Re: GPL, "license upgrades", and the obligation to offer source code
On 5/11/05, Nathanael Nerode <neroden@twcny.rr.com> wrote:
> m.k.edwards@gmail.com wrote:
> >With respect to authorization to accept contract terms, a court
> >shouldn't honor a check that was blank when you signed it unless you
> >endorsed it after it was filled in.
>
> IIRC, they do honor them in the case of checks!
> Writing a blank check is a bad idea, of course.
AIUI (IANAL), If you can demonstrate that you set constraints (orally
or in writing) on how that blank check was to be filled in at the time
that you handed it to the person who filled it in, you have a cause of
action against the person who filled it in and -- if they knowingly
accepted a payee and amount that you did not intend to authorize --
against the person who received it. Ditto if the check was stolen and
then filled in. Getting your money back if the check has cleared may
be hard, though.
> >Not if you protest promptly once
> >you learn about them that you don't want to be bound by such terms.
> Ah, yes, well, that may be a different case then.
Again, you may win in court, but it's hard to get your money back once
the check has cleared -- which is why you don't hand blank checks to
people you don't trust, and why you don't hand entire books of signed
checks to anybody.
> Debian usually doesn't carry software where the author actually says "I didn't
> mean to license it that way, it was a really big mistake," even when the
> license is clear textually. That's only politeness; but if it were legal, it
> wouldn't really be that bad.
Actually, it would. You get the pine situation. Suppose somebody
forked from the last version labeled "Permission to use, copy, modify,
_and_ distribute ...", was sued by UW, and won in court. (Which I
believe they might, on "construction against the offeror" grounds; or
might not, because they can hardly claim not to know about UW's
position when forking, and there isn't the kind of diversity of public
opinion on the topic that there is with regard to the GPL.) Can
Debian distribute that fork? Very possibly they're the only distro
that can't. Because, even if a court were to hold that the copyright
holder is clearly mis-construing the original license with
questionable intent (did I mention that I am not a lawyer?), Debian
might be estopped from ever claiming that they didn't accept UW's
reading of it.
Now, I haven't read the archives of the dispute, and I don't know
whether pine is in non-free on legal advice or on courtesy grounds.
But I think it's really important that Debian focus on "we have our
own guidelines, and the license on pine doesn't meet them". Or in the
case of the GPL, "we've always held that the GPL was a DFSG-free
license, and we never worked too hard at construing its precise
limits; but as a courtesy to the wishes of the FSF we don't link GPL
and 'GPL-incompatible' works". Thereby reserving the right to do so
in the future given legal clarification.
> I would generally expect 'upgrade clauses' to be used primarily for works by
> vanished authors, and for works by authors whose copyright has passed to
> third parties. As an author I can see a good case for explicitly allowing
> the FSF to license my work under any license they like -- if I then plan to
> sell my copyright to a corporation, which may later go bankrupt and get
> bought by a litigation firm!
If you plan to do that, you're getting yourself and the FSF into hot
water. I believe that one is obliged to disclose any existing
licenses of rights under a given copyright when offering to assign it.
To do otherwise may be fraud (IANAL); and to do so, when you are on
record as believing that the FSF has rights to alter that license
freely, is quite likely to be fraud, unless it is made clear in
writing to the assignee that they are getting a severely encumbered
copyright.
> >Like the right to renegotiate the terms of a copyright license after a
> >certain number of years, the right to decline terms that you haven't
> >seen ought to be inalienable.
>
> Only for the author, absolutely *not* for heirs, purchasers, or assignees!
I approve of the "widows and orphans" clause. It cuts the incidence
of "he was out of his mind when he accepted those terms" claims.
Widows and assignees/licensees both know when the bomb is going to
drop, and they both have incentive to negotiate in advance, in good
faith, based on current information. This keeps a lot of disputes out
of court and a lot of works in circulation.
I don't approve of extending the life of existing copyrights, though;
that's the entertainment industry and their friends on Wall Street
0wning the legislature.
Cheers,
- Michael
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