Re: Contract and Tort Law and the GPL
On 12 May 2005 09:46:28 GMT, MJ Ray <mjr@dsl.pipex.com> wrote:
> Thanks for the apology. Would you consider posting a short outline
> of how you would rebut the argument in general, rather than getting
> annoyed writing a point-by-point demolition? I'd ignore any "you
> can't answer everything you cut" replies, but if the OP wants to
> flag one or two particularly significant points, that's different.
All right, I'll try. Remember that IANAL and brevity is not my strong suit.
Raul begins with an attempt to summarize my (and many others') central
contention about the bogusness of the FSF's GPL FAQ:
> It's been suggested that existing case law with respect to copyrights
> always is based on contract law, and that the GPL can only be
> understood in terms of contract law.
At this point in the discussion, this summary is beyond obtuse. All
copyright _licenses_ (in the US, anyway) are terms in contracts. When
an action is brought for copyright infringement and the defendant
claims license, the terms of that license, written, oral, or implied
through conduct, are _always_ analyzed under the applicable contract
law. Certain terms are, by statute (copyright assignment) or by
precedent (agency to sublicense), only construable if they are present
in a written agreement; they may also require a stronger form of
acceptance (such as a signature) than general contract terms.
So yes, the GPL can only be understood in terms of contract law. Its
subject matter is largely copyright, and the drafter professes to have
believed that it is solely a creature of copyright law. The only
significance this erroneous belief has to the interpretation of the
license is that ambiguous expressions such as "mere aggregation"
should be construed using their meanings in a copyright context, not
some computer industry expert witness's idea of what they ought to
mean.
But that's a rebuttal of arguments made elsewhere. In this instance,
Raul goes on to assert the existence of some illusory obstacles to
obtaining redress for real infringements, such as acceptance, basis
for determination of damages, and the lack of a single copyright
holder on the majority of a work. I say illusory because they are in
fact not obstacles. Not to winning a copyright infringement case when
GPL obligations with respect to a derivative work are not being
honored (see Harald Welte's prosecution of Fortinet -- anyone have a
URL for the actual opinion?). And also not to successfully defending
a copyright infringement case when one can demonstrate substantial
compliance in good faith with GPL terms (see Progress Software v.
MySQL).
So there's no basis for claiming that the balance of equities requires
that the Wicked Linker be struck down under a legal theory which
requires no contractual relationship between the parties -- i. e.,
tort. What tort, anyway? And what damages? And in any case waving
around the word "tort" isn't going to get anyone anywhere with those
"industry heavy hitters". They may be stupid enough to hand the OSDL
money to pass along to Eben Moglen to set up his Institute of
Crack-Smoking Contract Interpretation -- but the Tort of Doing Things
We Don't Like But Can't Find A Valid Objection To is over the top.
Cheers,
- Michael
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