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Re: RES: What makes software copyrightable anyway?

On 5/18/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> OK, let's clarify that.  There is a particular legal use of the word
> "license", as in the phrase "scope of the license", which refers
> specifically to an individual provision in a contract that says what
> rights the copyright holder (or, in other settings, patent holder,
> etc.) is offering to the licensee.  Under the 1976 Copyright Act,
> there are a variety of rights (to copy, to adapt, to translate, to
> write sequels, to anthologize, etc.) that are divisible when issuing
> non-exclusive licenses.

In broad terms, I agree with you.  However, in fine detail, I do not.

Here's a checklist of the sorts of things a license preparer should
consider under the heading "scope of license":

That's not legal precedent, certainly, but if it was seriously in
error I'd expect to see people jumping up and down in anger
at how wrong this presentation is.

In other words, I think "the rights granted in the license" is included
in the concept "scope of license" but I have yet to see any reason
to believe that there is some kind of equation that says "one right 
equals one license".

> If the license granted is limited to the making of copies, and the
> licensee exceeds its scope by modifying the work (and thereby creating
> a derivative work), then this "conduct outside the scope of the
> license" is not part of the contractual relationship between the
> parties, and the licensor has a cause of action under copyright law
> (the tort of copyright infringement).  


> This is the _only_ "shortcut" of which I am aware under US law that 
> allows a plaintiff to prevail  under a copyright law theory while there 
> is a valid, unterminated contract licensing rights to the same work 
> to the defendant.

I have no disagreement here.  [Though I wouldn't use the term

> This "scope of license" construction does not involve any fine
> judgments about whether the licensee's return performance is up to
> snuff.

If the GPL is an offer of contract, the only remedy explicitly included
in the agreement is termination of all rights.  Which means that
the licensee's return performance is very much at issue.

> Claiming that the entire GPL is a "license" in this technical
> sense is erroneous.


> You don't have to believe me on this, you can
> read SOS v. Payday yourself, and see how it was applied in Sun v.
> Microsoft.

That did not involve the GPL.  You have not established the

Unless... are you claiming that the agreement between Sun and
Microsoft had as its only remedy termination of license?

> The everyday, interchangeable use of "contract", "agreement",
> "license", "license agreement", "terms and conditions", etc. spills
> over into legal opinions as well, of course; but I split this
> particular hair at this particular juncture because I don't want to go
> down the rathole of misinterpreting the phrase "scope of license" to
> refer to the entirety of the GPL.  OK?

Why not just use a phrase that indicates the particular flavor of
meaning you're after.  For example "The copyright grant licensed
under the GPL"?

You don't have to redefine "GPL" to accomplish what you seem to
want to accomplish.

> > If I read you right, you think that my citation of this case involving
> > colorization was presented as something more than an example of a case
> > based on something other than contract law.
> You keep asserting that "the GPL is not a contract", apparently
> meaning that principles of contract law in a given jurisdiction
> shouldn't be used to construe its legal meaning.  

Actually, I'm saying that in recognition that contract law is applicable.

The contract is going to include the GPL plus whatever additional
terms are supplied by law.

> You haven't advanced
> any other theory under which it has any legal relevance; but you keep
> (IMHO) grasping at straws that someone has told you are connected to a
> court decision in which the terms of an agreement were analyzed using
> some other theory.  Heritiers Huston is the latest straw in the
> series, about which you said:
> <quote>
> Huston v. La Cinq Cass. civ. 1re (28 May 1991). is an
> example of a court decision that applied some legal theory
> other than contract in order to analyze the scope and
> effect of a license.
> </quote>
> That's a misunderstanding of the import of Heritiers Huston.  The
> terms of the license between John Huston and the original producer of
> "The Asphalt Jungle" were brought into evidence and strongly urged by
> Turner Corporation, but were ultimately irrelevant to the judgment in
> the case.  The plaintiffs prevailed on a "droits morals de l'auteur"
> theory, founded in the French equivalent of copyright law -- a
> statutory override on what rights it is possible for an author to
> contract away, just like the termination provisions in 17 USC 203.

So, given your concluding statement there, what is the "misunderstanding" 
which you claim I have?

> > As for the scope of license issue... you seem to be
> > referring to a principle used in patent law, and a principle
> > which people think should be incorporated into contract law.
> > http://www.uspto.gov/web/offices/pac/mpep/documents/appxr_5_15.htm
> > http://www.law.upenn.edu/bll/ulc/ucita/citam99.htm
> Sigh.  If you're going to read one court decision, how about making it
> Sun v. Microsoft?  The application of "scope of license" to copyright
> licenses is staring you in the face in the very paragraphs that we
> have most recently been wrangling over.

My reading is that the court said that other remedies were available
(other than termination of license).

So how does this apply in the context of the GPL?

> > As near as I can tell, you're asserting that in the context of a single
> > instance of a single work the GPL can be factored into multiple licenses
> > between a single copyright holder and a single licensee.  And, you seem
> > to be asserting that because this is the case that it's not correct to
> > refer to the GPL as a license between these two parties, but instead
> > it is oly correct to refer to the GPL as an offer of contract between
> > these two parties.
> >
> > Have I got that right?
> That's not what I'm asserting, but note that under some circumstances
> it can be true.  See the discussion of "contractual covenants" in the
> Sun v. Microsoft saga.

It seems to me that Sun moved to reinstate those:


And the court said:

   Since the court finds that Sun has at least raised serious questions 
   going to the merits and that the balance of hardships tips sharply in 
   its favor if Microsoft is not enjoined, a preliminary injunction is hereby 
   issued against Microsoft, and its officers, agents, servants, employees, 
   attorneys, and those in active concert or participation with them ...

(and so on, for quite a bit of text)

Or is there some later court decision which takes

[irrelevant stuff I wrote in previous message deleted]

> I'm not saying any of the things you suggest in this last chunk.  I'm
> saying that the "scope of the license[s]" granted in the GPL is to be
> found by construing only those terms defining the rights being made
> available to the licensee, not those terms binding the licensee to
> return conduct.  That scope clearly includes copying, modifying,
> translating, anthologizing, and in fact pretty much every right that
> is reserved to a copyright holder and can legally be offered under
> contract.  So there is little or no prospect of any "GPL infringement"
> lawsuit in which the plaintiff doesn't have to prove material breach
> of contract under the most unfavorable construction the defendant can
> justify.

Unless you are meaning this as a tautology, (which isn't very interesting)
I think your concluding sentence here is overly optimistic in favor of the 
potential defendant.  


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