Re: RES: What makes software copyrightable anyway?
On 5/19/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/19/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > At issue in a breach of contract claim. Not in a claim of copyright
> > infringement -- not unless and until it is proven that the contract
> > was justly terminated for material breach.
>
> Sure, someone who isn't violating the GPL isn't a problem.
Nice dodge! Not much of a rebuttal, though.
> > Do you not understand the distinction between issues of fact and of
> > law? What is so hard about applying the concept of "scope of
> > license", as articulated in those cases, to find the portions of the
> > GPL (once construed in some particular way by a court of fact) that
> > constitute "scope of license"?
>
> Ultimately, scope of license wasn't the issue. Expectation of
> continuing harm was.
>
> Quite literally: the court didn't address the scope of
> license issue.
Bullshit. Decision at http://java.sun.com/lawsuit/050800ruling.html ,
which I already pointed out to you and which is referred to in the
summary of the history of the litigation at the beginning of the case
you cited.
> > > 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.
> >
> > Sorry, Raul, but using the word "license" in the title doesn't make
> > all of its terms and conditions suddenly become part of the "scope of
> > license" analysis. That's the argument that I was trying to preempt,
> > to save wear and tear on everyone's in-boxes (or killfiles, as the
> > case may be). Oh well; it was worth a try, anyway.
>
> You do not need to redefine "GPL to accomplish what you seem to
> want to accomplish.
What do you think you mean by this?
> > Did I read this right? Are you actually acknowledging that the GPL is
> > a creature of contract law? If so, I am in complete agreement with
> > this last statement, as long as you recognize that (under US law,
> > anyway) ambiguities in the text of the GPL must be construed against
> > the offeror in the absence of clear evidence that the licensee read
> > them in the offeror's favor at the time that the contract was
> > accepted.
>
> I'm not really interested in classifying the GPL as a creature.
>
> I do agree that copyright cases in the U.S. are routinely analyzed
> using contract law.
Bullshit again. Copyright _licenses_ in the US and elsewhere are
routinely analyzed using contract law. Allegations of copyright
infringement, where the scope and validity of a claimed license are at
issue, use contract law to analyze that scope and validity. Copying,
distribution, adaptation, translation, compilation, etc. that takes
place outside the scope of a valid license is routinely analyzed using
copyright law.
> I'm not going to touch your "ambiguity" argument, because I think
> you have some severe misunderstandings about what constitutes
> a legally relevant ambiguity. However, to avoid argument, I'll
> agree that there are cases where ambiguity is construed in
> favor of the licensee.
Not "there are cases". It's an ironclad principle of law in common
law jurisdictions that ambiguities in contracts are to be construed
against the offeror, in the absence of evidence through oral
discussions, conduct, etc. that the offeree intended to be bound by
the offeror's construction.
> > "Droits morals de l'auteur" have nothing whatsoever to do with
> > license, and you can't contract them away (in a droit d'auteur
> > jurisdiction) no matter how hard you try. An opinion arrived at via
> > droits morals doesn't weaken the argument that all licenses are
> > governed by contract law.
>
> That's exactly the form legal logic would take when a case is decided
> on some principle other than contract law.
>
> Anyways, if you're willing to agree that contract law is not the only
> relevant issue in deciding a case, I'm happy.
Straw man. No one is buying.
> > > 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?
> >
> > The court said that remedies under a theory of copyright infringement
> > were _not_ available because it had not been demonstrated that
> > Microsoft's conduct was not within the scope of license claimed under
> > the TLDA.
>
> Note that this is not equivalent to saying that Microsoft's conduct was
> within that scope.
No, but the district court's subsequent ruling did say this; and even
if it hadn't, the legal principle that analysis of scope of license
must precede any ruling on copyright infringement claims would still
hold.
> > > http://java.sun.com/lawsuit/012400motioncal.html
> ...
> > > Or is there some later court decision which takes
> > > precedence?
