Re: GPL, "license upgrades", and the obligation to offer source code
On 5/10/05, Glenn Maynard <glenn@zewt.org> wrote:
> My question was simple and carefully reduced to a single sentence. Even very
> complex issues on this list are typically able to be described in a page or
> two; your response is over six pages on my terminal, beyond my free time.
I also seem to have answered it from a different angle from which you
asked it, for which I apologize. I was not answering "Why should
Debian not permit maintainers to put 'GPLv2 or later' licensed
software in main?" I was answering "What pitfalls should _you_
contemplate before authorizing a third party to change licenses on
work you wrote?" And by extension, "Why should a court feel obliged
to grant any copyright holder's request to enjoin Does and Roes from
claiming rights to his work under license terms that he did not have
the option of reviewing at the time he last contributed to the work --
even if he consented to the license upgrade clause at the time?"
[fair critiques snipped for length]
> > Then suppose that FormGen publishes DNPL v3 containing a clause to the
> > effect of "copyright holders on derivative works of any version of
> > Duke Nukem grant FormGen an exclusive license to publish their works
> > commercially". FormGen can then gather up all of the extant Duke
> > Nukem scenarios, "upgrade" their license to DNPL v3, and exploit them
> > commercially as DN3D scenarios.
>
> Those licensors (the scenario creators) chose to allow FormGen to do this.
> They were free, if they wished, to remove the "upgrade clause" and only
> allow their work to be published under the terms of v1 or v2 of the license,
> without the option to upgrade to the not-yet-existant v3. Instead, they
> chose to allow FormGen to offer alternative licenses at their whim.
I constructed the "DNPLv2/v3" strawman as an example of how a "license
steward" can effectively close off people's access to their own work
with a little bit of technical maneuvering but without explicitly
biased language. It is often said that ignorance of the law is no
excuse, but there ought to be a limit to just how big a rights grab
you can pre-authorize sight unseen. (Oh, and please again note that I
pulled the FormGen / Duke Nukem example out of a court decision and
then changed a minimum of facts around to build my strawman; in
reality, FormGen never pulled such a stunt, nor is there any reason to
think that it's their style.)
> I don't see the problem. It's licensors giving a third party a blank
> check. It's up to the licensor to decide whether or not doing that is
> a good idea in their particular scenario.
With respect to authorization to accept contract terms, a court
shouldn't honor a check that was blank when you signed it unless you
endorsed it after it was filled in. Not if you protest promptly once
you learn about them that you don't want to be bound by such terms.
Like the right to renegotiate the terms of a copyright license after a
certain number of years, the right to decline terms that you haven't
seen ought to be inalienable.
Oh, a bounded set of options is fine, like "my agent can commit me to
pet any fixed number of cats, not to exceed three, per copy I
distribute"; but not "my agent can bind me to do, or not do, anything
he pleases". And remember that a copyright license is just a
contractual promise not to sue. Blanket authorization to alter
license terms on a work is not just authority to adjust the scope of
the license but authority to add arbitrarily onerous conditions on the
exercise of my own copyright. Not to force copyright assignment,
though; that's among the things which a US court cannot construe
without positive written evidence.
Cheers,
- Michael
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