Re: RES: What makes software copyrightable anyway?
On 5/18/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/18/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > OK, let's clarify that. There is a particular legal use of the word
> > "license", as in the phrase "scope of the license", which refers
> > specifically to an individual provision in a contract that says what
> > rights the copyright holder (or, in other settings, patent holder,
> > etc.) is offering to the licensee. Under the 1976 Copyright Act,
> > there are a variety of rights (to copy, to adapt, to translate, to
> > write sequels, to anthologize, etc.) that are divisible when issuing
> > non-exclusive licenses.
>
> In broad terms, I agree with you. However, in fine detail, I do not.
>
> Here's a checklist of the sorts of things a license preparer should
> consider under the heading "scope of license":
> http://www.allbusiness.com/forms/license/118.html
>
> That's not legal precedent, certainly, but if it was seriously in
> error I'd expect to see people jumping up and down in anger
> at how wrong this presentation is.
What makes you think that the audience for such a checklist knows jack
about the law, or takes the usage of the phrase "scope of license" to
correspond to its technical meaning in discriminating between breach
of contract and copyright infringement? But in any case, the portion
of that checklist under the "scope of license" heading, once stripped
of non-copyright considerations and of restrictions that probably
aren't valid under current law (backup, etc.), happens to coincide
precisely with my understanding of the primary literature that I have
read to date.
> In other words, I think "the rights granted in the license" is included
> in the concept "scope of license" but I have yet to see any reason
> to believe that there is some kind of equation that says "one right
> equals one license".
Neither do I. Did I assert that somewhere?
[snip indications that we agree on some things]
> > This "scope of license" construction does not involve any fine
> > judgments about whether the licensee's return performance is up to
> > snuff.
>
> If the GPL is an offer of contract, the only remedy explicitly included
> in the agreement is termination of all rights. Which means that
> the licensee's return performance is very much at issue.
At issue in a breach of contract claim. Not in a claim of copyright
infringement -- not unless and until it is proven that the contract
was justly terminated for material breach. You ought to at least be
able to extract from the Progress Software v. MySQL opinion the fact
that there are rules of law and equity about when termination is
justified that may preempt the bare language of the GPL.
> > Claiming that the entire GPL is a "license" in this technical
> > sense is erroneous.
>
> Why?
>
> > You don't have to believe me on this, you can
> > read SOS v. Payday yourself, and see how it was applied in Sun v.
> > Microsoft.
>
> That did not involve the GPL. You have not established the
> parallel.
Do you not understand the distinction between issues of fact and of
law? What is so hard about applying the concept of "scope of
license", as articulated in those cases, to find the portions of the
GPL (once construed in some particular way by a court of fact) that
constitute "scope of license"?
> Unless... are you claiming that the agreement between Sun and
> Microsoft had as its only remedy termination of license?
No. But standard-of-remedy clauses have nothing to do with "scope of license".
> > The everyday, interchangeable use of "contract", "agreement",
> > "license", "license agreement", "terms and conditions", etc. spills
> > over into legal opinions as well, of course; but I split this
> > particular hair at this particular juncture because I don't want to go
> > down the rathole of misinterpreting the phrase "scope of license" to
> > refer to the entirety of the GPL. OK?
>
> Why not just use a phrase that indicates the particular flavor of
> meaning you're after. For example "The copyright grant licensed
> under the GPL"?
>
> You don't have to redefine "GPL" to accomplish what you seem to
> want to accomplish.
Sorry, Raul, but using the word "license" in the title doesn't make
all of its terms and conditions suddenly become part of the "scope of
license" analysis. That's the argument that I was trying to preempt,
to save wear and tear on everyone's in-boxes (or killfiles, as the
case may be). Oh well; it was worth a try, anyway.
> > > If I read you right, you think that my citation of this case involving
> > > colorization was presented as something more than an example of a case
> > > based on something other than contract law.
> >
> > You keep asserting that "the GPL is not a contract", apparently
> > meaning that principles of contract law in a given jurisdiction
> > shouldn't be used to construe its legal meaning.
>
> Actually, I'm saying that in recognition that contract law is applicable.
>
> The contract is going to include the GPL plus whatever additional
> terms are supplied by law.
Did I read this right? Are you actually acknowledging that the GPL is
a creature of contract law? If so, I am in complete agreement with
this last statement, as long as you recognize that (under US law,
anyway) ambiguities in the text of the GPL must be construed against
the offeror in the absence of clear evidence that the licensee read
them in the offeror's favor at the time that the contract was
accepted.