> >
> > That motion appealed exclusively to, and was granted entirely based
> > on, a theory of unfair competition under California state law, which
> > had nothing whatsoever to do with copyright infringement. I will ask
> > you again, do you bother to read a court decision before citing it as
> > evidence in support of your arguments?
>
> I think we can agree that Microsoft was violating the license.
I have seen no ruling to that effect that was not vacated by a higher
court. Microsoft was enjoined under a state law regarding unfair
competition -- a tort -- for which the license terms were part of the
evidence. Do you have any indication that Sun succeeded in obtaining
any judgment on a breach of contract theory?
> I think we can agree that the district court did not address
> the issue of whether or not the activities which constituted
> the breach of contract was within the scope of Microsoft's license.
Wrong twice over; see above.
> I think we can agree that Sun was granted an injunction simply
> because Microsoft was likely to continue violating the contract.
Still wrong. The court ruled that Microsoft was likely to continue
engaging in unfair competitive practices, which is part of the support
needed in order to justify a preliminary injunction under the
applicable state (tort) law.
> Do we agree so far?
Evidently not.
> Now let's consider the GPL. Let's imagine some entity B
> is in breach of contract with some entity C where the
> agreement in question is the GPL. C made some work
> available under the GPL to B, and B breaches the terms
> of the contract.
>
> Let's say that this is established in court, so our case
> is parallel to the Sun v. Microsoft case.
That would not, in fact, be parallel to the facts of Sun v. Microsoft
as I understand them. I haven't yet seen evidence that Sun succeeded
in a breach-of-contract claim -- although I haven't read all of the
district court opinions in that saga closely.
> Is this what you're wanting to talk about?
Not principally; but I'll go there with you.
> In the context of the GPL, the remedy contained in the
> agreement is that the license terminates.
Funny how that's not how it worked in Progress Software v. MySQL, isn't it?
> So, in the context of the GPL -- unless you can show that
> some other remedy applies -- breach of contract means
> that B is infringing copyright.
No, breach of contract means breach of contract. If the remedy
granted by the court includes recognition of the offeror's grounds for
contract termination as of a certain date -- applying statutory notice
requirements and all that -- then continued copying, etc. beyond that
date is copyright infringement. The remedies for that are specified
by statute and the GPL's text has nothing to do with them.
> But maybe I'm wrong -- how could that be?
>
> Maybe the court has tossed out that remedy -- unless
> some other remedy is provided by law, there is
> no contract at this point. This would mean that the
> case must proceed using some other principles
> than contract law.
Nope. Unless and until the contract is ruled to be terminated, the
breach-of-contract part of the case proceeds under contract law using
the fully construed contract, including whatever remedies for material
breach and/or standards of cure that the applicable law and/or
principles of equity may suggest.
> We're also left with the possibility that by law some other
> remedy is a salient part of the contract. I'll be interested
> if you find something significant along this line.
>
> One other possibility remains: B is guilty of copyright infringement.
Not unless B has acted outside the scope of the license or the
contract is ruled to have been invalid or terminated according to
contract law and the facts of the case.
> > It is a tautology, in a way, since it follows immediately from a few
> > simple facts about the scope of license offered in the GPL. It also
> > deserves an asterisk with regard to authorization to publish, as in
> > the WASTE situation, and another asterisk with regard to statutory
> > termination provisions and all that. Otherwise, I believe that it is
> > true as it stands; I could, of course be surprised. IANAL, etc.
>
> For someone in breach of contract, the scope of license seems to be:
> no license has been granted. That seems to me to be a rather narrow
> scope.
Bzzzt. That's not what "scope of license" means.
> Of course, you acknowledged that in your statement (thus my
> question about whether you meant it as a tautology).
>
> But basically, you've come up with a different way to describe
> what we've been calling "violating the GPL".
A very different way to describe the procedure of analysis, yes; and
hence one which draws a very different picture of what is and isn't a
"GPL violation".
Cheers,
- Michael
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