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Re: RES: What makes software copyrightable anyway?

On 5/17/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> The GPL is an offer of contract, no more and no less.  

Ok... if you offer me the GPL as a contract, and I
accept, at that point the GPL is not the whole of the
contract but it's more than an offer.  So I'm already
losing track of your point.

> Ambiguities in contract terms are, by law in the US anyway, construed 
> against the offeror.  GPL Section 0 defines a "work based on the Program" as a
> "derivative work under copyright law", and that's the only candidate
> for definition of that phrase that is still standing after
> construction.  Hence obligations to provide the source code for a
> "work based on the Program" are limited to the scope of a derivative
> work.

Slow down.  Has anyone even agreed to this contract?

If so, what did they agree to?

In particular, you've not showed that this ambiguity
is "against the offeror" 

A noun-phrase, in and of itself, isn't "for" or "against" anyone.
You have to consider the term as a whole, with all it's potential
implications and then (if you're construing ambiguity in
someone's favor) latch onto the implication you want.

You do not get to extract random nouns and say "this noun
favors me" or "this noun is a problem for me".  That's 

> Under US law at least, a program that uses another program or library
> through a stable published API is not a derivative work of the work it
> uses.

Maybe.  I'm not certain what requirements have to be established
to show that an API is stable and published.

> There is plenty of basis for construing blanket authorization
> to create collective works into the GPL, and no basis for declaring
> that distro CDs are OK but statically linked programs are not.  

That's an assertion.  Given this assertion, you can't prove
that this assertion is true, though you can show that for
cases where this assertion is true, other issues would follow.

> A fortiori, dynamically linked programs whose components are shipped in
> separate packages, so that they are only combined at run-time, are
> entirely exempt from claims of copyright infringement under 17 USC
> 117.  So the Wicked Linker of Closed Programs to GPL Libraries (or GPL
> Programs to OpenSSL) gets off scot-free.

Let's see, to get here you had to take a noun and construe it
as a term of a contract, you had to refer to a method of
resolution for which you've not yet provided the details, and
you had to make a broad assertion (which is really your
conclusion, but stated more generally).

I have no way of testing whether what you say is true.  
I can't even discern the logic behind these statements.

... anyways, I inclined to give up about here.  

Also, I'm not clear why you think, above, that the
GPL constitutes an offer of contract, and nothing
more or less, but (in the part i'm sniping), you think 
that it can't be an offer of contract without construing
an offer of agency to grant sublicense.

I guess one of my biggest problems is that you claim
statements of yours are universal, use that universality
to make your point, then contradict that universality
when it would interfere with some other universal
statement you want to make.  And yet, when I try
to talk about these apparent contradictions, you tell 
me about how I'm misconstruing what you've said.

Ok, that's fine -- I don't understand what you really
meant to say.  But, by the same token, I don't think
it's reasonable of you to expect me (or anyone
else) to understand what it is that you really meant
to say.

> > > No, a license is an individual provision in a contract, whether
> > > explicit or implied.
> >
> > Could you provide a citation on that?  This seems to
> > conflict with the usages I'm familiar with, including
> > those in the urls you mentioned at
> >
> > > http://lists.debian.org/debian-legal/2005/01/msg00621.html
> Let's see...  A non-exclusive license is "a mere waiver of the right
> to sue" (De Forest Radio Telephone v. United States), that's a
> provision in a contract.

Here's a more complete quote, from an earlier case:

   'If a licensee be sued, he can escape liability to the patentee for the use 
   of his invention by showing that the use is within his license; but, if his
    use be one prohibited by the license, the latter is of no avail as a 
   defense. As a license passes no interest in the monopoly, it has 
   been described as a mere waiver of the right to sue by the 
   patentee'-citing Robinson on Patents, 806 and 808.

What I'm not seeing here is a reason for thinking that the GPL is
not a license, nor a license agreement.  Being able to
construe a license as an offer of contract does not make it
not be a license.

> It's significant continuing performance (in re CFLC), that's a 
> provision in a contract.  

Uh... are you referring to this: 

If so, I think you're talking about the assignability of patent licenses 
in bankruptcy court.  I don't see that this has any direct bearing on 
whether the GPL is or is not a license.

> An orally granted exclusive license is modified under construction to a non-exclusive
> one, and isn't retroactively terminated because "one party's breach
> does not automatically cause recision [sic] of a bilateral contract"
> (Jacob Maxwell v. Veeck).  I can't find the conflict; what did you
> have in mind?

We're not talking about an exclusive license -- that would be transfer 
of ownership of the right in question. We're talking about a 
non-exclusive license.  So this bit about "orally granted exclusive 
licenses being modified and not automatically terminated" doesn't 
seem pertinent at all.

Anyways, I don't really care whether or not you can find a conflict
between some perhaps irrelevant text and the definition you've
asserted -- I want to see some citation that leads me to believe
that the distinction you've asserted is correct.

> How about Merriam-Webster's Dictionary of Law, as cited by FindLaw:
> 1 c: a grant by the holder of a copyright or patent to another of any
> of the rights embodied in the copyright or patent short of an
> assignment of all rights

Ok, let's see if I can link to that:

> And here's the most relevant definition of grant:
> 3 a: a transfer of property by deed or writing
> b: the instrument by which such a transfer is made

I just don't see the distinction you're asserting
being backed up by this definition.

> You can chase the verbs "grant", "permit", "bestow", and "transfer"
> around the dictionary until your face turns blue, but you're not going
> to find anything more "official" than, say, Corbin on Contracts,
> Nimmer on Copyright, and the cases they cite.  If case law says (as it
> does) that non-exclusive licenses need not be in writing but exclusive
> licenses must, then waving around that "by writing" bit in the above
> definition will get you exactly nowhere.  Ditto your contention, which
> is that there are people in the world who use "license" to mean
> something other than a term in a contract.

Ok, but that doesn't really answer the question I asked.

I still don't know if what you asserted back then is true.  I've got
a bunch more assertions from you, and a bunch of text that
may or may not be relevant if only I knew what you were talking
about..  But.. 

I guess I don't see the point of all this.


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