> > You haven't advanced
> > any other theory under which it has any legal relevance; but you keep
> > (IMHO) grasping at straws that someone has told you are connected to a
> > court decision in which the terms of an agreement were analyzed using
> > some other theory. Heritiers Huston is the latest straw in the
> > series, about which you said:
> >
> > <quote>
> > Huston v. La Cinq Cass. civ. 1re (28 May 1991). is an
> > example of a court decision that applied some legal theory
> > other than contract in order to analyze the scope and
> > effect of a license.
> > </quote>
> >
> > That's a misunderstanding of the import of Heritiers Huston. The
> > terms of the license between John Huston and the original producer of
> > "The Asphalt Jungle" were brought into evidence and strongly urged by
> > Turner Corporation, but were ultimately irrelevant to the judgment in
> > the case. The plaintiffs prevailed on a "droits morals de l'auteur"
> > theory, founded in the French equivalent of copyright law -- a
> > statutory override on what rights it is possible for an author to
> > contract away, just like the termination provisions in 17 USC 203.
>
> So, given your concluding statement there, what is the "misunderstanding"
> which you claim I have?
"Droits morals de l'auteur" have nothing whatsoever to do with
license, and you can't contract them away (in a droit d'auteur
jurisdiction) no matter how hard you try. An opinion arrived at via
droits morals doesn't weaken the argument that all licenses are
governed by contract law.
> > > As for the scope of license issue... you seem to be
> > > referring to a principle used in patent law, and a principle
> > > which people think should be incorporated into contract law.
> > > http://www.uspto.gov/web/offices/pac/mpep/documents/appxr_5_15.htm
> > > http://www.law.upenn.edu/bll/ulc/ucita/citam99.htm
> >
> > Sigh. If you're going to read one court decision, how about making it
> > Sun v. Microsoft? The application of "scope of license" to copyright
> > licenses is staring you in the face in the very paragraphs that we
> > have most recently been wrangling over.
>
> My reading is that the court said that other remedies were available
> (other than termination of license).
>
> So how does this apply in the context of the GPL?
The court said that remedies under a theory of copyright infringement
were _not_ available because it had not been demonstrated that
Microsoft's conduct was not within the scope of license claimed under
the TLDA.
> > > As near as I can tell, you're asserting that in the context of a single
> > > instance of a single work the GPL can be factored into multiple licenses
> > > between a single copyright holder and a single licensee. And, you seem
> > > to be asserting that because this is the case that it's not correct to
> > > refer to the GPL as a license between these two parties, but instead
> > > it is oly correct to refer to the GPL as an offer of contract between
> > > these two parties.
> > >
> > > Have I got that right?
> >
> > That's not what I'm asserting, but note that under some circumstances
> > it can be true. See the discussion of "contractual covenants" in the
> > Sun v. Microsoft saga.
>
> It seems to me that Sun moved to reinstate those:
>
> http://java.sun.com/lawsuit/012400motioncal.html
>
> And the court said:
>
> Since the court finds that Sun has at least raised serious questions
> going to the merits and that the balance of hardships tips sharply in
> its favor if Microsoft is not enjoined, a preliminary injunction is hereby
> issued against Microsoft, and its officers, agents, servants, employees,
> attorneys, and those in active concert or participation with them ...
>
> (and so on, for quite a bit of text)
>
> Or is there some later court decision which takes
> precedence?
That motion appealed exclusively to, and was granted entirely based
on, a theory of unfair competition under California state law, which
had nothing whatsoever to do with copyright infringement. I will ask
you again, do you bother to read a court decision before citing it as
evidence in support of your arguments?
> [irrelevant stuff I wrote in previous message deleted]
>
> > I'm not saying any of the things you suggest in this last chunk. I'm
> > saying that the "scope of the license[s]" granted in the GPL is to be
> > found by construing only those terms defining the rights being made
> > available to the licensee, not those terms binding the licensee to
> > return conduct. That scope clearly includes copying, modifying,
> > translating, anthologizing, and in fact pretty much every right that
> > is reserved to a copyright holder and can legally be offered under
> > contract. So there is little or no prospect of any "GPL infringement"
> > lawsuit in which the plaintiff doesn't have to prove material breach
> > of contract under the most unfavorable construction the defendant can
> > justify.
>
> Unless you are meaning this as a tautology, (which isn't very interesting)
> I think your concluding sentence here is overly optimistic in favor of the
> potential defendant.
It is a tautology, in a way, since it follows immediately from a few
simple facts about the scope of license offered in the GPL. It also
deserves an asterisk with regard to authorization to publish, as in
the WASTE situation, and another asterisk with regard to statutory
termination provisions and all that. Otherwise, I believe that it is
true as it stands; I could, of course be surprised. IANAL, etc.
Cheers,
- Michael
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