Re: RES: What makes software copyrightable anyway?
On 5/17/05, Raul Miller <moth.debian@gmail.com> wrote:
> > > Then again, as an example of a copyright case where
> > > contract law was held to be irrelevant, consider Huston v. La
> > > Cinq Cass. civ. 1re (28 May 1991).
>
> On 5/17/05, Michael Poole <mdpoole@troilus.org> wrote:
> > Hm, so a French court could claim jurisdiction over a case where a
> > modification is made to free software that the original software's
> > author opposed and the modified work is distributed in France.
>
> Among other things, yes.
And where, exactly, do you find support for the contention that droit
d'auteur can be invoked under French law to oppose any modification or
distribution that displeases the author, irrespective of the contract
terms that may pertain?
> > Was your point that significant use of free software is untenable in
> > continental Europe, or that droit d'auteur is distinct from the more
> > economic parts of copyright (the parts the GPL addresses)?
>
> Let me put it to you this way:
>
> I claim that the GPL is not a contract.
>
> I don't believe I'm disputing any claim you've made when
> I say this, because near as I can tell you have never
> actually asserted that the GPL is a contract. The closest
> you've come seems to be this:
>
> < I've engaged in an extended discussion with the person on the other
> < end of licensing@fsf.org, to whom Eben Moglen directed me, on both the
> < "derivative work" and "GPL is a contract" points. IANAL, and neither
> < is licensing@fsf.org, but I raised many of the US legal precedents
> < which I have previously cited on debian-legal. Suffice it to say that
> < if the FSF has a leg to stand on, it's not visible through that
> < mechanism of inquiry.
>
> Similarly, the specific claims you've proposed in your above
> paragraph don't really correspond to anything that I'm saying.
This appears to be addressed to me, since that's a quote from
something I wrote. If you are entirely unable to find, via your mail
client or in the debian-legal archives, one of the dozens of times
that I have written "the GPL is an offer of contract", here it is for
your convenience:
<assertion by="guess who">
The GPL is an offer of contract.
</assertion>
I recall having said something involving "eat the page it's written on" as well.
As I understand it (IANAL), it's not actually a "contract" until the
parties involved are identified by name, the offer is demonstrated to
have been accepted (presumably through conduct), and the text of the
offer is fully construed under the appropriate choice of governing law
to discard terms that are forbidden by statute, supply terms that are
implied through conduct, resolve ambiguities against the offeror, etc.
But that distinction seems to be a little too fine to be retained in
your net; so yes, the GPL is more or less a contract. How's that?
Cheers,
- Michael
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