Re: Contract and Tort Law and the GPL
On 5/11/05, Raul Miller <moth.debian@gmail.com> wrote:
> It's been suggested that existing case law with respect to copyrights
> always is based on contract law, and that the GPL can only be
> understood in terms of contract law.
Oferchrissake. Existing case law with respect to copyright _licenses_
is always, always, always based on contract law (in the US, anyway).
Would you do me the courtesy of at least correctly stating the
argument that you are attempting to rebut?
> As near as I can tell, this is mistaking correlation with causation.
Your ability to tell does not appear to be grounded in any attempt at
legal research.
> Standard industry practice involves the use of contract law in the
> application of copyright license. Businesses are in business to make
> money, and the standard legal approach for making money in the context
> of copyright involves contracts.
>
> But in the case of the GPL, no one is signing any contracts.
What exactly do you think a shrink-wrap software license is? Have you
ever heard of "acceptance through conduct"? Have you read Specht v.
Netscape? Do you care what the actual law is?
> You can construe value in the context of the GPL. For example, you
> can roughly examine the man-hours which have gone into the production
> of a GPLed work, and estimate value that way. Or, you can look at the
> placement and volume of GPLed products within the industry and
> estimate value in terms of analogous volumes of analogous software.
> Or, you could look at businesses which rely on GPLed software and make
> some kind of estimate based on their businesses. Other approaches are
> also possible.
>
> And, to get fair consideration from a court of law, it's quite
> possible that GPL arguments should be cast in the form of such
> mechanisms of exchange -- if the court is to assign damages for
> violating the GPL it's going to have to have something to go on. Of
> course, it's also possible that the court will recognize the public
> benefit of GPLed software and could in assess damages on that basis
> (this is not an unrelated issue).
>
> So it should be possible to treat the GPL as if an implicit contract
> had been signed, and proceed from there, and the damages inflicted by
> GPL violation in such cases could be substantial.
Signed, schmigned. It's an offer of contract, duly accepted; there
are few contract terms which cannot be found to exist in a court of
fact without a signed written agreement, and nothing in the GPL
(except perhaps the agency to sublicense which appears to me to be the
only legal way to implement Section 6) falls into that category. What
damages are you talking about anyway?
> However, one of the big defects of contract law, in the context of the
> GPL, is that it can be difficult to obtain standing for cases of
> copyright violation. GPLed projects tend to have many contributors,
> with many people holding copyright on only a small slice of a work.
This is entirely false, and in any case has nothing whatsoever to do
with contract law. The actual law of the land in the US (and at least
parts of Canada, apparently) is the abstraction-filtration-comparison
test first articulated in Computer Associates v. Altai. If you can
demonstrate that you hold a valid, registered copyright on material
which has been copied (in excess of "de minimis"), you have standing.
> Another issue is that monetary compensation doesn't really address the
> problems created by GPL violation.
>
> However, there is the other option: Tort Law.
What tort, exactly, do you think can be proved on whom, by whom?
> In particular, I can see a class action lawsuit against a GPL
> copyright violator as having a good chance of success. Here, the
> community of people who have put development and debugging effort into
> some significant piece of GPLed software could charge that some
> violator has been negligent in granting proper copyright on some
> program which contains the GPLed code.
"Negligent"? "Granting proper copyright"? This is such complete crap
I am almost speechless.
> They would not necessarily be suing for monetary compensation, but
> might instead be suing to have the program licensed properly (plus
> court costs, since starving lawyers tend not to do so well in court).
> Then again, perhaps for repeating offenders or blatant violators (if
> there ever are such), punitive damages could be charged (and perhaps
> placed in a trust fund or legal fund or some other such
> community-oriented dispensation).
>
> This wouldn't necessarily be an easy lawsuit to undertake, the
> research and groundwork could be significant. But I think that such
> legal action could have a very real chance of success if done right.
> (At least, in the U.S. -- I don't know about other countries.)
This is arrant nonsense. What possible grounds do you have for
thinking that some legal action whose basis you have entirely failed
to exhibit would have a "very real chance of success if done right"?
> And, on the flip side, little established legal precedent means that
> the results could be favorable in ways that wouldn't necessarily be
> obvious by studying legal precedent under contract law.
>
> Finally note that with many industry heavy hitters gaining significant
> benefit from GPLed software, these hypothetical legal actions might
> have some serious backing.
Y'know what? There's quite a bit of statute and precedent out there
on what does and does not constitute a tort. Evaluating precedent
does not, if I may say so, appear to be among your strengths.
- Michael
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