Re: Questions about legal theory behind (L)GPL
"Michael K. Edwards" <m.k.edwards@gmail.com> writes:
> The only form in which the GPL can be read as requiring any conduct
> from licensees (such as the provision of copies of source code on
> demand and the extension of the GPL to the licensee's copyright in
> derived works) is as an offer of (bilateral) contract, duly accepted
> by the licensee, in return for valid consideration. If anyone can
> cite legal precedent to the contrary, now would be a good time to
> mention it; licensing@fsf.org doesn't seem to have any to offer.
Fortunately, the set of GPL provisions we use don't require any
conduct from licensees. The GPL unilaterally grants licenses to
perform certain conduct. For example, it grants the right to derive
new works which contain changelogs. It grants the right to distribute
binaries with source code.
None of its behaviors are demanded of licensees -- they merely grant
privileges to which the licensee would not otherwise have access.
>> However, if the contract formed in the GPL isn't such an "exchange",
>> then it can only be one thing: a promise to make a gift. And presumably
>> one of a variety which is an enforceable contract.
Or it can be just a gift, with no promises or contracts involved.
It's a gift of an intangible, so the only way you can see that it's
there is by words which themselves are actions -- just like "I invite
you into my home" is a gift of privilege to enter. It doesn't grant
you the privilege to enter, say, the shed out back -- even though that
might be part of the same property.
Just so, the rights reserved to the author by copyright law may be
parceled out as separate gifts.
> In any case, a gift is a transfer of ownership
Really? What is it when I invite you into my home?
> and a non-exclusive copyright license is not; courts in the US have
> consistently declined to find implicit transfers of ownership or of
> the right to sub-license, and only a valid contract can bind a
> copyright holder to issue a license.
But in the case of the GPL, he's not bound. It's just that he's
already issued the license -- or are you talking about some case other
than an author releasing his own works under the GPL?
> I have cited cases elsewhere which demonstrate, at least to my
> satisfaction with regard to US precedent, that the GPL is an
> ordinary bilateral contract, not some sort of unilateral gift of
> gerrymandered copyright territory.
Then what's the BSD license? Still going to claim it's a contract,
and not what it plainly is: a license?
> With all due respect to you and to the FSF, trying to situate the
> (L)GPL outside the realm of ordinary bilateral contract doesn't
> simplify our lives. Where precedents are thin on the ground, a court
> has more scope to create novel law by reaching past the letter of a
> statute or an agreement to find legislative intent or a principle of
> equity.
Precedents regarding licenses and grants can hardly be scarce.
I'm not a lawyer, and I don't have the research skills you so
masterfully demonstrate so I don't have an example to hold up.
-Brian
--
Brian Sniffen bts@alum.mit.edu
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