has
to have the authority to transfer license along with it.  Given that B
is doing the copying, it seems natural to me to put B in the position
of the software publisher and to construe agency terms from A to B. 
Grammatically, this ties "from the original licensor" to the noun
"license" (C has A's permission, which B has agency to grant) rather
than the verb "receives".

> > 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.

It's not so much a personal preference as a guess.  The commonly cited
precedent on when and how a right to sublicense can be construed is
Harris v. Emus Records 1984 (9th Circuit), but I haven't been able to
find a URL for it (and don't have other resources handy).  That case
addressed a copyright under the 1909 act but is still cited for
guidance under current law, often in the same breath with Herbert v.
United States 1996 (Federal Claims Court), also hard to find.

Realistically, I think this is the sort of thing where an appellate
judge might argue it through both ways, reach the same conclusion on
the facts of the case under discussion, and decline to establish a
precedent on which is the correct construction.  Sneaky, those judges.

> > 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
> > agent?
> So... yeah, I guess I still think that kind of lawsuite is pretty
> unlikely.  Mind you, I'm not saying it's impossible.

I think a lawsuit like it is going to happen, sooner or later.  The
facts in MySQL v. Progress Software didn't quite fit this scenario,
because Progress's subsidiary NuSphere was doing the integrating, and
hence MySQL went after them directly.  The GPL issues didn't get
settled because Progress capitulated after a preliminary injunction
for trademark infringement, granted largely because they had a
previous negotiated trademark license for which NuSphere was paying
real money.  Take the trademark issue away so that the GPL has to be
fully litigated, put the bundling at arms' length from the authoring,
and change the names -- voila! my scenario.

> [standing]
> > 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
> license.
> 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.

Fair enough.  :)

> 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.


> You're right -- this does not seem to be written as an exposition of
> the legal foundations for the GPL.

If my correspondence with licensing@fsf.org is any indication, there
aren't any.  No smiley on this one -- this is the crux of my
irritation with the FSF.  It's all very well for them to wave the 1709
Statute of Anne around when licensing code on which they hold
copyright, but they have encouraged the adoption of the GPL by many
other projects.  It's past time they showed their cards, either with
arguments based on contemporary law or an acknowledgment that it was
crafted in ignorance.

One of my colleagues at the day job (a lawyer in New York) is trying
to track down the full MySQL trial transcript (with briefs,
affidavits, etc.) so that we can understand the reasoning of a couple
of attorneys who were actually obligated to ground their conflicting
assertions in law.  According to contemporary commentators (see
http://cyber.law.harvard.edu/globaleconomy/3.3_MySQL.doc and the
referenced write-up by John Palfrey and Ed Kelly), the judge called
the parties' briefs "classic book-ends" drawing diametrically opposite
legal conclusions from the same facts.  Should make interesting

- Michael

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