Re: RES: What makes software copyrightable anyway?

[Michael Poole <mdpoole@troilus.org>]

Raul Miller writes:

>> > 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.

That seems rather non-free.

>> 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.

That ignores my question, but that is what I meant earlier by asking
if you wanted the GPL to be a pure copyright license.

Since France is a civil law country, many more things are treated as
"contracts" -- which is not a great translation, as is sometimes
pointed out on this list, since the English word "contract" has a
connotation of the common law contract framework.  French courts would
probably treat the GPL as 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.

That was not me, but I have concerns similar to those.  I am skeptical
that a common law court would on its own establish a non-contract
basis the kind of obligations the GPL imposes.  Courts need a basis to
determine the questions of law that follow from a claimed breach: In
situation X, does action Y imply liability?  If so, what are the
possible remedies?

Copyright law by itself does not establish a framework to evaluate
claims of license violation.  In the absense of some better framework,
I think a common law court would treat the GPL as a contract.  If you
know of a better framework -- set in usable form by either statute or
case law -- I am interested in hearing it.

Michael Poole