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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:
> > I still don't see how this sub-license construction satisfies the mandate
> > that "the recipient automatically receives a license from the original
> > licensor..."

On Tue, Jan 18, 2005 at 01:08:57PM -0800, Michael K. Edwards wrote:
> 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
> moving.

I think you're confusing EULA with Copyright License.

With copyright, the copyright holder grants license to the publisher
to make copies and that's usually the end of the story.  There are
exceptions, of course (developer tools being a fairly classic one --
developer tools usually grant unlimited redistribution rights to some
of the contained content).

End User License agreements are something different and seem to be based
more on contract law than on copyright law.

Anyways, in this context it does make sense to consider the distributor
as an agent of the publisher -- because the distributor has no license
from the copyright holder, while the publisher does.  [In the classic
commercial model, this is also the case for developer tools (while some of
the content has an unlmited redistribution license, most of the content
typically does not).]

But under the GPL, the distributor gets a license from the copyright
holder, so the distributor does not have to act as an agent for the

In any event, the way I see it you're talking about traditions which were
developed to deal with an issue which is not present in the context of
the GPL.  And, furthermore, the GPL seems to contain explicit language
conflicting with this application of that tradition.

> 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.

Ok... but let's first try to establish why C would need to receive it
from B rather than from the original licensor (which is what the license
says happens).

So far you've only indicated that that's what happens with other licenses
(which don't have this "receives a license from the original licensor"

> 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'm not following you here at all.  A licensor is someone.  But your
grammatical argument seems to argue that the license is that someone.
Is the license document (or legal abstraction) the agent now?

You could argue that the recipient recieves the license from the original
licensor via "B", which makes "B" be an agent for the purpose of passing
the license on.  But the end result of that argument is still a license
granted directly from "A" to "C".

> > > 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.

One thing I think you need to keep in mind: precedent is narrowly
focussed on the issues of the case at hand.  A judge might suggest some
general principles, but different licenses are going to be interpreted

A judge isn't going to override the terms of the GPL just because some
different license was handled differently.  There has to be good reason
for it.

> 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.
>  :)

Yeah -- as a general rule, they like to keep their rulings very narrow.

> [snip]
> > 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.

If by "legal foundation" you mean "court precedent", I don't expect there
to have been any.  Remember that only a few years earlier there wasn't
any such legal foundation for copyrighting computer programs at all.
Many legal experts felt that computer programs were uncopyrightable, some
resorted to rather draconian contract arrangements, and some companies
(such as IBM) gave out source code for free.

If by "legal foundation" you mean "reasoning about legal issues which lead
up to the GPL", I think that any attempt there would be a form of second
guessing the GPL itself (and would also be marred by imperfect memories).

> 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
> reading.




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