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Re: RES: What makes software copyrightable anyway?

On 5/17/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/17/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > > I claim that the GPL is not a contract.
> > >
> > > I don't believe I'm disputing any claim you've made when
> > > I say this, because near as I can tell you have never
> > > actually asserted that the GPL is a contract.  The closest
> > > you've come seems to be this:
> > This appears to be addressed to me, since that's a quote from
> > something I wrote.
> Oh, yeah, wrong Michael.
> Oops.
> Michael, I apologize for confusing you with Michael.
> And, Michael, i also apologize for confusing you with Michael.
> (I'm making light here, but I really do apologize.)

No worries.  No offense taken in the first place.  :-)

> > If you are entirely unable to find, via your mail
> > client or in the debian-legal archives, one of the dozens of times
> > that I have written "the GPL is an offer of contract", here it is for
> > your convenience:
> >
> > <assertion by="guess who">
> > The GPL is an offer of contract.
> > </assertion>
> Good enough.  I should probably point out that the GPL
> (in the U.S.A., where copyright is routinely resolved as
> a contractual issue, and, if both parties have agreed to it)
> would be treated as and "agreement" under contract law,
> and not the "contract".  At least, that's my understanding of
> § 1-201 of the UCC.

Nitpick: copyright is not routinely resolved as a contractual issue,
in the US or anywhere else.  The validity and scope of a copyright
_license_ are contractual issues.  Copyright infringement is a
statutory tort in contemporary common law systems.

> http://www.law.cornell.edu/ucc/1/1-201.html

That's a nice reference to have.  As I read it, "agreement" is an
intermediate stage on the way to "contract" -- after any provisions
implied by conduct, etc. have been construed, but before any statutory
overrides have been applied.  The "bare" GPL -- its text, from Section
0 to Section 12 -- is an offer of contract.

Note, by the way, that the Preamble to the GPL doesn't talk at all
about trying to tilt the playing field in favor of free programs that
link against GPL components.  The closest it comes is in this

 When we speak of free software, we are referring to freedom, not
price. Our General Public Licenses are designed to make sure that you
have the freedom to distribute copies of free software (and charge for
this service if you wish), that you receive source code or can get it
if you want it, that you can change the software or use pieces of it
in new free programs; and that you know you can do these things.

"Use pieces of it in new free programs" certainly sounds to me like
fragmentary cut-and-paste, not linking to components that are
themselves separately identifiable works.  The preamble is in any case
explicitly excluded from the Terms and Conditions of the GPL, so its
text isn't a binding part of the agreement; but it reinforces the
claim that a licensee can reasonably believe that he is accepting its
obligations of return performance exclusively with respect to
derivative works.  Contracts are construed against the offeror, etc.

As a reminder:  I favor the use of the non-crack-smoking GPL on a much
broader basis than it is used today.  I would like to see all "open
source" projects, FSF and otherwise, relicensed exclusively under the
GPL so that we can roll up our sleeves and refactor the corpus without
worrying about whose chocolate winds up in whose peanut butter.  I
believe that the FSF's bullshitting about copyright law is the main
obstacle to that happening in today's software world.

> If you want to be technically correct, I think you could
> call it a license, or even a license agreement.  (Though,
> "license agreement" probably implies that an agreement
> has been made -- which needn't be true in all contexts.)

No, a license is an individual provision in a contract, whether
explicit or implied.  There's an asterisk in there about unilateral
contracts, estoppel, etc., but none of that applies to the GPL, which
specifies ample return performance to constitute consideration.  See
my comments and citations in
http://lists.debian.org/debian-legal/2005/01/msg00621.html .  "License
Agreement", if it means anything, means an agreement which contains a
license as one of its provisions.  IANAL, etc.

- Michael

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